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Companies Act 1981

Authoritative Version
Act No. 89 of 1981 as made
An Act to make provision for the government of the Australian Capital Territory in relation to the formation of companies, the regulation of companies formed in that Territory, the registration in that Territory of certain other bodies and certain other matters
Date of Assent 18 Jun 1981
Date of repeal 15 Jul 2001
Repealed by Corporations (Repeals, Consequentials and Transitionals) Act 2001

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Companies Act 1981

No. 89 of 1981

TABLE OF PROVISIONS

PART I—PRELIMINARY

Section

1.       Short title

2.       Commencement

3.       Objects and application

4.       Repeal

5.       Interpretation

6.       References to affairs of a corporation

7.       Subsidiaries, holding companies and related corporations

8.       Relevant interests in shares

9.       Associated persons

PART II—ADMINISTRATION

Division 1Powers of Inspection

10.     Interpretation

11.     Commission may inspect books without charge

12.     Power of Commission to require production of books

13.     Power of magistrate to issue warrant to seize books

14.     Offences

15.     Copies or extracts of books to be admitted in evidence

16.     Privilege

Division 2Registration of auditors and liquidators

17.     Application for registration as auditor or liquidator

18.     Registration of auditors

19.     Auditor-General deemed to be registered as auditor

20.     Registration of liquidators

21.     Registration of official liquidators

22.     Security to be given by liquidators


 

TABLE OF PROVISIONS—continued

23.     Register of Auditors

24.     Registers of Liquidators and Official Liquidators

25.     Notification of certain matters

26.     Triennial statements by registered auditors and liquidators

27.     Cancellation or suspension of registration

28.     Certain persons not to apply for registration as auditor or liquidator

29.     Certain persons deemed to be registered under this Act

30.     Auditors and other persons to enjoy qualified privilege in certain circumstances

Division 3—Registers and Registration of Documents

31.     Registers

32.     Relodging of lost registered documents

PART III—CONSTITUTION OF COMPANIES

Division 1—Incorporation

33.     Formation of companies

34.     Proprietary companies

35.     Registration and incorporation

36.     Membership of holding company

37.     Requirements as to memorandum

Division 2—Names

38.     Interpretation

39.     Names of particular classes of companies

40.     Reservation and registration of name of intended company

41.     Reservation of name of intended recognized company

42.     Registration of name of recognized company

43.     Reservation and registration of proposed new name of company

44.     Reservation of proposed new name of recognized company

45.     Registration of new name of recognized company

46.     Reservation and registration of name of intended foreign company or foreign company

47.     Reservation of name of intended recognized foreign company or recognized foreign company

48.     Registration of name of recognized foreign company

49.     Reservation and registration of proposed new name of registered foreign company

50.     Reservation of proposed new name of recognized foreign company

51.     Registration of new name of recognized foreign company

52.     Reservation and registration of name of recognized company proposing to transfer incorporation to the Territory

53.     Reservation of name of company or recognized company, proposing to transfer incorporation to participating State or Territory

54.     Registration of name of recognized company after transfer of incorporation to participating State or Territory

55.     Reservation and registration of name of foreign company proposing to transfer incorporation to the Territory

56.     Reservation of name of foreign company proposing to transfer incorporation to participating State or Territory

57.     Registration of name of foreign company that has become a recognized company after transfer of incorporation to participating State or Territory

58.     Extension of reservation

59.     Notification that registration of name desired in a State or another Territory

60.     Registration of name of recognized company or recognized foreign company in the Territory

61.     Notification that registration of name no longer desired in a participating State or Territory

62.     Cancellation of registration where registration in the Territory no longer desired

63.     Cancellation of registration where company or foreign company dissolved or foreign company ceases to be registered

64.     Cancellation of registration where name registered by mistake


 

TABLE OF PROVISIONS—continued

65.     Change of name

66.     Omission of “Limited” in names of charitable and other companies

Division 3—Powers and Status

67.     Powers

68.     Ultra vires transactions

69.     Change of status

70.     Change from public to proprietary company or from proprietary to public company

71.     Default in complying with requirements as to proprietary companies

72.     General provisions as to alteration of memorandum

73.     Alterations of provisions of memorandum

74.     Articles of association

75.     Adoption of Table A or B

76.     Alteration of articles

77.     Memorandum and articles of companies limited by guarantee

78.     Effect of memorandum and articles

79.     Copies of memorandum and articles

80.     Confirmation of contracts and authentication and execution of documents

81.     Ratification of contracts made before formation of company

82.     Prohibition of carrying on business with fewer than statutory minimum number of members

Division 4—Transfer of Incorporation

83.     Certificate authorizing application for transfer of incorporation

84.     Application by recognized company for registration under Division

85.     Application by foreign company for registration under Division

86.     Registration of corporations as companies

87.     Effect of registration

88.     Alterations to constituent documents of foreign companies

89.     Effect of registration of company under corresponding law

90.     Application of this Act to corporations registered under this Division

91.     Establishment of registers and minute books

92.     Share warrants

93.     Certificate of registration conclusive evidence

PART IV—PROSPECTUSES, SECURITIES AND CHARGES

Division 1—Prospectuses

94.     Interpretation

95.     Prohibition of issue of certain documents in relation to proposed corporations

96.     Forms of application for shares or debentures to be attached to prospectus

97.     Invitations or offers in relation to borrowings by corporations

98.     Contents of prospectuses

99.     Certain notices, &c., not to be published

100.   Certain reports referring to prospectuses not to be published

101.   Evidentiary provisions, &c.

102.   Retention of over-subscriptions in debenture issues

103.   Registration of prospectuses

104.   Document containing offer of shares for sale deemed to be prospectus

105.   Allotment or issue of shares or debentures where prospectus indicates application for quotation on stock market

106.   Expert’s consent to issue of prospectus containing statement by him

107.   Civil liability for untrue statement or non-disclosure in prospectus

108.   Criminal liability for untrue statement or non-disclosure in prospectus


 

TABLE OF PROVISIONS—continued

109.   Power to exempt from compliance with Division or to declare that Division applies as if modified

Division 2Restrictions on Allotment and Variation of Contracts

110.   Prohibition of allotment unless minimum subscription received

111.   Application moneys to be held in trust until allotment

112.   Restriction on varying contracts referred to in prospectus

Division 3Shares

113.   Return as to allotments

114.   Differences in calls and payments, reserve liability, &c.

115.   Share warrants

116.   Restriction on application of capital of company

117.   Power to make certain payments

118.   Power to issue shares at a discount

119.   Issue of shares at a premium

120.   Redeemable preference shares

121.   Power of company to alter its share capital

122.   Validation of shares improperly issued

123.   Special resolution for reduction of share capital

124.   Commission to be informed of special rights carried by, or division or conversion of, shares

125.   Rights of holders of classes of shares

126.   Rights of holders of shares

127.   Rights of classes of members

128.   Rights of holders of preference shares to be set out in memorandum or articles

129.   Company financing dealings in its shares, &c.

130.   Consequences of company financing dealings in its shares, &c.

131.   Register of options

132.   Options over unissued shares

133.   Power of company to pay interest out of capital in certain cases

Division 4Substantial Shareholdings

134.   Application and interpretation

135.   Persons obliged to comply with Division

136.   Substantial shareholdings and substantial shareholders

137.   Substantial shareholder to notify company of his interests

138.   Substantial shareholder to notify company of change in his interests

139.   Person who ceases to be substantial shareholder to notify company

140.   References to operation of section 8

141.   Copy of notice to be served on stock exchange

142.   Commission may extend period for giving notice under this Division

143.   Company to keep register of substantial shareholders

144.   Offences against certain sections

145.   Knowledge of servant or agent imputed to master or principal

146.   Powers of Court with respect to defaulting substantial shareholder

Division 5Debentures

147.   Register of debenture holders and copies of trust deed

148.   Branch registers

149.   Specific performance of contracts

150.   Perpetual debentures

151.   Re-issue of redeemed debentures

152.   Qualifications of trustee for debenture holders

153.   Retirement of trustees

154.   Contents of trust deed

155.   Power of Court in relation to certain irredeemable debentures

156.   Duties of trustees

157.   Powers of trustee to apply to the Court for directions, &c.


 

TABLE OF PROVISIONS—continued

158.   Obligations of borrowing corporation

159.   Obligation of guarantor corporation to furnish information

160.   Loans and deposits to be immediately repayable on certain events

161.   Invitations or offers by prescribed corporations

162.   Compliance with laws of State or other Territory sufficient compliance for certain companies

163.   Liability of trustees for debenture holders

Division 6—Prescribed Interests

164.   Interpretation

165.   Approved deeds

166.   Approval of deeds

167.   Approval of trustees

168.   Covenants to be included in deeds

169.   Prescribed interests to be issued by companies only

170.   Statement to be issued

171.   No issue without approved deed

172.   Register of holders of prescribed interests

173.   Returns, information, &c., relating to prescribed interests

174.   Penalty for breach of certain provisions or covenants

175.   Winding up of schemes, &c.

176.   Power to exempt from compliance with Division and non-application of Division in certain             circumstances

177.   Liability of trustees

Division 7—Title to and Transfer of Securities

178.   Nature of shares

179.   Numbering of shares

180.   Certificate to be evidence of title

181.   Company may have duplicate common seal

182.   Loss or destruction of certificates

183.   Instrument of transfer

184.   Registration of transfer at request of transferor

185.   Notice of refusal to register transfer

186.   Remedy for refusal to register transfer or transmission

187.   Certification of transfers

188.   Duties of company with respect to issue of certificates

Division 8—Transfer of Marketable Securities

189.   Interpretation

190.   Sufficient instrument of transfer

191.   Transfer of marketable securities

192.   Transfers by authorized trustee corporations

193.   Execution of transfer by transferee

194.   Effect of certain stamps on prescribed instruments

195.   Registration of prescribed instruments

196.   Operation of Division

197.   Occupation need not appear in register, instrument, &c.

198.   Offences

Division 9—Registration of Charges

199.   Interpretation and application of Division

200.   Charges required to be registered

201.   Lodgment of notice of charge and copy of instrument

202.   Acquisition of property subject to charge

203.   Registration of documents relating to charges

204.   Priorities of charges

205.   Certain charges void against liquidator or official manager


 

TABLE OF PROVISIONS—continued

206.   Assignment and variation of charges

207.   Satisfaction of, and release of property from, charges

208.   Lodgment of notices, offences, &c.

209.   Company to keep documents relating to charges and register of charges

210.   Certificates

211.   Registration under Instruments Ordinance 1933

212.   Power of Court to rectify Register, &c.

213.   Charges on property of recognized companies or recognized foreign companies

214.   Provisions applying when incorporation transferred

215.   Power to exempt from compliance with certain requirements of Division

PART V—MANAGEMENT AND ADMINISTRATION

Division 1Office and Name

216.   Registered office of company

217.   Notice of address of registered office and office hours

218.   Publication of name

Division 2Directors and Other Officers

219.   Directors

220.   Restrictions on appointment or advertisement of director

221.   Qualification of director

222.   Vacation of office

223.   Appointment of directors to be voted on individually

224.   Validity of acts of directors and secretaries

225.   Removal of directors

226.   Age of directors

227.   Certain persons not to manage corporations

228.   Disclosure of interests in contracts, property, offices, &c.

229.   Duty and liability of officers

230.   Loans to directors

231.   Register of directors’ shareholdings, &c.

232.   General duty to make disclosure

233.   Payments for loss of, or retirement from, office

234.   Provisions as to assignment of office

235.   Powers to require disclosure of directors’ emoluments

236.   Secretary

237.   Provisions indemnifying officers or auditors

238.   Register of directors, principal executive officers and secretaries

Division 3Meetings and Proceedings

239.   Statutory meeting and statutory report

240.   Annual general meeting

241.   Convening of general meeting on requisition

242.   Convening of meetings

243.   Articles as to right to demand a poll

244.   Quorum, chairman, voting, &c., at meetings

245.   Proxies

246.   Power of Court to order meeting

247.   Circulation of members’ resolutions, &c.

248.   Special resolutions

249.   Resolution requiring special notice

250.   Resolutions of exempt proprietary companies

251.   Lodgment with the Commission, &c., of copies of certain resolutions and agreements

252.   Resolutions at adjourned meetings

253.   Minutes of proceedings

254.   Inspection of minute books


 

TABLE OF PROVISIONS—continued

Division 4Register of Members

255.   Non-application of the Division to mutual life assurance companies

256.   Register and index of members

257.   Inspection and closing of register

258.   Consequences of default by agent

259.   Power of Court to rectify register

260.   Trustee, & c, may be registered as owner of shares

261.   Power of company to obtain information as to beneficial ownership of its shares

262.   Branch registers

Division 5Annual Return

263.   Annual return

264.   Auditor’s statement

265.   Exemption of certain companies

PART VI—ACCOUNTS AND AUDIT

Division 1Preliminary

266.   Interpretation

Division 2Accounts

267.   Accounts to be kept

268.   Financial years of grouped companies

269.   Profit and loss account, balance sheet and group accounts

270.   Directors’ reports

271.   Rounding off of amounts in accounts and reports

272.   Group accounts not to be issued, & c, until receipt of subsidiaries’ accounts, &c.

273.   Relief from requirements as to accounts and reports

274.   Members of company entitled to balance-sheet, &c.

275.   Accounts and reports to be laid before annual general meeting

276.   Failure to comply with this Division

Division 3Audit

277.   Qualifications of auditors

278.   Unlimited exempt proprietary company need not appoint auditor in certain circumstances

279.   Exempt proprietary company need not appoint auditor in certain circumstances

280.   Appointment of auditors

281.   Nomination of auditors

282.   Removal and resignation of auditors

283.   Effect of winding up on office of auditor

284.   Fees and expenses of auditors

285.   Powers and duties of auditors as to reports on accounts

286.   Obstruction of auditor

287.   Special provisions relating to borrowing and guarantor corporations

Division 4Special Provisions relating to Banking and Life Insurance Corporations

288.   Banking and life insurance corporations

PART VII—SPECIAL INVESTIGATIONS

289.   Interpretation and application

290 Application for carrying out of investigation

291.   Investigations

292.   Conduct of investigations

293.   Investigation of affairs of related corporation


 

TABLE OF PROVISIONS—continued

294.   Powers of Commission and inspectors appointed under corresponding law

295.   Powers of inspectors

296.   Examination of officers

297.   Officer failing to comply with requirements of this Part

298.   Record of examination

299.   Admissibility of record of examination in evidence in proceedings against person examined

300.   Admissibility in other proceedings of questions and answers at an examination

301.   Weight of evidence

302.   Credibility of person who answered questions

303.   Determination of objection to admissibility of question and answer

304.   Delegation by inspector

305.   Reports of investigations

306.   Provisions relating to reports

307.   Commission’s powers in respect of books

308.   Privileged communications

309.   Expenses of investigation

310.   Concealing, &c., of books of corporation

311.   Power of Commission to make certain orders

312.   Application for winding up

313.   Certain powers not to be delegated

PART VIII—ARRANGEMENTS AND RECONSTRUCTIONS

314.   Crown to be bound

315.   Power to compromise with creditors and members

316.   Information as to compromise with creditors or members

317.   Provisions for facilitating reconstruction and amalgamation of corporations

318.   Acquisition of shares of shareholders dissenting from scheme or contract approved by majority

319.   Notification of appointment of scheme manager and power of Court to require report

PART IX—CONDUCT OF AFFAIRS OF COMPANY IN OPPRESSIVE OR UNJUST MANNER

320.   Remedy in cases of oppression or injustice

PART X—RECEIVERS AND MANAGERS

321.   Interpretation

322.   Crown to be bound

323.   Disqualification for appointment as receiver

324.   Liability of receiver

325.   Power of Court to fix remuneration of receivers

326.   Notification of appointment of receiver

327.   Statement that receiver appointed

328.   Provisions as to information where receiver appointed

329.   Special provisions as to statement submitted to receiver

330.   Lodging of accounts of receivers

331.   Payments of certain debts out of property subject to floating charge in priority to claims under charge

332.   Enforcement of duty of receiver to make returns

PART XI—OFFICIAL MANAGEMENT

333.   Interpretation

334.   Crown to be bound

335.   Power of company to call meeting of creditors to appoint official manager

336.   Statement of affairs of company to be submitted to meeting of creditors of company

337.   Power to adjourn meeting

338.   Power of creditors to place company under official management

339.   Appointment of committee of management

340.   Notice of appointment and address of official manager


 

TABLE OF PROVISIONS—continued

341.   Effect of resolution

342.   Six-monthly meetings of creditors and members

343.   Stay of proceedings

344.   Power to extend period of official management

345.   Extension of period of official management

346.   Appointment of official manager not to affect appointment and duties of auditor

347.   Duties of official manager

348.   Undue preferences in the case of official management

349.   Application and disposal of property during official management

350.   Official manager may apply to Court for directions

351.   Certain provisions applicable to official management

352.   Power of Court to terminate official management and give directions

353.   Resolution to place company under official management effective, subject to appeal

354.   Lodgment of office copy of Court order

355.   Termination of appointment and release of official manager

356.   Notification that corporation is under official management

357.   Functions of committee of management and appointment of deputy official manager

PART XII—WINDING UP

Division 1—Preliminary

358.   Crown to be bound

359.   Modes of winding up

360.   Liability as contributories of present and past members

361.   Nature of liability of contributory

362.   Contributories in case of death or bankruptcy of member

Division 2—Winding up by the Court

Subdivision A—General

363.   Application for winding up

364.   Circumstances in which company may be wound up by Court

365.   Commencement of winding up by the Court

366.   As to payment of preliminary costs, &c.

367.   Powers of Court on hearing application

368.   Avoidance of dispositions of property, attachments, &c.

369.   Application to be lis pendens

370.   Certain notices to be lodged with Commission

371.   Effect of winding up order

Subdivision B—Liquidators

372.   Power of Court to appoint official liquidator

373.   General provisions as to liquidators

374.   Custody and vesting of company’s property

375.   Statement of company’s affairs to be submitted to liquidator

376.   Preliminary report by liquidator

377.   Powers of liquidator

378.   Settlement of list of contributories and application of property

379.   Exercise and control of liquidator’s powers

380.   Payment by liquidator into bank

381.   Release of liquidators and dissolution of company

382.   As to orders for release or dissolution

Subdivision C—General Powers of Court

383.   Power to stay or terminate winding up

384.   Delivery of property to liquidators

385.   Appointment of special manager

386.   Claims of creditors and distribution of property


 

TABLE OF PROVISIONS—continued

387.   Inspection of books by creditors and contributories

388.   Power to arrest absconding contributory

389.   Delegation to liquidator of certain powers of Court

390.   Powers of Court cumulative

Division 3Voluntary Winding Up

Subdivision A—Introductory

391.   Limitation on right to wind up voluntarily

392.   Circumstances in which company may be wound up voluntarily

393.   Commencement of winding up

394.   Effect of voluntary winding up

395.   Declaration of solvency

Subdivision BProvisions applicable only to Members’ Voluntary Winding Up

396.   Liquidators

397.   Duty of liquidator to call creditors’ meeting in case of insolvency

Subdivision C—Provisions applicable only to Creditors’ Voluntary Winding Up

398.   Meeting of creditors

399.   Power to adjourn meeting

400.   Liquidators

401.   Execution and civil proceedings

402.   Execution and civil proceedings against recognized companies

Subdivision D—Provisions applicable to every Voluntary Winding Up

403.   Distribution of property of company

404.   Appointment of liquidator

405.   Removal of liquidator

406.   Review of liquidator’s remuneration

407.   Acts of liquidator valid, &c.

408.   Powers and duties of liquidator

409.   Power of liquidator to accept shares, & c, as consideration for sale of property of company

410.   Annual meeting of creditors

411.   Final meeting and dissolution

412.   Arrangement, when binding on creditors

413.   Application to Court to have questions determined or powers exercised

414.   Costs

Division 4Provisions applicable to every Mode of Winding Up

Subdivision A—General

415.   Interpretation

416.   Books to be kept by liquidator

417.   Disqualification of liquidators

418.   Reports by liquidator

419.   Liquidators to enjoy qualified privilege in certain circumstances

420.   Supervision of liquidators

421.   Notice of appointment and address of liquidator

422.   Liquidator’s accounts

423.   Liquidator to make good defaults

424.   Notification that a corporation is in liquidation

425.   Books of company

426.   Investment of surplus funds on general account

427.   Unclaimed property to be paid to Minister

428.   Companies Liquidation Account


 

TABLE OF PROVISIONS—continued

429.   Expenses of winding up where property insufficient

430.   Resolutions passed at adjourned meetings of creditors and contributories

431.   Meetings to ascertain wishes of creditors or contributories

Subdivision B—Committees of Inspection

432.   Convening of meetings by liquidator for appointment of committee of inspection

433.   Proceedings of committee of inspection

434.   Vacancies on committee of inspection

435.   Member of committee not to accept extra benefit

436.   Powers of Court where no committee of inspection

Subdivision C—Proof and Ranking of Claims

437.   Interpretation

438.   Proofs of debts

439.   Computation of debts

440.   Debts proved to rank equally except as otherwise provided

441.   Priority payments

442.   Orders under section 309 or under section 33 of Securities Industry Act

443.   Debts due to employees

444.   Debts of a class to rank equally

445.   Advances in respect of wages and leave of absence

446.   Priority of employees’ claims over floating charges

447.   Insurance against liabilities to third parties

448.   Provisions relating to injury compensation

449.   Priority where security given for payment of taxes

450.   Power of Court to make orders in favour of certain creditors

Subdivision D—Effect on other Transactions

451.   Undue preferences

452.   Effect of floating charge

453.   Liquidator’s right to recover in respect of certain transactions

454.   Disclaimer of onerous property

455.   Executions, attachments, & c, before winding up

456.   Duties of sheriff after receiving notice of application

Subdivision E—Offences

457.   Prosecution of delinquent officers and members

Subdivision F—Dissolution

458.   Power of Court to declare dissolution of company void

459.   Power of Commission to deregister defunct company

460.   Commission to act as representative of defunct company in certain events

461.   Oustanding property of defunct company to vest in Commission

462.   Outstanding interests in property, how disposed of

463.   Liability of Commission and Commonwealth as to property vested in Commission

464.   Accounts

Division 5Reciprocity with Participating States and Participating Territories

465.   Recognition and enforcement in the Territory of order made in a participating State or participating Territory in relation to a recognized company or recognized foreign company

466.   Exercise by the Court of powers or functions in relation to a recognized company or recognized foreign company

467.   Power of Registrar to request Supreme Court of a participating State or participating Territory to exercise or perform powers or functions

468.   Powers and functions in the Territory of liquidators of recognized companies or recognized foreign companies


 

TABLE OF PROVISIONS—continued

Division 6Winding Up of Bodies other than Companies

469.   Application

470.   Winding up of bodies to which this Division applies

471.   Contributories in winding up of a body to which this Division applies

472.   Power of Court to stay or restrain proceedings

Division 7Miscellaneous

473.   Outstanding property of defunct body formed within Australia

474.   Outstanding property of defunct body formed outside Australia

PART XIII—VARIOUS TYPES OF COMPANIES

Division 1No Liability Companies

475.   Application of Act to no liability companies 476 Shareholder not liable to calls or contributions

477.   Dividends payable on shares held irrespective of amount paid up on shares

478.   Calls, when due

479.   Forfeiture of shares

480.   Provisions as to sale of forfeited shares

481.   As to shares held by or in trust for company

482.   Sale of shares on non-payment of calls valid although specific numbers not advertised

483.   Postponement of sale

484.   Redemption of forfeited shares

485.   Office to be open the day before sale

486.   Distribution of surplus where cessation of business upon winding up

487.   Distribution of surplus where cessation of business within 12 months

488.   As to rights attaching to preference shares issued to promoters

489.   Restrictions on tribute arrangements

Division 2Investment Companies

490.   Interpretation

491.   Restriction on borrowing by investment companies

492.   Restriction on investments of investment companies

493.   Restriction on underwriting by investment companies

494.   Special requirements as to articles and prospectus

495.   Investment company not to hold shares in other investment companies

496.   Investment company not to speculate in commodities

497.   Balance-sheets and accounts

498.   Investment fluctuation reserve

499.   Penalties

Division 3Companies Carrying on Business Outside the Territory

500.   Interpretation

501.   Notification of principal office in participating State or Territory

502.   Notice to be given of change or alteration in principal office in participating State or Territory

503.   Notice to be lodged of cessation of business in participating State or Territory

504.   Offences

Division 4Recognized Companies and Recognized Foreign Companies

505.   Interpretation

506.   Power to hold land

507.   Recognized company or recognized foreign company to have a principal office

508.   Name of recognized company or recognized foreign company to be reserved or registered

509.   Publication of name, &c., of recognized company or recognized foreign company


 

TABLE OF PROVISIONS—continued

Division 5Foreign Companies other than Recognized Foreign Companies

510.   Interpretation

511.   Power of foreign companies to hold land

512.   Unregistered foreign company not to establish place of business or carry on business in the Territory

513.   Registered office of registered foreign company

514.   Agents

515.   Notice to be filed where documents, &c., altered

516.   Balance-sheets and other documents

517.   Publication of name, &c., of foreign company

518.   Cessation of business, &c.

519.   Name of foreign company to be struck off register

520.   Restriction on use of certain names

521.   Branch register of shares in foreign company

522.   Registration of shares in branch register

523.   Removal of shares from branch register

524.   Index of members and inspection and closing of branch registers

525.   Branch register to be prima facie evidence

526.   Certificate as to shareholding

527.   Penalties

PART XIV—MISCELLANEOUS

Division 1General

528.   Service of documents on company

529.   Service of documents on recognized company or recognized foreign company

530.   Service of documents on registered foreign company

531.   Vesting of property

532.   Parts of dollar to be disregarded in determining majority in value of creditors, &c.

533.   Costs

534.   Disposal of securities if whereabouts of holder unknown

535.   Power to grant relief

536.   Power of Court to give directions with respect to meetings ordered by the Court

537.   Appeals from decisions of Commission

538.   Appeals from decisions of receivers, liquidators, &c.

539.   Irregularities

540.   Power of Commission to intervene in proceedings

541.   Examination of persons concerned with corporations

542.   Orders against persons concerned with corporations

543.   Civil proceedings not to be stayed

544.   Form and evidentiary value of books

545.   Inspection of books

546.   Location of books kept on computers, &c.

547.   Location of registers

548.   Translations of instruments

549.   Certificate of incorporation conclusive evidence

550.   Admissibility of books in evidence

551.   Court may compel compliance

Division 2Offences

552.   Restriction on offering shares, debentures, &c., for subscription or purchase

553.   Interpretation

554.   Offences by officers of certain companies

555.   Liability where proper accounts not kept

556.   Offences relating to incurring of debts or fraudulent conduct

557.   Powers of Court

558.   Certain rights not affected

559.   Inducement to be appointed liquidator or official manager

560.   Falsification of books


 

TABLE OF PROVISIONS—continued

561.   Frauds by officers

562.   Court may disqualify person from acting as director, &c., in certain circumstances

563.   False or misleading statements

564.   False reports

565.   Dividends payable from profits only

566.   Restriction on use of words “Limited” and “No Liability”

567.   Restriction on use of word “Proprietary”

568.   Reciprocity in relation to offences

569.   Offences committed partly in and partly out of the Territory

570.   General penalty provisions

571.   Continuing offences

572.   Officers and other persons in default

573.   Power of Court to prohibit payment or transfer of moneys, securities or other property

574.   Injunctions

575.   Power of Court to punish for contempt of Court

Division 3Rules and Regulations

576.   Rules

577.   Regulations

Division 4Miscellaneous

578.   Non-application of rule against perpetuities to certain schemes

579.   Act not to apply to trade unions

580.   Operation of Life Insurance Act

581.   Operation of Workmen’s Compensation Supplementation Fund Ordinance

SCHEDULE 1

Repealed Ordinances

SCHEDULE 2

Powers

SCHEDULE 3

TABLE A

Regulations for Management of a Company Limited by Shares

TABLE B

Regulations for Management of a No Liability Company

SCHEDULE 4

Forms of Transfer of Marketable Securities

SCHEDULE 5

Order of Priority of Registrable Charges


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Companies Act 1981

No. 89 of 1981

 

 

An Act to make provision for the government of the Australian Capital Territory in relation to the formation of companies, the regulation of companies formed in that Territory, the registration in that Territory of certain other bodies and certain other matters

[Assented to 18 June 1981]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

PART I—PRELIMINARY

Short title

1. This Act may be cited as the Companies Act 1981.

Commencement

2. This Act shall come into operation on a date to be fixed by Proclamation.

Objects and application

3. (1) The objects of this Act are to make provision for the government of the Australian Capital Territory in relation to the formation of companies, the regulation of companies formed in that Territory, the registration of certain other bodies and certain other matters, and this Act has effect, and shall be construed, accordingly.


 

(2) In its application to and in relation to companies, this Act applies to and in relation to natural persons, whether resident in the Australian Capital Territory or in Australia or not and whether Australian citizens or not, and to all bodies corporate or unincorporate, whether formed or carrying on business in that Territory or in Australia or not, and extends to acts done or omitted to be done outside that Territory, whether in Australia or not.

(3) The Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 applies to this Act.

Repeal

4. The Ordinances referred to in Schedule 1 are repealed.

Interpretation

5. (1) In this Act, unless the contrary intention appears—

“accounting records” includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up;

“annual general meeting”, in relation to a company, means a meeting of the company required to be held by section 240;

“annual return” means the return required to be made by section 263 and includes any document accompanying the return;.

“authorized trustee corporation” means a body corporate that is declared by the regulations to be an authorized trustee corporation for the purposes of the provision in which the expression appears;

“articles” means articles of association;

“banker’s books” means—

(a) books of a banking corporation, including any documents used in the ordinary business of a banking corporation;

(b) cheques, orders for the payment of money, bills of exchange and promissory notes in the possession or under the control of a banking corporation; and

(c) securities or documents of title to securities in the possession or under the control of a banking corporation whether by way of pledge or otherwise;

“banking corporation” means—

(a) a bank as defined in section 5 of the Banking Act 1959;

(b) the Primary Industry Bank of Australia; or

(c) a bank constituted under a law of a State or Territory;

“books” includes any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document;

“borrowing corporation” means a corporation that is or will be under a liability to repay any money received or to be received by it in response


 

to an invitation to the public to subscribe for or purchase debentures of the corporation or an offer to the public of debentures of the corporation for subscription or purchase but does not include a banking corporation;

“branch register” means—

(a) in relation to a company—a branch register of members of the company kept pursuant to section 262; or

(b) in relation to a foreign company—a branch register of members of the company kept pursuant to section 521;

“business day” means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the Territory;

“certified” means—

(a) in relation to a copy of or extract from a document—certified by a statement in writing to be a true copy of or extract from the document; or

(b) in relation to a translation of a document—certified by a statement in writing to be a correct translation of the document into the English language;

“charge” means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether upon demand or otherwise;

“chargee” means the holder of a charge and includes a person in whose favour a charge is to be given or executed, whether upon demand or otherwise, pursuant to an agreement;

“Companies Ordinance 1962” means the Companies Ordinance 1962 of the Territory as amended and in force immediately before the commencement of this Act;

“company” means a company incorporated or deemed to be incorporated under this Act or under any corresponding previous law of the Territory;

“company having a share capital” includes an unlimited company with a share capital;

“company limited by guarantee” means a company formed on the principle of having the liability of its members limited by the memorandum to the respective amounts that the members undertake to contribute to the property of the company in the event of its being wound up;

“company limited by shares” means a company formed on the principle of having the liability of its members limited by the memorandum to the amount (if any) unpaid on the shares respectively held by them;

“contributory” means—

(a) in relation to a company other than a no liability company—

(i) a person liable as a member or past member to contribute to the property of the company in the event of its being wound up;


 

(ii)   in the case of a company having a share capital—a holder of fully paid shares in the company; and

(iii)  before the final determination of the persons who are contributories by virtue of sub-paragraphs (i) and (ii)—a person alleged to be such a contributory;

(b) in relation to a body corporate to which Division 6 of Part XII applies—

(i)    a person who is a contributory by virtue of section 471; and

(ii)   before the final determination of the persons who are contributories by virtue of sub-paragraph (i)—a person alleged to be such a contributory; and

(c) in relation to a no liability company—subject to section 476, a member of the company;

“corporation” means any body corporate, whether formed or incorporated within or outside the Territory, and includes any company, any foreign company and any recognized company but does not include—

(a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown;

(b) a corporation sole;

(c) a society registered under the Co-operative Societies Ordinance 1939; or

(d) an association, society, institution or body incorporated under the Associations Incorporation Ordinance 1953;

“creditors’ voluntary winding up” means a winding up under Division 3 of Part XII, other than a members’ voluntary winding up;

“dealing in securities” means (whether as principal or agent) acquiring, disposing of, subscribing for, underwriting or sub-underwriting securities or making or offering to make, or inducing or attempting to induce a person to make or to offer to make, an agreement—

(a) for or with respect to acquiring, disposing of, subscribing for, underwriting or sub-underwriting securities; or

(b) the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for, underwrites or sub-underwrites securities or to any of the parties to the agreement in relation to securities;

“debenture” includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a corporation in respect of money that is or may be deposited with or lent to the corporation, whether constituting a charge on property of the corporation or not, but does not include—

(a) a document that merely acknowledges the receipt of money by a corporation in a case where, in respect of the money, the corporation issues, in compliance with section 97, a document


 

prescribed by sub-section (2) of that section and complies with the other requirements of that section;

(b) a cheque, order for the payment of money or bill of exchange;

(c) a promissory note having a face value of not less than $50,000; or

(d) for the purposes of the application of this definition to a provision of this Act in respect of which the regulations provide that the word “debenture” does not include a prescribed document or a document included in a prescribed class of documents—that document or a document included in that class of documents, as the case may be;

“deed” includes an instrument having the effect of a deed; “director”, in relation to a corporation, includes—

(a) any person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy or duly authorized to act in the position; and

(b) any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act;

“emoluments” means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a corporation in connection with the management of affairs of the corporation or of any holding company or subsidiary of the corporation, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the corporation;

“executive officer”, in relation to a corporation, means any person, by whatever name called and whether or not he is a director of the corporation, who is concerned, or takes part, in the management of the corporation;

“exempt proprietary company” means a proprietary company—

(a) no share in which is, by virtue of sub-sections (5) and (6) of this section, deemed to be owned by a public company; and

(b) no member of which is a public company;

“expert”, in relation to a matter, means any person whose profession or reputation gives authority to a statement made by him in relation to that matter;

“filed” means filed under this Act or any corresponding previous law of the Territory;

“financial year” means—

(a) in relation to a company incorporated under a corresponding previous law of the Territory—

(i)    a period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of


 

section 240 as to the holding of annual general meetings of the company) resolve, commencing at the expiration of the period in respect of which the last profit and loss account laid before the company at an annual general meeting before the commencement of this Act was made out or, if no profit and loss account was made out and laid before the company at an annual general meeting before the commencement of this Act, on the date of incorporation of the company; and

(ii)   each period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of section 240 as to the holding of annual general meetings of the company) resolve, commencing at the expiration of the previous financial year of the company;

(b) in relation to a company incorporated under this Act—

(i)    a period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of section 240 as to the holding of annual general meetings of the company) resolve, commencing on the date of incorporation of the company; and

(ii)   each period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of section 240 as to the holding of annual general meetings of the company) resolve, commencing at the expiration of the previous financial year of the company; and

(c) in relation to a corporation incorporated outside the Territory—

(i)    if a profit and loss account of the corporation is required, under the law of the place where the corporation is incorporated, to be made out in respect of a particular period—that period; or

(ii)   in a case to which sub-paragraph (i) does not apply—a period in respect of which a profit and loss account of the corporation is made out;

“floating charge” includes a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge;

“foreign company” means—

(a) any body (including a society or association) incorporated outside the Territory, not being—

(i)    a recognized company;

(ii)   a corporation sole; or


 

(iii) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown; or

(b) an unincorporated society, association or other body formed outside the Territory that, under the law of its place of formation, may sue or be sued, or may hold property in the name of the secretary or other officer of the society, association or body duly appointed for that purpose and which does not have its head office or principal place of business in the Territory;

“guarantor corporation”, in relation to a borrowing corporation, means a corporation that has guaranteed or has agreed to guarantee the repayment of any money received or to be received by the borrowing corporation in response to an invitation to the public to subscribe for or purchase debentures of the borrowing corporation or an offer to the public of debentures of the borrowing corporation for subscription or purchase;

“home exchange”, in relation to a company, means the stock exchange designated to the company as its Home Exchange by the Australian Associated Stock Exchanges;

“industrial instrument” means—

(a) a contract of employment; or

(b) a law, award, determination or agreement relating to terms or conditions of employment;

“injury compensation” means compensation payable under any law relating to workers compensation;

“insolvent under administration” means a person who—

(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which he has not been discharged; or

(b) under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt,

and includes—

(c) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia where the terms of the deed have not been fully complied with; and

(d) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other Australia where a final payment has not been made under that composition;

“investment contract” means any contract, scheme or arrangement that, in substance and irrespective of the form of the contract, scheme or


 

arrangement, involves the investment of money in or under such circumstances that the investor acquires or may acquire an interest in or right in respect of property, whether in the Territory or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in or right in respect of property, whether in the Territory or elsewhere, acquired in or under like circumstances;

“issue” includes circulate, distribute and disseminate;

“leave of absence” means long service leave, extended leave, recreation leave, annual leave, sick leave or any other form of leave of absence from employment;

“limited company” means a company limited by shares or by guarantee or both by shares and by guarantee but does not include a no liability company;

“listed corporation” means a corporation that has been admitted to the official list of a stock exchange in Australia or an external Territory and has not been removed from that official list;

“lodged” means—

(a) in relation to the Commission—lodged under this Act; or

(b) in relation to the Registrar of Companies—lodged or filed with the Registrar of Companies under any corresponding previous law of the Territory;

“machine-copy”, in relation to a document, means a copy made of the document by any machine in which or process by which an image of the contents of the document is reproduced from surface contact with the document or by the use of photo-sensitive material other than transparent photographic film;

“marketable securities” means debentures, stocks, shares or bonds of any Government, of any local government authority or of any corporation, association or society, and includes any right or option in respect of shares in any corporation and any prescribed interest;

“members’ voluntary winding up” means a winding up under Division 3 of Part XII where a declaration has been made and lodged pursuant to section 395;

“memorandum” means memorandum of association;

“minerals” means minerals in any form, whether solid, liquefied or gaseous and whether organic or inorganic;

“minimum subscription”, in relation to any shares offered to the public for subscription or for which the public are invited to subscribe, means the amount stated in the prospectus relating to the offer or invitation pursuant to paragraph 98 (1) (d) as the minimum amount that, in the opinion of the directors, must be raised by the issue of the shares;

“mining company” means a company the sole objects of which are mining purposes;

“mining purposes” means all or any of the following purposes:


 

(a) prospecting for ores, metals or minerals;

(b) obtaining, by any mode or method, ores, metals or minerals;

(c) the sale or other disposal of ores, metals, minerals or other products of mining;

(d) the carrying on of any business or activity necessary for or incidental to any of the foregoing purposes,

whether in the Territory or elsewhere, but does not include quarrying operations for the sole purpose of obtaining stone for building, roadmaking or similar purposes;

“negative”, in relation to a document, means a transparent negative photograph used or intended to be used as a medium for reproducing the contents of the document, and includes a transparent photograph made from surface contact with the original negative photograph;

“no liability company” means a company that does not have under its memorandum and articles a contractual right to recover calls made upon its shares from a shareholder who defaults in payment of those calls;

“nominee corporation” means a corporation whose principal business is the business of holding marketable securities as a trustee or nominee;

“officer”, in relation to a corporation, includes—

(a) a director, secretary, executive officer or employee of the corporation;

(b) a receiver and manager of the property or any part of the property of the corporation appointed under a power contained in an instrument;

(c) an official manager or deputy official manager of the corporation;

(d) a liquidator of the corporation appointed in a voluntary winding up of the corporation; and

(e) a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons,

but does not include—

(f) a receiver who is not also a manager;

(g) a receiver and manager appointed by a court; or

(h) a liquidator appointed by a court;

“official liquidator” means a person registered as an official liquidator under section 21 or deemed to be registered as an official liquidator under this Act;

“official manager” means a person appointed as an official manager under Part XI;

“prescribed” means prescribed by this Act, by the regulations or by the rules;


 

“prescribed interest” means any right to participate or any interest, whether enforceable or not and whether actual, prospective or contingent—

(a) in any profits, assets or realization of any financial or business undertaking or scheme whether in the Territory or elsewhere;

(b) in any common enterprise, whether in the Territory or elsewhere, in relation to which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or

(c) in any investment contract,

whether or not the right or interest is evidenced by a formal document and whether or not the right or interest relates to a physical asset, but does not include—

(d) any share in, or debenture of, a corporation;

(e) any interest in, or arising out of, a policy of life insurance;

(f) an interest in a partnership agreement, unless the agreement or proposed agreement—

(i)    relates to an undertaking, scheme, enterprise or investment contract promoted by or on behalf of a person whose ordinary business is or includes the promotion of similar undertakings, schemes, enterprises or investment contracts, whether or not that person is, or is to become, a party to the agreement or proposed agreement; or

(ii)   is or would be an agreement, or is or would be within a class of agreements, prescribed by the regulations for the purposes of this paragraph; or

(g) a right or interest, or a right or interest included in a class or kind of rights or interests, declared by the regulations to be an exempt right or interest, or a class or kind of exempt rights or interests, for the purposes of Division 6 of Part IV;

“principal executive officer”, in relation to a company, means the principal executive officer of the company for the time being, by whatever name called, and whether or not he is a director;

“principal register”, in relation to a company, means the register of members of the company kept pursuant to section 256;

“profit and loss account” includes income and expenditure account, revenue account or any other account showing the results of the business of a corporation for a period and, if the corporation concerned is engaged in the development or exploration of natural resources, also includes an operations account or any like account and a development account or any like account;

“promoter”, in relation to a prospectus issued by or in connection with a corporation, means a promoter of the corporation who was a party to the preparation of the prospectus or of any relevant portion of the


 

prospectus, but does not include a person by reason only of his acting in the proper performance of the functions attaching to his professional capacity or to his business relationship with a promoter of the corporation;

“proprietary company” means—

(a) a company that, immediately before the commencement of this Act, was a proprietary company under the provisions of the Companies Ordinance 1962;

(b) any company incorporated as a proprietary company by virtue of section 34; or

(c) any company converted into a proprietary company pursuant to sub-section 70 (1),

being a company that has not ceased to be a proprietary company under section 70 or 71;

“prospectus” means—

(a) in a case where the expression is used in relation to subscribing for shares in or debentures of, or units of shares in or units of debentures of, a corporation—a written notice, circular or other instrument inviting applications or offers from the public to subscribe for, or offering to the public for subscription, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, the corporation;

(b) in a case where the expression is used in relation to the purchase of shares in or debentures of, or units of shares in or units of debentures of, a corporation—a written notice, circular or other instrument inviting applications or offers from the public to purchase, or offering to the public for purchase, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, the corporation;

(c) in a case where the expression is used in relation to shares in or debentures of, or units of shares in or units of debentures of, a corporation otherwise than as mentioned in paragraphs (a) and (b)—a written notice, circular or other instrument inviting applications or offers from the public to subscribe for or purchase, or offering to the public for subscription or purchase, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, the corporation;

(d) in a case where the expression is used in relation to a corporation otherwise than as mentioned in paragraphs (a), (b) and (c)—a written notice, circular or other instrument inviting applications or offers from the public to subscribe for or purchase, or offering to the public for subscription or purchase, any shares in or debentures of, or any units of shares in or units of debentures of, the corporation; or

(e) in any other case where the expression is used—a written notice, circular or other instrument inviting applications or


 

offers from the public to subscribe for or purchase, or offering to the public for subscription or purchase, any shares in or debentures of, or any units of shares in or units of debentures of, a corporation;

“public company” means a company other than a proprietary company;

“recognized company” means a body that is a company within the meaning of a provision of a law of a participating State or of a participating Territory that corresponds with this section;

“recognized foreign company” means a foreign company formed outside Australia and the external Territories that is registered as a foreign company in a participating State or a participating Territory under the provisions of the law of that State or Territory that correspond with Division 5 of Part XIII;

“registered” means registered under this Act or any corresponding previous law of the Territory;

“registered company auditor” means a person registered as an auditor, or deemed to be registered as an auditor, under this Act and, in relation to a corporation that is not a company, includes a person qualified to act as the auditor of the corporation under the law of the place in which the corporation is formed;

“registered foreign company” means a foreign company that is registered under Division 5 of Part XIII;

“registered liquidator” means a person registered as a liquidator under sub-section 20 (1) or (2) or deemed to be registered as a liquidator under this Act;

“Registrar of Companies” means a person who held office as Registrar of Companies, as an Acting Registrar of Companies, or as a Deputy Registrar of Companies, under a corresponding previous law of the Territory;

“related corporation”, in relation to a corporation, means a corporation that is deemed to be related to the first-mentioned corporation by virtue of sub-section 7 (5);

“relative”, in relation to a person, means the spouse, parent or remoter lineal ancestor, son, daughter or remoter issue, or brother or sister of the person;

“reproduction”, in relation to a document, means a machine-copy of the document or a print made from a negative of the document;

“resolution”, in relation to a corporation, means a resolution other than a special resolution;

“resolution for voluntary winding up” means the special resolution referred to in section 392;

“rules” means rules of Court made under section 28 of the Australian Capital Territory Supreme Court Act 1933; “securities”, in relation to a corporation, means—

(a) shares in, or debentures of, the corporation;


 

(b) any unit in any such shares or debentures; and

(c) any prescribed interest made available by the corporation;

“share” means share in the share capital of a corporation, and includes stock except where a distinction between stock and shares is expressed or implied;

“sheriff” includes any person charged with the execution of a writ or other process;

“special resolution” has the meaning given to that expression by section 248;

“statutory meeting” means the meeting referred to in section 239;

“statutory report” means the report referred to in section 239;

“stock exchange” means, where that expression appears in a provision for the purposes of which a regulation is in force defining that expression, a stock exchange as defined by that regulation;

“stock market” means a market, exchange or other place at which, or a facility by means of which, securities of corporations are regularly offered for sale, purchase or exchange;

“Table A” means Table A in Schedule 3;

“Table B” means Table B in Schedule 3;

“transparency”, in relation to a document, means—

(a) a developed negative or positive photograph of that document (in this definition referred to as an “original photograph”) made, on a transparent base, by means of light reflected from, or transmitted through, the document;

(b) a copy of an original photograph made by the use of photosensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series;

“unit”, in relation to a share, debenture or other interest (whether a prescribed interest or not), means any right or interest, whether legal or equitable, in the share, debenture or other interest, by whatever term called, and includes any option to acquire any such right or interest in the share, debenture or other interest;

“unlimited company” means a company formed on the principle of having no limit placed on the liability of its members;

“voting share”, in relation to a body corporate, means an issued share in the body corporate that confers a right to vote, not being a right to vote that is exercisable only in one or more of the following circumstances:


 

(a) during a period during which a dividend (or part of a dividend) in respect of the share is in arrears;

(b) upon a proposal to reduce the share capital of the body corporate;

(c) upon a proposal that affects rights attached to the share;

(d) upon a proposal to wind up the body corporate;

(e) upon a proposal for the disposal of the whole of the property, business and undertaking of the body corporate;

(f) during the winding up of the body corporate;

“wages”, in relation to a company, means amounts payable to or in respect of an employee of the company (whether the employee is remunerated by salary, wages, commission or otherwise) under an industrial instrument, including amounts payable by way of allowance or reimbursement but not including amounts payable in respect of leave of absence.

(2) For the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a body corporate are accustomed to act by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his professional capacity or to his business relationship with the other person.

(3) For the purposes of this Act—

(a) a reference to an invitation to do any act or thing includes a reference to an invitation to make an offer to do that act or thing;

(b) a reference to an invitation to the public to subscribe for or purchase debentures of a corporation includes a reference to an invitation to the public to deposit money with or lend money to a corporation; and

(c) a reference to an offer to the public of debentures of a corporation for subscription or purchase includes a reference to an offer to the public by a corporation to accept money that is deposited with, or money that is lent to, the corporation.

(4) A reference in this Act to, or to the making of, an offer to the public or to, or to the issuing of, an invitation to the public shall, unless the contrary intention appears, be construed as including a reference to, or to the making of, an offer to any section of the public or to, or to the issuing of, an invitation to any section of the public, as the case may be, whether selected as clients of the person making the offer or issuing the invitation or in any other manner and notwithstanding that the offer is capable of acceptance only by each person to whom it is made or that an offer or application may be made pursuant to the invitation only by a person to whom the invitation is issued, but a bona fide offer or invitation shall not be taken to be an offer or invitation to the public if it—

(a) is an offer or invitation to enter into an underwriting agreement;

(b) is made or issued to a person whose ordinary business is to buy or sell shares, debentures or prescribed interests, whether as principal or agent;


 

(c) is made or issued to existing members or debenture holders of a corporation and relates to shares in, or debentures of, that corporation;

(ca) is made or issued to holders of prescribed interests made available by a corporation pursuant to a deed that is an approved deed for the purposes of Division 6 of Part IV and is an offer or invitation that relates to prescribed interests made available by that corporation pursuant to the same approved deed; or

(d) is made or issued to existing members of a company in connection with a proposal referred to in section 409 and relates to shares in that company.

(5) For the purposes of the definition of “exempt proprietary company” in sub-section (1), a share in a proprietary company shall be deemed to be owned by a public company if any beneficial interest in the share is held, directly or indirectly, by—

(a) a public company;

(b) a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by a public company; or

(c) a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by—

(i)    a public company; or

(ii)   another proprietary company a beneficial interest in a share in which is held, directly or indirectly, otherwise than by a natural person.

(6) For the purposes of sub-section (5) but without limiting the generality of that sub-section—

(a) a reference in that sub-section to a public company shall be construed as including a reference to—

(i)    a foreign company other than a foreign company that (whether or not Division 5 of Part XIII applies to it) is a foreign company of a kind referred to in sub-section 516 (7); and

(ii)   a recognized company that is not an exempt proprietary company under the corresponding law of the participating State or participating Territory in which it is incorporated;

(b) a reference in that sub-section to a public company or to a proprietary company shall be construed as not including a reference to a company in respect of which a licence under section 66, or under any corresponding previous law of the Territory, is in force; and

(c) a person (including a corporation) shall be deemed to hold a beneficial interest in a share—

(i)    if that person, either alone or together with another person or other persons, is entitled (otherwise than as trustee for, on behalf of, or on account of, another person) to receive, directly or indirectly, any dividends in respect of the share or to exercise,


 

or to control the exercise of, any rights attaching to the share; or

(ii)   if that person, being a corporation, holds any beneficial interest in a share in another corporation which holds, or a subsidiary of which holds, any beneficial interest in that first-mentioned share.

(7) For the purposes of this Act, a receiver of the whole or any part of the property of a company shall be deemed to be also a manager of the company if the receiver manages affairs of the company or has power under the terms of his appointment to manage affairs of the company.

(8) A regulation made for the purposes of sub-paragraph (f) (ii) of the definition of “prescribed interest” in sub-section (1) does not apply to an agreement or a class of agreements relating to a partnership—

(a) being a partnership for the carrying on of a profession or trade where a person carrying on that profession or trade is required by any law of the Territory to be registered, licensed or otherwise authorized in order to do so; and

(b) the business of which does not include any business other than the business of a partnership referred to in paragraph (a).

(9) The express references in this Act to companies and corporations shall not be taken to imply that references to persons do not include references to companies or corporations.

References to affairs of a corporation

6. A reference in section 12 or 15, Part VII, section 320, paragraph 364 (1) (f), section 388 or 541, sub-section 560 (1) or section 564 to affairs of a corporation shall, unless the contrary intention apears, be construed as including a reference to—

(a) the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with another person or other persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with another person or other persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with another person or other persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the corporation;

(b) in the case of a corporation (not being an authorized trustee corporation) that is a trustee (but without limiting the generality of paragraph (a))—matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust;

(c) the internal management and proceedings of the corporation;


 

(d) any act or thing done (including any contract made and any transaction entered into) by or on behalf of the corporation, or to or in relation to the corporation or its business or property, at a time when—

(i)    a receiver, or a receiver and manager, is in possession of, or has control over, the whole or any part of the property of the corporation;

(ii)   the corporation is under official management;

(iii)  a compromise or arrangement made between the corporation and another person or other persons is being administered; or

(iv)  the corporation is being wound up,

and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of any official manager or deputy official manager of the corporation, of any person administering such a compromise or arrangement or of any liquidator or provisional liquidator of the corporation;

(e) the ownership of shares in, debentures of, and prescribed interests made available by, the corporation;

(f) the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the corporation or to dispose of, or to exercise control over the disposal of, such shares;

(g) matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the corporation or are or have been able to control or materially to influence the policy of the corporation;

(h) the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or prescribed interests made available by, the corporation;

(j) where the corporation has made available prescribed interests—any matters concerning the financial or business undertaking, scheme, common enterprise or investment contract to which the interests relate; and

(k) matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, any matters referred to in any of the preceding paragraphs.

Subsidiaries, holding companies and related corporations

7. (1) For the purposes of this Act, a corporation shall, subject to sub-section (3), be deemed to be a subsidiary of another corporation if—

(a) that other corporation—

(i)    controls the composition of the board of directors of the first-mentioned corporation;

(ii)   is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned corporation; or


 

(iii)  holds more than one-half of the issued share capital of the first-mentioned corporation (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b) the first-mentioned corporation is a subsidiary of any corporation that is that other corporation’s subsidiary (including a corporation that is that other corporation’s subsidiary by another application or other applications of this paragraph).

(2) Without limiting by implication the circumstances in which the composition of a corporation’s board of directors is to be taken to be controlled by another corporation, the composition of a corporation’s board of directors shall be taken to be controlled by another corporation if that other corporation, by the exercise of some power exercisable whether with or without the consent or concurrence of any other person by that other corporation, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other corporation shall be deemed to have power to make such an appointment if—

(a) a person cannot be appointed as a director without the exercise in his favour by that other corporation of such a power; or

(b) a person’s appointment as a director follows necessarily from his being a director or other officer of that other corporation.

(3) In determining whether one corporation is a subsidiary of another corporation—

(a) any shares held or power exercisable by that other corporation in a fiduciary capacity shall be treated as not held or exercisable by it;

(b) subject to paragraphs (c) and (d), any shares held or power exercisable—

(i)    by any person as a nominee for that other corporation (except where that other corporation is concerned only in a fiduciary capacity); or

(ii)   by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary that is concerned only in a fiduciary capacity,

shall be treated as held or exercisable by that other corporation;

(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned corporation, or of a trust deed for securing any issue of such debentures, shall be disregarded; and

(d) any shares held or power exercisable by, or by a nominee for, that other corporation or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable only by way of security given for the purposes of a transaction entered into in the


 

ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the other corporation or its subsidiary.

(4) A reference in this Act to the holding company of a company or other corporation shall be read as a reference to a corporation of which that last-mentioned company or that other corporation is a subsidiary.

(5) Where a corporation—

(a) is the holding company of another corporation;

(b) is a subsidiary of another corporation; or

(c) is a subsidiary of the holding company of another corporation,

that first-mentioned corporation and that other corporation shall, for the purposes of this Act, be deemed to be related to each other.

(6) For the purposes of this Act, a corporation is the ultimate holding company of another corporation if—

(a) the other corporation is a subsidiary of the first-mentioned corporation; and

(b) the first-mentioned corporation is not itself a subsidiary of any corporation.

(7) For the purposes of this Act, a corporation is a wholly-owned subsidiary of another corporation if none of the members of the first-mentioned corporation is a person other than—

(a) that other corporation;

(b) a nominee of that other corporation;

(c) a subsidiary of that other corporation, being a subsidiary none of the members of which is a person other than that other corporation or a nominee of that other corporation; or

(d) a nominee of such a subsidiary.

Relevant interests in shares

8. (1) Subject to this section, a person has a relevant interest in a share in a body corporate—

(a) for the purposes of Division 4 of Part IV or of section 261, if that share is a voting share and that person has power—

(i)    to exercise, or to control the exercise of, the right to vote attached to that share; or

(ii)   to dispose of, or to exercise control over the disposal of, that share; and

(b) for the purposes of sections 230, 231 and 232, if that person has power to dispose of, or to exercise control over the disposal of, that share.

(2) It is immaterial for the purposes of this section whether the power of a person—


 

(a) to exercise, or to control the exercise of, the right to vote attached to a voting share in a body corporate; or

(b) to dispose of, or exercise control over the disposal of, a share,

is express or implied or formal or informal, is exercisable alone or jointly with another person or other persons, cannot be related to a particular share, or is, or is capable of being made, subject to restraint or restriction, and any such power exercisable jointly with another person or other persons shall, for those purposes, be deemed to be exercisable by either or any of those persons.

(3) A reference in this section to power or control includes a reference to power or control that is direct or indirect or is, or is capable of being, exercised as a result of, or by means of, or in breach of, or by revocation of, trusts, agreements, arrangements, understandings and practices, or any of them, whether or not they are enforceable, and a reference in this section to a controlling interest includes a reference to such an interest as gives control.

(4) For the purposes of this section, where a body corporate has power—

(a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or

(b) to dispose of, or to exercise control over the disposal of, a share, and—

(c) the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of the power;

(d) a person has a controlling interest in the body corporate; or

(e) a person has power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate,

that person shall be deemed to have the same power in relation to that share as the body corporate has.

(5) For the purposes of paragraph (4) (e), a person shall be deemed to have the power referred to in that paragraph if—

(a) a person associated with the first-mentioned person has that power;

(b) persons associated with the first-mentioned person together have that power; or

(c) the first-mentioned person and a person or persons associated with him together have that power.

(6) Where a person—

(a) has entered into an agreement with respect to an issued share;

(b) has a right relating to an issued share, whether the right is enforceable presently or in the future and whether on the fulfilment of a condition or not; or

(c) has an option with respect to an issued share,


 

and, on performance of the agreement, enforcement of the right or exercise of the option, that person would have a relevant interest in the share, he shall, for the purposes of this section, be deemed to have that relevant interest in the share.

(7) For the purposes of this section, where a body corporate is deemed by sub-section (6) to have a relevant interest in a share and—

(a) the body corporate or its directors are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of, or the control of the exercise of, any right to vote attached to that share, or in relation to the disposal of, or the exercise of control over the disposal of, that share;

(b) a person has a controlling interest in the body corporate; or

(c) a person has power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate,

that person shall be deemed to have a relevant interest in that share.

(8) A relevant interest in a share shall be disregarded—

(a) for the purposes of Division 4 of Part IV and sections 230, 231, 232 or 261—

(i)    if the ordinary business of the person who has the relevant interest includes the lending of money and he has authority to exercise his powers as the holder of the relevant interest only by reason of a security given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the first-mentioned person;

(ii)   if the relevant interest is that of a person who has it by reason of his holding a prescribed office;

(iii)  if the share is subject to a trust, the relevant interest is that of a trustee and—

(A) a beneficiary is deemed, by sub-section (6), to have a relevant interest in the share by virtue of a presently enforceable and unconditional right referred to in paragraph (b) of that sub-section; or

(B) the trustee is a bare trustee; or

(iv)  if the ordinary business of the person who has the relevant interest includes dealing in securities and he has authority to exercise his powers as the holder of the relevant interest only by reason of instructions given to him by or on behalf of another person to dispose of that share on behalf of the other person in the ordinary course of business; and

(b) for the purposes of Division 4 of Part IV or of section 261, if the relevant interest is that of a person who has it by reason only of his


 

having been appointed as a proxy or representative to vote at a particular meeting of members, or of a class of members, of a corporation, not being an appointment in return for the making of which the person or a person associated with the person provided valuable consideration.

(9) For the purposes of sub-paragraph (8) (a) (iii), a trustee shall not be taken not to be a bare trustee by reason only of the fact that the trustee is entitled in his capacity as a trustee to be remunerated out of the income or property of the trust.

(10) A relevant interest in a share shall not be disregarded by reason only of—

(a) its remoteness; or

(b) the manner in which it arose.

(11) The regulations may provide that relevant interests, or particular classes of relevant interests, in shares in bodies corporate, or in particular classes of bodies corporate, shall, in such circumstances and subject to such conditions (if any) as are specified in the regulations, be disregarded for the purposes of the provisions of this Act referred to in sub-section (1) or for the purposes of such of those provisions as are specified in the regulations.

(12) A reference in this section to the prescribed percentage is a reference to 20% or, where a lesser percentage is prescribed by regulations in force for the time being for the purposes of section 11 of the Companies (Acquisition of Shares) Act 1980, a reference to that lesser percentage.

Associated persons

9. (1) A reference in this Act to a person associated with another person shall be construed as a reference to—

(a) if the other person is a corporation—

(i)    a director or secretary of the corporation;

(ii)   a corporation that is related to the other person; or

(iii)  a director or secretary of such a related corporation;

(b) where the matter to which the reference relates is the extent of a power to exercise, or to control the exercise of, the voting power attached to voting shares in a corporation—a person with whom the other person has, or proposes to enter into, an agreement, arrangement, understanding or undertaking, whether formal or informal and whether express or implied—

(i)    by reason of which either of those persons may exercise, directly or indirectly control the exercise of, or substantially influence the exercise of, any voting power attached to a share in the corporation;

(ii)   with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the corporation; or


 

(iii)  under which either of those persons may acquire from the other of them shares in the corporation or may be required to dispose of such shares in accordance with the directions of the other of them;

(c) a person in concert with whom the other person is acting, or proposes to act, in respect of the matter to which the reference relates;

(d) a person with whom the other person is, or proposes to become, associated, whether formally or informally, in any other way in respect of the matter to which the reference relates; or

(e) if the other person has entered into, or proposes to enter into, a transaction, or has done, or proposes to do, any other act or thing, with a view to becoming associated with a person as mentioned in paragraph (b), (c) or (d)—that last-mentioned person.

(2) A person shall not be taken to be associated with another person by virtue of paragraph (1) (b), (c), (d) or (e) by reason only that—

(a) one of those persons furnishes advice to, or acts on behalf of, the other person in the proper performance of the functions attaching to his professional capacity or to his business relationship with the other person;

(b) without limiting the generality of paragraph (a), where the ordinary business of one of those persons includes dealing in securities—specific instructions are given to the person by or on behalf of the other person to acquire shares on behalf of the other person in the ordinary course of that business; or

(c) the other person has been appointed by the first-mentioned person as a proxy or representative to exercise, at a meeting of members or of a class of members of a company, votes attached to shares of which the first-mentioned person is the holder, where the relevant interest of that other person in those shares that arises by reason of his appointment as a proxy or representative would be disregarded under sub-section 8 (8) by reason of paragraph (b) of that sub-section.

(3) For the purposes of paragraph (1) (b), it is immaterial that the power of a person to exercise, control the exercise of, or influence the exercise of, voting power is in any way qualified.

PART II—ADMINISTRATION

Division 1Powers of Inspection

Interpretation

10. In this Division—

“books” includes banker’s books;

“premises” includes any structure, building, aircraft, vehicle, vessel or place (whether built upon or not) and any part of such a structure, building, aircraft, vehicle, vessel or place.


 

Commission may inspect books without charge

11. (1) Any book that is required by a provision of this Act to be kept by a company or by a registered foreign company shall be open for inspection without charge by a person authorized by the Commission for the purposes of this section.

(2) An authorization under sub-section (1) may be of general application or may be limited to inspecting a particular book or books or a particular class of books.

Power of Commission to require production of books

12. (1) The powers of the Commission under sub-section (2), or the powers of an authorized person under sub-section (3), to make a requirement of a corporation or person shall not be exercised except—

(a) for the purpose of the performance of a function or the exercise of a power by the Commission under an Act that is a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (other than the power of the Commission under sub-section 6 (3) of the National Companies and Securities Commission Act 1979) or under a law of a participating State or of a participating Territory that corresponds with such a relevant Act; or

(b) where the requirement relates to a matter that constitutes or may constitute—

(i)    a contravention of, or failure to comply with, a provision of such a relevant Act or corresponding law;

(ii)   a contravention of, or failure to comply with, a provision of the Companies Ordinance 1962 of the Territory as in force at any time or of a previous law of a participating State or participating Territory that corresponded with that Ordinance; or

(iii)  an offence relating to a company that involves fraud or dishonesty or concerns the management of affairs of the company.

(2) The Commission may, at any time, by notice in writing—

(a) give a direction to—

(i)    a corporation; or

(ii)   a person who is or has been an officer or employee of, or an agent, banker, solicitor, auditor or other person acting in any capacity for or on behalf of, a corporation (including a corporation that is in the course of being wound up or has been dissolved),

requiring the production, at such time and place as are specified in the direction, of such books relating to affairs of the corporation as are so specified; or

(b) give a direction to any person requiring the production, at such time and place as are specified in the direction, of any books relating to affairs of a corporation (including a corporation that is in the course of


 

being wound up or has been dissolved) that are in the custody or under the control of the person.

(3) The Commission may from time to time authorize a person, on producing (if required to do so) such evidence of his authority as is prescribed—

(a) to require by notice in writing any corporation to produce to the authorized person forthwith or, if a time and place at which the books are to be produced are specified in the notice, at that time and place, such books relating to affairs of the corporation as are specified by the authorized person;

(b) to require by notice in writing any person who is or has been an officer or employee of, or an agent, banker, solicitor, auditor or other person acting in any capacity for or on behalf of, a corporation (including a corporation that is in the course of being wound up or has been dissolved) to produce to the authorized person forthwith such books relating to affairs of the corporation as are specified by the authorized person; or

(c) to require by notice in writing any person to produce to the authorized person forthwith any books relating to affairs of a corporation (including a corporation that is in the course of being wound up or has been dissolved) that are in the custody or under the control of the person.

(4) An authorization under sub-section (3) may be of general application or may be limited to making requirements of a particular corporation or other person or particular corporations or other persons.

(5) Where the Commission, or a person authorized by the Commission, requires the production of any books under this section and a person has a lien on the books, the production of the books does not prejudice the lien.

(6) Where a person exercises a power under this section to require another person to produce books—

(a) if the books are produced, the first-mentioned person—

(i) may take possession of the books and may make copies of, or take extracts from, the books;

(ii) may require the other person, or any person who was party to the compilation of the books, to make a statement providing any explanation that the person concerned is able to provide as to any matter relating to the compilation of the books or as to any matter to which the books relate;

(iii) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the Commission; and

(iv) during that period shall permit a person who would be entitled to inspect any one or more of the books if they were not in the


 

possession of the first-mentioned person to inspect at all reasonable times such of the books as that person would be so entitled to inspect; or

(b) if the books are not produced, the first-mentioned person may require the other person—

(i)    to state, to the best of his knowledge and belief, where the books may be found; and

(ii)   to identify the person who, to the best of his knowledge and belief, last had custody of the books and to state, to the best of his knowledge and belief, where that last-mentioned person may be found.

(7) Where this section confers a power on a person to require another person to produce books relating to affairs of a corporation, the first-mentioned person also has power to require the other person (whether or not he requires the other person to produce books and whether or not any books are produced pursuant to such a requirement), so far as the other person is able to do so, to identify property of the corporation and explain the manner in which the corporation has kept account of that property.

(8) A person shall not be subject to any liability by reason that the person complies with a direction given or purporting to have been given under sub-section (2), or a requirement made, or purporting to have been made, under sub-section (3).

(9) A power conferred by this section to make a requirement of a person extends, if the person is a body corporate, including a body corporate that is in the course of being wound up, or was a body corporate, being a body corporate that has been dissolved, to making that requirement of any person who is or has been an officer of the body corporate.

(10) For the purposes of this section, “officer”, in relation to a body corporate, includes—

(a) a director, secretary, executive officer or employee of the body corporate;

(b) a receiver, or a receiver and manager, of the property or any part of the property of the body corporate;

(c) an official manager or a deputy official manager of the body corporate;

(d) a liquidator or provisional liquidator of the body corporate; and

(e) a trustee or other person administering a compromise or arrangement made between the body corporate and another person or other persons.

Power of magistrate to issue warrant to seize books

13. (1) If a magistrate is satisfied, on information on oath or affirmation laid by an employee of the Commission or by another person authorized in writing by the Commission, that there are reasonable grounds for suspecting that there are on particular premises in the Territory any books the production of which has been required under section 12 or under a provision of a law of a


 

participating State or of a participating Territory that corresponds with section 12 and which have not been produced in compliance with that requirement, the magistrate may issue a warrant authorizing any member of the Australian Federal Police together with any other person named in the warrant—

(a) to enter those premises (using such force as is necessary for the purpose);

(b) to search the premises and to break open and search any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in the premises;

(c) to take possession of, or secure against interference, any books that appear to be books the production of which was so required; and

(d) to deliver any books possession of which is so taken into the possession of a person authorized by the Commission to receive them.

(2) An information laid for the purposes of sub-section (1) shall state that the person laying the information suspects that there are on particular premises in the Territory books the production of which has been required under section 12 or under a provision of a law of a participating State or of a participating Territory that corresponds with section 12 and which have not been produced in compliance with that requirement and shall specify the grounds on which the person so suspects.

(3) Where a magistrate issues a warrant under sub-section (1), he shall state on the information laid under that sub-section—

(a) which of the grounds set out in the information as required by sub-section (2) he has relied on to justify the issue of the warrant; and

(b) particulars of any other grounds relied on by him to justify the issue of the warrant.

(4) There shall be stated in a warrant issued under this section—

(a) whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night; and

(b) a date, being a date not later than 7 days after the date of issue of the warrant, upon which the warrant ceases to have effect.

(5) Where, under this section, a person takes possession of, or secures against interference, any books, and a person has a lien on the books, the taking of possession of the books or the securing of the books against interference does not prejudice the lien.

(6) Where, under this section, a person takes possession of, or secures against interference, any books, that person or any person to whose possession the books were delivered under paragraph (1) (d)—

(a) may make copies of, or take extracts from, the books;

(b) may require any person who was party to the compilation of the books to make a statement providing any explanation that that person is able to provide as to any matter relating to the compilation of the books or as to any matter to which the books relate;


 

(c) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the Commission; and

(d) during that period shall permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the first-mentioned person to inspect at all reasonable times such of those books as that person would be so entitled to inspect.

(7) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.

Offences

14. (1) A person shall not, without reasonable excuse, refuse or fail to comply with a requirement made under section 12 or 13.

Penalty: $10,000 or imprisonment for 2 years, or both.

(2) A person shall not, in purported compliance with a requirement made under section 12 or 13, furnish information or make a statement that is false or misleading in a material particular.

Penalty: $10,000 or imprisonment for 2 years, or both.

(3) It is a defence to a prosecution for an offence against sub-section (2) if the defendant proves that he believed on reasonable grounds that the information or statement was true and was not misleading.

(4) A person shall not, without reasonable excuse, obstruct or hinder—

(a) the Commission or another person in the exercise of any power under section 12; or

(b) a person executing a warrant issued under section 13.

Penalty: $10,000 or imprisonment for 2 years, or both.

(5) The occupier or person in charge of any premises that a person enters pursuant to a warrant referred to in sub-section 13 (1) shall provide the last-mentioned person with all reasonable facilities and assistance for the effective exercise of his powers under the warrant.

Penalty: $2,500 or imprisonment for 6 months, or both.

(6) A person is not excused from making a statement providing an explanation as to any matter relating to the compilation of any books or as to any matter to which any books relate pursuant to a requirement made of him in accordance with section 12 or 13 on the ground that the statement might tend to incriminate him but, where the person claims before making a statement that the statement might tend to incriminate him, the statement is not admissible in evidence against him in criminal proceedings other than proceedings under this section.

(7) Subject to sub-section (6), a statement made by a person in compliance with a requirement made under section 12 or 13 may be used in evidence in any criminal or civil proceedings against the person.


 

Copies or extracts of books to be admitted in evidence

15. (1) Subject to this section, in any legal proceedings (whether proceedings under this Act or otherwise), a copy of or extract from a book relating to affairs of a corporation is admissible in evidence as if it were the original book or the relevant part of the original book.

(2) A copy of or extract from a book is not admissible in evidence under sub-section (1) unless it is proved that the copy or extract is a true copy of the book or of the relevant part of the book.

(3) For the purposes of sub-section (2), evidence that a copy of or extract from a book is a true copy of the book or of a part of the book may be given by a person who has compared the copy or extract with the book or the relevant part of the book and may be given either orally or by an affidavit sworn, or by a declaration made, before a Commissioner or person authorized to take affidavits or statutory declarations.

Privilege

16. (1) Where—

(a) the Commission, or a person authorized by the Commission, makes a requirement under section 12 or 13 of a duly qualified legal practitioner in respect of a document; and

(b) the document contains a privileged communication made by or on behalf of or to the legal practitioner in his capacity as a legal practitioner,

the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by or on behalf of whom the communication was made or, if the person is a body corporate that is under official management or in the course of being wound up, the official manager or the liquidator, as the case may be, agrees to the legal practitioner complying with the requirement but, where the legal practitioner so refuses to comply with a requirement, he shall, if he knows the name and address of the person to whom or by or on behalf of whom the communication was made, forthwith furnish that name and address in writing to the Commission or authorized person.

(2) Where—

(a) under section 12 or 13, the Commission, or a person authorized by the Commission, requires a duly qualified legal practitioner to make a statement providing an explanation as to any matter relating to the compilation of books or as to any matter to which any books relate; and

(b) the legal practitioner is not able to make that statement without disclosing a privileged communication made by or on behalf of or to the legal practitioner in his capacity as a legal practitioner,

the legal practitioner is entitled to refuse to comply with the requirement, except to the extent that he is able to comply with the requirement without disclosing any privileged communication referred to in paragraph (b), unless the person to whom or by or on behalf of whom the communication was made


 

or, if the person is a body corporate that is under official management or in the course of being wound up, the official manager or the liquidator, as the case may be, agrees to the legal practitioner complying with the requirement but, where the legal practitioner so refuses to comply with a requirement, he shall, if he knows the name and address of the person to whom or by or on behalf of whom the communication was made, forthwith furnish that name and address in writing to the Commission or authorized person.

Penalty: $1,000 or imprisonment for 3 months, or both.

Division 2Registration of Auditors and Liquidators

Application for registration as auditor or liquidator

17. (1) A natural person may make an application to the Commission—

(a) for registration as an auditor;

(b) for registration as a liquidator; or

(c) for registration as a liquidator of a specified corporation, being a corporation that is to be wound up pursuant to the provisions of this Act.

(2) An application under this section shall be made in writing as prescribed and shall contain such information as is prescribed.

(3) This section has effect subject to section 28.

Registration of auditors

18. (1) Subject to this section, where an application for registration as an auditor is made under section 17 and before the expiration of 6 months after the date of commencement of this Act by a person who was, immediately before that date, registered as a company auditor under the Companies Ordinance 1962—

(a) the Commission shall grant the application and register the applicant as an auditor unless the Commission is satisfied that the person is not a fit and proper person to be registered as an auditor; and

(b) if the Commission is satisfied that the person is not a fit and proper person to be registered as an auditor, the Commission shall refuse the application.

(2) Subject to this section, where an application for registration as an auditor (not being an application to which sub-section (1) applies) is made under section 17, the Commission shall grant the application and register the applicant as an auditor if—

(a) the applicant—

(i)    is a member of the The Institute of Chartered Accountants in Australia, the Australian Society of Accountants or any other prescribed body;

(ii)     holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution


 

certifies to the Commission to represent a course of study in accountancy (including auditing) of not less than 3 years’ duration and in commercial law (including company law) of not less than 2 years’ duration; or

(iii)  has other qualifications and experience that, in the opinion of the Commission, are equivalent to the qualifications mentioned in sub-paragraph (i) or (ii);

(b) the Commission is satisfied that the applicant has had such practical experience in auditing as is prescribed; and

(c) the Commission is satisfied that the applicant is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor,

but otherwise the Commission shall refuse the application.

(3) The Commission shall not register as an auditor a person who—

(a) is prohibited, by virtue of an order made under section 562 or under any provision of a law, or a previous law, of a State or Territory that corresponds with that section, from acting as a director of, or from being concerned in or taking part in the management of, a company or other corporation; or

(b) is, by virtue of section 227, prohibited, without the leave of the Court, from acting as a director or promotor of, or from being concerned in or taking part in the management of, a corporation.

(4) Subject to sub-section (8), the Commission may refuse to register as an auditor a person who is not resident in Australia.

(5) Where the Commission grants an application by a person for registration as an auditor, the Commission shall cause to be issued to the person a certificate by the Commission stating that the person has been registered as an auditor and specifying the date on which the application was granted.

(6) Where—

(a) in a certificate issued to a person under sub-section (5) (including a certificate issued pursuant to this sub-section) a date is specified for the purposes of sub-section 26 (2); and

(b) the person requests the Commission to alter the date so specified and surrenders the certificate to the Commission,

the Commission may cancel the certificate and issue to the person under sub-section (5), in place of the cancelled certificate, a new certificate that specifies a different date for the purposes of sub-section 26 (2).

(7) A registration under this section shall be deemed to have taken effect at the commencement of the day specified in the certificate as the date on which the application for registration was granted and remains in force until—

(a) the registration is cancelled by the Commission or by the Companies Auditors and Liquidators Disciplinary Board; or

(b) the person who is registered dies.


 

(8) The Commission shall not refuse to register a person as an auditor unless the Commission has afforded the person an opportunity to appear at a hearing before the Commission and to make submissions and give evidence to the Commission in relation to the matter.

(9) Where the Commission refuses an application by a person for registration as an auditor, the Commission shall, not later than 14 days after the decision, give to the person notice in writing setting out the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

Auditor-General deemed to be registered as auditor

19. A person who holds office as, or is for the time being exercising the powers and performing the duties of, the Auditor-General shall be deemed to be registered as an auditor under this Division.

Registration of liquidators

20. (1) Subject to this section, where an application for registration as a liquidator is made under section 17 and before the expiration of 6 months after the date of commencement of this Act by a person who was, immediately before that date, registered as a liquidator under the Companies Ordinance 1962—

(a) the Commission shall grant the application and register the applicant as a liquidator unless the Commission is satisfied that the person is not a fit and proper person to be registered as a liquidator; or

(b) if the Commission is satisfied that the person is not a fit and proper person to be registered as a liquidator—the Commission shall refuse the application.

(2) Subject to this section, where an application for registration as a liquidator (not being an application to which sub-section (1) applies) is made under section 17, the Commission shall grant the application if—

(a) the applicant—

(i)    is a member of The Institute of Chartered Accountants in Australia, the Australian Society of Accountants or any other prescribed body;

(ii)   holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the Commission to represent a course of study in accountancy of not less than 3 years’ duration and in commercial law (including company law) of not less than 2 years’ duration; or

(iii)  has other qualifications and experience that, in the opinion of the Commission, are equivalent to the qualifications mentioned in sub-paragraph (i) or (ii);


 

(b) the Commission is satisfied as to the experience of the applicant in connection with the winding up of corporations; and

(c) the Commission is satisfied that the applicant is capable of performing the duties of a liquidator and is otherwise a fit and proper person to be registered as a liquidator,

but otherwise the Commission shall refuse the application.

(3) Where an application for registration as a liquidator of a specified corporation is made under section 17, the Commission shall grant the application and register the applicant as a liquidator of that corporation if the Commission is satisfied that the applicant has sufficient experience and ability, and is a fit and proper person, to act as liquidator of the corporation, having regard to the nature of the property or business of the corporation and the interests of its creditors and contributories, but otherwise the Commission shall refuse the application.

(4) The Commission shall not register as a liquidator, or as a liquidator of a specified corporation, a person who—

(a) is prohibited, by virtue of an order made under section 562 or under any provision of a law, or a previous law, of a State or Territory that corresponds with that section, from acting as a director of, or from being concerned in or taking part in the management of, a company or other corporation; or

(b) is, by virtue of section 227, prohibited, without the leave of the Court, from acting as a director or promoter of, or from being concerned in or taking part in the management of, a corporation.

(5) Subject to sub-section (10), the Commission may refuse to register as a liquidator or as a liquidator of a specified corporation a person who is not resident in Australia.

(6) Where—

(a) the Commission grants an application by a person for registration as a liquidator or as a liquidator of a specified corporation; and

(b) the person has complied with the requirements of section 22,

the Commission shall cause to be issued to the person a certificate by the Commission—

(c) stating that the person has been registered as a liquidator or as a liquidator of a specified corporation;

(d) specifying a date as the date of commencement of the registration, being—

(i)    the date on which the Commission granted the application; or

(ii)   the date on which the person complied with the requirements of section 22,

whichever was the later; and

(e) in the case of a person who is registered under sub-section (3) as a liquidator of a specified corporation—setting out the name of that corporation.


 

(7) Where—

(a) in a certificate issued to a person under sub-section (6) (including a certificate issued pursuant to this sub-section) a date is specified for the purposes of sub-section 26 (2); and

(b) the person requests the Commission to alter the date so specified and surrenders the certificate to the Commission,

the Commission may cancel the certificate and issue to the person under sub-section (6), in place of the cancelled certificate, a new certificate that specifies a different date for the purposes of sub-section 26 (2).

(8) The registration of a person as a liquidator under sub-section (1) or (2) comes into force at the commencement of the day specified in the certificate as the date of commencement of the registration and remains in force until—

(a) the registration is cancelled by the Commission or by the Companies Auditors and Liquidators Disciplinary Board; or

(b) the person dies.

(9) The registration of a person as a liquidator of a specified corporation under sub-section (3) comes into force at the commencement of the day specified in the certificate as the date of commencement of the registration and remains in force until—

(a) the registration is cancelled by the Commission or by the Companies Auditors and Liquidators Disciplinary Board;

(b) the person dies; or

(c) the dissolution of the corporation takes effect.

(10) The Commission shall not refuse to register a person as a liquidator, or as a liquidator of a specified corporation, unless the Commission has afforded the person an opportunity to appear at a hearing before the Commission and to make submissions and give evidence to the Commission in relation to the matter.

(11) Where the Commission refuses an application by a person for registration as a liquidator, or as a liquidator of a specified corporation, the Commission shall, not later than 14 days after the decision, give to the person notice in writing setting out the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

Registration of official liquidators

21. (1) The Commission may register as an official liquidator a natural person who is a registered liquidator.

(2) A person who is registered as an official liquidator is entitled, upon request, to be issued with a certificate of his registration.

(3) The Commission may, pursuant to the power conferred on it by sub-section (1), register as official liquidators as many registered liquidators as it thinks fit.


 

Security to be given by liquidators

22. (1) Where the Commission grants an application by a person for registration as a liquidator or as a liquidator of a specified corporation, the person shall lodge and maintain with the local authority a security for the due performance of his duties as such a liquidator in such form and for such amount as is, from time to time, determined by the Commission in relation to that liquidator and with such surety or sureties (if any) as the Commission, from time to time, requires.

(2) Where a security is lodged with the local authority in accordance with sub-section (1), the security may be applied by the local authority in such circumstances, for such purposes and in such manner as is prescribed.

(3) The regulations may make provision for or in relation to—

(a) the discharge in whole or part by the Commission of securities lodged pursuant to this section; and

(b) the release by the Commission of sureties referred to in sub-section (1) from all or any of their obligations as such sureties.

(4) In this section, “local authority” means the Corporate Affairs Commission for the Territory.

Register of Auditors

23. (1) The Commission shall cause a Register of Auditors to be kept for the purposes of this Act and shall cause to be entered in the Register in relation to a person who is registered as an auditor—

(a) the name of the person;

(b) the date on which the application by that person for registration as an auditor was granted;

(c) the address of the principal place where the person practises as an auditor and the address of the other places (if any) at which he so practises;

(d) if the person practises as an auditor as a member of a firm or under a name or style other than his own—the name of that firm or the name or style under which he so practises; and

(e) particulars of any suspension of the registration of the person as an auditor and of any action taken in respect of the person under paragraph 27 (10) (a), (b) or (c),

and may cause to be entered in the Register in relation to a person who is registered as an auditor such other particulars as the Commission considers appropriate.

(2) Where a person ceases to be registered as an auditor under this Division, the Commission shall cause to be removed from the Register of Auditors the name of the person and any other particulars entered in the Register in relation to that person.


 

(3) A person may inspect and make copies of, or take extracts from, the Register of Auditors.

Registers of Liquidators and Official Liquidators

24. (1) The Commission shall cause a Register of Liquidators to be kept for the purposes of this Act and shall cause to be entered in the Register—

(a) in relation to a person who is registered as a liquidator—

(i)    the name of the person;

(ii)   the date of commencement of the registration of that person as a liquidator;

(iii)  the address of the principal place where the person practises as a liquidator and the addresses of the other places (if any) at which he so practises;

(iv)  if the person practises as a liquidator as a member of a firm or under a name or style other than his own name—the name of that firm or the name or style under which he so practises; and

(v)   particulars of any suspension of the registration of the person as a liquidator and of any action taken in respect of the person under paragraph 27 (10) (a), (b) or (c); and

(b) in relation to a person who is registered as a liquidator of a specified corporation—

(i)    the name of the person;

(ii)   the name of the corporation;

(iii)  the date of commencement of the registration of the person as a liquidator of the corporation;

(iv)  the address of the principal place where the person proposes to perform his functions as the liquidator of the corporation;

(v)   if the person practises a profession as a member of a firm or under a name or style other than his own name, being a profession by virtue of which he is qualified to be appointed as a liquidator of the corporation—the name and address of that firm or the name or style under which he so practises; and

(vi)  particulars of any suspension of the registration of the person as a liquidator of that corporation and of any action taken in respect of the person under paragraph 27 (10) (a), (b) or (c),

and may cause to be entered in the Register in relation to a person who is registered as a liquidator, or as a liquidator of a specified corporation, such other particulars as the Commission considers appropriate.

(2) The Commission shall cause a Register of Official Liquidators to be kept for the purposes of this Act and shall cause to be entered in the Register the name, and such other particulars as the Commission considers appropriate, of any person registered as an official liquidator.

(3) Where a person ceases to be registered under this Division as a liquidator, as a liquidator of a specified corporation or as an official liquidator, the


 

Commission shall cause to be removed from the Register of Liquidators or from the Register of Official Liquidators, as the case may be, the name of the person and any other particulars entered in that Register in relation to that person.

(4) A person may inspect and make copies of, or take extracts from, the Register of Liquidators or the Register of Official Liquidators.

Notification of certain matters

25. (1) Where—

(a) a person who is a registered company auditor ceases to practise as an auditor; or

(b) a change occurs in any matter particulars of which are required by paragraph 23 (1) (a), (c) or (d) to be entered in the Register of Auditors in relation to a person who is a registered company auditor,

the person shall, not later than 21 days after the occurrence of the event concerned, lodge with the Commission, in the prescribed form, particulars in writing of that event.

(2) Where—

(a) a person who is a registered liquidator ceases to practise as a liquidator; or

(b) a change occurs in any matter particulars of which are required by sub-paragraph 24 (1) (a) (i), (iii) or (iv) to be entered in the Register of Liquidators in relation to a person who is a registered liquidator,

the person shall, not later than 21 days after the occurrence of the event concerned, lodge with the Commission, in the prescribed form, particulars in writing of that event.

(3) Where—

(a) a person who is registered as a liquidator of a specified corporation ceases to act as a liquidator in the winding up of that corporation; or

(b) a change occurs in any matter particulars of which are required by sub-paragraph 24 (1) (b) (i), (ii), (iv) or (v) to be entered in the Register of Liquidators in relation to a person who is registered as a liquidator of a specified corporation,

the person shall, not later than 21 days after the occurrence of the event concerned, lodge with the Commission, in the prescribed form, particulars in writing of that event.

(4) Where a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation—

(a) becomes an insolvent under administration;

(b) becomes, by virtue of sub-section 227 (2), prohibited, without the leave of the Court, from acting as a director or promoter of, or from being concerned in or taking part in the management of, a corporation; or


 

(c) becomes prohibited, by virtue of an order made under section 562 or under a provision of a law of a State or of another Territory that corresponds with that section, from acting as a director of, or from being concerned in or taking part in the management of, a company or other corporation,

the person shall, not later than 3 days after the occurrence of the event concerned, lodge with the Commission, in the prescribed form, particulars in writing of that event.

Triennial statements by registered auditors and liquidators

26. (1) Where a person applies to the Commission for registration as an auditor or as a liquidator and his application is granted under section 18 or sub-section 20 (1) or (2) within one year after the commencement of this Act, the Commission may, in the certificate issued under sub-section 18 (5) or 20 (6) (in this section referred to as the “relevant certificate”), specify a date for the purposes of sub-section (2) of this section, being a date that is not more than 3 years after the date (in this section referred to as the “commencement date”) that is, in the relevant certificate, specified pursuant to sub-section 18 (5) or 20 (6), as the case may be.

(2) Where, in a certificate issued to a registered company auditor or a registered liquidator under sub-section 18 (5) or 20 (6), as the case may be, a date is specified for the purposes of this sub-section, the registered company auditor or registered liquidator shall lodge with the Commission, within one month after that date, a statement setting out, in respect of the period commencing on the commencement date and ending on the first-mentioned date, such information as is prescribed.

(3) A person who is a registered company auditor or a registered liquidator shall, within one month after the expiration of the period of 3 years commencing—

(a) in the case of a person to whom sub-section (2) applies—on the date specified in the relevant certificate for the purposes of sub-section (2); or

(b) in the case of a person to whom sub-section (2) does not apply—on the commencement date,

and of each subsequent period of 3 years, lodge with the Commission a statement in respect of that period of 3 years setting out such information as is prescribed.

(4) The Commission may, on the application of a registered company auditor or a registered liquidator made before the expiration of the period for lodging a statement under sub-section (2) or (3), in its discretion extend, or further extend, that period.

(5) The Commission may, by notice in writing served on the person, require a person who is registered as a liquidator of a specified corporation to lodge with the Commission, within a period specified in the notice, a statement in respect of a period specified in the notice setting out such information as is


 

prescribed and, where such a notice is served on a person, the person shall lodge the statement as required by the notice.

Cancellation or suspension of registration

27. (1) Where a person who is registered as an auditor, as a liquidator, as a liquidator of a specified corporation or as an official liquidator under this Division requests the Commission to cancel his registration, the Commission may, in its discretion, cancel the registration of that person as an auditor, as a liquidator, as a liquidator of that corporation or as an official liquidator, as the case may be.

(2) The Commission may, at any time, in its discretion, cancel or suspend the registration as an official liquidator of a person who is so registered and the decision of the Commission cancelling or suspending the registration of a person as an official liquidator is final.

(3) Where the Commission decides to exercise its power under sub-section (2) to cancel or suspend the registration of a person as an official liquidator, the Commission shall, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(4) The Board may, if it is satisfied on application by the Commission—

(a) that a person registered as an auditor under this Division—

(i)    is an insolvent under administration;

(ii)   is, by virtue of sub-section 227 (2), prohibited, without the leave of the Court, from acting as a director or promoter of, or from being concerned in or taking part in the management of, a corporation;

(iii)  is prohibited, by virtue of an order made under section 562 or under any provision of a law, or a previous law, of a State or of another Territory that corresponds with that section, from acting as a director of, or from being concerned in or taking part in the management of, a company or other corporation;

(iv)  is incapable, by reason of mental infirmity, of managing his affairs;

(v)   has failed to comply with the provisions of section 26; or

(vi)  has ceased to be resident in Australia; or

(b) that a person registered as an auditor under this Division has failed, whether within or outside the Territory, to carry out adequately and properly the duties of an auditor or is otherwise not a fit and proper person to remain registered as an auditor,

by order, cancel, or suspend for a specified period, the registration of that person as an auditor.


 

(5) The Board may, if it is satisfied on application by the Commission—

(a) that a person registered as a liquidator under this Division—

(i)    is an insolvent under administration;

(ii)   is, by virtue of sub-section 227 (2), prohibited, without the leave of the Court, from acting as a director or promoter of, or from being concerned in or taking part in the management of, a corporation;

(iii)  is prohibited, by virtue of an order made under section 562 or under any provision of a law, or a previous law, of a State or of another Territory that corresponds with that section, from acting as a director of, or from being concerned in or taking part in the management of, a company or other corporation;

(iv)  is incapable, by reason of mental infirmity, of managing his affairs;

(v)   has failed to comply with the provisions of section 26; or

(vi)  has ceased to be resident in Australia; or

(b) that a person registered as a liquidator under this Division has failed, whether within or outside the Territory, to carry out adequately and properly the duties of a liquidator or is otherwise not a fit and proper person to remain registered as a liquidator,

by order, cancel, or suspend for a specified period, the registration of that person as a liquidator.

(6) The Board may, if it is satisfied on application by the Commission—

(a) that a person registered under this Division as the liquidator of a specified corporation—

(i)    is an insolvent under this administration;

(ii)   is, by virtue of sub-section 227 (2), prohibited, without the leave of the Court, from acting as a director or promoter of, or from being concerned in or taking part in the management of, a corporation;

(iii)  is prohibited, by virtue of an order made under section 562 or under any provision of a law, or a previous law, of a State or of another Territory that corresponds with that section, from acting as a director of, or from being concerned in or taking part in the management of, a company or other corporation;

(iv)  is incapable, by reason of mental infirmity, of managing his affairs;

(v)   has failed to comply with a requirement made of him under sub-section 26 (5); or

(vi)  has ceased to be resident in Australia; or

(b) that a person registered under this Division as a liquidator of a specified corporation has failed, whether within or outside the Territory, to carry out adequately and properly the duties of a liquidator in


 

respect of the winding up of that corporation or is otherwise not a fit and proper person to remain registered as a liquidator of that corporation,

by order, cancel, or suspend for a specified period, the registration of that person as a liquidator of that corporation.

(7) Where the Commission makes an application to the Board under sub-section (4) in respect of a person who is also registered as a liquidator or as a liquidator of a specified corporation, the Board may, in addition to making an order under that sub-section, if it is satisfied as to any of the matters specified in paragraph (5) (a) or (b) or (6) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of that person as a liquidator or as a liquidator of that corporation, as the case may be, and, where the Board makes such an order, the order shall, for the purposes of this section, be deemed to have been made under sub-section (5) or (6), as the case may be.

(8) Where the Commission makes an application to the Board under sub-section (5) in respect of a person who is also registered as an auditor or as a liquidator of a specified corporation, the Board may, in addition to making an order under that sub-section, if it is satisfied as to any of the matters specified in paragraph (4) (a) or (b) or (6) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of that person as an auditor or as a liquidator of that corporation, as the case may be, and, where the Board makes such an order, the order shall, for the purposes of this section, be deemed to have been made under sub-section (4) or (6), as the case may be.

(9) Where the Commission makes an application to the Board under sub-section (6) in respect of a person who is also registered as an auditor or as a liquidator, the Board may, in addition to making an order under that sub-section, if it is satisfied as to any of the matters specified in paragraph (4) (a) or (b) or (5) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of that person as an auditor or as a liquidator, as the case may be, and, where the Board makes such an order, the order shall, for the purposes of this section, be deemed to have been made under sub-section (4) or (5), as the case may be.

(10) Where, on application made by the Commission under this section in relation to a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation, the Board is satisfied of the matters set out in paragraph (4) (b), (5) (b) or (6) (b), as the case may be, the Board may, in addition to or instead of cancelling or suspending the registration of that person as an auditor, liquidator or liquidator of that corporation, as the case may be, deal with that person in one or more of the following ways:

(a) by imposing on that person a penalty not exceeding $1,000;

(b) by admonishing or reprimanding that person;

(c) by requiring that person to give an undertaking to engage in, or to refrain from engaging in, specified conduct,

and if a person fails to give an undertaking when required to do so under paragraph (c) or contravenes or fails to comply with an undertaking given pursuant to a requirement under that paragraph, the Board may, subject to


 

sub-section (11), cancel, or suspend for a specified period, the registration of the person as an auditor, as a liquidator or as a liquidator of a specified corporation, as the case may be.

(11) The Board shall not—

(a) cancel or suspend the registration of a person as an auditor, as a liquidator, or as a liquidator of a specified corporation; or

(b) deal with a person in any of the ways mentioned in paragraphs (10) (a), (b) and (c),

unless the Board has afforded the person an opportunity to appear at a hearing before the Board and to make submissions and give evidence to the Board in relation to the matter.

(12) Where—

(a) the Board conducts a hearing in relation to a person in accordance with sub-section (11); and

(b) the Board cancels or suspends the registration of the person as an auditor, as a liquidator or as a liquidator of a specified corporation, or deals with the person in any of the ways mentioned in paragraph (10) (a), (b) or (c),

the Board may require that person to pay an amount specified by the Board, being all or part of—

(c) the costs of and incidental to that hearing;

(d) the costs of the Commission in relation to that hearing; or

(e) the costs mentioned in paragraph (c) and the costs mentioned in paragraph (d).

(13) Where—

(a) the Board conducts a hearing in relation to a person in accordance with sub-section (11); and

(b) the Board refuses to make an order cancelling or suspending the registration of the person as an auditor, as a liquidator or as a liquidator of a specified corporation, as the case requires, and does not deal with the person in any of the ways mentioned in paragraphs (10) (a), (b) and (c),

the Board may require the Commission to pay an amount specified by the Board, being all or part of—

(c) the costs of and incidental to that hearing;

(d) the costs of the person in relation to that hearing; or

(e) the costs mentioned in paragraph (c) and the costs mentioned in paragraph (d).

(14) The Board may exercise any of its powers under this section in relation to a person as a result of conduct engaged in by that person whether or not that conduct constituted or might constitute an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct.


 

(15) Where the Board decides to exercise any of its powers under this section in relation to a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation (other than the power to order the payment of costs by that person under sub-section (12)), the Board shall, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(16) A decision of the Commission under sub-section (1) to cancel the registration of a person as an auditor, as a liquidator, as a liquidator of a specified corporation or as an official liquidator comes into effect forthwith upon the making of the decision.

(17) A decision of the Commission under sub-section (2) to cancel the registration of a person as an official liquidator comes into effect at the expiration of the day on which notice of the decision is given to the person in accordance with sub-section (3).

(18) Subject to sub-section (19), a decision of the Board to cancel or suspend the registration of a person as an auditor, as a liquidator or as a liquidator of a specified corporation comes into effect at the expiration of the day on which notice of the decision is given to the person in accordance with sub-section (15).

(19) The Board may, in its discretion, postpone the coming into effect of a decision referred to in sub-section (18) to enable the Commission or the person concerned to appeal against the decision and, where the Board so postpones the coming into effect of a decision, the decision comes into effect—

(a) where neither the Commission nor the person concerned appeals against the decision pursuant to sub-section (26) or (27) within the prescribed period—at the expiration of that period;

(b) where either the Commission or the person concerned appeals against the decision pursuant to sub-section (26) or (27)—

(i) if the Commission or the person concerned, as the case may be, withdraws the appeal before it is determined by the Court—upon the withdrawal of the appeal; or

(ii) if the Commission or the person concerned, as the case may be, does not so withdraw the appeal and the Court confirms or modifies the decision—at a time fixed by the Court; or

(c) where the Commission and the person concerned both appeal against the decision pursuant to sub-sections (26) and (27)—

(i) if both the Commission and the person concerned withdraw the appeals before they are determined by the Court—upon the withdrawal of the later of the appeals to be withdrawn; or

(ii) if either the Commission or the person concerned does not so withdraw its or his appeal, or neither the Commission nor the


 

person concerned withdraws its or his appeal, and the Court confirms or modifies the decision—at a time fixed by the Court.

(20) A person whose registration as an auditor, as a liquidator, as a liquidator of a specified corporation or as an official liquidator is suspended shall, except for the purposes of sub-section 23 (2), 24 (3) or 26 (2), (3) or (5), be deemed not to be registered as an auditor, liquidator, liquidator of that corporation or official liquidator, as the case may be, so long as the registration is suspended.

(21) The amount of a penalty imposed on a person under sub-section (10) may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

(22) Where—

(a) under sub-section (12), the Board requires a person to pay all or part of the costs of and incidental to a hearing conducted by the Board in relation to that person (whether or not the Board also requires that person to pay all or part of the costs of the Commission in relation to that hearing); or

(b) under sub-section (13), the Board requires the Commission to pay all or part of the costs of and incidental to a hearing conducted by the Board on the application of the Commission (whether or not the Board also requires the Commission to pay all or part of the costs of the person in relation to whom the hearing was conducted),

the amount of the costs of and incidental to the hearing so required to be paid by that person or by the Commission, as the case may be, may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

(23) Where, under sub-section (12), the Board requires a person to pay all or part of the costs of the Commission in relation to a hearing conducted by the Board in relation to that person (whether or not the Board also requires that person to pay all or part of the costs of and incidental to the hearing), the amount of the costs of the Commission so required to be paid by that person may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

(24) Where, under sub-section (13), the Board requires the Commission to pay all or part of the costs of a person in relation to a hearing conducted by the Board in relation to that person (whether or not the Board also requires the Commission to pay all or part of the costs of and incidental to the hearing), the amount of the costs of that person so required to be paid by the Commission may be recovered in a court of competent jurisdiction as a debt due to that person.

(25) Evidence of any statement made by a person at a hearing held for the purposes of this section in relation to that person shall not be admitted in evidence in criminal proceedings against that person other than proceedings in respect of the falsity of the statement.


 

(26) A person (other than the Commission) aggrieved by a decision of the Board under this section may, within such period as is prescribed, appeal to the Court, which may confirm, reverse or modify the decision and make such orders and give such directions in the matter as it thinks fit.

(27) The Commission may, within such period as is prescribed, appeal to the Court against a decision of the Board under this section, (including a refusal to make an order under this section) and the Court may confirm, reverse or modify the decision and make such orders and give such directions in the matter as it thinks fit.

(28) In this section, “Board” means the Companies Auditors and Liquidators Disciplinary Board.

Certain persons not to apply for registration as auditor or liquidator

28. (1) A person who has applied for registration as an auditor or liquidator under the provisions of a law of a participating State or participating Territory that correspond with this Division is not entitled to apply to the Commission for registration as an auditor or liquidator, as the case may be, under this Act before he has been notified of the results of his application.

(2) A person whose application for registration as an auditor or liquidator under the provisions of a law of a participating State or participating Territory that correspond with this Division has been refused is not entitled, without the leave of the Supreme Court of that State or Territory, to apply to the Commission for registration as an auditor or liquidator, as the case may be, under this Act.

(3) A person whose registration as an auditor or liquidator has been cancelled or suspended under the provisions of a law of a participating State or participating Territory that correspond with section 27 (other than sub-section (1)) is not entitled, without the leave of the Supreme Court of that State or Territory, to apply to the Commission for registration as an auditor or liquidator, as the case may be, under this Act.

Certain persons deemed to be registered under this Act

29. (1) A person who is registered as an auditor, as a liquidator or as an official liquidator under the provisions of a law of a participating State or participating Territory that correspond with this Division shall be deemed to be registered as an auditor, as a liquidator or as an official liquidator, as the case may be, under this Act.

(2) A person who is deemed to be registered as an auditor under the provision of a law of a participating State or participating Territory that corresponds with section 19 shall be deemed to be registered as an auditor under this Act.


 

Auditors and other persons to enjoy qualified privilege in certain circumstances

30. (1) An auditor is not, in the absence of malice on his part, liable to any action for defamation at the suit of any person in respect of—

(a) any statement that he makes, orally or in writing, in the course of his duties as auditor;

(b) any statement that he makes, orally or in writing, on a report of the directors under section 270 or the corresponding provision of a law of a participating State or of a participating Territory or on any statement, report or other document that is deemed, for any purpose, to be part of the first-mentioned report; or

(c) the giving of any notice, or the sending of any copy of accounts, group accounts or a report, to the Commission under sub-section 285 (9) or (10).

(2) A person is not, in the absence of malice on his part, liable to any action for defamation at the suit of any person—

(a) in respect of the publishing of any document prepared by an auditor in the course of his duties and required by or under this Act, or required by or under the corresponding law of a participating State or of a participating Territory, to be lodged with the Commission, whether or not the document has been so lodged; or

(b) in respect of the publishing of any statement made by an auditor as mentioned in sub-section (1).

(3) This section does not limit or affect any right, privilege or immunity that an auditor or other person has, apart from this section, as defendant in an action for defamation.

Division 3Registers and Registration of Documents

Registers

31. (1) The Commission shall, subject to this Act, keep such registers as it considers necessary in such form as it thinks fit.

(2) A person may—

(a) inspect any document lodged with the Commission or with the Registrar of Companies, not being—

(i) an application under section 17;

(ii) a document lodged under section 25; or

(iii) a document that has been destroyed or otherwise disposed of;

(b) require a certificate of the incorporation of any company or any other certificate authorized by this Act to be given by the Commission; or

(c) require a copy of or extract from any document that he is entitled to inspect pursuant to paragraph (a) or any certificate referred to in paragraph (b) to be given, or given and certified, by the Commission.

(3) If a reproduction or transparency of a document or certificate is produced for inspection, a person is not entitled pursuant to paragraph (2) (a) to require the production of the original of that document or certificate.


 

(4) The reference in paragraph (2) (c) to a document or certificate includes, where a reproduction or transparency of that document or certificate has been incorporated with a register kept by the Commission, a reference to that reproduction or transparency and, where such a reproduction or transparency has been so incorporated, a person is not entitled pursuant to that paragraph to a copy of or extract from the original of that document or certificate.

(5) A copy of or extract from any document lodged with the Commission or with the Registrar of Companies, and certified by the Commission, is, in any proceedings, admissible in evidence as of equal validity with the original document.

(6) The reference in sub-section (5) to a document includes, where a reproduction or transparency of that document has been incorporated with a register kept by the Commission, a reference to that reproduction or transparency.

(7) In any proceedings—

(a) a certificate by the Commission that, at a date or during a period specified in the certificate, no company was registered under this Act or a corresponding previous law of the Territory by a name specified in the certificate shall be received as prima facie evidence that at that date or during that period, as the case may be, no company was registered by that name under this Act or any corresponding previous law of the Territory; and

(b) a certificate by the Commission that a requirement of this Act specified in the certificate—

(i)    had or had not been complied with at a date or within a period specified in the certificate; or

(ii)   had been complied with at a date specified in the certificate but not before that date,

shall be received as prima facie evidence of matters specified in the certificate.

(8) If the Commission is of opinion that a document submitted for lodgment with the Commission—

(a) contains matter contrary to law;

(b) contains matter that, in a material particular, is false or misleading in the form or context in which it is included;

(c) by reason of an omission or misdescription has not been duly completed;

(d) does not comply with the requirements of this Act; or

(e) contains an error, alteration or erasure,

the Commission may refuse to register or receive the document and may request—


 

(f) that the document be appropriately amended or completed and re-submitted;

(g) that a fresh document be submitted in its place; or

(h) where the document has not been duly completed, that a supplementary document in the prescribed form be lodged.

(9) The Commission may require a person who submits a document for lodgment with the Commission to produce to the Commission such other document, or to furnish to the Commission such information, as the Commission thinks necessary in order to form an opinion whether it may refuse to receive or register the document.

(10) The Commission may, if in the opinion of the Commission it is no longer necessary or desirable to retain them, destroy or dispose of—

(a) in relation to a corporation—

(i)    any return of allotment of shares for cash that has been lodged for not less than 2 years;

(ii)   any annual return or balance-sheet that has been lodged for not less than 7 years or any document creating or evidencing a charge, or the complete or partial satisfaction of a charge, where a memorandum of satisfaction of the charge has been registered for not less than 7 years; or

(iii)  any other document (other than the constituent documents or any other document affecting them) that has been lodged or registered for not less than 15 years;

(b) in relation to a corporation that has been dissolved or has ceased to be registered for not less than 15 years, any document lodged or registered; or

(c) any document a transparency of which has been incorporated with a register kept by the Commission.

(11) If a corporation or other person, having made default in complying with—

(a) any provision of this Act or of any other law that requires the lodging in any manner with the Commission of any return, account or other document or the giving of notice to the Commission of any matter; or

(b) any request of the Commission to amend or complete and resubmit any document or to submit a fresh document,

fails to make good the default within 14 days after the service on the corporation or person of a notice requiring it to be done, the Court or any court of summary jurisdiction may, on an application by any member or creditor of the corporation or by the Commission, make an order directing the corporation or any officer of the corporation or the person to make good the default within such time as is specified in the order.

(12) Any such order may provide that all costs of and incidental to the application shall be borne by the corporation or by any officers of the corporation responsible for the default or by the person.


 

(13) A corporation that, or an officer of a corporation or other person who, contravenes or fails to comply with an order under sub-section (11) is guilty of an offence.

Penalty: $5,000 or imprisonment for 1 year, or both.

(14) Nothing in this section prejudices the operation of any law imposing penalties on a corporation or its officers or on another person in respect of a default mentioned in sub-section (11).

Relodging of lost registered documents

32. (1) If, in the case of a corporation incorporated or registered in the Territory, any of the constituent documents of, or any other document relating to, the corporation lodged with the Commission or the Registrar of Companies has been lost or destroyed, any person may apply to the Commission for leave to lodge with the Commission a copy of the document as originally lodged.

(2) Where such an application is made, the Commission may direct that notice of the application be given to such persons and in such manner as it thinks fit.

(3) Whether or not an application has been made to the Commission under sub-section (1), the Commission, upon being satisfied—

(a) that an original document has been lost or destroyed;

(b) of the date of the lodging of that document; and

(c) that a copy of that document produced to the Commission is a correct copy,

may certify upon the copy that it is so satisfied and grant leave for the copy to be lodged in the manner required by law in respect of the original.

(4) Upon the lodgment the copy has, and shall be deemed to have had from such date as is mentioned in the certificate as the date of the lodging of the original, the same force and effect for all purposes as the original.

(5) The Court may, by order made upon application by any person aggrieved and after notice to any other person as directed by the Court, confirm, vary or rescind the certificate, and the order may be lodged with the Commission and shall be registered by it, but no payments, contracts, dealings, acts or things made, had or done in good faith before the registration of the order and upon the faith of and in reliance upon the certificate shall be invalidated or affected by any such variation or rescission.

(6) Where a transparency of a document referred to in sub-section (1) has been incorporated with a register kept by the Commission and is lost or destroyed as referred to in that sub-section, the foregoing provisions of this section have effect as if the document of which it is a transparency had been so lost or destroyed.


 

PART III—CONSTITUTION OF COMPANIES

Division 1Incorporation

Formation of companies

33. (1) Subject to this Act, any 5 or more persons, or, where the company to be formed will be a proprietary company, any 2 or more persons, associated for any lawful purpose may, by subscribing their names to a memorandum and complying with the requirements as to registration, form an incorporated company.

(2) A company may be—

(a) a company limited by shares;

(b) a company limited by guarantee;

(c) a company limited both by shares and by guarantee;

(d) an unlimited company; or

(e) in the case of a mining company, a no liability company.

(3) Subject to sub-section (4)—

(a) an association or partnership consisting of more than 20 persons that has for its object the acquisition of gain by the association or partnership or individual members of the association or partnership shall not be formed unless it is incorporated under this Act or is formed pursuant to another Act or letters patent; and

(b) a person who participates in the purported formation of an association or partnership in contravention of paragraph (a) is guilty of an offence.

(4) Where a profession or calling is declared by the Ministerial Council by notice published in the Gazette to be a profession or calling that may be carried on by an unincorporated association or partnership consisting of not more than the number of persons specified in the notice, an association or partnership formed for the purpose of carrying on that profession or calling and consisting of not more than that number of persons may carry on that profession or calling notwithstanding that it is not incorporated under this Act and is not formed pursuant to another Act or letters patent.

Proprietary companies

34. (1) A company having a share capital (other than a no liability company) may be incorporated as a proprietary company if a provision of its memorandum or articles—

(a) restricts the right to transfer its shares;

(b) limits to not more than 50 the number of its members (counting joint holders of shares as one person and not counting any person in the employment of the company or of its subsidiary or any person who, while previously in the employment of the company or of its subsidiary was, and thereafter has continued to be, a member of the company);


 

(c) prohibits any invitation to the public to subscribe for, and any offer to the public to accept subscriptions for, any shares in, or debentures of, the company; and

(d) prohibits any invitation to the public to deposit money with, and any offer to the public to accept deposits of money with, the company for fixed periods or payable at call, whether bearing or not bearing interest.

(2) Where, upon the commencement of this Act, neither the memorandum nor the articles of a company that is a proprietary company by virtue of paragraph (a) of the definition of “proprietary company” in sub-section 5 (1) contains or contain the restrictions, limitations and prohibitions required by sub-section (1) of this section to be included in the memorandum or articles of a company that may be incorporated as a proprietary company, the articles of the company shall be deemed to include each such restriction, limitation or prohibition that is not so included and a restriction on the right to transfer its shares that is so deemed to be included in its articles shall be deemed to be a restriction that prohibits the transfer of shares except to a person approved by the directors of the company.

(3) Where a restriction, limitation or prohibition that is deemed to be included in the articles of a company under sub-section (2) is inconsistent with any provision already included in the memorandum or articles of the company, that restriction, limitation or prohibition shall, to the extent of the inconsistency, prevail.

(4) A proprietary company may, by special resolution, alter any restriction on the right to transfer its shares included, or deemed to be included, in its memorandum or articles or any limitation on the number of its members included, or deemed to be included, in its memorandum or articles, but not so that the memorandum and articles of the company cease to include the limitation required by paragraph (1) (b) to be included in the memorandum or articles of a company that may be incorporated as a proprietary company.

Registration and incorporation

35. (1) Persons desiring the incorporation of a company shall lodge the memorandum and the articles (if any) of the proposed company with the Commission together with the other documents required to be lodged by or under this Act and the Commission shall, subject to this Act, register the company by registering the memorandum and articles (if any).

(2) On the registration of the memorandum, the Commission shall certify under its common seal that the company is, on and from the date specified in the certificate, incorporated and that the company is—

(a) a company limited by shares;

(b) a company limited by guarantee;

(c) a company limited both by shares and by guarantee;

(d) an unlimited company; or

(e) a no liability company,

as the case may be, and, where applicable, that it is a proprietary company.


 

(3) The Commission shall keep a copy of a certificate under sub-section (2) and sub-sections 31 (2) and (5) apply to that copy as if it were a document lodged with the Commission.

(4) On and from the date of incorporation specified in the certificate of incorporation, but subject to this Act, the subscribers to the memorandum, together with such other persons as from time to time become members of the company, are an incorporated company by the name set out in the memorandum.

(5) The company—

(a) is capable forthwith of performing all the functions of a body corporate;

(b) is capable of suing and being sued;

(c) has perpetual succession and shall have a common seal; and

(d) has power to acquire, hold and dispose of property.

(6) The members of the company have such liability as members of the company to contribute to the property of the company in a winding up of the company as is provided by this Act.

(7) The subscribers to the memorandum shall be deemed to have agreed to become members of the company and, on the incorporation of the company, each subscriber becomes such a member and his name shall be entered in the register of members of the company.

(8) Each other person who agrees to become a member of the company and whose name is entered in the register of members of the company becomes a member of the company.

(9) A company shall not be registered under sub-section (1) unless the name under which the company is proposed to be registered is reserved under section 40 in respect of the company.

Membership of holding company

36. (1) A corporation cannot be a member of a company that is its holding company, and any allotment or transfer of shares in a company to its subsidiary is void.

(2) Any purported acquisition of units of shares in a company that is a holding company by its subsidiary is void.

(3) Neither sub-section (1) nor (2) applies where—

(a) the subsidiary is concerned as a personal representative; or

(b) the subsidiary is concerned as a trustee and—

(i)    the holding company or a subsidiary of the holding company is not beneficially interested under the trust; or

(ii)   the holding company or a subsidiary of the holding company is beneficially interested under the trust only by way of a security


 

given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the holding company or a subsidiary of the holding company.

(4) This section does not prevent a subsidiary that was, at the commencement of the Companies Ordinance 1962, a member of its holding company from continuing to be a member but, subject to sub-section (3), the subsidiary does not have a right to vote at meetings of the holding company or of any class of members of the holding company.

(5) This section does not prevent a subsidiary from continuing to be a member of its holding company if, at the time when it becomes a subsidiary of the holding company, it already holds shares in that holding company, but, subject to sub-section (3)—

(a) the subsidiary does not have a right to vote at meetings of the holding company or of any class of members of the holding company; and

(b) the subsidiary shall, within the period of 12 months or such longer period as the Court may allow after becoming the subsidiary of its holding company, dispose of all of its shares in the holding company.

(6) Subject to sub-section (3), sub-sections (1), (2), (4) and (5) apply in relation to a nominee for a corporation that is a subsidiary as if references in those sub-sections to such a corporation included references to a nominee for it.

(7) In relation to a holding company that is either a company limited by guarantee or an unlimited company, the reference in this section to shares shall, whether or not the holding company has a share capital, be construed as including a reference to the interest of its members as such, whatever the form of that interest.

Requirements as to memorandum

37. (1) The memorandum of a company shall be printed, divided into numbered paragraphs, dated, and signed by the persons desiring the formation of the company, and shall state, in addition to other requirements—

(a) the name of the company;

(b) the objects of the company;

(c) unless the company is an unlimited company, the amount of share capital (if any) with which the company proposes to be registered and the division of that share capital into shares of a fixed amount;

(d) if the company is a company limited by shares, that the liability of the members is limited;

(e) if the company is a company limited by guarantee or both by shares and by guarantee, that the liability of the members is limited and that each member undertakes to contribute to the property of the company, in the event of its being wound up while he is a member or within one year after he ceases to be a member, for payment of the debts and


 

liabilities of the company contracted before he ceases to be a member and of the costs, charges and expenses of winding up and for adjustment of the rights of the contributories among themselves, such amount as may be required not exceeding a specified amount in addition to the amount (if any) unpaid on any shares held by him;

(f) if the company is an unlimited company, that the liability of the members is unlimited;

(g) if the company is a no liability company, that the acceptance of shares in the company does not constitute a contract to pay calls in respect of the shares or to make any contribution towards the debts and liabilities of the company;

(h) the full names, addresses and occupations of the subscribers to the memorandum being natural persons, and the corporate names, and the addresses of the registered or principal offices, of the subscribers to the memorandum being corporations; and

(j) that those subscribers are desirous of being formed into a company pursuant to the memorandum and (where the company is to have a share capital) respectively agree to take the number of shares in the capital of the company set out opposite their respective names.

(2) Each subscriber to the memorandum—

(a) shall, if the company is to have a share capital, state in words—

(i) the number of shares (being not less than one) that he agrees to take; and

(ii) if the shares in the company are divided into classes, the class or the respective classes in which the shares that he agrees to take are included; and

(b) whether or not the company is to have a share capital, shall sign the memorandum in the presence of at least one witness (not being another subscriber).

(3) A witness to the signature of a subscriber to the memorandum shall attest the signature and add his address.

(4) A reference in sub-section (1) or (2) to the signing of the memorandum of a company shall, in the case of the signing by a person being a body corporate, be construed as including a reference to the affixing in accordance with the constituent documents of the body corporate of the common or official seal of the body corporate to the memorandum and, where a body corporate signs the memorandum by so affixing its common or official seal, sub-section (2) does not require a witness to the affixing of that seal.

(5) A statement in the memorandum of a company limited by shares that the liability of members is limited means that the liability of the members is limited to the amount (if any) unpaid on the shares respectively held by them.


 

Division 2Names

Interpretation

38. (1) For the purposes of this Division a name shall be taken to be available for reservation in the Territory unless the name—

(a) is a name that is reserved or registered under this Division or, in the opinion of the Commission, so closely resembles such a name as to be likely to be mistaken for it;

(b) is, in the opinion of the Commission, undesirable; or

(c) is a name, or a name of a kind, that the Ministerial Council has directed the Commission not to accept for registration.

(2) Notwithstanding sub-section (1), a name that is a name, or a name of a kind, that the Ministerial Council has directed the Commission not to accept for registration shall be taken to be available for reservation in the Territory in relation to a corporation or intended corporation if the Ministerial Council has consented to the name being reserved or registered under this Division in respect of that corporation or intended corporation.

(3) For the purposes of this Division, a name shall be taken to be available for reservation in a participating State or a participating Territory if it is available for reservation in that State or Territory under the provision of a law of that State or Territory that corresponds with this section.

(4) Where the Ministerial Council gives a direction to the Commission in accordance with paragraph (1) (c), the Commission shall cause particulars of the direction to be published in the Gazette.

Names of particular classes of companies

39. (1) A limited company shall have the word “Limited” or the abbreviation “Ltd.” as part of and at the end of its name.

(2) A no liability company shall have the words “No Liability” of the abbreviation “N.L.” as part of and at the end of its name.

(3) A proprietary company shall have the word “Proprietary” or the abbreviation “Pty.” as part of its name, inserted immediately before the word “Limited” or before the abbreviation “Ltd.” or, in the case of an unlimited company, at the end of its name.

(4) A description of a company shall not be taken to be inadequate or incorrect by reason of the use of—

(a) the abbreviation “Co.” or “Coy.” in lieu of the word “Company” contained in the name of the company;

(b) the abbreviation “Pty.” in lieu of the word “Proprietary” contained in the name of the company;

(c) the abbreviation “Ltd.” in lieu of the word “Limited” contained in the name of the company;

(d) the symbol “&” in lieu of the word “and” contained in the name of the company;


 

(e) the abbreviation “N.L.” in lieu of the words “No Liability” contained in the name of the company; or

(f) any of those words in lieu of the corresponding abbreviation or symbol contained in the name of the company.

Reservation and registration of name of intended company

40. (1) A person may apply in the prescribed form to the Commission for the reservation in the Territory of a name set out in the application as the name of an intended company.

(2) Subject to sub-section (3), if—

(a) the Commission is satisfied that an application made under sub-section (1) for the reservation of a name is made in good faith; and

(b) the name is available for reservation in the Territory,

the Commission shall reserve the name for a period of 2 months from the date of lodgment of the application, and, where the Commission so reserves the name, the name shall be deemed to have been reserved from that date.

(3) Where—

(a) an application is made under sub-section (1) for the reservation of a name;

(b) the application states that it is desired to reserve that name in a participating State or participating Territory; and

(c) the name is not available for reservation in that State or Territory, the Commission shall not reserve the name.

(4) Where—

(a) a name is reserved under this section in respect of an intended company; and

(b) the Commission registers the company by that name under section 35,

the Commission shall register the name of the company in the Territory and, where the Commission so registers the name, the name ceases to be reserved under this section.

(5) Where a name has been reserved under this section in respect of an intended company and—

(a) the name was not available for reservation in the Territory or in a State or Territory specified in the application for reservation as mentioned in paragraph (3) (b); or

(b) the person who applied for the reservation of the name notifies the Commission in writing that he no longer desires the name to be reserved,

the Commission shall cancel the reservation of the name.

(6) The reservation of a name under this section in respect of an intended company does not of itself entitle the intended company to be registered by that name.


 

(7) The registration of a name under this section remains in force until the registration is cancelled by the Commission.

Reservation of name of intended recognized company

41. Where—

(a) a name has been reserved in respect of an intended recognized company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 40 (2); and

(b) the application for the reservation of that name stated that it was desired to reserve the name in the Territory,

the Commission shall reserve that name in the Territory and, where the name is so reserved, the reservation remains in force until that name ceases to be reserved, or until the reservation of that name is cancelled by the Commission, under the provision of the law of that State or Territory that corresponds with section 40.

Registration of name of recognized company

42. Where—

(a) a name has been reserved in respect of an intended recognized company under section 41; and

(b) the name is registered in respect of that recognized company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 40 (4),

the Commission shall register that name in the Territory and, where the name is so registered, the registration remains in force until it is cancelled by the Commission under this Division or until the registration of that name in the State or Territory referred to in paragraph (b) is cancelled under the law of that State or Territory.

Reservation and registration of proposed new name of company

43. (1) A company may apply in the prescribed form to the Commission for the reservation in the Territory of a name set out in the application as the name to which the company proposes to change its name.

(2) Subject to sub-section (3), if—

(a) the Commission is satisfied that an application made under sub-section (1) for the reservation of a name is made in good faith; and

(b) the name is available for reservation in the Territory,

the Commission shall reserve the name for a period of 2 months from the date of lodgment of the application, and, where the Commission so reserves the name, the name shall be deemed to have been reserved from that date.

(3) Where—

(a) an application is made under sub-section (1) for the reservation of a name;

(b) the application states that the present name of the company is registered in a participating State or participating Territory; and


 

(c) the name in respect of which the application is made is not available for reservation in that State or Territory, the Commission shall not reserve the name.

(4) Where—

(a) a name is reserved under this section in respect of a company; and

(b) the company changes its name to that reserved name (in this sub-section referred to as the “new name”) under section 65,

the Commission shall register the new name of the company in the Territory and, where the Commission so registers the new name—

(c) the new name ceases to be reserved under this section; and

(d) the Commission shall cancel the registration under this Division of the name by which the company was registered before it changed its name to the new name.

(5) Where a name has been reserved under sub-section (2) in respect of a company and—

(a) the name was not available for reservation in the Territory or in a State or Territory specified in the application for reservation as mentioned in paragraph (3) (b); or

(b) the company notifies the Commission in writing that it no longer desires the name to be reserved,

the Commission shall cancel the reservation of the name.

(6) The reservation of a name under this section in respect of a company does not of itself entitle the company to change its name to that name.

(7) The registration of a name under this section remains in force until the registration is cancelled by the Commission.

Reservation of proposed new name of recognized company

44. Where—

(a) a name has been reserved in respect of a recognized company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 43 (2); and

(b) the application for the reservation of that name states that the present name of the recognized company is registered in the Territory,

the Commission shall reserve the name referred to in paragraph (a) in the Territory and, where the name is so reserved, the reservation remains in force until the name ceases to be reserved, or until the reservation of the name is cancelled by the Commission, under the provision of the law of that State or Territory that corresponds with section 43.

Registration of new name of recognized company

45. Where—

(a) a name has been reserved in respect of a recognized company under section 44; and


 

(b) the name is registered in respect of that recognized company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 43 (4),

the Commission shall register that name in the Territory and, where the name is so registered, the registration remains in force until it is cancelled by the Commission under this Division or until the registration of that name in the State or Territory referred to in paragraph (b) is cancelled under the law of that State or Territory.

Reservation and registration of name of intended foreign company or foreign company

46. (1) A person may apply in the prescribed form to the Commission for the reservation in the Territory of a name set out in the application as the name of an intended foreign company that is proposed to be registered as a foreign company under Division 5 of Part XIII.

(2) A foreign company that proposes to become registered in the Territory under Division 5 of Part XIII may apply in the prescribed form to the Commission for the reservation in the Territory of a name set out in the application as the name by which the foreign company proposes to become so registered.

(3) Subject to sub-section (4), if—

(a) the Commission is satisfied that an application made under sub-section (1) or (2) for the reservation of a name is made in good faith; and

(b) the name is available for reservation in the Territory,

the Commission shall reserve the name for a period of 2 months from the date of lodgment of the application, and, where the Commission so reserves the name, the name shall be deemed to have been reserved from that date.

(4) Where—

(a) an application is made under sub-section (1) or (2) for the reservation of a name in respect of an intended foreign company that is to be formed, or a foreign company that was formed, outside Australia and the external Territories;

(b) the application states that it is desired to reserve that name in a participating State or participating Territory; and

(c) the name is not available for reservation in that State or Territory, the Commission shall not reserve the name.

(5) Where—

(a) a name is reserved under this section in respect of an intended foreign company or a foreign company; and

(b) the intended foreign company is formed and is registered, or the foreign company is registered, by that name as a foreign company under Division 5 of Part XIII,

the Commission shall register the name of the foreign company in the Territory and, where the Commission so registers the name, the name ceases to be reserved under this section.


 

(6) Where a name has been reserved under this section in respect of an intended foreign company or a foreign company and—

(a) the name was not available for reservation in the Territory or in a State or Territory specified in the application for reservation as mentioned in paragraph (4) (b); or

(b) the person who applied for the reservation of the name or the foreign company notifies the Commission in writing that he or it, as the case may be, no longer desires the name to be reserved,

the Commission shall cancel the reservation of the name.

(7) The reservation of a name under this section in respect of an intended foreign company or a foreign company does not of itself entitle the intended foreign company or the foreign company to be registered by that name under Division 5 of Part XIII.

(8) The registration of a name under this section remains in force until the registration is cancelled by the Commission.

(9) Notwithstanding anything in paragraph 38 (1) (a), a name shall not be taken, for the purposes of this section, not to be available for reservation in the Territory or in a State or another Territory by reason only that the name is already reserved or registered under this Division or under the provisions of a law of the State or Territory that correspond with this Division, as the case may be, in respect of the foreign company that has applied for the reservation of the name under this section.

Reservation of name of intended recognized foreign company or recognized foreign company

47. Where—

(a) a name has been reserved under the provision of a law of a participating State or participating Territory that corresponds with sub-section 46 (3) in respect of an intended foreign company that is to be formed, or a foreign company that was formed, outside Australia and the external Territories; and

(b) the application for the reservation of that name stated that it was desired to reserve the name in the Territory,

the Commission shall reserve that name in the Territory and, where a name is so reserved, the reservation remains in force until that name ceases to be reserved, or until the reservation of that name is cancelled by the Commission, under the provision of the law of that State or Territory that corresponds with section 46.

Registration of name of recognized foreign company

48. Where—

(a) a name has been reserved in respect of an intended foreign company or a foreign company under section 47; and


 

(b) the name is registered in respect of that foreign company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 46 (5),

the Commission shall register that name in the Territory and, where the name is so registered, the registration remains in force until it is cancelled by the Commission under this Division or until the registration of that name in the State or Territory referred to in paragraph (b) is cancelled under the law of that State or Territory.

Reservation and registration of proposed new name of registered foreign company

49. (1) A registered foreign company may apply in the prescribed form to the Commission for the reservation in the Territory of a name set out in the application as the name to which the registered foreign company has changed its name or to which the registered foreign company proposes to change its name.

(2) Subject to sub-section (3) if—

(a) the Commission is satisfied that an application made under sub-section (1) for the reservation of a name is made in good faith; and

(b) the name is available for reservation in the Territory,

the Commission shall reserve the name for a period of 2 months from the date of lodgment of the application, and, where the Commission so reserves the name, the name shall be deemed to have been reserved from that date.

(3) Where—

(a) an application for the reservation of a name is made under sub-section (1) in respect of a foreign company formed outside Australia and the external Territories;

(b) the application states—

(i)    where the foreign company has already changed its name to the name in respect of which the application is made—that the former name of the foreign company is registered in a participating State or participating Territory; or

(ii)   where the foreign company proposes to change its name to the name in respect of which the application is made—that the present name of the foreign company is registered in a participating State or participating Territory; and

(c) the name in respect of which the application is made is not available for reservation in that State or Territory,

the Commission shall not reserve the name.

(4) Where—

(a) a name is reserved under this section in respect of a registered foreign company; and

(b) whether before or after the name is reserved under this section, the registered foreign company changed or changes its name to that reserved name (in this sub-section referred to as the “new name”),


 

the Commission shall register the new name of the registered foreign company in the Territory and, where the Commission so registers the new name—

(c) the new name ceases to be reserved under this section; and

(d) the Commission shall cancel the registration under this Division of the name by which the registered foreign company was registered before it changed its name to the new name.

(5) Where a name has been reserved under this section in respect of a registered foreign company and—

(a) the name was not available for reservation in the Territory or in a State or Territory specified in the application for reservation as mentioned in paragraph (3) (b); or

(b) the registered foreign company notifies the Commission in writing that it no longer desires the name to be reserved,

the Commission shall cancel the reservation of the name.

(6) The registration of a name under this section remains in force until the registration is cancelled by the Commission.

Reservation of proposed new name of recognized foreign company

50. Where—

(a) a name has been reserved in respect of a recognized foreign company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 49 (2); and

(b) the application for the reservation of that name states that the present name of the recognized foreign company is registered in the Territory,

the Commission shall reserve the name referred to in paragraph (a) in the Territory and, where the name is so reserved, the reservation remains in force until the name ceases to be reserved, or until the reservation of the name is cancelled by the Commission, under the provisions of the law of that State or Territory that corresponds with section 49.

Registration of new name of recognized foreign company

51. Where—

(a) a name has been reserved in respect of a recognized foreign company under section 50; and

(b) the name is registered in respect of that recognized foreign company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 49 (4),

the Commission shall register that name in the Territory and, where the name is so registered, the registration remains in force until it is cancelled by the Commission under this Division or until the registration of that name in the State or Territory referred to in paragraph (b) is cancelled under the law of that State or Territory.


 

Reservation and registration of name of recognized company proposing to transfer incorporation to the Territory

52. (1) A recognized company that proposes to transfer its incorporation to the Territory may apply in the prescribed form to the Commission for the reservation in the Territory of a name set out in the application as the name by which the recognized company intends to register upon transfer of its incorporation pursuant to Division 4.

(2) Subject to sub-section (3), if—

(a) the Commission is satisfied that an application made under sub-section (1) for the reservation of a name is made in good faith; and

(b) the name is available for reservation in the Territory,

the Commission shall reserve the name for a period of 2 months from the date of lodgment of the application, and, where the Commission so reserves the name, the name shall be deemed to have been reserved from that date.

(3) Where—

(a) an application is made under sub-section (1) for the reservation of a name;

(b) the application states that the name of the recognized company is registered in a participating State or participating Territory; and

(c) the name in respect of which the application is made is not available for reservation in that State or Territory,

the Commission shall not reserve the name.

(4) Where—

(a) a name is reserved under this section in respect of a recognized company; and

(b) the recognized company is registered by that name as a company pursuant to Division 4,

the Commission shall register the name of the company in the Territory and, where the Commission so registers the name—

(c) the name ceases to be reserved under this section; and

(d) if a registration of that name in respect of that recognized company is in force under any other provision of this Division, the Commission shall cancel that last-mentioned registration.

(5) Where a name has been reserved under sub-section (2) in respect of a recognized company and—

(a) the name was not available for reservation in the Territory or in a State or Territory specified in the application for reservation as mentioned in paragraph (3) (b); or

(b) the recognized company notifies the Commission in writing that it no longer desires the name to be reserved,

the Commission shall cancel the reservation of the name.


 

(6) The reservation of a name under this section in respect of a recognized company does not of itself entitle the recognized company to be registered pursuant to Division 4 by that name.

(7) The registration of a name under this section remains in force until the registration is cancelled by the Commission.

(8) Notwithstanding anything in paragraph 38 (1) (a), a name shall not be taken, for the purposes of this section, not to be available for reservation in the Territory or in a State or another Territory by reason only that the name is already reserved or registered under this Division or under the provisions of a law of the State or Territory that correspond with this Division, as the case may be, in respect of the recognized company that has applied for the reservation of the name under this section.

Reservation of name of company or recognized company proposing to transfer incorporation to participating State or Territory

53. (1) Where a name has been reserved in respect of a company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 52 (2), the Commission shall reserve that name in the Territory.

(2) Where—

(a) a name has been reserved in respect of a recognized company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 52 (2); and

(b) the application for the reservation of that name states that the name of the recognized company is registered in the Territory,

the Commission shall reserve the name in respect of which the application is made in the Territory and, where the name is so reserved, the reservation remains in force until the name ceases to be reserved, or until the reservation of the name is cancelled by the Commission, under the provision of the law of that State or Territory that corresponds with section 52.

Registration of name of recognized company after transfer of incorporation to participating State or Territory

54. Where—

(a) a name has been reserved in respect of a company or a recognized company under section 53; and

(b) the name is registered under the provision of a law of a participating State or participating Territory that corresponds with sub-section 52 (4),

the Commission shall register that name in the Territory and, where the Commission so registers the name—

(c) the registration remains in force until it is cancelled by the Commission under this Division or until the registration of that name in the State or Territory referred to in paragraph (b) is cancelled under the law of that State or Territory; and


 

(d) if a registration of that name in respect of that company or that recognized company is in force under any other provision of this Division, the Commission shall cancel that last-mentioned registration.

Reservation and registration of name of foreign company proposing to transfer incorporation to the Territory

55. (1) A foreign company that proposes to transfer its incorporation to the Territory may apply in the prescribed form to the Commission for the reservation in the Territory of a name set out in the application as the name by which the foreign company intends to be registered upon transfer of its incorporation pursuant to Division 4.

(2) Subject to sub-section (3), if—

(a) the Commission is satisfied that an application made under sub-section (1) for the reservation of a name is made in good faith; and

(b) the name is available for reservation in the Territory,

the Commission shall reserve the name for a period of 2 months from the date of lodgment of the application, and, where the Commission so reserves the name, the name shall be deemed to have been reserved from that date.

(3) Where—

(a) an application is made under sub-section (1) for the reservation of a name;

(b) the application states that the name of the foreign company is registered in a participating State or participating Territory; and

(c) the name in respect of which the application is made is not available for reservation in that State or Territory,

the Commission shall not reserve the name.

(4) Where—

(a) a name is reserved under this section in respect of a foreign company; and

(b) the foreign company is registered by that name as a company pursuant to Division 4,

the Commission shall register the name of the company in the Territory and, where the Commission so registers the name—

(c) the name ceases to be reserved under this section; and

(d) if a registration of that name in respect of that foreign company is in force under any other provision of this Division, the Commission shall cancel that last-mentioned registration.

(5) Where a name has been reserved under sub-section (2) in respect of a foreign company and—

(a) the name was not available for reservation in the Territory or in a State or Territory specified in the application for reservation as mentioned in paragraph (3) (b); or


 

(b) the foreign company notifies the Commission in writing that it no longer desires the name to be reserved,

the Commission shall cancel the reservation of the name.

(6) The reservation of a name under this section in respect of a foreign company does not of itself entitle the foreign company to be registered pursuant to Division 4 by that name.

(7) The registration of a name under this section remains in force until the registration is cancelled by the Commission.

(8) Notwithstanding anything in paragraph 38 (1) (a), a name shall not be taken, for the purposes of this section, not to be available for reservation in the Territory or in a State or another Territory by reason only that the name is already reserved or registered under this Division or under the provisions of a law of the State or Territory that correspond with this Division, as the case may be, in respect of the foreign company that has applied for the reservation of the name under this section.

Reservation of name of foreign company proposing to transfer incorporation to participating State or Territory

56. Where—

(a) a name has been reserved in respect of a foreign company under the provision of a law of a participating State or participating Territory that corresponds with sub-section 55 (2); and

(b) the application for the reservation of that name states that the name of the foreign company is registered in the Territory,

the Commission shall reserve the name in respect of which the application was made in the Territory and, where the name is so reserved, the reservation remains in force until that name ceases to be reserved, or until the reservation of that name is cancelled by the Commission, under the provision of the law of that State or Territory that corresponds with section 55.

Registration of name of foreign company that has become a recognized company after transfer of incorporation to participating State or Territory

57. Where—

(a) a name has been reserved in respect of a foreign company under section 56; and

(b) the name is registered under the provision of a law of a participating State or participating Territory that corresponds with sub-section 55 (4),

the Commission shall register that name in the Territory and, where the Commission so registers the name—

(c) the registration remains in force until it is cancelled by the Commission under this Division or until the registration of that name in the State or Territory referred to in paragraph (b) is cancelled under the law of that State or Territory; and


 

(d) if a registration of that name in respect of that foreign company is in force under any other provision of this Division, the Commission shall cancel that last-mentioned registration.

Extension of reservation

58. Where—

(a) at any time during a period for which a name is reserved under this Division (whether or not pursuant to the exercise on a previous occasion or previous occasions of a power under this section) an application is made to the Commission for an extension of that period; and

(b) the Commission is satisfied that the application is made in good faith, the Commission may extend that period for a further period of 2 months.

Notification that registration of name desired in a State or another Territory

59. Where a name is registered under this Division in respect of a company or a registered foreign company (being a foreign company formed outside Australia and the external Territories), the company or the registered foreign company may notify the Commission in writing that it desires the name to be registered in a State or another Territory.

Registration of name of recognized company or recognized foreign company in the Territory

60. Where—

(a) the Commission is notified by a recognized company or a recognized foreign company in accordance with the provision of a law of a participating State or participating Territory that corresponds with section 59 that it desires its name to be registered in the Territory; and

(b) the name is available for reservation in the Territory,

the Commission shall register that name in the Territory and, where the name is so registered, the registration remains in force until it is cancelled by the Commission under this Division or until the registration of that name in the State or Territory referred to in paragraph (a) is cancelled under the law of that State or Territory.

Notification that registration of name no longer desired in a participating State or Territory

61. (1) Where—

(a) a name has been registered under this Division in respect of a company; and

(b) that name has been registered in respect of that company under the provisions of a law of a participating State or participating Territory that correspond with this Division,

the company may notify the Commission in writing that it no longer desires the name to be registered in that State or Territory.


 

(2) Where—

(a) a name has been registered under this Division in respect of a registered foreign company; and

(b) that name has been registered in respect of that registered foreign company under the provisions of a law of a participating State or participating Territory that correspond with this Division,

the registered foreign company may notify the Commission in writing that it no longer desires the name to be registered in that State or Territory.

Cancellation of registration where registration in the Territory no longer desired

62. (1) Where—

(a) a name has been registered in respect of a recognized company under this Division; and

(b) the Commission is notified by the recognized company, in accordance with the provision of a law of a participating State or participating Territory that corresponds with sub-section 61 (1), that the recognized company no longer desires the name to be registered in the Territory,

the Commission shall cancel the registration of the name in the Territory.

(2) Where—

(a) a name has been registered in respect of a recognized foreign company under this Division; and

(b) the Commission is notified in accordance with the provision of a law of a participating State or participating Territory that corresponds with sub-section 61 (2), that the recognized foreign company no longer desires the name to be registered in the Territory,

the Commission shall cancel the registration of the name in the Territory.

Cancellation of registration where company or foreign company dissolved or foreign company ceases to be registered

63. (1) Where a name has been registered under this Division in respect of a company and the company is dissolved, the Commission shall cancel the registration of that name.

(2) Where a name has been registered under this Division in respect of a registered foreign company and the registered foreign company is dissolved, the Commission shall cancel the registration of that name.

(3) Where a name has been registered under this Division in respect of a registered foreign company and the registered foreign company ceases to be registered under Division 5 of Part XIII, the Commission shall cancel the registration of that name.

Cancellation of registration where name registered by mistake

64. Where—

(a) a name has been registered under this Division in respect of a recognized company or a recognized foreign company; and


 

(b) at the time when the name was reserved under this Division or, if the name was registered under section 60, at the time when the name was so registered, the name was not available for reservation in the Territory,

the Commission may cancel the registration of the name in the Territory.

Change of name

65. (1) A company may, by special resolution and with the approval of the Commission, change its name.

(2) The Commission shall not approve a change of name of a company under sub-section (1) unless the proposed new name is reserved in respect of the company under section 43.

(3) If the name of a company is (whether through inadvertence or otherwise and whether originally or by change of name) a name that is not available for reservation in the Territory, the company may, by special resolution, change its name to a name that is reserved in respect of that company under section 43 and, if the Commission so directs, shall so change it within 6 weeks after the date of direction or such longer period as the Commission allows, unless the Ministerial Council, by instrument in writing, annuls the direction, and if the company fails to comply with the direction it is guilty of an offence.

(4) Where the name of a company incorporated before the commencement of the Companies Ordinance 1962 pursuant to any corresponding previous law of the Territory has not been changed since the commencement of that Ordinance, the Commission shall not, except with the approval of the Ministerial Council, exercise its power under sub-section (3) to direct the company to change its name.

(5) A change of name of a company pursuant to this Act does not operate—

(a) to create a new legal entity;

(b) to prejudice or affect the identity of the body corporate constituted by the company or its continuity as a body corporate;

(c) to affect the property, or the rights or obligations, of the company; or

(d) to render defective any legal proceedings by or against the company,

and any legal proceedings that could have been continued or commenced by or against the company by its former name may be continued or commenced by or against it by its new name.

(6) Notwithstanding anything in paragraph 38 (1) (a), a name of a company shall not be taken, for the purposes of sub-section (3), not to be available for reservation in the Territory by reason only that the name is registered under this Division in respect of that company.


 

Omission of “Limited” in names of charitable and other companies

66. (1) Where it is proved to the satisfaction of the Commission that a proposed limited company—

(a) is being formed for the purpose of providing recreation or amusement or promoting commerce, industry, art, science, religion, charity, patriotism, pension or superannuation schemes or any other object useful to the community;

(b) will apply its profits (if any) or other income in promoting its objects; and

(c) will prohibit the payment of any dividend to its members,

the Commission may (after requiring, if it thinks fit, the proposal to be advertised in such manner as it directs either generally or in a particular case), by licence, authorize the proposed company to be registered as a company with limited liability without the addition of the word “Limited” to its name, and the company may be registered accordingly.

(2) Where it is proved to the satisfaction of the Commission—

(a) that the objects of a limited company are restricted to those specified in sub-section (1) and to objects incidental or conducive to those so specified; and

(b) that by its memorandum or articles the company is required to apply its profits (if any) or other income in promoting its objects and is prohibited from paying any dividend to its members,

the Commission may, by licence, authorize the company to change its name to a name that does not contain the word “Limited”, being a name approved by the Commission.

(3) A licence under this section may be issued on such conditions as the Commission thinks fit, and any conditions on which a licence is so issued are binding on the company and shall, if the Commission so directs, be inserted in the memorandum or articles of the company and the memorandum or articles may, by special resolution, be altered to give effect to any such direction.

(4) A company in respect of which a licence under this section is in force is exempt from complying with the provisions of this Act relating to the use of the word “Limited” as part of its name.

(5) The Commission may, in a licence issued to a company under this section or by notice in writing served on a company in respect of which a licence under this section is in force, exempt the company from complying with such of the provisions of this Act as are specified in the licence or notice relating to the lodging of annual returns and of returns of particulars of directors, principal executive officers and secretaries.


 

(6) Where—

(a) at the commencement of this Act, a licence issued in respect of a company under a provision of a previous law of the Territory that corresponds with this section continues in force by reason of sub-section 12 (3) of the Companies (Transitional Provisions) Act 1980; and

(b) on 29 June 1973, the company was exempt from the provisions of the Companies Ordinance 1962 relating to the lodging of annual returns and of returns of particulars of directors, managers and secretaries,

the company shall, unless and until the exemption is revoked under sub-section

(7) or the licence is revoked under sub-section (8), be exempt from the corresponding provisions of this Act.

(7) The Commission may, by notice in writing served on a company, revoke any exemption held by the company from the provisions of this Act relating to the lodging of annual returns and of returns of particulars of directors, principal executive officers and secretaries.

(8) Subject to sub-section (9), a licence under this section may at any time be revoked by the Commission and, where a licence is so revoked—

(a) the name of the company shall be deemed to be altered by the addition of the word “Limited” at the end of the name; and

(b) the company ceases to enjoy the exemptions and privileges granted, by reason of the licence, by or under this Act.

(9) Before a licence is revoked, the Commission shall give to the company notice in writing of the intention of the Commission to revoke the licence and shall afford the company an opportunity to appear at a hearing before the Commission and make submissions and give evidence to the Commission in relation to the matter.

(10) Where a licence issued under this section is revoked, a provision of the memorandum of the company that was inserted in compliance with a condition on which the licence was issued may be altered in the same manner as a provision of that memorandum with respect to the objects of the company may be altered, and section 73 applies to a proposal for such an alteration accordingly.

(11) Where a licence under this section is in force in respect of a company, an alteration of the memorandum or articles of the company, not being an alteration consisting solely of a change of the name of the company, does not have any effect unless—

(a) a statement setting out the text of the alteration or proposed alteration has been lodged with the Commission and the alteration or proposed alteration has been approved by the Commission; and

(b) the alteration is made in accordance with the articles of the company and the provisions of this Act.

(12) Where an alteration or proposed alteration of the memorandum or articles of a company, not being an alteration consisting solely of a change of


 

the name of the company, is approved as mentioned in paragraph (11) (a) and the alteration is made as mentioned in paragraph (11) (b), the alteration has effect notwithstanding a failure to obtain any consent or approval required to be obtained by virtue of a provision contained in the licence referred to in sub-section (11) or a provision inserted in the memorandum or articles of the company for the purposes of sub-section (3) or the corresponding provision of a previous law of the Territory.

Division 3Powers and Status

Powers

67. The powers of a company include—

(a) power to make donations for patriotic or for charitable purposes;

(b) power to transact any lawful business in aid of the Commonwealth in the prosecution of any war in which the Commonwealth is engaged; and

(c) unless expressly excluded or modified by the memorandum or articles, the powers set out in Schedule 2.

Ultra vires transactions

68. (1) No act of a company (including the entering into of an agreement by the company), and no conveyance or transfer of property to or by a company, is invalid by reason only of the fact that the company was without capacity or power to do the act or to execute or take the conveyance or transfer.

(2) Any such lack of capacity or power may be asserted or relied upon only in—

(a) proceedings against the company by a member of the company or, where the company has issued debentures secured by a floating charge over all or any of the property of the company, by the holder of any of those debentures or the trustees for the holders of those debentures to restrain the doing of any act or acts or the conveyance or transfer of any property to or by the company;

(b) proceedings by the company, or by a member of the company, against the present or former officers of the company; or

(c) an application by the Commission to wind up the company.

(3) If the unauthorized act, conveyance or transfer sought to be restrained in any proceedings under paragraph (2) (a) is being, or is to be, performed or made pursuant to any contract to which the company is a party, the Court may, if all the parties to the contract are parties to the proceedings and if the Court deems it to be just and equitable, set aside and restrain the performance of the contract and may allow to the company or to the other parties to the contract (as the case requires) compensation for the loss or damage sustained by either of them that may result from the action of the Court in setting aside and restraining the performance of the contract, but anticipated profits to be derived from the performance of the contract shall not be awarded by the Court as a loss or damage sustained.


 

Change of status

69. (1) Subject to this section—

(a) an unlimited company may convert to a limited company if it was not, within the previous 3 years, a limited company that became an unlimited company pursuant to paragraph (e) or any corresponding provision of a previous law of the Territory;

(b) a no liability company all the issued shares in which are fully paid up may convert to a company limited by shares;

(c) a company limited by shares may convert to a company limited both by shares and by guarantee;

(d) a company limited by guarantee may convert to a company limited both by shares and by guarantee; and

(e) a limited company may convert to an unlimited company.

(2) Where a company applies in writing to the Commission for a change of status as provided by sub-section (1) and, subject to sub-sections 73 (11), (12) and (13) as applied by sub-section (7) of this section, lodges with the application the prescribed documents relating to the application, the Commission shall issue to the company a certificate of incorporation—

(a) appropriate to the change of status applied for; and

(b) specifying, in addition to the particulars prescribed in respect of a certificate of incorporation of a company of that status, that the certificate is issued pursuant to this section,

and, upon the issue of such a certificate of incorporation, the company is a company having the status specified in the certificate.

(3) Where the status of a company is changed pursuant to this section, notice of the change of status shall be published by the company in such manner (if any) as the Commission directs.

(4) In sub-section (2), “prescribed documents”, in relation to an application referred to in that sub-section, means—

(a) a printed copy of a special resolution of the company—

(i) resolving to change the status of the company and specifying the status sought;

(ii) making such alterations to the memorandum of the company as are necessary to bring the memorandum into conformity with the requirements of this Act relating to the memorandum of a company of the status sought;

(iii) in the case of a company that has registered articles—making such alterations and additions (if any) to the articles as are necessary to bring the articles into conformity with the requirements of this Act relating to the articles of a company of the status sought;

(iv) in the case of a company that has no registered articles—adopting such articles (if any) as are required by this Act to be registered in respect of a company of the status sought or are


 

proposed by the company as the registered articles of the company upon the change in its status; and

(v) changing the name of the company to a name by which it could be registered if it were a company of the status sought;

(b) where, by a special resolution referred to in paragraph (a), the memorandum of the company is altered or the articles of the company are altered or added to, or articles are adopted by the company—a printed copy of the memorandum as altered, the articles as altered or added to, or the articles adopted, as the case may be; and

(c) in the case of an application by a limited company to convert to an unlimited company—

(i)    the prescribed form of assent to the application subscribed by or on behalf of all the members of the company; and

(ii)   a statement in writing by a director or secretary of the company verifying that the persons by whom or on whose behalf such a form of assent is subscribed constitute the whole membership of the company and, if a member has not subscribed the form himself, that the director or secretary making the statement has taken all reasonable steps to satisfy himself that each person who subscribed the form was lawfully empowered so to do.

(5) The provisions of sub-sections 72 (2) to (10), inclusive, do not apply to or in relation to an application under this section or to any prescribed documents in relation to the application.

(6) A special resolution passed for the purposes of an application under this section takes effect only upon the issue under this section of a certificate of incorporation of the company to which the resolution relates.

(7) With such modifications as are necessary, sub-sections 73 (6) to (13), inclusive, apply to and in respect of the proposal, passing and lodging, and the cancellation or confirmation by the Court, of a special resolution relating to a change of status as if it were a special resolution under section 73.

(8) A change in the status of a company pursuant to this section does not operate—

(a) to create a new legal entity;

(b) to prejudice or affect the identity of the body corporate constituted by the company or its continuity as a body corporate;

(c) to affect the property, or the rights or obligations, of the company; or

(d) to render defective any legal proceedings by or against the company,

and any legal proceedings that could have been continued or commenced by or against the company before the change in its status may, notwithstanding the change in its status, be continued or commenced by or against it after the change in its status.


 

Change from public to proprietary company or from proprietary to public company

70. (1) A public company having a share capital (other than a no liability company) may convert to a proprietary company by lodging with the Commission a copy of a special resolution—

(a) determining to convert to a proprietary company and specifying an appropriate alteration to its name; and

(b) altering the provisions of its memorandum or articles so far as is necessary to impose the restrictions, limitations and prohibitions referred to in sub-section 34 (1).

(2) A proprietary company may, subject to anything contained in its memorandum or articles, convert to a public company by lodging with the Commission a copy of a special resolution determining to convert to a public company and specifying an appropriate alteration to its name, and thereupon the restrictions, limitations and prohibitions referred to in sub-section 34 (1) as included in or deemed to be included in the memorandum or articles of the company cease to form part of the memorandum or articles.

(3) On compliance by a company with the provisions of sub-section (1) or (2) and on the issue of a certificate of incorporation of the company altered accordingly, the company is a proprietary company or a public company, as the case requires.

(4) With such modifications as are necessary, sub-sections 73 (6) to (13), inclusive, apply in respect of the proposal, passing and lodging, and the cancellation or confirmation by the Court, of a special resolution relating to the conversion of a company pursuant to sub-section (1) or (2) of this section as if it were a special resolution under section 73.

(5) A conversion of a company pursuant to sub-section (1) or (2) does not operate—

(a) to create a new legal entity;

(b) to prejudice or affect the identity of the body corporate constituted by the company or its continuity as a body corporate;

(c) to affect the property, or the rights or obligations, of the company; or

(d) to render defective any legal proceedings by or against the company,

and any legal proceedings that could have been continued or commenced by or against the company before the conversion may, notwithstanding the conversion, be continued or commenced by or against it after the conversion.

Default in complying with requirements as to proprietary companies

71. (1) Where, on the application of the Commission with respect to a proprietary company or of any member or creditor of a proprietary company, the Court is satisfied that default has been made in relation to the company in complying with a prohibition of a kind specified in paragraph 34 (1) (c) or (d) that is included, or is deemed to be included, in the memorandum or articles of


 

the company, the Court may, by order, determine that, on such date as the Court specifies in its order, the company ceased to be a proprietary company.

(2) Where—

(a) default has been made in relation to a proprietary company in complying with a limitation of a kind specified in paragraph 34 (1) (b) that is included, or is deemed to be included, in the memorandum or articles of the company;

(b) a proprietary company has been convicted of an offence under sub-section (7) of this section;

(c) the memorandum or articles of a proprietary company have been so altered that they no longer include restrictions, limitations or prohibitions of the kinds specified in sub-section 34 (1); or

(d) a proprietary company has ceased to have a share capital,

the Commission may, by notice in writing served on the company, determine that, on such date as is specified in the notice, the company ceased to be a proprietary company.

(3) Where, under this section, the Court or the Commission determines that a company has ceased to be a proprietary company—

(a) the company is a public company and shall be deemed to have been a public company on and from the date specified in the order or notice;

(b) the company shall, on the date so specified, be deemed to have changed its name by the omission from the name of the word “Proprietary” or the abbreviation “Pty.”, as the case requires; and

(c) where an order has been made under sub-section (1)—the company shall, within a period of 14 days after the date of the order, lodge with the Commission an office copy of the order.

(4) Where the Court is satisfied that a default or alteration referred to in sub-section (1) or (2) has occurred but that it was accidental or due to inadvertence or to some other sufficient cause or that on other grounds it is just and equitable to grant relief, the Court may, on such terms and conditions as to the Court seem just and expedient, determine that the company has not ceased to be a proprietary company.

(5) A company that, by virtue of a determination made under this section, has become a public company shall not convert to a proprietary company without the leave of the Court.

(6) If a company fails to comply with paragraph (3) (c), the company and any officer of the company who is in default are each guilty of an offence.

(7) Where any subscription for shares in or debentures of, or any deposit of money with, a proprietary company is arranged by or through a solicitor, broker, agent or any other person (whether an officer of the company or not) who invites the public to make use of his services in arranging investments or holds himself out to the public as being in a position to arrange investments, the


 

company and any person, including any officer of the company, who is a party to the arrangement are each guilty of an offence.

Penalty: $1,000 or imprisonment for 3 months, or both.

(8) Where default is made in relation to a proprietary company in complying with any restriction, limitation or prohibition of a kind specified in sub-section 34 (1) that is included, or deemed to be included, in the memorandum or articles of the company, the company and any officer of the company who is in default are each guilty of an offence.

Penalty: $1,000 or imprisonment for 3 months or both.

(9) An act or transaction is not invalid by reason of the commission of an offence against sub-section (7) or (8).

General provisions as to alteration of memorandum

72. (1) The memorandum of a company may be altered to the extent and in the manner provided by this Act but not otherwise.

(2) Subject to any other provision of this Act requiring the lodging with the Commission of any resolution of a company, any order of the Court, or any other document, affecting the memorandum of a company, the company shall, within 14 days after the passing of any such resolution, the making of any such order or the execution of any such document, lodge with the Commission a copy of the resolution, an office copy of the order or a copy of the document, as the case may be.

(3) Where an alteration or alterations in the memorandum of a company has or have been made (whether before or after the commencement of this Act), the company shall, on being required by the Commission to do so, lodge with the Commission a printed copy of the memorandum as altered by the alteration or alterations

(4) If a company contravenes or fails to comply with sub-section (2) or (3), the company and any officer of the company who is in default are each guilty of an offence.

(5) The Commission shall register every resolution, order or other document lodged with it under this Act that affects the memorandum of a company, and, except in the case of a resolution under section 121, the alteration of the memorandum to which the resolution, order or other document relates shall take effect on, and not before, the registration of the resolution, order or other document.

(6) Where a resolution, order or other document has been registered by the Commission under sub-section (5)—

(a) in the case of an order—the Commission shall certify the registration of the order; and

(b) in the case of a resolution or other document—the Commission shall, if so requested by the company, certify the registration of the resolution or document.


 

(7) A certificate of the Commission as to the registration of an order is conclusive evidence that all the requirements of this Act with respect to the alteration to which the order relates and any confirmation of that alteration have been complied with.

(8) Notice of the registration shall be published in such manner (if any) as the Court or the Commission directs.

(9) The Commission shall, where appropriate, issue a certificate of incorporation in accordance with the alteration made to the memorandum.

(10) The Commission shall keep a copy of a certificate issued under sub-section (9), and sub-sections 31 (2) and (5) apply to that copy as if it were a document lodged with the Commission.

Alterations of provisions of memorandum

73. (1) Subject to this section, a company may, by special resolution, alter the provisions of its memorandum with respect to the objects or powers of the company.

(2) Subject to this section, sub-section 78 (3) and section 320, if a provision of the memorandum of a company could lawfully have been contained in the articles of the company, the company may, unless the memorandum prohibits the alterations of that provision, alter that provision by special resolution.

(3) The memorandum of a company may provide that a special resolution altering or adding to a provision contained in the memorandum, being a provision that could lawfully have been contained in the articles of the company, does not have any effect unless and until a further requirement specified in the memorandum has been complied with.

(4) Without limiting the generality of sub-section (3), the further requirement referred to in that sub-section may be a requirement—

(a) that the relevant special resolution be passed by a majority consisting of a greater number of members than is required to constitute the resolution as a special resolution;

(b) that the consent or approval of a particular person be obtained; or

(c) that a particular condition be fulfilled.

(5) Nothing in sub-section (2) permits the alteration of a provision of the memorandum of a company that relates to rights to which only members included in a particular class of members are entitled.

(6) Notice of a general meeting specifying the intention to propose, as a special resolution, a resolution for the alteration of the provisions of the memorandum of a company with respect to the objects or powers of the company shall be given—

(a) to all members;

(b) to all trustees for debenture holders; and


 

(c) if there are no trustees for, or for a particular class of, debenture holders—to all debenture holders, or all debenture holders of that class, as the case may be, whose names are, at the time of the posting of the notice, known to the company.

(7) The Court may, in the case of any person or class of persons, for such reasons as seem sufficient to the Court, dispense with the notice referred to in sub-section (6).

(8) If an application for the cancellation of an alteration is made to the Court in accordance with this section by—

(a) in the case of an alteration of a provision or provisions of the memorandum with respect to the objects or powers of a company—the holders of not less than 10% in nominal value of the company’s debentures; or

(b) in the case of any alteration of a provision or provisions of the memorandum—the holders of not less, in the aggregate, than 10% in nominal value of the company’s issued share capital or any class of that capital or, if the company is not limited by shares, not less than 10% of the company’s members,

the alteration does not have any effect except so far as it is confirmed by the Court.

(9) The application shall be made within 21 days after the date on which the resolution altering the provision or provisions of the memorandum of the company was passed, and may be made, on behalf of the persons entitled to make the application, by such one or more of their number as they appoint in writing for the purpose.

(10) On the application, the Court shall have regard to the rights and interests of the members of the company or of any class of them as well as to the rights and interests of the creditors and may do all or any of the following:

(a) if the Court thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the Court for the purchase (otherwise than by the company or a subsidiary of the company) of the interests of dissentient members;

(b) give such directions and make such orders as the Court thinks expedient for facilitating or carrying into effect any such arrangement;

(c) make an order cancelling the alteration or confirming the alteration either wholly or in part and on such terms and conditions as the Court thinks fit.

(11) Notwithstanding any other provision of this Act, a copy of a resolution altering a provision or provisions of the memorandum of a company shall not be lodged with the Commission before the expiration of 21 days after the passing of the resolution or, if an application to the Court has been made, before the application has been determined by the Court, whichever is the later.


 

(12) If an application has not been made to the Court in accordance with this section, a copy of the resolution shall be lodged with the Commission by the company within 14 days after the expiration of the 21 days referred to in sub-section (11).

(13) If an application has been made to the Court in accordance with this section, a copy of the resolution, together with an office copy of the order of the Court, shall be lodged with the Commission by the company within 14 days after the application has been determined by the Court.

Articles of association

74. (1) There may, in the case of a company limited by shares or a no liability company, and there shall, in the case of a company limited by guarantee or limited both by shares and by guarantee or an unlimited company, be registered with the memorandum, articles signed by the subscribers to the memorandum prescribing regulations for the company.

(2) Articles shall be—

(a) printed;

(b) divided into numbered paragraphs; and

(c) signed by each subscriber to the memorandum in the presence of at least one witness (not being another subscriber).

(3) A witness to a signature to the articles of a subscriber to the memorandum shall attest the signature and add his address.

(4) A reference in sub-section (1) to the signing of the articles of a company shall, in the case of the signing by a person being a body corporate, be construed as including a reference to the affixing in accordance with the constituent documents of the body corporate of the common or official seal of the body corporate to the articles and, where a body corporate signs the articles by so affixing its common or official seal, sub-section (2) does not require a witness to the affixing of that seal.

(5) In the case of an unlimited company that has a share capital, the articles shall state the amount of share capital with which the company proposes to be registered and the division of that share capital into shares of a fixed amount.

Adoption of Table A or B

75. (1) Articles may—

(a) in the case of a company other than a no liability company—adopt all or any of the regulations contained in Table A; or

(b) in the case of a no liability company—adopt all or any of the regulations contained in Table B.

(2) In the case of a company limited by shares incorporated after the commencement of this Act, if articles are not registered, or if articles are registered then in so far as the articles do not exclude or modify the regulations contained in Table A, those regulations shall, so far as applicable, be the


 

articles of the company in the same manner and to the same extent as if they were contained in registered articles.

(3) In the case of a no liability company incorporated after the commencement of this Act, if articles are not registered, or if articles are registered then in so far as the articles do not exclude or modify the regulations contained in Table B, those regulations shall, so far as applicable, be the articles of the company in the same manner and to the same extent as if they were contained in registered articles.

Alteration of articles

76. (1) Subject to this Act, a company may by special resolution alter or add to its articles.

(2) The memorandum of a company may provide that a special resolution altering or adding to the articles of the company does not have any effect unless and until a further requirement specified in the memorandum has been complied with.

(3) Without limiting the generality of sub-section (2), the further requirement referred to in that sub-section may be a requirement—

(a) that the relevant special resolution be passed by a majority consisting of a greater number of members than is required to constitute the resolution as a special resolution;

(b) that the consent or approval of a particular person be obtained; or

(c) that a particular condition be fulfilled.

(4) Subject to this Act, an alteration or addition so made in the articles is, on and from the date of the special resolution or such later date as is specified in the resolution, as valid as if originally contained in the articles and is subject in like manner to alteration by special resolution.

(5) Subject to this section, a company has the power, and shall be deemed always to have had the power, to amend its articles—

(a) in the case of a company other than a no liability company—by the adoption of all or any of the regulations contained in Table A; or

(b) in the case of a no liability company—by the adoption of all or any of the regulations contained in Table B,

by reference only to the regulations in the Table or to the numbers of particular regulations contained in the Table, without being required in the special resolution effecting the amendment to set out the text of the regulations so adopted.

Memorandum and articles of companies limited by guarantee

77. (1) In the case of a company limited by guarantee and not having a share capital and registered on or after 1 October 1954, every provision in the memorandum or articles or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member is void.


 

(2) For the purposes of the provisions of this Act relating to the memorandum of a company limited by guarantee and of this section, every provision in the memorandum or articles or in any resolution of a company limited by guarantee and registered on or after 1 October 1954 purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital notwithstanding that the nominal amount or number of the shares or interests is not specified by the memorandum or articles or the resolution, as the case may be.

Effect of memorandum and articles

78. (1) Subject to this Act, the memorandum and articles, when registered, bind the company and the members of the company to the same extent as if they respectively had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions of the memorandum and of the articles.

(2) Subject to the provisions of this Act relating to no liability companies, all money payable by a member to the company under the memorandum or articles is a debt due by him to the company, and is of the nature of a specialty debt.

(3) Notwithstanding anything in the memorandum or articles of a company, no member of the company, unless either before or after the alteration is made he agrees in writing to be bound by the alteration concerned, is bound by an alteration made in the memorandum or articles after the date on which he became a member so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made or in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company.

Copies of memorandum and articles

79. (1) A company shall, on being so required by a member, send to him a copy of the memorandum and of the articles (if any) of the company, subject to payment of such amount (if any), not exceeding the prescribed amount, as the company requires.

(2) Where an alteration is made in the memorandum or articles of a company, a copy of the memorandum or articles shall not be issued by the company after the date of alteration unless—

(a) the copy is in accordance with the memorandum or articles as altered by the alteration; or

(b) a printed copy of the order or resolution making the alteration is annexed to the copy of the memorandum or articles and the particular clauses or articles affected are indicated in ink.

(3) Where an alteration or alterations in the articles of a company has or have been made (whether before or after the commencement of this Act), the company shall, on being required by the Commission to do so, lodge with the


 

Commission a printed copy of the articles as altered by the alteration or alterations.

(4) Where an agreement a copy of which is required to be lodged with the Commission under section 251 affects the memorandum or articles of a company, a copy of the memorandum or articles shall not be issued, and a copy of the articles shall not be lodged with the Commission, by the company after the agreement is entered into, unless a copy of the agreement is annexed to the copy of the memorandum or articles.

(5) If a company contravenes or fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

Confirmation of contracts and authentication and execution of documents

80. (1) In so far as the formalities of making, varying or discharging a contract are concerned, a person acting under the express or implied authority of a company may make, vary or discharge a contract in the name of or on behalf of the company in the same manner as if that contract were made, varied or discharged by a natural person.

(2) The making, variation or discharging of a contract in accordance with sub-section (1) is effectual in law and binds the company and other parties to the contract.

(3) A contract or other document executed, or purporting to have been executed, whether before or after the commencement of this Act, under the common seal of a company is not invalid by reason only that a person attesting the affixing of the common seal was in any way, whether directly or indirectly, interested in that contract or other document or in the matter to which that contract or other document relates.

(4) This section does not prevent a company from making, varying or discharging a contract under its common seal.

(5) This section does not apply to the making, variation or discharging of a contract before the commencement of this Act but shall apply whether the company gives its authority before or after the commencement of this Act.

(6) This section does not affect the operation of a law that requires some consent or sanction to be obtained, or some procedure to be complied with, in relation to the making, variation or discharge of a contract.

(7) A document or proceeding requiring authentication by a company may be authenticated by the signature of an officer of the company and need not be authenticated under the common seal of the company.

(8) A company may, by writing under its common seal, empower a person, either generally or in respect of a specified matter or specified matters, as its agent or attorney to execute deeds on its behalf, and a deed signed by such an agent or attorney on behalf of the company and under his seal or, subject to sub-sections (10) and (11), under the appropriate official seal of the company,


 

binds the company and has the same effect as if it were under the common seal of the company.

(9) The authority of an agent or attorney empowered pursuant to sub-section (8), as between the company and a person dealing with him, continues during the period (if any) mentioned in the instrument conferring the authority or, if no period is so mentioned, until notice of the revocation or termination of his authority has been given to the person dealing with him.

(10) A company the objects of which require or comprise the transaction of business outside the Territory may, if authorized by its articles, have for use outside the Territory in place of its common seal one or more official seals, each of which shall be a facsimile of the common seal of the company with the addition on its face of the name of every place where it is to be used.

(11) The person affixing such an official seal shall, in writing under his hand, certify on the instrument to which it is affixed the date on which and the place at which it is affixed.

(12) A document sealed with such an official seal shall be deemed to be sealed with the common seal of the company.

Ratification of contracts made before formation of company

81. (1) In this section—

(a) a reference to a non-existent company purporting to enter into a contract shall be construed as a reference to—

(i)    a person executing a contract in the name of a company, where no such company exists; or

(ii)   a person purporting to enter into a contract as agent or trustee for a proposed company;

(b) a reference to a person who purports to execute a contract on behalf of a non-existent company shall be construed as a reference to a person who executes a contract or purports to enter into a contract as mentioned in sub-paragraph (a) (i) or (ii);

(c) a reference, in relation to the purported entry into a contract by a non-existent company, to the formation of the company shall be construed as a reference to—

(i)    where a person has executed a contract in the name of a company and no such company exists—the formation of a company that, having regard to all the circumstances, is reasonably identifiable with the company in the name of which the person executed the contract; or

(ii)   where a person has purported to enter into a contract as agent or trustee for a proposed company—the formation of a company that, having regard to all the circumstances, is reasonably identifiable with the proposed company.

(2) Where—

(a) a non-existent company purports to enter into a contract; and


 

(b) the company is formed within a reasonable time after the contract is purported to be entered into,

the company may, within a reasonable time after it is formed, ratify the contract.

(3) Where a company ratifies a contract as provided by sub-section (2), the company is bound by, and entitled to the benefit of, that contract as if the company had been formed before the contract was entered into and had been a party to that contract.

(4) Where a non-existent company purports to enter into a contract and—

(a) the company is not formed within a reasonable time after the contract is purported to be entered into; or

(b) the company is formed within such a reasonable time but does not ratify the contract within a reasonable time after the company is formed,

the other party or each of the other parties to the contract may, subject to sub-sections (6) and (9), recover from the person or any one or more of the persons who purported to execute the contract on behalf of the non-existent company an amount of damages equivalent to the amount of damages for which that party could have obtained a judgment against the company if—

(c) where the company has not been formed as mentioned in paragraph (a)—the company had been formed, and had ratified the contract as provided by sub-section (2); or

(d) where the company has been formed as mentioned in paragraph (b)—the company had ratified the contract as provided by sub-section (2),

and the contract had been discharged by reason of a breach of the contract constituted by the refusal or failure of the company to perform any obligations under the contract.

(5) Where—

(a) proceedings are brought to recover damages under sub-section (4) in relation to a contract purported to be entered into by a non-existent company; and

(b) the company has been formed,

the court in which the proceedings are brought may, if it thinks it just and equitable to do so, make either or both of the following orders:

(c) an order directing the company to transfer or pay to any party to the contract who is named in the order, any property, or an amount not exceeding the value of any benefit, received by the company as a result of the contract;

(d) an order that the company pay the whole or a specified portion of any damages that, in those proceedings, the defendant has been, or is, found liable to pay.

(6) Where, in proceedings to recover damages under sub-section (4) in relation to a contract purported to be entered into by a non-existent company,


 

the court in which the proceedings are brought makes an order under paragraph (5) (c), the court may refuse to award any damages in the proceedings or may award an amount of damages that is less than the amount that the court would have awarded if the order had not been made.

(7) Where—

(a) a non-existent company purports to enter into a contract;

(b) the company is formed, and ratifies the contract as provided by sub-section (2);

(c) the contract is discharged by a breach of the contract constituted by a refusal or failure of the company to perform all or any of its obligations under the contract; and

(d) the other party or any one or more of the other parties to the contract brings or bring proceedings against the company for damages for breach of the contract,

the court in which the proceedings are brought may, subject to sub-section (9), if it thinks it just and equitable to do so, order the person or any one or more of the persons who purported to execute the contract on behalf of the company to pay to the person or persons by whom the proceedings are brought the whole or a specified portion of any damages that the company has been, or is, found liable to pay to the person or persons by whom the proceedings are brought.

(8) Where a person purports, whether alone or together with another person or other persons, to execute a contract on behalf of a non-existent company, the other party to the contract, or any of the other parties to the contract, may, by writing signed by that party, consent to the first-mentioned person being exempted from any liability in relation to the contract.

(9) Where a person has, as provided by sub-section (8), consented to another person being exempted from liability in relation to a contract that the other person purported to execute on behalf of a non-existent company—

(a) notwithstanding sub-section (4), that first-mentioned person is not entitled to recover damages from that other person in relation to that contract; and

(b) a court shall not, in proceedings under sub-section (7), order that other person to pay to the first-mentioned person any damages, or any proportion of the damages, that the company has been, or may be, found liable to pay to that first-mentioned person.

(10) If—

(a) a non-existent company purports to enter into a contract;

(b) the company is formed; and

(c) the company and the other party or other parties to the contract enter into a contract in substitution for the first-mentioned contract,

any liabilities to which the person who purported to execute the first-mentioned contract on behalf of the company is subject under this section in relation to the first-mentioned contract (including liabilities under an order made by a court under this section) are, by force of this sub-section, deemed to be discharged.


 

(11) Any rights or liabilities of a person under this section (including rights or liabilities under an order made by a court under this section) in relation to a contract are in substitution for any rights that the person would have, or any liabilities to which the person would be subject, as the case may be, apart from this section, in relation to the contract.

(12) Where—

(a) a person purports to enter into a contract as trustee for a proposed company; and

(b) the company is formed within a reasonable time after the person purports to enter into the contract but does not ratify the contract within a reasonable time after the company is formed,

then, notwithstanding any rule of law or equity, the trustee does not have any right of indemnity against the company in respect of the contract.

(13) For the purposes of this section, a contract may be ratified by a company in the same manner as a contract may be made by a company under section 80 and the provisions of section 80 have effect as if—

(a) the references in that section to making a contract were references to ratifying a contract; and

(b) the reference in sub-section (3) of that section to a contract executed, or purporting to have been executed, under the common seal of a company were a reference to a contract ratified, or purporting to have been ratified, under the common seal of a company.

Prohibition of carrying on business with fewer than statutory minimum number of members

82. (1) If, at any time, the number of members of a company (counting joint holders of shares as one person) is reduced—

(a) in the case of a proprietary company—below 2; or

(b) in the case of any other company—below 5,

and the company carries on business for more than 6 months while the number is so reduced, every person who, at any time when the company so carries on business after those 6 months, is a member of the company and is aware that the company is carrying on business with fewer than 2 or 5 members, as the case may be—

(c) is severally liable for the payment of any debt of the company contracted at a time when—

(i)    the company so carries on business after those 6 months; and

(ii)   he is a member,

and may be severally sued for payment of that debt; and

(d) is guilty of an offence.

(2) Sub-section (1) does not apply in relation to a company the whole of the issued shares of which are held by a holding company that is a company within the meaning of this Act or of the corresponding law of a participating State or a participating Territory.


 

Division 4Transfer of Incorporation

Certificate authorizing application for transfer of incorporation

83. (1) A company may apply to the Commission for a certificate authorizing the company to make an application for registration as a company under the corresponding law of a participating State or participating Territory.

(2) An application under sub-section (1)—

(a) shall be in the prescribed form; and

(b) shall be accompanied by—

(i)    a declaration in writing signed by the directors of the company or, in the case of a company having more than 2 directors, a majority of the directors, to the effect that they have made an inquiry into the affairs of the company and that at a meeting of directors have formed the opinion that the company will be able to pay its debts as they fall due; and

(ii)   a statement of affairs of the company showing, in the prescribed form, the assets and liabilities of the company made up to the latest practicable date before the making of the application.

(3) Where a company applies, under sub-section (1), for a certificate authorizing the company to make an application for registration as a company under the corresponding law of a participating State or participating Territory, the Commission shall issue the certificate if—

(a) the company has passed a special resolution approving the application for the certificate;

(b) the company has given to its creditors, in a manner approved by the Commission, notice of its intention to apply for such a certificate;

(c) the name of the company is reserved under a provision of a law of that State or Territory that corresponds with section 52;

(d) the Commission is not aware of any failure of the company to comply with any requirement of this Act that is applicable to it;

(e) the Commission is not aware of any other reason why the certificate should not be granted; and

(f) the Minister has consented to the issuing of the certificate, but otherwise the Commission shall refuse to issue the certificate.

(4) A certificate may be issued under sub-section (3) subject to such conditions as are specified in the certificate.

(5) A company is not entitled to make an application under sub-section (1) if—

(a) the company is in the course of being wound up or an application to wind up the company has been lodged and has not been dealt with;

(b) a receiver, or a receiver and manager, has been appointed, and is acting, in respect of the property or part of the property of the company;

(c) the company is under official management; or


 

(d) the company has entered into a compromise or arrangement with another person or other persons and the administration of the compromise or arrangement has not been concluded or an application has been made to the Court for the approval of such a compromise or arrangement and has not been dealt with.

(6) With such modifications as are necessary, sub-sections 73 (6) to (13), inclusive, apply to and in respect of the proposal, passing and lodging, and the cancellation or confirmation by the Court, of a special resolution relating to an application for a certificate under this section as if it were a special resolution under section 73.

Application by recognized company for registration under Division

84. (1) Subject to sub-section (3), a recognized company may apply to the Commission to be registered as a company under this Act.

(2) An application by a recognized company under sub-section (1)—

(a) shall be in the prescribed form;

(b) shall be accompanied by—

(i) a certificate issued not earlier than 1 month before the date on which the application is lodged to that recognized company under the provision of the law of the State or Territory in which the recognized company was incorporated that corresponds with sub-section 83 (3); and

(ii) a certified copy of each of such documents as are specified by the Commission; and

(c) shall be lodged with the Commission.

(3) A recognized company is not entitled to make an application under sub-section (1) if—

(a) the recognized company is in the course of being wound up or an application to wind up the recognized company has been lodged and has not been dealt with;

(b) a receiver, or a receiver and manager, has been appointed, and is acting, in respect of the property or part of the property of the recognized company;

(c) the recognized company is under official management; or

(d) the recognized company has entered into a compromise or arrangement with another person or other persons and the administration of the compromise or arrangement has not been concluded or an application has been made to a court for the approval of such a compromise or arrangement and has not been dealt with.

Application by foreign company for registration under Division

85. (1) Subject to sub-section (2), a corporation that was incorporated or formed—

(a) in a State other than a participating State;


 

(b) in a Territory other than a participating Territory; or

(c) outside Australia and the external Territories,

may apply to the Commission to be registered under this Act as a company of one of the following classes:

(d) a company limited by shares;

(e) a company limited by guarantee;

(f) a company limited both by shares and by guarantee;

(g) an unlimited company;

(h) in the case of a mining company—a no liability company.

(2) A corporation is not entitled to make an application under sub-section (1) if—

(a) the corporation is in the course of being wound up or an application to wind up the corporation has been lodged and has not been dealt with;

(b) a receiver, or a receiver and manager, has been appointed, and is acting, in respect of the property or part of the property of the corporation;

(c) the corporation is under official management; or

(d) the corporation has entered into a compromise or arrangement with another person or other persons and the administration of the compromise or arrangement has not been concluded or an application has been made to a court for the approval of such a compromise or arrangement and has not been dealt with.

(3) The Commission shall not grant an application by a corporation under sub-section (1) for registration as a company under this Act unless—

(a) under the law for the time being in force in the place where the corporation was incorporated or formed—

(i)    the transfer of the incorporation of the corporation is authorized;

(ii)   the corporation is of a class that is the same or substantially the same as one of the classes of companies referred to in sub-section (1);

(iii)  the constituent documents of the corporation specify the name and objects of the corporation;

(iv)  where the liability of the members of the corporation is limited—the extent to which, and the manner in which, that liability is limited is defined in the constituent documents of the corporation; and

(v)   where the corporation has a share capital and the liability of its members is limited—its capital is of a fixed amount and is divided into shares of a fixed amount;


 

(b) the corporation has complied with the regulations (if any) of the law of the place where it was incorporated or formed that relate to the transfer of its incorporation;

(c) where the law of the place where the corporation was incorporated or formed does not require the members of the corporation, or a specified proportion of those members, to consent to the transfer of the incorporation of the corporation—not less than three-quarters of such members of the corporation as, being entitled to do so, vote in person or, where proxies are allowed, by proxy, consent to the transfer of the incorporation of the corporation at a meeting of which not less than 21 days’ notice specifying the intention of the corporation to apply for such a transfer is given; and

(d) the name of the corporation is reserved in the Territory under section 55.

(4) An application by a corporation under sub-section (1) shall be in the prescribed form, shall be lodged with the Commission and shall be accompanied by—

(a) a certified copy of the certificate of incorporation or registration of the corporation in the place of its incorporation or a document having the same effect;

(b) evidence acceptable to the Commission that the corporation is not, by reason of sub-section (2), disqualified from making the application;

(c) evidence acceptable to the Commission that the requirements of paragraphs (3) (a), (b) and (c) have been satisfied;

(d) a certified printed copy of the constituent document or of each of the constituent documents of the corporation;

(e) in the case of a corporation applying to be registered as a company having a share capital, a statement specifying—

(i)    the nominal share capital of the corporation and the number and classes of shares into which the share capital is divided;

(ii)   the number of shares taken up and the amount paid on each share; and

(iii)  subject to sub-section (6), the full name, or the surname and at least one Christian or given name and other initials, and the address, of each of the shareholders and the number and class of shares held by each person named;

(f) in relation to each existing charge on property of the corporation that would be a registrable charge within the meaning of Division 9 of Part IV if the corporation were a company as defined in sub-section 5 (1), the documents required to be lodged by sub-section 201 (3); and

(g) such other documents or information as the Commission requires and specifies by notice in writing to the corporation.

(5) Where a document required by sub-section (4) to be lodged with the Commission has previously been lodged with the Commission pursuant to Division 5 of Part XIII, the Commission may, for the purposes of this section,


 

dispense with the requirement that the document be lodged with the Commission.

(6) Where a corporation—

(a) has more than 500 members;

(b) satisfies the Commission that it will keep its principal register at a place in the Territory within 25 kilometres of the office of the Corporate Affairs Commission for the Territory; and

(c) satisfies the Commission that it will provide reasonable accommodation and facilities for persons to inspect and take copies of its list of members and its particulars of shares transferred,

the corporation is not required to comply with sub-paragraph (4) (e) (iii).

Registration of corporations as companies

86. (1) Where a corporation applies to the Commission under section 84 to be registered as a company—

(a) if the Commission is satisfied that the corporation—

(i)    has complied with the requirements of that section and with any conditions to which the certificate issued to the corporation under the provision of the law of a participating State or a participating Territory that corresponds with section 83 is subject; and

(ii)   is not disqualified by reason of sub-section 84 (3) from making the application,

the Commission shall grant the application and register the corporation as a company; or

(b) if the Commission is not so satisfied—the Commission shall refuse the application.

(2) Where a corporation applies to the Commission under section 85 to be registered as a company—

(a) if the Commission is satisfied that the corporation has complied with the requirements of that section and is not disqualified by reason of that section from making the application or from being granted registration as a company—the Commission shall grant the application and register the corporation as a company; or

(b) if the Commission is not so satisfied—the Commission shall refuse the application.

(3) Where the Commission grants an application by a corporation under section 84 or 85—

(a) if, in the case of a corporation incorporated in a participating State or participating Territory, the corporation was incorporated as a proprietary company or, in any other case, the constituent documents of the corporation comply with the requirements of sub-section 34 (1)—the Commission shall register the corporation as a proprietary company; or


 

(b) if paragraph (a) does not apply—the Commission shall register the company as a public company.

(4) Where the Commission grants an application by a corporation under section 84 or 85, the Commission shall register the corporation as a company of one of the following classes:

(a) a company limited by shares;

(b) a company limited by guarantee;

(c) a company limited both by shares and by guarantee;

(d) an unlimited company; or

(e) a no liability company, being whichever of those classes is—

(f) in the case of a corporation that was incorporated under the law of a participating State or participating Territory—equivalent to the class in which the corporation is included under the law of that State or Territory; or

(g) in the case of any other corporation—the same or substantially the same as the class in which that corporation is included under the law of the place where the corporation was incorporated.

(5) Where the Commission grants an application by a corporation under this Division for registration as a company, the Commission shall cause to be issued to the corporation a certificate under the common seal of the Commission—

(a) stating that the corporation has been registered under this Division as a company and specifying the date of commencement of the registration;

(b) stating that that company is—

(i)    a company limited by shares;

(ii)   a company limited by guarantee;

(iii)  a company limited both by shares and by guarantee;

(iv)  an unlimited company; or

(v)   a no liability company, as the case requires; and

(c) stating that that company is a proprietary company or a public company, as the case requires.

(6) The Commission shall cause a register to be kept for the purposes of this section and, where a corporation is registered under this Division as a company—

(a) shall cause to be entered in the register—

(i)    the name of the corporation; and

(ii)   the date of commencement of the registration of the corporation as a company; and

(b) shall cause to be incorporated with the register—


 

(i)    in the case of a corporation registered as a company under sub-section (1)—the application lodged by the corporation under sub-section 84 (2) and the documents that, by virtue of paragraph 84 (2) (b), accompanied that application; and

(ii)   in the case of a corporation registered as a company under sub-section (2)—the application lodged by the corporation under sub-section 85 (4) and the documents that, by virtue of paragraphs 85 (4) (a) to (g), inclusive, accompanied that application.

(7) Where a corporation is registered under this Division as a company and, immediately before the corporation was so registered, it was registered pursuant to Division 5 of Part XIII, the Commission shall, upon the registration of the corporation as a company, remove the name of the corporation from the register kept pursuant to that Division and may retain such of the documents registered pursuant to that Division that relate to the corporation as the Commission thinks fit.

Effect of registration

87. (1) Where, pursuant to section 86, the Commission registers a corporation as a company, then, from the commencement of the day specified in the certificate issued under sub-section 86 (5) as the date of commencement of the registration of that corporation as a company—

(a) the corporation shall be deemed to be a company duly incorporated under this Act;

(b) subject to the succeeding provisions of this Division, the provisions of this Act extend and apply to the corporation, and to persons and matters associated with the corporation, as if the corporation were a company duly incorporated under this Act;

(c) the corporation—

(i)    is capable of performing all the functions of a company duly incorporated under this Act;

(ii)   is capable of suing and being sued;

(iii)  has perpetual succession and shall have a common seal; and

(iv)  has power to acquire, hold and dispose of property; and

(d) the members of the corporation have such liability to contribute to the property of the corporation in the event of its being wound up under the provisions of this Act as is provided by the provisions of this Act as they apply to the corporation by virtue of the succeeding provisions of this Division.

(2) Sub-section (1) does not operate—

(a) to create a new legal entity;

(b) to prejudice or affect the identity of the body corporate constituted by the corporation or its continuity as a body corporate;

(c) to affect the property of the corporation;


 

(d) to affect any appointment made, resolution passed or any other act or thing done in relation to the corporation pursuant to a power conferred by any of the constituent documents of the corporation or by the law of the place where the corporation was incorporated; or

(e) except to the extent provided by this Division, to affect any rights, powers, authorities, duties, functions, liabilities or obligations of the corporation or any other person.

(3) Sub-section (1) does not operate to render defective any legal proceedings by or against the corporation, and any legal proceedings that could have been continued or commenced by or against the corporation before its registration as a company may, notwithstanding the registration, be continued or commenced by or against the corporation after its registration.

(4) Where, pursuant to sub-section 86 (2), the Commission registers a corporation as a company—

(a) the provisions of the constituent documents of the corporation that would, if the corporation had been incorporated under this Act, have been required by this Act to be included in its memorandum of association shall be deemed to be the registered memorandum of association of the company; and

(b) the provisions of the constituent documents of the corporation that do not, by virtue of paragraph (a), constitute the registered memorandum of association shall be deemed to be the registered articles of association of the company,

and those provisions of the constituent documents, to the extent to which they so constitute the registered memorandum of association or the registered articles of association of the company, bind the company and its members accordingly.

(5) A reference in sub-section (4) to the constituent documents of a corporation shall, if any of those documents is or are in a language other than English, be construed as a reference to the translation of the document or documents concerned into the English language that was lodged with the application for registration under this Division irrespective of the correctness of the translation, but nothing in this sub-section affects any liabilities of the corporation or its members that existed immediately before the registration of the corporation as a company.

Alterations to constituent documents of foreign companies

88. (1) A corporation that is registered under sub-section 86 (2) as a company of a particular class shall, within 90 days after the date of commencement of registration of the corporation, by special resolution, make such alterations (if any) to its constituent documents as—

(a) are necessary to express in Australian currency any amounts of money specified in the constituent documents;


 

(b) are necessary to ensure that the constituent documents comply with the requirements of this Act relating to constituent documents of companies of that class; and

(c) are necessary or expedient to give effect to the provisions of this Division, or are incidental to giving effect to those provisions.

(2) Where a corporation is required by paragraph (1) (a) to alter its constituent documents to express in Australian currency amounts of money specified in those documents, the alterations shall all be made on the basis of the same rate, being a rate fixed by resolution of the corporation before the passing of the special resolution referred to in sub-section (1), and the resolution fixing that rate, when passed pursuant to this sub-section, shall, for the purposes of section 251, be deemed to be a special resolution.

(3) Where a corporation is required by sub-section (1) to alter its constituent documents, the corporation shall, if the Commission so directs, apply to the Court, within a time specified by the Commission, for an order approving the constituent documents of the corporation as altered in accordance with the resolution referred to in that sub-section.

(4) Where, pursuant to sub-section (3), a corporation applies to the Court for an order approving its constituent documents as altered in accordance with sub-section (1), the Court may, if it is satisfied that the resolutions altering the constituent documents have been duly passed and that the alterations to the constituent documents satisfy the requirements of sub-section (1), make an order approving the constituent documents of the corporation as altered in accordance with those resolutions, with such modifications (if any) to the constituent documents as it thinks fit.

(5) Subject to sub-section (6), section 72 applies in relation to a resolution passed by a corporation pursuant to sub-section (1) or an order of the Court made in relation to a corporation under sub-section (4) as if the references in sub-sections 72 (2), (3), (5) and (9) to the memorandum of a company were references to the constituent documents of the corporation.

(6) Where a corporation would, but for this sub-section, be required by sub-section (5) and section 72 to lodge with the Commission a printed copy of its constituent documents as altered by a special resolution referred to in sub-section (1) or by an order of the Court made under sub-section (4), the corporation may instead lodge with the Commission a copy of the special resolution or an office copy of the order of the Court, as the case may be, and, if the memorandum of the corporation has been altered by the resolution or the order, a printed copy of the memorandum as altered.

(7) Where the constituent documents of a corporation registered as a company having a share capital are altered in accordance with this section, from the time when the alterations take effect—

(a) the amount of the nominal share capital and the nominal value of each share shall be taken to be the amount and value respectively expressed in the altered constituent documents;


 

(b) each person who held shares in the corporation immediately before the alteration took effect holds the same number of shares as he held before the alterations took effect and, in the case of a corporation shares in which are divided into 2 or more classes, the same number of shares in each class as he held before the alterations took effect; and

(c) the amount paid up on each share in the corporation shall be deemed to be an amount in Australian currency that bears to the nominal value of the share under the altered constituent documents the same proportion as, immediately before the alterations took effect, the amount paid up on the share bore to the nominal value of the share, and the amount of the share capital paid up shall be calculated accordingly.

(8) If a corporation fails to comply with the provisions of sub-section (1), (2) or (3), the corporation and any officer of the corporation who is in default are each guilty of an offence.

Effect of registration of company under corresponding law

89. Where—

(a) a company has applied, under the provision of the law of a participating State or of a participating Territory that corresponds with section 84, for registration as a company under the law of that State or Territory; and

(b) the Commission has registered that company as a company under the law of that State or Territory,

the company shall, from the time at which it is deemed, by virtue of the provision of a law of that State or Territory that corresponds with section 87, to be a company duly incorporated under the law of that State or Territory, cease to be incorporated under this Act.

Application of this Act to corporations registered under this Division

90. (1) Sub-section 75 (1) does not apply in relation to a corporation that has been registered under this Division as a company unless the members of the corporation, by special resolution, resolve that the sub-section should apply to the corporation.

(2) Section 239 does not apply in relation to a corporation that has been registered under this Division as a company.

(3) Section 240 applies in relation to a corporation that has been registered under this Division as a company as if—

(a) sub-section 240 (2) were omitted; and

(b) there were omitted from paragraph 240 (5) (a) “or the period of 18 months referred to in sub-section (2)”.

(4) Where a corporation that is a holding company is registered as a company under sub-section 86 (2), section 268 applies in relation to subsidiaries of the corporation that were subsidiaries of the corporation on the date of commencement of the registration of the corporation as a company


 

under sub-section 86 (2) and, notwithstanding sub-section 268 (2), the action referred to in sub-section 268 (1) shall be taken in relation to those subsidiaries within 12 months after that date.

(5) Section 360 applies in relation to a corporation that has been registered under this Division as a company as if a reference to a past member of the company included a reference to a person who had been a member of the corporation but had ceased to be such a member before the corporation was registered under this Division as a company but such a person is liable to contribute to the property of the company only to an amount sufficient for—

(a) payment of debts and liabilities contracted by the corporation before it was so registered;

(b) payment of the costs, charges and expenses of winding up the corporation, in so far as those costs, charges and expenses relate to the debts and liabilities referred to in paragraph (a); and

(c) the adjustment of the rights of the contributories among themselves, in so far as the adjustment relates to the debts and liabilities referred to in paragraph (a).

(6) Without prejudice to section 87, the Companies (Transitional Provisions) Act 1980 applies to a corporation that has been registered under this Division as a company, and to persons and matters associated with that corporation, as if that corporation had been incorporated under the law of the Territory corresponding with this Act that was in force immediately before the commencement of this Act and as if this Act commenced on the date of commencement of the registration of that corporation as a company under section 86.

Establishment of registers and minute books

91. (1) A corporation that is registered under this Division as a company shall, within 14 days after the date of commencement of the registration of the corporation—

(a) establish the registers required to be kept by the provisions of sections 131, 143, 147, 172, 209, 231, 238 and 256 and include in those registers such of the information required to be included in those registers as is available to the corporation at the date of commencement of the registration; and

(b) establish books to be used for the entry of minutes of proceedings of meetings for the purpose of compliance with section 253 and comply with the requirements of sub-section 254 (1) in relation to those books.

(2) Where, before the expiration of the period of 14 days referred to in sub-section (1)—

(a) pursuant to sub-section 131 (5), 143 (3), 147 (6), 172 (3), 209 (4), 231 (8), 238 (6) or 257 (3), a person requests a corporation that has been registered under this Division as a company to furnish the person with, or make available for inspection by the person, a copy of, or of a part of, a register kept pursuant to a requirement of this Act; or


 

(b) pursuant to sub-section 254 (2), a person requests a corporation that has been registered under this Division as a company to furnish the person with a copy of any minutes of a general meeting,

the period within which the corporation is obliged to comply with that request shall be deemed to commence at the expiration of that period of 14 days.

Share warrants

92. (1) Where a corporation that is registered under sub-section 86 (2) had, before its registration, issued any share warrant, the bearer of the share warrant is entitled, on surrendering it to the corporation for cancellation, to have his name entered as a member in the register of members of the corporation.

(2) A corporation that is registered under sub-section 86 (2) is liable to compensate a person for any loss incurred by him by reason of the corporation entering in the register of its members the name of the bearer of a share warrant issued before the registration of the corporation in respect of shares specified in the share warrant without the share warrant being surrendered and cancelled.

(3) Subject to this section, the articles of a corporation that is registered under sub-section 86 (2) may provide that the bearer of a share warrant in relation to shares in the corporation is to be deemed to be a member of the corporation either to the full extent or for any purpose defined in the articles.

Certificate of registration conclusive evidence

93. A certificate of registration under this Division as a company under the common seal of the Commission is conclusive evidence that all the requirements of this Division in respect of registration of the company under this Division and of matters precedent and incidental to the registration of the company under this Division have been complied with, and that the corporation referred to in the certificate is duly registered under this Division as a company and is deemed to be a company duly incorporated under this Act.

 

PART IV—PROSPECTUSES, SECURITIES AND CHARGES

Division 1Prospectuses

Interpretation

94. (1) For the purposes of this Act, a statement included in a prospectus shall be deemed to be untrue if it is misleading in the form or context in which it is included.

(2) For the purposes of the application of section 95 or 96, if forms referred to in the section concerned that are the same or substantially the same are issued to the public or are issued to any section of the public, whether selected as clients of the person issuing the forms or in any other manner, each of the forms shall be deemed to be issued to the public notwithstanding that


 

each form may be used only by the person to whom it is issued, but forms shall not be taken to be issued to the public by reason only that—

(a) they are issued to persons whose ordinary business is to buy or sell shares, debentures or prescribed interests, whether as principal or agent;

(b) they are issued to existing members or debenture holders of a corporation and relate to shares in, or debentures of, that corporation;

(c) they are issued to holders of prescribed interests made available by a corporation pursuant to a deed that is an approved deed for the purposes of Division 6 and relate to prescribed interests made available by that corporation pursuant to the same approved deed; or

(d) they are issued to existing members of a company in connection with a proposal referred to in section 409 and relate to shares in that company.

(3) A reference in this Division to a statement includes a reference to matter that is not written but, by reason of the form or context in which it appears, conveys a message.

Prohibition of issue of certain documents in relation to proposed corporations

95. (1) It is unlawful to issue—

(a) a form of application for shares in, or debentures of, a corporation that is to be formed; or

(b) a form to accompany a deposit of money with, or a loan of money to, a corporation that is to be formed.

(2) Sub-section (1) does not apply if—

(a) the form is not issued to the public; and

(b) the invitation or offer to which the form relates is not issued or made to the public.

(3) A corporation that, or another person who, does any act or thing that is unlawful by reason of sub-section (1) and any officer of such a corporation who is in default are each guilty of an offence.

Penalty: $20,000 or imprisonment for 5 years, or both.

Forms of application for shares or debentures to be attached to prospectus

96. (1) A form of application for shares in or debentures of a corporation or a form to accompany a deposit of money with, or a loan of money to, a corporation shall not be issued by the corporation or by any other person unless the form is attached to a prospectus and a copy of the form and a copy of the prospectus have been registered by the Commission under this Act or the corresponding law of a participating State or of a participating Territory.

(2) Sub-section (1) does not apply if—

(a) the form is not issued to the public; and

(b) the invitation or offer to which the form relates is not issued or made to the public.


 

(3) A corporation that, or another person who, contravenes this section and any officer of such a corporation who is in default are each guilty of an offence.

Penalty: $20,000 or imprisonment for 5 years, or both.

Invitations or offers in relation to borrowings by a corporation

97. (1) An invitation to the public to subscribe for or purchase debentures of a corporation or an offer to the public of debentures of a corporation for subscription or purchase, shall not be made by the corporation or by any other person unless—

(a) a copy of a prospectus in relation to the invitation or offer has been registered by the Commission under this Act or the corresponding law of a participating State or of a participating Territory;

(b) the prospectus contains an undertaking by the corporation that it will, within 2 months after the acceptance of any money as a deposit or loan from any person in response to the invitation or offer, issue to that person a document that acknowledges, evidences or constitutes an acknowledgement of the indebtedness of the corporation in respect of that deposit or loan; and

(c) the document is, in accordance with this section, described or referred to in the prospectus and in any other document constituting or relating to the invitation or offer as—

(i)    an unsecured note or an unsecured deposit note;

(ii)   a mortgage debenture or certificate of mortgage debenture stock; or

(iii)  a debenture or certificate of debenture stock.

(2) Where, pursuant to an invitation or offer referred to in sub-section (1), a corporation has accepted from any person any money as a deposit or loan, the corporation shall, within 2 months after the acceptance of the money, issue to that person a document that—

(a) acknowledges, evidences or constitutes an acknowledgement of the indebtedness of the corporation in respect of that deposit or loan; and

(b) complies with the other requirements of this section.

(3) The document shall be described or referred to in the prospectus, in any other document constituting or relating to the invitation or offer and in the document itself as an unsecured note or an unsecured deposit note, unless, pursuant to the provisions of either sub-section (4) or (5), it is, and may be, otherwise described.

(4) The document may be described or referred to in the prospectus, in any other document constituting or relating to the invitation or offer or in the document itself as a mortgage debenture or certificate of mortgage debenture stock if, and only if, there is included in the prospectus—

(a) a statement to the effect that—


 

(i)    the repayment of all moneys that have been or may be deposited with or lent to the corporation in response to the invitation or offer is secured by a first mortgage given to the trustee for the holders of the debentures to be issued in relation to the deposit or loan over land vested in the corporation or in any of its guarantor corporations;

(ii)   the mortgage has been duly registered, or is a registrable mortgage that has been lodged for registration, in accordance with the law relating to the registration of mortgages of land in the place where the land is situated; and

(iii)  the aggregate amount of those moneys and of all other liabilities (if any) secured by the mortgage of that land ranking pari passu with the liability to repay those moneys does not exceed 60% of the value of the corporation’s interest in that land as shown in the valuation included in the prospectus; and

(b) a copy of a written valuation of the corporation’s interest in the land so mortgaged showing the nature and extent of the corporation’s interest made not more than 6 months before the date of the prospectus by a person who is competent and qualified to make the valuation in the place where the land is situated and who is not an officer of the corporation, of any of its guarantor corporations or of any corporation that is related to either the first-mentioned corporation or any of its guarantor corporations.

(5) The document may be described or referred to in the prospectus, in any other document constituting or relating to the invitation or offer or in the document itself as a debenture or certificate of debenture stock if, and only if—

(a) pursuant to sub-section (4) it may be, but is not, described or referred to in that prospectus or document as a mortgage debenture or certificate of mortgage debenture stock; or

(b) there is included in the prospectus—

(i) a statement to the effect that—

(a) the repayment of all moneys that have been or may be deposited with or lent to the corporation in response to the invitation or offer has been secured by a charge in favour of the trustee for the holders of the debentures over the whole or any part of the tangible property of the corporation and of its guarantor corporations or any of them; and

(b) having regard to the particulars in the summary made in accordance with sub-paragraph (ii), the tangible property that constitutes the security for the charge is sufficient and is reasonably likely to be sufficient to meet the liability for the repayment of all such moneys and all other liabilities ranking in priority to, or pari passu with, that liability that have been or may be incurred; and


 

(ii) a summary made by a registered company auditor showing in tabular form the aggregate values (calculated as prescribed) of the tangible property of the borrowing corporation and of its guarantor corporations that has been charged to secure the repayment of all moneys and other liabilities referred to in sub-paragraph (i), after making such adjustments as are proper to give a true and fair view of the tangible property available as security for the charge and, in particular, after making adjustments—

(a) to exclude from those aggregate values such part of the value of any shares in or advances to a corporation as is reflected in or depends upon the tangible property of that corporation that is otherwise included in the summary;

(b) to exclude from those aggregate values such part of the value of any shares in a corporation that is related to the borrowing corporation or the guarantor corporation, as the case requires, as is properly attributable to intangible property of that first-mentioned corporation; and

(c) to add to those aggregate values the amount to be raised under the prospectus including the maximum amount of over-subscriptions that the prospectus in accordance with section 102 specifies may be retained,

being a summary that—

(d) shows the amounts outstanding of the aggregate amounts borrowed respectively by the borrowing corporation and by its guarantor corporations and distinguishes between the amounts that will rank for repayment in priority to the proposed issue and the amounts that will rank pari passu with that proposed issue;

(e) states by way of note or otherwise the total amount of the values of intangible property excluded in making the adjustments required under this sub-paragraph;

(f) where the corporation has given a charge over its assets to secure a liability the amount of which may vary from time to time, takes into account the actual amount of the liability as at the date at which the summary is made up but shows by way of note the further amount that may be advanced under that charge;

(g) where necessary, explains or qualifies by way of note or otherwise any of the matters set out in the summary;

(h) discloses by way of note or otherwise the amount of advances (distinguishing between advances that are secured and advances that are unsecured) by the borrowing corporation to any corporation that is related to


 

the borrowing corporation other than a corporation that is a guarantor corporation in relation to that borrowing corporation that has secured the guarantee by a charge over its property in favour of the trustee for the holders of the debentures of the borrowing corporation; and

(i) discloses by way of note or otherwise the amount of advances (distinguishing between advances that are secured and advances that are unsecured) by a corporation that is a guarantor corporation, or each corporation that is a guarantor corporation, in relation to the borrowing corporation to any corporation that is related to the borrowing corporation (other than the amount of advances to any other corporation that is also a guarantor corporation in relation to the borrowing corporation).

(6) Nothing in this section applies to a prescribed corporation and nothing in this Act requires a prospectus to be issued in connection with—

(a) an invitation issued by a prescribed corporation to the public to subscribe for or purchase debentures of a prescribed corporation; or

(b) an offer made by a prescribed corporation to the public of debentures of the prescribed corporation for subscription or purchase.

(7) In sub-section (6), “prescribed corporation” means—

(a) a banking corporation;

(b) a corporation that is declared by the Commission, by notice published in the Gazette, to be an authorized dealer in the short term money market; or

(c) a corporation that—

(i)    is a pastoral company in respect of which an exemption granted under section 11 of the Banking Act 1959 is in force;

(ii)   is registered under the Life Insurance Act 1945 or is a corporation the whole of the issued shares in which are held beneficially by a corporation so registered; or

(iii)  is a subsidiary of a banking corporation or of a pastoral company referred to in sub-paragraph (i), if the repayment of all existing and future deposits with and loans to the subsidiary are guaranteed by the banking corporation or pastoral company,

and is declared by the Commission by notice published in the Gazette to be a prescribed corporation for the purposes of this section.

(8) The Commission may, by notice published in the Gazette, vary or revoke a declaration made under paragraph (7) (b).

(9) The Commission may, by notice published in the Gazett