Corporations Act 2001

CHAPTER 5B - BODIES CORPORATE REGISTERED AS COMPANIES, AND REGISTRABLE BODIES  

PART 5B.1 - REGISTERING A BODY CORPORATE AS A COMPANY  

Division 1 - Registration  

SECTION 601BA   BODIES CORPORATE MAY BE REGISTERED AS CERTAIN TYPES OF COMPANIES  

601BA(1)   [ Company]  

A body corporate that is not a company or corporation sole may be registered under this Act as a company of one of the following types:

(a) a proprietary company limited by shares;

(b) an unlimited proprietary company with share capital;

(c) a public company limited by shares;

(d) a company limited by guarantee;

(e) an unlimited public company with share capital;

(f) a no liability company.

601BA(2)   [ No liability company]  

A body corporate may be registered as a no liability company only if:

(a) the body has a share capital; and

(b) the body's constitution states that its sole objects are mining purposes; and

(c) under the constitution the body has no contractual right to recover calls made on its shares from a member who fails to pay them.

Note: Section 9 defines mining purposes and minerals .

SECTION 601BB   BODIES REGISTERED AS PROPRIETARY COMPANIES  

601BB(1)   [ Non-employee shareholder limit]  

The body must have no more than 50 non-employee shareholders if it is to be registered as a proprietary company under this Part.

601BB(2)   [ Application]  

In applying subsection (1):

(a) count joint holders of a particular parcel of shares as 1 person; and

(b) an employee shareholder is:

(i) a shareholder who is an employee of the body or of a subsidiary of the body; or

(ii) a shareholder who was an employee of the body, or of a subsidiary of the body, when they became a shareholder.

SECTION 601BC   APPLYING FOR REGISTRATION UNDER THIS PART  

601BC(1)    
To register the body as a company under this Part, a person must lodge an application with ASIC.

Note 1: For the types of companies that can be registered under this Part, see section 601BA .

Note 2: A name may be reserved for a company to be registered under this Part before the application is lodged (see Part 2B.6 ).

601BC(2)    
The application must state the following:

(a)    the type of company that the body is proposed to be registered as under this Act;

(b)    the name of the body;

(c)    if the body is a registered body - its ARBN;

(d)    the proposed name under which the body is to be registered (unless the ACN is to be used);

(e)    the name and address of each member of the body;

(f)    the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a director;

(g)    the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary;

(h)    the address of each person who consents in writing to become a director or company secretary;

(i)    the address of the body ' s proposed registered office;

(j)    for a body proposed to be registered as a public company - the proposed opening hours of its registered office (if they are not the standard opening hours);

(k)    the address of the body ' s proposed principal place of business (if it is not the address of the proposed registered office);

(l)    

for a body proposed to be registered as a company limited by shares or an unlimited company - the following:

(i) the number and class of shares each member already holds or has agreed, in writing, to take up;

(ii) the amount each member has already paid or agreed, in writing, to pay for each share;

(iia) whether the shares each member already holds or has agreed, in writing, to take up will be fully paid on registration;

(iii) the amount unpaid on each share;

(iv) whether or not the shares each member agrees in writing to take up will be beneficially owned by the member on registration;

(v) on registration, the classes into which shares will be divided;

(vi) for each class of share on issue on registration - the number of shares in the class on registration;

(vii) for each class of share on issue on registration - the total amount paid up for the class on registration;

(viii) for each class of share on issue on registration - the total amount unpaid for the class on registration;

(la)    

whether or not, on registration, the company will have an ultimate holding company;

(lb)    

if, on registration, the company will have an ultimate holding company - the following:

(i) the name of the ultimate holding company;

(ii) if the ultimate holding company is registered in Australia - its ABN, ACN or ARBN;

(iii) if the ultimate holding company is not registered in Australia - the place at which it was incorporated or formed;

(lc)    

for a body proposed to be registered as a company limited by shares or an unlimited company - the top 20 members of each class (worked out according to the number and class of shares each member holds and has agreed, in writing, to take up);

Note: See also section 107 .

(m)    for a body proposed to be registered as a public company, if shares have been issued for non-cash consideration - the prescribed particulars about the issue of the shares, unless the shares were issued under a written contract and a copy of the contract is lodged with the application;

(n)    for a body proposed to be registered as a company limited by guarantee - the amount of the guarantee that each member has agreed to in writing;

(o)    the State or Territory in this jurisdiction in which the company is to be taken to be registered.

Note 1: Paragraph (h) - the address that must be stated is usually the residential address, although an alternative address can sometimes be stated instead (see section 205D ).

Note 2: Paragraph (i) - if the body when it is registered under this Part is not to be the occupier of premises at the address of its registered office, the application must state that the occupier has consented to the address being specified in the application and has not withdrawn that consent (see section 100 ).

601BC(3)    
If the body is proposed to be registered as a public company, the application must be accompanied by a copy of each document (including an agreement or consent) or resolution that is necessary to ascertain the rights attached to issued or unissued shares of the body.

601BC(4)    
The application must be in the prescribed form.

601BC(5)    
An applicant must have the consents and agreements referred to in subsection (2) when the application is lodged. After the body is registered as a company, the applicant must give the consents and agreements to the company. The company must keep the consents and agreements.

601BC(5A)    

An offence based on subsection (5) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

601BC(6)    
The following documents must be lodged with the application:

(a)    a certified copy of a current certificate of the body ' s incorporation in its place of origin, or of a document that has a similar effect;

(b)    a certified printed copy of the body ' s constitution (if any);

(c) (Repealed)

(d)    any other documents that are prescribed;

(e)    any other documents that ASIC requires by written notice given to the body.

A document need not be lodged if ASIC already has the document and agrees not to require its lodgment.

601BC(7)    
The application must be accompanied by evidence that:

(a)    the body is not a Chapter 5 body corporate; and

(b)    no application to wind up the body has been made to a court (in Australia or elsewhere) that has not been dealt with; and

(c)    no application to approve a compromise or arrangement between the body and another person has been made to a court (in Australia or elsewhere) that has not been dealt with.

601BC(8)    
The application must be accompanied by evidence that under the law of the body ' s place of origin:

(a)    the body ' s type is the same or substantially the same as the proposed type specified in the application; and

(b)    if the members of the body have limited liability - the body ' s constitution defines how and to what extent that liability is limited; and

(d)    the transfer of the body ' s incorporation is authorised; and

(e)    the body has complied with the requirements (if any) of that law for the transfer of its incorporation; and

(f)    if those requirements do not include consent to the transfer by the members of the body - the members:

(i) have consented to the transfer by a resolution that has been passed at a meeting by at least 75% of the votes cast by members entitled to vote on the resolution; and

(ii) were given at least 21 days notice of the meeting and the proposed resolution.

601BC(9)    
The evidence lodged in accordance with subsections (7) and (8) must be satisfactory proof to ASIC of the matters referred to in those subsections.

Note: Section 1304 requires documents that are not in English to be translated into English.

SECTION 601BD   ASIC GIVES BODY ACN, REGISTERS AS COMPANY AND ISSUES CERTIFICATE  

Registration

601BD(1)    
If an application is lodged under section 601BC , ASIC may:

(a)    give the body an ACN; and

(b)    register the body as a company of the proposed type specified in the application; and

(c)    issue a certificate that states:

(i) the company ' s name; and

(ii) the company ' s ACN; and

(iii) the company ' s type; and

(iv) that the company is registered as a company under this Act; and

(v) the State or Territory in which the company is taken to be registered; and

(vi) the date of registration.

Note: For the evidentiary value of a certificate of registration, see subsection 1274(7A) .

ASIC must keep record of registration.

601BD(2)    
ASIC must keep a record of the registration. Subsections 1274(2) and (5) apply to the record as if it were a document lodged with ASIC.

SECTION 601BE  

601BE   REGISTERED OFFICE  
The address specified in the application as the body's proposed registered office becomes the address of its registered office as a company on registration.

SECTION 601BF  

601BF   NAME  
A company registered under this Part has a name on registration that is:

(a) an available name; or

(b) the expression ``Australian Company Number'' followed by the company's ACN.

The name must also include the words required by subsection 148(2) or 148(3).

SECTION 601BG   CONSTITUTION  

601BG(1)   [ Constitution on registration]  

The constitution on registration (if any) of a company registered under this Part is the constitution lodged with the application.

601BG(2)   [ English text or translation]  

If any text in a constitution lodged with the application is not in English, the English translation of that text lodged with the application for registration is taken to be the relevant text in the constitution on registration.

SECTION 601BH   MODIFICATIONS OF CONSTITUTION  

601BH(1)   [ Time limit]  

A company registered under this Part must modify its constitution within 3 months after registration to give effect to this Part.

601BH(2)   [ Foreign currency]  

If the constitution specifies amounts of money expressed in foreign currency, the company must:

(a) fix a single rate of conversion by resolution; and

(b) modify its constitution by special resolution to convert those amounts into Australian currency using that rate.

The modification must be made within 3 months after registration.

601BH(2A)   [ Strict liability offence]  

An offence based on subsection (1) or (2) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

601BH(3)   [ Effect of amendment]  

An amendment of a company's constitution under this section does not affect the number and class of shares held by each member.

SECTION 601BJ   ASIC MAY DIRECT COMPANY TO APPLY FOR COURT APPROVAL FOR MODIFICATIONS OF CONSTITUTION  

601BJ(1)    
ASIC may give the company a written direction to apply to the Court within a specified period for an order approving the modified constitution.

601BJ(2)    
The Court may make an order:

(a)    declaring that the company has complied with section 601BH ; or

(b)    declaring that the company will comply with section 601BH if it makes further modifications of its constitution as specified in the order.

601BJ(3)    
The company must lodge a copy of the order with ASIC within 14 days after the order is made.

601BJ(4)    

An offence based on subsection (3) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

SECTION 601BK   ESTABLISHING REGISTERS AND MINUTE BOOKS  

601BK(1)    
A company registered under this Part must, within 14 days after registration:

(a) set up the register required by section 168 ; and

(b) include in the register the information that is required to be included in the register and that is available to the company on registration; and

(c) set up the minute books required by section 251A .

601BK(1A)    

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

601BK(2)    
During the 14 days the company need not comply with a person ' s request to inspect or obtain a copy of:

(a) information in a register; or

(b) a minute of a general meeting.

However, the period within which the company must comply with the request begins at the end of the 14 days.

SECTION 601BL   REGISTRATION OF REGISTERED BODIES  

601BL(1)    
If a registered body becomes registered as a company under this Part, it ceases to be a registered body. ASIC must remove the body ' s name from the appropriate register kept for the purposes of Division 1 or 2 of Part 5B.2

601BL(2)    
ASIC may keep any of the documents relating to the company that were lodged because the company used to be a registered body.

Division 2 - Operation of this Act  

SECTION 601BM   EFFECT OF REGISTRATION UNDER THIS PART  

601BM(1)    
Registration under this Part does not:

(a) create a new legal entity; or

(b) affect the body ' s existing property, rights or obligations (except as against the members of the body in their capacity as members); or

(c) render defective any legal proceedings by or against the body or its members.

601BM(2)    

This Part sets out special provisions for companies registered under this Part.

SECTION 601BN  

601BN   LIABILITY OF MEMBERS ON WINDING UP  
A person who stopped being a member of the body before it was registered as a company under this Part is to be treated as a past member of the company in applying Division 2 of Part 5.6 to a winding up of the company. However, the person's liability to contribute to the company's property is further limited by this section to an amount sufficient for the following:

(a) payment of debts and liabilities contracted by the company before the day on which the company was registered under this Part;

(b) payment of the costs, charges and expenses of winding up the company, so far as those costs, charges and expenses relate to those debts and liabilities;

(c) the adjustment of the rights between the contributories, so far as the adjustment relates to those debts and liabilities.

SECTION 601BP   BEARER SHARES  

601BP(1)   [ Surrendering of share]  

A bearer of a bearer share in a company registered under this Part may surrender the share to the company. The company must:

(a) cancel the share; and

(b) include the bearer's name in the company's register of members.

601BP(1A)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

601BP(2)   [ Compensation]  

The company is liable to compensate anyone who suffers a loss because the company includes the bearer's name in the company's register of members despite the fact that:

(a) the share was not surrendered to the company; or

(b) the company failed to cancel the share.

601BP(3)   [ Constitution]  

Subject to this section, the constitution of a company registered under this Part may provide that the bearer of a bearer share in the company is taken to be a member of the company for all purposes or for specified purposes.

Note: A body must not issue bearer shares after it is registered as a company under this Part (see paragraph 254F(a)).

SECTION 601BQ   REFERENCES IN PRE-REGISTRATION CONTRACTS AND OTHER DOCUMENTS TO PAR VALUE IN EXISTING CONTRACTS AND DOCUMENTS  

601BQ(1)   [ Company registered]  

This section applies in relation to a company registered under this Part for the purpose of interpreting and applying after registration:

(a) a contract entered into before the registration; or

(b) a trust deed or other document executed before the registration.

601BQ(2)   [ Par value]  

A reference to the par value of a share is taken to be a reference to the par value of the share immediately before the registration, or the par value that the share would have had if it had been issued then.

601BQ(3)   [ Right to a return of capital]  

A reference to a right to a return of capital on a share is taken to be a reference to a right to a return of capital of a value equal to the amount paid before the registration in respect of the share's par value, or the par value that the share would have had if it had been issued then.

601BQ(4)   [ Aggregate par value]  

A reference to the aggregate par value of the company's issued share capital is taken to be a reference to that aggregate as it existed immediately before the registration.

SECTION 601BR   FIRST AGM  

601BR(1)   [ Time limit]  

Despite subsection 250N(1), a public company registered under this Part must hold its first AGM after registration in the calendar year of its registration.

601BR(2)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

SECTION 601BS  

601BS   MODIFICATION BY REGULATIONS  
The regulations may modify the operation of this Part in relation to a company registered under this Part.