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Companies Act 1981

Act No. 89 of 1981 as amended, taking into account amendments up to Act No. 34 of 1991
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
Registered 24 Nov 2009
Start Date 01 Jul 1991
End Date 15 Jul 2001
Date of repeal 15 Jul 2001
Repealed by Corporations (Repeals, Consequentials and Transitionals) Act 2001

COMPANIES ACT 1981
(#DATE 09:10:1993)

- Updated as at 9 October 1993
*1* The Companies Act 1981 as shown in this reprint comprises Act No. 89, 1981 amended as indicated in the Tables below.
Table of Acts
Act Date Date of Application
Number and of assent commencement saving or
year transitional
provisions
Companies Act 1981
89, 1981 18 June 1981 1 July 1982 (see
Gazette 1982,
No. S124)
Companies and Securities Legislation (Miscellaneous Amendments)
Act 1981
153, 1981 26 Oct 1981 Part VII -
(ss. 21-87):
1 July 1982 (see
Gazette 1982,
No. S124) (a)
Statute Law (Miscellaneous Amendments) Act (No. 1) 1982
26, 1982 7 May 1982 Part XV -
(ss. 84-128):
1 July 1982 (see
Gazette 1982,
No. S124) (b)
Statute Law (Miscellaneous Amendments) Act (No. 2) 1982
80, 1982 22 Sept 1982 Part XIX -
(ss. 51-55):
1 Dec 1982 (see
Gazette 1982,
No. S241) (c)
Companies and Securities Legislation (Miscellaneous Amendments)
Act 1983
108, 1983 8 Dec 1983 Parts II-VII -
(ss. 3-151):
1 Jan 1983 (see
Gazette 1984,
No. S324)
Remainder:
Royal Assent
as
amended
by
192, 1985 16 Dec 1985 Part V -
(ss. 152, 153):
1 Jan 1984 (d)
Companies and Securities Legislation (Miscellaneous Amendments)
Act (No. 1) 1984
13, 1984 10 Apr 1984 Part I -
(ss. 1, 2):
Royal Assent
Remainder:
28 May 1984
(see Gazette
1984, No. S181)
Companies Amendment Act 1985
140, 1985 4 Dec 1985 Ss. 1 and 2:
Royal Assent
Remainder:
30 June 1986
(see Gazette
1986, No. S283)
Companies and Securities Legislation (Miscellaneous Amendments)
Act 1985
192, 1985 16 Dec 1985 Ss. 29-44, -
46-62, 64-76,
79, 82, 84-115,
117-130, 132 and
133: 31 Mar 1986
(see Gazette 1986,
No. S120) (e)
Ss. 45 and 131:
1 July 1982 (e)
S. 63: 1 July
1987 (e)
S. 77: 21 July
1986 (see
Gazette 1986,
No. S350) (e)
Ss. 78, 80, 81,
83 and 116: (e)
as
amended
by
Corporations Legislation Amendment Act (No. 2) 1991
201, 1991 18 Dec 1991 Part 5 -
(ss. 13, 14):
Royal Assent (f)
Statute Law (Miscellaneous Provisions) Act (No. 2) 1985
193, 1985 16 Dec 1985 S. 3: S. 16
Royal Assent (g)
Companies and Securities Legislation Amendment Act 1986
68, 1986 24 June 1986 Part III -
(ss. 13-15):
1 Jan 1987 (see
Gazette 1986,
No. S653)
Remainder:
Royal Assent
Sex Discrimination (Consequential Amendments) Act 1986
163, 1986 18 Dec 1986 15 Jan 1987 -
Australian Stock Exchange and National Guarantee Fund Act 1987
6, 1987 13 Mar 1987 Part I -
(ss. 1, 2):
Royal Assent
Remainder:
1 Apr 1987 (see
Gazette 1987,
No. S57)
Insurance and Superannuation Commissioner (Consequential
Provisions) Act 1987
99, 1987 5 Nov 1987 23 Nov 1987 S. 32
(see s. 2 and
Gazette 1987,
No. S310)
Co-operative Scheme Legislation Amendment Act 1989
92, 1989 27 June 1989 Parts 2, 3 -
(ss. 4-17) and
Parts 5, 6
(ss. 22-25):
1 Nov 1989 (see
Gazette 1989,
No. S345) (h)
Part 4
(ss. 18-21): (h)
Ss. 26-32:
1 July 1989
(see Gazette 1989,
No. S217) (h)
as
amended
by
Corporations Legislation Amendment Act (No. 2) 1991
201, 1991 18 Dec 1991 Part 6 -
(ss. 15, 16):
Royal Assent (i)
Patents Act 1990
83, 1990 30 Oct 1990 30 Apr 1991 -
Companies (Insolvency Assistance) Amendment Act 1991
34, 1991 21 Mar 1991 1 July 1991 -
(see Gazette
1991, No. S169)
(a) The Companies Act 1981 was amended by Part VII (sections 21-87) only of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1981, subsection 2 (4) of which provides as follows:
"(4) Parts VII, VIII, IX, X and XI shall come into operation on the day on which the Companies Act 1981 comes into operation."
(b) The Companies Act 1981 was amended by Part XV (sections 84-128) only of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, subsection 2 (5) of which provides as follows:
The Companies Act 1981 came into operation on 1 July 1982 (see Gazette 1982, No. S124).
(c) The Companies Act 1981 was amended by Part XIX (sections 51-55) only of the Statute Law (Miscellaneous Amendments) Act (No. 2) 1982, subsection 2 (4) of which provides as follows:
"(4) Parts XII and XIX shall come into operation on such respective dates as are fixed by Proclamation."
(d) The Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 was amended by Part V (sections 152 and 153) only of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, subsection 2 (12) of which provides as follows:
"(12) Part V shall be deemed to have come into operation on 1 January 1984."
(e) The Companies Act 1981 was amended by sections 29-133 only of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, subsections 2 (1) and (5)-(11) of which provide as follows:
"(1) Subject to this section, the provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation.
"(5) Subsection 25 (2) and sections 26, 127, 128, 198 and 199 shall come into operation on a day to be fixed by Proclamation.
"(6) Sections 27 and 69 shall come into operation on a day to be fixed by Proclamation.
"(7) Subsection 30 (2) and sections 36 to 43 (inclusive), 65 and 123 shall come into operation on a day to be fixed by Proclamation.
"(8) Sections 45 and 131 shall be deemed to have come into operation on 1 July 1982.
"(9) Section 63 and subsection 165 (2) shall come into operation on 1 July 1987.
"(10) Sections 72, 73 and 74 and subsection 75 (1) shall come into operation on a day to be fixed by Proclamation.
"(11) Subsection 80 (2) shall come into operation on the day on which subsection 80 (1) comes into operation or, if section 9 of the Companies Amendment Act 1985 does not come into operation before that day, immediately after the commencement of that section."
In pursuance of subsections 2 (1) and (11), sections 78, 80, 81, 83 and 116 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 were repealed by section 14 of the Corporations Legislation Amendment Act (No. 2) 1991 before a date was fixed for their commencement.
(f) The Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 was amended by Part 5 (sections 13 and 14) only of the Corporations Legislation Amendment Act (No. 2) 1991, subsection 2 (1) of which provides as follows:
"(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent."
(g) The Companies Act 1981 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1985, subsection 2 (1) of which provides as follows:
"(1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent."
(h) The Companies Act 1981 was amended by Parts 2, 3 (sections 4-17), Part 4 (sections 18-21), Parts 5, 6 (ss. 22-25) and sections 26-32 only of the Co-operative Scheme Legislation Amendment Act 1989, subsections (2) and (4)-(5) of which provide as follows:
"(2) Part 4 commences on a day to be fixed by Proclamation.
"(4) The Governor-General's power to fix by Proclamation the commencement of Part 4 or 9 shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council.
"(5) Subject to subsection (6), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation."
In pursuance of subsection (2) and (4), Part 4 (sections 18-21) of the Co-operative Scheme Legislation Amendment Act 1989 was repealed by section 16 of the Corporations Legislation Amendment Act (No. 2) 1991 before a date was fixed for the commencement.
(i) The Co-operative Scheme Legislation Amendment Act 1989 was amended by Part 6 (sections 15 and 16) only of the Corporations Legislation Amendment Act (No. 2) 1991, subsection 2 (1) of which provides as follows:
"(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent."
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
S. 3 am. No. 193, 1985
S. 5 am. No. 153, 1981; No. 80, 1982; No. 108,
1983; No. 13, 1984; No. 192, 1985; No. 6,
1987; No. 92, 1989
S. 6 am. No. 108, 1983; No. 192, 1985
S. 8 am. No. 108, 1983; No. 192, 1985; No. 92,
1989
S. 9 am. No. 192, 1985
S. 9A ad. No. 92, 1989
S. 12 am. No. 108, 1983; No. 192, 1985
S. 15 am. No. 153, 1981
S. 16 rs. No. 153, 1981
S. 16A ad. No. 26, 1982
rs. No. 192, 1985
Heading to ad. No. 108, 1983
Subdiv. A of
Div. 2 of Part II
S. 18 am. No. 153, 1981; No. 108, 1983; No. 192,
1985
S. 20 am. No. 153, 1981; No. 108, 1983; No. 192,
1985
S. 22 am. No. 153, 1981
Ss. 23, 24 am. No. 108, 1983
S. 25 am. No. 108, 1983; No. 192, 1985
S. 27 am. No. 153, 1981; No. 26, 1982
rep. No. 108, 1983
S. 28 am. No. 108, 1983
Subdiv. B of ad. No. 108, 1983
Div. 2 of Part II
(ss. 30A-30S)
Ss. 30A-30C ad. No. 108, 1983
S. 30D ad. No. 108, 1983
am. No. 192, 1985
Ss. 30E, 30F ad. No. 108, 1983
S. 30G ad. No. 108, 1983
am. No. 192, 1985
Ss. 30H-30L ad. No. 108, 1983
Ss. 30M, 30N ad. No. 108, 1983
am. No. 192, 1985
Ss. 30P, 30Q ad. No. 108, 1983
S. 30R ad. No. 108, 1983
am. No. 192, 1985
S. 30S ad. No. 108, 1983
S. 31 am. No. 153, 1981; No. 108, 1983; No. 192,
1985; No. 92, 1989
S. 31A ad. No. 92, 1989
S. 33 am. No. 192, 1985
S. 37 am. No. 108, 1983
S. 38 am. No. 26, 1982
S. 50 am. No. 153, 1981
S. 66 am. No. 153, 1981
Heading to Div. 3 am. No. 192, 1985
of Part III
Ss. 66A-66C ad. No. 192, 1985
Ss. 67, 68 rs. No. 108, 1983
am. No. 192, 1985
S. 68A ad. No. 108, 1983
am. No. 140, 1985
S. 68B ad. No. 108, 1983
rep. No. 192, 1985
Ss. 68C, 68D ad. No. 108, 1983
S. 72 am. No. 108, 1983
S. 73 am. No. 26, 1982; No. 108, 1983; No. 192,
1985
S. 78 rs. No. 192, 1985
S. 79 am. No. 26, 1982
S. 80 am. No. 108, 1983
S. 83 am. No. 153, 1981; No. 108, 1983
Ss. 84, 85 am. No. 26, 1982; No. 108, 1983
S. 90 am. No. 153, 1981
S. 91 am. No. 108, 1983
S. 94 am. No. 108, 1983
S. 96 am. No. 108, 1983
S. 97 am. No. 153, 1981; No. 108, 1983
S. 98 am. No. 153, 1981; No. 192, 1985
Ss. 99, 100 am. No. 108, 1983; No. 192, 1985
S. 102 am. No. 153, 1981
S. 103 am. No. 108, 1983
S. 105 am. No. 192, 1985
S. 109 rep. No. 108, 1983
Heading to Div. 3 rs. No. 92, 1989
of Part IV
Heading to ad. No. 92, 1989
Subdiv. A of
Div. 3 of Part IV
Ss. 116, 117 am. No. 108, 1983
S. 119 am. No. 92, 1989
S. 120 am. No. 26, 1982
S. 121 am. No. 108, 1983
S. 123 am. No. 108, 1983
Heading to ad. No. 92, 1989
Subdiv. B of
Div. 3 of Part IV
S. 124 am. No. 26, 1982
Ss. 125-127 am. No. 153, 1981
Heading to ad. No. 92, 1989
Subdiv. C of
Div. 3 of Part IV
S. 129 am. No. 26, 1982; No. 92, 1989
S. 130 am. No. 108, 1983; No. 92, 1989
Subdiv. D of ad. No. 92, 1989
Div. 3 of Part IV
(ss. 13OA-130H)
Ss. 130A-130H ad. No. 92, 1989
Heading to ad. No. 92, 1989
Subdiv. E of
Div. 3 of Part IV
S. 131 am. No. 153, 1981; No. 26, 1982; No. 192,
1985
Div. 3A of Part IV ad. No. 92, 1989
(ss. 133AA,
133BA-133BC,
133BE-133BM,
133CA-133CD,
133DA, 133DB,
133EA, 133FA-133FE,
133GA-133GD,
133HA-133HC,
133JA, 133JB,
133KA-133KN,
133LA-133LG,
133MA-133MF,
133NA-133NC,
133PA-133PD,
133QA-133QD,
133RA-133RD,
133SA-133SF,
133TA, 133TB,
133UA, 133UB,
133VA-133VF)
Ss. 133AA, ad. No. 92, 1989
133BA-133BC,
133BE-133BM,
133CA-133CD,
133DA, 133DB,
133EA, 133FA-133FE,
133GA-133GD,
133HA-133HC,
133JA, 133JB,
133KA-133KN,
133LA-133LG,
133MA-133MF,
133NA-133NC,
133PA-133PD,
133QA-133QD,
133RA-133RD,
133SA-133SF,
133TA, 133TB,
133UA, 133UB,
133VA-133VF
S. 134 am. No. 192, 1985
S. 136 am. No. 108, 1983; No. 192, 1985; No. 68,
1986
Ss. 138, 139 rs. No. 68, 1986
S. 141 rs. No. 192, 1985
am. No. 6, 1987
S. 143 am. No. 26, 1982
S. 144A ad. No. 108, 1983
S. 145 am. No. 108, 1983
S. 146 am. No. 26, 1982; No. 108, 1983; No. 192,
1985
Ss. 147, 148 am. No. 26, 1982; No. 108, 1983

Ss. 152-154 am. No. 153, 1981
S. 158 am. No. 153, 1981; No. 26, 1982
S. 162 am. No. 108, 1983
S. 164 am. No. 108, 1983; No. 92, 1989
S. 165 am. No. 108, 1983
S. 166 am. No. 108, 1983; No. 192, 1985
S. 167 am. No. 108, 1983
S. 168 am. No. 108, 1983; No. 92, 1989
S. 170 am. No. 153, 1981; No. 108, 1983
S. 172 am. No. 108, 1983
S. 174A ad. No. 92, 1989
S. 176 am. No. 108, 1983
S. 182 am. No. 26, 1982
S. 186 rs. No. 192, 1985
S. 188 am. No. 108, 1983
S. 189 am. No. 192, 1985; No. 92, 1989
S. 191 am. No. 192, 1985; No. 92, 1989
S. 194 am. No. 192, 1985
rs. No. 92, 1989
Ss. 194A-194D ad. No. 92, 1989
S. 195 am. No. 192, 1985
S. 198 am. No. 192, 1985; No. 92, 1989
S. 200 am. No. 26, 1982; No. 13, 1984
S. 203 am. No. 108, 1983
S. 204 am. No. 83, 1990
S. 205 am. No. 153, 1981
S. 205A ad. No. 192, 1985
S. 209 am. No. 153, 1981; No. 26, 1982
S. 211 am. No. 26, 1982
rs. No. 13, 1984
S. 212 rs. No. 153, 1981
S. 215A ad. No. 26, 1982
Div. 10 of Part IV ad. No. 108, 1983
(ss. 215B, 215C)
S. 215B ad. No. 108, 1983
S. 215C ad. No. 108, 1983
am. No. 92, 1989
Ss. 215DA, 215DB ad. No. 92, 1989
S. 215D ad. No. 192, 1985
S. 217 am. No. 153, 1981
S. 218 am. No. 192, 1985
S. 222 am. No. 108, 1983; No. 192, 1985
S. 227 am. No. 153, 1981
S. 227A ad. No. 108, 1983
S. 229 am. No. 108, 1983
S. 229A ad. No. 192, 1985
S. 230 am. No. 108, 1983; No. 192, 1985
S. 231 am. No. 26, 1982
Ss. 232, 233 am. No. 108, 1983; No. 192, 1985
S. 237 am. No. 153, 1981; No. 108, 1983
S. 238 am. No. 26, 1982; No. 108, 1983 (as am. by
No. 192, 1985); Nos. 140 and 192, 1985
S. 238A ad. No. 108, 1983
am. No. 192, 1985
S. 239 am. No. 153, 1981; No. 26, 1982; No. 108,
1983
S. 241 am. No. 108, 1983
S. 247 am. No. 108, 1983
Ss. 250, 251 am. No. 26, 1982
S. 254 am. No. 26, 1982
S. 255A ad. No. 192, 1985
S. 256 am. No. 192, 1985
S. 257 am. No. 26, 1982
S. 258 am. No. 108, 1983
S. 260 am. No. 192, 1985
S. 261 rs. No. 108, 1983
am. No. 192, 1985
S. 261A ad. No. 108, 1983
am. No. 192, 1985
S. 262 am. No. 26, 1982
S. 263 am. No. 140, 1985; No. 92, 1989
S. 264 rep. No. 140, 1985
S. 265 am. No. 108, 1983; No. 140, 1985
S. 265A ad. No. 140, 1985
Div. 6 of Part V ad. No. 192, 1985
(ss. 265B, 265C)
Ss. 265B, 265C ad. No. 192, 1985
S. 266 am. No. 108, 1983
Ss. 266A-266F ad. No. 108, 1983
S. 266G ad. No. 192, 1985
S. 269 am. No. 108, 1983; No. 140, 1985
S. 270 am. No. 108, 1983
S. 272 rs. No. 108, 1983
S. 273 am. No. 192, 1985
S. 275 am. No. 192, 1985
S. 275A ad. No. 140, 1985
S. 276 am. No. 108, 1983; No. 140, 1985
S. 279 am. No. 140, 1985
S. 280 am. No. 192, 1985
S. 282 am. No. 108, 1983
S. 285 am. No. 108, 1983; No. 192, 1985
S. 289 am. No. 192, 1985
S. 296 am. No. 108, 1983
S. 297 am. No. 153, 1981
Ss. 298-303 am. No. 192, 1985
Ss. 311, 312 am. No. 108, 1983
S. 315 am. No. 153, 1981; No. 108, 1983; No. 192,
1985; No. 34, 1991
S. 317 am. No. 153, 1981; No. 26, 1982
S. 320 am. No. 108, 1983
S. 321 rs. No. 108, 1983
Ss. 323, 324 am. No. 108, 1983
S. 324A ad. No. 108, 1983
am. No. 192, 1985
S. 324B ad. No. 108, 1983
Ss. 324C, 324D ad. No. 108, 1983
am. No. 192, 1985
Ss. 324E, 324F ad. No. 108, 1983
S. 325 am. No. 108, 1983
S. 325A ad. No. 108, 1983
am. No. 192, 1985
S. 326 am. No. 153, 1981; No. 108, 1983
S. 327 am. No. 108, 1983
S. 328 am. No. 153, 1981; No. 108, 1983
S. 329 rs. No. 153, 1981
am. No. 108, 1983
S. 329A ad. No. 108, 1983
S. 330 am. No. 153, 1981; No. 108, 1983
S. 331 am. No. 108, 1983; No. 192, 1985
S. 332 am. No. 108, 1983
Ss. 335, 336 am. No. 153, 1981
S. 340 am. No. 153, 1981; No. 108, 1983
Ss. 341, 342 am. No. 108, 1983
S. 347 am. No. 153, 1981
S. 351 am. No. 192, 1985
S. 357 am. No. 153, 1981; No. 26, 1982
S. 360 am. No. 26, 1982
S. 363 am. No. 99, 1987
S. 364 am. No. 108, 1983
S. 368 am. No. 192, 1985
S. 370 am. No. 26, 1982
Ss. 375, 376 am. No. 153, 1981
S. 377 am. No. 192, 1985
S. 380 rep. No. 108, 1983
S. 389 am. No. 153, 1981
S. 394 am. No. 26, 1982
S. 395 am. No. 153, 1981
S. 398 am. No. 153, 1981
S. 411 am. No. 153, 1981; No. 108, 1983
S. 417 am. No. 153, 1981
S. 418 am. No. 108, 1983; No. 192, 1985
S. 420 am. No. 108, 1983
S. 421 am. No. 153, 1981
S. 421A ad. No. 108, 1983
S. 422 am. No. 26, 1982
S. 427 am. No. 153, 1981
S. 429 am. No. 192, 1985
S. 435 am. No. 26, 1982
S. 438 am. No. 92, 1989
S. 441 am. No. 192, 1985
Ss. 443-446 am. No. 192, 1985
Ss. 448, 449 am. No. 192, 1985
S. 454 am. No. 153, 1981
S. 457 am. No. 108, 1983; No. 192, 1985
S. 459 am. No. 108, 1983
S. 475 am. No. 153, 1981
S. 494 am. No. 108, 1983
Ss. 500, 501 am. No. 108, 1983
S. 505 am. No. 108, 1983
S. 509 am. No. 80, 1982; No. 192, 1985
S. 510 am. No. 108, 1983
S. 512 am. No. 153, 1981; No. 192, 1985
S. 514 am. No. 153, 1981; No. 26, 1982
S. 515 am. No. 153, 1981; No. 26, 1982; No. 108,
1983; No. 192, 1985
S. 517 am. No. 153, 1981; No. 80, 1982; No. 192,
1985
S. 518 am. No. 108, 1983
S. 521 am. No. 153, 1981
S. 528 am. No. 26, 1982; No. 108, 1983
S. 529 am. No. 108, 1983; No. 192, 1985
S. 530 am. No. 108, 1983
S. 530A ad. No.153, 1981
am. No. 26, 1982
S. 534 am. No. 108, 1983
S. 535 am. No. 153, 1981; No. 108, 1983
S. 538 am. No. 108, 1983
S. 547 am. No. 153, 1981; No. 108, 1983
S. 548 am. No. 153, 1981
S. 552 am. No. 192, 1985
S. 553 am. No. 108, 1983
S. 554 am. No. 153, 1981; No. 192, 1985
S. 556 am. No. 192, 1985
S. 558 am. No. 153, 1981
S. 559 am. No. 108, 1983
S. 560 am. No. 108, 1983; No. 192, 1985
S. 562 am. No. 153, 1981; No. 108, 1983; No. 192,
1985
S. 562A ad. No. 192, 1985
S. 563 am. No. 192, 1985
S. 564 rs. No. 192, 1985
S. 565 am. No. 192, 1985
S. 570 am. No. 192, 1985
S. 570A ad. No. 108, 1983
S. 571 am. No. 26, 1982; No. 108, 1983
rs. No. 192, 1985
S. 572 am. No. 192, 1985
S. 573 am. No. 26, 1982
S. 574 am. No. 26, 1982; No. 108, 1983
S. 577 am. No. 153, 1981; No. 108, 1983; No. 192,
1985
S. 578 am. No. 163, 1986
S. 581 rs. No. 80, 1982
am. No. 192, 1985
Schedule 1 am. No. 26, 1982
Schedule 2 rep. No. 108, 1983
Schedule 3 am. No. 153, 1981; No. 108, 1983
Schedule 4 am. No. 192, 1985; No. 92, 1989
Schedule 5 am. No. 108, 1983

COMPANIES ACT 1981 - TABLE OF PROVISIONS

TABLE

TABLE OF PROVISIONS
Section
PART I - PRELIMINARY
1. Short title
2. Commencement
3. Objects and application
4. Repeal
5. Interpretation
6. Affairs of a corporation
7. Subsidiaries, holding companies and related corporations
8. Relevant interests in shares
9. Associated persons
9A. Inclusion in official list
PART II - ADMINISTRATION
Division 1 - Powers 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
16A. Investigation of certain matters
Division 2 - Registration of Auditors and Liquidators
Subdivision A - Registration
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
23. Register of Auditors
24. Registers of Liquidators and Official Liquidators
25. Notification of certain matters
26. Triennial statements by registered auditors and
liquidators
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
Subdivision B - Cancellation or Suspension of
Registration
30A. Interpretation
30B. Cancellation at request of registered person
30C. Official liquidators
30D. Powers of Board in relation to auditors and liquidators
30E. Hearings
30F. Power to summon witnesses and take evidence
30G. Proceedings at hearings
30H. Failure of witnesses to attend and answer questions
30J. Contempt of Board
30K. Protection of members etc.
30L. Hearings deemed to be judicial proceedings
30M. Notice of Board's decision
30N. Time when Board's decision comes into effect
30P. Effect of suspension
30Q. Costs
30R. Appeal from decision of Board
30S. Operation of section 27
Division 3 - Registers and Registration of Documents
31. Registers
31A. Obtaining information from certain 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 recognised company
42. Registration of name of recognised company
43. Reservation and registration of proposed new name of
company
44. Reservation of proposed new name of recognised company
45. Registration of new name of recognised company
46. Reservation and registration of name of intended foreign
company or foreign company
47. Reservation of name of intended recognised foreign
company or recognised foreign company
48. Registration of name of recognised foreign company
49. Reservation and registration of proposed new name of
registered foreign company
50. Reservation of proposed new name of recognised foreign
company
51. Registration of new name of recognised foreign company
52. Reservation and registration of name of recognised
company proposing to transfer incorporation to the
Territory
53. Reservation of name of company or recognised company
proposing to transfer incorporation to participating
State or Territory
54. Registration of name of recognised 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 recognised 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 recognised company or recognised
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
65. Change of name
66. Omission of "Limited" in names of charitable and other
companies
Division 3 - Legal Capacity, Powers and Status
66A. Commencement of certain provisions
66B. Interpretation
66C. Object of sections 67 and 68
67. Legal capacity
68. Restrictions on companies
68A. Persons having dealings with companies etc.
68C. Lodgment of documents etc. with Commission not to
constitute constructive notice
68D. Effect of fraud
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 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. Operation 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 authorising application for transfer of
incorporation
84. Application by recognised 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 a
corporation
98. Contents of prospectuses
99. Certain notices etc. not to be published

100. Certain reports referring to prospectuses not to be
published
101. Evidentiary provisions etc.
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
Division 2 - Restrictions 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 3 - Capital Structure of Companies
Subdivision A - Shares Generally
113. Return as to allotments
114. Differences in calls and payments, reserve liability
etc.
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 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
Subdivision B - Class Rights
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
Subdivision C - Company Financing Dealings in its
Shares etc.
129. Company financing dealings in its shares etc.
130. Consequences of company financing dealings in its shares
etc.
Subdivision D - Unacceptable Self-acquisition Schemes
130A. Interpretation
130B. Self-acquisition scheme
130C. Relevant matters affecting self-acquisition scheme
130D. Declaration by Commission
130E. Commission may make interim orders
130F. Court may reverse Commission's declaration
130G. Court may act on Commission's declaration
130H. Effect of Subdivision
Subdivision E - Other
131. Register of options
132. Options over unissued shares
133. Power of company to pay interest out of capital in
certain cases
Division 3A - Permitted Buy-backs of Shares
Subdivision A - How this Division Works
133AA. Outline of structure
Subdivision B - Interpretation
133BA. Effect of Subdivision
133BB. Interpretation
133BC. What constitutes buying back shares
133BE. The 10% in 12 months limit
133BF. Takeover aspects of proposed resolution
133BG. When directors presumed to be aware of proposed or
actual takeover bid
133BH. Solvency declaration
133BJ. Auditor's report on solvency declaration
133BK. When buy-back agreement is completed
133BL. When shares are transferred
133BM. Classes of shares
Subdivision C - Power to Buy Back Shares
133CA. Power to buy back shares
133CB. Completion of buy-back
133CC. Effect of Division
133CD. Other obligations and liabilities not affected
Subdivision D - Buy-back Authorisation in Articles
133DA. Articles to contain buy-back authorisation
133DB. Inclusion, effect and renewal of buy-back authorisation
Subdivision E - Buy-backs by Public Companies
133EA. Only certain buy-backs permitted
Subdivision F - Buy-back Schemes
133FA. Shares and classes of shares
133FB. Buy-back scheme
133FC. Withdrawal or variation of buy-back offers
133FD. Avoiding odd lots
133FE. Odd lots to be disregarded for purposes of 10% in 12
months limit
Subdivision G - Approval of Buy-back Schemes by Ordinary
Resolution
133GA. When approval required
133GB. Buy-back offers made under a resolution
133GC. Resolution to approve proposed buy-back scheme
133GD. Notice of resolution to approve proposed buy-back scheme
Subdivision H - Employee-shares Purchases
133HA. Approval by ordinary resolution
133HB. Resolution to approve proposed employee-shares purchase
133HC. Notice of resolution to approve proposed employee-shares
purchase
Subdivision J - Selective Buy-backs
133JA. Approval, by special resolution passed by special
majority, of selective buy-back by public company
133JB. Approval by special resolution where selective buy-back
by proprietary company exceeds 10% in 12 months limit
Subdivision K - Notice of Resolution to Approve Proposed
Selective Buy-back
133KA. Notice must comply with Subdivision
133KB. Contents of resolution and proposed agreement
133KC. Availability of agreement for inspection
133KD. Valuation of non-cash consideration
133KE. Expert's opinion about whether consideration fair and
reasonable
133KF. Matters affecting expert's objectivity
133KG. Expert's consent
133KH. Reasons for buy-back
133KJ. Solvency aspects
133KK. Directors' interests
133KL. Effect on control of company
133KM. Other relevant information
133KN. Notices to be the same
Subdivision L - Creditors may Object to Proposed
Buy-backs
133LA. Advertising proposed buy-backs
133LB. Content of advertisement
133LC. Newspapers in which advertisement to be published
133LD. Creditor may apply to Court
133LE. How application to be dealt with
133LF. Buy-backs not to proceed while application pending
133LG. Company to comply with order of Court
Subdivision M - Solvency Requirements
133MA. Solvency requirements for buy-back scheme
133MB. Solvency requirements for other buy-backs
133MC. Copy of solvency declaration and auditor's report to be
lodged with Commission
133MD. Revocation of solvency declaration
133ME. Solvency requirements for completion of buy-back under
buy-back scheme
133MF. Company not to register certain transfers during
solvency period
Subdivision N - Share Buy-backs and other Securities
Issues
133NA. Buy-back consideration not to consist of other
securities of the company
133NB. No buy-backs during rights issue or placement
133NC. No rights issue or placement during offer period or
within 3 months after buy-back
Subdivision P - Effect of Buy-back on Shares
133PA. Rights attaching to bought back shares
133PB. Company not to dispose of bought back shares
133PC. Cancellation of shares after transfer to company
133PD. Accounting for money spent on buy-back where amount
exceeds nominal value of shares
Subdivision Q - Effect of Insolvency
133QA. Buy-back offer by externally-administered company void
133QB. Effect of supervening insolvency on buy-back scheme
133QC. Directors to indemnify insolvent company where
consideration provided, or partly-paid shares acquired,
under buy-back agreements
133QD. Relief from liability under section 133QC
Subdivision R - Rights of Unpaid Sellers
133RA. Specific performance of buy-back agreements
133RB. Buy-back agreement unenforceable while company insolvent
133RC. Unpaid seller may prove in winding up of company
133RD. Ranking of seller's claim in winding up
Subdivision S - Certificates and Declarations of
Compliance
133SA. Certificate of compliance
133SB. Presumptions about certain matters
133SC. Who must sign compliance certificate
133SD. Offences relating to compliance certificates: buy-back
schemes
133SE. Offences relating to compliance certificates: other
buy-backs
133SF. Declaration by Court of substantial compliance
Subdivision T - Notifying Commission and Securities
Exchanges about Buy-backs
133TA. Company to notify Commission of buy-backs
133TB. Listed company to notify securities exchanges of
buy-backs
Subdivision U - Listed Company to Notify Members about
Share Cancellations
133UA. Notifying member whose shares were cancelled
133UB. Notifying members generally
Subdivision V - Register of Buy-backs
133VA. Company to keep register
133VB. Particulars of buy-back schemes
133VC. Particulars of other buy-backs
133VD. Alteration of register where buy-back does not proceed
133VE. Entries in register after cancellation of shares
133VF. Inspection and copies of register
Division 4 - Substantial Shareholdings
134. Application and interpretation
135. Persons obliged to comply with Division
136. Substantial shareholdings, substantial shareholders,
notifiable changes etc.
137. Substantial shareholder to notify company of his
interests
138. Substantial shareholder to notify company of changes in
interests
139. Person who ceases to be a substantial shareholder to
notify company
140. References to operation of section 8
141. Copy of notice to be served on securities exchanges
142. Commission may extend period for giving notice under
this Division
143. Company to keep register of substantial shareholders
144. Offences against certain sections
144A. Civil remedy where failure or default under Division
145. Knowledge of employee or agent imputed to employer or
principal
146. Powers of Court with respect to defaulting substantial
shareholder
Division 5 - Debentures
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
etc.
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 corporations
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 etc. relating to prescribed
interests
174. Penalty for breach of certain provisions or covenants
174A. Buy-back covenant and buy-back arrangements
175. Winding up of schemes etc.
176. 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. What is a sufficient instrument of transfer
192. Transfers by authorised trustee corporations
193. Execution of transfer by transferee
194. Effect where instrument purports to bear transferor's
broker's stamp
194A. Warranties by securities exchange where instrument
purports to bear its stamp
194B. Indemnities by securities exchange and broker where
instruments purport to bear their stamps
194C. Joint and several warranties and liabilities
194D. Additional operation of sections 194 to 194C
195. Registration of prescribed instruments
196. Operation of Division
197. Occupation need not appear in register, instrument etc.
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
205A. Charges in favour of certain persons void in certain
cases
206. Assignment and variation of charges
207. Satisfaction of, and release of property from, charges
208. Lodgment of notices, offences etc.
209. Company to keep documents relating to charges and
register of charges
210. Certificates
211. Registration under other legislation relating to charges
212. Power of Court to rectify Register etc.
213. Charges on property of recognised companies or
recognised foreign companies
214. Provisions applying when incorporation transferred
215. Power to exempt from compliance with certain
requirements of Division
215A. Charges created before commencement of this Act
Division 10 - Exemption from, and modification of the
application of, Divisions of this Part
215B. Banking business
215C. Powers of Commission: Divisions 1, 2, 5 and 6 and
section 552
215DA. Powers of Commission: Divisions 7 and 8 and Schedule 4
215DB. Exemptions and declarations under sections 215C and
215DA
215D. Retirement village schemes
PART V - MANAGEMENT AND ADMINISTRATION
Division 1 - Office and Name
216. Registered office of company
217. Notice of address of registered office and office hours
218. Publication of name
Division 2 - Directors 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
227A. Court may order persons not to manage corporations
228. Disclosure of interests in contracts, property, offices
etc.
229. Duty and liability of officers
229A. Liability of directors for debts etc. incurred by
corporation acting as trustee
230. Loans to directors
231. Register of directors' shareholdings etc.
232. General duty to make disclosure
233. Benefits 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 officer and
secretaries
238A. Register of Disqualified Company Directors and Other
Officers
Division 3 - Meetings 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 etc. at meetings
245. Proxies
246. Power of Court to order meeting
247. Circulation of members' resolutions etc.
248. Special resolutions
249. Resolution requiring special notice
250. Resolutions of exempt proprietary companies
251. Lodgment with the Commission etc. of copies of certain
resolutions and agreements
252. Resolutions at adjourned meetings
253. Minutes of proceedings
254. Inspection of minute books
Division 4 - Register of Members
255. Non-application of the Division to mutual life assurance
companies
255A. Notices relating to non-beneficial and beneficial
ownership of shares
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 etc. may be registered as owner of shares
261. Power of company to obtain information as to beneficial
ownership of its shares
261A. Powers of Court
262. Branch registers
Division 5 - Annual Return
263. Annual return
265. Exemption of certain companies
265A. Information in annual return deemed to satisfy certain
other lodgment requirements
Division 6 - Inspection of Records
265B. Inspection of records
265C. Disclosure of information
PART VI - ACCOUNTS AND AUDIT
Division 1 - Preliminary
266. Interpretation
266A. Dormant corporations
266B. Approved accounting standards
266C. Application of approved accounting standards
266D. Board to have regard to possibility of disallowance
266E. Interpretation etc. of accounting standards
266F. Power of Board to require copy of accounts or group
accounts
266G. Annual report

Division 2 - Accounts
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. Directors of holding company to obtain all necessary
information
273. Relief from requirements as to accounts and reports
274. Members of company entitled to balance-sheet etc.
275. Accounts and reports to be laid before annual general
meeting
275A. Commission may require company to lodge accounts etc.
276. Failure to comply with Division
Division 3 - Audit
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 4 - Special 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
294. Powers of Commission and inspectors appointed under
corresponding law
295. Powers of inspectors
296. Examination of officers
297. Officer or other person failing to comply with
requirement 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 statements at an
examination
301. Weight of evidence
302. Credibility of person who made statements
303. Determination of objection to admissibility of statement
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 etc. 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 etc.
324. Liability of receiver
324A. Powers of receiver
324B. Duties of receiver with respect to bank accounts and
accounting records
324C. Reports by receiver
324D. Prosecution of delinquent officers and members
324E. Supervision of receivers
324F. Receiver may apply to Court
325. Power of Court to fix remuneration of receivers
325A. Receiver to enjoy qualified privilege in certain
circumstances
326. Notification of appointment of receiver
327. Statement that receiver appointed
328. Provisions as to information where receiver appointed
329. Receiver may require reports
329A. Receiver may inspect books
330. Lodging of accounts of receiver
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. Report as to 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
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 etc.
367. Powers of Court on hearing application
368. Avoidance of dispositions of property, attachments etc.
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. Report as to 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
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 liquidator
385. Appointment of special manager
386. Claims of creditors and distribution of property
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 3 - Voluntary 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 B - Provisions 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 recognised
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 etc.
408. Powers and duties of liquidator
409. Power of liquidator to accept shares etc. 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 4 - Provisions 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
421A. Regulations relating to money etc. received by
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
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, retrenchment payments 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 etc. 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 5 - Reciprocity 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 recognised company or recognised
foreign company
466. Exercise by the Court of powers or functions in relation
to a recognised company or recognised 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
recognised companies or recognised foreign companies
Division 6 - Winding 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 7 - Miscellaneous
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 1 - No 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 2 - Investment 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 3 - Companies 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 4 - Recognized Companies and Recognized Foreign
Companies
505. Interpretation
506. Power to hold land
507. Recognised company or recognised foreign company to have
a principal office
508. Name of recognised company or recognised foreign company
to be reserved or registered
509. Publication of name etc. of recognised company or
recognised foreign company
Division 5 - Foreign 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 lodged where documents etc. altered
516. Balance-sheets and other documents
517. Publication of name etc. of foreign company
518. Cessation of business etc.
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 1 - General
528. Service of documents on company
529. Service of documents on recognised company or recognised
foreign company

530. Service of documents on registered foreign company
530A. Address of registered office, principal office etc.
531. Vesting of property
532. Parts of dollar to be disregarded in determining
majority in value of creditors etc.
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 etc.
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 etc.
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 2 - Offences
552. Restriction on offering shares, debentures etc. 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
561. Frauds by officers
562. Court may disqualify person from acting as director etc.
in certain circumstances
562A. Commission may order persons not to manage corporations
563. False or misleading statements
564. False information etc.
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
570A. Penalty notices
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 3 - Rules and Regulations
576. Rules
577. Regulations
Division 4 - Miscellaneous
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 certain Ordinances
SCHEDULE 1
REPEALED ORDINANCES
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

COMPANIES ACT 1981 - LONG TITLE

SECT

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

COMPANIES ACT 1981 - PART I
PART I - PRELIMINARY

COMPANIES ACT 1981 - SECT 1
Short title

SECT

1. This Act may be cited as the Companies Act 1981.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

COMPANIES ACT 1981 - SECT 2
Commencement

SECT

2. This Act shall come into operation on a date to be fixed by Proclamation.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

COMPANIES ACT 1981 - SECT 3
Objects and application

SECT

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.

(1A) Notwithstanding subsection (1) of this section, this Act shall not be taken for the purposes of subsection 22 (3) of the Acts Interpretation Act 1901 to be an Act providing for the administration or government of the Australian Capital Territory.

(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.

COMPANIES ACT 1981 - SECT 4
Repeal

SECT

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

COMPANIES ACT 1981 - SECT 5
Interpretation

SECT

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;
"approving holding company", in relation to a body corporate, means:
(a) a listed corporation of which the body is a subsidiary; or
(b) if the body is a subsidiary of no listed corporation but the ultimate holding company (if any) of the body is incorporated in Australia or an external Territory - that ultimate holding company;
"articles" means articles of association;
"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;
"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; 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;
"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 subparagraphs (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 subparagraph (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;
(d) an association, society, institution or body incorporated under the Associations Incorporation Ordinance 1953; or
(e) a corporation constituted under the Unit Titles Ordinance 1970;
"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 subsection (2) of that section and complies with the other requirements of that section;
(aa) a document issued or executed by a banking corporation in the ordinary course of its banking business, being a document that evidences or acknowledges indebtedness of the corporation arising in the ordinary course of that business;
(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;
(b) any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act; and
(c) in the case of a foreign company:
(i) a member of the committee of management, council or
other governing body of the foreign company;
(ii) any person occupying or acting in the position of
member of the committee of management, council or other governing body of the foreign company, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and
(iii) any person in accordance with whose instructions the
members of the committee of management, council or other governing body of the foreign company 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;
"Exchange" means Australian Stock Exchange Limited;
"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 subsections (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 subparagraph (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 in right of the Commonwealth, in right of a State or in right of a Territory; 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;
"included", in relation to an official list, has the meaning given by section 9A;
"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 than 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 securities 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;
"make", in relation to a takeover bid, includes cause to be made;
"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:
(a) the memorandum of which contains a provision stating the objects of the company; and
(b) 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;
"offer", in relation to a takeover bid, means one of the offers, or an offer made by virtue of the announcement, as the case requires, constituting the takeover bid;
"officer", in relation to a corporation, includes:
(a) a director, secretary, executive officer or employee of the corporation;
(b) a receiver and manager of 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;
"on", in relation to a stock market, includes at or by means of;
"participating employee", in relation to a corporation, means:
(a) an employee of the corporation or of a related corporation; or
(b) without limiting the generality of paragraph (a), a director of the corporation or of a related corporation who holds a salaried employment or office in the corporation or in a related corporation;
"participation interest" means any right to participate, or any interest:
(a) in any profits, assets or realisation 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 enforceable, whether the right or interest is actual, prospective or contingent, 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) such a right that is a right to participate in a time-sharing scheme;
(e) any share in, or debenture of, a corporation;
(f) any interest in, or arising out of, a policy of life insurance; or
(g) 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;
"prescribed" means prescribed by this Act, by the regulations or by the rules;
"prescribed interest" means:
(a) a participation interest; or
(b) a right, whether enforceable or not, whether actual, prospective or contingent and whether or not evidenced by a formal document, to participate in a time-sharing scheme;
but does not include 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 subsection 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;
"quotation", in relation to securities, in relation to a stock market of a securities exchange, includes the displaying or providing, on a stock market of the securities exchange, of information concerning:
(a) in a case where offers to sell, purchase or exchange the securities at particular prices, or for particular consideration, are made or accepted on that stock market - those prices or that consideration;
(b) in a case where offers or invitations are made on that stock market, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities at particular prices, or for particular consideration - those prices or that consideration; or
(c) in any case - the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange the securities;
"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;
"redeemable preference share" means a preference share in a body corporate that is, or at the body's option is to be, liable to be redeemed;
"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 subsection 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 subsection 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;
"securities exchange" means, where the expression appears in a provision for the purposes of which a regulation is in force defining that expression, a securities exchange as defined by that regulation;
"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 (whether or not in the Territory) at which, or a facility (whether or not in the Territory) by means of which:
(a) offers to sell, purchase or exchange securities of corporations are regularly made or accepted;
(b) offers or invitations are regularly made, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange securities of corporations; or
(c) information is regularly provided concerning the prices at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange securities of corporations;
"Table A" means Table A in Schedule 3;
"Table B" means Table B in Schedule 3;
"takeover bid" means:
(a) offers made under a takeover scheme within the meaning of the Companies (Acquisition of Shares) Act 1980; or
(b) a takeover announcement within the meaning of that Act;
"time-sharing scheme" means a scheme, undertaking or enterprise, whether in the Territory or elsewhere:
(a) participants in which are, or may become, entitled to use, occupy or possess, for 2 or more periods during the period for which the scheme, undertaking or enterprise is to operate, property to which the scheme, undertaking or enterprise relates; and
(b) that is to operate for a period of not less than 3 years;
"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 photo-sensitive 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.

(1A) Unless the contrary intention appears, a reference in this Act to a person carrying on business, or carrying on a business, includes a reference to the person carrying on business, or carrying on a business, as the case may be:
(a) in any case - otherwise than for profit; or
(b) in the case of a body corporate - otherwise than for the profit of the members or corporators of the body corporate.

(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 directors or the body corporate.

(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 subsection (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 subsection (5) but without limiting the generality of that subsection:
(a) a reference in that subsection 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 subsection 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 subsection 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 property of a corporation shall be deemed to be also a manager if the receiver manages affairs of the corporation or has power under the terms of his appointment to manage affairs of the corporation.

(8) A regulation made for the purposes of subparagraph (g) (ii) of the definition of "participation interest" in subsection (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 Commonwealth, of a State or of a 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).

(8A) For the purposes of this Act, a person shall be taken to be or become subject to a section 227 prohibition if, and only if, the person is or becomes, as the case may be, by virtue of section 227, prohibited, without the leave of the Court, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation.

(8B) For the purposes of this Act, a person shall be taken to be or become subject to a section 227A order if, and only if, the person is or becomes, as the case may be, prohibited, by virtue of an order made under section 227A or under a provision of a law of a State or of another Territory that corresponds with section 227A, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation, and a reference in this Act to a section 227A order is a reference to an order so made.

(8C) For the purposes of this Act, a person shall be taken to be or become subject to a section 562 order if, and only if, the person is or becomes, as the case may be, by virtue of an order made under section 562, under a corresponding provision of a previous law of the Territory or under a provision of a law, or a previous law, of a State or of another Territory that corresponds with section 562:
(a) prohibited 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) prohibited from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a company or other corporation;
and a reference in this Act to a section 562 order is a reference to an order so made.

(8D) For the purposes of this Act, a person shall be taken to be or become subject to a section 562A notice if, and only if, the person is or becomes, as the case may be, by virtue of a notice served on the person under subsection 562A (3) or under a provision of a law of a participating State or participating Territory that corresponds with that subsection, prohibited, without the leave of the Court, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation, and a reference in this Act to a section 562A notice is a reference to a notice so served.

COMPANIES ACT 1981 - SECT 6
Affairs of a corporation

SECT

6. A reference in section 12, 15 or 16A, Part VII, section 320, paragraph 364 (1) (f), section 388 or 541, subsection 560 (1) or section 564 to affairs of a corporation shall, unless the contrary intention appears, 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, 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.

COMPANIES ACT 1981 - SECT 7
Subsidiaries, holding companies and related corporations

SECT

7. (1) For the purposes of this Act, a corporation shall, subject to subsection (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.

COMPANIES ACT 1981 - SECT 8
Relevant interests in shares

SECT

8. (1) Subject to this section, a person has a relevant interest in a share in a body corporate:
(a) except for the purposes of sections 230, 231 and 232, 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) Without limiting the generality of subsections (1), (2) and (3), where a body corporate has, or is by virtue of this section to be deemed to have, 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; or
(d) a person has a controlling interest in the body corporate;
that person shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has or is to be deemed to have.

(5) Where a body corporate has, or is by virtue of this section (other than this subsection) to be deemed to have, 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;
a person (in this subsection referred to as the "relevant person") shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has, or is to be deemed to have, if:
(c) the relevant person has;
(d) a person associated with the relevant person has;
(e) persons associated with the relevant person together have; or
(f) the relevant person and a person or persons associated with the relevant person together have;
the 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.

(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 to be deemed, by virtue of subsection (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 and 232:
(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 to be deemed, by virtue of
subsection (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 subsection; 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, 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 subparagraph (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.

(9A) A body corporate may, by virtue of this section, be taken or deemed, for the purposes of the provisions referred to in paragraph (1) (a) or (b), as the case requires, to have a relevant interest in a share in the body corporate itself.

(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 subsection (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.

COMPANIES ACT 1981 - SECT 9
Associated persons

SECT

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 (including, in a case where the other person is a corporation, the other person) - a person (including the corporation) 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 the first-mentioned person, or the
other person, may exercise, may directly or indirectly control the exercise of, or may 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;
(iii) under which the first-mentioned person may acquire
from the other person, or the other person may acquire from the first-mentioned person, shares in the corporation; or
(iv) under which the first-mentioned person, or the other
person, may be required to dispose of shares in the corporation in accordance with the directions of the other person, or of the first-mentioned person, as the case may be;
(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 subsection 8 (8) by reason of paragraph (b) of that subsection.

(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.

COMPANIES ACT 1981 - SECT 9A
Inclusion in official list

SECT

9A. A reference in this Act to a body corporate or other person included in an official list of a body corporate is a reference to:
(a) a body corporate or other person whose name is included in that official list; or
(b) a body corporate or other person whose name has been changed but whose previous name was included in that official list immediately before the change and is still so included.

COMPANIES ACT 1981 - PART II
PART II - ADMINISTRATION

COMPANIES ACT 1981 - DIVISION 1
Division 1 - Powers of Inspection

COMPANIES ACT 1981 - SECT 10
Interpretation

SECT

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.

COMPANIES ACT 1981 - SECT 11
Commission may inspect books without charge

SECT

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 subsection (1) may be of general application or may be limited to inspecting a particular book or books or a particular class of books.

COMPANIES ACT 1981 - SECT 12
Power of Commission to require production of books

SECT

12. (1) The powers of the Commission under subsection (2), or the powers of an authorized person under subsection (3), to make a requirement of a corporation or person shall not be exercised except:
(a) for the purpose of:
(i) the performance of a function, or the exercise of a
power, by the Commission under a relevant Act (other than the exercise of a power of the Commission under subsection 6 (3) of the National Companies and Securities Commission Act 1979); or
(ii) ensuring compliance with the provisions of 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 a relevant Act;
(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.

(1A) A reference in subsection (1) to a relevant Act includes a reference to the provisions of a law of a participating State or participating Territory that correspond with a relevant Act.

(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 subsection (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 subsection (2), or a requirement made, or purporting to have been made, under subsection (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 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.

COMPANIES ACT 1981 - SECT 13
Power of magistrate to issue warrant to seize books

SECT

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 subsection (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 subsection (1), he shall state on the information laid under that subsection:
(a) which of the grounds set out in the information as required by subsection (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.

COMPANIES ACT 1981 - SECT 14
Offences

SECT

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 subsection (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 subsection 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 subsection (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.

COMPANIES ACT 1981 - SECT 15
Copies or extracts of books to be admitted in evidence

SECT

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 subsection (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 subsection (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 person authorized to take affidavits or statutory declarations.

COMPANIES ACT 1981 - SECT 16
Privilege

SECT

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 book; and
(b) the book 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 forthwith furnish, in writing, to the Commission or authorized person:
(c) if he knows the name and address of the person to whom or by or on behalf of whom the communication was made - that name and address; and
(d) sufficient particulars to identify the book, or the part of the book, containing the communication.

(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 forthwith furnish, in writing, to the Commission or authorized person:
(c) if he knows the name and address of the person to whom or by or on behalf of whom the communication was made - that name and address; and
(d) if the communication was made in writing - sufficient particulars to identify the document containing the communication.
Penalty: $1,000 or imprisonment for 3 months, or both.

COMPANIES ACT 1981 - SECT 16A
Investigation of certain matters

SECT

16A. Where the Commission has reason to suspect that:
(a) an offence under a provision of a relevant Act; or
(b) an offence relating to a company, being an offence that involves fraud or dishonesty or concerns the management of affairs of the company;
may have been committed, the Commission may make such investigation as the Commission thinks expedient for the due administration of a relevant Act.

COMPANIES ACT 1981 - DIVISION 2
Division 2 - Registration of Auditors and Liquidators

COMPANIES ACT 1981 - SUBDIVISION A
Subdivision A - Registration

COMPANIES ACT 1981 - SECT 17
Application for registration as auditor or liquidator

SECT

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.

COMPANIES ACT 1981 - SECT 18
Registration of auditors

SECT

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 subsection (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 subparagraph (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 is subject to a section 227 prohibition, a section 227A order, a section 562 order or a section 562A notice.

(4) Subject to subsection (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 subsection (5) (including a certificate issued pursuant to this subsection) a date is specified for the purposes of subsection 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 subsection (5), in place of the cancelled certificate, a new certificate that specifies a different date for the purposes of subsection 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.

COMPANIES ACT 1981 - SECT 19
Auditor-General deemed to be registered as auditor

SECT

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.

COMPANIES ACT 1981 - SECT 20
Registration of liquidators

SECT

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 subsection (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 subparagraph (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 is subject to a section 227 prohibition, a section 227A order, a section 562 order or a section 562A notice.

(5) Subject to subsection (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 subsection (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 subsection (6) (including a certificate issued pursuant to this subsection) a date is specified for the purposes of subsection 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 subsection (6), in place of the cancelled certificate, a new certificate that specifies a different date for the purposes of subsection 26 (2).

(8) The registration of a person as a liquidator under subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 21
Registration of official liquidators

SECT

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 subsection (1), register as official liquidators as many registered liquidators as it thinks fit.

COMPANIES ACT 1981 - SECT 22
Security to be given by liquidators

SECT

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 subsection (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 local authority of securities lodged pursuant to this section; and
(b) the release by the local authority of sureties referred to in subsection (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.

COMPANIES ACT 1981 - SECT 23
Register of Auditors

SECT

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) or 30D (7) (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.

COMPANIES ACT 1981 - SECT 24
Registers of Liquidators and Official Liquidators

SECT

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) or 30D (7) (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) or 30D (7) (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.

COMPANIES ACT 1981 - SECT 25
Notification of certain matters

SECT

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 subparagraph 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 subparagraph 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) A person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation shall, not later than 3 days after he becomes subject to a section 227 prohibition, a section 227A order, a section 562 order or a section 562A notice, lodge with the Commission, in the prescribed form, particulars in writing of the circumstances by reason of which he became subject to the section 227 prohibition, or of the section 227A order, section 562 order or section 562A notice, as the case may be.

COMPANIES ACT 1981 - SECT 26
Triennial statements by registered auditors and liquidators

SECT

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 subsection 20 (1) or (2) within one year after the commencement of this Act, the Commission may, in the certificate issued under subsection 18 (5) or 20 (6) (in this section referred to as the "relevant certificate"), specify a date for the purposes of subsection (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 subsection 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 subsection 18 (5) or 20 (6), as the case may be, a date is specified for the purposes of this subsection, 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 subsection (2) applies - on the date specified in the relevant certificate for the purposes of subsection (2);or
(b) in the case of a person to whom subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 28
Certain persons not to apply for registration as auditor or liquidator

SECT

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:
(a) under a provision of a law of a participating State or participating Territory that corresponded with a provision of section 27 (other than subsection 27 (1)); or
(b) under a provision of a law of a participating State or participating Territory that corresponds with section 30D;
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.

COMPANIES ACT 1981 - SECT 29
Certain persons deemed to be registered under this Act

SECT

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.

COMPANIES ACT 1981 - SECT 30
Auditors and other persons to enjoy qualified privilege in
certain circumstances

SECT

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 subsection 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 subsection (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.

COMPANIES ACT 1981 - SUBDIVISION B
Subdivision B - Cancellation or Suspension of Registration

COMPANIES ACT 1981 - SECT 30A
Interpretation

SECT

30A. In this Subdivision, unless the contrary intention appears:
"Board" means the Companies Auditors and Liquidators Disciplinary Board;
"Chairman" means the Chairman of the Board and includes a person acting or purporting to act as Chairman of the Board pursuant to section 7 of the Companies Auditors and Liquidators Disciplinary Board Ordinance 1982;
"decision", in relation to the Board, means a decision of the Board under this Subdivision and includes a refusal to exercise a power under section 30D;
"hearing" means a hearing held by the Board for the purposes of this Subdivision;
"member" means member of the Board and, while the deputy of a member is present at a hearing at which the member is not present, includes that deputy;
"registered" means registered under this Division.

COMPANIES ACT 1981 - SECT 30B
Cancellation at request of registered person

SECT

30B. (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 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) A decision of the Commission under subsection (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.

COMPANIES ACT 1981 - SECT 30C
Official liquidators

SECT

30C. (1) 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.

(2) Where the Commission decides to exercise its power under subsection (1) 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 but the validity of the decision is not affected by failure of the Commission to do so.

(3) A decision of the Commission under subsection (1) to cancel or suspend the registration of a person as an official liquidator comes into effect at the expiration of the day on which there is given to the person a notice of the decision, being a notice of the kind referred to in subsection (2).

COMPANIES ACT 1981 - SECT 30D
Powers of Board in relation to auditors and liquidators

SECT

30D. (1) The Board may, if it is satisfied on an application by the Commission for a person who is registered as an auditor to be dealt with under this section:
(a) that the person:
(iii) has failed to comply with the provisions of section
26; or
(iv) has ceased to be resident in Australia; or
(b) that the person has failed, whether within or outside the Territory, to carry out or perform adequately and properly:
(i) the duties of an auditor; or
(ii) any duties or functions required by any law to be
carried out or performed by a registered company 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 the person as an auditor.

(2) The Board may, if it is satisfied on an application by the Commission for a person who is registered as a liquidator to be dealt with under this section:
(a) that the person:
(iii) has failed to comply with the provisions of section
26; or
(iv) has ceased to be resident in Australia; or
(b) that the person has failed, whether within or outside the Territory, to carry out or perform adequately and properly:
(i) the duties of a liquidator; or
(ii) any duties or functions required by any law to be
carried out or performed by a registered 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 the person as a liquidator.

(3) The Board may, if it is satisfied on an application by the Commission for a person who is registered as a liquidator of a specified corporation to be dealt with under this section:
(a) that the person:
(iii) has failed to comply with a requirement made of him
under subsection 26 (5); or
(iv) has ceased to be resident in Australia; or
(b) that the person 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 the person as a liquidator of that corporation.

(4) Where:
(a) the Commission applies to the Board for a person who is registered as an auditor to be dealt with under this section; and
(b) the person is also registered as a liquidator or as a liquidator of a specified corporation;
the Board may, in addition to making an order under subsection (1), if it is satisfied as to any of the matters specified in paragraph (2) (a) or (b) or (3) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of the 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 Subdivision, be deemed to have been made under subsection (2) or (3), as the case may be.

(5) Where:
(a) the Commission applies to the Board for a person who is registered as a liquidator to be dealt with under this section; and
(b) the person is also registered as an auditor or as a liquidator of a specified corporation;
the Board may, in addition to making an order under subsection (2), if it is satisfied as to any of the matters specified in paragraph (1) (a) or (b) or (3) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of the 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 Subdivision, be deemed to have been made under subsection (1) or (3), as the case may be.

(6) Where:
(a) the Commission applies to the Board for a person who is registered as a liquidator of a specified corporation to be dealt with under this section; and (b) the person is also registered as an auditor or as a liquidator;
the Board may, in addition to making an order under subsection (3), if it is satisfied as to any of the matters specified in paragraph (1) (a) or (b) or (2) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of the 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 Subdivision, be deemed to have been made under subsection (1) or (2), as the case may be.

(6A) The Board shall, if it is satisfied on an application by the Commission for a prescribed person to be dealt with under this section:
(a) that the person is subject to a section 227 prohibition, a section 227A order, a section 562 order or a section 562A notice; or
(b) that the person is incapable, by reason of mental infirmity, of managing his affairs;
by order, cancel each prescribed registration of the person.

(6B) In subsection (6A) and in this subsection:
"prescribed person" means a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation;
"prescribed registration", in relation to a prescribed person, means a registration of the person as an auditor, as a liquidator or as the liquidator of a specified corporation.

(7) Where, on an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation to be dealt with under this section, the Board is satisfied that the person has failed to carry out or perform adequately and properly any of the duties or functions mentioned in paragraph (1) (b), (2) (b) or (3) (b), as the case may be, or is otherwise not a fit and proper person to remain registered as an auditor, liquidator or liquidator of that corporation, as the case may be, the Board may deal with the person in one or more of the following ways:
(a) by imposing on the person a penalty not exceeding $5,000;
(b) by admonishing or reprimanding the person;
(c) by requiring the 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, by order, 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.

(7A) Where, on an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation to be dealt with under this section, the Board is empowered to deal with the person as mentioned in subsection (7), the Board may so deal with the person:
(a) in a case where the Board is required to make an order under subsection (6A) on the application - in addition to making such an order; or
(b) in any other case - in addition to or instead of cancelling or suspending the registration of the person as an auditor, as a liquidator or as a liquidator of that corporation, as the case may be.

(8) The amount of a penalty imposed on a person under subsection (7) may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

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

(10) This section has effect subject to section 30E.

(11) This section (other than this subsection) as in force after the commencement of section 39 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 applies in relation to a prescribed application made after that commencement and, notwithstanding the amendments made by that section, this section as in force immediately before that commencement continues to apply in relation to a prescribed application made before that commencement.

(12) In subsection (11), "prescribed application" means an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation to be dealt with under this section.

COMPANIES ACT 1981 - SECT 30E
Hearings

SECT

30E. (1) The Board may, at a meeting of the Board, hold a hearing for the purpose of the performance of its functions, or the exercise of its powers, under section 30D.

(2) 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 30D (7) (a), (b) and (c);
unless the Board has afforded the person an opportunity to appear at a hearing and to make submissions to, and adduce evidence before, the Board in relation to the matter.

(3) Where the Board is required by subsection (2) to afford a person an opportunity to appear at a hearing and to make submissions to, and adduce evidence before, the Board in relation to a matter, the Board shall afford the Commission an opportunity to appear at the hearing and to make submissions to, and adduce evidence before, the Board in relation to the matter.

(4) Subject to subsection (5), hearings shall take place in private.

(5) If a person who is entitled under subsection (2) to be afforded an opportunity to appear at a hearing requests that the hearing take place in public, the hearing shall, subject to any directions of the Board under subsection (7), take place in public.

(6) The Board may give directions as to the persons who may be present at a hearing that is to take place in private.

(7) Where, at a hearing that is taking place in public at the request of a person, the Board is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or in order to protect the interests of any other person, the Board may:
(a) direct that a part of the hearing take place in private and give directions as to the persons who may be present; or
(b) give directions preventing or restricting the publication of evidence given before the Board or of matters contained in documents lodged with or produced to the Board.

(8) Nothing in a direction given by the Board under subsection (6) or paragraph (7) (a) prevents the presence at a hearing of:
(a) a person representing the Commission pursuant to subsection 30G (3);
(b) a person who is entitled under subsection (2) to be afforded an opportunity to appear at the hearing;
(c) a person representing, pursuant to subsection 30G (3), a person referred to in paragraph (b); or
(d) a person representing, pursuant to subsection 30G (3), a person who, by reason of a direction given by the Board under subsection (6) or paragraph (7) (a), is entitled to be present at the hearing.

(9) Where the Board directs that a hearing or part of a hearing take place in private, a person (other than the Chairman, a member, or a member of the staff of the Board approved by the Board) shall not be present at the hearing unless he is entitled to be present by virtue of the direction or by virtue of subsection (8).
Penalty: $1,000 or imprisonment for 3 months.

(10) Where the Board is required by subsection (2) or (3) to afford a person an opportunity to appear at a hearing, the Board shall appoint a date, time and place for the hearing and cause notice in writing of the date, time and place to be given to the person.

(11) A person who is entitled under subsection (2) or (3) to be afforded an opportunity to appear at a hearing and who does not wish to appear at the hearing may, before the date of the hearing, lodge with the Board in writing any submissions that he wishes the Board to take into account in relation to the matter.

(12) The Board shall take into account a submission made or lodged to, or evidence adduced before, the Board when making any decision on the matter to which the submission or evidence relates.

COMPANIES ACT 1981 - SECT 30F
Power to summon witnesses and take evidence

SECT

30F. (1) The Chairman or a member may summon a person to appear at a hearing to give evidence and to produce such documents (if any) as are referred to in the summons, being documents relating to the matters that are the subject of the hearing.

(2) The Board may, at a hearing, take evidence on oath or affirmation and for that purpose the Chairman may:
(a) require a person appearing at the hearing to give evidence either to take an oath or make an affirmation; and
(b) administer an oath or affirmation to a person so appearing at the hearing.

(3) The oath or affirmation to be taken or made by a person for the purposes of subsection (2) is an oath or affirmation that the evidence he will give will be true.

COMPANIES ACT 1981 - SECT 30G
Proceedings at hearings

SECT

30G. (1) At a hearing:
(a) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Subdivision and a proper consideration of the matters before the Board permit;
(b) the Board is not bound by the rules of evidence; and
(c) the Board may, upon such conditions as it thinks fit, permit a person to intervene in the proceedings.

(2) The Board shall observe the rules of natural justice at and in connection with a hearing.

(3) At a hearing:
(a) the Commission may be represented by:
(i) an employee, or a member or acting member, of the
Commission; or
(ii) a person authorised by the Commission for the purpose;
(b) a natural person may appear in person or may be represented by an employee of the person approved by the Board;
(c) a body corporate (other than the Commission) may be represented by an employee, or by a director or other officer, of the body corporate approved by the Board;
(d) an unincorporated association of persons or a member of an unincorporated association of persons may be represented by a member or officer of the association approved by the Board; and
(e) any person may be represented by a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court.

(4) A person who attends at a hearing pursuant to a summons issued under subsection 30F (1) is entitled to be paid:
(a) in a case where the summons was issued at the request of a person - by that person; or
(b) in any other case - by the Board;
such allowances and expenses as are provided for by the regulations.

(5) The Board may permit a person appearing as a witness at a hearing to give evidence by tendering, and, if the Board thinks fit, verifying by oath or affirmation, a written statement.

COMPANIES ACT 1981 - SECT 30H
Failure of witnesses to attend and answer questions

SECT

30H. (1) A person served, as prescribed, with a summons to appear as a witness at a hearing shall not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further attendance, by the Chairman.

(2) A person appearing as a witness at a hearing shall not, without reasonable excuse:
(a) when required pursuant to subsection 30F (2) either to take an oath or make an affirmation - refuse or fail to comply with the requirement;
(b) refuse or fail to answer a question that he is required to answer by the Chairman; or
(c) refuse or fail to produce a document that he was required to produce by a summons under subsection 30F (1) served on him as prescribed.

(3) A person shall not, at a hearing, give evidence that is false or misleading.

(4) Where:
(a) a duly qualified legal practitioner is required to answer a question or produce a document at a hearing; and
(b) the answer to the question would disclose, or the document contains, a privileged communication made by 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 whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he shall, if so required by the Chairman, and if he knows the name and address of the person to whom or by whom the communication was made, forthwith furnish that name and address in writing to the Board.

(5) It is not a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question put to him that the answer might tend to incriminate him but, where the person claims, before answering the question, that the answer might tend to incriminate him, neither the question nor the answer is admissible in evidence against him in criminal proceedings other than proceedings for a contravention of subsection (3) or proceedings in relation to a charge of perjury in respect of the answer.

(6) A person who contravenes subsection (1), (2), (3) or (4) is guilty of an offence.
Penalty: $1,000 or imprisonment for 3 months.

(7) Where the Board is satisfied that:
(a) a person served, as prescribed, with a summons to appear as a witness at a hearing has, without reasonable excuse, failed to attend as required by paragraph (1) (a) or (b); or
(b) a person appearing as a witness at a hearing has, without reasonable excuse:
(i) when required pursuant to subsection 30F (2) either to
take an oath or make an affirmation;
(ii) when required by the Chairman to answer a question; or
(iii) when required to produce a document by a summons
under subsection 30F (1) served on him as prescribed;
refused or failed to comply with the requirement;
the Chairman may, by instrument in writing, certify the failure to attend or the refusal or failure to comply with the requirement, as the case may be, to the Court.

(8) Where a recognized Board of a participating State or participating Territory is satisfied that:
(a) a person served, in the manner prescribed for the purposes of a provision of a law of that State or Territory that corresponds with this section, with a summons to appear as a witness at a prescribed hearing has, without reasonable excuse, failed to attend as required by a provision of a law of that State or Territory that corresponds with paragraph (1) (a) or (b); or
(b) a person appearing as a witness at a prescribed hearing has, without reasonable excuse:
(i) when required pursuant to a provision of a law of that
State or Territory that corresponds with subsection 30F (2) either to take an oath or make an affirmation;
(ii) when required by the Chairman of the recognized Board
to answer a question; or
(iii) when required to produce a document by a summons
under a provision of a law of that State or Territory that corresponds with subsection 30F (1) served on him in the manner prescribed for the purposes of a provision of a law of that State or Territory that corresponds with this section;
refused or failed to comply with the requirement;
the Chairman of the recognized Board may, by instrument in writing, certify the failure to attend or the refusal or failure to comply with the requirement, as the case may be, to the Court.

(9) Where a certificate is given under subsection (7) or (8), the Court may inquire into the case and, if it is satisfied that the person to whom the certificate relates has, without reasonable excuse, failed to attend or refused or failed to comply with a requirement as mentioned in the certificate:
(a) may order the person to attend or to comply with the requirement:
(i) in the case of a certificate given under subsection (7)
- at a hearing; or
(ii) in the case of a certificate given under subsection
(8) by the Chairman of a recognized Board of a participating State or participating Territory - at a prescribed hearing;
to be held at a time and place specified in the order; or
(b) may punish the person in the same manner as if he had been guilty of contempt of the Court and, if it thinks fit, also make an order under paragraph (a).

(10) In this section:
"Chairman", in relation to a recognized Board of a participating State or participating Territory, has the same meaning as that expression has in the prescribed provisions of that State or Territory;
"prescribed hearing", in relation to a recognized Board of a participating State or participating Territory, means a hearing held by that Board for the purposes of the prescribed provisions of that State or Territory;
"prescribed provisions", in relation to a participating State or participating Territory, means the provisions of the law of that State or Territory that correspond with this Subdivision;
"recognized Board", in relation to a participating State or participating Territory, means the body that is the Companies Auditors and Liquidators Disciplinary Board within the meaning of the prescribed provisions of that State or Territory.

COMPANIES ACT 1981 - SECT 30J
Contempt of Board

SECT

30J. A person shall not:
(a) insult the Chairman or a member in the performance of his functions, or the exercise of his powers, at a hearing;
(b) interrupt a hearing;
(c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where a hearing is being held; or
(d) do any other act that would, if the Board were a court of record, constitute contempt of that court.
Penalty: $1,000 or imprisonment for 3 months.

COMPANIES ACT 1981 - SECT 30K
Protection of members etc.

SECT

30K. (1) The Chairman or a member has, in the performance of his functions or the exercise of his powers as the Chairman or a member in relation to a hearing, the same protection and immunity as a Justice of the High Court.

(2) A barrister, solicitor or other person appearing on behalf of a person at a hearing has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

(3) Subject to this Act, a person summoned to attend or appearing as a witness at a hearing has the same protection as a witness in proceedings in the High Court.

(4) The Chairman, a member of the Board or a member of the staff of the Board is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred by this Subdivision.

COMPANIES ACT 1981 - SECT 30L
Hearings deemed to be judicial proceedings

SECT

30L. A hearing shall, for the purposes of Part III of the Crimes Act 1914, be deemed to be a judicial proceeding.

COMPANIES ACT 1981 - SECT 30M
Notice of Board's decision

SECT

30M. (1) Where the Board decides to exercise any of its powers under section 30D in relation to a person, or decides that it is required to make an order under subsection 30D (6A) in relation to a person, the Board shall, not later than 14 days after the decision:
(a) 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;
(b) lodge with the Commission a copy of the notice referred to in paragraph (a); and
(c) cause to be published in the Gazette a notice in writing setting out the decision.

(2) Where the Board decides to refuse to exercise its powers under section 30D in relation to a person, or decides that it is required to make an order under subsection 30D (6A) in relation to a person, the Board shall, not later than 14 days after the decision:
(a) 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; and
(b) lodge with the Commission a copy of the notice referred to in paragraph (a).

(3) The validity of a decision of the Board is not affected by failure of the Board to comply with subsection (1) or (2), as the case requires, in relation to the decision.

COMPANIES ACT 1981 - SECT 30N
Time when Board's decision comes into effect

SECT

30N. (1) Subject to subsection (2), an order made by the Board cancelling or suspending 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 there is given to the person a notice of the decision pursuant to which the order is made, being a notice of the kind referred to in paragraph 30M (1) (a).

(2) The Board may, in its discretion, postpone the coming into effect of an order of a kind referred to in subsection (1) to enable the Commission or the person concerned to appeal against the decision pursuant to which the order is made and, where the Board so postpones the coming into effect of an order, the order comes into effect:
(a) where neither the Commission nor the person concerned appeals against the decision pursuant to section 30R 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 section 30R:
(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 order - at a time fixed by the Court; or
(c) where both the Commission and the person concerned appeal against the decision pursuant to section 30R:
(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 order - at a time fixed by the Court.

COMPANIES ACT 1981 - SECT 30P
Effect of suspension

SECT

30P. 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 subsections 23 (2) and 24 (3), section 25 (other than paragraphs 25 (1) (a), (2) (a) and (3) (a)), section 26 and this Subdivision, 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.

COMPANIES ACT 1981 - SECT 30Q
Costs

SECT

30Q. (1) Where:
(a) the Board holds a hearing in relation to a person in accordance with subsection 30E (2); 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 paragraphs 30D (7) (a), (b) and (c);
the Board may require the person to pay an amount specified by the Board, being all or part of:
(c) the costs of and incidental to the hearing;
(d) the costs of the Commission in relation to the hearing; or
(e) the costs mentioned in paragraph (c) and the costs mentioned in paragraph (d).

(2) Where:
(a) the Board holds a hearing in relation to a person in accordance with subsection 30E (2); 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 30D (7) (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 the hearing;
(d) the costs of the person in relation to the hearing; or
(e) the costs mentioned in paragraph (c) and the costs mentioned in paragraph (d).

(3) Where:
(a) under subsection (1), the Board requires a person to pay all or part of the costs of and incidental to a hearing held by the Board in relation to the person (whether or not the Board also requires the person to pay all or part of the costs of the Commission in relation to the hearing); or
(b) under subsection (2), the Board requires the Commission to pay all or part of the costs of and incidental to a hearing held by the Board in relation to a person (whether or not the Board also requires the Commission to pay all or part of the costs of the person in relation to the hearing);
the amount of the costs of and incidental to the hearing so required to be paid by the first-mentioned 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.

(4) Where, under subsection (1), the Board requires a person to pay all or part of the costs of the Commission in relation to a hearing held by the Board in relation to the person (whether or not the Board also requires the 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 the person may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

(5) Where, under subsection (2), the Board requires the Commission to pay all or part of the costs of a person in relation to a hearing held by the Board in relation to the 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 the person so required to be paid by the Commission may be recovered in a court of competent jurisdiction as a debt due to the person.

COMPANIES ACT 1981 - SECT 30R
Appeal from decision of Board

SECT

30R. (1) A person (other than the Commission) aggrieved by a decision of the Board may, within such period as is prescribed, appeal to the Court, which may confirm, reverse or modify the decision and any order made by the Board pursuant to the decision and may make such orders and give such directions in the matter as it thinks fit.

(2) The Commission may, within such period as is prescribed, appeal to the Court against a decision of the Board and the Court may confirm, reverse or modify the decision and any order made by the Board pursuant to the decision and may make such orders and give such directions in the matter as it thinks fit.

COMPANIES ACT 1981 - SECT 30S
Operation of section 27

SECT

30S. This Subdivision does not apply in relation to:
(a) a request made by a person under subsection 27 (1);
(b) a decision made by the Commission under subsection 27 (2); or
(c) an application made by the Commission under subsection 27 (4), (5) or (6);
before the commencement of section 31 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983, and, notwithstanding the repeal of section 27 of this Act, that last-mentioned section as amended and in force immediately before that commencement continues to have effect in relation to a request, decision or application so made.

COMPANIES ACT 1981 - DIVISION 3
Division 3 - Registers and Registration of Documents

COMPANIES ACT 1981 - SECT 31
Registers

SECT

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 26;
(iia) a document lodged under paragraph 30M (2) (b);
(iib) a report made or lodged, whether before or after the
commencement of section 44 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, under section 324C, 351 or 418; 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.

(4A) A person is not entitled under paragraph (2) (a) to require the production of the original of a document or certificate if the Commission keeps by means of a mechanical, electronic or other device a record of information set out in the document or certificate and:
(a) the Commission produces to the person for inspection a writing that sets out, in a form the person can understand, what purports to be the contents of the document or certificate; or
(b) the Commission causes to be displayed for the person, in a form the person can understand, what purports to be the contents of the document or certificate and, as at the time of the displaying, the person has not asked for the production of a writing of the kind referred to in paragraph (a).

(4B) Where:
(a) a person makes under paragraph (2) (c) a requirement that relates to a document or certificate and does not involve certifying a copy or extract;
(b) the Commission keeps by means of a mechanical, electronic or other device a record of information set out in the document or certificate; and
(c) pursuant to that requirement, the Commission gives:
(i) a writing that sets out, in a form the person can
understand; or
(ii) a document that sets out, in a form requested by the
person;
what purports to be the contents of:
(iii) the whole of the document or certificate; or
(iv) a part of the document or certificate;
then, for the purposes of that paragraph, the Commission shall be taken to have given, pursuant to that requirement:
(d) if subparagraph (c) (iii) applies - a copy of the document or certificate; or
(e) if subparagraph (c) (iv) applies - an extract from the document or certificate setting out that part of it.

(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 subsection (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 subsection (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 subsection (11).

COMPANIES ACT 1981 - SECT 31A
Obtaining information from certain registers

SECT

31A. (1) In this section:
"data processor" means a mechanical, electronic or other device;
"register" means a register kept by the Commission under this Act;
"search" includes inspect.

(2) The Commission may permit a person to search, otherwise than by using a data processor, a prescribed register.

(3) The Commission may permit a person to search a prescribed register by using a data processor in order to obtain prescribed information from the register.

(4) The Commission may make available to a person prescribed information (in the form of a document or otherwise) that the Commission has obtained from a prescribed register by using a data processor.

(5) Nothing in this section limits:
(a) a power or function that the Commission has apart from this section; or
(b) a right that a person has apart from this section.

COMPANIES ACT 1981 - SECT 32
Relodging of lost registered documents

SECT

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

COMPANIES ACT 1981 - PART III
PART III - CONSTITUTION OF COMPANIES

COMPANIES ACT 1981 - DIVISION 1
Division 1 - Incorporation

COMPANIES ACT 1981 - SECT 33
Formation of companies

SECT

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 subsection (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, an Ordinance 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.

COMPANIES ACT 1981 - SECT 34
Proprietary companies

SECT

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 subsection 5 (1) contains or contain the restrictions, limitations and prohibitions required by subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 35
Registration and incorporation

SECT

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 subsection (2) and subsections 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 subsection (1) unless the name under which the company is proposed to be registered is reserved under section 40 in respect of the company.

COMPANIES ACT 1981 - SECT 36
Membership of holding company

SECT

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 subsection (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 subsection (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 subsection (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 subsection (3), subsections (1), (2), (4) and (5) apply in relation to a nominee for a corporation that is a subsidiary as if references in those subsections 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.

COMPANIES ACT 1981 - SECT 37
Requirements as to memorandum

SECT

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;
(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.

(1A) The memorandum of a company may state the objects of the company.

(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 subsection (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, subsection (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.

COMPANIES ACT 1981 - DIVISION 2
Division 2 - Names

COMPANIES ACT 1981 - SECT 38
Interpretation

SECT

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 subsection (1), a name:
(a) that, in the opinion of the Commission, so closely resembles a name that is reserved or registered under this Division as to be likely to be mistaken for it;
(b) that is, in the opinion of the Commission, undesirable; or
(c) 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.

(5) For the purposes of section 537, subsection (2) of this section shall be taken to provide for the review by the Ministerial Council of decisions of the Commission made under paragraph (1) (a) or (b) of this section.

COMPANIES ACT 1981 - SECT 39
Names of particular classes of companies

SECT

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" or 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.

(5) For the purposes of section 537, subsection (2) of this section shall be taken to provide for the review by the Ministerial Council of decisions of the Commission made under paragraph (1) (a) or (b) of this section.

COMPANIES ACT 1981 - SECT 40
Reservation and registration of name of intended company

SECT

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 subsection (3), if:
(a) the Commission is satisfied that an application made under subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 41
Reservation of name of intended recognised company

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 42
Registration of name of recognised company

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 43
Reservation and registration of proposed new name of company

SECT

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 subsection (3), if:
(a) the Commission is satisfied that an application made under subsection (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 subsection (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 subsection 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 subsection (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.

COMPANIES ACT 1981 - SECT 44
Reservation of proposed new name of recognised company

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 45
Registration of new name of recognised company

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 46
Reservation and registration of name of intended foreign
company or foreign company

SECT

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 subsection (4), if:
(a) the Commission is satisfied that an application made under subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 47
Reservation of name of intended recognised foreign company or
recognised foreign company

SECT

47. Where:
(a) a name has been reserved under the provision of a law of a participating State or participating Territory that corresponds with subsection 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.

COMPANIES ACT 1981 - SECT 48
Registration of name of recognised foreign company

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 49
Reservation and registration of proposed new name of registered
foreign company

SECT

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 subsection (3) if:
(a) the Commission is satisfied that an application made under subsection (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 subsection (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 subsection 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.

COMPANIES ACT 1981 - SECT 50
Reservation of proposed new name of recognised foreign company

SECT

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 subsection 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 provision of the law of that State or Territory that corresponds with section 49.

COMPANIES ACT 1981 - SECT 51
Registration of new name of recognised foreign company

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 52
Reservation and registration of name of recognised company
proposing to transfer incorporation to the Territory

SECT

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 subsection (3), if:
(a) the Commission is satisfied that an application made under subsection (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 subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 53
Reservation of name of company or recognised company proposing
to transfer incorporation to participating State or Territory

SECT

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 subsection 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 subsection 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.

COMPANIES ACT 1981 - SECT 54
Registration of name of recognised company after transfer of
incorporation to participating State or Territory

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 55
Reservation and registration of name of foreign company
proposing to transfer incorporation to the Territory

SECT

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 subsection (3), if:
(a) the Commission is satisfied that an application made under subsection (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 subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 56
Reservation of name of foreign company proposing to transfer
incorporation to participating State or Territory

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 57
Registration of name of foreign company that has become a
recognised company after transfer of incorporation to
participating State or Territory

SECT

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 subsection 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.

COMPANIES ACT 1981 - SECT 58
Extension of reservation

SECT

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.

COMPANIES ACT 1981 - SECT 59
Notification that registration of name desired in a State or
another Territory

SECT

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.

COMPANIES ACT 1981 - SECT 60
Registration of name of recognised company or recognised
foreign company in the Territory

SECT

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.

COMPANIES ACT 1981 - SECT 61
Notification that registration of name no longer desired in a
participating State or Territory

SECT

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.

COMPANIES ACT 1981 - SECT 62
Cancellation of registration where registration in the
Territory no longer desired

SECT

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 subsection 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 subsection 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.

COMPANIES ACT 1981 - SECT 63
Cancellation of registration where company or foreign company
dissolved or foreign company ceases to be registered

SECT

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.

COMPANIES ACT 1981 - SECT 64
Cancellation of registration where name registered by mistake

SECT

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.

COMPANIES ACT 1981 - SECT 65
Change of name

SECT

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 subsection (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 subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 66
Omission of "Limited" in names of charitable and other companies

SECT

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 subsection (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.

(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 subsection (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 subsection (11) or a provision inserted in the memorandum or articles of the company for the purposes of subsection (3) or the corresponding provision of a previous law of the Territory.

COMPANIES ACT 1981 - DIVISION 3
Division 3 - Legal Capacity, Powers and Status

COMPANIES ACT 1981 - SECT 66A
Commencement of certain provisions

SECT

66A. The following provisions shall be deemed to have come into operation on 1 January 1984:
(a) the heading to this Division, as amended by section 46 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985;
(b) sections 66B and 66C of this Act;
(c) sections 67 and 68 of this Act, as amended by sections 48 and 49, respectively, of that Act.

COMPANIES ACT 1981 - SECT 66B
Interpretation

SECT

66B. In this section and in sections 66C, 67 and 68:
(a) a reference to a company is a reference to a company whether incorporated before, on or after 1 January 1984;
(b) a reference to the doing of an act by a company includes a reference to the making of an agreement by the company and a reference to a transfer of property to or by the company;
(c) a reference to a restriction on, or a prohibition of, the exercise by a company of any of its powers, being a restriction or prohibition contained in the rules of the company, is, in the case of a company incorporated before 1 January 1984, a reference to such a restriction or prohibition whether or not the restriction or prohibition was so contained immediately before that day;
(d) a reference to legal capacity includes a reference to powers; and
(e) a reference to the rules of a company is a reference to the memorandum and articles of the company.

COMPANIES ACT 1981 - SECT 66C
Object of sections 67 and 68

SECT

66C. The object of sections 67 and 68 is:
(a) to abolish the doctrine of ultra vires in its application to companies; and
(b) without affecting the validity of the dealings of a company with outsiders, to ensure that provisions of the rules of a company relating to objects or powers of the company are given effect to by the company's officers and members;
and those sections shall be construed, and have effect, accordingly.

COMPANIES ACT 1981 - SECT 67
Legal capacity

SECT

67. (1) A company has, both within and outside the Territory, the legal capacity of a natural person and, without limiting the generality of the foregoing, has, both within and outside the Territory, power:
(a) to issue and allot fully or partly paid shares in the company;
(b) to issue debentures of the company;
(c) to distribute any of the property of the company among the members, in kind or otherwise;
(d) to give security by charging uncalled capital;
(e) to grant a floating charge on property of the company;
(f) to procure the company to be registered or recognized as a body corporate in any place outside the Territory; and
(g) to do any other act that it is authorized to do by any other law.

(2) Subsection (1) has effect in relation to a company:
(a) subject to this Act (other than subsection 68 (1));
(b) in a case where the rules of the company contain an express or implied restriction on, or an express or implied prohibition of, the exercise by the company of any of its powers - notwithstanding any such restriction or prohibition;
(c) in a case where the memorandum of the company contains a provision stating the objects of the company - notwithstanding that fact; and
(d) notwithstanding subsection 68 (1).

(3) The fact that the doing of an act by a company would not be, or is not, in the best interests of the company does not affect the legal capacity of the company to do the act.

COMPANIES ACT 1981 - SECT 68
Restrictions on companies

SECT

68. (1A) The rules of a company may contain an express restriction on, or an express prohibition of, the exercise by the company of a power of the company.

(1) Where:
(a) a company exercises a power contrary to an express restriction on, or an express prohibition of, the exercise of that power, being a restriction or prohibition contained in the rules of the company; or
(b) the memorandum of a company contains a provision stating the objects of the company and the company does an act otherwise than in pursuance of those objects;
the company contravenes this subsection.

(2) Where an officer of a company is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to a contravention by the company of subsection (1), the officer contravenes this subsection.

(3) A company that contravenes subsection (1), or an officer of a company who contravenes subsection (2), is not guilty of an offence by virtue of this section or section 570.

(4) Where, by exercising a power as mentioned in paragraph (1) (a), or by doing an act as mentioned in paragraph (1) (b), a company contravenes subsection (1), the exercise of the power, or the act, as the case may be, is not invalid by reason only of the contravention.

(5) An act of an officer of a company is not invalid by reason only that, by doing the act, the officer contravenes subsection (2).

(6) The fact that:
(a) by exercising a power as mentioned in paragraph (1) (a), or by doing an act as mentioned in paragraph (1) (b), a company contravened, or would contravene, subsection (1); or
(b) by doing a particular act, an officer of a company contravened, or would contravene, subsection (2);
may be asserted or relied on only in:
(c) a prosecution of a person for an offence against this Act;
(d) an application for an order under section 227A;
(e) an application for an order under section 320;
(f) an application for an injunction under section 574 to restrain the company from entering into an agreement;
(g) proceedings (other than an application for an injunction) by the company, or by a member of the company, against the present or former officers of the company; or
(h) an application by the Commission or by a member of the company for the winding up of the company.

(7) Where, if subsection (6) had not been enacted, the Court would have power under section 574 to grant, on the application of a person, an injunction restraining a company, or an officer of a company, from engaging in particular conduct constituting a contravention of subsection (1) or (2), as the case may be, the Court may, on the application of that person, order the first-mentioned company, or the officer, as the case may be, to pay damages to that person or any other person.

COMPANIES ACT 1981 - SECT 68A
Persons having dealings with companies etc.

SECT

68A. (1) A person having dealings with a company is, subject to subsection (4), entitled to make, in relation to those dealings, the assumptions referred to in subsection (3) and, in any proceedings in relation to those dealings, any assertion by the company that the matters that the person is so entitled to assume were not correct shall be disregarded.

(2) A person having dealings with a person who has acquired or purports to have acquired title to property from a company (whether directly or indirectly) is, subject to subsection (5), entitled to make, in relation to the acquisition or purported acquisition of title from the company, the assumptions referred to in subsection (3) and, in any proceedings in relation to those dealings, any assertion by the company or by the second-mentioned person that the matters that the first-mentioned person is so entitled to assume were not correct shall be disregarded.

(3) The assumptions that a person is, by virtue of subsection (1) or (2), entitled to make in relation to dealings with a company, or in relation to an acquisition or purported acquisition from a company of title to property, as the case may be, are:
(a) that, at all relevant times, the memorandum and articles of the company have been complied with;
(b) that a person who appears, from returns lodged with the Commission under section 238 or 263 or with the Registrar of Companies under a corresponding provision of a previous law of the Territory, to be a director, the principal executive officer or a secretary of the company has been duly appointed and has authority to exercise the powers and perform the duties customarily exercised or performed by a director, by the principal executive officer or by a secretary, as the case may be, of a company carrying on a business of the kind carried on by the company;
(c) that a person who is held out by the company to be an officer or agent of the company has been duly appointed and has authority to exercise the powers and perform the duties customarily exercised or performed by an officer or agent of the kind concerned;
(d) that an officer or agent of the company who has authority to issue a document on behalf of the company has authority to warrant that the document is genuine and that an officer or agent of the company who has authority to issue a certified copy of a document on behalf of the company has authority to warrant that the copy is a true copy;
(e) that a document has been duly sealed by the company if:
(i) it bears what appears to be an impression of the seal
of the company; and
(ii) the sealing of the document appears to be attested by
2 persons, being persons one of whom, by virtue of paragraph (b) or (c), may be assumed to be a director of the company and the other of whom, by virtue of paragraph (b) or (c), may be assumed to be a director or to be a secretary of the company; and
(f) that the directors, the principal executive officer, the secretaries, the employees and the agents of the company properly perform their duties to the company.

(4) Notwithstanding subsection (1), a person is not entitled to make an assumption referred to in subsection (3) in relation to dealings with a company if:
(a) he has actual knowledge that the matter that, but for this subsection, he would be entitled to assume is not correct; or
(b) his connection or relationship with the company is such that he ought to know that the matter that, but for this subsection, he would be entitled to assume is not correct;
and where, by virtue of this subsection, a person is not entitled to make a particular assumption in relation to dealings with a company, subsection (1) has no effect in relation to any assertion by the company in relation to the assumption.

(5) Notwithstanding subsection (2), a person is not entitled to make an assumption referred to in subsection (3) in relation to an acquisition or purported acquisition from a company of title to property if:
(a) he has actual knowledge that the matter that, but for this subsection, he would be entitled to assume is not correct; or
(b) his connection or relationship with the company is such that he ought to know that the matter that, but for this subsection, he would be entitled to assume is not correct;
and where, by virtue of this subsection, a person is not entitled to make a particular assumption in relation to dealings with a company, subsection (2) has no effect in relation to any assertion by the company or by any other person in relation to the assumption.

COMPANIES ACT 1981 - SECT 68C
Lodgment of documents etc. with Commission not to constitute
constructive notice

SECT

68C. (1) Subject to subsection (2), a person shall not be taken to have knowledge of:
(a) the memorandum or articles of a company or any of the contents of the memorandum or articles of a company;
(b) a document or the contents of a document; or
(c) any particulars;
by reason only:
(d) that the memorandum, the articles, the document or the particulars has or have been lodged with the Commission or with the Registrar of Companies; or
(e) that the memorandum, the articles, the document or the particulars is or are referred to in any other document that has been lodged with the Commission or with the Registrar of Companies.

(2) Subsection (1) does not apply in relation to a document, or in relation to the contents of a document, that has been lodged with the Commission under Division 9 of Part IV or with the Registrar of Companies under the corresponding provisions of a previous law of the Territory, to the extent that the document relates to a charge that is registrable under that Division or that was registered under those provisions.

COMPANIES ACT 1981 - SECT 68D
Effect of fraud

SECT

68D. Section 68A operates:
(a) to entitle a person to make the assumptions referred to in subsection (3) of that section in relation to dealings with a company; or
(b) to entitle a person to make the assumptions referred to in subsection (3) of that section in relation to an acquisition or purported acquisition (whether direct or indirect) of title to property from a company;
notwithstanding that a person referred to in paragraph 68A (3) (b), (c) or (e) or an officer, agent or employee of the company referred to in paragraph 68A (3) (d) or (f):
(c) has acted or is acting fraudulently in relation to the dealings, or in relation to the acquisition or purported acquisition of title to property from the company, as the case may be; or
(d) has forged a document that appears to have been sealed on behalf of the company;
unless the person referred to in paragraph (a) or (b) of this section has actual knowledge that the person referred to in paragraph 68A (3) (b), (c) or (e), or the officer, agent or employee of the company referred to in paragraph 68A (3) (d) or (f), has acted or is acting fraudulently, or has forged a document, as mentioned in paragraph (c) or (d) of this section.

COMPANIES ACT 1981 - SECT 69
Change of status

SECT

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 subsection (1) and, subject to subsections 73 (11), (12) and (13) as applied by subsection (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 subsection (2), "prescribed documents", in relation to an application referred to in that subsection, 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 subsections 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, subsections 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 constitued 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.

COMPANIES ACT 1981 - SECT 70
Change from public to proprietary company or from proprietary
to public company

SECT

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 subsection 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 subsection 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 subsection (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, subsections 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 subsection (1) or (2) of this section as if it were a special resolution under section 73.

(5) A conversion of a company pursuant to subsection (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.

COMPANIES ACT 1981 - SECT 71
Default in complying with requirements as to proprietary companies

SECT

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 subsection (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 subsection 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 subsection (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 subsection (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 subsection 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 subsection (7) or (8).

COMPANIES ACT 1981 - SECT 72
General provisions as to alteration of memorandum

SECT

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 subsection (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 or a resolution or order under section 123, 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 subsection (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 subsection (9), and subsections 31 (2) and (5) apply to that copy as if it were a document lodged with the Commission.

COMPANIES ACT 1981 - SECT 73
Alterations of memorandum

SECT

73. (1) Subject to this section, a company may, by special resolution, alter the memorandum of the company:
(a) where the memorandum contains a provision stating the objects of the company - by altering or omitting that provision;
(b) where the memorandum does not contain a provision stating the objects of the company - by inserting in the memorandum a provision stating the objects of the company; or
(c) in any case - by altering, omitting or inserting any other provision with respect to the objects of the company or any provision with respect to the powers of the company.

(2) Subject to this section, subsection 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, by special resolution, alter the memorandum:
(a) unless the memorandum prohibits the alteration of that provision - by altering that provision; or
(b) unless the memorandum prohibits the omission of that provision - by omitting that provision.

(3) The memorandum of a company may provide that a special resolution altering, adding to or omitting 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 subsection (3), the further requirement referred to in that subsection 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.

(4A) A memorandum of a company that, immediately before the commencement of section 36 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983, prohibited the alteration of a provision of the memorandum, being a provision that could lawfully have been contained in the articles of the company (in this subsection referred to as a "relevant provision"), shall be deemed also to prohibit the omission of that relevant provision of the memorandum, and a memorandum of a company that makes provision as mentioned in subsection (3) in respect of a special resolution altering or adding to a relevant provision of the memorandum shall be deemed also to contain a provision to the same effect in respect of a special resolution omitting that relevant provision of the memorandum.

(5) Nothing in subsection (2) permits the alteration or omission 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 memorandum of a company, being an alteration provided for by subsection (1), 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 subsection (6).

(8) If an application for the cancellation of an alteration of the memorandum of a company is made to the Court in accordance with this section by:
(a) in the case of an alteration provided for by subsection (1) - the holders of not less than 10% in nominal value of the company's debentures; or
(b) in the case of any alteration - 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 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 the memorandum of a company as provided by subsection (1) or (2) 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 subsection (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.

(14) In this section:
(a) a reference to a memorandum includes a reference to a memorandum registered under a corresponding previous law of the Territory; and
(b) a reference to a provision of the memorandum of a company that could lawfully have been contained in the articles of the company is, in the case of a memorandum of a company registered under a corresponding previous law of the Territory, a reference to a provision of the memorandum of the company that could lawfully have been contained in the articles of the company if the memorandum and articles of the company had been registered under this Act.

COMPANIES ACT 1981 - SECT 74
Articles of association

SECT

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 subsection (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, subsection (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.

COMPANIES ACT 1981 - SECT 75
Adoption of Table A or B

SECT

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.

COMPANIES ACT 1981 - SECT 76
Alteration of articles

SECT

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 subsection (2), the further requirement referred to in that subsection 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.

COMPANIES ACT 1981 - SECT 77
Memorandum and articles of companies limited by guarantee

SECT

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.

COMPANIES ACT 1981 - SECT 78
Operation of memorandum and articles

SECT

78. (1) Subject to this Act, the memorandum and articles of a company have the effect of a contract under seal:
(a) between the company and each member;
(b) between the company and each officer; and
(c) between a member and each other member;
under which each of the above-mentioned persons agrees to observe and perform the provisions of the memorandum and articles as in force for the time being so far as those provisions are applicable to that person.

(2) Subject to section 476, any money payable by a member of a company to the company under the memorandum or articles is a debt from him to the company and is of the nature of a specialty debt.

(3) A member of a company, unless either before or after the alteration is made he agrees in writing to be bound by it, is not bound by an alteration of the memorandum or articles made after the date on which he became a member so far as the alteration:
(a) requires him to take or subscribe for more shares than the number held by him at the date of the alteration;
(b) in any way increases his liability as at the date of the alteration to contribute to the share capital of, or otherwise to pay money to, the company; or
(c) increases, or imposes, restrictions on the right to transfer the shares held by him at the date of the alteration.

(4) Subsection (3) does not apply in relation to an alteration of the memorandum or articles of a public company having a share capital (other than a no liability company) if the alteration:
(a) is made by virtue of a special resolution of the kind referred to in subsection 70 (1); and
(b) is necessary to impose the restrictions, limitations and prohibitions referred to in subsection 34 (1).

(5) In this section, "officer", in relation to a company, means a director, the principal executive officer or a secretary of the company.

COMPANIES ACT 1981 - SECT 79
Copies of memorandum and articles

SECT

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:
(a) if the company requires the payment of an amount not exceeding the prescribed amount - within 21 days after the payment is received by the company or within such longer period as the Commission approves; or
(b) in a case to which paragraph (a) does not apply - within 21 days after the request was made or within such longer period as the Commission approves.

(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.

COMPANIES ACT 1981 - SECT 80
Confirmation of contracts and authentication and execution of documents

SECT

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 of 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 subsection (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 subsections (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 subsection (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 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.

COMPANIES ACT 1981 - SECT 81
Ratification of contracts made before formation of company

SECT

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 subparagraph (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 subsection (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 subsections (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 subsection (2); or
(d) where the company has been formed as mentioned in paragraph (b) - the company had ratified the contract as provided by subsection (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 subsection (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 subsection (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 subsection (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 subsection (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 subsection (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 subsection (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 subsection (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 subsection, 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 subsection (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.

COMPANIES ACT 1981 - SECT 82
Prohibition of carrying on business with fewer than statutory
minimum number of members

SECT

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) Subsection (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.

COMPANIES ACT 1981 - DIVISION 4
Division 4 - Transfer of Incorporation

COMPANIES ACT 1981 - SECT 83
Certificate authorising application for transfer of
incorporation

SECT

83. (1) A company may apply to the Commission for a certicate 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 report in the prescribed form as to affairs of the
company, made up to the latest practicable date before the making of the application, showing the assets and liabilities of the company.

(3) Where a company applies, under subsection (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 subsection (3) subject to such conditions as are specified in the certificate.

(5) A company is not entitled to make an application under subsection (1) if:
(a) the company is in the course of being wound up or an application to wind up the company has been filed and has not been dealt with;
(b) a receiver, or a receiver and manager, has been appointed, and is acting, in respect of 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, subsections 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.

COMPANIES ACT 1981 - SECT 84
Application by recognised company for registration under Division

SECT

84. (1) Subject to subsection (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 subsection (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 subsection 83 (3);
(ia) notice in the prescribed form of the address of the
proposed registered office of the recognized company in the Territory; 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 subsection (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 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.

COMPANIES ACT 1981 - SECT 85
Application by foreign company for registration under Division

SECT

85. (1) Subject to subsection (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 subsection (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 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 subsection (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 subsection (1);
(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 subsection (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 subsection (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 subsection (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 subsection 5 (1), the documents required to be lodged by subsection 201 (3);
(fa) notice in the prescribed form of the address of the proposed registered office of the corporation in the Territory; 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 subsection (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 subparagraph (4) (e) (iii).

COMPANIES ACT 1981 - SECT 86
Registration of corporations as companies

SECT

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 subsection 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 subsection 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 subsection (1) - the application lodged by the corporation under subsection 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 subsection (2) - the application lodged by the corporation under subsection 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.

COMPANIES ACT 1981 - SECT 87
Effect of registration

SECT

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 subsection 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) Subsection (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) Subsection (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 subsection 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 subsection (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 subsection affects any liabilities of the corporation or its members that existed immediately before the registration of the corporation as a company.

COMPANIES ACT 1981 - SECT 88
Alterations to constituent documents of foreign companies

SECT

88. (1) A corporation that is registered under subsection 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 subsection (1), and the resolution fixing that rate, when passed pursuant to this subsection, shall, for the purposes of section 251, be deemed to be a special resolution.

(3) Where a corporation is required by subsection (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 subsection.

(4) Where, pursuant to subsection (3), a corporation applies to the Court for an order approving its constituent documents as altered in accordance with subsection (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 subsection (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 subsection (6), section 72 applies in relation to a resolution passed by a corporation pursuant to subsection (1) or an order of the Court made in relation to a corporation under subsection (4) as if the references in subsections 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 subsection, be required by subsection (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 subsection (1) or by an order of the Court made under subsection (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 subsection (1), (2) or (3), the corporation and any officer of the corporation who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 89
Effect of registration of company under corresponding law

SECT

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.

COMPANIES ACT 1981 - SECT 90
Application of this Act to corporations registered under this Division

SECT

90. (1) Subsection 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 subsection 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) subsection 240 (2) were omitted; and
(b) there were omitted from paragraph 240 (5) (a) "or the period of 18 months referred to in subsection (2)".

(4) Where a corporation that is a holding company is registered as a company under subsection 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 subsection 86 (2) and, notwithstanding subsection 268 (2), the action referred to in subsection 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 1981 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.

COMPANIES ACT 1981 - SECT 91
Establishment of registers and minute books

SECT

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, 256 and 261 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 subsection 254 (1) in relation to those books.

(2) Where, before the expiration of the period of 14 days referred to in subsection (1):
(a) pursuant to subsection 131 (5), 143 (3), 147 (6), 172 (3), 209 (4), 231 (8), 238 (6), 257 (3) or 261 (11), 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 subsection 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.

COMPANIES ACT 1981 - SECT 92
Share warrants

SECT

92. (1) Where a corporation that is registered under subsection 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 subsection 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 subsection 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.

COMPANIES ACT 1981 - SECT 93
Certificate of registration conclusive evidence

SECT

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.

COMPANIES ACT 1981 - PART IV
PART IV - PROSPECTUSES, SECURITIES AND CHARGES

COMPANIES ACT 1981 - DIVISION 1
Division 1 - Prospectuses

COMPANIES ACT 1981 - SECT 94
Interpretation

SECT

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.

(4) Where a prospectus in respect of a recognized company or recognized foreign company has been registered under the corresponding law of the participating State or participating Territory in which that recognized company or recognized foreign company is incorporated or registered, that prospectus shall, for the purposes of this Act, be deemed to have been registered by the Commission under this Act and anything required to be done before registration under this Act shall be deemed to have been done.

COMPANIES ACT 1981 - SECT 95
Prohibition of issue of certain documents in relation to
proposed corporations

SECT

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) Subsection (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 subsection (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.

COMPANIES ACT 1981 - SECT 96
Forms of application for shares or debentures to be attached to prospectus

SECT

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.

(2) Subsection (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.

COMPANIES ACT 1981 - SECT 97
Invitations or offers in relation to borrowings by a corporation

SECT

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;
(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 subsection (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 subsection (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 subsection (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 subparagraph (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 the registered company auditor who
has made the report required to be included in the prospectus by paragraph 98 (1) (e) 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 subparagraph (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 subparagraph;
(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 subsection (6), "prescribed corporation" means:
(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 banking corporation, or a subsidiary of a
banking corporation or of a pastoral company referred to in subparagraph (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 Gazette:
(a) specify terms and conditions subject to which subsection (6) has effect in relation to a corporation specified in paragraph (7) (c); or
(b) vary or revoke any declaration or specification made under paragraph (7) (c) or under this subsection.

(10) A corporation that, or another person who, contravenes or fails to comply with any of the provisions of this section and any officer of such a corporation who is in default are each guilty of an offence.
Penalty:
(a) in the case of a contravention or failure to comply with subsection (1) arising out of the issuing of an invitation or the making of an offer without a copy of a prospectus in relation to the invitation or the offer having been registered by the Commission as required by paragraph (1) (a) - $20,000 or imprisonment for 5 years, or both; or
(b) in any other case - $2,500 or imprisonment for 6 months, or both.

(11) The provisions of this section relating to the description of a document acknowledging or evidencing, or intended to acknowledge or evidence, the indebtedness of a corporation apply to and in relation to every such document issued after the commencement of this Act, notwithstanding anything in any debenture or trust deed issued or executed before that commencement and in force for the time being, and any such document issued after that commencement shall be described in accordance with the requirements of this section notwithstanding anything in any such debenture or trust deed.

(12) For the purposes of this section, a document issued by a borrowing corporation certifying that a person specified in the document is, in respect of any deposit with or loan to the corporation, the registered holder of a specified number or value:
(a) of unsecured notes or unsecured deposit notes;
(b) of mortgage debentures or certificates of mortgage debenture stock; or
(c) of debentures or certificates of debenture stock;
issued by the corporation upon or subject to the terms and conditions contained in a trust deed referred to or identified in the certificate shall be deemed to be a document evidencing the indebtedness of that corporation in respect of that deposit or loan.

(13) The prospectus and a document issued in connection with or in relation to the prospectus shall describe or refer to the document mentioned in subsection (12) in the manner required or authorized by the Commission and shall so describe or refer to the document without any addition to or qualification of the description or reference other than any addition that the Commission may approve or require in order to indicate the priority of the indebtedness that the document is to evidence.

COMPANIES ACT 1981 - SECT 98
Contents of prospectuses

SECT

98. (1) To comply with the requirements of this Act, a prospectus:
(a) shall be printed in type of a size not less than the type known as eight point Times unless the Commission, before the issuing or advertising of the prospectus in the Territory, certifies in writing that the type and size of letter are legible and satisfactory;
(b) shall be dated;
(c) shall, as to one copy, be lodged with the Commission as required by this Act, shall state that a copy of the prospectus has been so lodged and shall also state, immediately after the statement that a copy has been so lodged, that the Commission takes no responsibility as to the contents of the prospectus;
(d) where the prospectus relates to shares, shall set out particulars as to:
(i) the minimum amount that, in the opinion of the
directors, must be raised by the issue of those shares in order to provide the sums, or, if any part of the sums is to be defrayed in any other manner, the balance of the sums, required to be provided in respect of each of:
(A) the purchase price of any property purchased or to be
purchased that is to be defrayed in whole or in part out of the proceeds of the issue;
(B) any preliminary expenses payable by the corporation,
and any brokerage or commission so payable to any person in consideration of his agreeing to subscribe for, or of his procuring or agreeing to procure subscriptions for, any shares in the corporation;
(C) the repayment of any money borrowed by the
corporation in respect of any of the foregoing matters; and
(D) working capital; and
(ii) the amounts to be provided in respect of the matters
mentioned in subparagraph (i) otherwise than out of the proceeds of the issue and the sources out of which those amounts are to be provided;
(e) shall contain a report by a registered company auditor (to be headed "Investigating Accountant's Report") containing the prescribed matters and such other matters as the Commission requires;
(ea) shall set out the prescribed matters and contain the prescribed reports;
(eb) shall set out such other matters as the Commission requires and contain such other reports as the Commission requires;
(f) in the case of a prospectus pursuant to which the public is to be invited to deposit money with or lend money to a corporation that is a subsidiary of another corporation or a prospectus pursuant to which a corporation that is a subsidiary of another corporation is to make offers to the public to accept moneys deposited with, or moneys lent to, the corporation:
(i) shall contain a statement as to whether or not that
other corporation is under any liability to repay those moneys or to pay any interest on those moneys; and
(ii) where that other corporation is so stated to be under
any such liability - shall also give full particulars of the nature and extent of that liability, of the circumstances under which that liability arose and of the manner in which that liability is to be discharged;
(g) shall contain a statement that no shares or debentures, as the case requires, will be allotted or issued on the basis of the prospectus later than 6 months after the date of the issue of the prospectus;
(h) shall, if it contains any statement that is made by an expert or is contained in what purports to be a copy of, or extract from, a report, memorandum or valuation of an expert, state the date on which the statement, report, memorandum or valuation was made and whether or not it was prepared by the expert for incorporation in the prospectus;
(j) shall not contain the name of any person as:
(i) a trustee for holders of debentures of the corporation;
(ii) an auditor, banker, solicitor, stockbroker or share
broker of the corporation or for or in relation to the issue or proposed issue of shares or debentures; or
(iii) a person performing any function in a professional,
advisory or other capacity not mentioned in subparagraph (i) or (ii) for the corporation or for or in relation to the issue or proposed issue of shares or debentures;
unless that person has consented in writing before the issue of the prospectus to act in that capacity in relation to the prospectus and, in the case of a company, a copy, verified by a statement in writing, of the consent has been lodged with the Commission;
(k) shall set out the dates of, the parties to, and the general nature of, every material contract, not being a contract entered into in the ordinary course of the business carried on or intended to be carried on by the corporation or a contract entered into more than 2 years before the date of issue of the prospectus;
(ka) shall state whether or not application has been, or is proposed to be, made for permission for the shares or debentures to which the prospectus relates to be listed for quotation on a stock market of a securities exchange and, if application for such permission has been, or is proposed to be, made, shall specify each securities exchange to which application for such permission has been, or is proposed to be, made;
(m) shall set out full particulars of the nature and extent of the interest (if any) of every director or proposed director and of every expert in the promotion of, or in the property proposed to be acquired by, the corporation, or, where the interest of such a director or proposed director or such an expert consists of being a partner in a firm, the nature and extent of the interest of the firm, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares or otherwise by any persons, in the case of a director or proposed director, either to induce him to become, or to qualify him as, a director, or otherwise for services rendered by him or by the firm in connection with the promotion or formation of the corporation or, in the case of an expert, for services rendered by him or the firm in connection with the promotion or formation of the corporation;
(n) shall, where the prospectus offers shares in or debentures of a foreign company, in addition contain particulars with respect to:
(i) the constituent documents of the foreign company;
(ii) the enactments or provisions having the force of an
enactment by or under which the incorporation of the foreign company was effected;
(iii) an address in the Territory where the constituent
documents, and the enactments or provisions, or certified copies of the constituent documents, enactments or provisions, may be inspected;
(iv) the date on which and the place where the foreign
company was or is to be incorporated or formed; and
(v) the address of the registered office of the foreign
company in the Territory; and
(o) shall specify each participating State or participating Territory (if any) in which it is proposed to issue the prospectus.

(2) The date inserted in a prospectus pursuant to paragraph (1) (b) shall, unless the contrary is proved, be taken to be the date of issue of the prospectus.

(3) Regulations made for the purposes of subsection (1) may make different provision in relation to different classes of prospectuses or in relation to prospectuses to be issued in respect of different classes of shares or debentures or different classes of corporations.

(3A) A report contained in a prospectus in accordance with subsection (1) or in accordance with a requirement made by the Commission under that subsection shall either:
(a) indicate by way of note any adjustments as respects the figures of any profit or loss or assets and liabilities dealt with by the report that appear necessary to the person or persons making the report; or
(b) make those adjustments and indicate by way of note that adjustments have been made and the nature of those adjustments.

(4) Without limiting the generality of subsection (1), the Commission may require that a report that is required, pursuant to subsection (1) or pursuant to a requirement made under that subsection, to be contained in a prospectus shall contain accounts that comply with the requirements set out in the regulations in force for the time being under subsection 269 (8) or with such of those requirements as are specified by the Commission.

(5) Paragraph (1) (m) and subparagraphs (1) (n) (i), (ii) and (iii) do not apply in the case of a prospectus issued more than 2 years after the day on which:
(a) in the case of a company - it is incorporated; or
(b) in the case of a foreign company - it is registered as a foreign company in the Territory or 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.

(6) A condition requiring or binding an applicant for shares in or debentures of a corporation to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus is void.

(7) Where a prospectus relating to any shares in or debentures of a corporation is issued and the prospectus does not comply with the requirements of this Act, the directors of the corporation and any other persons responsible for the prospectus are each guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

(8) In the event of non-compliance with, or contravention of, any of the requirements set out in this section, a director or other person responsible for the prospectus does not incur any liability by reason of the non-compliance or contravention if:
(a) as regards any matter not disclosed, he proves that he had no knowledge of that matter;
(b) he proves that the non-compliance or contravention arose from an honest mistake on his part concerning the facts; or
(c) the non-compliance or contravention was:
(i) in respect of matter that, in the opinion of the court
dealing with the case, was immaterial; or
(ii) otherwise such as, in the opinion of that court,
having regard to all the circumstances of the case, ought reasonably to be excused.

(9) In the event of failure to include in a prospectus a statement with respect to the matters specified in paragraph (1) (m), no director or other person shall incur any liability in respect of the failure unless it is proved that he had knowledge of the matters not disclosed.

(10) Nothing in this section limits or diminishes any liability that a person may incur under any rule of law or any enactment or under this Act apart from subsection (7).

COMPANIES ACT 1981 - SECT 99
Certain notices etc. not to be published

SECT

99. (1) In this section:
"notice" includes a circular and an advertisement but does not include a registered prospectus or a report, statement, notice, circular or advertisement the publication of which is permitted under section 100;
"publish" includes issue.

(2) A reference in this section to the publishing of a notice is a reference to the publishing of the notice by any means, including the publishing in a newspaper or periodical, by broadcasting or televising or in a film.

(3) Subject to subsection (4), a person shall not publish a notice that:
(a) offers to the public for subscription or purchase shares in, or debentures of, a corporation or proposed corporation;
(b) invites the public to subscribe for or purchase shares in, or debentures of, a corporation or proposed corporation; or
(c) refers or calls attention, whether directly or indirectly, to:
(i) a prospectus;
(ii) an offer or intended offer to the public for
subscription or purchase of shares in, or debentures of, a corporation;
(iii) an invitation or intended invitation to the public to
subscribe for or purchase shares in, or debentures of, a corporation; or
(iv) another notice that refers or calls attention, whether
directly or indirectly, to a prospectus or such an offer, intended offer, invitation or intended invitation, not being a notice referred to in subsection (4).

(4) Subsection (3) does not apply to or with respect to the publishing of a notice that refers to a registered prospectus and:
(a) states that allotments or issues of, or contracts for the subscription for or purchase of, shares or debentures to which the prospectus relates will be made only on receipt of a form of application referred to in and attached to a copy of the prospectus but contains no other statements other than statements as to any or all of the following:
(i) particulars of the shares in, or debentures of, the
corporation to which the prospectus relates;
(ii) the name of the corporation, the date of its
incorporation and the amount of its paid-up capital;
(iii) the general nature of the main business of the
corporation;
(iv) the names, addresses and occupations of the directors
of the corporation;
(v) in relation to each person who is a broker or
underwriter to the issue - the name and address of the person and the name of each securities exchange of which the person is a member;
(vi) where the prospectus relates to debentures, the name
and address of the trustee for the debenture holders;
(vii) the time and place at which copies of the prospectus
and forms of application for the shares or debentures to which it relates may be obtained;
(viii) the period during which the offer or invitation
contained in the prospectus is open;
(b) is published by the holder of a dealers licence or an investment advisers licence, by a recognized dealer or recognized investment adviser or by an exempt dealer within the meaning of the Securities Industry Act 1980 but contains no other statements other than statements as to any or all of the matters referred to in paragraph (a) and a statement as to:
(i) whether or not the person publishing the notice
recommends acceptance of the offer or invitation to which the prospectus relates; and
(ii) the interest (if any) that the person publishing the
notice has in the success of the offer or invitation to which the prospectus relates, being an interest that the person has as underwriter or sub-underwriter to the issue of the shares or debentures to which the prospectus relates or a relevant interest, within the meaning of the Securities Industry Act 1980, in those shares or debentures; or
(c) is published by the holder of a dealers licence or an investment advisers licence, by a recognized dealer or recognized investment adviser or by an exempt dealer within the meaning of the Securities Industry Act 1980 and is accompanied by a copy of the prospectus.

(5) The inclusion in a notice of a statement required by this or any other Act or law to be included in the notice does not affect the operation of subsection (4).

(6) A person shall not contravene, or authorize or permit an act that constitutes a contravention of, this section.

(7) Where a notice relating to a corporation is published in contravention of this section by or with the authority or permission of an officer of the corporation, the corporation is guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 100
Certain reports referring to prospectuses not to be published

SECT

100. (1) In this section, unless the contrary intention appears:
"publish" includes issue;
"report" includes a statement, notice, circular and an advertisement, whether or not in writing, but does not include a notice, circular or advertisement the publication of which is permitted under section 99.

(2) A reference in this section to the publishing of a report is a reference to the publishing of the report by any means, including the publishing in a newspaper or periodical, by broadcasting or televising or in a film.

(3) Subject to subsection (4), a person who is aware that a prospectus relating to an issue of shares or debentures:
(a) is in course of preparation by or on behalf of a corporation or in respect of a proposed corporation, for registration under the law of any State or Territory; or
(b) has been issued by or on behalf of a corporation;
shall not publish a report that is reasonably likely to induce persons to apply for those shares or debentures.

(4) Subsection (3) does not apply to or with respect to the publishing of:
(a) a report that relates to affairs of a corporation the name of which is included in the official list of a securities exchange and:
(i) is published only to that securities exchange or an
officer of that securities exchange on behalf of the corporation or by or on behalf of one or more of the directors of the corporation; or
(ii) has been so published;
(b) a report of the whole or part of the proceedings at a general meeting of a corporation the name of which is included in the official list of a securities exchange and which contains no other matter other than matters laid before that meeting;
(c) a report that relates to a corporation and is published by or on behalf of a corporation or by or on behalf of one or more of the directors of the corporation and:
(i) does not contain matter that materially affects affairs
of the corporation other than matter previously made available in a registered prospectus, an annual report or a report referred to in paragraph (a) or (b);
(ii) does not contain a reference, whether directly or
indirectly, to an offer to the public of shares or debentures for subscription or purchase or to an invitation to the public to subscribe for or purchase shares or debentures, being an offer or invitation that, when the report is published, is open or is intended to be made or issued, not being a reference to the principal business of the corporation in a case where the principal business of the corporation is the borrowing of money and the provision of finance; and
(iii) is not accompanied by a registered prospectus or a
notice described in subsection 99 (3), and is a report that the corporation and its directors have taken all reasonable steps to ensure is not published in a form or manner in which it might be associated with a notice described in subsection 99 (3);
(d) a report published on behalf of a corporation by or on behalf of the directors of a corporation with the consent of the Commission;
(e) a report that is a news report (whether or not with other comment), or is bona fide comment, published by a person in a newspaper or periodical or by broadcasting or televising relating to:
(i) a registered prospectus or information contained in a
registered prospectus; or
(ii) a report referred to in paragraph (a), (b), (c) or
(d);
if none of the following:
(iii) that person;
(iv) an agent or employee of that person;
(v) where the report or comment is published in a newspaper
or periodical - the publisher of the newspaper or periodical; or
(vi) where the report or comment is published by
broadcasting or televising - the licensee of the broadcasting or television station by which it is published;
receives or is entitled to receive any consideration or other benefit from a person who has an interest in the success of the issue of shares or debentures to which the report or comment relates as an inducement to publish, or as the result of the publication of, the report or comment;
(f) a report where the report is not published:
(i) by or on behalf of a corporation to which the report
relates or, whether directly or indirectly, at the instigation of, or by arrangement with, the corporation or the directors of the corporation;
(ii) by or on behalf of the directors or promoters of a
proposed corporation to which the report relates; or
(iii) by or on behalf of a person who has an interest in
the success of the issue of shares or debentures to which the report relates;
and the person publishing the report does not receive and is not entitled to receive any consideration or other benefit from the corporation or any of the directors of the corporation or any of the directors or promoters of the proposed corporation, or from a person mentioned in subparagraph (iii), as an inducement to publish, or as the result of the publication of, the report; or
(g) a report containing only matter that is prescribed matter for the purposes of this subsection or relating only to a corporation that is, or is included in a class that is, prescribed for the purposes of this subsection.

(5) A person shall not contravene this section or authorize or permit an act that constitutes a contravention of this section.

(6) Where a report relating to a corporation is published in contravention of this section by or with the authority or permission of an officer of the corporation, the corporation is guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 101
Evidentiary provisions etc.

SECT

101. (1) In this section:
"notice" means a notice within the meaning of section 99 or a report within the meaning of section 100;
"publish" includes issue.

(2) A person who publishes a notice relating to a corporation or proposed corporation after he has received a certificate that:
(a) specifies the names of 2 directors of the corporation or 2 proposed directors of the proposed corporation and is signed by those directors or proposed directors; and
(b) is to the effect that, by reason of subsection 99 (4) or 100 (4), section 99 or 100, as the case may be, does not apply to the notice;
is not guilty of an offence under section 99 or 100, as the case may be.

(3) Where a notice to which a certificate under subsection (2) relates is published, each director or proposed director who signed that certificate shall, for the purposes of sections 99 and 100, be deemed to have published the notice.

(4) A person who publishes a notice to which a certificate under subsection (2) relates shall, if the Commission requires him to do so, forthwith deliver the certificate to the Commission.
Penalty: $1,000 or imprisonment for 3 months, or both.

(5) In proceedings for an offence under section 99 or 100, a certificate relating to a notice that purports to be a certificate under this section is prima facie evidence that:
(a) when the certificate was issued, the persons named in the certificate as directors of the corporation or proposed directors of the proposed corporation, as the case may be, were the directors or proposed directors;
(b) the signatures in the certificate purporting to be the signatures of the directors or proposed directors, as the case may be, are those signatures; and
(c) the publication of the notice was authorized by those directors or proposed directors, as the case may be.

(6) Nothing in section 99, 100 or this section limits or diminishes the liability that a person may incur, otherwise than under section 99, 100 or this section, under any rule of law or under any other enactment.

COMPANIES ACT 1981 - SECT 102
Retention of over-subscriptions in debenture issues

SECT

102. (1) A corporation shall not accept or retain subscriptions to a debenture issue in excess of the amount of the issue as disclosed in the prospectus unless the corporation has specified in the prospectus:
(a) that it expressly reserves the right to accept or retain over-subscriptions; and
(b) a limit on the amount of over-subscriptions that may be accepted or retained.

(2) Subject to section 98 and any regulations made for the purposes of paragraph 98 (1) (ea), where a corporation specifies in a prospectus relating to a debenture issue that it reserves the right to accept or retain over-subscriptions:
(a) the corporation shall not make, authorize or permit any statement or reference as to the asset-backing for the issue to be made or contained in any prospectus relating to the issue, other than a statement or reference to the total assets and the total liabilities of the corporation; and
(b) the corporation shall set out in the prospectus a statement or reference as to what the total assets and total liabilities of the corporation would be if over-subscriptions to the limit specified in the prospectus were accepted or retained.
Penalty: $2,500.

COMPANIES ACT 1981 - SECT 103
Registration of prospectuses

SECT

103. (1) A prospectus shall not be issued by any person unless a copy of the prospectus has first been registered by the Commission under this Act.

(2) The Commission shall not register a copy of a prospectus under this Act unless:
(a) the prospectus relates to a company or a registered foreign company;
(b) the copy, signed by every director and by every person who is named in the prospectus as a proposed director of the company or foreign company or by his agent authorized in writing, is lodged with the Commission on or before the date of issue of the prospectus;
(c) the prospectus appears to comply with the requirements of this Act;
(d) there are also lodged with the Commission copies, verified by statements in writing, of any consents required by section 106 to the issue of the prospectus and of all material contracts referred to in the prospectus or, in the case of such a contract not reduced to writing, a memorandum giving full particulars of the contract, verified by a statement in writing; and
(e) the Commission is of the opinion that the prospectus does not contain any statement or matter that is false in a material particular or is materially misleading in the form or context in which it appears.

(3) If a prospectus is issued without a copy of the prospectus having been registered as required by this section, the corporation and any person who is knowingly a party to the issue of the prospectus are each guilty of an offence.
Penalty: $20,000 or imprisonment for 5 years, or both.

(4) A company or foreign company in respect of which a copy of a prospectus has been registered under this section shall cause a true copy of every document referred to in paragraph (2) (d) to be deposited, within 7 days after registration of the copy of the prospectus, at the registered office of the company or foreign company in the Territory and shall keep each such copy for a period of at least 6 months after the registration of the copy of the prospectus for the inspection of any person without charge.

COMPANIES ACT 1981 - SECT 104
Document containing offer of shares for sale deemed to be prospectus

SECT

104. (1) Where a corporation allots or issues or agrees to allot or issue to any person any shares in, or debentures of, the corporation with a view to all or any of them being offered for sale to the public, any document by which the offer for sale to the public is made shall, for all purposes, be deemed to be a prospectus issued by the corporation, and all enactments and rules of law:
(a) relating to the contents of prospectuses and liability in respect of statements and non-disclosures in prospectuses, or otherwise relating to prospectuses; and
(b) relating to the offering or to an intended offering to the public of shares or debentures for subscription or purchase;
apply and have effect accordingly as if the shares or debentures had been offered to the public and as if persons accepting the offer in respect of any shares or debentures were subscribers for the shares or debentures, but without prejudice to the liability (if any) of the persons by whom the offer is made in respect of statements or non-disclosures in the document or otherwise.

(2) For the purposes of this Act, unless the contrary is proved, it is evidence that an allotment or issue of, or an agreement to allot or issue, shares or debentures was made with a view to the shares or debentures being offered for sale to the public if it is shown:
(a) that an offer of the shares or debentures or of any of them for sale to the public was made within 6 months after the allotment or issue or agreement to allot or issue; or
(b) that an offer of the shares or debentures or of any of them for sale to the public was made, and that, at the date when the offer was made, the corporation had not received the whole of the consideration to be received in respect of the shares or debentures.

(3) The requirements of this Division as to prospectuses have effect as though the persons making an offer to which this section relates were persons named in a prospectus as directors of a corporation.

(4) In addition to complying with the other requirements of this Division, the document making the offer shall state:
(a) the net amount of the consideration received or to be received by the corporation in respect of shares or debentures to which the offer relates; and
(b) the place and time at which the contract under which the shares or debentures have been or are to be allotted or issued may be inspected.

(5) Where an offer to which this section relates is made by a corporation or a firm, it is sufficient for the purposes of paragraph 103 (2) (b) if the document referred to in subsection (1) is signed on behalf of the corporation or firm by 2 directors of the corporation or by members of the firm who constitute not less than one-half of the number of members of the firm, as the case may be, and any such director or member may sign by his agent authorized in writing.

(6) For the purposes of this section, an invitation to the public to make offers to purchase shares or debentures shall be deemed to constitute an offer of the shares or debentures for sale to the public and a person who makes an offer pursuant to such an invitation shall be deemed to be a person who accepted an offer of the shares for sale to the public that is so deemed to be constituted by the invitation.

COMPANIES ACT 1981 - SECT 105
Allotment or issue of shares or debentures where prospectus
indicates application for quotation on stock market

SECT

105. (1) Subject to this section, where a prospectus in relation to shares in, or debentures of, a corporation states that application has been or will be made to a securities exchange, whether in Australia or elsewhere, for permission for the shares or debentures to be listed for quotation on the stock market of that securities exchange and:
(a) the permission is not applied for in the form for the time being required by that securities exchange before the third day on which that securities exchange is open after the date of issue of the prospectus; or
(b) the permission is not granted before the expiration of a period of 6 weeks from the date of issue of the prospectus or such longer period, not exceeding 12 weeks, from the date of issue as is, within that period of 6 weeks, notified to the applicant by or on behalf of the securities exchange;
any allotment or issue, whenever made, on an application pursuant to the prospectus is void and the corporation shall repay, in accordance with the succeeding provisions of this section, any money received by it from any person pursuant to the prospectus.

(2) Where a corporation is liable under subsection (1) to repay money received pursuant to a prospectus:
(a) the money shall be repaid forthwith without interest; and
(b) if the money is not repaid:
(i) where the liability to repay the money arose by reason
of paragraph (1) (a) - within 14 days after the third day referred to in that paragraph; or
(ii) where the liability to repay the money arose by reason
of paragraph (1) (b), within 14 days after:
(A) the period of 6 weeks first referred to in that
paragraph; or
(B) if a longer period has been notified under that
paragraph - that longer period; then, in addition to the liability of the corporation to repay the money, the directors of the corporation are jointly and severally liable to repay the money with interest at the rate of 8% per annum (or, if another rate is prescribed, that other rate) calculated from the expiration of the 14 days referred to in subparagraph (i) or (ii), as the case requires.

(3) Where, in relation to any shares in, or debentures of, a corporation:
(a) permission is not applied for as specified in paragraph (1) (a); or
(b) permission is not granted as specified in paragraph (1) (b);
the Commission may, by notice published in the Gazette, on the application of the corporation made before any share or debenture is purported to be allotted or issued, exempt the allotment of the shares or the issue of the debentures from the operation of this section.

(4) A director is not liable under this section if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.

(5) Without limiting the application of any of the provisions of this section, this section has effect:
(a) in relation to any shares or debentures agreed to be taken by a person underwriting an offer of, or invitation in relation to, those shares or debentures contained in a prospectus as if he had applied for those shares or debentures pursuant to the prospectus; and
(b) in relation to a prospectus offering shares for sale or inviting offers to purchase shares, as if:
(i) a reference to sale or purchase, as the case may be,
were substituted for a reference to allotment;
(ii) the persons by whom the offer is made or the
invitation is issued, and not the corporation, were liable under this section to repay money received from applicants, and references to the corporation's liability under this section were construed accordingly; and
(iii) for the reference in subsection (6) to the
corporation and any officer of the corporation who is in default there were substituted a reference to any person by or through whom the offer is made or the invitation is issued who knowingly authorizes or permits the default.

(6) All money received by a corporation pursuant to a prospectus as mentioned in the preceding provisions of this section shall be kept in a separate bank account so long as the corporation may become liable to repay it under this section and, if default is made in complying with this subsection, the corporation and any officer of the corporation who is in default are each guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

(7) Where a securities exchange has, within the period applicable under paragraph (1) (b), granted permission subject to compliance with any requirements specified by the securities exchange, permission shall be deemed to have been granted by the securities exchange if the directors have given to the securities exchange an undertaking in writing to comply with the requirements of the securities exchange, but if any such undertaking is not complied with, each director who is in default is guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

(8) A person shall not issue a prospectus inviting persons to subscribe for, or offering to accept subscriptions for, shares in, or debentures of, a corporation if the prospectus includes:
(a) an untrue statement that permission has been granted for those shares or debentures to be dealt in or quoted or listed for quotation on a stock market of a securities exchange; or
(b) any statement in any way referring to any such permission or to any application or intended application for any such permission, or to dealing in or quoting or listing the shares or debentures on, or on a stock market of, a securities exchange, or to any requirements of a securities exchange, unless that statement is or is to the effect that permission has been granted or that application has been or will be made to the securities exchange within 3 days of the issue of the prospectus.
Penalty: $5,000 or imprisonment for 1 year, or both.

(9) Any condition requiring or binding any applicant for shares or debentures to waive compliance with any requirement of this section, or purporting to do so, is void.

COMPANIES ACT 1981 - SECT 106
Expert's consent to issue of prospectus containing statement by him

SECT

106. (1) A prospectus in relation to a corporation that includes a statement purporting to be made by an expert or to be based on a statement made by an expert shall not be issued unless:
(a) the expert has given, and has not, before delivery of a copy of the prospectus for registration, withdrawn, his written consent to the issue of the prospectus with the statement included in the form and context in which it is included; and
(b) there appears in the prospectus a statement that the expert has given, and has not withdrawn, his consent.

(2) If a prospectus is issued in contravention of this section, the corporation and any person who is knowingly a party to the issue of the prospectus are each guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 107
Civil liability for untrue statement or non-disclosure in prospectus

SECT

107. (1) Subject to this section, where a prospectus is issued in relation to a corporation, a person who:
(a) is a director of the corporation at the time of the issue of the prospectus;
(b) authorized or caused himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time;
(c) is a promoter of the corporation; or
(d) authorized or caused the issue of the prospectus;
is liable to pay compensation to all persons who subscribe for or purchase any shares or debentures or units of shares or debentures on the faith of the prospectus for any loss or damage sustained by reason of any untrue statement in the prospectus, or by reason of the non-disclosure in the prospectus of any matter of which he had knowledge and which he knew to be material.

(2) Notwithstanding anything in subsection (1), an expert whose consent to the issue of a prospectus is required and who has given that consent is not, by reason only of having given that consent, liable under subsection (1) as a person who has authorized or caused the issue of the prospectus except in respect of:
(a) an untrue statement in the prospectus purporting to be made by him as an expert; and
(b) a non-disclosure in the prospectus of any material matter for which he is responsible in his capacity or purported capacity as an expert.

(3) For the purposes of subsection (1), a person who is named in a prospectus as:
(a) a trustee for holders of debentures of the corporation;
(b) an auditor, banker, solicitor, stockbroker or share broker of the corporation or for or in relation to the issue or proposed issue of shares or debentures; or
(c) a person performing any function in a professional, advisory or other capacity not mentioned in paragraph (a) or (b) for the corporation or for or in relation to the issue or proposed issue of shares or debentures;
shall not, for that reason alone, be taken to have authorized the issue of the prospectus.

(4) For the purposes of subsection (1), a statement shall be deemed to be in a prospectus if it is contained in any report or memorandum that appears on the face of, or is issued with, the prospectus, or is incorporated by reference in the prospectus, whether the reference occurs in the prospectus or in any other document.

(5) Subject to subsection (6), a person, other than a person to whom subsection (7) applies, is not liable under subsection (1) if he proves:
(a) that, having consented to become a director of the corporation, he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent;
(b) that the prospectus was issued without his knowledge or consent and:
(i) when he became aware of the issue of the prospectus, he
forthwith gave reasonable public notice that it was issued without his knowledge; or
(ii) he gave reasonable public notice that the prospectus
was issued without his consent forthwith after it was issued;
as the case may be;
(c) that, after the issue of the prospectus and before any allotment, issue or sale under the prospectus, he, on becoming aware of any untrue statement in the prospectus, withdrew his consent to the issue of the prospectus and gave reasonable public notice of the withdrawal and of the reason for the withdrawal; or
(d) that:
(i) as regards every untrue statement not purporting to be
made on the authority of an expert or of a public official document or statement, he had reasonable grounds to believe, and did until the time of the allotment, issue or sale of the shares or debentures believe, that the statement was true;
(ii) as regards every untrue statement purporting to be a
statement made by an expert or to be based on a statement made by an expert or contained in what purports to be a copy of, or extract from, a report or valuation of an expert, it fairly represented the statement, or was a correct and fair copy of, or extract from, the report or valuation, and he had reasonable grounds to believe, and did until the time of the issue of the prospectus believe, that the person making the statement was competent to make it and that that person had given the consent required by section 106 to the issue of the prospectus and had not withdrawn that consent before delivery of a copy of the prospectus for registration, or, to the defendant's knowledge, before any allotment, issue or sale under the prospectus; and
(iii) as regards every untrue statement purporting to be a
statement made by an official person or contained in what purports to be a copy of, or extract from, a public official document, it was a correct and fair representation of the statement or a correct and fair copy of, or extract from, the document.

(6) Subsection (5) does not apply in the case of a person who is liable, by reason of his having given a consent required of him by section 106, as a person who has authorized or caused the issue of the prospectus in respect of an untrue statement purporting to have been made by him as an expert.

(7) A person who, apart from this subsection, would under subsection (1) be liable, by reason of his having given a consent required of him by section 106, as a person who has authorized the issue of a prospectus, in respect of an untrue statement purporting to be made by him as an expert is not so liable if he proves:
(a) that, having given his consent under section 106 to the issue of the prospectus, he withdrew it in writing before a copy of the prospectus was lodged with the Commission;
(b) that, after a copy of the prospectus was lodged with the Commission and before any allotment, issue or sale under the prospectus, he, on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal and of the reasons for the withdrawal; or
(c) that he was competent to make the statement and that he had reasonable grounds to believe, and did until the time of the allotment, issue or sale of the shares or debentures believe, that the statement was true.

(8) Where:
(a) a prospectus in relation to a corporation contains the name of a person as a director of the corporation, or as having agreed to become a director, and that person has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorized or consented to the issue of the prospectus; or
(b) the consent of a person is required under section 106 to the issue of the prospectus and he either has not given that consent or has withdrawn it before the issue of the prospectus;
the directors of the corporation, except any without whose knowledge or consent the prospectus was issued, and any other person who authorized or caused the issue of the prospectus are jointly and severally liable to indemnify the person so named or whose consent was so required against all damages, costs and expenses to which he may be made liable by reason of his name having been so inserted in the prospectus or by reason of the inclusion in the prospectus of a statement purporting to be made by him as an expert, or in defending himself against any action or other legal proceeding brought against him by reason of his name having been so inserted in the prospectus or the inclusion in the prospectus of such a statement.

COMPANIES ACT 1981 - SECT 108
Criminal liability for untrue statement or non-disclosure in prospectus

SECT

108. (1) Where in a prospectus there is any untrue statement or non-disclosure, any person who authorized or caused the issue of the prospectus is guilty of an offence unless he proves:
(a) that the statement or non-disclosure was immaterial;
(b) that he had reasonable grounds to believe, and did until the time of the issue of the prospectus believe, that the statement was true or the non-disclosure was immaterial; or
(c) where there was in the prospectus a non-disclosure - that the non-disclosure was inadvertent.
Penalty: $20,000 or imprisonment for 5 years, or both.

(2) For the purposes of subsection (1), a statement shall be deemed to be in a prospectus if it is contained in any report or memorandum that appears on the face of, or is issued with, the prospectus, or is incorporated by reference in the prospectus, whether the reference occurs in the prospectus or in any other document.

(3) A person shall not be taken for the purposes of this section to have authorized or caused the issue of a prospectus by reason only of his having given the consent required by this Division to the inclusion in the prospectus of a statement purporting to be made by him as an expert.

COMPANIES ACT 1981 - DIVISION 2
Division 2 - Restrictions on Allotment and Variation of
Contracts

COMPANIES ACT 1981 - SECT 110
Prohibition of allotment unless minimum subscription received

SECT

110. (1) A company shall not make an allotment of shares in the company that have been offered to the public or in respect of which an invitation has been issued to the public unless:
(a) the minimum subscription has been subscribed; and
(b) the sum payable on application for the shares so subscribed has been received by the company.

(2) For the purposes of subsection (1), where a company has, whether before or after the commencement of this Act, received a cheque for the sum payable on application for an allotment of shares in the company, the sum shall be deemed not to have been received by the company until the cheque is paid by the bank on which it is drawn.

(3) In ascertaining for the purposes of subsection (1) whether the minimum subscription has been subscribed in relation to an allotment of shares, there shall, in respect of each share for the allotment of which an application has been made, be deemed to have been subscribed an amount equal to the sum of:
(a) the nominal value of that share; and
(b) if the share is, or is to be, issued at a premium - the amount of the premium payable on the share;
less any amount payable otherwise than in cash.

(4) Except in the case of a no liability company, the amount payable on application for each share that has been offered to the public or in respect of which an invitation has been issued to the public shall be not less than 5% of the nominal amount of the share.

(5) If the conditions referred to in paragraphs (1) (a) and (b) have not been satisfied on the expiration of 4 months after the issue of the prospectus, the company shall repay, in accordance with the succeeding provisions of this section, all money received from applicants for shares.

(6) Where a company is liable, under subsection (5), to repay money received from applicants for shares:
(a) the money shall be repaid without interest within 7 days after the company becomes so liable; and
(b) if the money is not repaid within 7 days after the company becomes so liable:
(i) the directors of the company are, subject to subsection
(7), jointly and severally liable to repay the money with interest at the rate of 8% per annum (or if another rate is prescribed, that other rate) calculated from the expiration of the period of 7 days; and
(ii) each director of the company is guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

(7) A director of a company is not liable under subparagraph (6) (b) (i), and is not guilty of an offence under subparagraph (6) (b) (ii), if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.

(8) An allotment made by a company to an applicant in contravention of the provisions of this section is voidable at the option of the applicant and is so voidable notwithstanding that the company is in the course of being wound up.

(9) An option referred to in subsection (8) is exercisable by notice in writing served on the company:
(a) in the case of an allotment made by a company that is not required to hold a statutory meeting - within one month after the date of the allotment; and
(b) in the case of an allotment made by a company that is required to hold a statutory meeting:
(i) if the company holds the statutory meeting within the
period specified in subsection 239 (1) - within one month after the date of the allotment or the holding of the statutory meeting, whichever is the later; or
(ii) if the company fails to hold the statutory meeting
within that period - within one month after the expiration of that period or the date of the allotment, whichever is the later.

(10) A director of a company who knowingly contravenes, or permits or authorizes the contravention of, any of the provisions of this section is guilty of an offence and is liable, in addition to the penalty or punishment for the offence, to compensate the company and any person to whom an allotment has been made in contravention of this section respectively for any loss, damages or costs that the company or the person has sustained or incurred by reason of the allotment, but no proceedings for the recovery of any such compensation shall be commenced after the expiration of 2 years from the date of the allotment.

(11) Any condition requiring or binding an applicant for shares to waive compliance with any requirement of this section, or purporting to do so, is void.

(12) A company shall not allot or issue, and an officer or promoter of a company or a proposed company shall not authorize or permit to be allotted or issued, shares or debentures on the basis of a prospectus after the expiration of 6 months from the issue of the prospectus.
Penalty: $2,500 or imprisonment for 6 months, or both.

(13) Where an allotment or issue of shares or debentures is made on the basis of a prospectus after the expiration of 6 months from the issue of the prospectus, the allotment is not, by reason only of that fact, voidable or void.

COMPANIES ACT 1981 - SECT 111
Application moneys to be held in trust until allotment

SECT

111. (1) Where, whether before or after the commencement of this Act, shares or debentures have been offered to the public or invitations have been issued to the public in respect of shares or debentures, all application moneys and other moneys paid, whether before or after the commencement of this Act, by an applicant on account of the shares or debentures before the allotment or issue of the shares or debentures shall, until the allotment or issue of the shares or debentures, be held by the company on trust for the applicant in a bank account, being a bank account established and kept by the company solely for the purpose of depositing application moneys and other moneys paid by applicants for those shares or debentures, but there is no obligation or duty on any bank with whom any such moneys have been deposited to inquire into or see to the proper application of those moneys so long as the bank acts in good faith.

(2) If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 112
Restriction on varying contracts referred to in prospectus

SECT

112. A company shall not, before the statutory meeting, vary the terms of a contract referred to in the prospectus unless the variation is made subject to the approval of the statutory meeting.

COMPANIES ACT 1981 - DIVISION 3
Division 3 - Capital Structure of Companies

COMPANIES ACT 1981 - SUBDIVISION A
Subdivision A - Shares Generally

COMPANIES ACT 1981 - SECT 113
Return as to allotments

SECT

113. (1) Where a company makes an allotment of its shares, or shares in a company are deemed to have been allotted under subsection (6), the company shall, within one month after the allotment is made or deemed to have been made, lodge with the Commission a return of the allotment stating:
(a) the number and nominal amounts of the shares comprised in the allotment;
(b) the amount (if any) paid, deemed to be paid or due and payable on the allotment of each share;
(c) where the capital of the company is divided into shares of different classes - the class of shares to which each share comprised in the allotment belongs; and
(d) subject to subsection (2), the full name, or the surname and at least one Christian or given name and other initials, and the address of each of the allottees and the number and class of shares allotted to him.

(2) The particulars mentioned in paragraph (1) (d) need not be included in a return:
(a) where shares have been allotted for cash by a no liability company;
(b) where a company to which the provisions of subsection 265 (1) apply has allotted shares for cash; or
(c) where a company to which the provisions of that subsection apply has allotted shares for a consideration other than cash and the number of persons to whom the shares have been allotted exceeds 500.

(3) Where shares in a company are allotted, or deemed to have been allotted, as fully or partly paid up otherwise than in cash and the allotment is made pursuant to a contract in writing, the company shall lodge with the return the contract evidencing the entitlement of the allottee or a certified copy of any such contract.

(4) If a certified copy of a contract is lodged in accordance with subsection (3), the original contract duly stamped shall be produced at the same time to the Commission.

(5) Where shares in a company are allotted, or are deemed to have been allotted, as fully or partly paid up otherwise than in cash and the allotment is made:
(a) pursuant to a contract not reduced to writing;
(b) pursuant to a provision in the memorandum or articles of the company;
(c) in satisfaction of a dividend declared in favour of, but not payable in cash to, the shareholders; or
(d) pursuant to the application of moneys held by the company in an account or reserve in paying up or partly paying up unissued shares to which the shareholders have become entitled;
the company shall lodge with the return a statement containing such particulars as are prescribed.

(6) For the purposes of this section, any shares in a company that the subscribers to the memorandum have agreed in the memorandum to take shall be deemed to have been allotted to those subscribers on the date of the incorporation of the company.

(7) If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 114
Differences in calls and payments, reserve liability etc.

SECT

114. (1) A company, if so authorized by its articles, may:
(a) make arrangements on the issue of shares for varying the amounts and times of payment of calls as between shareholders;
(b) accept from a member the whole or a part of the amount remaining unpaid on any shares although no part of that amount has been called up; and
(c) except in the case of a no liability company, pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.

(2) A limited company may, by special resolution, determine that any portion of its share capital that has not been already called up is not capable of being called up except in the event and for the purposes of the company being wound up, and thereupon that portion of the company's share capital is not capable of being called up except in the event and for the purposes of the company being wound up, but no such resolution prejudices any rights acquired by a person before the passing of the resolution.

COMPANIES ACT 1981 - SECT 115
Share warrants

SECT

115. A company shall not issue any share warrant.

COMPANIES ACT 1981 - SECT 116
Restriction on application of capital of company

SECT

116. (1) Except as provided by section 117, a company shall not apply any of its shares or capital money either directly or indirectly in making a payment to a person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, whether the shares are or the money is so applied by being added to the purchase price of property acquired by the company or to the contract price of work to be executed for the company or the money is paid out of the nominal purchase price or contract price or otherwise.

(2) Without limiting the generality of subsection (1), except as provided by section 118, a company shall not issue shares at a discount.

(3) If a company contravenes this section, the company is, notwithstanding section 570, not guilty of an offence against this Act but each officer of the company who is in default is guilty of an offence.
Penalty: $1,000 or imprisonment for 3 months, or both.

(4) Where:
(a) a person is convicted of an offence under this section in relation to a company; and
(b) the court by which he was convicted is satisfied that the company has suffered loss or damage as a result of the act that constituted the offence;
that court may, in addition to imposing a penalty, order the convicted person to pay compensation to the company of such amount as that court specifies, and any such order may be enforced as if it were a judgment of that court.

(5) Where a contravention of this section takes place:
(a) if a person other than the company concerned, being a person who was, at the time of the contravention, aware of the matters constituting the contravention, has made a profit as a result of the contravention, the company may, whether or not that person or any other person has been convicted of an offence under subsection (3) in relation to that contravention, recover from the person as a debt due to the company by action in any court of competent jurisdiction an amount equal to the profit; and
(b) where the company concerned has suffered loss or damage as a result of the contravention - the company may recover an amount equal to the loss or damage from any person who is in default, whether or not that person or any other person has been convicted of an offence under subsection (3) in relation to that contravention, as a debt due to the company by action in any court of competent jurisdiction.

COMPANIES ACT 1981 - SECT 117
Power to make certain payments

SECT

117. (1) Subject to subsection (2), a company may make a payment by way of brokerage or commission to a person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for shares in the company or procuring or agreeing to procure subscriptions, whether absolute or conditional, for shares in the company if, and only if:
(a) the payment is not prohibited by the memorandum or articles;
(b) the amount of the proposed payment, or the rate at which the payment is proposed to be made, is disclosed in the prospectus in respect of the shares or, if there is no such prospectus, in a statement lodged with the Commission before the company becomes liable to make the payment; and
(c) the number of shares for which persons have agreed, for a payment by way of brokerage or commission, to subscribe absolutely is set out in that prospectus or statement.

(2) Subsection (1) does not permit a company to make a payment by way of brokerage or commission in respect of shares in the company if the amount of the payment, or, if another payment or other payments by way of brokerage or commission has or have been made by the company in respect of those shares, the sum of the amount of the first-mentioned payment and the other payment or payments, exceeds:
(a) 10% of the total of the amount payable in respect of the shares upon their allotment; or
(b) such amount (if any), or an amount calculated at such rate (if any), as is authorized by the articles;
whichever is the lesser.

(3) A vendor to, promoter of, or person who receives payment in money or shares from, a company may apply any part of the money or shares so received in making any payment that would, if it were made directly by the company, be lawful under this section.

COMPANIES ACT 1981 - SECT 118
Power to issue shares at a discount

SECT

118. (1) A no liability company may issue shares at a discount.

(2) Subject to this section, a company other than a no liability company may issue at a discount shares included in a class of shares already issued if:
(a) the issue of the shares at a discount:
(i) is authorized by resolution passed in general meeting
of the company; and
(ii) is confirmed by order of the Court;
(b) the resolution specifies the maximum rate of discount at which the shares are to be issued;
(c) the shares are issued within one month after the date on which the issue is confirmed by order of the Court or within such extended time as the Court allows; and
(d) the shares are first offered to every holder of shares in the company of that class in proportion to the number of shares of that class held by him.

(3) The Court may, if having regard to all the circumstances of the case it thinks proper to do so, make an order confirming the issue on such terms and conditions as it thinks fit.

(4) A prospectus relating to the issue of the shares shall contain particulars of the discount allowed or of so much of that discount as has not been written off at the date of the issue of the prospectus.

(5) If default is made in complying with subsection (4), 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.

(6) An offer made for the purposes of paragraph (2) (d) shall be made by notice specifying the number of shares to which the member is entitled, and specifying a period, being not less than 21 days from the date of the notice, within which the offer may be accepted.

(7) If an offer in respect of shares made in accordance with subsection (6) is not accepted within the period specified by the notice, the shares may be issued on terms not more favourable than those offered to the shareholders.

COMPANIES ACT 1981 - SECT 119
Issue of shares at premium

SECT

119. (1) Where a company issues shares for which a premium is received by the company, whether in cash or in the form of other valuable consideration, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account to be called the "share premium account", and the provisions of this Act relating to the reduction of the share capital of a company, other than subsection 123 (6) apply, subject to this section, as if the share premium account were paid-up share capital of the company.

(2) The share premium account may be applied:
(a) in paying up unissued shares to be issued to members of the company as fully paid bonus shares;
(b) in paying up in whole or in part the balance unpaid on shares previously issued to members of the company;
(c) in the payment of dividends, if those dividends are satisfied by the issue of shares to members of the company;
(d) in the case of a company that carries on life insurance business in Australia - by appropriation or transfer to any statutory fund established and maintained pursuant to the Life Insurance Act 1945;
(e) in writing off:
(i) the preliminary expenses of the company; or
(ii) the expenses of, or the payment made in respect of or
discount allowed on, any issue of shares in, or debentures of, the company;
(ea) as provided by subsection 133PD (2); or
(f) in providing for the premium payable on redemption of debentures or redeemable preference shares.

COMPANIES ACT 1981 - SECT 120
Redeemable preference shares

SECT

120. (1) Subject to this section, a company having a share capital may, if so authorized by its articles, issue preference shares that are, or at the option of the company are to be, liable to be redeemed.

(2) The redemption shall not be taken to reduce the authorized share capital of the company.

(3) The shares shall not be redeemed:
(a) except on such terms and in such manner as are provided by the articles;
(b) except out of profits that would otherwise be available for dividends or out of the proceeds of a fresh issue of shares made for the purposes of the redemption; and
(c) unless they are fully paid-up.

(4) The premium (if any) payable on redemption shall be provided for out of profits or out of the share premium account.

(5) Where redeemable preference shares are redeemed otherwise than out of the proceeds of a fresh issue of shares, there shall, out of profits that would otherwise have been available for dividends, be transferred to a reserve called the "capital redemption reserve" a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company, other than subsection 123 (6), apply, except as provided by this section, as if the capital redemption reserve were paid-up share capital of the company.

(6) Where, pursuant to this section, a company has redeemed or is about to redeem any preference shares, it may issue shares up to the sum of the nominal values of the shares redeemed or to be redeemed as if those preference shares had never been issued.

(7) The capital redemption reserve may be applied in paying up unissued shares of the company to be issued to members of the company as fully-paid bonus shares.

(8) Where a company redeems any redeemable preference shares, it shall, within 14 days after so doing, lodge with the Commission a notice in the prescribed form relating to the shares redeemed.

(9) Shares shall be taken to have been redeemed notwithstanding that a cheque given in payment of the amount payable upon redemption of the shares has not been presented for payment.

(10) If a company fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 121
Power of company to alter its share capital

SECT

121. (1) A company may, if so authorized by its articles, by resolution passed in general meeting alter the provisions of its memorandum in any one or more of the following ways:
(a) by increasing its share capital by the creation of new shares of such amount as it thinks expedient;
(b) by consolidating and dividing all or any of its share capital into shares of larger amount than its existing shares;
(c) by converting, or providing for the conversion of, all or any of its paid-up shares into stock or re-converting, or providing for the re-conversion of, that stock into paid-up shares of any denomination;
(d) by subdividing its shares or any of them into shares of smaller amount than is fixed by the memorandum, but so that, in the subdivision, the proportion between the amount paid and the amount (if any) unpaid on each share of a smaller amount is the same as it was in the case of the share from which the share of a smaller amount is derived;
(e) by cancelling shares that, at the date of the passing of the resolution to that effect, have not been taken or agreed to be taken by any person or that have been forfeited and by reducing the amount of the company's share capital by the amount of the shares so cancelled.

(1A) An alteration made in the memorandum in accordance with subsection (1) takes effect on the date of the resolution or such later date as is specified in the resolution.

(2) A cancellation of shares under this section shall be deemed not to be a reduction of share capital within the meaning of this Act.

(3) An unlimited company having a share capital may, by any resolution passed for the purposes of subsection 69 (1), do either or both of the following:
(a) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital may be called up except in the event and for the purposes of the company being wound up;
(b) provide that a specified portion of its uncalled share capital may not be called up except in the event and for the purposes of the company being wound up.

COMPANIES ACT 1981 - SECT 122
Validation of shares improperly issued

SECT

122. (1) Where a company has purported to issue or allot shares and:
(a) the creation, issue or allotment of those shares is invalid by reason of any provision of this or any other Act or of the memorandum or articles of the company or for any other reason; or
(b) the terms of the purported issue or allotment are inconsistent with or are not authorized by any such provision;
the Court may, upon application made by the company, by a holder or mortgagee of any of those shares or by a creditor of the company and upon being satisfied that in all the circumstances it is just and equitable so to do, make an order:
(c) validating the purported issue or allotment of those shares; or
(d) confirming the terms of the purported issue or allotment of the shares;
or both.

(2) Upon an office copy of an order made under subsection (1) being lodged with the Commission, the shares to which the order relates shall be deemed to have been validly issued or allotted upon the terms of the issue or allotment of the shares.

COMPANIES ACT 1981 - SECT 123
Special resolution for reduction of share capital

SECT

123. (1) Subject to confirmation by the Court, a company may, if so authorized by its articles, by special resolution reduce its share capital in any way and in particular, without limiting the generality of the foregoing, may do all or any of the following:
(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up;
(b) cancel any paid-up share capital that is lost or is not represented by available assets; or
(c) pay off any paid-up share capital that is in excess of the needs of the company;
and may, so far as necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.

(2) A reduction in the paid-up share capital of a company does not of itself operate to reduce the nominal share capital of the company.

(3) Where the proposed reduction of share capital involves either diminution of liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital, and in any other case if the Court so directs:
(a) every creditor of the company who, at the date fixed by the Court, is entitled to any debt or claim that, if that date were the date of commencement of the winding up of the company, would be admissible in proof against the company, is entitled to object to the reduction;
(b) the Court, unless satisfied on affidavit that there are no such creditors, shall settle a list of the names of creditors entitled to object and, for that purpose, shall ascertain as far as possible, without requiring an application from any creditor, the names of those creditors and the nature and amount of their debts or claims, and may publish notices fixing a final day on or before which creditors whose names are not entered on the list may claim to be so entered; and
(c) where a creditor whose name is entered on the list, and whose debt has not been discharged or whose claim has not determined, does not consent to the reduction, the Court may dispense with the consent of that creditor on the company securing payment of his debt or claim by appropriating as the Court directs:
(i) if the company admits the full amount of the debt or
claim or, though not admitting it, is willing to provide for it - the full amount of the debt or claim; or
(ii) if the company does not admit and is not willing to
provide for the full amount of the debt or claim or if the amount is contingent or not ascertained - an amount fixed by the Court after the like inquiry and adjudication as if the company were being wound up by the Court.

(4) The Court may, having regard to any special circumstances of any case, direct that all or any of the provisions of subsection (3) shall not apply in respect of creditors included in a class of creditors.

(5) The Court may, if satisfied with respect to each creditor who under subsection (3) is entitled to object, that:
(a) his consent to the reduction has been obtained;
(b) his debt has been discharged or secured; or
(c) his claim has determined or has been secured;
make an order confirming the reduction on such terms and conditions as it thinks fit.

(6) An order made under subsection (5) shall show:
(a) the amount of the share capital of the company as altered by the order;
(b) the number of shares into which the share capital is to be divided;
(c) the amount of each share; and
(d) the amount (if any) that at the date of the order is deemed to be paid up on each share.

(7) A company shall not act upon a resolution for the reduction of share capital before the date on which a certified copy of the resolution and an office copy of the order of the Court have been lodged with the Commission but such a resolution may specify a date, earlier than the first-mentioned date but not earlier than the date of the resolution, as the date from which the reduction of capital is to have effect.

(8) A certificate of the Commission stating that a certified copy of the resolution and an office copy of the order made under subsection (5) have been registered by the Commission is conclusive evidence that all the requirements of this Act with respect to reduction of share capital have been complied with in respect of the company and that the share capital of the company is such amount as is stated in the order.

(9) Upon lodgment of a copy of an order as mentioned in subsection (7), the particulars shown in the order pursuant to subsection (6) shall be deemed to be substituted for the corresponding particulars in the memorandum and the substitution shall be deemed to be an alteration of the memorandum for the purposes of this Act.

(10) A member of a company, past or present, is not liable in respect of any share in the company to any call or contribution exceeding in amount the difference (if any) between the amount of the share as fixed by an order made under subsection (5) and the amount paid, or the reduced amount (if any) that is deemed to have been paid, on the share (as the case may be) but, where the name of a creditor who is entitled under subsection (3) to object to a reduction is, by reason of his ignorance of the proceedings for reduction or of their nature and effect with respect to his claim, not entered on the list of creditors, and after the reduction the company is unable, within the meaning of the provisions of this Act with respect to winding up by the Court, to pay the amount of his debt or claim:
(a) every person who was a member of the company at the date of the registration of the copy of the order for reduction is liable to contribute for the payment of that debt or claim an amount not exceeding the amount that he would have been liable to contribute if the company had commenced to be wound up on the day before that date; and
(b) if the company is wound up, the Court, on the application of any such creditor and proof of his ignorance of the proceedings for reduction or of their nature and effect with respect to his claim, may, if it thinks fit, settle accordingly a list of the names of persons liable to contribute by reason of paragraph (a) and make and enforce calls and orders on the contributories whose names are included in the list as if they were ordinary contributories in a winding up;
but nothing in this subsection affects the rights of the contributories among themselves.

(11) An officer of a company who:
(a) knowingly conceals the name of a creditor entitled to object to a reduction in the share capital of the company; or
(b) knowingly misrepresents the nature or amount of the debt or claim of any creditor of the company;
is guilty of an offence.
Penalty: $10,000 or imprisonment for 2 years, or both.

(12) This section does not apply to an unlimited company, but nothing in this Act precludes an unlimited company from reducing in any way its share capital, including any amount in its share premium account.

(13) The granting by a company to a member of the company of a right to occupy or use land, or a building or part of a building, owned or held under lease by the company, whether for consideration or not, shall not be regarded as being a reduction of the share capital of the company if it is made pursuant to a provision of the memorandum or articles of the company under which a member of the company may, by virtue of his being such a member, be granted such a right, whether the provision provides for consideration to be given for it or not.

(14) Subsection (13) applies whether the grant is by way of lease, under-lease, licence or otherwise, and whether or not, in the case of a grant in respect of a building or part of a building, the grant also entitles the member to a right of use of a garage, outbuilding or other structure or of a passage, stairway or convenience of a building or of land appurtenant to the building or part of the building.

(15) This section does not apply in relation to a reduction of capital, or to a cancellation of shares that have been allotted, where the reduction or cancellation results from, or is necessary by reason of, the operation of the Companies (Acquisition of Shares) Act 1980 or a corresponding law of a participating State or participating Territory, or of regulations made under that Act or under such a corresponding law, and nothing in this Act operates to invalidate any such reduction of capital or cancellation of shares.

COMPANIES ACT 1981 - SUBDIVISION B
Subdivision B - Class Rights

COMPANIES ACT 1981 - SECT 124
Commission to be informed of special rights carried by, or
division or conversion of, shares

SECT

124. (1) Where a company allots shares to which are attached rights that are not provided for in the memorandum or articles of the company or in a resolution or document to which section 251 applies, the company shall, unless the rights attached to the shares are in all respects the same as the rights attached to shares previously allotted, lodge with the Commission, within one month after the allotment of the shares, a statement in the prescribed form relating to those rights.

(2) Where:
(a) shares in a company that were not previously divided into classes are so divided; or
(b) shares in a company that are of one class are converted into shares of another class;
the company shall, within one month after the division or conversion, lodge with the Commission a return in the prescribed form showing particulars of the division or conversion.

(3) If a company contravenes this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 125
Rights of holders of classes of shares

SECT

125. (1) This section applies to a company having a share capital that is divided into classes of shares.

(2) Where:
(a) rights are attached to shares included in a class of shares;
(b) no provision is made by the memorandum or articles for the variation or abrogation of those rights; and
(c) neither the memorandum nor the articles declares or declare those rights to be unalterable;
the company may, with the consent in writing of the holders of three-quarters of the issued shares included in that class or with the sanction of a special resolution passed at a meeting of the holders of those shares, vary or abrogate those rights or alter the memorandum or articles so as to authorize the variation or abrogation of those rights.

(3) Where:
(a) rights are attached to shares included in a class of shares; and
(b) provision is made by the memorandum or articles authorizing the variation or abrogation of those rights with the consent of a specified proportion of the holders of the issued shares included in that class or with the sanction of a resolution of a kind specified in the memorandum or articles passed at a meeting of the holders of those shares;
the memorandum or articles shall not be altered so as to vary or abrogate, or to authorize the variation or abrogation of, those rights, except with the consent of that proportion of the holders of those shares or with the sanction of such a resolution passed at a meeting of the holders of those shares.

(4) Where rights are attached to shares included in a class of shares and:
(a) those rights are at any time varied or abrogated; or
(b) the memorandum or articles is or are altered so as to authorize the variation or abrogation of those rights;
the holders of not less in the aggregate than 10% of the issued shares included in that class may apply to the Court to have the variation or abrogation of the rights, or the alteration of the memorandum or articles, as the case may be, set aside and, if such an application is made, the variation or abrogation, or the alteration, does not have effect until confirmed by the Court.

(5) An application under subsection (4) shall be made within 28 days after the variation, abrogation or alteration referred to in that subsection was made and may be made, on behalf of the shareholders entitled to make the application, by such one or more of their number as they appoint in writing.

(6) On the application, the Court may, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested, if it is satisfied that the variation, abrogation or alteration would unfairly prejudice the members of the class represented by the applicant, set aside the variation, abrogation or alteration, as the case may be, and shall, if not so satisfied, confirm it.

(7) A company shall, within 14 days after the making of an order by the Court on an application under this section, lodge an office copy of the order with the Commission and, if the company fails to comply with this provision, the company and any officer of the company who is in default are each guilty of an offence.

(8) For the purposes of this section, the allotment by a company of preference shares ranking equally with existing preference shares shall be deemed to be a variation of the rights attached to those existing preference shares unless the allotment of the first-mentioned shares was authorized by the terms of allotment of the existing preference shares or by the memorandum or articles in force at the time when the existing preference shares were allotted.

(9) Nothing in section 73 or 76 affects the operation of this section.

COMPANIES ACT 1981 - SECT 126
Rights of holders of shares

SECT

126. (1) This section applies to a company having a share capital that is not divided into classes of shares.

(2) Where:
(a) rights are attached to shares in a company;
(b) no provision is made by the memorandum or articles for the variation or abrogation of those rights; and
(c) neither the memorandum nor the articles declares or declare those rights to be unalterable;
the company may, with the consent in writing of the holders of three-quarters of the issued shares in the company or with the sanction of a special resolution passed at a meeting of the holders of those shares, vary or abrogate those rights or alter the memorandum or articles so as to authorize the variation or abrogation of those rights.

(3) Where:
(a) rights are attached to shares in a company; and
(b) provision is made by the memorandum or articles authorizing the variation or abrogation of those rights with the consent of a specified proportion of the holders of the issued shares in the company or with the sanction of a resolution of a kind specified in the memorandum or articles passed at a meeting of the holders of those shares;
the memorandum or articles shall not be altered so as to vary or abrogate, or to authorize the variation or abrogation of, those rights, except with the consent of that proportion of the holders of those shares or with the sanction of such a resolution passed at a meeting of the holders of those shares.

(4) Where rights are attached to shares in a company and:
(a) those rights are at any time varied or abrogated; or
(b) the memorandum or articles is or are altered so as to authorize the variation or abrogation of those rights;
the holders of not less in the aggregate than 10% of the issued shares in the company may apply to the Court to have the variation or abrogation of the rights, or the alteration of the memorandum or articles, as the case may be, set aside and, if such an application is made, the variation or abrogation, or the alteration, does not have effect until confirmed by the Court.

(5) An application under subsection (4) shall be made within 28 days after the variation, abrogation or alteration referred to in that subsection was made and may be made, on behalf of the shareholders entitled to make the application, by such one or more of their number as they appoint in writing.

(6) On the application, the Court may, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested, if it is satisfied that the variation, abrogation or alteration would unfairly prejudice the shareholders of the company, set aside the variation, abrogation or alteration, as the case may be, and shall, if not so satisfied, confirm it.

(7) A company shall, within 14 days after the making of an order by the Court on an application under this section, lodge an office copy of the order with the Commission and, if the company fails to comply with this provision, the company and any officer of the company who is in default are each guilty of an offence.

(8) For the purposes of this section:
(a) the allotment by a company of shares to which are attached rights that are not provided for in the memorandum or articles of the company or in a resolution or document to which section 251 applies shall be deemed to be a variation of the rights attached to shares previously issued unless the rights attached to the first-mentioned shares are in all respects the same as the rights attached to shares previously issued; and
(b) the division of shares in a company into classes of shares shall be deemed to be a variation of the rights attached to those shares unless, in relation to each share in the company, the rights attached to that share are in all respects the same after the division as they were before the division.

(9) Nothing in section 73 or 76 affects the operation of this section.

COMPANIES ACT 1981 - SECT 127
Rights of classes of members

SECT

127. (1) This section applies to a company not having a share capital.

(2) Where:
(a) members of the company included in a class of members have special rights;
(b) no provision is made by the memorandum or articles for the variation or abrogation of those rights; and
(c) neither the memorandum nor the articles declares or declare those rights to be unalterable;
the company may, with the consent in writing of three-quarters of the members included in that class or with the sanction of a special resolution passed at a meeting of members included in that class, vary or abrogate those rights or alter the memorandum or articles so as to authorize the variation or abrogation of those rights.

(3) Where:
(a) members of the company included in a class of members have special rights; and
(b) provision is made by the memorandum or articles authorizing the variation or abrogation of those rights with the consent of a specified proportion of the members included in that class or with the sanction of a resolution of a kind specified in the memorandum or articles passed at a meeting of the members included in that class;
the memorandum or articles shall not be altered so as to vary or abrogate, or to authorize the variation or abrogation of, those rights, except with the consent of that proportion of the members included in that class or with the sanction of such a resolution passed at a meeting of those members.

(4) Where members of the company included in a class of members have special rights and:
(a) those rights are at any time varied or abrogated; or
(b) the memorandum or articles is or are altered so as to authorize the variation or abrogation of those rights;
members included in that class who constitute not less than 10% of the members included in that class may apply to the Court to have the variation or abrogation of the rights, or the alteration of the memorandum or articles, as the case may be, set aside and, if such an application is made, the variation or abrogation, or the alteration, does not have effect until confirmed by the Court.

(5) An application under subsection (4) shall be made within 28 days after the variation, abrogation or alteration referred to in that subsection was made and may be made, on behalf of the members entitled to make the application, by such one or more of their number as they appoint in writing.

(6) On the application, the Court may, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested, if it is satisfied that the variation, abrogation or alteration would unfairly prejudice the members of the class represented by the applicant, set aside the variation, abrogation or alteration, as the case may be, and shall, if not so satisfied, confirm it.

(7) A company shall, within 14 days after the making of an order by the Court on an application under this section, lodge an office copy of the order with the Commission and, if the company fails to comply with this provision, the company and any officer of the company who is in default are each guilty of an offence.

(8) Nothing in section 73 or 76 affects the operation of this section.

COMPANIES ACT 1981 - SECT 128
Rights of holders of preference shares to be set out in
memorandum or articles

SECT

128. (1) A company shall not allot any preference shares or convert any issued shares into preference shares unless there are set out in the memorandum or articles of the company the rights of the holders of those shares with respect to repayment of capital, participation in surplus assets and profits, cumulative or non-cumulative dividends, voting, and priority of payment of capital and dividend in relation to other shares or other classes of preference shares.

(2) If a company contravenes this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SUBDIVISION C
Subdivision C - Company Financing Dealings in its Shares etc.

COMPANIES ACT 1981 - SECT 129
Company financing dealings in its shares etc.

SECT

129. (1) Except as otherwise expressly provided by this Act, a company shall not:
(a) whether directly or indirectly, give any financial assistance for the purpose of, or in connection with:
(i) the acquisition by any person, whether before, or at
the same time as, the giving of financial assistance, of:
(A) shares or units of shares in the company; or
(B) shares or units of shares in a holding company of the
company; or
(ii) the proposed acquisition by any person of:
(A) shares or units of shares in the company; or
(B) shares or units of shares in a holding company of the
company; or
(b) whether directly or indirectly, in any way:
(i) acquire shares or units of shares in the company; or
(ii) acquire or purport to acquire shares or units of
shares in a holding company of the company; or
(c) whether directly or indirectly, in any way, lend money on the security of:
(i) shares or units of shares in the company; or
(ii) shares or units of shares in a holding company of the
company.

(2) A reference in this section to the giving of financial assistance includes a reference to the giving of financial assistance by means of the making of a loan, the giving of a guarantee, the provision of security, the release of an obligation or the forgiving of a debt or otherwise.

(3) For the purposes of this section, a company shall be taken to have given financial assistance for the purpose of an acquisition or proposed acquisition referred to in paragraph (1) (a) (in this subsection referred to as the "relevant purpose") if:
(a) the company gave the financial assistance for purposes that included the relevant purpose; and
(b) the relevant purpose was a substantial purpose of the giving of the financial assistance.

(4) For the purposes of this section, a company shall be taken to have given financial assistance in connection with an acquisition or proposed acquisition referred to in paragraph (1) (a) if, when the financial assistance was given to a person, the company was aware that the financial assistance would financially assist:
(a) the acquisition by a person of shares or units of shares in the company;or
(b) where shares in the company had already been acquired - the payment by a person of any unpaid amount of the subscription payable for the shares or of any premium payable in respect of the shares, or the payment of any calls on the shares.

(5) If a company contravenes subsection (1), the company is, notwithstanding section 570, not guilty of an offence but each officer of the company who is in default is guilty of an offence.
Penalty: $10,000 or imprisonment for 2 years, or both.

(6) Where:
(a) a person is convicted of an offence under subsection (5) (including an offence under that subsection that is deemed to have been committed by reason of subsection 38 (1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980); and
(b) the court by which he is convicted is satisfied that the company or another person has suffered loss or damage as a result of the contravention that constituted the offence;
that court may, in addition to imposing a penalty under that subsection, order the convicted person to pay compensation to the company or other person, as the case may be, of such amount as the court specifies, and any such order may be enforced as if it were a judgment of the court.

(7) The power of a court under section 535 to relieve a person to whom that section applies, wholly or partly and on such terms as the court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection (6) of this section from the liability to have such an order made against him.

(8) Nothing in subsection (1) prohibits:
(a) the payment of a dividend by a company in good faith and in the ordinary course of commercial dealing;
(b) a payment made by a company pursuant to a reduction of capital in accordance with section 123;
(c) the discharge by a company of a liability of the company that was incurred in good faith as a result of a transaction entered into on ordinary commercial terms;
(d) where a corporation is a borrowing corporation by reason that it is or will be under a liability to repay moneys received or to be received by it:
(i) the giving, in good faith and in the ordinary course of
commercial dealing, by a company that is a subsidiary of the borrowing corporation, of a guarantee in relation to the repayment of those moneys, whether or not the guarantee is secured by any charge over the property of that company; or
(ii) the provision, in good faith and in the ordinary
course of commercial dealing, by a company that is a subsidiary of the borrowing corporation, of security in relation to the repayment of those moneys;
(e) an acquisition by a company of an interest (other than a legal interest) in fully-paid shares in the company where no consideration is provided by the company, or by any corporation that is related to the company, for the acquisition;
(f) the purchase by a company of shares in the company pursuant to an order of a court;
(g) the creation or acquisition, in good faith and in the ordinary course of commercial dealing, by a company of a lien on shares in the company (other than fully-paid shares) for any amount payable to the company in respect of the shares; or
(h) the entering into, in good faith and in the ordinary course of commercial dealing, of an agreement by a company with a subscriber for shares in the company permitting the subscriber to make payments for the shares (including payments in respect of any premium) by instalments;
but nothing in this subsection:
(j) shall be construed as implying that a particular act of a company would, but for this subsection, be prohibited by subsection (1); or
(k) shall be construed as limiting the operation of any rule of law permitting the giving of financial assistance by a company, the acquisition of shares or units of shares by a company or the lending of money by a company on the security of shares.

(9) Nothing in subsection (1) prohibits:
(a) the making of a loan, the giving of a guarantee or the provision of security by a company in the ordinary course of its ordinary business where:
(i) that business includes the lending of money, or the
giving of guarantees or the provision of security in connection with loans made by other persons; and
(ii) the loan that is made by the company, or, where the
guarantee is given or the security is provided in respect of a loan, that loan, is made on ordinary commercial terms as to the rate of interest, the terms of repayment of principal and payment of interest, the security to be provided and otherwise; or
(b) the giving by a company of financial assistance for the purpose of, or in connection with, the acquisition or proposed acquisition of fully-paid shares or units of fully-paid shares in the company or in a holding company of the company to be held by or for the benefit of participating employees in relation to the company, where:
(i) if the company has an approving holding company or
approving holding companies - the company, and that holding company or those holding companies, have each, at a general meeting; or
(ii) otherwise - the company has, at a general meeting;
approved a scheme for providing money for such acquisitions and the financial assistance is given in accordance with the scheme.

(10) Nothing in subsection (1) prohibits the giving by a company of financial assistance for the purpose of, or in connection with, an acquisition or proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company if:
(a) the company, by special resolution, resolves to give financial assistance for the purpose of or in connection with, that acquisition;
(b) where:
(i) the company is a subsidiary of a listed corporation; or
(ii) the company is not a subsidiary of a listed
corporation but is a subsidiary whose ultimate holding company is incorporated in Australia or an external Territory;
the listed corporation or the ultimate holding company, as the case may be, has, by special resolution, approved the giving of the financial assistance;
(c) the notice specifying the intention to propose the resolution referred to in paragraph (a) as a special resolution sets out:
(i) particulars of the financial assistance proposed to be
given and the reasons for the proposal to give that assistance; and
(ii) the effect that the giving of the financial assistance
would have on the financial position of the company and, where the company is included in a group of corporations consisting of a holding company and a subsidiary or subsidiaries, the effect that the giving of the financial assistance would have on the financial position of the group of corporations;
and is accompanied by a copy of a statement made in accordance with a resolution of the directors, setting out the names of any directors who voted against the resolution and the reasons why they so voted, and signed by not less than 2 directors, stating whether, in the opinion of the directors who voted in favour of the resolution, after taking into account the financial position of the company (including future liabilities and contingent liabilities of the company), the giving of the financial assistance would be likely to prejudice materially the interests of the creditors or members of the company or any class of those creditors or members;
(d) the notice specifying the intention to propose the resolution referred to in paragraph (b) as a special resolution is accompanied by a copy of the notice, and a copy of the statement, referred to in paragraph (c);
(e) not later than the day next following the day when the notice referred to in paragraph (c) is dispatched to members of the company there is lodged with the Commission a copy of that notice and a copy of the statement that accompanied that notice;
(f) the notice referred to in paragraph (c) and a copy of the statement referred to in that paragraph are given to:
(i) all members of the company;
(ii) all trustees for debenture holders of the company; and
(iii) if there are no trustees for, or for a particular
class of, debenture holders of the company - all debenture holders, or all debenture holders of that class, as the case may be, of the company whose names are, at the time when the notice is dispatched, known to the company;
(g) the notice referred to in paragraph (d) and the accompanying documents are given to:
(i) all members of the listed corporation or of the
ultimate holding company;
(ii) all trustees for debenture holders of the listed
corporation or of the ultimate holding company; and
(iii) if there are no trustees for, or for a particular
class of, debenture holders of the listed corporation or of the ultimate holding company - all debenture holders or debenture holders of that class, as the case may be, of the listed corporation or of the ultimate holding company whose names are, at the time when the notice is dispatched, known to the listed corporation or the ultimate holding company;
(h) within 21 days after the general meeting of the company at which the resolution referred to in paragraph (a) is passed or, in a case to which paragraph (b) applies, the general meeting of the listed corporation or ultimate holding company at which the resolution referred to in that paragraph is passed, whichever is the later, a notice:
(i) setting out the terms of the resolution referred to in
paragraph (a); and
(ii) stating that any of the persons referred to in
subsection (12) may, within the period referred to in that subsection, make an application to the Court opposing the giving of the financial assistance;
is published, in each State and Territory in which the company is carrying on business, in a daily newspaper circulating generally in that State or Territory;
(j) no application opposing the giving of the financial assistance is made within the period referred to in subsection (12) or, if such an application or applications has or have been made, the application or each of the applications has been withdrawn or the Court has approved the giving of the financial assistance;
(k) the financial assistance is given in accordance with the terms of the resolution referred to in paragraph (a) and not earlier than:
(i) in a case to which subparagraph (ii) does not apply -
the expiration of the period referred to in subsection (12); or
(ii) if an application or applications has or have been
made to the Court within that period:
(A) where the application or each of the applications has
been withdrawn - the withdrawal of the application or of the last of the applications to be withdrawn; or
(B) in any other case - the decision of the Court on the
application or applications; and
(m) none of the following:
(i) the contract or transaction under which the company
gives the financial assistance;
(ii) a contract or transaction made or engaged in, or
proposed to be made or engaged in, as a result of, by means of or in relation to the financial assistance;
was, is, or is proposed to be, made or engaged in by a person for the purpose, or for purposes including the purpose, of enabling the company to avoid the operation of paragraph (1) (b).

(11) Where, on application to the Court by a company, the Court is satisfied that the provisions of subsection (10) have been substantially complied with in relation to a proposed giving by the company of financial assistance of a kind mentioned in that subsection, the Court may, by order, declare that the provisions of that subsection have been complied with in relation to the proposed giving by the company of financial assistance.

(12) Where a special resolution referred to in paragraph (10) (a) is passed by a company, an application to the Court opposing the giving of the financial assistance to which the special resolution relates may be made, within the period of 21 days after the publication of the notice referred to in paragraph (10) (h), by:
(a) a member of the company;
(b) a trustee for debenture holders of the company;
(c) a debenture holder of the company;
(d) a creditor of the company;
(da) if the company is included in a group of corporations consisting of a holding company and a subsidiary or subsidiaries:
(i) a member of that subsidiary or of any of those
subsidiaries;
(ii) a trustee for debenture holders of that subsidiary or
of any of those subsidiaries;
(iii) a debenture holder of that subsidiary or of any of
those subsidiaries; or
(iv) a creditor of that subsidiary or of any of those
subsidiaries;
(e) if paragraph (10) (b) applies:
(i) a member of the listed corporation or ultimate holding
company that passed a special resolution referred to in that paragraph;
(ii) a trustee for debenture holders of that listed
corporation or ultimate holding company;
(iii) a debenture holder of that listed corporation or
ultimate holding company; or
(iv) a creditor of that listed corporation or ultimate
holding company; or
(f) the Commission.

(13) Where an application or applications opposing the giving of financial assistance by a company in accordance with a special resolution passed by the company is or are made to the Court under subsection (12), the Court:
(a) shall, in determining what order or orders to make in relation to the application or applications, 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 of the company or of any class of them; and
(b) shall not make an order approving the giving of the financial assistance unless the Court is satisfied that:
(i) the company has disclosed to the members of the company
all material matters relating to the proposed financial assistance; and
(ii) the proposed financial assistance would not, after
taking into account the financial position of the company (including any future or contingent liabilities), be likely to prejudice materially the interests of the creditors or members of the company or of any class of those creditors or members;
and may do all or any of the following:
(c) if it thinks fit, make an order for the purchase by the company of the interests of dissentient members of the company and for the reduction accordingly of the capital of the company;
(d) if it 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 by a subsidiary of the company) of the interests of dissentient members;
(e) give such ancillary or consequential directions and make such ancillary or consequential orders as it thinks expedient;
(f) make an order disapproving the giving of the financial assistance or, subject to paragraph (b), an order approving the giving of the financial assistance.

(14) Where the Court makes an order under this section in relation to the giving of financial assistance by a company, the company shall, within 14 days after the order is made, lodge with the Commission an office copy of the order.

(15) The passing of a special resolution by a company for the giving of financial assistance by the company for the purpose of, or in connection with, an acquisition or proposed acquisition of shares or units of shares in the company, and the approval by the Court of the giving of the financial assistance, do not relieve a director of the company of any duty to the company under section 229 or otherwise, and whether of a fiduciary nature or not, in connection with the giving of the financial assistance.

(16) A reference in this section to an acquisition or proposed acquisition of shares or units of shares is a reference to any acquisition or proposed acquisition whether by way of purchase, subscription or otherwise.

(17) This section does not apply in relation to the doing of any act or thing pursuant to a contract entered into before the commencement of this Act if the doing of that act or thing would have been lawful if this Act had not been enacted.

COMPANIES ACT 1981 - SECT 130
Consequences of company financing dealings in its shares etc.

SECT

130. (1) Except as provided by this section:
(a) the validity of a contract or transaction is not affected by a contravention of paragraph 129 (1) (a);
(ba) the validity of a contract or transaction is not affected by a contravention of paragraph 129 (1) (b) constituted by:
(i) a buy-back, within the meaning of Division 3A, of
ordinary shares; or
(ii) the transfer to a company, pursuant to such a buy-back
by the company, of the shares;
(b) the validity of a contract or transaction is not affected by any other contravention of paragraph 129 (1) (b) unless the contract or transaction effects the acquisition that constitutes the contravention; and
(c) the validity of a contract or transaction is not affected by a contravention of paragraph 129 (1) (c) unless the contract or transaction effects the loan that constitutes the contravention.

(2) Where a company makes or performs a contract, or engages in a transaction, that would, but for subsection (1), be invalid by reason that:
(a) the contract was made or performed, or the transaction was engaged in, in contravention of section 129; or
(b) the contract or transaction is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of that section;
the first-mentioned contract or transaction is, subject to the following provisions of this section, voidable at the option of the company by notice in writing given to the other party, or by notices in writing given to each of the other parties, to that contract or transaction.

(3) The Court may, on the application of a member of a company, a holder of debentures of a company, a trustee for the holders of debentures of a company or a director of a company, by order, authorize the member, holder of debentures, trustee or director to give a notice or notices under subsection (2) in the name of the company.

(4) Where:
(a) a company makes or performs a contract, or engages in a transaction;
(b) the contract is made or performed, or the transaction is engaged in, in contravention of section 129 or the contract or transaction is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of that section; and
(c) the Court is satisfied, on the application of the company or of any other person, that the company or that other person has suffered, or is likely to suffer, loss or damage as a result of:
(i) the making or performance of the contract or the
engaging in of the transaction;
(ii) the making or performance of a related contract or the
engaging in of a related transaction;
(iii) the contract or transaction being void by reason of
section 129 or having become void, or becoming void, under this section; or
(iv) a related contract or transaction being void by reason
of section 129 or having become void, or becoming void, under this section;
the Court may make such order or orders as it thinks just and equitable (including, without limiting the generality of the foregoing, all or any of the orders mentioned in subsection (5)) against any party to the contract or transaction or to the related contract or transaction, or against the company or against any person who aided, abetted, counselled or procured, or was, by act or omission, in any way, directly or indirectly, knowingly concerned in or party to the contravention.

(5) The orders that may be made under subsection (4) include:
(a) an order directing a person to refund money or return property to the company or to another person;
(b) an order directing a person to pay to the company or to another person a specified amount not exceeding the amount of the loss or damage suffered by the company or other person; and
(c) an order directing a person to indemnify the company or another person against any loss or damage that the company or other person may suffer as a result of the contract or transaction or as a result of the contract or transaction being or having become void.

(6) If a certificate signed by not less than 2 directors, or by a director and a secretary, of a company stating that the requirements of paragraphs 129 (10) (a) to (j), inclusive, have been complied with in relation to the proposed giving by the company of financial assistance for the purposes of an acquisition or proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company is given to a person:
(a) the person to whom the certificate is given is not under any liability to have an order made against him under subsection (4) by reason of any contract made or performed, or any transaction engaged in, by him in reliance on the certificate; and
(b) any such contract or transaction is not invalid, and is not voidable under subsection (2), by reason that the contract is made or performed, or the transaction is engaged in, in contravention of section 129 or is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of that section.

(7) Subsection (6) does not apply in relation to a person to whom a certificate is given under that subsection in relation to a contract or transaction if the Court, on application by the company concerned or any other person who has suffered, or is likely to suffer, loss or damage as a result of the making or performance of the contract or the engaging in of the transaction, or the making or performance of a related contract or the engaging in of a related transaction, by order, declares that it is satisfied that the person to whom the certificate was given became aware before the contract was made or the transaction was engaged in that the requirements of subsection 129 (10) had not been complied with in relation to the financial assistance to which the certificate related.

(8) For the purposes of subsection (7), a person shall, in the absence of proof to the contrary, be deemed to have been aware at a particular time of any matter of which an employee or agent of the person having duties or acting on behalf of the person in relation to the relevant contract or transaction was aware at the time.

(9) In any proceeding, a document purporting to be a certificate given under subsection (6) shall, in the absence of proof to the contrary, be deemed to be such a certificate and to have been duly given.

(10) A person who has possession of a certificate given under subsection (6) shall, in the absence of proof to the contrary, be deemed to be the person to whom the certificate was given.

(11) If a person signs a certificate stating that the requirements of subsection 129 (10) have been complied with in relation to the proposed giving by a company of financial assistance and any of those requirements had not been complied with in respect of the proposed giving of that assistance at the time when the certificate was signed by that person, the person is guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

(12) It is a defence to a prosecution for an offence against subsection (11) if the defendant proves that at the time when he signed the certificate he believed on reasonable grounds that all the requirements of subsection 129 (10) had been complied with in respect of the proposed giving of financial assistance to which the certificate related.

(13) The power of a court under section 535 to relieve a person to whom that section applies, wholly or partly and on such terms as the court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection (4) of this section from the liability to have such an order made against him.

(14) If a company makes a contract or engages in a transaction under which it gives financial assistance as mentioned in paragraph 129 (1) (a) or lends money as mentioned in paragraph 129 (1) (c), any contract or transaction made or engaged in as a result of or by means of, or in relation to, that financial assistance or money shall be deemed for the purposes of this section to be related to the first-mentioned contract or transaction.

(15) Any rights or liabilities of a person under this section (including rights or liabilities under an order made by the Court under this section) are in addition to and not in derogation of any rights or liabilities of that person apart from this section but, where there would be any inconsistency between the rights and liabilities of a person under this section or under an order made by the Court under this section and the rights and liabilities of that person apart from this section, the provisions of this section or of the order made by the Court prevail.

COMPANIES ACT 1981 - SUBDIVISION D
Subdivision D - Unacceptable Self-acquisition Schemes

COMPANIES ACT 1981 - SECT 130A
Interpretation

SECT

130A. (1) In this Subdivision, unless the contrary intention appears:
"agreement" means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal;
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights;
"connected transaction", in relation to a self-acquisition scheme relating to a company, means a transaction that:
(a) is or will be, or forms or will form part of, the scheme; or
(b) has been, or is proposed to be, entered into in connection with the scheme;
whether or not the company is or will be a party to the transaction;
"eligible agreement" means:
(a) an agreement;
(b) a proposed agreement;
(c) an agreement as varied or as proposed to be varied;
(d) where an agreement has been varied - the agreement as in force at any time before the variation; or
(e) where an agreement has been discharged - the agreement as in force at any time before its discharge;
"enter into" includes engage in or become a party to;
"in connection with", in relation to a scheme or transaction, includes in the course of carrying out the scheme or transaction;
"party", in relation to a scheme or transaction, includes:
(a) in so far as the scheme or transaction consists of an eligible agreement - a party to the eligible agreement;
(b) in so far as the scheme or transaction consists of a proposed or discharged agreement - a person who would be a party to the agreement if it were in effect; and
(c) otherwise - a person who has entered into or carried out, or proposes to enter into or carry out, the whole or a part of the scheme or transaction;
"scheme" includes:
(a) a transaction;
(b) any plan, proposal, action, course of action, or course of conduct, even if unilateral; and
(c) a unilateral scheme;
"transaction" includes conduct (even if unilateral) and an eligible agreement.

(2) A reference in this Subdivision to a person carrying out a scheme includes a reference to the person carrying out the scheme together with any other person or persons.

COMPANIES ACT 1981 - SECT 130B
Self-acquisition scheme

SECT

130B. (1) A reference in this Subdivision, in relation to a company, to a self-acquisition scheme is a reference to a scheme to which the company has become a party for the purpose, or for purposes including the purpose, of doing any of the following, even if only at a future time or in particular circumstances:
(a) obtaining, securing, retaining, increasing the extent of, or exercising, power:
(i) to exercise, or control the exercise of, the right to
vote attached to voting shares in the company; or
(ii) to dispose of, or to exercise control over the
disposal of, shares in the company;
(b) bringing about a situation where, or ensuring that, a body corporate that has such power is, or the directors of such a body are, accustomed or under an obligation, whether formal or informal, to act in accordance with the company's directions, instructions or wishes in relation to the exercise of the power;
(c) obtaining, securing, retaining, or increasing the extent of, a controlling interest in such a body;
(d) obtaining, securing, retaining, increasing the extent of, or exercising, the voting power attached to not less than the prescribed percentage of the voting shares in such a body;
(e) otherwise obtaining, securing, or retaining, a relevant interest in a share in itself.

(2) Section 9 of the Companies (Acquisition of Shares) Act 1980 has effect for the purposes of this section as if:
(a) subsection (1) of this section were a provision of that section; and
(b) without limiting the generality of anything in that section, a reference in subsection 9 (2) of that Act to power included a reference to power sought to be obtained.

(3) Without limiting the matters to which regard may be had in determining what constitutes:
(a) a self-acquisition scheme relating to a company; or
(b) a connected transaction in relation to such a scheme;
regard may be had to the giving, or proposed giving, by the company of financial assistance as mentioned in paragraph 129 (1) (a), even if subsection 129 (10) permits the giving by the company of the financial assistance.

(4) A transaction permitted by section 133CA or 133CB:
(a) shall not be taken to be a connected transaction in relation to; and
(b) shall be disregarded in determining what constitutes;
a self-acquisition scheme relating to the company.

COMPANIES ACT 1981 - SECT 130C
Relevant matters affecting self-acquisition scheme

SECT

130C. (1) For the purposes of this Subdivision, each of the following is a relevant matter affecting a self-acquisition scheme relating to a company:
(a) to how many shares in the company the scheme relates;
(b) the likely effect of the scheme or a connected transaction on the company's state of affairs;
(c) what consideration the company has provided, or is to provide, in connection with the scheme or a connected transaction;
(d) how much information about the scheme or a connected transaction the company has given to its members or creditors, or to securities exchanges;
(e) what opportunity the company's members or creditors have had to consider the likely effects of the scheme or of a connected transaction;
(f) whether or not the company's members or creditors have been consulted about, or have participated in making, the decision for the company to become a party to the scheme;
(g) whether or not the company's members have had reasonable and equal opportunities to participate, or to become entitled to participate, in benefits accruing, whether directly or indirectly and whether immediately or in the future, in connection with the scheme or a connected transaction, to a party to the scheme or a connected transaction or to a person associated with such a party;
(h) the effect of the scheme or a connected transaction on:
(i) a takeover bid in relation to shares in the company
that a person has made or proposes to make; or
(ii) the likelihood of a person making such a takeover bid;
(j) any other matter that appears to the Commission to be relevant in all the circumstances of the case.

(2) Nothing in subsection (1) limits the generality of anything else in it.

COMPANIES ACT 1981 - SECT 130D
Declaration by Commission

SECT

130D. (1) This section applies where the Commission is satisfied that:
(a) a transaction that has been, or is proposed to be, entered into is a connected transaction in relation to a self-acquisition scheme relating to a company;
(b) one or more of the following subparagraphs applies:
(i) both of the following are the case:
(A) as a result of the entering into or carrying out of
the scheme or of a connected transaction, the company acquired a relevant interest in voting shares in itself;
(B) immediately after the acquisition, the company had a
relevant interest or relevant interests in more than 10% of the voting shares in itself;
(ii) it is reasonable to expect that:
(A) as a result of the entering into or carrying out of
the scheme or of a connected transaction, the company will acquire a relevant interest in voting shares in itself; and
(B) immediately after the acquisition, the company will
have a relevant interest or relevant interests in more than 10% of the voting shares in itself;
(iii) the scheme or a connected transaction was entered
into or carried out at a time when the company had, or it is reasonable to expect that the scheme or a connected transaction will be entered into or carried out at a time when the company has, a relevant interest or relevant interests in more than 10% of the voting shares in itself; and
(c) having regard to the relevant matters affecting the scheme, the entering into or carrying out of the scheme or a connected transaction has prejudiced materially, or is likely to prejudice materially, the rights or interests of the company, of its creditors or members, or of a class of its creditors or members.

(2) The Commission:
(a) if the transaction referred to in paragraph (1) (a) has been entered into - may, within 90 days after the day on which it was entered into, declare the transaction; or
(b) otherwise - may declare the proposed transaction referred to in paragraph (1) (a);
to form part of an unacceptable self-acquisition scheme relating to the company.

(3) The Commission may make a declaration under this section in relation to the scheme even if it has already become entitled on at least one occasion to make such a declaration.

(4) A declaration under this section shall be in writing.

(5) As soon as practicable after making a declaration under this section, the Commission shall:
(a) give a copy of the declaration to the company; and
(b) cause such a copy to be published in the Gazette.

(6) The validity of a declaration is not affected by a contravention of subsection (5).

COMPANIES ACT 1981 - SECT 130E
Commission may make interim orders

SECT

130E. (1) Subject to this section, where the Commission makes a declaration under section 130D, it may, even if it has already made at least one order under this section in reliance on the declaration, make, by writing published in the Gazette, one or more of the following:
(a) an order restraining a specified person from disposing of any interest in specified shares in the company;
(b) an order restraining a specified person from acquiring any interest in specified shares in the company;
(c) an order restraining the exercise of voting or other rights attached to specified shares in the company;
(d) an order directing the holder of shares in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to any of those shares;
(e) an order directing the company not to make payment, except in the course of winding up, of a sum due from the company in respect of specified shares;
(f) an order directing the company not to register the transfer or transmission of specified shares;
(g) an order directing the company not to issue to a person who holds shares in the company shares that the company proposed to issue to the person:
(i) because the person holds shares in the company; or
(ii) pursuant to an offer or invitation made or issued to
the person because the person holds shares in the company.

(2) The Commission may, by written order published in the Gazette, vary or revoke an order made under subsection (1).

(3) A copy of an order under subsection (1) and of any order by which it is revoked or varied shall be served on the company and on any person to whom the order is directed.

(4) Where an order made under subsection (1) is in force, a person aggrieved by the order may apply to the Court for variation or revocation of the order, and the Court may, if it is satisfied that it is reasonable to do so, vary the order or revoke the order and any order by which it has been varied.

(5) A person shall not contravene an order under subsection (1).
Penalty: $2,500 or imprisonment for 6 months, or both.

(6) Where a body corporate contravenes subsection (5), each officer of the body who is in default contravenes this subsection.
Penalty: $2,500 or imprisonment for 6 months, or both.

(7) An order made under subsection (1) ceases to operate at the end of 30 days after it is made or at the end of the day specified in it as the day on which it ceases to operate, whichever is earlier.

(8) The Commission may only make an order under subsection (1) if it has afforded the person to whom the order is directed 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) The Commission is not empowered to make an order under subsection (1) in reliance on a declaration made by the Commission if:
(a) an application has been made to the Court under section 130G in relation to the declaration; or
(b) the Court has revoked under subsection (4) of this section an order made in reliance on the declaration.

COMPANIES ACT 1981 - SECT 130F
Court may reverse Commission's declaration

SECT

130F. (1) Where the Commission makes a declaration under section 130D, the Court may, on an application by the company or on an application made under section 130G in relation to the declaration, declare the transaction or proposed transaction not to be part of an unacceptable self-acquisition scheme.

(2) On the making of a declaration under subsection (1), the Commission's declaration ceases to have effect.

COMPANIES ACT 1981 - SECT 130G
Court may act on Commission's declaration

SECT

130G. (1) This section applies where the Commission makes a declaration under section 130D.

(2) The Court may make any order it thinks necessary or expedient:
(a) to protect the rights or interests of a person who is affected by the scheme or by a connected transaction;
(b) to prevent a person from entering into or carrying out the whole or a part of the scheme or of a connected transaction; or
(c) to put a person in the same position as if the whole or a particular part of the scheme or of a connected transaction had not been entered into or carried out.

(3) The Court may make one or more of the following:
(a) an order directing a person to supply specified information to members or creditors of the company;
(b) an order restraining the exercise of any voting or other rights attached to shares in the company;
(c) an order that any exercise of the voting or other rights attached to shares in the company be disregarded;
(d) an order restraining the disposal of, or of any interest in, shares in the company;
(e) an order directing the disposal of, or of any interest in, shares in the company;
(f) an order vesting in the Commission shares, or any interest in shares, in the company;
(g) an order directing the company not to register the transfer or transmission of shares;
(h) an order directing the company not to make payment, or to defer making payment, of any sum or sums due from the company in respect of shares in the company;
(j) an order cancelling, or declaring to be voidable, an arrangement or offer that is a connected transaction in relation to the scheme.

(4) If the Court is satisfied that a person has suffered, or is likely to suffer, loss or damage as a result of the scheme or of a connected transaction, the Court may make, against the company or a person who was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the company becoming a party to the scheme, or to the scheme or transaction, as the case may be, any order that the Court thinks just and equitable, including, but not limited to, one or more of the following:
(a) an order directing the refunding of money or the return of property;
(b) an order directing the payment to a person of damages in respect of loss or damage so suffered;
(c) an order directing that a person be indemnified against any loss or damage that the person may so suffer.

(5) The Court may, in order to secure compliance with any other order made under this section, make an order directing a person to do or refrain from doing a specified act.

(6) The Court may only make an order under this section on the application of the Commission, the company or a member or creditor of the company.

(7) The power of a court under section 535 to relieve a person to whom that section applies, wholly or partly and on such terms as the court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection (4) of this section from the liability to have such an order made against the person.

(8) Section 49 of the Companies (Acquisition of Shares) Act 1980 applies in relation to an order under this section in the same way as it applies in relation to an order under section 60 of that Act.

(9) Nothing in this section limits the generality of anything else in it.

COMPANIES ACT 1981 - SECT 130H
Effect of Subdivision

SECT

130H. Nothing in this Subdivision limits the generality, or affects the operation, of a provision of:
(a) Subdivision C; or
(b) the Companies (Acquisition of Shares) Act 1980.

COMPANIES ACT 1981 - SUBDIVISION E
Subdivision E - Other

COMPANIES ACT 1981 - SECT 131
Register of options

SECT

131. (1) A company shall keep a register of options granted to persons to take up unissued shares in the company.

(2) The company shall, within 14 days after the grant of an option to take up unissued shares in the company, enter in the register the following particulars:
(a) the name and address of the holder of the option;
(b) the date on which the option was granted;
(c) the number and description of the shares in respect of which the option was granted;
(d) the period during which, the time at which or the occurrence upon the happening of which the option may be exercised;
(e) the consideration (if any) for the grant of the option;
(f) the consideration (if any) for the exercise of the option or the manner in which that consideration is to be ascertained or determined;
(g) such other particulars as are prescribed.

(3) The register is prima facie evidence of any matters inserted in the register as required or authorized by this Act.

(4) The register shall be open for inspection:
(a) by any member of the company - without charge; and
(b) by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

(5) A person may request a company to furnish him with a copy of the register or any part of the register and, where such a request is made, the company shall send the copy to that person:
(a) if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Commission approves; or
(b) in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Commission approves.

(5A) A company shall keep, at the place where the register referred to in subsection (1) is kept, a copy of every instrument by which an option to take up unissued shares in the company is granted and, for the purposes of subsections (4) and (5), those copies shall be deemed to be part of the register referred to in subsection (1).

(5B) Notwithstanding subsection (5A), a company is not required to keep a copy of any instrument by which an option has been granted if the option has been granted official quotation by a securities exchange.

(6) Failure by a company to comply with any of the provisions of this section in relation to an option does not affect any rights in respect of the option.

(7) If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 132
Options over unissued shares

SECT

132. (1) An option granted after the commencement of the Companies Ordinance 1962 by a public company that enables any person to take up unissued shares in the company after a period of 5 years has elapsed from the date on which the option was granted is void.

(2) Subsection (1) does not apply in a case where the holders of debentures of a company have an option to take up shares in the company by way of redemption of the debentures.

COMPANIES ACT 1981 - SECT 133
Power of company to pay interest out of capital in certain cases

SECT

133. Where any shares in a company are issued for the purpose of raising money to defray the expenses of the construction of any works or buildings or the provision of any plant that cannot be made profitable for a long period, the company may pay interest on so much of that share capital as is for the time being paid up and charge the interest so paid to capital as part of the cost of the construction or provision but:
(a) no such payment shall be made unless it is:
(i) authorized by the articles of the company or by special
resolution; and
(ii) approved by the Court;
(b) before approving any such payment, the Court may, at the expense of the company, appoint a person to inquire and report as to the circumstances of the case, and may require the company to give security for the payment of the costs of the inquiry;
(c) the payment shall be made for such period only as is determined by the Court, but that period shall not in any case extend beyond a period of 12 months after the works or buildings have been completed or the plant has been provided;
(d) the rate of interest shall not exceed 8% per annum or, if another rate is prescribed, that other rate; and
(e) the payment of the interest does not operate as a reduction of the amount paid up on the shares in respect of which it is paid.

COMPANIES ACT 1981 - DIVISION 3A
Division 3A - Permitted Buy-backs of Shares

COMPANIES ACT 1981 - SUBDIVISION A
Subdivision A - How this Division Works

COMPANIES ACT 1981 - SECT 133AA
Outline of structure

SECT

133AA. (1) Subdivision C creates exceptions to the section 129 prohibition on a company acquiring its own shares or interests in its own shares.

(2) These permitted acquisitions of ordinary shares are called "buy-backs", a term defined in Subdivision B along with most of the Division's other terminology.

(3) Buy-backs are permitted subject to:
(a) a condition prescribed by Subdivision D, which applies to all buy-backs of shares; and
(b) conditions prescribed by Subdivisions E, G, H, J, L, M and N, each condition applying to a specified kind of buy-back.

(4) Subdivision F prescribes no conditions, but sets out what a buy-back scheme is and contains rules about such schemes. Buy-back schemes are central to many provisions of the Division.

(5) Each of the Subdivisions prescribing conditions contains:
(a) at least one condition, usually only at the beginning of the Subdivision, but in the case of Subdivision L also at the end; and
(b) ancillary provisions about the subject matter of the condition or conditions.

(6) The ancillary provisions relating to some of the conditions in Subdivision J are in Subdivision K.

(7) The other Subdivisions contain further ancillary provisions and rules about the consequences of buy-backs and about the effect of certain events on buy-backs.

COMPANIES ACT 1981 - SUBDIVISION B
Subdivision B - Interpretation

COMPANIES ACT 1981 - SECT 133BA
Effect of Subdivision

SECT

133BA. This Subdivision has effect for the purposes of this Division, except so far as the contrary intention appears in this Division.

COMPANIES ACT 1981 - SECT 133BB
Interpretation

SECT

133BB. Unless the contrary intention appears:
"auditor", in relation to a company, means:
(a) if Part VI requires the company to have an auditor - the auditor of the company for the purposes of that Part; or
(b) otherwise - a person who is entitled to act as auditor of the company for those purposes;
"buy" includes agree to buy;
"buy back" has the meaning given by section 133BC;
"buy-back" means an acquisition by a company constituted by the company buying back shares;
"buy-back authorisation", in relation to a company, means a provision to the effect that the company may buy ordinary shares in itself, being a provision contained, or proposed to be inserted, as the case requires, in the company's articles;
"buy-back offer" means any of the offers constituting a buy-back scheme;
"buy-back scheme" means offers that by virtue of section 133FB constitute a buy-back scheme;
"class", in relation to shares, has a meaning affected by sections 133BM and 133FA;
"completed" has a meaning affected by section 133BK;
"compliance certificate" means a certificate given for the purposes of section 133SA;
"distributable profits" means profits that are available for dividends;
"employee-shares purchase" means a buy-back of shares where:
(a) immediately before the buy-back, shares (in this definition called the "relevant shares") being or including the first-mentioned shares were held by, or for the benefit of, particular persons; and
(b) each of those persons was, on the last occasion when any of the relevant shares began to be held by or for the benefit of the person (whether alone or jointly with any other person or persons), a participating employee in relation to the company;
even if some or all of those persons are no longer such employees;
"entitled" means entitled for the purposes of the Companies (Acquisition of Shares) Act 1980;
"externally-administered company" means a company:
(a) in respect of which a provisional liquidator has been appointed and not since removed;
(b) that is being wound up; or
(c) that is under official management;
"listed body" means a body corporate that is included in an official list of a securities exchange;
"marketable parcel", in relation to shares in a listed body, means:
(a) if the body is included in an official list of the Exchange - a marketable parcel of shares in the body within the meaning of the Exchange's rules; or
(b) in any other case - the smallest number of shares in the body that constitute a marketable parcel of such shares within the meaning of the rules of a securities exchange (other than the Exchange) in an official list of which the body is included;
"modifications" includes additions, omissions and substitutions;
"national newspaper" means a daily newspaper that circulates generally in each State, the Territory and the Northern Territory;
"non-cash consideration" means consideration other than money;
"notifiable exchange", in relation to a listed body, means:
(a) if the body is included in an official list of the Exchange - the securities exchange designated to the company, for the purposes of the rules of the Exchange relating to the conduct of bodies so included, as the body's Home Exchange; and
(b) in any case - each securities exchange (other than the Exchange) in an official list of which the body is included;
"odd lot", in relation to shares in a listed body, means shares in the listed body that are fewer in number than one marketable parcel of such shares;
"odd-lot purchase" means a buy-back by a listed body of an odd lot of shares in the body;
"offer period", in relation to an offer made under a buy-back scheme, means the period during which the offer remains open or, if the offer has been accepted, would have remained open had it not been accepted;
"ordinary resolution" means a resolution other than a special resolution;
"partly-paid share" means a share on which an amount (including an amount of premium) remains unpaid;
"provide", in relation to consideration, includes pay;
"purchase" includes an agreement to buy;
"relevant date", in relation to a winding up of a company, means:
(a) in the case of a company ordered to be wound up by a court that has not previously commenced to be wound up voluntarily - the date of the winding up order; or
(b) otherwise - the date of the commencement of the winding up;
"resolution" includes a special resolution;
"rights offer or invitation", in relation to a body corporate, means a share offer made, or a share invitation issued, by the body to members of the body and to no other person;
"rule", in relation to a securities exchange, means a provision of:
(a) the constituent documents of the securities exchange; or
(b) any other rules, regulations or by-laws:
(i) made by the securities exchange; or
(ii) made by another person and adopted by the securities
exchange;
"securities exchange" means the Exchange or a body corporate (wherever incorporated) that is declared by the regulations to be a securities exchange for the purposes of this Division;
"seller's claim", in relation to a company, means a claim in respect of obligations of the company under an agreement constituting a buy-back by the company;
"share invitation", in relation to a body corporate, means an invitation to apply or offer to subscribe for or buy ordinary shares in the body that is issued by the body or on its behalf;
"share offer", in relation to a body corporate, means an offer of ordinary shares in the body for subscription or purchase that is made by the body or on its behalf;
"shares", in Subdivision F, has a meaning affected by section 133FA;
"solvency declaration" has the meaning given by section 133BH;
"solvency period", in relation to an offer made under a buy-back scheme, means the period beginning at the start of the offer period and ending when the company first provides consideration that it is to provide under an agreement resulting from the acceptance of an offer made under the buy-back scheme;
"solvent", in relation to a company, means able to pay all its debts as and when they become due and payable;
"takeover aspects" has the meaning given by section 133BF;
"terms" includes conditions;
"trading" has the same meaning as in the Companies (Acquisition of Shares) Act 1980;
"trading day", in relation to a securities exchange, means a day on which a stock market of the securities exchange is open for trading in securities;
"transfer" has a meaning affected by section 133BL.

COMPANIES ACT 1981 - SECT 133BC
What constitutes buying back shares

SECT

133BC. Where a company buys shares in itself, it shall be taken to buy back the shares.

COMPANIES ACT 1981 - SECT 133BE
The 10% in 12 months limit

SECT

133BE. A buy-back of shares exceeds the 10% in 12 months limit if, and only if, the number calculated in accordance with the following formula exceeds 10:
Buy-backs X 100;
(Initial shares + New issues - Cancelled shares)
where:
Buy-backs is the aggregate nominal value of all ordinary shares that the company bought back during the period of 12 months ending on the day of the first-mentioned buy-back;
Initial shares is the aggregate nominal value of all the issued ordinary shares, as at the start of that period, in the company;
New issues is the aggregate nominal value of all ordinary shares that the company issued during that period;
Cancelled shares is the aggregate nominal value of all ordinary shares in the company that were cancelled during that period otherwise than by force of subsection 133PC (1).

COMPANIES ACT 1981 - SECT 133BF
Takeover aspects of proposed resolution

SECT

133BF. (1) A notice that sets out the intention to propose a resolution of a company sets out the takeover aspects of the proposed resolution if, and only if, the notice complies with this section.

(2) It shall set out whether or not, as at the time when it is prepared, any of the company's directors is aware of:
(a) a proposal by a person:
(i) to acquire, or to increase the extent of, a substantial
interest in the company; or
(ii) without limiting the generality of subparagraph (i),
to make a takeover bid in relation to shares in the company; or
(b) a takeover bid that has been made by a person in relation to shares in the company and offers under which remain open as at that time.

(3) If any of the directors is so aware, the notice shall set out:
(a) whether or not such a proposal or takeover bid has influenced the decision to propose the resolution; and
(b) if so - particulars of:
(i) each proposal and takeover bid concerned; and
(ii) the extent to which each has influenced that decision.

COMPANIES ACT 1981 - SECT 133BG
When directors presumed to be aware of proposed or actual
takeover bid

SECT

133BG. (1) Where a person who proposes to make a takeover bid in relation to shares in a company has:
(a) made a public announcement to the effect that the person proposes to make the takeover bid; or
(b) served on the company a Part A statement within the meaning of the Companies (Acquisition of Shares) Act 1980 relating to the proposed takeover bid;
a director of the company shall, unless the contrary is established, be presumed to be aware of the proposal.

(2) A director of a company shall, unless the contrary is established, be presumed to be aware of a takeover bid that a person has made in relation to shares in the company.

(3) Where:
(a) a person has made a takeover bid in relation to shares in a company; and
(b) a director of the company was aware that the person proposed to make, but is not aware that the person has made, the takeover bid;
subsection 133BF (2) and paragraph 133GA (b) apply in relation to the director, in relation to the takeover bid, as if the person had not made, but still proposed to make, the takeover bid.

COMPANIES ACT 1981 - SECT 133BH
Solvency declaration

SECT

133BH. (1) A solvency declaration by a company's directors is a declaration in writing that:
(a) is signed in person by everyone who, on the day on which the declaration is first signed by a director of the company, is such a director;
(b) specifies that day;
(c) states to the effect that it is the directors' opinion that the company was solvent on that day;
(d) specifies each buy-back scheme that related to shares in the company and:
(i) offers under which remained open; or
(ii) agreements resulting from the acceptance of offers
under which remained uncompleted;
as at that day;
(e) specifies each agreement that:
(i) constituted a buy-back made by the company otherwise
than under a buy-back scheme; and
(ii) remained uncompleted as at that day;
(f) specifies, as at that day:
(i) each proposed buy-back scheme (if any) under which the
company proposed to make offers during the period of 12 months starting on that day; and
(ii) each buy-back that the company proposed to make,
otherwise than under a buy-back scheme, during that period; and
(g) states to the effect that it is the directors' opinion that the company will remain solvent throughout that period even if:
(i) each buy-back offer (if any) that related to shares in
the company and remained open as at that day is accepted, and the resulting agreement completed, during that period;
(ii) each agreement (if any) that resulted from the
acceptance of a buy-back offer relating to such shares and remained uncompleted as at that day is completed during that period;
(iii) each agreement (if any) of the kind referred to in
paragraph (e) is completed during that period;
(iv) all offers made under each such proposed buy-back
scheme (if any) are accepted, and the resulting contracts completed, during that period; and
(v) each such proposed buy-back (if any) is made during
that period.

(2) Each director of a company who signs a solvency declaration by the company's directors shall be taken to have stated in it that he or she had, when signing the declaration, the opinions described in it.

(3) A solvency declaration by a company's directors shall be taken to have been made on the day specified in it under paragraph (1) (b).

(4) Unless sooner revoked under section 133MD, a solvency declaration by a company's directors remains in force for 12 months starting on the day on which it is made.

(5) A solvency declaration by a company's directors relates to a buy-back scheme or buy-back if, and only if, the declaration specifies the buy-back scheme or buy-back under paragraph (1) (d) or (e).

(6) In subsection (5):
"buy-back" includes a proposed buy-back;
"buy-back scheme" includes a proposed buy-back scheme.

COMPANIES ACT 1981 - SECT 133BJ
Auditor's report on solvency declaration

SECT

133BJ. An auditor's report on a solvency declaration by a company's directors is a report in writing that:
(a) the company's auditor prepares, signs and dates, and sends to the company, on or after the day when the declaration is made;
(b) sets out a statement to the effect that the auditor has inquired into the company's state of affairs and is aware of nothing to indicate that it is unreasonable in all the circumstances to form the opinions described in the declaration; and
(c) sets out:
(i) such explanations (if any), and such information (if
any), relevant to the statement referred to in paragraph (b); and
(ii) such other information (if any);
as the auditor thinks necessary, other than an explanation, or information, that contradicts, qualifies or is otherwise inconsistent with that statement.

COMPANIES ACT 1981 - SECT 133BK
When buy-back agreement is completed

SECT

133BK. An agreement constituting a buy-back by a company is completed when the company has provided all the consideration that it is to provide under the agreement.

COMPANIES ACT 1981 - SECT 133BL
When shares are transferred

SECT

133BL. Shares in a body corporate are transferred pursuant to an agreement when the transfer of the shares pursuant to the agreement is registered by the body.

COMPANIES ACT 1981 - SECT 133BM
Classes of shares

SECT

133BM. The shares in a company, if not divided into 2 or more classes, constitute a class.

COMPANIES ACT 1981 - SUBDIVISION C
Subdivision C - Power to Buy Back Shares

COMPANIES ACT 1981 - SECT 133CA
Power to buy back shares

SECT

133CA. (1) A company may buy back ordinary shares if, and only if, the conditions prescribed by this Division are satisfied.

(2) The power conferred by subsection (1) may only be exercised by the directors.

(3) The order in which this Division prescribes conditions does not indicate that the conditions must be satisfied in a particular order.

COMPANIES ACT 1981 - SECT 133CB
Completion of buy-back

SECT

133CB. Subject to this Division (other than section 133CA), where a company buys back shares as permitted by section 133CA, the shares may be transferred to the company pursuant to the buy-back.

COMPANIES ACT 1981 - SECT 133CC
Effect of Division

SECT

133CC. (1) This Division has effect despite:
(a) Subdivisions C and D of Division 3;
(b) section 11 of the Companies (Acquisition of Shares) Act 1980;
(c) the constituent documents, or a resolution, of a company;
(d) the rules of a securities exchange; or
(e) any agreement.

(2) Without limiting the generality of subsection (1), a buy-back or transfer permitted by section 133CA or 133CB does not contravene any of the provisions referred to in paragraphs (1) (a) and (b) of this section.

(3) Nothing in this Division affects section 82.

(4) Shares bought back as permitted by section 133CA shall, so long as the rights attached to them are suspended because of section 133PA, be disregarded in ascertaining, for the purposes of the Companies (Acquisition of Shares) Act 1980, the shares, or the voting shares, as the case requires, in which the company has a relevant interest or relevant interests.

(5) Sections 133PA and 133PB shall be disregarded in determining, for the purposes of Division 4, whether or not a person has a relevant interest in particular shares.

COMPANIES ACT 1981 - SECT 133CD
Other obligations and liabilities not affected

SECT

133CD. (1) Except as expressly provided in this Division, nothing in this Division affects an obligation, or a liability (whether civil or criminal), arising otherwise than under this Division.

(2) Without limiting the generality of subsection (1), nothing in this Division relieves a director of any duty to the company, whether arising under section 229 or otherwise and whether of a fiduciary nature or not.

COMPANIES ACT 1981 - SUBDIVISION D
Subdivision D - Buy-back Authorisation in Articles

COMPANIES ACT 1981 - SECT 133DA
Articles to contain buy-back authorisation

SECT

133DA. (1) The first condition is that the company's articles contain a buy-back authorisation at the relevant time.

(2) For the purposes of subsection (1), the relevant time is:
(a) if the buy-back is made under a buy-back scheme but section 133GA does not apply - when the first offer is made under the buy-back scheme;
(b) if section 133GA, 133HA, 133JA or 133JB applies - when the resolution for which that section provides is passed; or
(c) in any other case - the time of the buy-back.

COMPANIES ACT 1981 - SECT 133DB
Inclusion, effect and renewal of buy-back authorisation

SECT

133DB. (1) In this section:
"renew", in relation to a buy-back authorisation, means renew under subsection (4);
"requirement", in relation to a company, includes a requirement of a law or of the company's constituent documents.

(2) A company's buy-back authorisation, unless sooner omitted from the company's articles, ceases to have effect at the end of:
(a) if the articles provide that the buy-back authorisation has effect for a specified period of less than 3 years and the buy-back authorisation has not been renewed - the specified period;
(b) if the buy-back authorisation has been renewed on at least one occasion and the resolution, or the later or last of the resolutions, as the case requires, renewing it states that it is renewed for a specified period of less than 3 years - the specified period; or
(c) otherwise - 3 years;
beginning:
(d) if the buy-back authorisation was contained in the articles at the time when the company was incorporated and has not been renewed - at that time;
(e) if the buy-back authorisation was inserted in the articles and has not been renewed - at the time when it was so inserted; or
(f) if the buy-back authorisation has been renewed on at least one occasion - at the time when the buy-back authorisation was last renewed.

(3) Where a company's buy-back authorisation ceases to have effect, the company's articles are, by force of this subsection, altered by omitting the buy-back authorisation.

(4) A company may renew its buy-back authorisation in any manner in which it may alter its articles by inserting a buy-back authorisation and shall, in relation to a renewal of its buy-back authorisation, comply with the requirements that apply in relation to such an alteration of its articles, being an alteration in the manner in which the renewal is effected.

(5) A company shall, with every notice that:
(a) sets out the intention to propose:
(i) a resolution for the alteration of the company's
articles by inserting a buy-back authorisation; or
(ii) a resolution to renew its buy-back authorisation; and
(b) is sent to a person who is entitled to vote on the proposed resolution;
send a statement that:
(c) states to the effect that the consequence of the proposed alteration or renewal is to empower the company, during the period during which the buy-back authorisation is in effect, to buy ordinary shares in itself as provided in this Division;
(d) explains the reasons for proposing the resolution and sets out the factual matters and principles underlying those reasons;
(e) if subparagraph (a) (ii) applies - reviews the buy-backs (if any) of shares by the company since the buy-back authorisation took effect, or was last renewed, as the case requires, and the effects of those buy-backs (if any) on the company and on the directors, and the members, of the company, respectively;
(f) discusses both the potential advantages, and the potential disadvantages, of the proposed buy-back authorisation, or of the buy-back authorisation proposed to be renewed, as the case may be, for the company and for the directors, and the members, of the company, respectively.

(6) Where a company contravenes subsection (4), the company and any officer of the company who is in default are each guilty of an offence.
Penalty: $5,000 or imprisonment for 12 months, or both.

COMPANIES ACT 1981 - SUBDIVISION E
Subdivision E - Buy-backs by Public Companies

COMPANIES ACT 1981 - SECT 133EA
Only certain buy-backs permitted

SECT

133EA. If the company is a public company, the next condition is that the buy-back:
(a) does not exceed the 10% in 12 months limit; or
(b) is an employee-shares purchase or an odd-lot purchase.

COMPANIES ACT 1981 - SUBDIVISION F
Subdivision F - Buy-back Schemes

COMPANIES ACT 1981 - SECT 133FA
Shares and classes of shares

SECT

133FA. (1) Except so far as the contrary intention appears, a reference in this Subdivision to shares is a reference to ordinary shares.

(2) Where the shares in a company are divided into 2 or more classes, the provisions of this Subdivision (other than this subsection and subsection 133FB (10)) apply in relation to each of those classes:
(a) as if the shares in that class were the only shares in the company; and
(b) without prejudice to their application by force of this subsection in relation to any other class of shares.

COMPANIES ACT 1981 - SECT 133FB
Buy-back scheme

SECT

133FB. (1) A buy-back is made under a buy-back scheme if, and only if, it results from the acceptance of an offer made under the buy-back scheme.

(2) An offer is made under a buy-back scheme if, and only if, it is one of the offers constituting the buy-back scheme.

(3) Offers by a company to buy back shares constitute a buy-back scheme if, and only if, the following requirements of this section are complied with.

(4) Each offer must be in writing.

(5) Each offer must have the same date, being a date that is not earlier than 3 days before the day on which the offer is sent and not later than that day.

(6) Each offer must state that it will, unless withdrawn, remain open during a period ending on a specified day that is not earlier than one month, nor later than 6 months, after the date of the offer.

(7) Each offer must specify the consideration that under the offer is to be provided for the buy-back of each share to which the offer relates.

(8) Each offer must set out how and when the company's obligations are to be satisfied.

(9) The offers must relate only to shares in the company.

(10) Each offer must specify, in relation to each class of shares (including shares other than ordinary shares) in the company:
(a) the total number of shares in the class as at the time immediately before the first of the offers is sent; and
(b) in the case of a class of ordinary shares - the number of shares (if any) in the class that, as at that time, have been bought back but not yet cancelled (which may be expressed as a number of shares or as a percentage of the number referred to in paragraph (a)).

(11) Each offer must relate to a proportion of the shares in the company that the offeree holds and that proportion must be the same in respect of each offer.

(12) The offers must be the same disregarding:
(a) the fact that the number of shares that may be acquired under each offer is limited by the number of shares held by the offeree; and
(b) any differences in the consideration specified for each share in the offers that are attributable only to one or both of the following:
(i) the fact that the offers relate to shares having
different accrued dividend entitlements;
(ii) the fact that the offers relate to shares on which
different amounts (whether by way of capital or premium) are paid up.

(13) The offeror must send an offer in an approved manner to each person who holds shares in the company when the first of the offers is sent.

(14) Section 8A of the Companies (Acquisition of Shares) Act 1980 has effect for the purposes of subsection (13) of this section as if that subsection were a provision of that Act.

COMPANIES ACT 1981 - SECT 133FC
Withdrawal or variation of buy-back offers

SECT

133FC. A buy-back offer is not capable of being withdrawn or varied without the Commission's written consent, which may be given subject to such conditions (if any) as are specified in it.

COMPANIES ACT 1981 - SECT 133FD
Avoiding odd lots

SECT

133FD. Where, at a particular time:
(a) an offer has been made under a buy-back scheme;
(b) the company is a listed body;
(c) the offer is accepted; and
(d) a proportion of the shares, being the proportion to which the offer does not relate, consists of an odd lot of shares or consists of a marketable parcel or marketable parcels of shares and an odd lot of shares;
the offer shall, except for the purposes of subsection 133FB (11) and this section, be taken always to have related to, to relate to, and to have been accepted in relation to, a number of shares in the company equal to the sum of:
(e) the number of shares of which the proportion to which the offer relates consists; and
(f) the number of shares in that odd lot.

COMPANIES ACT 1981 - SECT 133FE
Odd lots to be disregarded for purposes of 10% in 12 months limit

SECT

133FE. (1) This section applies where, because of section 133FD, an offer made by a listed body under a buy-back scheme is taken to have been accepted in relation to a number of shares in the body equal to the sum of a particular number of such shares and the number of shares in an odd lot of such shares.

(2) In determining whether or not a buy-back made under the buy-back scheme exceeds the 10% in 12 months limit, the odd lot shall be taken not to have been bought back.

COMPANIES ACT 1981 - SUBDIVISION G
Subdivision G - Approval of Buy-back Schemes by Ordinary
Resolution

COMPANIES ACT 1981 - SECT 133GA
When approval required

SECT

133GA. If the buy-back is made under a buy-back scheme and:
(a) if the company is a proprietary company - the buy-back exceeds the 10% in 12 months limit; or
(b) in any case - at the time when the first offer was made under the buy-back scheme, at least one of the company's directors was aware of:
(i) a proposal by a person to make a takeover bid in
relation to shares in the company; or
(ii) a takeover bid that had been made by a person in
relation to shares in the company and offers under which remained open at that time;
the next condition is that the buy-back offers were made under an ordinary resolution of the company.

COMPANIES ACT 1981 - SECT 133GB
Buy-back offers made under a resolution

SECT

133GB. Buy-back offers are made under a particular resolution if, and only if:
(a) the resolution:
(i) approves the buy-back scheme constituted by the offers;
(ii) complies with section 133GC; and
(iii) was passed at a meeting held before the first offer
was made under the buy-back scheme;
(b) the offers are in accordance with the resolution; and
(c) such of the terms of the offers as are not specified in the resolution are not materially different from the terms particulars of which were specified under subsection 133GD (2) in notices relating to the resolution that were sent for the purposes of the meeting.

COMPANIES ACT 1981 - SECT 133GC
Resolution to approve proposed buy-back scheme

SECT

133GC. (1) A resolution of a company that is passed at a meeting and approves a proposed buy-back scheme complies with this section if, and only if:
(a) every notice of the meeting sent to a person entitled to vote on the resolution set out, or was accompanied by a notice setting out:
(i) the intention to propose the resolution; and
(ii) the matters required by section 133GD; and
(b) the resolution complies with subsection (2) of this section.

(2) The resolution shall specify:
(a) the latest date that the proposed buy-back offers may have for the purposes of subsection 133FB (5), being a date at most 12 months after the day on which the resolution is passed;
(b) the minimum period, being at least one month and at most 6 months, during which the offers are to remain open unless they are withdrawn;
(c) the consideration, or each alternative consideration included in the consideration, as the case requires, that under each of the offers is to be provided for the buy-back of each share to which the offer relates; and
(d) the proportion to be specified in the offers for the purposes of subsection 133FB (11).

(3) A resolution may specify a consideration under paragraph (2) (c) as a consideration to be determined by the directors, being:
(a) not less than a minimum consideration specified in the resolution; and
(b) not more than a maximum consideration so specified.

(4) A resolution may specify a consideration under paragraph (2) (c) or (3) (a) or (b) as a consideration to be determined by the directors in a manner specified in the resolution.

(5) A resolution of a company to approve a proposed buy-back scheme may require specified terms to be included in the proposed buy-back offers.

COMPANIES ACT 1981 - SECT 133GD
Notice of resolution to approve proposed buy-back scheme

SECT

133GD. (1) A notice that:
(a) sets out the intention to propose a resolution to approve a proposed buy-back scheme; and
(b) is sent to a person entitled to vote on the resolution;
shall comply with this section.

(2) It shall set out the text of the proposed resolution and full particulars of such of the terms of the proposed buy-back offers as are not specified in the resolution.

(3) It shall set out the reasons why the buy-back scheme is being proposed and the facts and principles underlying those reasons.

(4) It shall set out the takeover aspects of the proposed resolution.

(5) It shall set out what the directors consider will be the likely effect on the company's state of affairs if the offers are made and all are accepted.

(6) It shall set out a copy of a solvency declaration by the directors that relates to the proposed buy-back scheme and was made within 7 days before the day on which the notice is prepared.

(7) It shall state whether or not there are, at the time when it is prepared, partly-paid shares in the company that are in the same class as the shares to which the proposed buy-back offers relate and, if there are, the notice shall set out:
(a) how many such partly-paid shares there are at that time; and
(b) the total of all amounts (including amounts of premium) that at that time remain unpaid on such partly-paid shares.

(8) It shall set out, in relation to each person who, at the time when the notice is prepared, is a director of the company or is associated with such a director:
(a) whether or not the person intends at that time, if:
(i) the resolution is passed in a form not substantially
different from that set out in the notice;
(ii) buy-back offers are made under the resolution; and
(iii) the person holds shares in the company when the
offers are made;
to accept the offer made to the person under the buy-back scheme; or
(b) if the person has not decided whether or not the person so intends - that the person has not so decided.

(9) It shall set out all other information that is known to any of the directors and may reasonably be expected to influence a person in deciding whether or not to vote in favour of the resolution.

(10) The notice shall be the same as each of the other notices of the kind referred to in subsection (1) that relate to the resolution, disregarding the fact that the first-mentioned notice is sent to a different person.

COMPANIES ACT 1981 - SUBDIVISION H
Subdivision H - Employee-shares Purchases

COMPANIES ACT 1981 - SECT 133HA
Approval by ordinary resolution

SECT

133HA. If the buy-back is an employee-shares purchase and exceeds the 10% in 12 months limit, the next conditions are:
(a) that:
(i) if the company has an approving holding company or
approving holding companies - the company, and that holding company or those holding companies, have each; or
(ii) otherwise - the company has;
approved the buy-back by an ordinary resolution passed at a meeting of the company or holding company held before the agreement constituting the buy-back is entered into;
(b) that each of the resolutions, or the resolution, as the case may be, complies with section 133HB;
(c) that the agreement is in accordance with each of the resolutions, or the resolution, as the case may be; and
(d) that such of the terms of the agreement as:
(i) are specified in none, or in at least one but not all,
of the resolutions; or
(ii) are not specified in the resolution;
as the case may be, are not materially different from the terms particulars of which were specified under subsection 133HC (2) in notices relating to the resolutions or resolution that were sent for the purposes of the meetings or meeting.

COMPANIES ACT 1981 - SECT 133HB
Resolution to approve proposed employee-shares purchase

SECT

133HB. (1) A resolution of a corporation that is passed at a meeting and approves a proposed employee-shares purchase complies with this section if, and only if:
(a) every notice of the meeting sent to a person entitled to vote on the resolution set out, or was accompanied by a notice setting out:
(i) the intention to propose the resolution; and
(ii) the matters required by section 133HC;
(b) the resolution specifies the consideration, or each alternative consideration included in the consideration, as the case requires, that under the agreement constituting the proposed purchase is to be provided for the purchase; and
(c) no votes are cast, in relation to the resolution, in respect of any shares held by:
(i) a party to the agreement (other than the company that
proposes to make the purchase or a holding company of that company); or
(ii) a person associated with such a party.

(2) A resolution may specify a consideration under paragraph (1) (b) as a consideration to be determined by the directors, being:
(a) not less than a minimum consideration specified in the resolution; and
(b) not more than a maximum consideration so specified.

(3) A resolution may specify a consideration under paragraph (1) (b) or (2) (a) or (b) as a consideration to be determined by the directors in a manner specified in the resolution.

(4) A resolution of a corporation to approve a proposed employee-shares purchase may require specified terms to be included in the agreement constituting the purchase.

COMPANIES ACT 1981 - SECT 133HC
Notice of resolution to approve proposed employee-shares purchase

SECT

133HC. (1) A notice that:
(a) sets out the intention to propose a resolution of a corporation to approve a proposed employee-shares purchase; and
(b) is sent to a person entitled to vote on the resolution;
shall comply with this section.

(2) It shall set out the text of the proposed resolution and full particulars of such of the terms of the agreement constituting the proposed purchase as are not specified in the resolution.

(3) It shall set out the reasons why the purchase is being proposed and the facts and principles underlying those reasons.

(4) It shall set out, in relation to each person by whom, or for whose benefit, shares to which the proposed purchase relates are held:
(a) the person's name; and
(b) particulars of the employment by virtue of which the person is a participating employee in relation to the corporation, or was such an employee immediately before the person last ceased to be such an employee, as the case requires.

(5) It shall set out:
(a) how many of the shares to which the proposed purchase relates are partly-paid shares at the time when the notice is prepared; and
(b) the total of all amounts (including amounts of premium) that at that time remain unpaid on the first-mentioned shares.

(6) If the proposed purchase relates to shares in the corporation, the notice shall set out:
(a) the takeover aspects of the proposed resolution;
(b) what the directors consider will be the likely effect on the corporation's state of affairs if the purchase is made; and
(c) a copy of a solvency declaration by the directors that relates to the proposed purchase and was made within 7 days before the day on which the notice is prepared.

(7) If the proposed purchase relates to shares in a subsidiary of the corporation, the notice shall set out:
(a) what the subsidiary's directors consider will be the likely effect on the subsidiary's state of affairs if the purchase is made;
(b) a copy of a solvency declaration by the subsidiary's directors that relates to the proposed purchase and was made within 7 days before the day on which the notice is prepared; and
(c) what the corporation's directors consider will be the likely effect on the corporation's state of affairs if the purchase is made.

(8) The notice shall set out all other information that is known to any of the directors referred to in subsection (6) or (7), as the case may be, and may reasonably be expected to influence a person in deciding whether or not to vote in favour of the resolution.

(9) The notice shall be the same as each of the other notices of the kind referred to in subsection (1) that relate to the resolution, disregarding the fact that the first-mentioned notice is sent to a different person.

COMPANIES ACT 1981 - SUBDIVISION J
Subdivision J - Selective Buy-backs

COMPANIES ACT 1981 - SECT 133JA
Approval, by special resolution passed by special majority, of
selective buy-back by public company

SECT

133JA. If:
(a) the company is a public company; and
(b) the buy-back is not made under a buy-back scheme and is neither an employee-shares purchase nor an odd-lot purchase;
the next conditions are:
(c) that, before it is entered into, the agreement constituting the buy-back is approved by a special resolution of the company passed, at a meeting, by a majority consisting of:
(i) at least 75% in number of; and
(ii) members who together hold at least 75% in nominal
value of the shares that entitle their holders to attend and vote at the meeting and are held by;
such members of the company as, being entitled to do so, vote in person or, where proxies are allowed, by proxy, at the meeting;
(d) that no votes were cast in relation to the resolution in respect of any shares held by:
(i) a party (other than the company) to the agreement; or
(ii) a person associated with such a party;
(e) that every notice of the meeting that was sent to a person entitled to vote on the resolution set out, or was accompanied by a notice setting out:
(i) the intention to propose the resolution; and
(ii) the matters required by Subdivision K;
(f) that, as at the time when the first such notice was so sent, each expert (if any) who had signed under paragraph 133KD (2) (a) or subsection 133KE (1) a report of which a copy was set out in such a notice had given, and had not withdrawn, his or her written consent to the sending of each such notice with the report set out in the form and context in which it was in fact set out in each such notice;
(g) that a copy of the agreement as proposed when the first such notice was so sent was available in accordance with the statement set out in each such notice as required by section 133KC;
(h) that, apart from the modifications (if any) specified in the resolution, the terms of the agreement as entered into are not materially different from the terms of the agreement as so proposed; and
(j) that those modifications (if any) have been made.

COMPANIES ACT 1981 - SECT 133JB
Approval by special resolution where selective buy-back by
proprietary company exceeds 10% in 12 months limit

SECT

133JB. If:
(a) the company is a proprietary company; and
(b) the buy-back is not made under a buy-back scheme, is not an employee-shares purchase and exceeds the 10% in 12 months limit;
the next conditions are:
(c) that, before it is entered into, the agreement constituting the buy-back is approved by a special resolution of the company in relation to which no votes were cast in respect of any shares held by:
(i) a party (other than the company) to the agreement; or
(ii) a person associated with such a party;
(d) that every notice of the meeting at which the resolution was passed that was sent to a person entitled to vote on the resolution set out, or was accompanied by a notice setting out:
(i) the intention to propose the resolution; and
(ii) the matters required by Subdivision K;
(e) that a copy of the agreement as proposed when the first such notice was so sent was available in accordance with the statement set out in each such notice as required by section 133KC;
(f) that, apart from the modifications (if any) specified in the resolution, the terms of the agreement as entered into are not materially different from the terms of the agreement as so proposed; and
(g) that those modifications (if any) have been made.

COMPANIES ACT 1981 - SUBDIVISION K
Subdivision K - Notice of Resolution to Approve Proposed
Selective Buy-back

COMPANIES ACT 1981 - SECT 133KA
Notice must comply with Subdivision

SECT

133KA. A notice that:
(a) sets out the intention to propose at a meeting a resolution of a company to approve a proposed agreement constituting a proposed buy-back; and
(b) is sent to a person entitled to vote on the resolution;
shall comply with this Subdivision.

COMPANIES ACT 1981 - SECT 133KB
Contents of resolution and proposed agreement

SECT

133KB. (1) It shall set out the text of the proposed resolution.

(2) It shall set out a summary of all material terms of the proposed agreement.

COMPANIES ACT 1981 - SECT 133KC
Availability of agreement for inspection

SECT

133KC. It shall set out a statement to the effect that a copy of the proposed agreement will be available:
(a) at the company's registered office at any time when the office is required to be open and accessible to the public during the period starting on a specified day at least 14 days before the day of the meeting and ending on the day of the meeting; and
(b) at the meeting;
for inspection without charge by any person entitled to vote on the proposed resolution.

COMPANIES ACT 1981 - SECT 133KD
Valuation of non-cash consideration

SECT

133KD. (1) This section applies if the consideration that under the proposed agreement is to be provided for the buy-back consists, or includes at least one alternative consideration that consists, wholly or partly of non-cash consideration.

(2) The notice shall set out, in relation to the first-mentioned consideration or each such alternative consideration, as the case may be, particulars of the non-cash consideration and:
(a) if the company is a public company - a copy of a report that:
(i) an expert (other than a person associated with the
company or with any other proposed party to the proposed agreement) signed within 7 days before the notice was prepared;
(ii) sets out what, in his or her opinion, was the money
value of the non-cash consideration when he or she signed the report; and
(iii) complies with section 133KF; or
(b) otherwise - a copy of a statement that each of the company's directors signed within 7 days before the notice was prepared and that sets out:
(i) what, in their opinion, was the money value of the
non-cash consideration when the statement was first signed by one of them; and
(ii) what, in their opinion, will be the money value of the
non-cash consideration if and when the agreement is entered into and completed and, in the case of an alternative consideration, the seller chooses that alternative.

(3) If the company is a public company and the opinion of each of 2 or more experts has been sought about the value of non-cash consideration to which a particular report of which a copy is set out under subsection (2) relates, the notice shall set out, in relation to each of those experts (other than the one who signed the report):
(a) his or her name; and
(b) particulars of the opinions (if any) he or she has expressed about the value of such non-cash consideration.

COMPANIES ACT 1981 - SECT 133KE
Expert's opinion about whether consideration fair and reasonable

SECT

133KE. (1) If the company is a public company, the notice shall set out a copy of a report that:
(a) an expert (other than a person associated with the company or with any other proposed party to the proposed agreement) signed within 7 days before the notice was prepared;
(b) in relation to:
(i) the consideration that under the proposed agreement is
to be provided for the buy-back; or
(ii) each alternative consideration included in that
consideration;
as the case requires:
(iii) states whether or not, in his or her opinion, the
consideration was fair and reasonable as at the time when he or she signed the report; and
(iv) sets out the expert's reasons for forming that
opinion;
(c) in relation to each report (if any) that was signed under paragraph 133KD (2) (a) and a copy of which is set out in the notice - states:
(i) to what extent he or she has relied on the report in
forming an opinion for the purposes of paragraph (b) of this subsection; and
(ii) if he or she has not so relied at all - why not; and
(d) complies with section 133KF.

(2) If the company is a public company and the opinion of 2 or more experts has been sought about the consideration referred to in subparagraph (1) (b) (i) or an alternative consideration included in it, the notice shall set out, in relation to each of those experts (other than the one who signed the report):
(a) his or her name; and
(b) particulars of the opinions (if any) he or she has expressed about the first-mentioned consideration or such an alternative consideration.

(3) Nothing in this section limits the generality of anything else in it.

COMPANIES ACT 1981 - SECT 133KF
Matters affecting expert's objectivity

SECT

133KF. For the purposes of subparagraph 133KD (2) (a) (iii) or paragraph 133KE (1) (d), a report signed by an expert complies with this section if, and only if, it sets out:
(a) particulars of any relationship of the expert with a person (in this section called an "interested person"), being:
(i) the company;
(ii) any other proposed party to the proposed agreement; or
(iii) a person associated with the company or with any
other such proposed party;
including, but not limited to, particulars of circumstances in which the expert furnishes advice to, or acts on behalf of, an interested person in the proper performance of the functions attaching to the expert's professional capacity or to the expert's business relationship with that interested person;
(b) particulars of any pecuniary or other interest of the expert that could reasonably be regarded as being capable of affecting the expert's ability to give an unbiased opinion on the matters to which the report relates; and
(c) particulars of:
(i) any fee; and
(ii) any pecuniary or other benefit, whether direct or
indirect;
that the expert has received or will or may receive for or in connection with the making of the report.

COMPANIES ACT 1981 - SECT 133KG
Expert's consent

SECT

133KG. If the company is a public company, the notice shall set out, in relation to each report that was signed under paragraph 133KD (2) (a) or subsection 133KE (1) and of which a copy is set out in the notice, a statement to the effect that the expert who signed the report has given, and has not withdrawn, his or her consent to the sending of the notice with the report set out in the form and context in which it is set out.

COMPANIES ACT 1981 - SECT 133KH
Reasons for buy-back

SECT

133KH. (1) The notice shall set out the reasons why the buy-back is being proposed and the facts and principles underlying those reasons.

(2) The notice shall set out the takeover aspects of the proposed resolution.

COMPANIES ACT 1981 - SECT 133KJ
Solvency aspects

SECT

133KJ. (1) The notice shall set out what the directors consider will be the likely effect on the company's state of affairs if the proposed buy-back is made.

(2) The notice shall set out a copy of a solvency declaration by the directors that relates to the proposed buy-back and was made within 7 days before the day on which the notice is prepared.

(3) The notice shall set out:
(a) how many of the shares to which the proposed buy-back relates are partly-paid shares at the time when the notice is prepared; and
(b) the total of all amounts (including amounts of premium) that at that time remain unpaid on the first-mentioned shares.

COMPANIES ACT 1981 - SECT 133KK
Directors' interests

SECT

133KK. (1) The notice shall set out, in relation to each of the directors, in relation to each person who, at the time when the notice is prepared, is associated with that director in relation to the proposed buy-back:
(a) the name of that person; and
(b) particulars of the circumstances by virtue of which that person is so associated with that director at that time.

(2) The notice shall set out each declaration (if any) that, before the notice was prepared, a director of the company has made under section 228 in relation to the proposed agreement.

COMPANIES ACT 1981 - SECT 133KL
Effect on control of company

SECT

133KL. (1) The notice shall set out what the directors consider will be the likely effect on the control of the company if the proposed buy-back is made.

(2) The notice shall set out, in relation to each of the directors:
(a) whether or not the directors consider it likely that, if the proposed buy-back were made and the shares to which it relates were cancelled immediately afterwards, that director would, immediately after the cancellation, be entitled to more than 20% of the shares in the company; and
(b) if so - the respective percentages to which the directors consider it likely that that director would be entitled immediately before, and immediately after, the cancellation.

COMPANIES ACT 1981 - SECT 133KM
Other relevant information

SECT

133KM. The notice shall set out all other information that is known to any of the directors and may reasonably be expected to influence a person in deciding whether or not to vote in favour of the resolution.

COMPANIES ACT 1981 - SECT 133KN
Notices to be the same

SECT

133KN. The notice shall be the same as each of the other notices of the kind referred to in section 133KA that relate to the meeting and the resolution, disregarding the fact that the first-mentioned notice is sent to a different person.

COMPANIES ACT 1981 - SUBDIVISION L
Subdivision L - Creditors may Object to Proposed Buy-backs

COMPANIES ACT 1981 - SECT 133LA
Advertising proposed buy-backs

SECT

133LA. (1) This section applies if:
(a) the buy-back is made under a buy-back scheme;
(b) the company is a proprietary company and the buy-back is not made under a buy-back scheme and is not an employee-shares purchase; or
(c) the company is a public company and the buy-back is not made under a buy-back scheme and is neither an employee-shares purchase nor an odd-lot purchase.

(2) The next condition is that a notice:
(a) setting out the intention to make the offers constituting the buy-back scheme, or to enter into the agreement constituting the buy-back, as the case may be;
(b) specifying the documents referred to in paragraphs (3) (a) and (b) and, if applicable, paragraph (3) (c);
(c) stating to the effect that those documents would be available as mentioned in paragraph (3) (a) during the period referred to in subsection (3); and
(d) setting out the matters required by section 133LB;
was published in accordance with section 133LC on a day that, or on days each of which:
(e) was not earlier than 42 days, and not later than 28 days, before the day (in this section called the "critical day") on which the first of the offers was made, or the agreement is entered into, as the case may be; and
(f) if section 133GA, 133JA or 133JB applies - was later than the day on which the resolution for which that section provides was passed.

(3) The next condition is that, throughout the period starting on the day, or on the first of the days, when the notice was so published and ending at least 21 days after that day or the last of those days:
(a) a copy of one of the offers, or of the agreement, as proposed on that day, or on the first of those days, was available for inspection without charge by any creditor of the company at the company's registered office at any time during that period when the office was required to be open and accessible to the public;
(b) a solvency declaration by the company's directors that related to the buy-back scheme or buy-back and was made not more than 2 months before the critical day was in force and so available;
(c) unless the company is a proprietary company and the buy-back does not exceed the 10% in 12 months limit - an auditor's report on the declaration was so available; and
(d) if section 133GA, 133JA or 133JB applies:
(i) a copy of the resolution for which that section
provides; and
(ii) each report or statement (if any) that was signed
under subsection 133KD (2) or 133KE (1) and of which a copy was set out in a notice that set out the intention to propose the resolution and was sent to a person entitled to vote on it;
was or were, as the case requires, so available.

(4) The next condition is that the terms of the offers, or of the agreement, as so proposed were not materially different from the terms of the offers as made, or of the agreement as entered into, as the case may be.

COMPANIES ACT 1981 - SECT 133LB
Content of advertisement

SECT

133LB. (1) A notice that sets out the intention to:
(a) make offers constituting a buy-back scheme; or
(b) enter into an agreement constituting a buy-back;
and is published in accordance with section 133LC shall comply with this section.

(2) the notice shall set out:
(a) in relation to the consideration; or
(b) in relation to each alternative consideration included in the consideration;
as the case requires, that under each of the proposed offers, or under the proposed agreement, as the case may be, is to be provided for the buy-back of the shares to which the offer or agreement relates:
(c) the amount of money (if any), and the non-cash consideration (if any), that under each of the proposed offers, or under the proposed agreement, as the case may be, is or are to be provided:
(i) as the consideration for each share to which that offer
or the proposed agreement relates; or
(ii) as the consideration for each such share if the
offeree or seller chooses that alternative;
as the case may be; and
(d) an amount that it is reasonable to expect will be, if:
(i) all the proposed offers are made and accepted, all
resulting agreements are completed and, if paragraph (b) applies, all offerees choose that alternative; or
(ii) the proposed agreement is entered into and completed
and, if paragraph (b) applies, the seller chooses that alternative;
as the case may be, the greatest total of:
(iii) the amounts (if any) that the company will have paid
for the buy-backs made under the buy-back scheme, or for the buy-back constituted by the agreement, as the case may be; and
(iv) the money value, as at the time when the last of those
buy-backs, or that buy-back, as the case may be, is completed, of the non-cash consideration (if any) that the company will have provided for the buy-backs or buy-back.

(3) If paragraph (1) (a) applies, the notice shall state whether or not there are, at the time when it is prepared, partly-paid shares in the company that are in the same class as the shares to which the proposed offers relate and, if there are, the notice shall set out:
(a) how many such partly-paid shares there are at that time; and
(b) the total of all amounts (including amounts of premium) that at that time remain unpaid on such partly-paid shares.

(4) If paragraph (1) (b) applies, the notice shall set out:
(a) how many of the shares to which the proposed agreement relates are partly-paid shares at the time when the notice is prepared; and
(b) the total of all amounts (including amounts of premium) that at that time remain unpaid on the first-mentioned shares.

(5) The notice shall set out the effect of section 133LD as it applies in relation to the proposed buy-back scheme or proposed buy-back, as the case may be.

COMPANIES ACT 1981 - SECT 133LC
Newspapers in which advertisement to be published

SECT

133LC. A notice relating to a proposed buy-back scheme or buy-back is published in accordance with this section if, and only if, a copy of the notice is published:
(a) in a national newspaper;
(b) if a daily newspaper (other than a national newspaper) circulates generally in the Territory - in such a newspaper that so circulates; and
(c) in each State and Territory (other than the Territory) in which the company carries on business and in which a daily newspaper (other than a national newspaper) circulates generally, in such a newspaper that circulates generally in that State or Territory;
whether on the same day or on different days.

COMPANIES ACT 1981 - SECT 133LD
Creditor may apply to Court

SECT

133LD. Where a copy of a notice relating to a proposed buy-back scheme or buy-back is published in a newspaper, a creditor of the company:
(a) may apply to the Court at any time within the period of 21 days after the day, or the last of the days, on which a copy of the notice is published in a newspaper; and
(b) may, with the leave of the Court, apply to the Court at any time after that period and before the first of the proposed offers is made, or the agreement constituting the proposed buy-back is entered into, as the case may be;
for an order prohibiting the making of the offers or the entering into of the agreement.

COMPANIES ACT 1981 - SECT 133LE
How application to be dealt with

SECT

133LE. (1) On an application made in accordance with section 133LD, the Court shall, if satisfied that:
(a) the company is insolvent;
(b) the declaration specified in the notice referred to in that section is no longer in force; or
(c) it is unlikely that the company will remain solvent as specified in that declaration;
by order prohibit the company, except on such conditions (if any) as the order specifies, from making the offers or entering into the agreement, as the case may be, but otherwise shall refuse the application.

(2) On application by the company or a creditor of the company, the Court may by order vary or revoke an order in force under this section.

(3) An order under this section does not take effect until a copy of it is served on the company.

COMPANIES ACT 1981 - SECT 133LF
Buy-backs not to proceed while application pending

SECT

133LF. (1) This section applies if section 133LA applies and notice of an application made in accordance with section 133LD in relation to the buy-back offers or the agreement constituting the buy-back, as the case may be, was served on the company before the time when the first of the offers was made or when the agreement is entered into.

(2) The next condition is that:
(a) each such application of which notice was so served; and
(b) each appeal (if any) arising out of such an application of which notice was so served;
was determined or otherwise disposed of before the time referred to in subsection (1).

(3) The period beginning on the day when the first notice of such an application was so served and ending on the day when the last such application or appeal was determined or otherwise disposed of shall be disregarded in determining, for the purposes of subsection 133LA (2) and paragraph 133LA (3) (b), how long before a particular day:
(a) a notice relating to the offers or agreement was published in accordance with section 133LC; and
(b) a solvency declaration by the company's directors that relates to the offers or agreement was made.

COMPANIES ACT 1981 - SECT 133LG
Company to comply with order of Court

SECT

133LG. (1) The next condition is that:
(a) if the buy-back results from the acceptance of an offer made under a buy-back scheme - the making of the offer; or
(b) otherwise - the entering into of the agreement constituting the buy-back;
did not contravene an order in force under section 133LE.

(2) Nothing in this section affects the powers of the Court in relation to punishment of contempts of the Court.

COMPANIES ACT 1981 - SUBDIVISION M
Subdivision M - Solvency Requirements

COMPANIES ACT 1981 - SECT 133MA
Solvency requirements for buy-back scheme

SECT

133MA. If the buy-back is made under a buy-back scheme, the next condition is that, when the first offer was made under the buy-back scheme:
(a) there was in force a solvency declaration by the company's directors that relates to the buy-back scheme and was made within 2 months before the day on which that first offer was made; and
(b) unless the company is a proprietary company and the buy-back does not exceed the 10% in 12 months limit - the company's auditor had sent to the company an auditor's report on that declaration.

COMPANIES ACT 1981 - SECT 133MB
Solvency requirements for other buy-backs

SECT

133MB. If the buy-back is not made under a buy-back scheme, the next condition is that, as at the time of the buy-back:
(a) there is in force a solvency declaration by the company's directors that relates to, and was made within 2 months before the day of, the buy-back;
(b) unless the company is a proprietary company and the buy-back does not exceed the 10% in 12 months limit - the company's auditor has sent to the company an auditor's report on that declaration; and
(c) the company is not an externally-administered company.

COMPANIES ACT 1981 - SECT 133MC
Copy of solvency declaration and auditor's report to be lodged
with Commission

SECT

133MC. (1) Where a solvency declaration by a company's directors is made, the company shall lodge a copy of the declaration with the Commission:
(a) if, within 6 days after the day on which the declaration is made, a notice setting out a copy of the declaration is sent to a person entitled to vote on a resolution to approve a proposed buy-back scheme or buy-back to which the declaration relates - on or before the day after the first day on which such a notice is so sent; or
(b) otherwise - within 7 days after the day on which the declaration is made.

(2) Within 7 days after a company's auditor sends to the company an auditor's report on a solvency declaration by the company's directors, the company shall lodge with the Commission a copy of the report.

COMPANIES ACT 1981 - SECT 133MD
Revocation of solvency declaration

SECT

133MD. (1) Where:
(a) a solvency declaration by a company's directors is in force; and
(b) a director of the company (whether he or she signed the declaration or not) becomes of the opinion that it is likely that the company will not remain solvent as mentioned in the declaration;
he or she shall, as soon as practicable:
(c) sign a notice stating that he or she is of that opinion;
(d) give the notice to the company; and
(e) lodge a copy of the notice with the Commission.

(2) A notice given to a company under subsection (1) in relation to a solvency declaration by the company's directors revokes the declaration.

(3) Where a solvency declaration by a company's directors that relates to a buy-back scheme or buy-back is revoked under subsection (2) at a particular time, the other solvency declarations (if any) by the company's directors that relate to the buy-back scheme or buy-back are also revoked at that time.

(4) In subsection (3):
"buy-back" includes a proposed buy-back;
"buy-back scheme" includes a proposed buy-back scheme.

COMPANIES ACT 1981 - SECT 133ME
Solvency requirements for completion of buy-back under buy-back scheme

SECT

133ME. A company shall not provide any of the consideration that it is to provide under an agreement constituting a buy-back made by it under a buy-back scheme unless, when it first provides consideration that it is to provide under an agreement constituting a buy-back made under the buy-back scheme:
(a) the offer period of the offers made under the scheme has ended;
(b) a solvency declaration by the company's directors that relates to the buy-back scheme is in force; and
(c) unless the company is a proprietary company and the first-mentioned buy-back does not exceed the 10% in 12 months limit - the company's auditor has sent to the company an auditor's report on the declaration.

COMPANIES ACT 1981 - SECT 133MF
Company not to register certain transfers during solvency period

SECT

133MF. Where an offer made by a company under a buy-back scheme is accepted, the company shall not, during the solvency period of the offer, register a transfer to the company of shares, being a transfer pursuant to an agreement resulting from the acceptance.

COMPANIES ACT 1981 - SUBDIVISION N
Subdivision N - Share Buy-backs and other Securities Issues

COMPANIES ACT 1981 - SECT 133NA
Buy-back consideration not to consist of other securities of
the company

SECT

133NA. The next condition is that the consideration that has been or is to be provided for the buy-back does not consist, or include an alternative consideration that consists, wholly or partly of securities of the company.

COMPANIES ACT 1981 - SECT 133NB
No buy-backs during rights issue or placement

SECT

133NB. The next condition is that:
(a) if the buy-back is made under a buy-back scheme - the first offer made under the scheme was not made; or
(b) otherwise - the agreement constituting the buy-back is not entered into;
during, or within 3 months after the last day of:
(c) a period during which a rights offer or invitation by the company remains open;
(d) without limiting the generality of paragraph (e), a period during which there remains open:
(i) a share offer by the company that will, if accepted,
result in a placement of shares in the company; or
(ii) a share invitation by the company that is issued to a
person and will, if the person subscribes for or buys shares in the company as a result of an application or offer made by the person in response to the invitation, result in a placement of such shares; or
(e) a period:
(i) beginning on a day when the company, or a person acting
on its behalf, starts to negotiate with a view to placing shares in the company; and
(ii) ending on the day when the shares are placed or the
negotiations stop for some other reason.

COMPANIES ACT 1981 - SECT 133NC
No rights issue or placement during offer period or within 3
months after buy-back

SECT

133NC. (1) A company shall not:
(a) during, or within 3 months after the last day of, the offer period of a buy-back offer made by the company; or
(b) within 3 months after a day on which the company buys back shares;
make or issue a rights offer or invitation, place shares in the company or cause such shares to be placed.

(2) A contravention of subsection (1) does not affect the validity or enforceability of an act, transaction, agreement, instrument, matter or thing.

COMPANIES ACT 1981 - SUBDIVISION P
Subdivision P - Effect of Buy-back on Shares

COMPANIES ACT 1981 - SECT 133PA
Rights attaching to bought back shares

SECT

133PA. Where a company buys back shares, all rights attached to the shares are suspended:
(a) so long as the agreement constituting the buy-back is in effect; and
(b) if the agreement is discharged by performance - until the shares are transferred to the company pursuant to the agreement.

COMPANIES ACT 1981 - SECT 133PB
Company not to dispose of bought back shares

SECT

133PB. (1) A company shall not sell or otherwise dispose of, or agree to sell or otherwise dispose of, shares that it has bought back or units of such shares.

(2) An agreement entered into in contravention of subsection (1) is void.

COMPANIES ACT 1981 - SECT 133PC
Cancellation of shares after transfer to company

SECT

133PC. (1) Immediately after a transfer to a company of shares in the company is registered by the company:
(a) the shares are cancelled; and
(b) all rights attached to the shares are extinguished;
by force of this subsection.

(2) Where shares are cancelled by force of subsection (1), the company's issued share capital is reduced by the nominal value of the shares, but the company's nominal share capital is not affected.

COMPANIES ACT 1981 - SECT 133PD
Accounting for money spent on buy-back where amount exceeds
nominal value of shares

SECT

133PD. (1) This section applies where a company buys back shares.

(2) The company shall apply:
(a) if it has a share premium account - the amounts (if any) standing to the credit of that account; and
(b) its distributable profits (if any);
in writing off the buy-back premium (if any) and, if paragraph (a) applies, shall not so apply any of those profits while an amount is standing to the credit of that account.

(3) Until the buy-back premium (if any) has been written off in full, the company shall not pay, apply or otherwise deal with:
(a) if paragraph (2) (a) applies - an amount standing to the credit of that account; or
(b) in any case - any of its distributable profits.

(4) In this section:
"buy-back premium" means the amount (if any) by which the total of:
(a) the amounts (if any) that the company has paid for the buy-back; and
(b) the greater of the following:
(i) the total of the amounts that the company has spent on
acquiring the non-cash consideration (if any) provided by it for the buy-back;
(ii) the money value of the non-cash consideration (if any)
so provided, as at the time when the last of it was so provided;
exceeds the nominal value of the shares.

COMPANIES ACT 1981 - SUBDIVISION Q
Subdivision Q - Effect of Insolvency

COMPANIES ACT 1981 - SECT 133QA
Buy-back offer by externally-administered company void

SECT

133QA. Where an externally-administered company makes an offer under a buy-back scheme, the offer is void.

COMPANIES ACT 1981 - SECT 133QB
Effect of supervening insolvency on buy-back scheme

SECT

133QB. (1) This section applies where, at the end of the offer period of an offer made under a buy-back scheme:
(a) no solvency declaration by the company's directors that relates to the buy-back scheme is in force; or
(b) unless the company is a proprietary company and no buy-back made under the buy-back scheme exceeds the 10% in 12 months limit - such a declaration is in force but no auditor's report on the declaration has been sent to the company by its auditor.

(2) This section also applies where, after the end of the offer period, but before the end of the solvency period, of an offer made under a buy-back scheme, a solvency declaration by the company's directors that relates to the buy-back scheme is revoked.

(3) This section also applies where, during the solvency period of an offer made under a buy-back scheme:
(a) a provisional liquidator of the company is appointed;
(b) a court makes an order for the winding up of the company;
(c) the company resolves that it be wound up; or
(d) the company is placed under official management.

(4) If the offer has been accepted and a binding agreement has resulted from the acceptance, the agreement is void.

(5) Otherwise, the offer shall, despite section 133FC, be taken to have been withdrawn.

(6) If the offer has been accepted by a person, the company shall, as soon as practicable, return to the person any documents that the person sent to the company with the acceptance.

COMPANIES ACT 1981 - SECT 133QC
Directors to indemnify insolvent company where consideration
provided, or partly-paid shares acquired, under buy-back
agreements

SECT

133QC. (1) This section applies where:
(a) a company is placed under official management or commences to be wound up;
(b) during or after the 12 months ending on:
(i) in any case - the day of the commencement of the
official management or winding up; or
(ii) if the company was insolvent throughout a period
ending at that commencement - the day when the company last ceased, before that commencement, to be solvent;
one or both of the following happened:
(iii) the company provided consideration under an
agreement;
(iv) partly-paid shares were transferred to the company
pursuant to an agreement; and
(c) the agreement was entered into before, during or after that 12 months and:
(i) resulted from the acceptance of an offer made under a
buy-back scheme in relation to shares in the company; or
(ii) constituted a buy-back by the company otherwise than
under a buy-back scheme.

(2) If subparagraph (1) (b) (iii) applies, then, to the extent (if any) that the consideration consisted of an amount of money, the indemnifying directors are jointly and severally liable to pay to the company an amount equal to that amount.

(3) If subparagraph (1) (b) (iii) applies, then, to the extent (if any) that the consideration consisted of non-cash consideration, the indemnifying directors are jointly and severally liable to pay to the company an amount equal to:
(a) if the company acquired the non-cash consideration in order to provide it under the agreement - the total of the amounts spent by the company on acquiring it; or
(b) otherwise - the money value of the non-cash consideration when the last of it was so provided.

(4) If subparagraph (1) (b) (iv) applies, the indemnifying directors are jointly and severally liable to pay to the company an amount equal to the total of the amounts (including amounts of premium) that remained unpaid on the partly-paid shares.

(5) For the purposes of this section, an indemnifying director is a person who:
(a) if subparagraph (1) (c) (i) applies - signed, as a director of the company, a solvency declaration by the company's directors that related to the buy-back scheme and was in force at the end of the solvency period of the offer; or
(b) if subparagraph (1) (c) (ii) applies:
(i) signed, as a director of the company, a solvency
declaration by the company's directors that related to the buy-back and was in force at the time when the agreement was entered into; or
(ii) if no such declaration was so in force - was a
director of the company at that time and was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the entering into of the agreement by the company;
even if the person is no longer such a director.

(6) A person who is an indemnifying director because of paragraph (5) (a) or subparagraph (5) (b) (i) is not liable under subsection (2) or (3) in relation to the consideration, or under subsection (4) in relation to the amounts referred to in that subsection, if it is established that:
(a) at the time when he or she signed the declaration, the person had:
(i) the opinions described in it; and
(ii) reasonable grounds for those opinions; and
(b) at all times when he or she was a director of the company after that time and before the end of the period referred to in paragraph (5) (a) or the time referred to in subparagraph (5) (b) (i), as the case may be, the person:
(i) was of the opinion that the company would remain
solvent as mentioned in the declaration; and
(ii) had reasonable grounds for that opinion.

COMPANIES ACT 1981 - SECT 133QD
Relief from liability under section 133QC

SECT

133QD. (1) Where, in a proceeding against a person in respect of an alleged liability of the person under section 133QC to pay an amount, it appears to the court that the person is or may be liable under that section to pay the amount but that he or she:
(a) has acted honestly at all relevant times; and
(b) having regard to all the circumstances of the case, ought fairly to be excused in relation to the liability;
the court may relieve him or her from the liability on such terms (if any) as the court thinks fit.

(2) A person who believes on reasonable grounds that a proceeding will be begun against the person in relation to an alleged liability of the person under section 133QC may apply to the Court for relief.

(3) On an application under subsection (2), the Court has the same power to relieve the person under subsection (1) as it would have if a proceeding against the person in respect of the alleged liability were pending in the Court.

COMPANIES ACT 1981 - SUBDIVISION R
Subdivision R - Rights of Unpaid Sellers

COMPANIES ACT 1981 - SECT 133RA
Specific performance of buy-back agreements

SECT

133RA. Subject to section 133RB, an agreement constituting a buy-back may be enforced by an order for specific performance made by a court of competent jurisdiction.

COMPANIES ACT 1981 - SECT 133RB
Buy-back agreement unenforceable while company insolvent

SECT

133RB. (1) Subject to section 133RC, an agreement constituting a buy-back by a company is unenforceable while:
(a) the company is being wound up;
(b) there is a provisional liquidator of the company;
(c) the company is under official management;
(d) a receiver, or a receiver and manager, of property of the company, whether or not appointed by a court, is acting;
(e) a compromise or arrangement between the company and its creditors or any class of them is being administered; or
(f) subsection (2) applies to the company.

(2) This subsection applies to a company on a particular day unless the company is solvent on that day and may reasonably be expected to remain solvent, throughout the period of 12 months starting on that day, even if:
(a) each buy-back offer (if any) that relates to shares in the company and remains open as at that day is accepted, and the resulting agreement is completed, during that period; and
(b) each agreement (if any) that constitutes a buy-back by the company and remains uncompleted as at that day is completed during that period.

(3) The onus of establishing that an agreement is unenforceable because of this section lies on the company.

COMPANIES ACT 1981 - SECT 133RC
Unpaid seller may prove in winding up of company

SECT

133RC. (1) This section applies where, immediately before the relevant date in relation to a winding up of a company, obligations of the company under an agreement constituting a buy-back by the company have not been fully performed.

(2) Subject to this Division, another party to the agreement may claim in the winding up in respect of the company's obligations under the agreement to that other party, in so far as they remain unperformed.

(3) Subsection (2) does not limit the generality, or affect the operation, of section 438 or 439.

(4) Section 454 does not apply in relation to the agreement.

(5) A person is not entitled to a distribution of money or property in the winding up in connection with a claim in respect of obligations of the company under the agreement unless the seller's obligations under the agreement, so far as they relate to the supply of documents in connection with the buy-back, have been discharged.

(6) Subsection (5) does not affect a person's entitlement to claim in the winding up.

COMPANIES ACT 1981 - SECT 133RD
Ranking of seller's claim in winding up

SECT

133RD. (1) This section applies where a company is wound up.

(2) A seller's claim against the company shall be postponed until all other claims in the winding up have been satisfied, other than:
(a) any other seller's claim against the company;
(b) a sum due to a member of the company in that capacity, whether by way of dividends, profits or otherwise; or
(c) a claim in connection with the adjustment of the rights of the contributories among themselves.

(3) A seller's claim against the company shall be taken not to be, and shall be paid in priority to, a sum of the kind referred to in paragraph (2) (b).

(4) A person is not entitled to a distribution of money or property in connection with the adjustment of the rights of the contributories among themselves unless and until all seller's claims against the company have been satisfied.

(5) All seller's claims against the company rank equally between themselves and, subject to subsection (2), shall be paid:
(a) if the company's property is sufficient to pay them all - in full; or
(b) otherwise - proportionately.

COMPANIES ACT 1981 - SUBDIVISION S
Subdivision S - Certificates and Declarations of Compliance

COMPANIES ACT 1981 - SECT 133SA
Certificate of compliance

SECT

133SA. (1) This section applies where an offer made by a company under a buy-back scheme is accompanied by a copy of a certificate stating that this Division has been complied with in relation to each buy-back to be made under the buy-back scheme.

(2) This section also applies where a certificate stating that this Division has been complied with in relation to a specified buy-back that a company proposes to make otherwise than under a buy-back scheme is given to a person.

(3) A person to whom an offer is made under the buy-back scheme, or the person to whom the certificate is given, as the case may be, is not liable to have an order made against the person under subsection 130 (4) because of an agreement made or performed, or a transaction engaged in, by the person in reliance on the certificate.

(4) No such agreement or transaction is invalid, or voidable under subsection 130 (2), because it:
(a) is made or performed, or engaged in, as the case may be; or
(b) is, for the purposes of section 130, related to an agreement made or performed, or to a transaction engaged in;
in contravention of section 129.

(5) Subsections (3) and (4) do not apply if, on application by the company or a person who has suffered, or is likely to suffer, loss or damage as a result of the making or performance of an agreement, or the engaging in of a transaction, as mentioned in subsection (3), the Court declares by order that it is satisfied that the person referred to in subsection (1) or (2) became aware, before making the agreement or engaging in the transaction, that a condition prescribed by this Division had not been satisfied in relation to:
(a) the buy-back that would result from the acceptance of the offer referred to in subsection (3); or
(b) the proposed buy-back specified in the certificate;
as the case may be.

COMPANIES ACT 1981 - SECT 133SB
Presumptions about certain matters

SECT

133SB. (1) In a proceeding, a document purporting to be a compliance certificate shall, unless the contrary is established, be presumed to be a certificate duly given for the purposes of section 133SA.

(2) In a proceeding, a document purporting to be a copy of a compliance certificate shall, unless the contrary is established, be presumed to be a true copy of a certificate duly given for the purposes of section 133SA.

(3) Where a person to whom an offer was made under a buy-back scheme has possession of a copy of a compliance certificate relating to the buy-back scheme, it shall be presumed, unless the contrary is established, that the copy accompanied the offer.

(4) A person who has possession of a compliance certificate shall, unless the contrary is established, be presumed to be the person to whom the certificate was given.

(5) For the purposes of subsection 133SA (5), a person shall, unless the contrary is established, be presumed to have been aware at a particular time of any matter of which an employee or agent of the person having duties, or acting on the person's behalf, in relation to the proposed buy-back concerned was aware at that time.

COMPANIES ACT 1981 - SECT 133SC
Who must sign compliance certificate

SECT

133SC. A compliance certificate shall be signed by at least 2 directors, or by a director and a secretary, of the company.

COMPANIES ACT 1981 - SECT 133SD
Offences relating to compliance certificates: buy-back schemes

SECT

133SD. (1) Where some but not all of the offers made by a company under a buy-back scheme are accompanied by a compliance certificate relating to the buy-back scheme, the company contravenes this subsection.

(2) Where an offer made by a company to a person under a buy-back scheme was accompanied by a copy of a compliance certificate relating to the buy-back scheme and a buy-back made under the buy-back scheme contravenes section 129, the company shall be taken to have contravened this subsection by sending the copy to the person.

(3) A company that contravenes subsection (1) or (2) is not guilty of an offence by virtue of this section or section 570, but each officer of the company who is in default contravenes that subsection.

(4) It is a defence to a prosecution for a contravention of subsection (2) if it is established that when the copy of the certificate was sent to the person the defendant believed on reasonable grounds that no buy-back made under the buy-back scheme would contravene section 129.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 133SE
Offences relating to compliance certificates: other buy-backs

SECT

133SE. (1) Where:
(a) a person signs, or gives to another person, a compliance certificate relating to a buy-back that a company proposes to make, at a particular time or within a particular period, otherwise than under a buy-back scheme; and
(b) the buy-back is made before, at, or within a reasonable period after, that time or the end of the first-mentioned period and contravenes section 129;
the person shall be taken to have contravened this subsection by signing the certificate, or giving it to the other person, as the case may be.

(2) It is a defence to a prosecution for a contravention of subsection (1) if it is established that the defendant, when signing the certificate or giving it to the other person, as the case requires, believed on reasonable grounds that the proposed buy-back would not, if made as mentioned in paragraph (1) (b), contravene section 129.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 133SF
Declaration by Court of substantial compliance

SECT

133SF. Where, on application to the Court by a party to an agreement or proposed agreement constituting a buy-back, the Court is satisfied that a particular condition prescribed by this Division has been substantially satisfied in relation to the buy-back or proposed buy-back, the Court may by order declare that that condition has been satisfied in relation to the buy-back or proposed buy-back.

COMPANIES ACT 1981 - SUBDIVISION T
Subdivision T - Notifying Commission and Securities Exchanges
about Buy-backs

COMPANIES ACT 1981 - SECT 133TA
Company to notify Commission of buy-backs

SECT

133TA. (1) Within the notification period in relation to the last day of the offer period of an offer made by it under a buy-back scheme, a company shall lodge with the Commission a written notice that specifies the buy-back scheme and sets out:
(a) the total number of shares in relation to which offers made under the buy-back scheme have been accepted; and
(b) particulars of the total consideration that, under the agreements resulting from the acceptance of such offers, has been or is to be provided for the purchase of those shares.

(2) Within the notification period in relation to a day on which a buy-back is made otherwise than under a buy-back scheme, the company shall lodge with the Commission a written notice that specifies the buy-back and sets out:
(a) the number of shares bought back; and
(b) particulars of the consideration that has been or is to be provided for the buy-back.

(3) Within the notification period in relation to a day on which an agreement constituting a buy-back is rescinded, or is discharged otherwise than by performance, the company shall lodge with the Commission a written notice that specifies the agreement and sets out:
(a) when the agreement was rescinded or discharged; and
(b) the number of shares to which the agreement related.

(4) For the purposes of this section, a company lodges a notice within the notification period in relation to a particular day if, and only if, it lodges the notice:
(a) in the case of a listed body - before 9.30 a.m. on the first day that is later than that day and is a trading day of a notifiable exchange or a business day; or
(b) otherwise - within 7 days after that day.

COMPANIES ACT 1981 - SECT 133TB
Listed company to notify securities exchanges of buy-backs

SECT

133TB. A listed body that section 133TA requires to lodge a notice with the Commission shall give to each notifiable exchange, before 9.30 a.m. on the next trading day of that notifiable exchange after the day referred to in subsection 133TA (1), (2) or (3), as the case requires, a copy of the notice.

COMPANIES ACT 1981 - SUBDIVISION U
Subdivision U - Listed Company to Notify Members about Share
Cancellations

COMPANIES ACT 1981 - SECT 133UA
Notifying member whose shares were cancelled

SECT

133UA. A company that is a listed body shall, within 2 business days after shares included in a class of voting shares in the company and held by a person are cancelled by force of subsection 133PC (1), send to the person a written notice that:
(a) states that the shares have been cancelled;
(b) specifies the day of the cancellation; and
(c) specifies the number of issued shares in that class as at the time immediately after the cancellation.

COMPANIES ACT 1981 - SECT 133UB
Notifying members generally

SECT

133UB. (1) Subsection (3) applies where, as at the end of a day on which shares in a class of voting shares in a company that is a listed body are transferred to the company pursuant to an agreement constituting a buy-back made under a buy-back scheme, each agreement constituting a buy-back made under the buy-back scheme has been discharged, whether by performance or otherwise, or rescinded.

(2) Subsection (3) also applies where, as at the end of a day on which shares in a class of voting shares in a company that is a listed body were transferred to the company, the number calculated in accordance with the following formula exceeds 5:
(A - B) X 100;
A
where:
A is the number of issued shares in that class as at:
(a) if the company has previously become required to give under this section notices relating to shares in that class - the time when the company last became so required; or
(b) otherwise - the start of the first day on which shares in that class were transferred to the company after the commencement of this Part;
B is the number of issued shares in that class as at the end of the first-mentioned day.

(3) Within 2 business days after the day first referred to in subsection (1) or (2), as the case may be, the company shall send to each of its members a written notice specifying:
(a) the day on which the notice is sent; and
(b) the number of issued shares in that class as at the beginning of the last-mentioned day.

(4) For the purposes of subsection (2), a company that this section requires to send notices because of a transfer of shares shall be taken to have become, at the end of the day of the transfer, required to give the notices.

COMPANIES ACT 1981 - SUBDIVISION V
Subdivision V - Register of Buy-backs

COMPANIES ACT 1981 - SECT 133VA
Company to keep register

SECT

133VA. A company:
(a) whose articles contain a buy-back authorisation; or
(b) that has at any time bought back shares;
shall establish a register for the purposes of this Division and keep it in accordance with this Subdivision.

COMPANIES ACT 1981 - SECT 133VB
Particulars of buy-back schemes

SECT

133VB. (1) As soon as practicable after making offers under a buy-back scheme, the company shall include in the register a copy of one of the offers.

(2) As soon as practicable after an offer made by the company under a buy-back scheme is accepted, the company shall make in the register an entry that refers to the buy-back scheme and sets out:
(a) the name of the offeree; and
(b) the date of the acceptance.

COMPANIES ACT 1981 - SECT 133VC
Particulars of other buy-backs

SECT

133VC. As soon as practicable after a buy-back is made by the company otherwise than under a buy-back scheme, the company shall:
(a) include in the register a copy of the agreement constituting the buy-back; and
(b) make in the register an entry that refers to the buy-back and sets out:
(i) the name of each party to the agreement (other than the
company);
(ii) the date on which the agreement was made;
(iii) the number of shares bought back; and
(iv) particulars of the consideration that has been or is
to be provided for the buy-back.

COMPANIES ACT 1981 - SECT 133VD
Alteration of register where buy-back does not proceed

SECT

133VD. (1) As soon as practicable after an agreement resulting from the acceptance of an offer made by the company under a buy-back scheme becomes void, or such an offer is withdrawn, by virtue of section 133QB, the company shall remove from the register:
(a) the copy of an offer made under the buy-back scheme included under subsection 133VB (1); and
(b) each entry made under subsection 133VB (2) because of the acceptance of an offer made under the buy-back scheme.

(2) As soon as practicable after an agreement constituting a buy-back by the company is rescinded, or is discharged otherwise than by performance, the company shall remove from the register the entry made under subsection 133VB (2) because of the acceptance that resulted in the agreement, or made under section 133VC because of the agreement, as the case requires, and the copy (if any) of the agreement included under section 133VC.

(3) A reference in this section to removing an entry or copy from the register is a reference to:
(a) including the copy or entry in a part of the register separate from the part in which copies are included, and entries are made, under sections 133VB and 133VC; and
(b) removing the copy or entry from the last-mentioned part.

COMPANIES ACT 1981 - SECT 133VE
Entries in register after cancellation of shares

SECT

133VE. (1) As soon as practicable after shares in the company are transferred to the company pursuant to an agreement, the company shall include in the register, in relation to the entry:
(a) made under subsection 133VB (2) because of the acceptance that resulted in the agreement; or
(b) made under section 133VC because of the agreement;
as the case requires, a notation indicating that the shares have been cancelled and specifying the day of the cancellation.

(2) As soon as practicable after a day on which shares in a class of shares in the company are cancelled by force of subsection 133PC (1), the company shall include in the register an entry specifying:
(a) the number of shares in that class that were cancelled on that day; and
(b) the number of issued shares in that class as at the end of that day.

COMPANIES ACT 1981 - SECT 133VF
Inspection and copies of register

SECT

133VF. (1) The register shall be kept at the company's registered office and shall be open for inspection:
(a) by any member or creditor of the company - without charge; and
(b) by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires, or, where the company does not require payment, without charge.

(2) A person may request the company to give the person a copy of the register or any part of it and, where such a request is made, the company shall comply with the request:
(a) if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Commission approves; or
(b) otherwise - within 21 days after the request is made or within such longer period as the Commission approves.

COMPANIES ACT 1981 - DIVISION 4
Division 4 - Substantial Shareholdings

COMPANIES ACT 1981 - SECT 134
Application and interpretation

SECT

134. (1) This section has effect for the purposes of this Division.

(2) A reference to a company is a reference:
(a) to a company that has been admitted to the official list of a securities exchange in Australia and has not been removed from that official list;
(b) to a body corporate, being a body incorporated in the Territory, that is for the time being declred by the Ministerial Council, by order published in the Gazette, to be a company for the purposes of this Division; or
(c) to a body, not being a body corporate, formed in the Territory, that is for the time being declared by the Ministerial Council, by order published in the Gazette, to be a company for the purposes of this Division.

(3) The Ministerial Council may, by order published in the Gazette, revoke or vary an order published under subsection (2).

(4) In relation to a company the whole or a portion of the share capital of which consists of stock, a reference in this Division to a number of shares expressed as a percentage shall, in relation to an amount of stock, be construed as a reference to the amount of stock that represents that number of shares.

(5) A reference in the definition of "voting share" in subsection 5 (1) to a body corporate includes a reference to a body referred to in paragraph (2) (c) of this section.

(6) In determining, for the purposes of a provision of this Division, whether or not a person's contravention of such a provision was due to the person's inadvertence or mistake or to the person not being aware of a relevant fact or occurrence, a person's ignorance of, or a mistake on the person's part concerning, a matter of law shall be disregarded.

COMPANIES ACT 1981 - SECT 135
Persons obliged to comply with Division

SECT

135. (1) The obligation to comply with this Division extends to all natural persons, whether resident in the Territory or in Australia or not and whether Australian citizens or not, and to all bodies corporate or unincorporate, whether incorporated or carrying on business in the Territory or in Australia or not.

(2) This Division extends to acts done or omitted to be done outside the Territory, whether in Australia or not.

COMPANIES ACT 1981 - SECT 136
Substantial shareholdings, substantial shareholders, notifiable
changes etc.

SECT

136. (1) For the purposes of this Division, a person has a substantial shareholding in a company if:
(a) in the case of a company the voting shares in which are not divided into classes of shares - he is entitled to not less than the prescribed percentage of those shares; or
(b) in the case of a company the voting shares in which are divided into 2 or more classes of shares - he is entitled to not less than the prescribed percentage of the shares in one of those classes.

(2) For the purposes of this Division, the voting shares in a company to which a person (in this subsection referred to as the "relevant person"), being the company or any other person, is entitled include:
(a) voting shares in which the relevant person has a relevant interest; and
(b) except in the case where the relevant person is a nominee corporation in respect of which a certificate by the Commission is in force under subsection (6) or under a provision of a law of a participating State or of a participating Territory that corresponds with that subsection - voting shares in which an associate of the relevant person has a relevant interest;
but do not include voting shares in which an associate of the relevant person has a relevant interest and in respect of which that associate has obtained a certificate from the Commission under subsection (7).

(3) A reference in this Division to an associate of a person shall be construed as a reference to:
(a) if the person is a corporation:
(i) a director or secretary of the corporation;
(ii) a corporation that is related to that person; or
(iii) a director or secretary of such a related
corporation;
(b) where the matter to which the reference relates is shares in a company (including, in a case where the first-mentioned person is a company, the first-mentioned person) - a person (in this paragraph referred to as the "relevant associate"), being the company or any other person, with whom the first-mentioned 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 the relevant associate, or the
first-mentioned person, may exercise, may directly or indirectly control the exercise of, or may substantially influence the exercise of, any voting power attached to a share in the company;
(ii) with a view to controlling or influencing the
composition of the board of directors, or the conduct of affairs, of the company;
(iii) under which the relevant associate may acquire from
the first-mentioned person, or the first-mentioned person may acquire from the relevant associate, shares in the company; or
(iv) under which the relevant associate, or the
first-mentioned person, may be required to dispose of shares in the company in accordance with the directions of the first-mentioned person, or of the relevant associate, as the case may be;
(c) a person in concert with whom the first-mentioned person is acting, or proposes to act, in respect of the matter to which the reference relates;
(d) a person with whom the first-mentioned person is, by virtue of the regulations, to be regarded as associated in respect of the matter to which the reference relates;
(e) a person with whom the first-mentioned 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
(f) if the first-mentioned 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), (d) or (e) - that last-mentioned person.

(4) A person shall not be taken to be an associate of another person by virtue of paragraph (3) (b), (c), (d), (e) or (f) 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 subsection 8 (8) by reason of paragraph (b) of that subsection.

(5) For the purposes of paragraph (3) (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.

(6) The Commission may, in its discretion, issue to a nominee corporation a certificate declaring the nominee corporation to be an approved nominee corporation for the purposes of this section and may at any time, in its discretion, by notice in writing to the nominee corporation, revoke the certificate.

(7) The Commission may, in its discretion, issue to any person a certificate declaring that specified shares in which that person has a relevant interest are to be disregarded for the purposes of ascertaining the voting shares to which another person specified in the certificate is entitled, and may at any time, in its discretion, by notice in writing to the first-mentioned person, revoke the certificate.

(8) For the purposes of this Division, a person who has a substantial shareholding in a company is a substantial shareholder in that company.

(9) A reference in this section to the prescribed percentage is a reference to 10% or, where a lesser percentage is prescribed by regulations in force for the time being for the purposes of this section, a reference to that lesser percentage.

(10) For the purposes of this Division, a notifiable change in the entitlement of a person to shares in a company shall be taken to occur if, and only if, there occurs a change in the relevant interest or relevant interests of the person, or in the relevant interest or relevant interests of an associate of the person, in voting shares in the company.

(11) For the purposes of subsection (10), but without limiting the generality of that subsection, where a person acquires, or disposes of, voting shares in a company, a change in the relevant interest or relevant interests of the person in voting shares in the company shall be deemed to occur.

(12) For the purposes of this Division:
(a) a person who becomes required to give a notice under subsection 137 (1) shall be taken to have become, at the time when the person became a substantial shareholder in the company, required to give a substantial shareholding notice to the company;
(b) a person who becomes required to give a notice under subsection 138 (1) of this Act as in force after the commencement of Part III of the Companies and Securities Legislation Amendment Act 1986 shall be taken to have become, immediately after the change referred to in paragraph 138 (1) (a) of this Act as so in force, required to give a substantial shareholding notice to the company; and
(c) a person who became required to give a notice under subsection 138 (1) of this Act as in force at any time before the commencement of that Part shall be taken to have become, immediately after the change first referred to in that subsection as so in force, required to give a substantial shareholding notice to the company.

COMPANIES ACT 1981 - SECT 137
Substantial shareholder to notify company of his interests

SECT

137. (1) A person who is a substantial shareholder in a company shall give to the company a notice in the prescribed form that:
(a) states:
(i) his name and address;
(ii) the prescribed particulars of the voting shares in the
company in which the person or an associate of the person has a relevant interest or relevant interests (including, unless the interest or interests cannot be related to a particular share or shares, the name of the person who is registered as the holder);
(iii) the prescribed particulars of each such interest; and
(iv) the prescribed particulars of any contract, scheme or
arrangement, or any other circumstances, by reason of which the person or the associate acquired that interest or has that interest; and
(b) is accompanied by the prescribed documents.

(2) A person required to give a notice under subsection (1) shall give the notice within 2 business days after that person becomes aware of the relevant interest or interests by virtue of which he is a substantial shareholder.

(3) The notice shall be so given notwithstanding that the person has ceased to be a substantial shareholder before the expiration of the period referred to in subsection (2).

COMPANIES ACT 1981 - SECT 138
Substantial shareholder to notify company of changes in interests

SECT

138. (1) Where:
(a) there occurs at a particular time a notifiable change in the entitlement of a person to shares in a company;
(b) immediately before the change, the person was a substantial shareholder in the company; and
(c) immediately after the change, the person is a substantial shareholder in the company and is entitled to a percentage of the shares included in a class of voting shares in the company, being a percentage that is greater than, or less than, by 1% of the shares included in that class, the percentage of the shares included in that class to which the person was entitled at the time (in this subsection referred to as the "relevant time") when the person last became required to give a substantial shareholding notice to the company;
the person shall give to the company a notice in the prescribed form that:
(d) sets out the person's name;
(e) sets out, in relation to each notifiable change in the entitlement of the person to shares in the company (not being a prescribed change) that occurred during the period commencing at the relevant time and ending immediately after the time referred to in paragraph (a):
(i) whether the change was a change in a relevant interest
or relevant interests of an associate of the person and, if so, the name of the associate;
(ii) the date of the change and the prescribed particulars
of the change; and
(iii) the prescribed particulars of any contract, scheme or
arrangement, or any other circumstances, by reason of which the change occurred; and
(f) is accompanied by the prescribed documents.

(1A) For the purposes of subsection (1), where the voting shares in a company are not divided into 2 or more classes, those shares shall be deemed to constitute a class.

(2) A person required to give a notice under subsection (1) shall give the notice within 2 business days after that person becomes aware of the change referred to in paragraph (1) (a).

COMPANIES ACT 1981 - SECT 139
Person who ceases to be a substantial shareholder to notify company

SECT

139. (1) A person who ceases at a particular time (in this subsection referred to as the "relevant time") to be a substantial shareholder in a company shall give to the company a notice in the prescribed form that:
(a) sets out the person's name;
(b) sets out, in relation to each notifiable change in the entitlement of the person to shares in the company (not being a prescribed change) that occurred during the period commencing at the time when the person last became required to give a substantial shareholding notice to the company and ending at the relevant time:
(i) whether the change was a change in a relevant interest
or relevant interests of an associate of the person and, if so, the name of the associate;
(ii) the date of the change and the prescribed particulars
of the change; and
(iii) the prescribed particulars of any contract, scheme or
arrangement, or any other circumstances, by reason of which the change occurred;
(c) sets out the date on which the person ceased to be a substantial shareholder in the company and the prescribed particulars of any contract, scheme or arrangement, or any other circumstances, by reason of which the person ceased to be a substantial shareholder in the company; and
(d) is accompanied by the prescribed documents.

(2) A person required to give a notice under subsection (1) shall give the notice within 2 business days after the person becomes aware that the person or an associate has ceased to have a relevant interest or relevant interests in a share or shares in the company to the extent necessary to make the person a substantial shareholder in the company.

COMPANIES ACT 1981 - SECT 140
References to operation of section 8

SECT

140. The circumstances required to be stated in a notice under section 137, 138 or 139 include circumstances by reason of which, having regard to the provisions of section 8:
(a) a person has a relevant interest in voting shares;
(b) a change has occurred in a relevant interest in voting shares; or
(c) a person has ceased to be a substantial shareholder in a company;
respectively.

COMPANIES ACT 1981 - SECT 141
Copy of notice to be served on securities exchanges

SECT

141. (1) A person who gives a notice under section 137, 138 or 139 to a company that has been admitted to the official list of a securities exchange in Australia and has not been removed from that official list shall, on the day on which the person gives the notice, serve a copy of the notice on:
(a) if the company has been admitted to the official list of the Exchange and has not been removed from that official list - the home stock exchange of the company; and
(b) if the company has been admitted to the official list of a securities exchange (not being the Exchange) in Australia and has not been removed from that official list - each such securities exchange to whose official list the company has been admitted and from whose official list the company has not been removed.

(2) In subsection (1), "home stock exchange", in relation to a company, means the stock exchange designated to the company as its Home Exchange by the Exchange.

COMPANIES ACT 1981 - SECT 142
Commission may extend period for giving notice under this Division

SECT

142. (1) The Commission may, on the application of a person who is required to give a notice under this Division, in its discretion, extend, or further extend, the period for giving the notice.

(2) An application for an extension under subsection (1) may be made, and the power of the Commission under that subsection may be exercised, notwithstanding that the period referred to in that subsection has expired.

COMPANIES ACT 1981 - SECT 143
Company to keep register of substantial shareholders

SECT

143. (1) A company shall keep a register in which it shall forthwith enter:
(a) in alphabetical order the names of persons from whom it has received notices under section 137; and
(b) against each name so entered, the information given in the notice and, where it receives a notice under section 138 or 139, the information given in that notice.

(2) The register shall be open for inspection:
(a) by any member of the company - without charge; and
(b) by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

(3) A person may request a company to furnish him with a copy of the register or any part of the register and, where such a request is made, the company shall send the copy to that person:
(a) if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Commission approves; or
(b) in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Commission approves.

(4) If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

(5) A company is not, by reason of anything done under this Division:
(a) to be taken for any purpose to have notice of; or
(b) put upon inquiry as to;
a right of a person to or in relation to a share in the company.

COMPANIES ACT 1981 - SECT 144
Offences against certain sections

SECT

144. A person who fails to comply with section 137, 138 or 139 is guilty of an offence.
Penalty: $1,000 or imprisonment for 3 months, or both.

COMPANIES ACT 1981 - SECT 144A
Civil remedy where failure or default under Division

SECT

144A. (1) A person who fails to comply with section 137, 138 or 139 is liable to pay, to any person who suffers loss or damage as a result of the failure, damages in respect of that loss or damage, unless it is proved that the failure was due to the inadvertence or mistake of the first-mentioned person or to his not being aware of a relevant fact or occurrence.

(2) If default is made in complying with section 143 and an officer or officers of the company is or are in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the default:
(a) the company; and
(b) that officer or each of those officers, as the case may be;
are jointly and severally liable to pay, to any person who suffers loss or damage as a result of the default, damages in respect of that loss or damage.

COMPANIES ACT 1981 - SECT 145
Knowledge of employee or agent imputed to employer or principal

SECT

145. In any proceedings under section 144 or 146, a person shall, in the absence of proof to the contrary, be presumed to have been aware at a particular time of a fact or occurrence of which an employee or agent of the person having duties or acting in relation to a relevant interest or relevant interests of his employer or principal in a share or shares in the company concerned was aware at the time.

COMPANIES ACT 1981 - SECT 146
Powers of Court with respect to defaulting substantial shareholder

SECT

146. (1) Where a person (in this section referred to as the "substantial shareholder") is, or at any time after the commencement of this Act has been, a substantial shareholder in a company and has failed to comply with section 137, 138 or 139, the Court may, on the application of the Commission or of the company, whether or not that failure still continues, make such order or orders as it thinks fit, including, but without limiting the generality of the foregoing, one or more of the following orders:
(a) an order restraining the substantial shareholder, or a person who is an associate of the substantial shareholder, from disposing of, or of any interest in, shares in the company, being shares to which the substantial shareholder is entitled;
(b) an order restraining a person who is, or is entitled to be registered as, the holder of shares in the company to which the substantial shareholder is or has been entitled from disposing of, or of any interest in, those shares;
(c) an order restraining the exercise of any voting or other rights attached to any shares in the company to which the substantial shareholder is or has been entitled;
(d) an order directing the company not to make payment, or to defer making payment, of any sum or sums due from the company in respect of any shares to which the substantial shareholder is or has been entitled;
(e) an order directing the disposal of, or of any interest in, shares in the company to which the substantial shareholder is or has been entitled;
(ea) an order vesting in the Commission shares in the company to which the substantial shareholder is or has been entitled, or any interest in such shares;
(f) an order directing the company not to register the transfer or transmission of specified shares;
(g) an order that any exercise of the voting or other rights attached to specified shares in the company to which the substantial shareholder is or has been entitled be disregarded;
(ga) an order cancelling a contract, arrangement or offer relating to specified shares in the company to which the substantial shareholder is or has been entitled;
(gb) an order declaring a contract, arrangement or offer relating to specified shares in the company to which the substantial shareholder is or has been entitled to be voidable;
(h) for the purposes of securing compliance with any other order made under this section, an order directing the company or any other person to do or refrain from doing a specified act.

(1A) Where an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

(1B) Where the Commission makes an application to the Court for the making of an order under subsection (1), the Court shall not require the Commission or any other person, as a condition of granting an interim order under subsection (1A), to give any undertakings as to damages.

(2) Where, at the hearing of an application under this section, it is proved to the satisfaction of the Court that:
(a) a person is entitled to shares in a company by reason that another person who is, by virtue of subsection 136 (3), an associate of the first-mentioned person has a relevant interest in those shares; and
(b) that other person became entitled to that relevant interest within the period of 6 months immediately preceding the filing of the application with the Court;
then, in determining for the purposes of the application whether the first-mentioned person failed to comply with section 137, 138 or 139, the proof to the satisfaction of the Court of the matters mentioned in paragraphs (a) and (b) of this subsection constitutes prima facie evidence that the other person was, for the purposes of subsection 136 (3), an associate of the first-mentioned person from the time when that other person became entitled to that relevant interest until the date of the hearing.

(3) Any order under this section may include such ancillary or consequential provisions as the Court thinks just.

(4) Without limiting the nature of the orders that may be made by the Court under subsection (1) directing the disposal of, or of an interest in, a share in a company, such an order may include one or more of the following provisions:
(a) a provision that the disposal shall be made within such time and subject to such conditions (if any) as the Court thinks fit, including, if the Court thinks fit, a condition that the disposal shall not be made to a person who is, or, as a result of the disposal, would become, a substantial shareholder in the company;
(b) a provision that a person specified in the order is liable to pay to the company an amount equal to the amount of any profit made by the person as a result of, or in connection with, the disposal of the shares;
(c) a provision that a person specified in the order shall, for all purposes connected with the disposal of the shares, be deemed to hold the shares as a trustee for the beneficial owner of the shares.

(5) The Court may direct that, where a share or an interest in a share is not disposed of in accordance with an order of the Court under subsection (1), the share or interest shall vest in the Commission.

(6) The Court shall not make an order under subsection (1) if it is satisfied that the order would unfairly prejudice any person.

(7) The Court shall not make an order under this section, other than an order referred to in paragraph (1) (c) or (g), if it is satisfied:
(a) that the failure of the substantial shareholder to comply as mentioned in subsection (1) was due to his inadvertence or mistake or to his not being aware of a relevant fact or occurrence; and
(b) that, in all the circumstances, the failure ought to be excused.

(8) The Court may, before making an order under subsection (1), direct that notice of the application be given to such persons as it thinks fit or direct that notice of the application be published in such manner as it thinks fit, or both.

(9) The Court may rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

(10) A person who contravenes or fails to comply with an order under this section that is applicable to him is guilty of an offence.
Penalty: $1,000 or imprisonment for 3 months, or both.

(11) Where an offence under subsection (10) is committed by a corporation, each officer of the corporation who is in default is guilty of an offence.
Penalty: $1,000 or imprisonment for 3 months, or both.

(12) Where a share or an interest in a share vests in the Commission by virtue of an order under subsection (1) or of a direction under subsection (5):
(a) the Commission may, subject to any directions of the Court, get in, sell or otherwise dispose of, or deal with, the share or interest as it sees fit;
(b) the provisions of section 462 (other than subsection 462 (1)) apply in relation to the share or interest as if:
(i) a reference in those provisions to the power of the
Commission under subsection 462 (1), or to the power conferred upon the Commission by subsection 462 (1), were a reference to the power conferred on the Commission by paragraph (a) of this subsection;
(ii) a reference in those provisions to property, or to an
estate or interest in property, were a reference to the share or interest; and
(iii) the reference in subsection 462 (4) to any power
conferred on the Commission by Subdivision F of Division 4 of Part XII included a reference to the power conferred on the Commission by paragraph (a) of this subsection; and
(c) sections 463 and 464 apply in relation to the share or interest in like manner as they apply in relation to property vested in the Commission by Subdivision F of Division 4 of Part XII.

COMPANIES ACT 1981 - DIVISION 5
Division 5 - Debentures

COMPANIES ACT 1981 - SECT 147
Register of debenture holders and copies of trust deed

SECT

147. (1) A company that issues debentures shall keep a register of holders of debentures.

(2) A foreign company formed outside Australia and the external Territories that is registered as a foreign company under Division 5 of Part XIII shall, if it issues debentures, keep a register of holders of debentures, being:
(a) debentures issued pursuant to an application in which an address in Australia or an external Territory was specified as the address of the applicant for debentures; or
(b) debentures issued pursuant to an application made on a form of application attached to a prospectus a copy of which was registered under this Act.

(3) A registered foreign company (other than a registered foreign company to which subsection (2) applies) shall, if it issues debentures, keep a register of holders of debentures, being:
(a) debentures issued in the Territory; or
(b) debentures issued pursuant to an application in which an address in the Territory was specified as the address of the applicant for debentures.

(4) A register kept pursuant to this section shall:
(a) contain particulars of the names and addresses of debenture holders and the respective amounts of debentures held by them; and
(b) except when duly closed, be open for inspection at the place where it is kept in accordance with section 547:
(i) by the registered holder of any debentures of, or by
any holder of shares in, the company or foreign company - without charge; and
(ii) by any other person - on payment for each inspection
of such amount, not exceeding the prescribed amount, as the company or foreign company requires or, where the company or foreign company does not require the payment of an amount, without charge.

(5) For the purposes of this section, a register shall be deemed to be duly closed if closed in accordance with provisions contained in the articles, in the debentures or debenture stock certificates, or in the trust deed or other document relating to or securing the debentures, during such periods (not exceeding in the aggregate 30 days in any calendar year) as are specified in those provisions.

(6) A registered holder of debentures of, or a holder of shares in, a company or a registered foreign company may request the company or foreign company to furnish him with a copy of its register of the holders of debentures kept pursuant to this section or any part of that register.

(7) A registered holder of debentures of a company or of a registered foreign company may request the company or foreign company to furnish him with a copy of any trust deed relating to or securing the issue of those debentures.

(8) Where a company or registered foreign company receives a request under subsection (6) or (7), the company shall send the copy that was requested to the person who made the request:
(a) if the company or registered foreign company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or registered foreign company or within such longer period as the Commission approves; or
(b) in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Commission approves.

(9) The Commission may at any time by notice in writing require a company or a registered foreign company to furnish the Commission with a copy of any trust deed relating to or securing the issue of debentures of the company or foreign company and, where a company or foreign company receives a notice under this subsection, the company or foreign company shall furnish the copy within 21 days after the day on which it receives the notice.

(10) If default is made in complying with this section, the company or registered foreign company and any officer of the company or foreign company, as the case may be, who is in default are each guilty of an offence.

(11) In this section, "debenture" means a debenture, debenture stock, bonds, notes and any other security given by a corporation, whether constituting a charge on property of the corporation or not, but does not include:
(a) a cheque, order for the payment of money or bill of exchange; or
(b) a promissory note having a face value of not less than $50,000.

COMPANIES ACT 1981 - SECT 148
Branch registers

SECT

148. (1) A company, or a registered foreign company to which subsection 147 (2) applies (in this section referred to as a "relevant foreign company"), may cause to be kept in any place outside the Territory a branch register of holders of debentures.

(2) Where a person who is a holder of debentures issued by a company or by a relevant foreign company and is resident in a participating State or participating Territory requests the company or relevant foreign company, as the case may be, in writing to register in a branch register of the company or relevant foreign company in that State or Territory debentures held by that person:
(a) if the company or relevant foreign company keeps a branch register of holders of debentures in that State or Territory - the company or relevant foreign company shall register in that branch register the debentures issued by the company or relevant foreign company that are held by that person; or
(b) if the company or relevant foreign company:
(i) does not keep a branch register of holders of
debentures in that State or Territory; and
(ii) is carrying on business in that State or Territory;
the company or relevant foreign company shall, within one month after receipt by it of the application, cause a branch register of holders of debentures to be kept in that State or Territory and shall register in that branch register the debentures issued by the company or relevant foreign company that are held by that person.

(3) A branch register kept by a company or a relevant foreign company shall be deemed to be part of the register of holders of debentures kept by that company or relevant foreign company, as the case may be.

(4) A branch register shall be kept in the same manner as that in which the principal register is by this Act required to be kept.

(5) A company or relevant foreign company shall transmit to the place at which its principal register is kept a copy of every entry in its branch register within 28 days after the entry is made, and shall cause to be kept at that place, duly entered up from time to time, a duplicate of its branch register, and the duplicate branch register shall, for the purposes of this Act, be deemed to be part of the principal register.

(6) Subject to the provisions of this section with respect to the duplicate branch register, the debentures registered in a branch register shall be distinguished from the debentures registered in the principal register, and no transaction with respect to any debentures registered in a branch register shall, during the continuance of that registration, be registered in any other register.

(7) Subject to subsection (8), a company or a relevant foreign company may discontinue a branch register and thereupon the company or relevant foreign company shall transfer all entries in that register to some other branch register kept by the company or relevant foreign company in the same State or Territory or, if there is no other branch register kept by the company or relevant foreign company in that State or Territory, to the principal register.

(8) Where a company or relevant foreign company keeps in a participating State or participating Territory a branch register in which are registered debentures held by a person or persons resident in that State or Territory, the company or relevant foreign company is not entitled to discontinue that branch register unless:
(a) the company or relevant foreign company keeps another branch register in that State or Territory to which the entries in the first-mentioned branch register will be transferred;
(b) the person or persons resident in that State or Territory whose debentures are registered in the first-mentioned branch register consents or consent in writing to the discontinuance of that branch register; or
(c) the company or relevant foreign company ceases to carry on business in that State or Territory.

(9) A branch register is prima facie evidence of any matters that are by this section directed or authorized to be inserted in that register.

(10) If default is made in complying with this section, the company or relevant foreign company, any officer of the company or relevant foreign company who is in default, and any person who has arranged with the company or relevant foreign company to make up a branch register on behalf of the company or relevant foreign company and is in default, are each guilty of an offence.

(11) In this section:
"branch register", in relation to a company or relevant foreign company, means a branch register of holders of debentures issued by the company or relevant foreign company that is kept pursuant to this section;
"debenture" means a debenture, debenture stock, bonds, notes and any other security given by a corporation, whether constituting a charge on property of the corporation or not, but does not include:
(a) a cheque, order for the payment of money or bill of exchange; or
(b) a promissory note having a face value of not less than $50,000;
"principal register", in relation to a company or relevant foreign company, means the register of holders of debentures issued by the company or relevant foreign company that is kept pursuant to section 147.

COMPANIES ACT 1981 - SECT 149
Specific performance of contracts

SECT

149. A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.

COMPANIES ACT 1981 - SECT 150
Perpetual debentures

SECT

150. A condition contained in any debenture or in any deed for securing any debentures, whether the debenture or deed is issued or made before or after the commencement of this Act, is not invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency however remote or on the expiration of a period however long, any rule of law or equity to the contrary notwithstanding.

COMPANIES ACT 1981 - SECT 151
Re-issue of redeemed debentures

SECT

151. (1) Where a company has redeemed any debentures, whether before or after the commencement of this Act:
(a) unless any provision to the contrary, whether express or implied, is contained in the articles or in any contract entered into by the company; or
(b) unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled;
the company has, and shall be deemed always to have had, power to re-issue the debentures, either by re-issuing the same debentures or by issuing other debentures in their place, but the re-issue of a debenture or the issue of one debenture in place of another under this subsection, whether re-issue or issue was made before or after the commencement of this Act, shall not be regarded as the issue of a new debenture for the purpose of any provision limiting the amount or number of debentures that may be issued by the company.

(2) After the re-issue of any debentures the person entitled to the debentures has, and shall be deemed always to have had, the same priorities as if the debentures had never been redeemed.

(3) Where a company has, either before or after the commencement of this Act, deposited any of its debentures to secure advances on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit while the debentures remain so deposited.

COMPANIES ACT 1981 - SECT 152
Qualifications of trustee for debenture holders

SECT

152. (1) Subject to this section, a corporation that:
(a) in the Territory, invites the public to subscribe for or purchase debentures or offers debentures to the public for subscription or purchase; or
(b) offers debentures as consideration for the acquisition, pursuant to a take-over scheme within the meaning of the Companies (Acquisition of Shares) Act 1980, of shares in a company;
shall make provision in a trust deed relating to those debentures for the appointment as a trustee for the holders of those debentures of a corporation (in this section referred to as a "trustee corporation"), being:
(c) a person constituted as the Public Trustee in any State or Territory;
(d) a corporation authorized by a law of a State or Territory to take in its own name a grant of probate of the will, or of letters of administration of the estate, of a deceased person;
(e) a corporation registered under the Life Insurance Act 1945;
(f) a banking corporation;
(g) a corporation (in this paragraph referred to as the "subsidiary") the whole of the issued shares of which are held beneficially by a corporation or corporations of a kind referred to in paragraph (d), (e) or (f) (in this paragraph referred to as the "holding company") if:
(i) the holding company is liable for all liabilities
incurred or to be incurred by the subsidiary as trustee for the holders of the debentures; or
(ii) the holding company has subscribed for and
beneficially holds shares in the subsidiary, being shares in respect of which there is a liability of not less than $500,000 that has not been called up and that, by reason of a special resolution of the members of the subsidiary, is not capable of being called up except in the event, and for the purposes, of the winding up of the subsidiary; or
(h) a corporation approved by the Commission for the purposes of this subsection.

(2) The approval of a corporation by the Commission pursuant to paragraph (1) (h) shall be given by notice published in the Gazette and:
(a) may be given generally or in relation to a particular borrowing corporation, a particular class of borrowing corporations or a particular trust deed;
(b) may be given subject to such terms and conditions (if any) as the Commission thinks fit and as are specified in the notice; and
(c) may be varied or revoked by the Commission by notice published in the Gazette.

(3) Where the approval of a corporation has been revoked under subsection (2), the borrowing corporation shall appoint a trustee corporation qualified pursuant to this section in place of the trustee corporation that by reason of the revocation has ceased to be qualified.

(4) Where a borrowing corporation is required by subsection (1) to make provision in a trust deed for the appointment of a trustee corporation as trustee for the holders of debentures, the borrowing corporation shall not issue any of those debentures until the trustee corporation has consented to act as trustee and the appointment has been made.

(5) Except by leave of the Court, a trustee corporation shall not be appointed, hold office or act as trustee for the holders of debentures of a borrowing corporation if that trustee corporation is:
(a) a director of the borrowing corporation;
(b) a shareholder that beneficially holds shares in the borrowing corporation;
(c) beneficially entitled to moneys owed by the borrowing corporation to it;
(d) indebted (otherwise than in its capacity as a trustee) in an amount exceeding $5,000 to the borrowing corporation;
(e) a corporation that has entered into a guarantee in respect of the principal debt secured by those debentures or in respect of interest on that debt; or
(f) a corporation that is related to:
(i) a corporation of a kind referred to in any of the
preceding paragraphs; or
(ii) the borrowing corporation.

(6) Subsection (5) does not prevent a trustee corporation from being appointed, holding office or acting as trustee for the holders of debentures of a borrowing corporation by reason only that:
(a) the borrowing corporation owes to the trustee corporation or to a corporation that is related to the trustee corporation:
(i) moneys that (not taking into account any moneys
referred to in subparagraphs (ii) and (iii)) do not:
(A) at the time of the appointment or at any time within
a period of 3 months after the debentures are first offered to the public - exceed 10% of the amount of the debentures in respect of which invitations or offers to the public are proposed to be issued or made within that period; and
(B) at any time after the expiration of that period -
exceed 10% of the amount owed by the borrowing corporation to the holders of the debentures;
(ii) moneys that are secured by, and only by:
(A) a first mortgage over land of the borrowing
corporation;
(B) debentures issued by the borrowing corporation to the
public;
(C) debentures not issued to the public that are issued
pursuant to the same trust deed as that creating other debentures issued at any time by the borrowing corporation to the public; or
(D) debentures to which the trustee corporation, or a
corporation that is related to the trustee corporation, is not beneficially entitled; or
(iii) moneys to which the trustee corporation, or a
corporation that is related to the trustee corporation, is entitled as trustee for holders of any debentures of the borrowing corporation in accordance with the terms of the debentures or of the relevant trust deed; or
(b) the trustee corporation, or a corporation that is related to the trustee corporation, is a shareholder of the borrowing corporation in respect of shares that it beneficially holds, if the voting shares in the borrowing corporation beneficially held by the trustee corporation, and by all other corporations that are related to it, do not exceed 10% of the voting shares in the borrowing corporation.

(7) Nothing in subsection (5):
(a) affects the operation of any debentures or trust deed issued or executed before 1 September 1966; or
(b) applies to or in relation to the trustee for the holders of any such debentures;
unless, pursuant to any such debentures or trust deed, a further offer of debentures was or is made to the public on or after that date.

(8) The reference in subsection (1) to a corporation that offers debentures as consideration for the acquisition of shares in a company includes a reference to a corporation that offers a cash sum as consideration for the acquisition of shares where it is to be a term of the contract for the acquisition of those shares that the offeree make, or that the sum be applied in whole or in part in making, a payment by way of deposit with, or loan to, the corporation.

(9) If default is made in complying with any provision of this section, the corporation and any officer of the corporation who is in default are each guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 153
Retirement of trustees

SECT

153. (1) Notwithstanding anything contained in any law in force in the Territory or in the relevant debentures or trust deed, a trustee for the holders of debentures does not cease to be the trustee until a corporation qualified pursuant to section 152 for appointment as trustee for the holders of the debentures has been appointed to be the trustee for the holders of the debentures and has taken office as such.

(2) Where provision has been made in the relevant trust deed for the appointment of a successor to a trustee for the holders of the debentures upon retirement or otherwise, the successor may, subject to section 152, be appointed in accordance with that provision.

(3) Where no provision has been made in the relevant trust deed for the appointment of a successor to a retiring trustee, the borrowing corporation may appoint a successor that is qualified for appointment pursuant to section 152.

(4) Notwithstanding anything in this Act or in any debentures or trust deed, a borrowing corporation may, with the consent of an existing trustee for the holders of the debentures, appoint as successor to the existing trustee any corporation that is qualified for appointment pursuant to section 152 and is related to the existing trustee.

(5) Where the trustee for the holders of debentures has ceased to exist or to be qualified under section 152, a trustee for the holders of debentures has not been appointed pursuant to subsection 152 (3) or the trustee for the holders of debentures fails or refuses to act or is disqualified under section 152, the Court may, on the application of the borrowing corporation, the trustee (if any) for the holders of the debentures, the holder of any of the debentures or the Commission, appoint a corporation qualified pursuant to section 152 to be the trustee for the holders of the debentures and, where appropriate, to be that trustee in place of the trustee that so ceased to exist or to be qualified, failed or refused to act as trustee or is disqualified.

(6) Where a successor is appointed to be a trustee in place of a trustee, the successor shall, within one month after the appointment, lodge with the Commission notice in the prescribed form of the appointment.

COMPANIES ACT 1981 - SECT 154
Contents of trust deed

SECT

154. (1) Where a corporation:
(a) in the Territory, invites the public to subscribe for or purchase debentures or offers debentures to the public for subscription or purchase; or
(b) offers debentures as consideration for the acquisition, pursuant to a take-over scheme within the meaning of the Companies (Acquisition of Shares) Act 1980, of shares in a company;
the relevant trust deed shall contain a limitation on the amount that the borrowing corporation may borrow pursuant to that deed or those debentures and shall contain covenants by the borrowing corporation or, if the trust deed does not expressly contain those covenants, the trust deed shall be deemed to contain covenants by the borrowing corporation, to the effect:
(c) that the borrowing corporation will use its best endeavours to carry on and conduct its business in a proper and efficient manner;
(d) that the borrowing corporation will:
(i) make available for inspection by the trustee for the
holders of the debentures or any registered company auditor appointed by that trustee the whole of the accounting or other records of the borrowing corporation; and
(ii) give to it or him such information as it or he
requires with respect to all matters relating to the accounting or other records of the borrowing corporation; and
(e) that the borrowing corporation will, on the delivery to its registered office of an application by persons holding not less than 10% in nominal value of the issued debentures to which the covenant relates, by giving notice to each of the holders of the debentures to which the covenant relates (other than debentures payable to bearer) at his address as specified in the register of the holders of debentures, convene a meeting of the holders of those debentures to consider the accounts and balance-sheet that were laid before the last preceding annual general meeting of the borrowing corporation and to give to the trustee directions in relation to the exercise of the trustee's powers, being a meeting to be held at a time and place specified in the notice under the chairmanship of a person nominated by the trustee or, if the trustee does not nominate a person to be the chairman, under the chairmanship of such other person as is appointed for that purpose by the holders of those debentures present at the meeting.

(2) A trust deed to which subsection (1) applies that is executed after the commencement of this Act shall contain covenants by each corporation that is a guarantor corporation in relation to the borrowing corporation, or, if the trust deed does not expressly contain those covenants, the trust deed shall be deemed to contain covenants by each guarantor corporation, to the effect:
(a) that the guarantor corporation will use its best endeavours to carry on and conduct its business in a proper and efficient manner; and
(b) that the guarantor corporation will:
(i) make available for inspection by the trustee for the
holders of the debentures or any registered company auditor appointed by that trustee, the whole of the accounting or other records of the guarantor corporation; and
(ii) give to it or him such information as it or he
requires with respect to all matters relating to the accounting or other records of the guarantor corporation.

(3) For the purposes of subsection (2), each guarantor corporation shall be deemed to be a party to the trust deed.

(4) The reference in subsection (1) to a corporation that offers debentures as consideration for the acquisition of shares in a company includes a reference to a corporation that offers a cash sum as consideration for the acquisition of shares where it is to be a term of the contract for the acquisition of those shares that the offeree make, or that the sum be applied in whole or in part in making, a payment by way of deposit with, or loan to, the corporation.

(5) Where, on or after the date of commencement of this Act, any debenture (other than a debenture lawfully issued pursuant to a trust deed executed before 1 September 1966) is issued and the trust deed relating to the issue of the debenture does not expressly contain the limitation on the amount that the borrowing corporation may borrow and the covenants referred to in subsection (1), the corporation that issued the debenture and any officer of the corporation who is in default are each guilty of an offence.

(6) Where, on or after the date of commencement of this Act, any debenture (other than a debenture lawfully issued pursuant to a trust deed executed before that date) is issued and the trust deed relating to the issue of the debenture does not expressly contain the covenants referred to in subsection (2), the corporation that issued the debenture and any officer of the corporation who is in default are each guilty of an offence.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 155
Power of Court in relation to certain irredeemable debentures

SECT

155. (1) Notwithstanding anything in any debenture or trust deed, where, on the application of the trustee for the holders of debentures that are irredeemable or redeemable only on the happening of a contingency or, if there is no trustee, on the application of the holder of any such debentures, the Court is satisfied that:
(a) at the time of the issue of the debentures the property of the corporation that constituted or was intended to constitute the security for the debentures was sufficient or likely to become sufficient to discharge the principal debt and any interest on that debt;
(b) the security, if realized under the circumstances existing at the time of the application, would be likely to bring not more than 60% of the principal sum of moneys outstanding (regard being had to all prior charges and charges ranking pari passu, if any); and
(c) the property covered by the security, on a fair valuation on the basis of a going concern after allowing a reasonable amount for depreciation, is worth less than the principal sum and the borrowing corporation is not making sufficient profit to pay the interest due on the principal sum or (where no definite rate of interest is payable) interest on that sum at such rate as the Court considers would be a fair rate to expect from a similar investment;
the Court may order that the security for the debentures be enforceable forthwith or at such time as the Court directs.

(2) Subsection (1) does not affect any power to vary rights or accept any compromise or arrangement created by the terms of the debentures or the relevant trust deed or under a compromise or arrangement between the borrowing corporation and creditors.

COMPANIES ACT 1981 - SECT 156
Duties of trustees

SECT

156. (1) A trustee for the holders of debentures:
(a) shall exercise reasonable diligence to ascertain whether or not the property of the borrowing corporation and of each of its guarantor corporations that is or may be available, whether by way of security or otherwise, is sufficient, or is likely to be or become sufficient, to discharge the principal debt as and when it becomes due;
(b) shall satisfy itself that each prospectus relating to the debentures does not contain any matter that is inconsistent with the terms of the debentures or with the relevant trust deed;
(c) shall ensure that the borrowing corporation and each of its guarantor corporations comply with the provisions of Division 9 so far as they relate to the debentures and are applicable;
(d) shall exercise reasonable diligence to ascertain whether or not the borrowing corporation and each of its guarantor corporations have committed any breach of the covenants, terms and provisions of the debentures or the trust deed;
(e) except where it is satisfied that the breach will not materially prejudice the security (if any) for the debentures or the interests of the holders of the debentures - shall take all steps and do all such things as it is empowered to do to cause the borrowing corporation and any of its guarantor corporations to remedy any breach of those covenants, terms and provisions;
(f) where the borrowing corporation or any of its guarantor corporations fails, when so required by the trustee, to remedy a breach of the covenants, terms and provisions of the debentures or the trust deed - may place the matter of the failure to remedy the breach before a meeting of holders of the debentures, submit such proposals for the protection of their investment as the trustee considers necessary or appropriate and obtain the directions of the holders in relation to the matter; and
(g) where the borrowing corporation submits to those holders a compromise or arrangement - shall give to them a statement explaining the effect of the compromise or arrangement and, if it thinks fit, recommend to them an appropriate course of action to be taken by them in relation to the compromise or arrangement.

(2) Where, after due inquiry, the trustee for the holders of the debentures at any time is of the opinion that the property of the borrowing corporation and of any of its guarantor corporations that is or should be available, whether by way of security or otherwise, is insufficient, or likely to become insufficient, to discharge the principal debt as and when it becomes due, the trustee may apply to the Commission for an order under this subsection and the Commission may, on such an application, after giving the borrowing corporation an opportunity of making representations in relation to the application, by order in writing served on the corporation at its registered office in the Territory, impose such restrictions on the activities of the corporation, including restrictions on advertising for deposits or loans and on borrowing by the corporation, as the Commission thinks necessary for the protection of the interests of the holders of the debentures or the Commission may, and, if the borrowing corporation so requires, shall, direct the trustee to apply to the Court for an order under subsection (4) and the trustee shall apply accordingly.

(3) Where:
(a) after due inquiry, the trustee at any time is of the opinion that the property of the borrowing corporation and of any of its guarantor corporations that is or should be available, whether by way of security or otherwise, is insufficient or likely to become insufficient, to discharge the principal debt as and when it becomes due; or
(b) the corporation has contravened or failed to comply with an order made by the Commission under subsection (2);
the trustee may, and where the borrowing corporation has requested the trustee to do so, the trustee shall, apply to the Court for an order under subsection (4).

(4) Where an application is made to the Court under subsection (2) or (3), the Court may, after giving the borrowing corporation an opportunity of being heard, by order, do all or any of the following things, namely:
(a) direct the trustee to convene a meeting of the holders of the debentures for the purpose of placing before them such information relating to their interests and such proposals for the protection of their interests as the trustee considers necessary or appropriate and of obtaining their directions in relation to the protection of their interests and give such directions in relation to the conduct of the meeting as the Court thinks fit;
(b) stay all or any actions or other civil proceedings before any court by or against the borrowing corporation;
(c) restrain the payment of any moneys by the borrowing corporation to the holders of debentures of the corporation or to any class of such holders;
(d) appoint a receiver of such of the property as constitutes the security (if any) for the debentures;
(e) give such further directions from time to time as may be necessary to protect the interests of the holders of the debentures, the members of the borrowing corporation or any of its guarantor corporations or the public;
but in making any such order the Court shall have regard to the rights of all creditors of the borrowing corporation.

(5) The Court may vary or rescind any order made under subsection (4) as the Court thinks fit.

(6) In making an application to the Commission or to the Court, a trustee shall have regard to the nature and kind of the security given when the debentures were offered to the public and, if no security was given, shall have regard to the position of the holders of the debentures as unsecured creditors of the borrowing corporation.

COMPANIES ACT 1981 - SECT 157
Powers of trustee to apply to the Court for directions etc.

SECT

157. (1) The trustee for the holders of debentures may apply to the Court:
(a) for directions in relation to any matter arising in connection with the performance of the functions of the trustee; or
(b) to determine any question in relation to the interests of the holders of debentures;
and the Court may:
(c) give such directions to the trustee as the Court deems fit; and
(d) if satisfied that the determination of the question will be just and beneficial - accede wholly or partially to the application on such terms and conditions as the Court thinks fit or make such other order on the application as the Court thinks just.

(2) The Court may, on an application under this section, order a meeting of all or any of the holders of debentures to be convened to consider any matters in which they are concerned and to advise the trustee on those matters and may give such ancillary or consequential directions as the Court thinks fit.

(3) The meeting shall be held and conducted in such manner as the Court directs, under the chairmanship of a person nominated by the trustee or, if the trustee does not nominate a person to be the chairman, under the chairmanship of such other person as is appointed for that purpose by the holders of debentures present at the meeting.

COMPANIES ACT 1981 - SECT 158
Obligations of borrowing corporation

SECT

158. (1) Where there is a trustee for the holders of any debentures of a borrowing corporation, the trustee shall, by notice in writing to the borrowing corporation, specify for the purposes of this section a day, being not later than 6 months after the date of the relevant prospectus, and the directors of the borrowing corporation shall:
(a) at the end of a period not exceeding 3 months ending on the day so specified; and
(b) at the end of each succeeding period, being a period of 3 months or such shorter period as the trustee, in any special circumstances, allows;
prepare a report that relates to that period and complies with the requirements of subsection (2) and, within one month after the end of each such period, lodge the report relating to that period with the trustee and a copy of the report with the Commission.

(2) The report referred to in subsection (1) shall be signed by not less than 2 of the directors on behalf of all of them and shall set out in detail any matters adversely affecting the security or the interests of the holders of the debentures and, without affecting the generality of the foregoing, shall state:
(a) whether or not the limitations on the amount that the corporation may borrow have been exceeded and, if they have been exceeded, particulars of borrowings exceeding those limitations;
(b) whether or not the borrowing corporation and each of its guarantor corporations have observed and performed all the covenants and provisions binding upon them respectively by or pursuant to the debentures or any trust deed;
(c) whether or not any event has happened that has caused or could cause the debentures or any provision of the relevant trust deed to become enforceable and, if so, particulars of that event;
(d) whether or not any circumstances affecting the borrowing corporation, its subsidiaries or its guarantor corporations or any of them have occurred that materially affect any security or charge included in or created by the debentures or any trust deed and, if so, particulars of those circumstances;
(e) whether or not there has been any substantial change in the nature of the business of the borrowing corporation or any of its subsidiaries or any of its guarantor corporations since the debentures were first issued to the public that has not previously been reported upon as required by this section and, if so, particulars of that change; and
(f) where the borrowing corporation has deposited money with, lent money to, or assumed any liability of, a corporation that is related to the borrowing corporation, particulars, with respect to each corporation that is so related, of:
(i) the total amounts so deposited or lent and the extent
of any liability so assumed during the period covered by the report; and
(ii) the total amounts owing to the borrowing corporation
in respect of money so deposited or lent and the extent of any liability so assumed as at the end of the period covered by the report;
distinguishing between deposits, loans and assumptions of liability that are secured and those that are unsecured, but not including any deposit with, loan to, or liability assumed on behalf of, a corporation if that corporation has guaranteed the repayment of the debentures of the borrowing corporation and 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.

(3) Where, during the period to which a report referred to in subsection (1) relates:
(a) a corporation has become a guarantor corporation;
(b) a guarantor corporation has ceased to be liable for the payment of the whole or part of the moneys for which it was liable under the guarantee; or
(c) a guarantor corporation has changed its name;
the report shall so state and shall give particulars of the matters so stated.

(4) Where there is a trustee for the holders of any debentures issued by a borrowing corporation and the borrowing corporation or any of its guarantor corporations that has guaranteed the repayment of the moneys raised by the issue of those debentures creates any charge, the borrowing corporation or the guarantor corporation, as the case requires, shall, whether or not any demand for the particulars has been made:
(a) furnish in writing to the trustee, within 21 days after the creation of the charge, particulars of the charge; and
(b) if the total amount to be advanced on the security of the charge is indeterminate:
(i) furnish in writing to the trustee, within 7 days after
an advance is made, particulars of the amount of the advance; or
(ii) where the advances are merged in a current account
with bankers or trade creditors - furnish in writing to the trustee, at the end of every 3 months, particulars of the net amount outstanding in respect of the advances.

(5) The directors of a borrowing corporation that has issued debentures (other than debentures of a kind that could be lawfully described pursuant to section 97 as mortgage debentures or certificates of mortgage debenture stock) and of every relevant guarantor corporation that has guaranteed the repayment of the moneys raised by the issue of those debentures shall:
(a) at a date not later than 6 months, or, in the case of a particular corporation, not later than the expiration of such other period as is for the time being fixed by the Commission with the consent of the trustee for the debenture holders of that corporation (if any), after the expiration of each financial year of the corporation, cause to be made out and lodged with the Commission and with the trustee for the holders of the debentures a profit and loss account for that financial year and a balance-sheet as at the end of that financial year; and
(b) at a date not later than 10 months, or, in the case of a particular corporation, not later than the expiration of such other period as is for the time being fixed by the Commission with the consent of the trustee for the debenture holders of that corporation (if any), after the expiration of each financial year of the corporation, cause to be made out and lodged with the Commission and with the trustee for the holders of the debentures a profit and loss account for the period from the end of that financial year until the expiration of 6 months after the end of that financial year and a balance-sheet as at the end of the period to which the profit and loss account relates.

(6) The directors of a borrowing corporation that is a holding company shall:
(a) at a date not later than 6 months, or, in the case of a particular borrowing corporation, not later than the expiration of such other period as is for the time being fixed by the Commission with the consent of the trustee for the debenture holders of that corporation, after the expiration of each financial year of the corporation, cause to be made out and lodged with the Commission and with the trustee for the holders of the debentures (if any) a set of consolidated accounts for the borrowing corporation and each guarantor corporation that is a subsidiary of the borrowing corporation for that financial year; and
(b) at a date not later than 10 months, or, in the case of a particular borrowing corporation, not later than the expiration of such other period as is for the time being fixed by the Commission with the consent of the trustee for the debenture holders of that corporation, after the expiration of each financial year of the corporation, cause to be made out and lodged with the Commission and with the trustee for the holders of the debentures (if any) a set of consolidated accounts for the borrowing corporation and each guarantor corporation that is a subsidiary of that borrowing corporation for the period from the end of that financial year until the expiration of 6 months after the end of that financial year.

(7) A trustee for debenture holders of a corporation may give to the directors of a guarantor corporation that is a subsidiary of that borrowing corporation a notice requiring them to comply with subsection (5) and, where a notice is so given:
(a) the directors of the guarantor corporation shall comply with the requirements of subsection (5) in relation to the next financial year of that corporation that ends after the notice is so given and in relation to each subsequent financial year of that corporation; and
(b) where the notice is given within the period of 6 months after the end of a financial year of that guarantor corporation - the directors of the corporation shall comply with the requirements of paragraph (5) (b) in relation to the period commencing at the end of that financial year and ending at the expiration of that period of 6 months.

(8) A trustee for debenture holders shall, within 7 days after he gives a notice under subsection (7), lodge a copy of that notice with the Commission.

(9) Nothing in subsection (5), (6) or (7) applies to the directors of a prescribed corporation.

(10) In subsection (9), "prescribed corporation" means a corporation that is a pastoral company in respect of which an exemption granted under section 11 of the Banking Act 1959 is in force and is declared by the Commission by notice published in the Gazette to be a prescribed corporation for the purposes of this section.

(11) The Commission may, by notice published in the Gazette:
(a) specify terms and conditions subject to which subsection (9) has effect in relation to a prescribed corporation; or
(b) vary or revoke any declaration made under subsection (10) or any specification made under paragraph (a) of this subsection.

(12) Subsections (1), (4), (5), (6) and (7) do not apply in respect of a borrowing corporation or a guarantor corporation if:
(a) the borrowing corporation or the guarantor corporation, as the case may be, is being wound up; or
(b) a receiver, or a receiver and manager, of property of the borrowing corporation or the guarantor corporation, as the case may be, has been appointed and has not ceased to act under that appointment.

(13) The provisions of section 269 (other than subsection (6)), subsections 270 (1), (2) and (3), section 273, section 285 (other than subsection (8)) and section 288 are, with such adaptations as are necessary, applicable to every profit and loss account and balance-sheet made out and lodged pursuant to subsection (5) of this section by the directors of a borrowing corporation as if that profit and loss account and balance-sheet were a profit and loss account and balance-sheet referred to in those sections or subsections.

(14) Notwithstanding anything in the preceding provisions of this section, the directors of a borrowing corporation are not required to comply, in relation to profit and loss accounts and balance-sheets required to be made out and lodged under subsection (5), with subsection 269 (3) or 270 (2) or with section 285 (as it relates to group accounts) if the trustee for debenture holders consents in writing to the directors being exempt from those requirements.

(15) The provisions of sections 269 (other than subsection (6)), subsections 270 (1), (2) and (3), section 273, section 285 (other than subsection (8)) and section 288 are, with such adaptations as are necessary, applicable to every profit and loss account and balance-sheet made out and lodged pursuant to subsection (6) of this section by the directors of the borrowing corporation as if:
(a) that profit and loss account and balance-sheet were a profit and loss account and balance-sheet referred to in those sections or subsections; and
(b) references in those sections and subsections to group accounts were references to the consolidated accounts referred to in subsection (6) of this section.

(16) The provisions of section 269 (other than subsection (3)), subsections 270 (1) and (3), section 273, section 285 (other than the provisions of that section relating to group accounts) and section 288 are, with such adaptations as are necessary, applicable to every profit and loss account and balance-sheet made out and lodged pursuant to subsection (5) of this section by the directors of a relevant guarantor corporation as if that profit and loss account and balance-sheet were a profit and loss account and balance-sheet referred to in those sections or subsections.

(17) Notwithstanding the provisions of subsection (16), where a guarantor corporation, being a corporation that is incorporated in the United Kingdom or in a State or Territory in the United States of America has lodged with the Department of Trade or other appropriate Government Department in the United Kingdom or the Securities and Exchange Commission of the United States of America a profit and loss account and balance-sheet, for a period in respect of which the corporation is required to lodge a profit and loss account and balance-sheet pursuant to subsection (5) of this section, it is sufficient compliance with the requirements of that subsection if certified copies of the profit and loss account and balance-sheet so lodged with the Department of Trade or that other Department or the Securities and Exchange Commission are, with the consent of the trustee for the debenture holders, lodged with the Commission and the trustee for the debenture holders within the time prescribed by that subsection.

(18) Where the directors of a borrowing corporation do not lodge with the trustee for the holders of debentures a report as required by subsection (1) or where the directors of a borrowing corporation or the directors of a guarantor corporation do not lodge with the trustee the balance-sheets, profit and loss accounts and reports as required by subsections (5) to (16), inclusive, within the period, or at the date, specified in the subsection concerned, the trustee shall forthwith lodge notice of that fact with the Commission.

(19) Notwithstanding anything contained in subsections (13) to (16), inclusive, the audit of a profit and loss account and balance-sheet of a borrowing corporation or its guarantor corporation relating to a period of 6 months immediately following a financial year of the corporation required to be made out and lodged in accordance with subsection (5) or (6) may be dispensed with or may be of a limited nature or extent if the trustee for the holders of the debentures of the borrowing corporation has consented in writing to the audit being dispensed with or being of a limited nature or extent, as the case may be.

(20) Where the trustee has so consented to the audit of a profit and loss account and balance-sheet of a borrowing corporation or guarantor corporation being dispensed with or being of a limited nature or extent, the directors of the corporation shall lodge with the Commission a copy of the instrument of consent at the time when the profit and loss account and balance-sheet are so lodged.

(21) Where the trustee for debenture holders for a borrowing corporation has consented to the directors of the corporation being exempt from complying with the requirements relating to profit and loss accounts and balance-sheets referred to in subsection (14), the directors shall lodge with the Commission a copy of the instrument of consent at the time when the profit and loss account and balance-sheet are so lodged.

(22) Notwithstanding anything contained in this section, a profit and loss account and balance-sheet of a borrowing corporation or its guarantor corporation relating to a period of 6 months immediately following a financial year of the corporation required to be made out and lodged in accordance with subsection (5) may, unless the trustee for the holders of the debentures of the borrowing corporation otherwise requires in writing, be based upon the value of the trading stock of the borrowing corporation or the guarantor corporation, as the case may be, as:
(a) reasonably estimated by the directors of that corporation on the basis of the value of that trading stock as adopted for the purpose of the profit and loss account and balance-sheet of that corporation laid before the corporation at its last preceding annual general meeting; and
(b) certified in writing as such by those directors.

(23) In this section, "relevant guarantor corporation", in relation to a borrowing corporation, means:
(a) a guarantor corporation that is not a subsidiary of that borrowing corporation; and
(b) a guarantor corporation the directors of which have been given notice under subsection (7) by the trustee for debenture holders of the borrowing corporation of which the guarantor corporation is a subsidiary.

COMPANIES ACT 1981 - SECT 159
Obligation of guarantor corporation to furnish information

SECT

159. (1) For the purpose of the preparation of a report that is required by this Act to be signed by or on behalf of the directors of a borrowing corporation or any of them, that corporation may, by notice in writing, require any of its guarantor corporations to furnish it with any information relating to that guarantor corporation that is required by this Act to be contained in that report, and that guarantor corporation shall furnish the borrowing corporation with that information before such date, being a date not earlier than 14 days after the notice is given, as is specified for that purpose in the notice.

(2) If a corporation fails to comply with a requirement contained in a notice given pursuant to subsection (1), that corporation and any officer of that corporation who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 160
Loans and deposits to be immediately repayable on certain events

SECT

160. (1) Where, in a prospectus issued in connection with an invitation to the public to subscribe for or to purchase, or in connection with an offer to the public for subscription or purchase of, debentures of a corporation, there is a statement as to any particular purpose or project for which the moneys received by the corporation in response to the invitation or offer are to be applied, the corporation shall from time to time make reports to the trustee for the holders of those debentures as to the progress that has been made towards achieving that purpose or completing that project.

(2) Each such report shall be included in the report required to be furnished to the trustee for the holders of the debentures under subsection 158 (1).

(3) Where it appears to the trustee for the holders of the debentures that the purpose or project has not been achieved or completed within the time stated in the prospectus within which the purpose or project is to be achieved or completed or, where no such time was stated, within a reasonable time, the trustee may, and, if in his opinion it is necessary for the protection of the interests of the holders of the debentures, shall, give notice in writing to the corporation requiring it to repay the moneys so received by the corporation and the trustee shall, within one month after such a notice is given, lodge with the Commission a copy of the notice.

(4) The trustee shall not give a notice pursuant to subsection (3) if it is satisfied:
(a) that the purpose or project has been substantially achieved or completed;
(b) that the interests of the holders of debentures have not been materially prejudiced by the failure to achieve or complete the purpose or project within the time stated in the prospectus or within a reasonable time; or
(c) that the failure to achieve or complete the purpose or project was due to circumstances beyond the control of the corporation that could not reasonably have been foreseen by the corporation at the time when the prospectus was issued.

(5) Upon receipt by the corporation of a notice referred to in subsection (3), the corporation is liable to repay any money owing to a person (in this subsection referred to as the "relevant person") as the result of a loan or deposit made in response to the invitation or offer, and, on demand in writing by the relevant person, shall immediately repay the money to the relevant person unless:
(a) before the moneys received by the corporation in response to the invitation or offer were accepted by the corporation, the corporation, by notice in writing served on the persons from whom moneys were received:
(i) had specified the purpose or project for which the
moneys would in fact be applied by the corporation; and
(ii) had offered to repay the moneys to those persons;
and the relevant person had not, within 14 days after the receipt of the notice or such longer time as was specified in the notice, demanded in writing from the corporation repayment of the money owing to him; or
(b) the corporation by notice in writing served on the holders of the debentures:
(i) had specified the purpose or project for which the
moneys would in fact be applied by the corporation; and
(ii) had offered to repay the moneys to the holders of the
debentures;
and the relevant person had not, within 14 days after the receipt of the notice or such longer time as was specified in the notice, demanded in writing from the corporation repayment of the money owing to him.

(6) Where the corporation has given a notice in writing as provided by subsection (5) specifying the purpose or project for which the moneys received by the corporation in response to the invitation or offer will in fact be applied by the corporation, the provisions of this section apply and have effect as if the purpose or project so specified in the notice was the particular purpose or project specified in the prospectus as the purpose or project for which the moneys were to be applied.

COMPANIES ACT 1981 - SECT 161
Invitations or offers by prescribed corporations

SECT

161. (1) Notwithstanding any other provision of this Act, an invitation to the public by a prescribed corporation to lend money to, or to deposit money with, that corporation or an offer to the public by a prescribed corporation to accept moneys that are lent to, or deposited with, that corporation shall, for the purposes of this Division, be deemed not to be 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.

(2) In this section, "prescribed corporation" has the same meaning as in subsection 97 (7).

COMPANIES ACT 1981 - SECT 162
Compliance with laws of State or other Territory sufficient
compliance for certain corporations

SECT

162. Notwithstanding anything in this Division, in the case of a borrowing corporation that is a recognized company or recognized foreign company or in the case of a guarantor corporation of such a borrowing corporation, it is sufficient compliance with this Division if the corporation has complied with the provisions of the laws of the State or Territory in which the borrowing corporation is incorporated or registered that correspond with this Division.

COMPANIES ACT 1981 - SECT 163
Liability of trustees for debenture holders

SECT

163. (1) Subject to this section, any provision contained in a trust deed relating to or securing an issue of debentures, or in any contract with the holders of debentures secured by a trust deed, is void in so far as it would have the effect of exempting a trustee from, or indemnifying it against, liability for breach of trust where it fails to show the degree of care and diligence required of it as trustee having regard to its powers, authorities or discretions under the trust deed or contract.

(2) Subsection (1) does not invalidate:
(a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or
(b) any provision enabling such a release to be given:
(i) on the agreement to the giving of the release of a
majority of not less than three-quarters in nominal value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting convened for the purpose; and
(ii) either with respect to specific acts or omissions or
on the dissolution of the trustee or on its ceasing to act.

(3) Subsection (1) does not operate:
(a) to invalidate any provision in force at the commencement of this Act so long as any trustee then entitled to the benefit of that provision remains a trustee of the deed in question; or
(b) to deprive any trustee of any exemption or right to be indemnified in respect of anything done or omitted to be done by the trustee while any such provision was in force.

COMPANIES ACT 1981 - DIVISION 6
Division 6 - Prescribed Interests

COMPANIES ACT 1981 - SECT 164
Interpretation

SECT

164. (1) In this Division, unless the contrary intention appears:
"buy-back arrangements", in relation to a deed relating to prescribed interests, means arrangements made to ensure that the management company can comply with a buy-back covenant contained in the deed;
"buy-back covenant", in relation to a deed relating to prescribed interests, means a covenant binding the management company that it will, if asked by the holder of a prescribed interest to which the deed relates, buy the prescribed interest, or cause it to be bought, from the holder at a price calculated in accordance with the deed;
"company" means:
(a) a public company;
(b) a corporation that is a public company under the corresponding law of a participating State or participating Territory;
(c) a corporation that is a public company under the law of a declared State or declared Territory and is registered as a foreign company in the Australian Capital Territory;
(d) in relation to a prescribed interest that relates to an undertaking, scheme, enterprise, contract or arrangement (in this paragraph referred to as the "relevant undertaking") - a body corporate (other than a body corporate of a kind referred to in paragraph (a), (b) or (c)):
(i) formed or incorporated in the Australian Capital
Territory or in a participating State or participating Territory; or
(ii) formed or incorporated in a declared State or declared
Territory and registered as a foreign company in the Australian Capital Territory;
being a body corporate that is declared by the Commission, by instrument in writing, to be a company for the purposes of this Division in relation to the relevant undertaking or in relation to a class of undertakings, schemes, enterprises, contracts or arrangements that includes the relevant undertaking; or
(e) in relation to a prescribed interest that relates to an undertaking, scheme, enterprise, contract or arrangement (in this paragraph referred to as the "relevant undertaking") - a body corporate (other than a body corporate of a kind referred to in paragraph (a), (b) or (c)) formed or incorporated in a participating State or participating Territory, being a body corporate that is, pursuant to a provision of a law of that State or Territory that corresponds with paragraph (d), declared by the Commission, by instrument in writing, to be a company for the purposes of the provisions of the law of that State or Territory that correspond with this Division in relation to the relevant undertaking or in relation to a class of undertakings, schemes, enterprises, contracts or arrangements that includes the relevant undertaking;
"declared State" means a State that is declared by the Commission, by order in writing published in the Gazette, to be a declared State for the purposes of this Division;
"declared Territory" means a Territory that is declared by the Commission, by order in writing published in the Gazette, to be a declared Territory for the purposes of this Division;
"financial year", in relation to a deed, means the period of 12 months ending on 30 June or on such other date as is specified in the deed in lieu of 30 June;
"management company", in relation to any prescribed interests issued or proposed to be issued or any deed that relates to any prescribed interests issued or proposed to be issued, means a company by or on behalf of which the prescribed interests have been or are proposed to be issued, and includes any person for the time being exercising the functions of the management company.

(2) A reference in this Division to a deed shall be read as including a reference to any instrument amending or affecting the deed.

(3) Any deed to which an approval has been granted under a corresponding previous law of the Territory shall, if it does not contain the covenants concerned, be deemed to contain covenants to the effect of the covenants required to be contained in a deed under subsection 168 (1) except the covenants required under subparagraphs 168 (1) (b) (i) and (ii), paragraphs 168 (1) (ba) and (bb) and subparagraphs 168 (1) (c) (ia) and (ca) (ii), and subsections 168 (3), (4), (5) and (6) apply in relation to the deed accordingly.

(4) Where, as at the commencement of section 22 of the Co-operative Scheme Legislation Amendment Act 1989:
(a) approval had been granted to a deed under this Division; and (b) the deed contains a covenant to the effect of the covenant required to be contained in a deed under paragraph 168 (1) (ba);
the deed shall, if it does not contain the covenants concerned, be deemed to contain covenants to the effect of the covenants required to be contained in a deed under paragraph 168 (1) (bb) and subparagraphs 168 (1) (c) (ia) and (ca) (ii).

COMPANIES ACT 1981 - SECT 165
Approved deeds

SECT

165. (1) For the purposes of this Division, a deed is an approved deed if:
(a) an approval has been granted to the deed under this Division or under any corresponding previous law of the Territory; and
(b) an approval has been granted under this Division or under any corresponding previous law of the Territory to the trustee or representative appointed for the purposes of the deed acting as trustee or representative and that approval has not been revoked and the trustee or representative has not ceased to hold office.

(2) In the case of a management company formed or incorporated in a participating State or participating Territory, a deed is an approved deed for the purposes of this Division if:
(a) an approval has been granted to the deed under the provisions of the law, or of the previous law, of that State or Territory that correspond with this Division; and
(b) an approval has been granted under the provisions of the law, or of the previous law, of that State or Territory that correspond with this Division to the trustee or representative appointed for the purposes of the deed acting as trustee or representative and that approval has not been revoked and the trustee or representative has not ceased to hold office.

COMPANIES ACT 1981 - SECT 166
Approval of deeds

SECT

166. (1) Where a deed makes provision for the appointment of a person as trustee for or representative of the holders of prescribed interests issued or proposed to be issued by a company, the Commission may, subject to this section, grant its approval to the deed.

(2) The Commission shall not grant its approval to a deed unless the deed:
(a) complies with the requirements of this Division; and
(b) makes provision for such other matters and things as are required by or under the regulations to be included in the deed.

(3) Within 7 days after approval has been granted to a deed under this section, the management company shall lodge with the Commission the deed, or a copy of the deed verified by a statement in writing, and a copy so lodged shall for all purposes, in the absence of proof that it is not a true copy, be regarded as an original.

(4) Where an instrument or instruments amending a deed has or have been made, the management company shall, on being required by the Commission to do so, lodge with the Commission a printed copy (in this subsection referred to as a "relevant copy") of the deed as amended by the instrument or instruments, being a copy that:
(a) is verified by a statement in writing;
(b) bears an indication sufficient to distinguish it from:
(i) the deed as lodged, or the copy of the deed lodged, as
the case may be, under subsection (3);
(ii) the instrument, or each of the instruments, as the
case may be; and
(iii) each copy (if any) of the deed previously lodged
under this subsection; and
(c) if an amendment or amendments made by the instrument or instruments has not or have not, as at the date on which the relevant copy is lodged under this subsection, come into operation - has marked on it, in relation to the provision, or in relation to each provision, as the case may be, altered, omitted or inserted by the amendment or amendments, a note that identifies the instrument that altered, omitted or inserted the provision and contains a statement to the effect that:
(i) in the case of a provision that has been altered or
omitted - the alteration or omission; or
(ii) in the case of a provision that has been inserted -
the provision inserted;
has not yet come into operation;
and a relevant copy so lodged shall for all purposes, in the absence of proof to the contrary, be regarded as a true copy of the deed as so amended.

(5) Where a provision of an instrument affects the operation of a deed otherwise than by way of textual amendment, the management company shall not lodge a copy of the deed with the Commission under subsection (4) unless a copy of the instrument is annexed to the copy of the deed.

(6) In subsections (4) and (5), "instrument" includes an instrument made before the commencement of section 59 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985.

COMPANIES ACT 1981 - SECT 167
Approval of trustees

SECT

167. (1) The Commission may, subject to such terms and conditions as it thinks fit, grant its approval to a person acting as trustee or representative for the purposes of a deed.

(2) The Commission may, at any time, by reason of a breach of a term or condition subject to which the approval was granted or for any other reason, revoke an approval granted under this section or under any corresponding previous law of the Territory.

COMPANIES ACT 1981 - SECT 168
Covenants to be included in deeds

SECT

168. (1) Subject to subsection (2), a deed shall, for the purposes of paragraph 166 (2) (a), contain covenants to the following effect:
(a) a covenant binding the management company that it will use its best endeavours to carry on and conduct its business in a proper and efficient manner and to ensure that any undertaking, scheme or enterprise to which the deed relates is carried on and conducted in a proper and efficient manner;
(b) covenants binding the management company:
(i) that the management company will pay to the trustee or
representative, within 30 days after their receipt by the company, any moneys that, under the deed, are payable by the company to the trustee or representative;
(ii) that the management company will not sell or issue, or
permit to be sold or issued, a prescribed interest to which the deed relates otherwise than at a price calculated in accordance with the provisions of the deed; and
(iv) that the management company will not, without the
approval of the trustee or representative, publish or cause to be published any advertisement, circular or other document containing any statement with respect to the sale price of prescribed interests to which the deed relates or the yield from those prescribed interests or containing any invitation to buy prescribed interests;
(ba) a buy-back covenant;
(bb) a covenant binding the management company to make, and to maintain at all times, adequate buy-back arrangements;
(c) a covenant binding the trustee or representative:
(i) to exercise all due diligence and vigilance in carrying
out his, her or its functions and duties and in protecting the rights and interests of the holders of the prescribed interests to which the deed relates;
(ia) to supervise the making and maintaining of adequate
buy-back arrangements and to monitor the maintaining of such arrangements and the extent of compliance with the buy-back covenant;
(ii) to keep, or cause to be kept, proper books of accounts
in relation to those prescribed interests; and
(iii) to cause a registered company auditor to audit those
accounts at the end of each financial year;
(ca) a covenant binding the trustee or representative to send, or cause to be sent, within 2 months after the end of each financial year, to each of the holders of those prescribed interests:
(i) a statement of the accounts for that financial year in
relation to those prescribed interests;
(ii) a statement that describes the buy-back arrangements
in effect when it is sent and states whether or not, in the opinion of the trustee or representative, those arrangements are adequate; and
(iii) a copy of the auditor's report on those accounts;
(d) a covenant binding the management company and the trustee or representative, respectively, that no moneys available for investment under the deed will be invested in or lent to the management company, the trustee or representative, or any person (other than a banking corporation or a corporation declared pursuant to paragraph 97 (7) (b) to be an authorized dealer in the short term money market) who is associated with the management company or with the trustee or representative;
(e) a covenant binding the management company that the company will:
(i) make available to the trustee or representative, or to
any registered company auditor appointed by him or it, for inspection all the books of the company whether kept at the registered office or elsewhere; and
(ii) give to the trustee or representative or to any such
auditor such oral or written information as the trustee or representative or the auditor requires with respect to all matters relating to the undertaking, scheme or enterprise of the company or any property (whether acquired before or after the date of the deed) of the company or otherwise relating to the affairs of the company;
(f) a covenant binding the management company that the management company will make available, or ensure that there is made available, to the trustee or representative such details as the trustee or representative requires with respect to all matters relating to the undertaking, scheme or enterprise to which the deed relates;
(g) covenants binding the management company and the trustee or representative, respectively, that the management company or the trustee or representative, as the case may be, will not exercise the right to vote in respect of any shares relating to the prescribed interests to which the deed relates held by the management company or by the trustee or representative at any election for directors of a corporation shares in which are so held, without the consent of the majority of the holders of the prescribed interests to which the deed relates present in person and voting given at a meeting of those holders convened in the manner provided for in paragraph (h) for the purpose of authorizing the exercise of the right at the next election; and
(h) a covenant binding the management company that the management company will, within 21 days after an application is delivered to the company at its registered office, being an application by not less than 50, or one-tenth in number, whichever is the less, of the holders of the prescribed interests to which the deed relates, by sending notice by post of the proposed meeting at least 7 days before the proposed meeting to each of the holders of the prescribed interests to which the deed relates at his last known address or, in the case of joint holders, to the joint holder whose name appears first in the company's records, convene a meeting of the holders for the purpose of laying before the meeting the accounts and balance-sheet that were laid before the last preceding annual general meeting of the management company or the last audited statement of accounts of the trustee or representative, and for the purpose of giving to the trustee or representative such directions as the meeting thinks proper.

(1A) Nothing in subsection (1) limits the generality of anything else in it.

(2) The Commission may, by instrument in writing, declare that, subject to such terms and conditions as are specified in the instrument, a specified deed that makes provision for the appointment of a specified person as trustee for or representative of the holders of the prescribed interests to which the deed relates is not required to contain covenants to the effect of such of the matters referred to in subsection (1), or to contain such of the matters provided for in regulations made for the purposes of paragraph 166 (2) (b), as are specified in the instrument and the Commission may, by instrument in writing, revoke the first-mentioned instrument or vary it in such manner as it thinks fit.

(2A) The Commission shall cause a copy of an instrument executed under subsection (2) to be published in the Gazette, but failure of the Commission to do so does not affect the validity of the instrument.

(3) A meeting convened for the purposes of a covenant contained in a deed pursuant to paragraph (1) (g) or (h) shall be held at the time and place specified in the notice, being a time not later than 2 months after the giving of the notice, under the chairmanship of:
(a) such person as is appointed for that purpose by the holders of the prescribed interests to which the deed relates present at the meeting; or
(b) where no such appointment is made, a nominee of the trustee or representative approved by the Commission;
and shall be conducted in accordance with the provisions of the deed or, in so far as the deed makes no provision, as directed by the chairman of the meeting.

(4) Notwithstanding anything to the contrary contained in an approved deed, the undertaking, scheme, enterprise, contract or arrangement to which the deed relates may be continued in operation or existence if it appears to be in the interests of the holders of the prescribed interests to which the deed relates during such period as is, or such periods as are, agreed upon by the trustee or representative and the management company.

(5) Where a direction is given to the trustee or representative at a meeting convened pursuant to a covenant complying with paragraph (1) (h), the trustee or representative:
(a) shall comply with the direction unless it is inconsistent with the deed or this Act; and
(b) is not liable for anything done or omitted to be done by him or it pursuant to that direction.

(6) Where the trustee or representative is of the opinion that a direction so given is inconsistent with the deed or this Act or is otherwise objectionable, the trustee or representative may apply to the Court for an order confirming, setting aside or varying the direction and the Court may make such order as it thinks fit.

COMPANIES ACT 1981 - SECT 169
Prescribed interests to be issued by companies only

SECT

169. A person, other than a company or an agent of a company authorized for that purpose under the common or official seal of the company, shall not issue to the public, offer to the public for subscription or purchase, or invite the public to subscribe for or purchase, any prescribed interest.

COMPANIES ACT 1981 - SECT 170
Statement to be issued

SECT

170. (1) A company or an agent of a company shall not issue to the public, offer to the public for subscription or purchase, or invite the public to subscribe for or purchase, any prescribed interest unless a statement in writing in relation to that prescribed interest has been registered by the Commission under Division I.

(2) For the purposes of the registration of the statement referred to in subsection (1), and for all other purposes, the statement shall be deemed to be a prospectus issued by a company.

(3) Subject to subsections (4) and (5), all provisions of this Act and rules of law relating to:
(a) prospectuses;
(b) the offering or intended offering to the public of shares for subscription or purchase;
(c) the inviting or intended inviting of the public to subscribe for or purchase shares; and
(d) the issuing or intended issuing of forms of application for shares;
shall, with such adaptations as are necessary, apply and have effect in relation to prescribed interests as if:
(e) the prescribed interests were shares that were offered or intended to be offered to the public for subscription or purchase or that the public were invited or intended to be invited to subscribe for or purchase;
(f) persons accepting any offers or making offers pursuant to any invitation in respect of, or subscribing for or purchasing, any such prescribed interests were subscribers for shares;
(g) the references in paragraph 99 (4) (a) to the corporation were references to the financial or business undertaking or scheme, the common enterprise or the investment contract to which the statement relates;
(h) the reference in subparagraph 99 (4) (a) (iv) to the directors of the corporation were a reference to the management company for the prescribed interest and the directors of that company; and
(j) the reference in subparagraph 99 (4) (a) (vi) to debentures were a reference to prescribed interests and the reference in that subparagraph to the trustee for the debenture holders were a reference to the trustee for, or representative of, the holders of the prescribed interests.

(4) Subject to subsection (5), the statement shall set out the prescribed matters, and shall contain the prescribed reports, with such adaptations (if any) as the circumstances of each case require and the Commission approves.

(5) A matter or report referred to in subsection (4) may be omitted from a statement if, having regard to the nature of the prescribed interest, the Commission is of the opinion that the matter or report is not appropriate for inclusion in the statement and has by instrument in writing approved the omission.

(6) Where a statement in respect of a management company formed or incorporated in a participating State or participating Territory has been registered under the provisions of the law of that State or Territory that correspond with Division 1, that statement shall, for the purposes of this Division, be deemed to have been registered by the Commission under Division 1 and anything required to be done before registration under that Division shall be deemed to have been done.

COMPANIES ACT 1981 - SECT 171
No issue without approved deed

SECT

171. (1) A person shall not issue to the public, offer to the public for subscription or purchase, or invite the public to subscribe for or purchase, any prescribed interest unless, at the time of the issue, offer or invitation, there is in force, in relation to the interest, a deed that is an approved deed.

(2) A person shall not, in any deed, prospectus, statement, advertisement or other document relating to a prescribed interest, make any reference to an approval of a deed or of a trustee or representative granted under:
(a) this Division or a previous corresponding law of the Territory; or
(b) the provisions of the law of a participating State or participating Territory that correspond with this Division, or a previous corresponding law of a participating State or participating Territory.

COMPANIES ACT 1981 - SECT 172
Register of holders of prescribed interests

SECT

172. (1) The management company shall, in respect of each deed with which the company is concerned, keep at the registered office or principal place of business in the Territory of the company, or at such other place in the Territory as the Commission approves, a register of the holders of prescribed interests under the deed and enter in the register:
(a) the names and addresses of the holders;
(b) the extent of the holding of each holder and, if his prescribed interest consists of a specific interest in any property, a description of the property sufficient to identify it;
(c) the date at which the name of each person was entered in the register as a holder; and
(d) the date at which any person ceased to be a holder.

(2) A management company formed or incorporated in a participating State, participating Territory, declared State or declared Territory that:
(a) keeps a register of holders of prescribed interests in accordance with the provisions of the law of that State or Territory that correspond with subsection (1); and
(b) keeps within the Territory a register containing with respect to the holders of prescribed interests who are resident within the Territory the information prescribed by subsection (1);
shall be deemed to comply with subsection (1).

(3) A management company that is deemed by subsection (2) to comply with subsection (1) shall, within 14 days after receiving a written request from a holder of a prescribed interest resident in the Territory, make available for inspection by him a copy of the register of holders of prescribed interests kept as mentioned in paragraph (2) (a).

(4) The provisions of Division 4 of Part V (except section 262) shall, with such adaptations and modifications as are necessary, apply to and in relation to the registers kept under subsection (1) and under paragraph (2) (b).

(5) A management company that:
(a) keeps a register of holders of prescribed interests pursuant to subsection (1) or paragraph (2) (b) at a place in the Territory within 25 kilometres of the office of the Corporate Affairs Commission for the Territory; and
(b) provides reasonable accommodation and facilities for persons to inspect and take copies of its list of holders of prescribed interests;
need not comply with the provision of paragraph 173 (1) (c) in relation to the deed under which the prescribed interests are held unless the Commission, by order in writing published in the Gazette, otherwise directs.

COMPANIES ACT 1981 - SECT 173
Returns, information etc. relating to prescribed interests

SECT

173. (1) Where a deed is or has at any time been an approved deed under subsection 165 (1), the management company shall lodge with the Commission:
(a) so long as the deed, or any deed in substitution in whole or in part for the deed, remains in force - within 2 months after the end of each financial year applicable to the deed or substituted deed; or
(b) if the deed ceases to be in force and no deed has been substituted in whole or in part for the deed, or any such substituted deed ceases to be in force - within 2 months after the deed or substituted deed, as the case may be, ceases to be in force;
a return in the prescribed form containing:
(c) a list of all persons who, at the end of the relevant financial year, were holders of the prescribed interests to which the deed or substituted deed relates; and
(d) such other particulars as are prescribed;
and accompanied by the prescribed documents.

(2) Any document required to be lodged with the Commission by the management company under subsection (1) shall be signed by at least one director of the management company.

(3) A company to which subsection (1) applies shall, if so requested by any holder of a prescribed interest to which the deed relates within a period of one month after the end of the relevant financial year, send by post or cause to be sent by post to the holder, within 2 months after the end of the relevant financial year, a copy of each of the documents that the company is required to lodge with the Commission by virtue of that subsection (other than the list referred to in paragraph (1) (c)).

(4) Subsection (1) does not apply to a management company that is a recognized company and has complied with the provision of the law of the participating State or participating Territory in which it was incorporated that corresponds with this section.

(5) A reference in this section to the relevant financial year shall be read as a reference:
(a) in a case to which paragraph (1) (a) applies - to the financial year referred to in that paragraph in respect of which the return is lodged; or
(b) in a case to which paragraph (1) (b) applies:
(i) if the deed ceases to be in force at the expiration of
the last day of a financial year applicable to the deed - that financial year; or
(ii) in any other case - the period that commenced at the
expiration of the last preceding financial year applicable to the deed and ended on the day on which the deed ceased to be in force.

COMPANIES ACT 1981 - SECT 174<
Penalty for breach of certain provisions or covenants

SECT

174. (1) A person shall not:
(a) contravene or fail to comply with a provision of section 169, 170 or 171; or
(b) fail to comply with a covenant contained or deemed to be contained in any deed that is or at any time has been an approved deed.
Penalty: $20,000 or imprisonment for 5 years, or both.

(2) A person is not relieved from any liability to any holder of a prescribed interest by reason of any contravention of, or failure to comply with, a provision of this Division.

COMPANIES ACT 1981 - SECT 174A
Buy-back covenant and buy-back arrangements

SECT

174A. (1) Where a deed ceases after the commencement of section 24 of the Co-operative Scheme Legislation Amendment Act 1989 to be an approved deed, the management company may nevertheless comply with the terms of a buy-back covenant contained, or taken to be contained, in the deed.

(2) As soon as practicable after the trustee or representative in relation to a deed that is or has at any time been an approved deed becomes of the opinion that the buy-back arrangements are inadequate, he, she or it shall notify the management company in writing that he, she or it is of that opinion.

(3) Where, at the end of the period of 21 days starting on the day on which a notice is given under subsection (2), the trustee or representative is still of that opinion, he, she or it shall, as soon as practicable after the end of that period, notify the Commission in writing that he, she or it is of that opinion.

(4) Where, at the end of the period of 21 days starting on the day on which a notice is given under subsection (2), the buy-back arrangements are inadequate, the management company contravenes this subsection.

(5) Where:
(a) the management company in relation to a deed that is or has at any time been an approved deed contravenes a buy-back covenant contained in the deed; and
(b) as at the end of 14 days after the contravention, neither the management company nor the trustee or representative has notified the Commission in writing of the contravention;
the management company and the trustee or representative each contravene this subsection.
Penalty: $2,500 or imprisonment for 6 months, or both.

COMPANIES ACT 1981 - SECT 175
Winding up of schemes etc.

SECT

175. (1) Where:
(a) the management company under a deed is in the course of being wound up; or
(b) in the opinion of the trustee or representative, the management company has ceased to carry on business or has, to the prejudice of holders of prescribed interests to which the deed relates, failed to comply with a provision of the deed;
the trustee or representative shall convene a meeting of those holders in the manner set out in subsection (2).
Penalty: $2,500.

(2) A meeting under subsection (1) shall be convened by sending by post notice of the proposed meeting at least 21 days before the proposed meeting to each holder at his last known address, or, in the case of joint holders, to the joint holder whose name appears first in the company's records.

(3) The provisions of subsection 168 (3) apply to such a meeting as if the meeting were a meeting referred to in that subsection.

(4) If at any such meeting a resolution is passed by a majority of not less than three-quarters in value of the holders of the prescribed interests present in person and voting at the meeting that the undertaking, scheme, enterprise, contract or arrangement to which the deed relates be wound up, the trustee or representative shall, within 28 days after the day on which the meeting is held, apply to the Court for an order confirming the resolution.
Penalty: $2,500.

(5) On an application by the trustee or representative, the Court may, if it is satisfied that it is in the interest of the holders of the prescribed interests, confirm the resolution and may make such orders as it thinks necessary or expedient for the effective winding up of the undertaking, scheme, enterprise, contract or arrangement.

COMPANIES ACT 1981 - SECT 176
Non-application of Division in certain circumstances

SECT

176.

(2) This Division does not apply in the case of the sale of any prescribed interest by a personal representative, liquidator, receiver or trustee in bankruptcy in the normal course of realization of property.

COMPANIES ACT 1981 - SECT 177
Liability of trustees

SECT

177. (1) Subject to this section, a provision contained in a deed that is or has been at any time an approved deed, or in any contract with the holders of prescribed interests to which such a deed relates, is void in so far as it would have the effect of exempting a trustee or representative under the deed from, or indemnifying a trustee or representative against, liability for breach of trust where the trustee or representative fails to show the degree of care and diligence required of a trustee or representative having regard to the powers, authorities or discretions conferred on the trustee or representative by the deed.

(2) Subsection (1) does not invalidate:
(a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee or representative before the giving of the release; or
(b) any provisions enabling such a release to be given:
(i) on the agreement to the giving of the release of a
majority of not less than three-quarters in nominal value of holders of prescribed interests present in person and voting at a meeting convened for the purpose; and
(ii) either with respect to specific acts or omissions or
on the trustee or representative ceasing to act.

COMPANIES ACT 1981 - DIVISION 7
Division 7 - Title to and Transfer of Securities

COMPANIES ACT 1981 - SECT 178
Nature of shares

SECT

178. (1) A share or other interest of a member in a company:
(a) is personal property;
(b) is transferable or transmissible as provided by the articles; and
(c) subject to the articles, is capable of devolution by will or by operation of law.

(2) Subject to subsection (1):
(a) the laws applicable to ownership of and dealing with personal property apply to a share or other interest of a member in a company as they apply to other property; and
(b) equitable interests in respect of a share or other interest of a member in a company may be created, dealt with and enforced as in the case of other personal property.

(3) For the purposes of any law, a share or other interest of a member in a company shall be taken to be situated:
(a) in a case to which paragraph (b) does not apply - in the State or Territory in which the register of members of the company is kept; or
(b) if the name of the member is, in respect of the share or interest concerned, entered in a branch register - in the State, Territory or country other than Australia in which that branch register is kept.

COMPANIES ACT 1981 - SECT 179
Numbering of shares

SECT

179. (1) Each share in a company shall be distinguished by an appropriate number.

(2) Notwithstanding subsection (1):
(a) if at any time all the issued shares in a company, or all the issued shares in a company of a particular class, are fully paid up and rank equally for all purposes, none of those shares is required to have a distinguishing number so long as each of those shares remains fully paid up and ranks equally for all purposes with all shares of the same class for the time being issued and fully paid up; or
(b) if all the issued shares in a company are evidenced by certificates in accordance with the provisions of section 180, each certificate is distinguished by an appropriate number and that number is recorded in the register of members, none of those shares is required to have a distinguishing number.

COMPANIES ACT 1981 - SECT 180
Certificate to be evidence of title

SECT

180. (1) A certificate issued in accordance with subsection (2) specifying any shares held by a member of a company is prima facie evidence of the title of the member to the shares.

(2) Such a certificate shall be under the common seal of the company or, in the case of a share certificate relating to shares on a branch register, the common or official seal of the company and shall state:
(a) the name of the company and the authority under which the company is constituted;
(b) the class of the shares; and
(c) the nominal value of the shares and the extent to which the shares are paid up.

(3) Failure to comply with this section does not affect the rights of a holder of shares.

(4) If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 181
Company may have duplicate common seal

SECT

181. A company may, if authorized by its articles, have a duplicate common seal, which shall be a facsimile of the common seal of the company with the addition on its face of the words "Share Seal" or "Certificate Seal" and a certificate referring to or relating to securities of the company sealed with such a duplicate seal shall, for the purposes of this Act, be deemed to be sealed with the common seal of the company.

COMPANIES ACT 1981 - SECT 182
Loss or destruction of certificates

SECT

182. (1) Subject to subsection (2), where a certificate or other document of title to shares, debentures or prescribed interests is lost or destroyed, the company shall, on application by the owner of the shares, debentures or prescribed interests, issue a duplicate certificate or document to the owner:
(a) if the company requires the payment of an amount not exceeding the prescribed amount - within 21 days after the payment is received by the company or within such longer period as the Commission approves; or
(b) in a case to which paragraph (a) does not apply - within 21 days after the application is made or within such longer period as the Commission approves.

(2) The application shall be accompanied by:
(a) a statement in writing that the certificate or document has been lost or destroyed, and has not been pledged, sold or otherwise disposed of, and, if lost, that proper searches have been made; and
(b) an undertaking in writing that if it is found or received by the owner it will be returned to the company.

(3) The directors of a company may, before accepting an application for the issue of a duplicate certificate or document, require the applicant:
(a) to cause an advertisement to be inserted in a daily newspaper circulating in a place specified by the directors stating that the certificate or document has been lost or destroyed and that the owner intends, after the expiration of 14 days after the publication of the advertisement, to apply to the company for a duplicate; or
(b) to furnish a bond for an amount equal to at least the current market value of the shares or debentures indemnifying the company against loss following the production of the original certificate or document;
or to do both those things.

COMPANIES ACT 1981 - SECT 183
Instrument of transfer

SECT

183. (1) Notwithstanding anything in its articles or in a deed relating to debentures or interests, a company shall not register a transfer of shares, debentures or interests unless a proper instrument of transfer has been delivered to the company.

(2) Subsection (1) does not prejudice the power of the company to register as a shareholder, debenture holder or interest holder a person to whom the right to any shares in, debentures of, or interests made available by, the company has devolved by will or by operation of law.

(3) A transfer of shares, debentures or interests of a deceased holder made by his personal representative is, although the personal representative is not himself registered as the holder of those shares, debentures or interests, as valid as if he had been so registered at the time of the execution of the instrument of transfer.

(4) Where the personal representative of a deceased holder duly constituted as such under the law of a State or of another Territory:
(a) executes an instrument of transfer of a share, debenture or interest of the deceased holder to himself or to another person; and
(b) delivers the instrument to the company, together with a statement in writing made by him to the effect that, to the best of his knowledge, information and belief, no grant of representation of the estate of the deceased holder has been applied for or made in the Territory and no application for such a grant will be made, being a statement made within the period of 3 months immediately preceding the date of delivery of the statement to the company;
the company shall register the transfer and pay to the personal representative any dividends or other moneys accrued in respect of the share, debenture or interest up to the time of the execution of the instrument, but this subsection does not operate so as to require the company to do an act or thing that it would not have been required to do if the personal representative were the personal representative of the deceased holder duly constituted under the law of the Territory.

(5) A transfer or payment made pursuant to subsection (4) and a receipt or acknowledgment of such a payment is, for all purposes, as valid and effectual as if the personal representative were the personal representative of the deceased holder duly constituted under the law of the Territory.

(6) For the purposes of this section, an application by a personal representative of a deceased person for registration as the holder of a share, debenture or interest in place of the deceased person shall be deemed to be an instrument of transfer effecting a transfer of the share, debenture or interest to the personal representative.

(7) The production to a company of a document that is, under the law of the Territory or under the law of a State or of another Territory, sufficient evidence of probate of the will, or letters of administration of the estate, of a deceased person having been granted to a person shall be accepted by the company, notwithstanding anything in its articles, or in a deed relating to debentures or interests, as sufficient evidence of the grant.

(8) In this section, "interest" includes a prescribed interest.

COMPANIES ACT 1981 - SECT 184
Registration of transfer at request of transferor

SECT

184. (1) On the request in writing of the transferor of a share in, debenture of, or interest made available by, a company, the company shall enter in the appropriate register the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee.

(2) On the request in writing of the transferor of a share in, debenture of, or interest made available by, a company, the company shall, by notice in writing, require the person having the possession, custody or control of the share certificate or debenture or any document evidencing title to the interest (as the case may be) and the instrument of transfer of the share, debenture or interest or either of them to bring it or them into the office of the company within a stated period, being not less than 7 and not more than 28 days after the date of the notice, to have the share certificate, debenture or document cancelled or rectified and the transfer registered or otherwise dealt with.

(3) If a person refuses or neglects to comply with a notice given under subsection (2), the transferor may apply to the Court to issue a summons for that person to appear before the Court and show cause why the documents mentioned in the notice should not be delivered up or produced as required by the notice.

(4) Upon appearance of a person so summoned, the Court may examine him upon oath or affirmation and receive other evidence or, if he does not appear after being duly served with the summons, the Court may receive evidence in his absence, and, in either case, the Court may order him to deliver up such documents to the company upon such terms or conditions as to the Court seem fit, and the costs of the summons and of proceedings on the summons are in the discretion of the Court.

(5) Lists of share certificates, debentures and other documents called in under this section and not brought in shall be exhibited in the office of the company and shall be advertised in the Gazette and in such newspapers and at such times as the company thinks fit.

(6) In this section, "interest" includes a prescribed interest.

COMPANIES ACT 1981 - SECT 185
Notice of refusal to register transfer

SECT

185. (1) If a company refuses to register a transfer of any shares in, debentures of, or interests made available by, the company, it shall, within 2 months after the date on which the transfer was lodged with it, send to the transferee notice of the refusal.

(2) In this section, "interest" includes a prescribed interest.

(3) If a company fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 186
Remedy for refusal to register transfer or transmission

SECT

186. (1) Where a relevant authority in relation to a company refuses or fails to register, or refuses or fails to give its consent or approval to the registration of, a transfer or transmission of shares in, debentures of, or an interest made available by, the company, the transferee or transmittee may apply to the Court for an order under this section.

(2) Where, on an application made under subsection (1), the Court is satisfied that the refusal or failure was without just cause, the Court may:
(a) order that the transfer or transmission be registered; or
(b) make such other order as it thinks proper, including, in the case of a transfer or transmission of shares, an order providing for the purchase of the shares by a specified member of the company or by the company and, in the case of a purchase by the company, providing for the reduction accordingly of the capital of the company.

(3) In this section:
"interest" includes a prescribed interest;
"relevant authority", in relation to a company, means:
(a) a person who has, 2 or more persons who together have, or a body that has, authority to register a transfer or transmission of shares in, debentures of, or interests made available by, the company; or
(b) a person, 2 or more persons, or a body, whose consent or approval is required before a transfer or transmission of shares in, debentures of, or interests made available by, the company is registered.

COMPANIES ACT 1981 - SECT 187
Certification of transfers

SECT

187. (1) The certification by a company of an instrument of transfer of shares in, debentures of, or interests made available by, the company shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show prima facie title to the shares, debentures or interests in the transferor named in the instrument of transfer but not as a representation that the transferor has any title to the shares, debentures or interests.

(2) Where a person acts on the faith of a false certification by a company made negligently, the company is under the same liability to him as if the certification had been made fraudulently.

(3) Where a certification is expressed to be limited to 42 days or any longer period from the date of certification, the company and its officers are not, in the absence of fraud, liable in respect of the registration of any transfer of shares, debentures or interests comprised in the certification after the expiration of the period so limited or any extension of that period given by the company if the instrument of transfer has not, within that period, been lodged with the company for registration.

(4) For the purposes of this section:
(a) an instrument of transfer shall be deemed to be certificated if it bears the words "certificate lodged" or words to the like effect;
(b) the certification of an instrument of transfer shall be deemed to be made by a company if:
(i) the person issuing the instrument is a person
authorized to issue certificated instruments of transfer on the company's behalf; and
(ii) the certification is signed by a person authorized to
certificate transfers on the company's behalf or by an officer of the company or of a corporation so authorized; and
(c) a certification that purports to be authenticated by a person's signature or initials (whether handwritten or not) shall be deemed to be signed by him unless it is shown that the signature or initials was not or were not placed there by him and was not or were not placed there by any other person authorized to use the signature or initials for the purpose of certificating transfers on the company's behalf.

(5) In this section, "interest" includes a prescribed interest.

COMPANIES ACT 1981 - SECT 188
Duties of company with respect to issue of certificates

SECT

188. (1) Within 2 months after the allotment of any shares in, the issue of debentures of, or the making available of interests by, a company, the company shall:
(a) complete and have ready for delivery to the allottee, debenture holder or interest holder, as the case may be, (in this subsection referred to as the "relevant person"), all the appropriate certificates, debentures or other documents in connection with the allotment of the shares, the issue of the debentures or the making available of the interests unless, in the case of shares, the conditions of the allotment otherwise provide; and
(b) unless otherwise instructed by the relevant person, send or deliver the completed certificates, debentures or other documents to the relevant person or, where the relevant person has instructed the company in writing to send them to a nominated person, to that person.

(2) Within one month after the date on which a transfer of any shares, debentures or interests is lodged with a company (other than a transfer that the company is for any reason entitled to refuse to register and does not register) the company shall:
(a) complete and have ready for delivery to the transferee all the appropriate certificates, debentures or other documents in connection with the transfer; and
(b) unless otherwise instructed by the transferee, send or deliver the completed certificates, debentures or other documents to the transferee or, where the transferee has instructed the company in writing to send them to a nominated person, to that person.

(2A) A company is not required to comply:
(a) with subsection (1) in relation to the allotment of any shares in, the issue of debentures of, or the making available of interests by, the company; or
(b) with subsection (2) in relation to a transfer of shares, debentures or interests;
if the allottee, debenture holder or interest holder, or the transferee, as the case may be, is a person who has applied to the Commission for the making of a declaration under this subsection and has been declared by the Commission, by instrument in writing published in the Gazette, to be a person in relation to whom this section does not apply.

(3) If a company fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

(4) If a company on which a notice has been served requiring the company to make good any default in complying with the provisions of this section fails to make good the default within 10 days after the service of the notice, the Court may, on the application of the person entitled to have the certificates, debentures or other documents delivered to him, make an order directing the company and any officer of the company to make good the default within such time as is specified in the order, and the order may provide that all costs of and incidental to the application shall be borne by the company or by any officer of the company in default in such proportions as the Court thinks fit.

(5) In this section, "interest" includes a prescribed interest.

COMPANIES ACT 1981 - DIVISION 8
Division 8 - Transfer of Marketable Securities

COMPANIES ACT 1981 - SECT 189
Interpretation

SECT

189. (1) In this Division, unless the contrary intention appears:
"associate", in relation to a broker, means:
(a) if the broker is a member of a firm of brokers and is not a broker's agent - any other member of the firm; or
(b) if the broker is another broker's agent or employee - the other broker or, if the other broker is a member of a firm of brokers, any member of that firm;
"beneficial owner", in relation to a marketable security or a right to a marketable security, means a person for whom an authorized trustee corporation is (whether alone or together with another person or other persons) holding the security or right in trust in the ordinary course of its business;
"broker" means a member of a securities exchange;
"broker's agent" means an agent or employee of a broker;
"corresponding law" means:
(a) the provisions of a law of a participating State or of a participating Territory that correspond with this Division; or
(b) any law of a State or Territory in respect of which a declaration under subsection (2) is in force;
and includes regulations in force under a law referred to in paragraph (a) or (b);
"duly completed", in relation to an instrument, has a meaning affected by subsection 191 (3);
"duly completed Part 1" means an instrument that has been duly completed in accordance with Part 1 of Form 1, 2, 3, 5, 6 or 7;
"in accordance with" includes to the effect of;
"issue", in relation to a marketable security, includes make available;
"issuing body", in relation to a marketable security or a right to a marketable security, means the body (whether incorporated or not) that, or other person who, issued, or proposes to issue, the security or right;
"legal representative" means the executor, original or by representation, of a will, or administrator of the estate, of a deceased person;
"marketable security" means:
(a) a share in or a debenture of a company or prescribed corporation; or
(b) a prescribed security;
"prescribed corporation" means:
(a) a body corporate incorporated in the Territory, not being a company; or
(b) an unincorporated society, association or other body, formed or established in the Territory, that has been admitted to the official list of a securities exchange and has not been removed from that official list;
that is under the regulations a prescribed corporation;
"prescribed security" means a prescribed interest that is under the regulations a prescribed security or that is one of a class of such interests that are under the regulations prescribed securities;
"right to a marketable security" means a right, whether existing or future, and whether contingent or not, of a person to have issued to him a marketable security, whether or not on payment of any money or for any other consideration;
"transfer", in relation to a right to a marketable security, means the renunciation and transfer of that right.

(2) The Commission may, by notice published in the Gazette, declare a law in force in a State or Territory that is not a participating State or a participating Territory, being a law the provisions of which correspond substantially with the provisions of this Division, to be a corresponding law and may, by notice so published, revoke a declaration made under this subsection.

(3) A reference in this Division to a form by number is a reference to the form so numbered in Schedule 4 or to a form to the like effect.

(4) A reference in a form in Schedule 4 to the full name of the transferor of marketable securities or rights to marketable securities includes a reference to the name of the person shown in the records of the company or prescribed corporation that issued those securities or rights as the holder of those securities or rights.

(5) A reference in this division other than section 198 to the stamping of an instrument is a reference to stamping in ink, and a reference to a stamp on an instrument, or a stamp borne by an instrument, is a reference to a stamp stamped on the document in ink.

(6) A reference in section 198 to the stamping of an instrument is a reference to stamping the instrument:
(a) in ink;
(b) by affixing a stamp;
(c) by impressing a stamp; or
(d) in any other manner.

COMPANIES ACT 1981 - SECT 190
Sufficient instrument of transfer

SECT

190. A document that is a sufficient instrument of transfer under this Division may be used:
(a) where it relates to a transfer of marketable securities, as a proper instrument of transfer for the purposes of section 183 and as an instrument of transfer for the purposes of any other law or instrument governing or relating to those securities; and
(b) where it relates to a transfer of rights to marketable securities, as an instrument of transfer of those rights for the purposes of any law or instrument governing or relating to those rights or securities.

COMPANIES ACT 1981 - SECT 191
What is a sufficient instrument of transfer

SECT

191. (1) A document is a sufficient instrument of transfer of marketable securities if:
(a) it is an instrument relating to those marketable securities duly completed in accordance with or to the effect of:
(i) Form 1;
(ii) Part 1 of Form 1 and Parts 1 and 2 of Form 2; or
(iii) Part 1 of Form 1 and Parts 1 and 2 of Form 3; and
(b) where the document relates to marketable securities on which there is an uncalled liability (not being marketable securities that are partly paid shares in a no liability company) - the transferee's acceptance of the marketable securities duly completed in accordance with or to the effect of Form 4 is included in or attached to the instrument referred to in paragraph (a).

(2) A document is a sufficient instrument of transfer of rights to marketable securities if:
(a) it is an instrument relating to those rights duly completed in accordance with or to the effect of:
(i) Form 5;
(ii) Part 1 of Form 5 and Parts 1 and 2 of Form 6; or
(iii) Part 1 of Form 5 and Parts 1 and 2 of Form 7; and
(b) where the document relates to rights to marketable securities (not being marketable securities that are shares in a no liability company) for which the whole of the moneys to be subscribed is not payable in full on application being made for them - the transferee's acceptance of the marketable securities duly completed in accordance with or to the effect of Form 4 is included in or attached to the instrument referred to in paragraph (a).

(3) For the purposes of this Division, an instrument is not duly completed in accordance with or to the effect of Form 1, 2, 3, 5, 6 or 7 or a part of one of those forms unless:
(a) where the form or part refers to the name and address of the transferee - the instrument purports to state that name and address;
(b) where the form or part refers to the stamp of the transferor's broker - the instrument bears a stamp that purports to be such a stamp;
(c) where the form or part refers to the stamp of the transferee's broker - the instrument bears a stamp that purports to be such a stamp; and
(d) where the form or part refers to a securities exchange stamp - the instrument bears a stamp that purports to be a stamp of a securities exchange or of a securities exchange under a corresponding law.

COMPANIES ACT 1981 - SECT 192
Transfers by authorised trustee corporations

SECT

192. (1) In respect of the transfer of marketable securities by an authorized trustee corporation, or by an authorized trustee corporation and another person or other persons, to the beneficial owner of those marketable securities, being a transfer that is not made by way of a sale, gift or exchange of the marketable securities, a document is a sufficient instrument of transfer if:
(a) it is an instrument relating to those marketable securities duly completed in accordance with or to the effect of Form 8; and
(b) where the document relates to marketable securities on which there is an uncalled liability (not being marketable securities that are partly paid shares in a no liability company) - the transferee's acceptance of the marketable securities duly completed in accordance with or to the effect of Form 9 is included in or attached to the instrument referred to in paragraph (a).

(2) In respect of the transfer of rights to marketable securities by an authorized trustee corporation, or by an authorized trustee corporation and another person or other persons, in favour of the beneficial owner of those rights, being a transfer that is not made by way of a sale, gift or exchange of the rights, a document is a sufficient instrument of transfer if:
(a) it is an instrument relating to those rights duly completed in accordance with or to the effect of Form 10; and
(b) where those rights are rights to marketable securities (not being marketable securities that are shares in a no liability company) for which the whole of the moneys to be subscribed is not payable in full on application being made for them - the transferee's acceptance of the marketable securities to which those rights relate duly completed in accordance with or to the effect of Form 11 is included in or attached to the instrument referred to in paragraph (a).

COMPANIES ACT 1981 - SECT 193
Execution of transfer by transferee

SECT

193. (1) Where marketable securities in a company or prescribed corporation are transferred by means of a sufficient instrument of transfer under this Division, the transferee shall be deemed to have agreed at the relevant time to accept the marketable securities subject to the several terms and conditions on which the transferor held them at that time, being the terms and conditions applicable as between the company or prescribed corporation and the holder for the time being of the marketable securities.

(2) Where rights to marketable securities in a company or prescribed corporation for which the whole of the moneys to be subscribed is payable in full on application being made for them are transferred by means of a sufficient instrument of transfer under this Division, the transferee shall be deemed:
(a) to have made application at the relevant time to the company or prescribed corporation for the allotment to him of the marketable securities; and
(b) to have agreed at the relevant time to accept the marketable securities subject to the terms and conditions upon which they are offered by the company or prescribed corporation for subscription.

(3) Where marketable securities that are shares in a company or prescribed corporation are transferred by means of a sufficient instrument of transfer under this Division, the transferee shall be deemed to have agreed at the relevant time:
(a) to become a member of the company or prescribed corporation; and
(b) to be bound by the memorandum and articles or by the constituent documents of the company or prescribed corporation.

(4) In this section, the "relevant time" means:
(a) in relation to a sufficient instrument of transfer under section 191 - the time of the stamping of the instrument with a stamp purporting to be that of the transferee's broker; and
(b) in relation to an instrument that is a sufficient instrument of transfer under section 192 - the time of execution by the transferor.

COMPANIES ACT 1981 - SECT 194
Effect where instrument purports to bear transferor's broker's stamp

SECT

194. (1) This section applies where an instrument relating to marketable securities or rights to marketable securities:
(a) is a duly completed Part 1; and
(b) bears a stamp that purports to be that of the transferor's broker.

(2) Each associate (if any) of the broker (in this section called the "designated broker") of whom the stamp referred to in paragraph (1) (b) purports to be the stamp and, unless the designated broker is a broker's agent, the designated broker shall be taken to have warranted:
(a) that the statements in the instrument that purport to be certified by the transferor's broker are accurate; and
(b) that the transferor is:
(i) the registered holder of, or entitled to be registered
as the holder of, the securities; or
(ii) is entitled to the rights;
as the case may be, and is legally entitled or authorised to sell or dispose of the securities or rights.

(3) If the instrument has been duly completed in accordance with Part 1 of Form 1 or 5, then:
(a) if, when the instrument was stamped with the stamp referred to in paragraph (1) (b), the designated broker had authority to sell the securities or rights, on the transferor's behalf, to:
(i) the transferee;
(ii) particular persons who include, or particular classes
of persons at least one of which includes, the transferee; or
(iii) any person at all;
the designated broker shall be taken to have been authorised to execute, and to have executed, the instrument on the transferor's behalf; and
(b) each associate (if any) of the designated broker and, unless the designated broker is a broker's agent, the designated broker is or are, as the case requires, liable to indemnify:
(i) the issuing body in relation to the securities or
rights;
(ii) the transferor;
(iii) the transferee; and
(iv) the transferee's broker;
against any loss or damage arising if:
(v) the stamp referred to in paragraph (1) (b) is not in
fact the designated broker's stamp; or
(vi) apart from the effect of paragraph (a) of this
subsection, the designated broker was not authorised to execute the instrument on the transferor's behalf.

COMPANIES ACT 1981 - SECT 194A
Warranties by securities exchange where instrument purports to
bear its stamp

SECT

194A. (1) This section applies where an instrument relating to marketable securities or rights to marketable securities:
(a) has been duly completed in accordance with Part 1 of Form 3 or 7; and
(b) bears a stamp that purports to be that of a securities exchange.

(2) The securities exchange shall be taken to have warranted that:
(a) the statements in the instrument that purport to be certified by a securities exchange are accurate; and
(b) the transferor is:
(i) the registered holder of, or entitled to be registered
as the holder of, the securities; or
(ii) entitled to the rights;
as the case may be, and is legally entitled or authorised to sell or dispose of the securities or rights.

COMPANIES ACT 1981 - SECT 194B
Indemnities by securities exchange and broker where instruments
purport to bear their stamps

SECT

194B. (1) This section applies where:
(a) an instrument (in this section called the "first instrument") relating to marketable securities or rights to marketable securities:
(i) has been duly completed in accordance with Part 1 of
Form 1 or 5; and
(ii) bears a stamp that purports to be that of the
transferor's broker; and
(b) another instrument:
(i) relates to any or all of the securities or rights;
(ii) has been duly completed in accordance with Part 1 of
Form 3 or 7; and
(iii) bears a stamp that purports to be that of a
particular securities exchange.

(2) The securities exchange is liable to indemnify:
(a) the issuing body in relation to the securities or rights;
(b) the transferor in relation to the other instrument;
(c) the transferee in relation to the other instrument; and
(d) the broker of the transferee in relation to the other instrument;
against any loss or damage arising if:
(e) the stamp referred to in subparagraph (1) (a) (ii) is not in fact the stamp of the broker (in this section called the "designated broker") of whom it purports to be the stamp; or
(f) apart from the effect of paragraph 194 (3) (a), the designated broker was not authorised to execute the first instrument on behalf of the transferor in relation to the first instrument.

(3) Each associate (if any) of the designated broker and, unless the designated broker is a broker's agent, the designated broker is or are, as the case requires, liable to indemnify the securities exchange against any loss or damage arising as mentioned in subsection (2).

(4) Nothing in this section limits the operation of anything in section 194 or 194A or of anything else in this section.

COMPANIES ACT 1981 - SECT 194C
Joint and several warranties and liabilities

SECT

194C. (1) If 2 or more persons are taken to have warranted as mentioned in paragraph 194 (2) (a) or (b), they shall be taken to have so warranted jointly and severally.

(2) If 2 or more persons are liable as mentioned in paragraph 194 (3) (b) or subsection 194B (3), they are so liable jointly and severally.

COMPANIES ACT 1981 - SECT 194D
Additional operation of sections 194 to 194C

SECT

194D. (1) Sections 194 to 194C, inclusive, apply in relation to:
(a) marketable securities within the meaning of a corresponding law; or
(b) rights to marketable securities within the meaning of a corresponding law;
and, for the purposes of those sections as so applying:
(c) subject to paragraph (d) of this subsection, an expression has the same meaning in those sections as in that corresponding law; and
(d) a reference in those sections to an instrument bearing a stamp of a particular kind shall be taken to be a reference to the instrument bearing a stamp of that kind that purports to have been stamped in the Territory.

(2) The effect that a provision has by virtue of subsection (1) is additional to, and does not prejudice, the effect the provision otherwise has.

COMPANIES ACT 1981 - SECT 195
Registration of prescribed instruments

SECT

195. (1) A company or prescribed corporation with which an instrument that is a sufficient instrument of transfer under section 191 is lodged for the purpose of registering a transfer of marketable securities or obtaining the allotment or issue of marketable securities is, and its officers are, in the absence of knowledge to the contrary, entitled to assume without inquiry that:
(a) a stamp on the instrument that purports to be the stamp of the transferee's broker is the stamp of that broker;
(b) a stamp on the instrument that purports to be the stamp of the transferor's broker is the stamp of that broker; and
(c) a stamp on the instrument that purports to be the stamp of a securities exchange is the stamp of that securities exchange.

(2) A company or prescribed corporation with which an instrument that is a sufficient instrument of transfer under section 192 is lodged for the purpose of registering a transfer of marketable securities or obtaining the allotment or issue of marketable securities is, and its officers are, in the absence of knowledge to the contrary, entitled to assume without inquiry that:
(a) at the time of the execution of the instrument, the authorized trustee corporation named in the instrument was (whether alone or together with another person or other persons) holding the marketable securities or the rights to the marketable securities in the ordinary course of its business in trust for or on behalf of the transferee; and
(b) the transfer was not made by way of a sale, gift or exchange of the marketable securities or rights.

COMPANIES ACT 1981 - SECT 196
Operation of Division

SECT

196. (1) This Division applies and has effect in relation to the transfer of marketable securities and to the transfer of rights to marketable securities notwithstanding anything to the contrary in this Act other than this Division or in another law or instrument relating to the transfer of the securities or the transfer of the rights.

(2) Except as provided by this Division, this Division does not affect the terms and conditions on which marketable securities or rights to marketable securities are sold.

(3) Nothing in this Division affects any right of a company or prescribed corporation to refuse to acknowledge or register a person as the holder of marketable securities or to allot or issue marketable securities to a person on a ground other than an objection to the form of instrument lodged with the company or prescribed corporation purporting to transfer the marketable securities or rights to the marketable securities to him.

(4) The registration of a transfer of a marketable security, or the allotment or issue of a marketable security, by means of an instrument that is a sufficient instrument of transfer under this Division does not constitute a breach of any law, memorandum, articles, trust deed or other instrument relating to marketable securities.

(5) This Division does not prevent or affect the use of any other form of transfer of marketable securities or form of transfer of rights to marketable securities, or mode of execution of an instrument of transfer of marketable securities or mode of execution of an instrument of transfer of rights to marketable securities, that is otherwise permitted by law.

(6) A transfer of marketable securities or of rights to marketable securities by or to a trustee or legal representative may, notwithstanding any law or the provisions of the instrument (if any) creating or having effect in relation to the trust or will under which he is appointed trustee or legal representative, be effected by means of an instrument that is a sufficient instrument of transfer under this Division.

COMPANIES ACT 1981 - SECT 197
Occupation need not appear in register, instrument etc.

SECT

197. (1) The omission from a register, certificate or other document relating to marketable securities of a statement of the occupation of the person who is, or is entitled to be, registered as the holder of the marketable securities does not constitute a breach of any law, memorandum, articles, trust deed or other instrument relating to the marketable securities.

(2) Notwithstanding anything contained in the memorandum or articles of a company or the constituent documents of a prescribed corporation or in the terms or conditions upon which marketable securities or rights to marketable securities in a company or prescribed corporation are created or issued, it is not necessary in an instrument of transfer of marketable securities or of rights to marketable securities to state the occupation of the transferee or transferor or to have the signature of the transferee or transferor witnessed.

COMPANIES ACT 1981 - SECT 198
Offences

SECT

198. (1) A broker shall not, in the Territory, stamp with a broker's stamp an instrument that may be used as a sufficient instrument of transfer under this Division or under a corresponding law unless the instrument relates to a sale or purchase made in the ordinary course of business of the broker for a consideration of not less than the unencumbered market value (at the time of the sale or purchase) of the marketable securities or rights to marketable securities to which the instrument relates.

(1A) A person shall not, in the Territory, stamp with a stamp that purports to be that of the transferor's broker an instrument that may be used as a sufficient instrument of transfer under this Division or a corresponding law unless:
(a) the stamp is in fact that of the transferor's broker;
(b) apart from the effect of paragraph 194 (3) (a), or of the provision of that law that corresponds with that paragraph, as the case may be, the transferor's broker is authorised to execute the instrument on the transferor's behalf; and
(c) the person is the transferor's broker or is authorised so to stamp the instrument on the transferor's broker's behalf.

(2) A securities exchange shall not, in the Territory, stamp with a stamp of the securities exchange an instrument that may be used as a sufficient instrument of transfer of marketable securities or of rights to marketable securities under this Division or under a corresponding law unless:
(a) there has been lodged; or
(b) the securities exchange holds a duly completed Part 1, or a duly completed Part 1 within the meaning of that corresponding law, as the case may be, bearing a certificate that purports to be that of the transferor's broker that there has been or will be lodged;
with the issuing body in relation to the securities or rights a duly completed Part 1, or a duly completed Part 1 within the meaning of that corresponding law, as the case may be, relating to the securities or rights.

(3) A person shall not, in the Territory, execute an instrument that may be used as a sufficient instrument of transfer under section 192 or under a like provision of a corresponding law if the instrument relates to a transfer of marketable securities or of rights to marketable securities:
(a) made by way of a sale, gift or exchange of the marketable securities or rights; or
(b) to or in favour of a person who is not the beneficial owner of the marketable securities or rights.

(4) A person other than an authorized trustee corporation shall not, in the Territory, knowingly cause, authorize or permit to be executed an instrument that may be used as a sufficient instrument of transfer under section 192 or under a like provision of a corresponding law if it is not a sufficient instrument of transfer within the meaning of that section or provision, as the case may be.

(5) A person shall not knowingly lodge or cause to be lodged with a company or prescribed corporation an instrument that has been stamped in contravention of subsection (1), (1A) or (2), or an instrument that has been executed in contravention of subsection (3), for the purpose of securing the registration of the transfer of marketable securities or the allotment or issue of marketable securities to the transferee named in the instrument.

(6) An expression in this section that is used in a corresponding law has, in relation to a reference in this section to an instrument that is a sufficient instrument of transfer under that corresponding law, the same meaning as it has under that corresponding law.

COMPANIES ACT 1981 - DIVISION 9
Division 9 - Registration of Charges

COMPANIES ACT 1981 - SECT 199
Interpretation and application of Division

SECT

199. (1) In this Division and in Schedule 5, unless the contrary intention appears:
"document of title" means a document:
(a) used in the ordinary course of business as proof of possession or control, or of the right to possession or control, of property other than land; or
(b) authorizing or purporting to authorize, whether by endorsement or delivery, the possessor of the document to transfer or receive property other than land;
and includes:
(c) a bill of lading;
(d) a warehousekeeper's certificate;
(e) a wharfinger's certificate;
(f) a warrant or order for the delivery of goods; and
(g) a document that is, or evidences title to, a marketable security;
"present liability", in relation to a charge, means a liability that has arisen, being a liability the extent or amount of which is fixed or capable of being ascertained, whether or not the liability is immediately due to be met;
"prospective liability", in relation to a charge, means any liability that may arise in the future, or any other liability, but does not include a present liability;
"Register" means the Register of Company Charges referred to in section 203;
"registrable charge" means a charge to and in relation to which, by virtue of section 200, the provisions of this Division mentioned in subsection 200 (1) apply.

(2) In this Division and in Schedule 5, unless the contrary intention appears, a reference to property of a company includes a reference to property held by the company as trustee.

(3) A charge referred to in subsection 201 (3) or (4) or section 202 shall, until the charge is registered, be treated for the purposes of this Division and Schedule 5 as if it were not a registrable charge but, when the charge is so registered, it has the priority accorded to a registered charge as from the time of registration.

(4) The registration of a charge referred to in subsection 201 (3) or (4) or section 202 does not prejudice any priority that would have been accorded to the charge under any other law if the charge had not been registered.

(5) For the purposes of this Division and of Schedule 5, a notice or other document shall be taken to be lodged with the Commission when it is received at an office of the Commission by an officer authorized to receive it.

(6) A reference in this Division and in Schedule 5 to a company includes a reference to a registered foreign company.

(7) A reference in this Division and in Schedule 5 to a charge on property of a company shall, in the case of a company other than a foreign company, be construed as a reference to a charge on property of the company, whether within or outside Australia.

(8) A reference in this Division and in Schedule 5 to a charge on property of a company shall, in the case of a foreign company formed within Australia, be construed as a reference to a charge on property in the Territory of the foreign company.

(9) A reference in this Division and in Schedule 5 to a charge on property of a company shall, in the case of a foreign company formed outside Australia, be construed as a reference to a charge on property in Australia of the foreign company.

(10) For the purposes of this section, "Australia" includes the external Territories.

COMPANIES ACT 1981 - SECT 200
Charges required to be registered

SECT

200. (1) Subject to this section, the provisions of this Division relating to the giving of notice in relation to, the registration of, and the priorities of, charges apply to and in relation to the following charges (whether legal or equitable) on property of a company and do not apply to or in relation to any other charges:
(a) a floating charge on the whole or a part of the property, business or undertaking of the company;
(b) a charge on uncalled share capital or uncalled share premiums;
(c) a charge on a call, whether in respect of share capital or share premiums, made but not paid;
(d) a charge on a personal chattel, including a personal chattel that is unascertained or is to be acquired in the future, but not including a ship registered in an official register kept under a law in force in the Territory relating to title to ships;
(e) a charge on goodwill, on a patent or licence under a patent, on a trade mark or service mark or a licence to use a trade mark or service mark, on a copyright or a licence under a copyright or on a registered design or a licence to use a registered design;
(f) a charge on a book debt;
(g) a charge on a marketable security, not being:
(i) a charge created in whole or in part by the deposit of
a document of title to the marketable security; or
(ii) a mortgage under which the marketable security is
registered in the name of the chargee or a person nominated by him;
(h) a lien or charge on a crop, a lien or charge on wool or a stock mortgage;
(j) a charge on a negotiable instrument other than a marketable security.

(2) The provisions of this Division mentioned in subsection (1) do not apply to or in relation to:
(a) a charge, or a lien over property, arising by operation of law;
(b) a pledge of a personal chattel or of a marketable security;
(c) a charge created in relation to a negotiable instrument or a document of title to goods, being a charge by way of pledge, deposit, letter of hypothecation or trust receipt;
(d) a transfer of goods in the ordinary course of the practice of any profession or the carrying on of any trade or business; or
(e) a dealing, in the ordinary course of the practice of any profession or the carrying on of any trade or business, in respect of goods outside Australia.

(3) The reference in paragraph (1) (d) to a charge on a personal chattel is a reference to a charge on any article capable of complete transfer by delivery, whether at the time of the creation of the charge or at some later time, and includes a reference to a charge on a fixture or a growing crop that is charged separately from the land to which it is affixed or on which it is growing, but does not include a reference to a charge on:
(a) a document evidencing title to land;
(b) a chattel interest in land;
(c) a marketable security;
(d) a document evidencing a thing in action; or
(e) stock or produce on a farm or land that by virtue of a covenant or agreement ought not to be removed from the farm or land where the stock or produce is at the time of the creation of the charge.

(4) The reference in paragraph (1) (f) to a charge on a book debt is a reference to a charge on a debt due or to become due to the company at some future time on account of or in connection with a profession, trade or business carried on by the company, whether entered in a book or not, and includes a reference to a charge on a future debt of the same nature although not incurred or owing at the time of the creation of the charge, but does not include a reference to a charge on a marketable security, on a negotiable instrument or on a debt owing in respect of a mortgage, charge or lease of land.

(4A) The reference in paragraph (1) (h) to a lien or charge on a crop, a lien or charge on wool or a stock mortgage includes a reference to a security (however described) that is registrable under:
(a) a provision that is a relevant provision for the purposes of this subsection;
(b) a provision of a law of a participating State or participating Territory that is a relevant provision for the purposes of a provision of a law of that State or Territory that corresponds with this subsection; or
(c) a provision of a law of a State or of another Territory (other than a participating State or participating Territory) that corresponds with a provision that is a relevant provision for the purposes of this subsection.

(4B) Each of the provisions of Parts IV and V of the Instruments Ordinance 1933 is a relevant provision for the purposes of subsection (4A).

(5) For the purposes of this section, a company shall be deemed to have deposited a document of title to property with another person (in this subsection referred to as the "chargee") in a case where the document of title is not in the possession of the company if:
(a) the person who holds the document of title acknowledges in writing that he holds the document of title on behalf of the chargee; or
(b) a government, an authority or a corporation that proposes to issue a document of title in relation to the property agrees, in writing, to deliver the document of title, when issued, to the chargee.

(6) For the purposes of this section, a charge shall be taken to be a charge on property of a kind to which a particular paragraph of subsection (1) applies notwithstanding that the instrument of charge also charges other property of the company including other property that is of a kind to which none of the paragraphs of that subsection applies.

(7) The provisions of this Division mentioned in subsection (1) do not apply to or in relation to a charge on land.

(8) The provisions of this Division mentioned in subsection (1) do not apply to or in relation to a charge on fixtures given by a charge on the land to which they are affixed.

(9) The provisions of this Division mentioned in subsection (1) do not apply to or in relation to a charge created by a company in its capacity as legal personal representative of a deceased person or as trustee of the estate of a deceased person.

(10) A charge on property of a company is not invalid by reason only of the failure to lodge with the Commission or give to the company or another person a notice or other document that is required by this Division to be so lodged or given.

COMPANIES ACT 1981 - SECT 201
Lodgment of notice of charge and copy of instrument

SECT

201. (1) Where a company creates a charge, the company shall ensure that there is lodged with the Commission, within 45 days after the creation of the charge:
(a) a notice in the prescribed form setting out the following particulars:
(i) the name of the company and the date of the creation of
the charge;
(ii) whether the charge is a fixed charge, a floating
charge or both a fixed and floating charge;
(iii) if the charge is a floating charge - whether there is
any provision in the resolution or instrument creating or evidencing the charge that prohibits or restricts the creation of subsequent charges;
(iv) a short description of the liability (whether present
or prospective) secured by the charge;
(v) a short description of the property charged;
(vi) whether the charge is created or evidenced by a
resolution, by an instrument or by a deposit or other conduct;
(vii) if the charge is constituted by the issue of a
debenture or debentures - the name of the trustee (if any) for debenture holders;
(viii) if the charge is not constituted by the issue of a
debenture or debentures or there is no trustee for debenture holders - the name of the chargee;
(ix) such other information as is prescribed;
(b) if, pursuant to a resolution or resolutions passed by the company, the company issues a series of debentures constituting a charge to the benefit of which all the holders of debentures in the series are entitled in equal priority, and the charge is evidenced only by the resolution or resolutions and the debentures - a copy of the resolution or of each of the resolutions verified by a statement in writing to be a true copy, and a copy of the first debenture issued in the series and a statement in writing verifying the execution of that first debenture; and
(c) if, in a case to which paragraph (b) does not apply, the charge was created or evidenced by an instrument or instruments:
(i) the instrument or each of the instruments; or
(ii) a copy of the instrument or of each of the instruments
verified by a statement in writing to be a true copy, and a statement in writing verifying the execution of the instrument or of each of the instruments.

(2) In a case to which paragraph (1) (b) applies:
(a) the charge shall, for the purposes of subsection (1), be deemed to be created when the first debenture in the series of debentures is issued; and
(b) if, after the issue of the first debenture in the series, the company passes a further resolution authorizing the issue of debentures in the series, the company shall ensure that a copy of that resolution, verified by a statement in writing to be a true copy of that resolution, is lodged with the Commission within 45 days after the passing of that resolution.

(3) A foreign company that applies for registration as a company under Division 4 of Part III shall lodge with the application for registration the documents specified in subsection (5) in relation to any charge on property of the foreign company that would be registrable under this Division if the foreign company were a company as defined in subsection 5 (1).

(4) A foreign company that applies for registration under Division 5 of Part XIII shall lodge with the application for registration the documents specified in subsection (5) in relation to any charge on property of the foreign company that would be registrable under this Division if the foreign company were a registered foreign company.

(5) The documents required to be lodged under subsection (3) or (4) in relation to a charge on property of a foreign company are the following documents:
(a) a notice in the prescribed form:
(i) setting out the name of the foreign company;
(ii) if the charge was created by the foreign company -
specifying the date of the creation of the charge;
(iii) if the charge was a charge existing on property
acquired by the foreign company - setting out the date on which the property was so acquired; and
(iv) otherwise complying with the requirements of paragraph
(1) (a);
(b) if the charge was created or evidenced as mentioned in paragraph (1) (b):
(i) in the case of a charge created by the foreign company
- a copy of the resolution or of each of the resolutions referred to in that paragraph verified by a statement in writing to be a true copy and a copy of the first debenture issued in the series referred to in that paragraph and a statement in writing verifying the execution of that first debenture; or
(ii) in the case of a charge that existed on property
acquired by the foreign company - the copies referred to in subparagraph (i) verified by statements in writing to be true copies;
(c) if the charge was created or evidenced by an instrument or instruments (otherwise than as mentioned in paragraph (1) (b)):
(i) in the case of a charge created by the foreign company:
(A) the instrument or each of the instruments; or
(B) a copy of the instrument or of each of the
instruments verified by a statement in writing to be a true copy, and a statement in writing verifying the execution of the instrument or of each of the instruments; or
(ii) in the case of a charge that existed on property
acquired by the foreign company - a copy of the instrument or of each of the instruments verified by a statement in writing to be a true copy; and
(d) if the charge was created or evidenced as mentioned in paragraph (1) (b) and, after the issue of the first debenture in the series, the company passed a further resolution or resolutions authorizing the issue of debentures in the series - a copy of that resolution or of each of those resolutions verified by a statement in writing to be a true copy.

(6) A notice in relation to a charge, being a charge in relation to which paragraph (1) (b) or (c) or (5) (b) or (c) applies, shall not be taken to have been lodged with the Commission under subsection (1), (3) or (4) unless the notice is accompanied by the documents specified in that paragraph.

(7) Where a notice with respect to an instrument creating a charge has been lodged under subsection (1), (3) or (4), being a charge in respect of an issue of several debentures the holders of which are entitled under the instrument in equal priority to the benefit of the charge, section 204 and Schedule 5 have effect as if any charges constituted by those debentures were registered at the time when the charge to which the notice relates was registered.

(8) Where a payment or discount has been made or allowed, either directly or indirectly, by a company to a person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for debentures, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for debentures, the notice required to be lodged under subsection (1), (3) or (4) shall include particulars as to the amount or rate per centum of the payment or discount.

(9) Where a company issues debentures as security for a debt of the company, the company shall not thereby be regarded as having allowed a discount in respect of the debentures.

COMPANIES ACT 1981 - SECT 202
Acquisition of property subject to charge

SECT

202. (1) Where a company acquires property that is subject to a charge, being a charge that would have been registrable when it was created if it had been created by a company, the company shall, within 45 days after the acquisition of the property:
(a) ensure that there is lodged with the Commission:
(i) a notice in the prescribed form in relation to the
charge, setting out the name of the company and the date on which the property was so acquired and otherwise complying with the requirements of paragraph 201 (1) (a);
(ii) if the charge was created or evidenced as mentioned in
paragraph 201 (1) (b) - a copy of the resolution or of each of the resolutions referred to in that paragraph verified by a statement in writing to be a true copy and a copy of the first debenture issued in the series referred to in that paragraph verified by a statement in writing to be a true copy; and
(iii) if the charge was created or evidenced by an
instrument or instruments (otherwise than as mentioned in paragraph 201 (1) (b)):
(A) the instrument or each of the instruments; or
(B) a copy of the instrument or of each of the
instruments verified by a statement in writing to be a true copy; and
(b) give to the chargee notice that it has acquired the property and the date on which it was so acquired.

(2) A notice in relation to a charge, being a charge in relation to which subparagraph (1) (a) (ii) or (iii) applies, shall not be taken to have been lodged with the Commission under subsection (1) unless it is accompanied by the documents specified in that subparagraph.

COMPANIES ACT 1981 - SECT 203
Registration of documents relating to charges

SECT

203. (1) The Commission shall keep a register to be known as the Register of Company Charges.

(2) Where a notice in respect of a charge on property of a company that is required by section 201 or 202 to be lodged with the Commission is lodged with the Commission (whether during or after the period within which the notice was required to be lodged) and the notice contains all the particulars required by the relevant section to be included in the notice, the Commission shall forthwith cause to be entered in the Register the time and date when the notice was so lodged with the Commission and the following particulars in relation to the charge:
(a) if the charge is a charge created by the company, the date of its creation or, if the charge was a charge existing on property acquired by the company, the date on which the property was so acquired;
(b) a short description of the liability (whether present or prospective) secured by the charge;
(c) a short description of the property charged;
(d) the name of the trustee for debenture holders or, if there is no such trustee, the name of the chargee.

(3) Subject to subsection (9), where particulars in respect of a charge are entered in the Register in accordance with subsection (2), the charge shall be deemed to be registered, and to have been registered from and including the time and date entered in the Register under that subsection.

(4) Where a notice in respect of a charge on property of a company is lodged with the Commission under section 201 or 202 (whether during or after the period within which the notice was required to be lodged) and a document that accompanies that notice has not been duly stamped as required by any applicable law relating to stamp duty, the Commission shall cause to be entered in the Register the time and date when the notice was lodged and the particulars referred to in paragraphs (2) (a), (b), (c) and (d), but shall cause the word "provisional" to be entered in the Register next to the entry specifying that time and date.

(5) Where:
(a) in accordance with subsection (4), the word "provisional" is entered in the Register next to an entry specifying the time and date on which a notice in respect of a charge was lodged; and
(b) within a period of 30 days after the notice was lodged, or within such further period as the Commission, if it considers it to be appropriate in a particular case, allows, evidence satisfactory to the Commission that the document has been duly stamped has been produced to the Commission;
the Commission shall delete the word "provisional" from the entry in the Register relating to that charge, but if such evidence is not produced within the period, or the further period, referred to in paragraph (b), the Commission shall delete from the Register all the particulars that were entered in relation to the charge.

(6) Where a document that purports to be a notice in respect of a charge on property of a company for the purposes of section 201 or 202 is lodged with the Commission (whether during or after the period within which the notice was required to be lodged) and the document contains the name of the company concerned and the particulars referred to in subparagraph 201 (1) (a) (vii) or (viii), as the case requires, but does not contain some or all of the other particulars that are required to be included in the notice or is otherwise defective:
(a) the Commission shall cause to be entered in the Register the time and date when the document was so lodged with the Commission and such of the particulars referred to in paragraphs (2) (a), (b), (c) and (d) as are ascertainable from the document, but shall cause the word "provisional" to be entered in the Register next to the entry specifying that time and date; and
(b) the Commission shall, by notice in writing to the person who lodged the document, direct the person to ensure that there is lodged with the Commission, on or before the date specified in the notice, a notice in relation to the charge that complies with the requirements of section 201 or 202, as the case may be, but the giving by the Commission of a direction to the person under this paragraph does not affect any liability that the company may have incurred or may incur by reason of a contravention of section 201 or 202.

(7) Where the Commission gives a direction to a person under paragraph (6) (b) in relation to a charge:
(a) if the direction is complied with on or before the date specified in the notice containing the direction, the Commission shall:
(i) delete from the Register the word "provisional" that was
inserted pursuant to paragraph (6) (a); and
(ii) cause to be entered in the Register in relation to the
charge any particulars referred to in subsection (2) that have not previously been entered;
(b) if the direction is not complied with on or before that date - the Commission shall delete from the Register all the particulars that were entered in relation to the charge; and
(c) if the direction is complied with after that date - the Commission shall cause to be entered in the Register in relation to the charge the time at which and date on which the direction was complied with and the particulars referred to in paragraphs (2) (a), (b), (c) and (d).

(8) The Commission may enter in the Register in relation to a charge, in addition to the particulars expressly required by this section to be entered, such other particulars as the Commission thinks fit.

(9) If the word "provisional" is entered in the Register next to an entry specifying a time and date in relation to a charge, the charge shall be deemed not to have been registered but:
(a) where the word "provisional" is deleted from the Register pursuant to subsection (5) or paragraph (7) (a) - the charge shall be deemed to be registered and to have been registered from and including the time and date specified in the Register pursuant to subsection (4) or paragraph (6) (a), as the case may be; or
(b) where the particulars in relation to the charge are deleted from the Register pursuant to paragraph (7) (b) and those particulars and a time and date are subsequently entered in the Register in relation to the charge pursuant to paragraph (7) (c) - the charge shall be deemed to be registered from and including that last-mentioned time and date.

(10) Where, pursuant to subsection 201 (3) or (4), a foreign company lodges with the Commission notices relating to 2 or more charges on the same property of the foreign company, the time and date that shall be entered in the Register in relation to each of those charges are the time and date when the first notice was lodged with the Commission.

(11) Where, in accordance with subsection (10), the time and date that are entered in the Register are the same in relation to 2 or more charges on property of a foreign company, those charges shall, as between themselves, have the respective priorities that they would have had if they had not been registered under this Division.

(12) Where, pursuant to section 202, a company lodges with the Commission notices relating to 2 or more charges on the same property acquired by the company (being charges that are not already registered under this Division), the time and date that shall be entered in the Register in relation to each of those charges are the time and date when the first notice was lodged with the Commission.

(13) Where, in accordance with subsection (12), the time and date that are entered in the Register are the same in relation to 2 or more charges on property acquired by a company, those charges shall, as between themselves, have the respective priorities that they would have had if they had not been registered under this Division.

(14) Where a notice is lodged with the Commission under section 206 (whether during or after the period within which it was required to be lodged), the Commission shall forthwith cause to be entered in the Register the time and date when the notice was so lodged with the Commission and the particulars set out in the notice.

COMPANIES ACT 1981 - SECT 204
Priorities of charges

SECT

204. (1) Subject to this section, the provisions of Schedule 5 have effect with respect to the priorities, in relation to each other, of registrable charges on the property of a company.

(2) The application, in relation to particular registrable charges, of the order of priorities of charges set out in Schedule 5 is subject to:
(a) any consent (express or implied) that varies the priorities in relation to each other of those charges, being a consent given by the holder of one of those charges, being a charge that would otherwise be entitled to priority over the other charge; and
(b) any agreement between those chargees that affects the priorities in relation to each other of the charges in relation to which those persons are the chargees.

(3) The holder of a registered charge, being a floating charge, on property of a company shall be deemed, for the purposes of subsection (2), to have consented to that charge being postponed to a subsequent registered charge, being a fixed charge that is created before the floating charge becomes fixed, on any of that property unless:
(a) the creation of the subsequent registered charge contravened a provision of the instrument or resolution creating or evidencing the floating charge; and
(b) a notice in respect of the floating charge indicating the existence of the provision referred to in paragraph (a) was lodged with the Commission under section 201, 202 or 206 before the creation of the subsequent registered charge.

(4) Where a charge relates to property of a kind or kinds to which a particular paragraph or paragraphs of subsection 200 (1) applies or apply and also relates to other property, the provisions of Schedule 5 apply so as to affect the priority of the charge only in so far as it relates to the first-mentioned property and do not affect the priority of the charge in so far as it relates to the other property.

(5) The provisions of Schedule 5 do not apply so as to affect the operation of:
(a) the Copyright Act 1968;
(b) the Designs Act 1906;
(c) the Life Insurance Act 1945;
(d) the Patents Act 1990; or
(e) the Trade Marks Act 1955.

COMPANIES ACT 1981 - SECT 205
Certain charges void against liquidator or official manager

SECT

205. (1) Where:
(a) an order is made, or a resolution is passed, for the winding up of a company; or
(b) an official manager is appointed in respect of a company;
a registrable charge on any property of the company is void as a security on that property as against the liquidator or official manager, as the case may be, unless:
(c) a notice in respect of the charge was lodged with the Commission under section 201 or 202, as the case requires:
(i) within the relevant period; or
(ii) not later than 6 months before the commencement of the
winding up or the appointment of the official manager, as the case may be;
(d) in relation to a charge other than a charge to which subsection 201 (3) or (4) applies - the period within which a notice in respect of the charge (other than a notice under section 206) is required to be lodged with the Commission, being the period specified in the relevant section or that period as extended by the Court under subsection (3), has not expired at the commencement of the winding up or at the time of the appointment referred to in paragraph (b) and the notice is lodged before the expiration of that period;
(e) in relation to a charge to which subsection 201 (3) or (4) applies - the period of 45 days after the chargee becomes aware that the foreign company has been registered as a company under Division 4 of Part III or as a foreign company under Division 5 of Part XIII has not expired at the commencement of the winding up or at the time of the appointment referred to in paragraph (b) and the notice is lodged before the expiration of that period; or
(f) in relation to a charge to which section 202 applies - the period of 45 days after the chargee becomes aware that the property charged has been acquired by a company has not expired at the commencement of the winding up or at the time of the appointment referred to in paragraph (b) and the notice is lodged before the expiration of that period.

(2) The reference in paragraph (1) (c) to the relevant period shall be construed as a reference to:
(a) in relation to a charge to which subsection 201 (1) applies - the period of 45 days specified in that subsection, or that period as extended by the Court under subsection (3) of this section;
(b) in relation to a charge to which subsection 201 (3) or (4) applies - the period of 45 days after the chargee becomes aware that the foreign company has been registered as a company under Division 4 of Part III or as a foreign company under Division 5 of Part XIII; or
(c) in relation to a charge to which section 202 applies - the period of 45 days after the chargee becomes aware that the property has been acquired by a company.

(2A) Where, after there has been a variation in the terms of a registrable charge on property of a company having the effect of increasing the amount of the debt or increasing the liabilities (whether present or prospective) secured by the charge:
(a) an order is made, or a resolution is passed, for the winding up of the company; or
(b) an official manager is appointed in respect of the company;
the registrable charge is void as a security on that property to the extent that it secures the amount of the increase in that debt or liability unless:
(c) a notice in respect of the variation was lodged with the Commission under section 206:
(i) within the period of 45 days specified in subsection
206 (2) or that period as extended by the Court under subsection (3) of this section; or
(ii) not later than 6 months before the commencement of the
winding up or the appointment of the official manager, as the case may be; or
(d) the period of 45 days specified in subsection 206 (2), or that period as extended by the Court under subsection (3) of this section, has not expired at the commencement of the winding up or at the time of the appointment of the official manager and the notice is lodged before the expiration of that period.

(3) The Court, if it is satisfied that the failure to lodge a notice in respect of a charge, or in respect of a variation in the terms of a charge, as required by any provision of this Division:
(a) was accidental or due to inadvertence or some other sufficient cause; or
(b) is not of a nature to prejudice the position of creditors or shareholders;
or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested and on such terms and conditions as seem to the Court just and expedient, by order, extend the period for such further period as is specified in the order.

(4) Where:
(a) a registrable charge (in this subsection referred to as the "later charge") is created before the expiration of 45 days after the creation of an unregistered registrable charge (in this subsection referred to as the "earlier charge");
(b) the later charge relates to all or any of the property to which the earlier charge related; and
(c) the later charge is given as a security for the same liability as is secured by the earlier charge or any part of that liability;
the later charge, to the extent to which it is a security for the same liability or part thereof, and so far as it relates to the property comprised in the earlier charge, is void as a security on that property as against a liquidator or official manager of the company, notwithstanding that a notice in respect of the later charge was lodged with the Commission under section 201 within a period mentioned in paragraph (1) (c) or (d) of this section, unless it is proved to the satisfaction of the Court that the later charge was given in good faith for the purpose of correcting some material error in the earlier charge or under other proper circumstances and not for the purposes of avoiding or evading the provisions of this Division.

(5) Nothing in subsection (1) or (2A) operates to affect the title of a person to property purchased for value from a chargee or from a receiver appointed by a chargee in the exercise of powers conferred by the charge or implied by law if that person purchased the property in good faith and without notice of:
(a) the filing of an application for an order for the winding up of the company;
(b) the passing of a resolution for the voluntary winding up of the company; or
(c) the passing of a resolution that the company be placed under official management.

(6) The onus of proving that a person purchased property in good faith and without notice of any of the matters referred to in paragraphs (5) (a), (b) and (c) is on the person asserting that the property was so purchased.

COMPANIES ACT 1981 - SECT 205A
Charges in favour of certain persons void in certain cases

SECT

205A. (1) Where:
(a) a company creates a charge on property of the company in favour of a person who is, or in favour of persons at least one of whom is, a relevant person in relation to the charge; and
(b) within 6 months after the creation of the charge, the chargee purports to take a step in the enforcement of the charge without the Court having, under subsection (3), given leave for the charge to be enforced;
the charge, and any powers purported to be conferred by an instrument creating or evidencing the charge, are, and shall be deemed always to have been, void.

(2) Without limiting the generality of subsection (1), a person who:
(a) appoints a receiver of property of a company under powers conferred by an instrument creating or evidencing a charge created by the company; or
(b) whether directly or by an agent, enters into possession or assumes control of property of a company for the purposes of enforcing a charge created by the company;
shall be taken, for the purposes of subsection (1), to take a step in the enforcement of the charge.

(3) On application by the chargee under a charge, the Court may, if it is satisfied that:
(a) immediately after the creation of the charge, the company that created the charge was solvent; and
(b) in all the circumstances of the case, it is just and equitable for the Court to do so;
give leave for the charge to be enforced.

(4) Nothing in subsection (1) affects a debt, liability or obligation of a company that would, if that subsection had not been enacted, have been secured by a charge created by the company.

(5) Nothing in subsection (1) operates to affect the title of a person to property (other than the charge concerned or an interest in the charge concerned) purchased for value from a chargee under a charge, from an agent of a chargee under a charge, or from a receiver appointed by a chargee under a charge in the exercise of powers conferred by the charge or implied by law, if that person purchased the property in good faith and without notice that the charge was created in favour of a person who is, or in favour of persons at least one of whom is, as the case may be, a relevant person in relation to the charge.

(6) The onus of proving that a person purchased property in good faith and without notice that a charge was created as mentioned in subsection (5) is on the person asserting that the property was so purchased.

(7) In this section:
"chargee", in relation to a charge, means:
(a) in any case - the holder, or all or any of the holders, of the charge; or
(b) in the case of a charge that is an agreement to give or execute a charge in favour of a person or persons, whether upon demand or otherwise - that person, or all or any of those persons;
"officer", in relation to a company, includes, in the case of a registered foreign company, an agent of the registered foreign company as defined in Division 5 of Part XIII;
"receiver" includes a receiver and manager;
"relevant person", in relation to a charge created by a company, means:
(a) a person who is at the time when the charge is created, or who has been at any time during the period of 6 months ending at that time, an officer of the company; or
(b) a person associated, in relation to the creation of the charge, with a person of a kind referred to in paragraph (a).

COMPANIES ACT 1981 - SECT 206
Assignment and variation of charges

SECT

206. (1) Where, after a registrable charge on property of a company has been created, a person other than the original chargee becomes the holder of the charge, the person who becomes the holder of the charge shall, within 45 days after he becomes the holder of the charge:
(a) lodge with the Commission a notice stating that he has become the holder of the charge; and
(b) give the company a copy of the notice.

(2) Where, after a registrable charge on property of a company has been created, there is a variation in the terms of the charge having the effect of:
(a) increasing the amount of the debt or increasing the liabilities (whether present or prospective) secured by the charge; or
(b) prohibiting or restricting the creation of subsequent charges on the property;
the company shall, within 45 days after the variation occurs, ensure that there is lodged with the Commission a notice setting out particulars of the variation and accompanied by the instrument (if any) effecting the variation or a certified copy of that instrument.

(3) Where a charge created by a company secures a debt of an unspecified amount or secures a debt of a specified amount and further advances, a payment or advance made by the chargee to the company in accordance with the terms of the charge shall not be taken, for the purposes of subsection (2), to be a variation in the terms of the charge having the effect of increasing the amount of the charge or the liabilities (whether present or prospective) secured by the charge.

(4) A reference in this section to the chargee in relation to a charge shall, if the charge is constituted by a debenture or debentures and there is a trustee for debenture holders, be construed as a reference to the trustee for debenture holders.

(5) Nothing in section 201 requires the lodgment of a notice under that section in relation to a charge by reason only of the fact that the terms of the charge are varied only in a manner mentioned in this section.

COMPANIES ACT 1981 - SECT 207
Satisfaction of, and release of property from, charges

SECT

207. (1) Where, with respect to a charge registered under this Division:
(a) the debt or other liability the payment or discharge of which was secured by the charge has been paid or discharged in whole or in part; or
(b) the property charged or part of that property is released from the charge;
the person who was the holder of the charge at the time when the debt or other liability was so paid or discharged or the property or part of the property was released shall, within 14 days after receipt of a request in writing made by the company on whose property the charge exists, give to the company a memorandum in the prescribed form acknowledging that the debt or other liability has been paid or discharged in whole or in part or that the property or that part of it is no longer subject to the charge, as the case may be.

(2) The company may lodge the memorandum with the Commission and, upon the memorandum being so lodged, the Commission shall enter in the Register particulars of the matters stated in the memorandum.

(3) The reference in subsection (1) to the person who was the holder of a charge at the time when the debt or other liability was so paid or discharged or the property or part of the property was released shall, if the charge was constituted by a debenture or debentures and there was a trustee for debenture holders, be construed as a reference to the person who was, at that time, the trustee for debenture holders.

COMPANIES ACT 1981 - SECT 208
Lodgment of notices, offences etc.

SECT

208. (1) Where a notice in respect of a charge on property of a company is required to be lodged with the Commission under section 201 or 202 or subsection 206 (2), the notice may be lodged by the company or by any interested person.

(2) Where default is made in complying with section 201 or 202 or subsection 206 (2) in relation to a registrable charge on property of a company, the company and any officer of the company who is in default are each guilty of an offence.

(3) Where a person who becomes the holder of a registrable charge fails to comply with subsection 206 (1), the person and, if the person is a corporation, any officer of the corporation who is in default, are each guilty of an offence.

(4) Where a document required by this Division other than subsection 206 (1) to be lodged with the Commission is so lodged by a person other than the company concerned, that person:
(a) shall, within 7 days after the lodgment of the document, give to the company a copy of the document; and
(b) is entitled to recover from the company the amount of any fees properly paid by him on lodgment of the document.

COMPANIES ACT 1981 - SECT 209
Company to keep documents relating to charges and register of charges

SECT

209. (1) A company shall keep, at the place where the register referred to in subsection (2) is kept, a copy of every document relating to a charge on property of the company that is lodged with the Commission under this Division or was lodged with the Registrar of Companies under Division 7 of Part IV of the Companies Ordinance 1962 and a copy of every document that is given to the company under this Division.

(2) A company shall keep a register and shall, upon the creation of a charge (whether registrable or not) on property of the company, or upon the acquisition of property subject to a charge (whether registrable or not), forthwith enter in the register particulars of the charge, giving in each case:
(a) if the charge is a charge created by the company, the date of its creation or, if the charge was a charge existing on property acquired by the company, the date on which the property was so acquired;
(b) a short description of the liability (whether present or prospective) secured by the charge;
(c) a short description of the property charged;
(d) the name of the trustee for debenture holders or, if there is no such trustee, the name of the chargee; and
(e) the name of the person whom the company believes to be the holder of the charge.

(3) A register kept by a company pursuant to subsection (2) shall be open for inspection:
(a) by any creditor or member of the company - without charge; and
(b) by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

(4) A person may request a company to furnish him with a copy of the register or any part of the register and, where such a request is made, the company shall send the copy to that person:
(a) if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Commission approves; or
(b) in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Commission approves.

(5) If default is made in complying with any provision of this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 210
Certificates

SECT

210. (1) Where particulars of a charge are entered in the Register in accordance with this Division, the Commission shall, on request by any person, issue to that person a certificate under the common seal of the Commission setting out those particulars and stating the time and date when a notice in respect of the charge containing those particulars was lodged with the Commission and, if the word "provisional" appears in the Register next to the reference to that time and date, stating that fact.

(2) A certificate issued under subsection (1) is prima facie evidence of the matters stated in the certificate.

(3) Where particulars of a charge are entered in the Register in accordance with this Division, and the word "provisional" does not appear in the register next to the reference to the time and date when a notice in respect of the charge was lodged with the Commission, the Commission shall, on request by any person, issue to that person a certificate under the common seal of the Commission stating that particulars of the charge are entered in the Register in accordance with this Division.

(4) A certificate issued under subsection (3) is conclusive evidence that the requirements of this Division as to registration (other than the requirements relating to the period after the creation of the charge within which notice in respect of the charge is required to be lodged with the Commission) have been complied with.

COMPANIES ACT 1981 - SECT 211
Registration under other legislation relating to charges

SECT

211. (1) Where, whether before or after the prescribed time, a notice in relation to a charge was or is required to be lodged with the Commission under this Division or the corresponding provisions of the law of a participating State or participating Territory:
(a) the charge is not required to be registered under the provisions of the Instruments Ordinance 1933;
(b) no provision of that Ordinance relating to priorities applies to or in relation to the charge; and
(c) a failure to register the charge under that Ordinance does not affect the validity, or limit the effect, of the charge.

(2) Where:
(a) a transfer, assignment or giving of security, whether before or after the prescribed time, by a company, a recognized company or a recognized foreign company is registrable under Part III of the Instruments Ordinance 1933;
(b) notice in relation to the transfer, assignment or giving of security was or is required to be lodged with the Commission under this Division or the corresponding provisions of the law of a participating State or participating Territory; and
(c) the transfer, assignment or giving of security has been or is registered under this Division or the corresponding provisions of the law of that State or Territory;
the transfer, assignment or giving of security is, subject to paragraph (1) (b), as valid and effectual as if it had been duly registered under Part III of that Ordinance.

(3) Where:
(a) a crop lien given, whether before or after the prescribed time, by a company, a recognized company or a recognized foreign company is registrable under Part IV of the Instruments Ordinance 1933;
(b) notice in relation to the crop lien was or is required to be lodged with the Commission under this Division or the corresponding provisions of the law of a participating State or participating Territory; and
(c) the crop lien has been or is registered under this Division or the corresponding provisions of the law of that State or Territory;
then, subject to paragraph (1) (b), the crop lien is as valid and effectual, and sections 18, 19 and 20, subsection 21 (1) and section 24 of that Ordinance have effect in relation to the crop lien, as if the crop lien had been duly registered under Part IV of that Ordinance.

(4) Where:
(a) a wool lien given, whether before or after the prescribed time, by a company, a recognized company or a recognized foreign company is registrable under Part V of the Instruments Ordinance 1933;
(b) notice in relation to the wool lien was or is required to be lodged with the Commission under this Division or the corresponding provisions of the law of a participating State or participating Territory; and
(c) the wool lien has been or is registered under this Division or the corresponding provisions of the law of that State or Territory;
then, subject to paragraph (1) (b), the wool lien is as valid and effectual, and section 26, subsection 29 (1) and sections 33 and 34 of that Ordinance have effect in relation to the wool lien, as if the wool lien had been duly registered under Part V of that Ordinance.

(5) Where:
(a) a stock mortgage given, whether before or after the prescribed time, by a company, a recognized company or a recognized foreign company is registrable under Part V of the Instruments Ordinance 1933;
(b) notice in relation to the stock mortgage was or is required to be lodged with the Commission under this Division or the corresponding provisions of the law of a participating State or participating Territory; and
(c) the stock mortgage has been or is registered under this Division or the corresponding provisions of the law of that State or Territory;
then, subject to paragraph (1) (b), the stock mortgage is as valid and effectual, and subsection 29 (1) and sections 33 and 34 of that Ordinance have effect in relation to the stock mortgage, as if the stock mortgage had been duly registered under Part V of that Ordinance.

(6) Nothing is this section applies in relation to a charge given, whether before or after the prescribed time, by a company, a recognized company or a recognized foreign company jointly with another person who is, or other persons at least one of whom is, neither a company, a recognized company nor a recognized foreign company.

(7) In this section, "prescribed time" means the commencement of section 6 of the Companies and Securities Legislation (Miscellaneous Amendments) Act (No. 1) 1984.

COMPANIES ACT 1981 - SECT 212
Power of Court to rectify Register etc.

SECT

212. Where the Court is satisfied:
(a) that a particular with respect to a registrable charge on property of a company has been omitted from, or mis-stated in, the Register or a memorandum referred to in section 207; and
(b) that the omission or mis-statement:
(i) was accidental or due to inadvertence or to some other
sufficient cause; or
(ii) is not of a nature to prejudice the position of
creditors or shareholders;
or that on other grounds it is just and equitable to grant relief;
the Court may, on the application of the company or any person interested and on such terms and conditions as seem to the Court just and expedient, order that the omission or mis-statement be rectified.

COMPANIES ACT 1981 - SECT 213
Charges on property of recognised companies or recognised
foreign companies

SECT

213. The provisions of the law of a participating State or participating Territory that correspond with the provisions of this Division (other than this section) and with Schedule 5 apply in and in relation to the Australian Capital Territory:
(a) in relation to property of a recognized company incorporated in that participating State or participating Territory; and
(b) in relation to property in Australia and the external Territories of a recognized foreign company registered in that participating State or participating Territory.

COMPANIES ACT 1981 - SECT 214
Provisions applying when incorporation transferred

SECT

214. (1) Where a recognized company is registered as a company under Division 4 of Part III and, immediately before the company is so registered, a charge or charges on property of the company was or were registered under the provisions of the law of the State or Territory from which the company transferred its incorporation that correspond with this Division and was not or were not registered under this Division:
(a) the Commission shall forthwith enter in the Register the time and date, and the particulars, entered in the register of company charges kept under those provisions in relation to that charge or those charges; and
(b) the time and date, and the particulars, so entered shall be deemed to have been entered in the Register in accordance with subsection 203 (2).

(2) Where a foreign company that was registered as a foreign company under the law of a participating State or participating Territory is registered as a company under Division 4 of Part III and, immediately before the company is so registered, a charge or charges on property of the company was or were registered under the provisions of the law of that State or Territory that correspond with this Division and was not or were not registered under this Division:
(a) the Commission shall forthwith enter in the Register the time and date, and the particulars, entered in the register of company charges kept under those provisions in relation to that charge or those charges; and
(b) the time and date, and the particulars, so entered shall be deemed to have been entered in the Register in accordance with subsection 203 (2).

COMPANIES ACT 1981 - SECT 215
Power to exempt from compliance with certain requirements of Division

SECT

215. (1) The Commission may, by instrument in writing, exempt a person, as specified in the instrument and subject to such conditions (if any) as are specified in the instrument, from compliance with such of the requirements of section 201, 202 or 206 relating to:
(a) the particulars to be contained in a notice under the relevant section;
(b) the documents (other than the notice) to be lodged under the relevant section; or
(c) the verification of any document required to be lodged under the relevant section;
as are specified in the instrument.

(2) A person who is exempted by the Commission, subject to a condition, from compliance with a requirement of section 201, 202 or 206 shall not contravene or fail to comply with the condition.

(3) Where a person has contravened or failed to comply with a condition to which an exemption under this section is subject, the Court may, on the application of the Commission, order the person to comply with the condition.

COMPANIES ACT 1981 - SECT 215A
Charges created before commencement of this Act

SECT

215A. (1) Notwithstanding the repeals effected by section 4:
(a) Division 7 of Part IV of the Companies Ordinance 1962; and
(b) any other provisions of that Ordinance that are necessary for the effectual operation of that Division;
continue in force, as if that Ordinance had not been repealed, in relation to:
(c) any charge created by a corporation before the commencement of this Act; and
(d) any charge to which property acquired by a corporation before the commencement of this Act was subject when the property was so acquired;
and the provisions of this Division do not apply in relation to any such charge.

(2) Subsection (1) operates in substitution for section 18 of the Companies (Transitional Provisions) Act 1981.

COMPANIES ACT 1981 - DIVISION 10
Division 10 - Exemption from, and modification of the
application of, Divisions of this Part and
related provisions

COMPANIES ACT 1981 - SECT 215B
Banking business

SECT

215B. (1) Subject to subsection (3):
(a) nothing in a prescribed provision applies to or in relation to anything done or to be done by a banking corporation in the ordinary course of its banking business;
(b) a banking corporation is not required to comply with a prescribed provision in respect of anything done or to be done by the corporation in the ordinary course of its banking business; and
(c) a banking corporation shall not be taken, by reason of anything done or to be done by the corporation in the ordinary course of its banking business, to be a borrowing corporation for the purposes of a prescribed provision.

(2) In subsection (1), "prescribed provision" means a provision of Division 1 or 5 or of section 552.

(3) Where:
(a) a borrowing corporation is required by subsection 152 (1) to make provision in a trust deed for the appointment of a corporation as a trustee for the holders of debentures; and
(b) a banking corporation is appointed as a trustee for the holders of those debentures;
subsection (1) does not affect the application of a provision of Division 5 to or in relation to the banking corporation in its capacity as trustee for the holders of those debentures.

COMPANIES ACT 1981 - SECT 215C
Powers of Commission: Divisions 1, 2, 5 and 6 and section 552

SECT

215C. (1) This section applies to Divisions 1, 2, 5 and 6.

(2) The Commission may, by instrument in writing, exempt a person, as specified in the instrument and subject to such conditions (if any) as are specified in the instrument, from compliance with all or any of the provisions of:
(a) the Divisions to which this section applies;
(b) regulations made for the purposes of the provisions of those Divisions or any of them; and
(c) section 552.

(3) Without limiting the generality of subsection (2), an exemption under that subsection may relate to particular securities or to securities included in a class of securities.

(6) The Commission may, by instrument in writing, declare that a Division to which this section applies and regulations made for the purposes of the provisions of that Division or any of them, shall have effect in their application to or in relation to a particular person or particular persons:
(a) in a particular case; or
(b) in relation to particular securities or securities included in a particular class of securities;
as if a provision or provisions of that Division or of those regulations specified in the instrument were omitted, modified or varied in a manner specified in the instrument and, where such a declaration is made, that Division and those regulations have effect accordingly.

(7) The Commission may, by instrument in writing, declare that section 552 shall have effect in its application to or in relation to a particular person or particular persons:
(a) in a particular case; or
(b) in relation to particular securities or securities included in a particular class of securities;
as if a provision or provisions of that section specified in the instrument were omitted, modified or varied in a manner specified in the instrument and, where such a declaration is made, section 552 has effect accordingly.

(9) An instrument executed under section 109 of this Act and in force immediately before the commencement of section 47 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 continues to have effect, and may be revoked or varied, after that commencement as if section 109 of this Act had not been repealed.

(10) An order published in the Gazette under subsection 172 (6) of this Act and in force immediately before the commencement of section 65 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 continues to have effect, and may be revoked or varied, after that commencement as if subsection 172 (6) of this Act had not been omitted.

(11) An order published, or deemed to have been published, in the Gazette under subsection 176 (1) of this Act and in force immediately before the commencement of section 66 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 continues to have effect, and may be revoked or varied, after that commencement as if subsection 176 (1) of this Act had not been omitted.

COMPANIES ACT 1981 - SECT 215DA
Powers of Commission: Divisions 7 and 8 and Schedule 4

SECT

215DA. (1) This section applies to Divisions 7 and 8.

(2) The Commission's power to grant an exemption or make a declaration under this section may be exercised in relation to securities or a class of securities only where the Commission is satisfied that:
(a) if the exemption were granted or the declaration were made, the interests of the holders of those securities or of securities in that class would continue to have adequate protection; and
(b) the granting of the exemption or the making of the declaration would make transfer of those securities, or of securities in that class, more efficient.

(3) The Commission may, by writing, exempt particular securities, or a particular class of securities, either generally or as otherwise provided in the exemption, and either unconditionally or subject to such conditions as are specified in the exemption, from the operation of all or any of the provisions of:
(a) the Divisions to which this section applies; and
(b) regulations made for the purposes of the provisions of those Divisions or any of them.

(4) The Commission may, by writing, declare that a Division to which this section applies, and regulations made for the purposes of the provisions of that Division or any of them, shall have effect in their application in relation to particular securities, or a particular class of securities, either generally or as otherwise provided in the declaration, as if a specified provision or provisions of that Division or of those regulations were omitted, modified or varied in a manner specified in the declaration.

(5) The Commission may, by writing, declare that, for the purposes of Division 8 in its application in relation to particular securities, or a particular class of securities, either generally or as otherwise provided in the declaration, Schedule 4 shall have effect as if:
(a) a specified form or forms in that Schedule were omitted, modified or varied as specified in the declaration; or
(b) a form set out, or otherwise specified, in the declaration, or each of 2 or more such forms, were inserted in, or added to, that Schedule, as the case requires.

(6) A declaration made in accordance with subsection (4) or (5) has effect accordingly.

(7) In this section:
"securities" means:
(a) securities of a corporation; or
(b) marketable securities, or rights to marketable securities, within the meaning of Division 8 or of provisions of a law of a participating State or participating Territory that correspond with that Division.

COMPANIES ACT 1981 - SECT 215DB
Exemptions and declarations under sections 215C and 215DA

SECT

215DB. (1) The Commission shall cause a copy of an exemption or declaration under section 215C or 215DA to be published in the Gazette, but failure to do so does not affect the validity of the exemption or declaration.

(2) A person shall not contravene a condition to which an exemption under subsection 215C (2) or 215DA (3) is subject.

(3) Where a person has contravened a condition to which an exemption under subsection 215C (2) or 215DA (3) is subject, the Court may, on the application of the Commission, order the person to comply with the condition.

COMPANIES ACT 1981 - SECT 215D
Retirement village schemes

SECT

215D. (1) Where:
(a) there is attached to a share or debenture a right to participate in a retirement village scheme; and
(b) each of the other rights, and each interest (if any), attached to the share or debenture is a right or interest that is merely incidental to the right referred to in paragraph (a);
nothing in a prescribed provision applies to or in relation to the share or debenture.

(2) Nothing in a prescribed provision applies to or in relation to a prescribed interest that is constituted by a right to participate in a retirement village scheme.

(3) In this section:
"prescribed provision" means a provision of Division 1, 2, 5 or 6 or of section 552;
"retirement village scheme" means a scheme, undertaking or enterprise (in this definition referred to as the "relevant scheme"), whether in the Territory or elsewhere, that is being, or is proposed to be, carried out or undertaken with the intention that the participants, or a majority of the participants, in the relevant scheme be provided, in connection with the relevant scheme, with residential accommodation within a retirement community, whether or not the entitlement of a participant to be provided with such accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is provided, but does not include a time-sharing scheme.

COMPANIES ACT 1981 - PART V
PART V - MANAGEMENT AND ADMINISTRATION

COMPANIES ACT 1981 - DIVISION 1
Division 1 - Office and Name

COMPANIES ACT 1981 - SECT 216
Registered office of company

SECT

216. (1) A company shall, as from the day of its incorporation, have a registered office within the Territory to which all communications and notices may be addressed and which shall be open and accessible to the public:
(a) where a notice has been lodged by the company with the Commission under subsection 217 (2) or under a corresponding previous law of the Territory - for such hours (being not less than 3) between the hours of 9 a.m. and 5 p.m. of each day, Saturdays, Sundays and holidays excepted, as are specified in the later of that notice or a notice lodged by the company with the Commission under subsection 217 (4) or under a corresponding previous law of the Territory; or
(b) where a notice has not been lodged by the company with the Commission under subsection 217 (2) or under a corresponding previous law of the Territory - for not less than 5 hours between 10 a.m. and 4 p.m. of each day, Saturdays, Sundays and holidays excepted.

(2) If default is made in complying with subsection (1), the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 217
Notice of address of registered office and office hours

SECT

217. (1) On the lodging of the memorandum of a proposed company for registration, there shall be lodged with the Commission notice in the prescribed form of the address of the proposed registered office of the company.

(2) On the lodging of the memorandum of a proposed company for registration or at any later time, notice in the prescribed form of the hours (being not less than 3) between the hours of 9 a.m. and 5 p.m. of each day, Saturdays, Sundays and holidays excepted, during which the registered office of the company is to be open and accessible to the public may be lodged with the Commission.

(3) Notice in the prescribed form of a change in the situation of the registered office of a company shall be lodged by the company with the Commission not later than 7 days after the day on which the change occurred.

(4) Where a notice has been lodged by a company under subsection (2) or under a corresponding previous law of the Territory, notice in the prescribed form of a change of the hours during which the registered office of the company is open and accessible to the public shall be lodged by the company with the Commission not later than 7 days after the day on which the change occurred.

(5) If default is made in complying with subsection (3) or (4), the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 218
Publication of name

SECT

218. (1) The name of a company shall appear in legible characters on:
(a) the common seal and every other seal of the company; and
(b) every business letter, statement of account, invoice, order for goods, order for services, official notice, publication, bill of exchange, promissory note, cheque or other negotiable instrument, indorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument, receipt and letter of credit of, or purporting to be issued or signed by or on behalf of, the company, whether or not the company is carrying on a business under a business name;
and, if default is made in complying with this subsection, the company is guilty of an offence.
Penalty: $1,000.

(2) If an officer of a company or any person on its behalf:
(a) uses or authorizes the use of any seal that purports to be a seal of the company but on which the name of the company does not appear as required by subsection (1);
(b) issues or authorizes the issue of any business letter, statement of account, invoice, order for goods, order for services or official notice or publication of the company on which the name of the company does not appear as required by that subsection; or
(c) signs, issues or authorizes to be signed or issued on behalf of the company any bill of exchange, promissory note, cheque or other negotiable instrument, any indorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument, or any receipt or letter of credit, on which the name of the company does not appear as required by that subsection;
he is guilty of an offence.
Penalty: $1,000.

(3) If an officer of a company or any person on its behalf signs, issues or authorizes to be signed or issued on behalf of the company any bill of exchange, promissory note, cheque or other negotiable instrument, or any indorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument, or any letter of credit, on which the name of the company does not appear as required by subsection (1), he is liable to the holder of the instrument or letter of credit for the amount due on it unless that amount is paid by the company.

(4) A company shall paint or affix, and keep painted or affixed, in a conspicuous position and in letters easily legible, on the outside of the office or place that is its registered office, and on the outside of every other office or place at which its business is carried on and that is open and accessible to the public:
(a) its name; and
(b) in the case of the office or place that is its registered office - the words "Registered Office";
and, if default is made in complying with this subsection, the company is guilty of an offence.
Penalty: $1,000.

COMPANIES ACT 1981 - DIVISION 2
Division 2 - Directors and other Officers

COMPANIES ACT 1981 - SECT 219
Directors

SECT

219. (1) A public company shall have at least 3 directors and a proprietary company shall have at least 2 directors.

(2) A person is incapable of being appointed as a director of a company unless he is a natural person.

(3) In the case of a public company, at least 2 directors shall be natural persons who ordinarily reside within Australia and, in the case of a proprietary company, at least one director shall be a natural person who ordinarily so resides.

(4) Where the articles of a company incorporated before the date of commencement of this Act provide for the appointment of one director only, the articles shall on and after that date be deemed to provide for the appointment of 2 directors.

(5) If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 220
Restrictions on appointment or advertisement of director

SECT

220. (1) A person shall not be named as a director or proposed director in the memorandum or articles of a company, or in a prospectus, unless before the registration of the memorandum or articles or the issue of the prospectus, as the case may be, he has by himself or by his agent authorized in writing for the purpose signed and lodged with the Commission a consent in writing to act as a director and:
(a) signed the memorandum for a number of shares not less than his qualification (if any);
(b) signed and lodged with the Commission an undertaking in writing to take from the company and pay for his qualification shares (if any);
(c) made and lodged with the Commission a statement in writing to the effect that a number of shares, not less than his qualification (if any), are registered in his name; or
(d) in the case of a company formed, or intended to be formed, by way of reconstruction of another corporation or group of corporations or to acquire the shares in another corporation or group of corporations - made and lodged with the Commission a statement in writing that he was a shareholder in that other corporation or in one or more of the corporations of that group and that, as a shareholder, he will be entitled to receive and have registered in his name a number of shares not less than his qualification by virtue of the terms of an agreement relating to the reconstruction.

(2) Where a person has signed and lodged an undertaking to take and pay for his qualification shares, he is, as regards those shares, in the same position as if he had signed the memorandum for that number of shares.

(3) The foregoing provisions of this section (other than the provisions relating to the signing of a consent to act as director) do not apply to:
(a) a company not having a share capital;
(b) a proprietary company; or
(c) a prospectus issued by or on behalf of a company or the articles adopted by a company after the expiration of one year from the date of incorporation of the company.

(4) On the lodging of the memorandum of a company for registration, the persons desiring the incorporation of the company shall also lodge with the Commission a list, certified by one of those persons to be correct, of the persons who have consented to be directors of the company, and, if the list contains the name of any person who has not so consented, the person who certified the list to be correct is guilty of an offence.

COMPANIES ACT 1981 - SECT 221
Qualification of director

SECT

221. (1) Without affecting the operation of any of the preceding provisions of this Division, a director who is by the articles required to hold a specified share qualification and is not already qualified shall obtain his qualification within 2 months after his appointment or such shorter period as is fixed by the articles.

(2) Unless otherwise provided by the articles, the qualification of any director of a company must be held by him solely and not as one of several joint holders.

COMPANIES ACT 1981 - SECT 222
Vacation of office

SECT

222. (1) The office of a director of a corporation is, by force of this section, vacated if:
(a) he has not within the period referred to in subsection 221 (1) obtained his qualification;
(b) after so obtaining his qualification he ceases at any time to hold his qualification;
(c) he becomes an insolvent under administration;
(d) he is convicted of an offence referred to in subsection 227 (2);
(e) he becomes subject to a section 227A order;
(f) he becomes subject to a section 562 order; or
(g) he becomes subject to a section 562A notice.

(1A) The office of a director of a corporation is, by force of this subsection, vacated at the commencement of section 69 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 if, immediately before that commencement, he was subject to a section 562 order.

(2) A person whose office is vacated by reason of paragraph (1) (a) or (b) is incapable of being re-appointed as a director until he has obtained his qualification.

(3) A person whose office is vacated by reason of paragraph (1) (c) is incapable, without the leave of the Court, of being re-appointed as a director until he ceases to be an insolvent under administration.

(4) A person whose office is vacated by reason of paragraph (1) (d) is incapable, without the leave of the Court, of being re-appointed as a director until the expiration of the period of 5 years referred to in subsection 227 (2).

(4A) A person whose office is vacated by reason of paragraph (1) (e) or (f) or subsection (1A) is incapable of being re-appointed as a director until the expiration of the period specified in the order referred to in that paragraph or subsection, as the case may be.

(4B) A person whose office is vacated by reason of paragraph (1) (g) is incapable, without the leave of the Court, of being re-appointed as a director until the expiration of the period specified in the notice referred to in that paragraph.

(5) A person whose office is vacated by reason of paragraph (1) (a) or (b) shall not purport to act as a director of the corporation unless he is validly re-appointed as a director.
Penalty: $1,000 or 3 months imprisonment, or both.

COMPANIES ACT 1981 - SECT 223
Appointment of directors to be voted on individually

SECT

223. (1) At a general meeting of a public company, a motion for the appointment of 2 or more persons as directors by a single resolution shall not be moved unless a resolution that it be moved has first been agreed to by the meeting without any vote being cast against it.

(2) A resolution passed pursuant to a motion moved in contravention of this section is void, whether or not its being so moved was objected to at the time.

(3) Where a resolution pursuant to a motion moved in contravention of this section is passed, no provision for the automatic re-appointment of retiring directors in default of another appointment applies.

(4) For the purposes of this section, a motion for approving a person's appointment or for nominating a person for appointment shall be treated as a motion for his appointment.

(5) Nothing in this section applies to a resolution altering the company's articles.

(6) Nothing in this section prevents the election of 2 or more directors by ballot or poll.

COMPANIES ACT 1981 - SECT 224
Validity of acts of directors and secretaries

SECT

224. (1) The acts of a director or secretary are valid notwithstanding any defect that may afterwards be discovered in his appointment or qualification.

(2) Where a person whose office as director of a corporation is vacated pursuant to subsection 222 (1) purports to do an act as director of the corporation, that act is as valid, in relation to a person dealing with the corporation in good faith and for value and without actual knowledge of the matter referred to in that subsection by reason of which the office of the first-mentioned person was vacated, as if that office had not been vacated.

COMPANIES ACT 1981 - SECT 225
Removal of directors

SECT

225. (1) A public company may, by resolution, remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him, but, where any director so removed was appointed to represent the interests of a particular class of shareholders or debenture holders, the resolution to remove him does not take effect until his successor has been appointed.

(2) Special notice is required of any resolution to remove a director under this section or to appoint some person in place of a director so removed at the meeting at which he is removed and, on receipt of notice of an intended resolution to remove a director under this section, the company shall forthwith send a copy of the notice to the director concerned, and the director (whether or not he is a member of the company) is entitled to be heard on the resolution at the meeting.

(3) Where notice is given pursuant to subsection (2) and the director concerned makes with respect to the notice representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so:
(a) in any notice of the resolution given to members of the company - state the fact of the representations having been made; and
(b) send a copy of the representations to every member of the company to whom notice of the meeting has been or is sent;
and, if a copy of the representations is not so sent because they were received too late or because of the company's default, the director may, without prejudice to his right to be heard orally, require that the representations be read out at the meeting.

(4) Notwithstanding the foregoing provisions of this section, copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the Court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter, and the Court may order the costs of the company or the other person on an application under this section to be paid in whole or in part by the director, notwithstanding that he is not a party to the application.

(5) A vacancy created by the removal of a director under this section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy.

(6) A person appointed as director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become a director on the day on which the person in whose place he is appointed was last appointed a director.

(7) Nothing in the foregoing provisions of this section shall be taken as depriving a person removed under those provisions of compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director or as derogating from any power to remove a director that may exist apart from this section.

(8) A director of a public company shall not be removed by, or be required to vacate his office by reason of, any resolution, request or notice of the directors or any of them notwithstanding anything in the articles or any agreement.

COMPANIES ACT 1981 - SECT 226
Age of directors

SECT

226. (1) Subject to this section, no person of or over the age of 72 years shall be appointed or act as a director of:
(a) a public company; or
(b) a company that is a subsidiary of:
(i) a public company; or
(ii) a corporation that is a public company within the
meaning of the corresponding law of a State or of another Territory;
but nothing in this subsection prevents a person from acting as a director of a company during the period commencing on the day on which he attains the age of 72 years and ending at the conclusion of the annual general meeting commencing next after that day.

(2) The office of a director of a public company or of a company referred to in paragraph (1) (b) becomes vacant at the conclusion of the annual general meeting of that public company or that other company, as the case may be, commencing next after the director attains the age of 72 years.

(3) An act done by a person as director is valid notwithstanding that it is afterwards discovered that he was of or over the age of 72 years at the time of his appointment or that his appointment had terminated by virtue of subsection (2).

(4) Where the office of a director has become vacant by virtue of subsection (2), no provision for the automatic re-appointment of retiring directors in default of another appointment applies in relation to that director.

(5) If a vacancy created by virtue of subsection (2) is not filled at the meeting at which the office became vacant, the office may be filled as a casual vacancy.

(6) Subject to subsection (7), a person of or over the age of 72 years may, by a resolution stating the age of that person, being a resolution:
(a) of which not less than 14 days' written notice has been given to the members of the company entitled to vote stating that the person is a candidate for election who is of or over the age of 72 years and stating his age; and
(b) which is passed by a majority of not less than three-quarters of such members of the company as, being entitled so to do, vote in person or where proxies are allowed, by proxy, at a general meeting of that company;
be appointed or re-appointed as a director of that company to hold office until the conclusion of the next annual general meeting of the company.

(7) Where the company is a subsidiary of a public company, or of a corporation that is a public company within the meaning of the corresponding law of a State or of another Territory, the appointment or re-appointment referred to in subsection (6) does not have effect unless:
(a) the person appointed or re-appointed is a director of the holding company; or
(b) the appointment or re-appointment of the person as a director of the company has been approved by a resolution of the holding company:
(i) of which not less than 14 days' written notice was
given to the members of the holding company entitled to vote stating that the person was a candidate for election as a director of the company who was of or over the age of 72 years and stating his age; and
(ii) which was passed by a majority of not less than
three-quarters of such members of the holding company as, being entitled so to do, voted in person or, where proxies were allowed, by proxy at a general meeting of the holding company.

(8) Where the articles of a company limited by guarantee provide for the holding of postal ballots for the election of a director or directors and a postal ballot for the election of a director or directors is held, being a postal ballot in which:
(a) the members entitled to vote have been given notice in writing by the company stating that a candidate for election is of or over the age of 72 years and stating the age of the candidate; and
(b) that candidate is elected by a majority of not less than three-quarters of the members who, being entitled to vote, vote in the ballot;
that candidate may be appointed or re-appointed as a director to hold office until the conclusion of the next annual general meeting of the company.

(9) Where the articles of a company limited by guarantee provide for the election or appointment of a director or directors otherwise than by members at a general meeting or by postal ballot of members and the Commission, by instrument in writing, declares that this section does not apply to the company or its directors, then, subject to such conditions (if any) as the Commission specifies in the instrument, this section does not so apply.

(10) A vacancy in the office of a director occurring by virtue of subsection (2) shall not be taken into account in determining when other directors are to retire.

(11) Nothing in this section limits or affects the operation of any provision of the memorandum or articles of a company preventing any person from being appointed a director or requiring any director to vacate his office at any age less than 72 years.

(12) A person is incapable of being appointed as a director of a company unless he has attained the age of 18 years.

COMPANIES ACT 1981 - SECT 227
Certain persons not to manage corporations

SECT

227. (1) A person who is an insolvent under administration shall not be a director or promoter of, or be in any way (whether directly or indirectly) concerned in or take part in the management of, a corporation without the leave of the Court.
Penalty: $5,000 or imprisonment for one year, or both.

(2) A person who has, whether before or after the commencement of this Act, been convicted, within or outside the Territory:
(a) on indictment of any offence in connection with the promotion, formation or management of a corporation;
(b) of any offence involving fraud or dishonesty punishable on conviction by imprisonment for a period of not less than 3 months;
(c) of any offence under section 108, 229, 554, 555, 556, 559 or 560, under section 44 of the Companies (Acquisition of Shares) Act 1980, under section 129 of the Securities Industry Act 1980 or under any provision of a law of a State or of another Territory that corresponds with any of those provisions; or
(d) of any offence under any provision of a previous law of the Territory, or of a State or of another Territory, with which any of the provisions referred to in paragraph (c) corresponds;
shall not, within a period of 5 years after his conviction or, if he was sentenced to imprisonment, after his release from prison, without the leave of the Court, be a director or promoter of, or be in any way (whether directly or indirectly) concerned in or take part in the management of, a corporation.
Penalty: $5,000 or imprisonment for one year, or both.

(3) In any proceeding for an offence against subsection (2), a certificate by a prescribed authority stating that a person was released from prison on a specified date is prima facie evidence that that person was released from prison on that date.

(4) When granting leave under this section, the Court may impose such conditions or limitations as it thinks fit and a person who contravenes or fails to comply with any such condition or limitation that is applicable to him is guilty of an offence.
Penalty: $5,000 or imprisonment for one year, or both.

(5) A person intending to apply for leave of the Court under this section shall give to the Commission not less than 21 days' notice of his intention so to apply.

(6) The Court may at any time, on the application of the Commission, revoke leave granted by the Court under this section.

COMPANIES ACT 1981 - SECT 227A
Court may order persons not to manage corporations

SECT

227A. (1) Where, on application by the Commission or a person who is a prescribed person in relation to the corporation concerned, or any of the corporations concerned, the Court is satisfied:
(a) that:
(i) a corporation has, during a period in which a person
(in this subsection referred to as the "relevant person") was a relevant officer of the corporation, repeatedly breached relevant legislation; and
(ii) the relevant person failed to take reasonable steps to
prevent the corporation so breaching relevant legislation;
(b) that:
(i) each of 2 or more corporations has, at a time when a
person (in this subsection also referred to as the "relevant person") was a relevant officer of the corporation, breached relevant legislation; and
(ii) in each case the relevant person failed to take
reasonable steps to prevent the corporation breaching relevant legislation;
(c) that:
(i) a person (in this subsection also referred to as the
"relevant person") has repeatedly breached relevant legislation; and
(ii) on 2 or more of the occasions when the relevant person
breached relevant legislation, he was a relevant officer of a corporation (whether or not he was a relevant officer of the same corporation on each of those occasions); or
(d) that, at any time during a period in which a person (in this subsection also referred to as the "relevant person") has been or was a relevant officer of a corporation, the relevant person acted dishonestly, or failed to exercise a reasonable degree of care and diligence, in the performance of his duties as an officer of the corporation;
the Court may, in its discretion, by order prohibit the relevant person, for such period as is specified in the order, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation.

(2) Where an order has been made under subsection (1) on the application of a person other than the Commission, the person shall, within 7 days after the making of the order, lodge with the Commission an office copy of the order.

(3) A person shall not contravene an order made under subsection (1) that is applicable to him.
Penalty: $5,000 or imprisonment for one year, or both.

(4) A person shall not contravene an order made under a provision of a law of a State or of another Territory that corresponds with subsection (1), being an order that is applicable to him.
Penalty: $5,000 or imprisonment for one year, or both.

(5) In this section:
(a) a reference to a contravention of, or a failure to comply with, a provision of a relevant Act includes a reference to such a contravention or failure to comply that occurred before the commencement of section 70 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983; and
(b) a reference to a period in which a person has been or was a relevant officer of a corporation includes a reference to such a period that elapsed, or part of which elapsed, before that commencement.

(6) For the purposes of this section:
(a) a corporation or other person shall be taken to have breached relevant legislation if the corporation or other person has contravened or failed to comply with a provision of a relevant Act; and
(b) a corporation or another person may be taken to have breached relevant legislation repeatedly if the corporation or the other person has:
(i) on 2 or more occasions, contravened or failed to comply
with a particular provision of a relevant Act;
(ii) contravened or failed to comply with 2 or more
provisions of a relevant Act; or
(iii) contravened or failed to comply with provisions of 2
or more relevant Acts.

(7) For the purposes of this section:
(a) each of the following persons is a prescribed person in relation to a corporation:
(i) an official manager, liquidator or provisional
liquidator of the corporation;
(ii) a member of the corporation;
(iii) a creditor of the corporation;
(iv) a person who is authorized by the Commission to make
applications under this section, or to make an application under this section in relation to the corporation;
(b) each of the following laws is a relevant Act:
(i) this Act, the Companies (Acquisition of Shares) Act
1980 and the Securities Industry Act 1980;
(ii) a previous law of the Territory with which an Act
referred to in subparagraph (i) corresponds;
(iii) a law of a State or of another Territory that
corresponds with an Act referred to in subparagraph (i);
(iv) a previous law of a State or of another Territory with
which a law referred to in subparagraph (iii) corresponds; and
(c) "relevant officer", in relation to a corporation, means a director, secretary or executive officer of the corporation.

COMPANIES ACT 1981 - SECT 228
Disclosure of interests in contracts, property, offices etc.

SECT

228. (1) Subject to this section, a director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to his knowledge, declare the nature of his interest at a meeting of the directors of the company.
Penalty: $1,000 or imprisonment for 3 months, or both.

(2) The requirements of subsection (1) do not apply in any case where the interest of a director of a company consists only of being a member or creditor of a corporation that is interested in a contract or proposed contract with the first-mentioned company if the interest of the director may properly be regarded as not being a material interest.

(3) A director of a company shall not be taken to be interested or to have been at any time interested in any contract or proposed contract by reason only:
(a) in a case where the contract or proposed contract relates to any loan to the company - that he has guaranteed or joined in guaranteeing the repayment of the loan or any part of the loan; or
(b) in a case where the contract or proposed contract has been or will be made with or for the benefit of or on behalf of a corporation that is related to the company - that he is a director of that corporation;
and this subsection has effect not only for the purposes of this Act but also for the purposes of any rule of law, but does not affect the operation of any provision in the articles of the company.

(4) For the purposes of subsection (1), a general notice given to the directors of a company by a director to the effect that he is an officer or member of a specified corporation or a member of a specified firm and is to be regarded as interested in any contract that may, after the date of the notice, be made with that corporation or firm shall be deemed to be a sufficient declaration of interest in relation to any contract so made or proposed to be made if:
(a) the notice states the nature and extent of the interest of the director in the corporation or firm;
(b) when the question of confirming or entering into the contract is first taken into consideration, the extent of his interest in the corporation or firm is not greater than is stated in the notice; and
(c) the notice is given at a meeting of the directors or the director takes reasonable steps to ensure that it is brought up and read at the next meeting of the directors after it is given.

(5) A director a company who holds any office or possesses any property whereby, whether directly or indirectly, duties or interests might be created in conflict with his duties or interests as director shall, in accordance with subsection (6), declare at a meeting of the directors of the company the fact and the nature, character and extent of the conflict.
Penalty: $1,000 or imprisonment for 3 months, or both.

(6) A declaration required by subsection (5) in relation to the holding of an office or the possession of any property shall be made by a person:
(a) where the person holds the office or possesses the property as mentioned in subsection (5) when he becomes a director - at the first meeting of directors held after:
(i) he becomes a director; or
(ii) the relevant facts as to the holding of the office or
the possession of the property come to his knowledge;
whichever is later; or
(b) where the person commences to hold the office or comes into possession of the property as mentioned in subsection (5) after he becomes a director - at the first meeting of directors held after the relevant facts as to the holding of the office or the possession of the property come to his knowledge.

(7) A secretary of a company shall record every declaration under this section in the minutes of the meeting at which it was made.

(8) Except as provided in subsection (3), this section is in addition to, and not in derogation of, the operation of any rule of law or any provision in the articles restricting a director from having any interest in contracts with the company or from holding offices or possessing properties involving duties or interests in conflict with his duties or interests as a director.

COMPANIES ACT 1981 - SECT 229
Duty and liability of officers

SECT

229. (1) An officer of a corporation shall at all times act honestly in the exercise of his powers and the discharge of the duties of his office.
Penalty:
(a) in a case to which paragraph (b) does not apply - $5,000; or
(b) where the offence was committed with intent to deceive or defraud the company, members or creditors of the company or creditors of any other person or for any other fraudulent purpose - $20,000 or imprisonment for 5 years, or both.

(2) An officer of a corporation shall at all times exercise a reasonable degree of care and diligence in the exercise of his powers and the discharge of his duties.
Penalty: $5,000.

(3) An officer or employee of a corporation, or a former officer or employee of a corporation, shall not make improper use of information acquired by virtue of his position as such an officer or employee to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation.
Penalty: $20,000 or imprisonment for 5 years, or both.

(4) An officer or employee of a corporation shall not make improper use of his position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation.
Penalty: $20,000 or imprisonment for 5 years, or both.

(5) For the purposes of this section, "officer", in relation to a corporation, means:
(a) a director, secretary or executive officer of the corporation;
(b) a receiver, or receiver and manager, of property of the corporation, or any other authorized person who enters into possession or assumes control of property of the corporation for the purpose of enforcing any charge;
(c) an official manager or a deputy official manager of the corporation;
(d) a liquidator 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.

(6) Where:
(a) a person is convicted of an offence under this section; and
(b) the court is satisfied that the corporation has suffered loss or damage as a result of the act or omission that constituted the offence;
the court by which he is convicted may, in addition to imposing a penalty, order the convicted person to pay compensation to the corporation of such amount as that court specifies, and any such order may be enforced as if it were a judgment of that court.

(7) Where a person contravenes or fails to comply with a provision of this section in relation to a corporation, the corporation may, whether or not the person has been convicted of an offence under this section in relation to that contravention or failure to comply, recover from the person as a debt due to the corporation by action in any court of competent jurisdiction:
(a) if that person or any other person made a profit as a result of the contravention or failure - an amount equal to that profit; and
(b) if the corporation has suffered loss or damage as a result of the contravention or failure - an amount equal to that loss or damage.

(8) Where a person who contravenes or fails to comply with this section has been found by a court to be liable to pay to a person an amount by reason of a contravention of Part X of the Securities Industry Act 1980 that arose out of or was constituted by the same act or transaction as the contravention of or failure to comply with this section, the amount of the liability of the person under this section shall be reduced by the first-mentioned amount.

(9) For the purposes of subsection (8), the onus of proving that the liability of a person to pay an amount to another person arose from the same act or transaction as that from which another liability arose lies on the person liable to pay the amount.

(10) This section has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person by reason of his office or employment in relation to a corporation and does not prevent the institution of any civil proceedings in respect of a breach of such a duty or in respect of such a liability.

COMPANIES ACT 1981 - SECT 229A
Liability of directors for debts etc. incurred by corporation
acting as trustee

SECT

229A. (1) Where:
(a) a relevant corporation, while acting or purporting to act in a capacity of trustee of a trust, incurs a liability:
(i) in the case of a company - whether within or outside
Australia;
(ii) in the case of a registered overseas foreign company -
within Australia; or
(iii) in the case of a foreign company that is neither a
registered overseas foreign company nor a recognised foreign company - within the Territory; and
(b) the relevant corporation is for any reason not entitled to be fully indemnified out of the assets of the trust in respect of the liability;
the relevant corporation and the persons who were directors of the relevant corporation at the time when the liability was incurred and were not innocent directors in relation to the incurring of the liability are jointly and severally liable to discharge the liability.

(2) For the purposes of this section, a trustee of a trust shall not, by reason only that:
(a) the trust has no assets; or
(b) the assets of the trust are insufficient to indemnify the trustee in respect of the liability concerned;
be taken not to be entitled to be fully indemnified out of the assets of the trust in respect of a liability.

(3) In this section:
"Australia" includes the external Territories;
"innocent director", in relation to the incurring of a liability by a relevant corporation while acting or purporting to act in a capacity of trustee of a trust, means a person who:
(a) was a director of the relevant corporation at the time when the liability was incurred; and
(b) if the persons who were directors of the relevant corporation at that time had been at that time the trustees of the trusts and had incurred the liability, would have been entitled to be fully indemnified in respect of the liability by one or more of the other trustees;
"liability" means a debt, liability or other obligation;
"registered overseas foreign company" means a registered foreign company that was formed or incorporated outside Australia;
"relevant corporation" means:
(a) a company;
(b) a registered overseas foreign company; or
(c) a foreign company that is neither a registered overseas foreign company nor a recognised foreign company.

COMPANIES ACT 1981 - SECT 230
Loans to directors

SECT

230. (1) A company shall not, whether directly or indirectly:
(a) make a loan to:
(i) a director of the company, a spouse of such a director,
or a relative of such a director or spouse;
(ii) a director of a corporation that is related to the
company, a spouse of such a director, or a relative of such a director or spouse;
(iii) a trustee of a trust under which a person referred to
in subparagraph (i) or (ii) has a beneficial interest being a loan made to the trustee in his capacity as trustee;
(iiia) a trustee of a trust under which a corporation has a
beneficial interest, where a person referred to in subparagraph (i) or (ii) has, or 2 or more such persons together have, a relevant interest or relevant interests in shares in the corporation the nominal value of which is not less than 10% of the nominal value of the issued share capital of the corporation, being a loan made to the trustee in his capacity as trustee; or
(iv) a corporation, where a person referred to in
subparagraph (i) or (ii) has, or 2 or more such persons together have, a relevant interest or relevant interests in shares in the corporation the nominal value of which is not less than 10% of the nominal value of the issued share capital of the corporation; or
(b) give a guarantee or provide security in connection with a loan made or to be made by another person to a natural person or corporation referred to in paragraph (a).

(2) For the purposes of subsection (1), where:
(a) a company:
(i) makes a loan to a corporation, or gives a guarantee or
provides security in connection with a loan made to a corporation; or
(ii) makes a loan to a trustee of a trust under which a
corporation has a beneficial interest, or gives a guarantee or provides security in connection with a loan made to a trustee of a trust under which a corporation has a beneficial interest;
(b) the company has a relevant interest or relevant interests in shares in the corporation; and
(c) a person has, or 2 or more persons together have, a relevant interest or relevant interests in shares in the company;
the matters referred to in paragraphs (b) and (c) shall be disregarded for the purpose of determining whether the person has, or the persons together have, as the case may be, a relevant interest or relevant interests in the shares referred to in paragraph (b).

(3) Nothing in subsection (1) applies:
(a) to anything done by a company that is an exempt proprietary company;
(b) to a loan made by a company to, or a guarantee given or security provided by a company in relation to, a corporation that is related to the company if the making of the loan, the giving of the guarantee or the provision of the security has been authorized by a resolution of the directors;
(c) subject to subsection (4), to anything done by a company to provide a person with funds to meet expenditure incurred or to be incurred by him for the purposes of the company or for the purpose of enabling him properly to perform his duties as an officer of the company;
(d) subject to subsection (4), to anything done by a company to provide a person who is engaged in the full-time employment of the company or of a corporation that is related to the company with funds to meet expenditure incurred or to be incurred by him in purchasing or otherwise acquiring premises to be used by him as his principal place of residence;
(e) to a loan made by a company to a person who is engaged in the full-time employment of the company or of a corporation that is related to the company, where:
(i) in the case where neither subparagraph (ii) nor (iii)
applies - the company has at a general meeting;
(ii) in the case where the company is a subsidiary of a
listed corporation or listed corporations - the company and the listed corporation or listed corporations have at general meetings; or
(iii) in the case where the company is not a subsidiary of
a listed corporation but is a subsidiary whose ultimate holding company is incorporated in Australia or an external Territory - the company and the ultimate holding company have at general meetings;
approved a scheme for the making of such loans and the loan is made in accordance with the scheme;
(f) to a loan made, guarantee given or security provided by a company in the ordinary course of its ordinary business where:
(i) that business includes the lending of money or the
giving of guarantees or the provision of security in connection with loans made by other persons; and
(ii) the loan that is made by the company or in respect of
which the company gives the guarantee or provides the security is made on ordinary commercial terms as to the rate of interest, the terms of repayment of principal and payment of interest, the security to be provided and otherwise.

(4) Paragraph (3) (c) or (d) does not authorize the making of any loan, the entering into any guarantee or the provision of any security except:
(a) with the prior approval of:
(i) in the case where neither subparagraph (ii) nor (iii)
applies - the company;
(ii) in the case where the company is a subsidiary of a
listed corporation or listed corporations - the company and the listed corporation or listed corporations; or
(iii) in the case where the company is not a subsidiary of
a listed corporation but is a subsidiary whose ultimate holding company is incorporated in Australia or an external Territory - the company and the ultimate holding company, given at a general meeting of the company or at general meetings of the company and the listed corporation or listed corporations or of the company and the ultimate holding company, as the case may be, at which the purposes of the expenditure and the amount of the loan or the extent of the guarantee or security, as the case may be, are disclosed; or
(b) on condition that if the making of the loan, the giving of the guarantee or the provision of the security is not approved:
(i) in the case where neither subparagraph (ii) nor (iii)
applies - by the company at or before the next annual general meeting of the company;
(ii) in the case where the company is a subsidiary of a
listed corporation or listed corporations - by the company at or before the next annual general meeting of the company or by the listed corporation or by each listed corporation at or before the next annual general meeting of the listed corporation concerned; or
(iii) in the case where the company is not a subsidiary of
a listed corporation but is a subsidiary whose ultimate holding company is incorporated in Australia or an external Territory - by the company at or before the next annual general meeting of the company or by the ultimate holding company at or before the next annual general meeting of the ultimate holding company;
the loan be repaid or the liability under the guarantee or security be discharged, as the case may be, within 6 months after the conclusion of that meeting.

(5) Where a company makes a loan, gives a guarantee or provides security in contravention of this section, the company is, notwithstanding section 570, not guilty of an offence but:
(a) in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a director of the company or of a corporation that is related to the company or a spouse of such a director, or a relative of such a director or spouse - the director and any officers of the company who are in default are each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against any loss arising from the making of the loan, the giving of the guarantee or the providing of the security, as the case may be;
(b) in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a trustee of a trust referred to in subparagraph (1) (a) (iii) - any director of the company, or of a corporation that is related to the company, by virtue of whose beneficial interest under the trust the making of the loan, the giving of the guarantee or the provision of the security contravened this section, and any other officers of that company who are in default, are each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against any loss arising from the making of the loan, the giving of the guarantee or the providing of the security, as the case may be;
(ba) in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a trustee of a trust under which a corporation (in this paragraph referred to as the "relevant corporation") has a beneficial interest in circumstances referred to in subparagraph (1) (a) (iiia) - any director of the company, or of a corporation that is related to the company, by virtue of whose relevant interest or relevant interests in shares in the relevant corporation the making of the loan, the giving of the guarantee or the provision of the security contravened this section, and any other officers of that company or of the relevant corporation who are in default, are each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against any loss arising from the making of the loan, the giving of the guarantee or the providing of the security, as the case may be; or
(c) in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a corporation referred to in subparagraph (1) (a) (iv) (in this paragraph referred to as the "relevant corporation") - any director of the company, or of a corporation that is related to the company, by virtue of whose relevant interest or relevant interests in shares in the relevant corporation the making of the loan, the giving of the guarantee or the provision of the security contravened this section, and any other officers of that company or of the relevant corporation who are in default, are each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against any loss arising from the making of the loan, the giving of the guarantee or the providing of the security, as the case may be.
Penalty:
(d) in a case to which paragraph (e) does not apply - $5,000; or
(e) where the offence was committed with intent to deceive or defraud the company, members or creditors of the company or creditors of any other person or for any other fraudulent purpose - $20,000 or imprisonment for 5 years, or both.

(6) It is a defence to a prosecution for an offence against subsection (5) or to a proceeding instituted in respect of a liability under that subsection if the defendant proves that he had no knowledge of the making of the loan, the giving of the guarantee or the provision of the security.

(7) Nothing in this section operates to prevent the company from recovering the amount of, or of any interest on, any loan made, or any amount for which it becomes liable under any guarantee given or in respect of any security provided, contrary to the provisions of this section.

(8) If a person has made a loan in relation to which a company has given a guarantee or provided security in contravention of this section, the person may enforce the guarantee or security against the company if, and only if:
(a) in a case where the company is a proprietary company - a certificate signed by a director and a secretary of the company certifying that the company was an exempt proprietary company was furnished to the person before the guarantee was given or the security was provided; or
(b) in any case - a certificate signed by a director and a secretary of the company certifying that the company was not prohibited by this section from giving the guarantee or providing the security was furnished to the person before the guarantee was given or the security was provided and the person did not know, and had no reason to believe, that the certificate was incorrect.

(9) A director or secretary of a company who furnishes a person with a certificate referred to in subsection (8) that is false is guilty of an offence.
Penalty: $5,000 or imprisonment for 1 year, or both.

(10) This section has effect in addition to, and not in derogation of, any other law in force in the Territory.

COMPANIES ACT 1981 - SECT 231
Register of directors' shareholdings etc.

SECT

231. (1) A company shall keep a register showing with respect to each director of the company particulars of:
(a) shares in the company or in a corporation that is related to the company, being shares in which the director has a relevant interest, and the nature and extent of that interest;
(b) debentures of, or prescribed interests made available by, the company or a corporation that is related to the company being debentures or prescribed interests in which the director has a relevant interest, and the nature and extent of that interest;
(c) rights or options of the director or of the director and another person or other persons in respect of the acquisition or disposal of shares in, debentures of, or prescribed interests made available by, the company or a corporation that is related to the company; and
(d) contracts to which the director is a party or under which he is entitled to a benefit, being contracts under which a person has a right to call for or to make delivery of shares in, debentures of, or prescribed interests made available by, the company or a corporation that is related to the company.

(2) A company need not show in its register with respect to a director particulars of shares in a corporation that is related to the company and is a wholly-owned subsidiary of the company or of another corporation.

(3) A company that is a wholly-owned subsidiary of another company shall be deemed to have complied with this section in relation to a director who is a director of that other company if the particulars required by this section to be shown in the register of the first-mentioned company with respect to the director are shown in the register of the second-mentioned company.

(4) A company shall, within 7 days after receiving notice from a director under paragraph 232 (1) (a), enter in its register in relation to the director the particulars referred to in subsection (1) including the number and description of shares, debentures, prescribed interests, rights, options and contracts to which the notice relates and, in respect of shares, debentures, prescribed interests, rights or options acquired or contracts entered into after he became a director:
(a) the price or other consideration for the transaction (if any) by reason of which an entry is required to be made under this section; and
(b) the date of:
(i) the agreement for the transaction or, if it is later,
the completion of the transaction; or
(ii) where there was no transaction, the occurrence of the
event by reason of which an entry is required to be made under this section.

(5) A company shall, within 3 days after receiving a notice from a director under paragraph 232 (1) (b), enter in its register the particulars of the change referred to in the notice.

(6) A company is not, by reason of anything done under this section, to be taken for any purpose to have notice of, or to be upon inquiry as to, the right of a person to or in relation to a share in, debenture of, or prescribed interest made available by, the company.

(7) A register kept by a company pursuant to this section shall be open for inspection:
(a) by any member of the company - without charge; and
(b) by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

(8) A person may request a company to furnish him with a copy of the register or any part of the register and, where such a request is made, the company shall send the copy to that person:
(a) if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Commission approves; or
(b) in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Commission approves.

(9) A company shall produce its register at the commencement of each annual general meeting of the company and keep it open and accessible during the meeting to all persons attending the meeting.

(10) It is a defence to a prosecution for failing to comply with subsection (1) or (4) in respect of particulars relating to a director if the defendant proves that the failure was due to the failure of the director to comply with section 232 with respect to those particulars.

(11) In determining for the purposes of this section whether a person has a relevant interest in a debenture or prescribed interest, the provisions of section 8 that apply for the purposes of this section have effect as if a reference in those provisions to a share were a reference to a debenture or prescribed interest.

(12) If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

COMPANIES ACT 1981 - SECT 232
General duty to make disclosure

SECT

232. (1) A director of a company shall give notice in writing to the company:
(a) of such particulars relating to shares, debentures, prescribed interests, rights, options and contracts as are necessary for the purposes of compliance by the company with the provisions of section 231;
(b) of particulars of any change in respect of the particulars referred to in paragraph (a), including the consideration (if any) received as a result of the event giving rise to the change;
(c) of such matters and events affecting or relating to himself as are necessary for the purposes of compliance by the company with any of the provisions of section 238 that are applicable in relation to him;
(d) of such matters and events affecting or relating to himself as are necessary for the purposes of compliance by the company with any of the provisions of the Companies (Acquisition of Shares) Act 1980 that are applicable in relation to him; and
(e) of the date and place of the director's birth.

(2) A director required to give a notice under subsection (1) shall give the notice:
(a) in the case of a notice under paragraph (1) (a), within 14 days after:
(i) the date on which he became a director; or
(ii) as the case may require, the date on which the
director became aware that he had a relevant interest in the shares, debentures or prescribed interests or the date on which the director became aware that he had acquired the rights or options or the date on which the director entered into the contracts;
whichever last occurs;
(b) in the case of a notice under paragraph (1) (b), within 14 days after he becomes aware of the occurrence of the event giving rise to the change referred to in that paragraph;
(c) in the case of a notice under paragraph (1) (c), within 14 days after he becomes aware of the matter or the occurrence of the event;
(d) in the case of a notice under paragraph (1) (d), forthwith upon becoming aware that the company requires or will require the information for the purposes of compliance with any of the provisions of the Companies (Acquisition of Shares) Act 1980; and
(e) in the case of a notice under paragraph (1) (e), within 14 days after the date on which he became a director.

(3) Nothing in this section requires a director of a company to give notice to the company of any matter or event of which he has given notice to the company before the commencement of this Act for the purposes of a corresponding provision of a previous law of the Territory.

(4) A company shall, within 7 days after the receipt by it of a notice given under subsection (1), send a copy of the notice to each of the other directors of the company.

(4A) A person who is the principal execut