Transcript CHAPTER 3 REGISTRATION At the end of this topic you should know: • which companies and other bodies must register under the Corporations Act; •

CHAPTER 3
REGISTRATION
At the end of this topic you should know:
• which companies and other bodies must register under the
Corporations Act;
• the basic requirements for registration of a company; and
• the ongoing and administrative requirements imposed by
the Corporations Act.
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INTRODUCTION
All companies and some other corporations that wish
to carry on business in Australia must be registered
under the Corporations Act 2001 (Cth).
Incorporation (that is, companies incorporated outside
Australia: s.9) that wish to carry on business in
Australia must obtain registration: see Pt 5B.2, Div 2.
The company is a separate legal entity from that date
until its name is removed from ASIC’s register.
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Which Bodies Must be Registered?
Pre-existing companies were automatically
transferred to the Corporations Act when it came into
force.
Registrable Australian bodies must register under Pt
5B.2, Div 1 if they wish to carry on business outside
their home State or Territory.
Foreign companies that wish to carry on business in
Australia must obtain registration: Pt 5B.2, Div 2.
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Incorporation and Registration
When a person wants to incorporate a company or
transfer their existing business to a company, they
may buy a “Shelf company” from an accountant or
solicitor.
The registration process involves lodging an
application form.
The contents of the application are listed in s 117(2)
and there is a standard form (Form 201) prescribed
by Sch 2 to the Corporations Regulations 2001 (Cth).
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Registration
Before lodging the completed application form,
decisions will need to be made about the following:
• type of company;
• internal rules;
• members;
• directors;
• share capital;
• registered office; and
• company name: s 119.
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Steps for Registration of a Proprietary
Company
Part 2A.2 sets out the requirements and procedure for
registration.
1. Single member/director companies rely on
s 198E or s 198E and own constitution.
2. Other proprietary companies rely on replaceable rules
or adopt constitution.
3. Members sign consent to become members; Director
and Secretary consent to act; Applicant signs consent
to registration.
4. Application for registration form lodged at ASIC.
5. ASIC issues Certificate of Registration.
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Registered Office
The application for registration must include the address of
the company’s registered office in Australia.
The purpose of the registered office is to have a place where
all communication and notices to the company may be sent:
s 142.
It is not sufficient to specify a post office box, but the
registered office can be premises occupied by someone
else: s 100.
A proprietary company is not required to open its registered
office to the public: s 173.
A public company should have its registered office open to
the public each day for at least three hours per day: s 145.
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ACN, ARBN and ABN
ASIC allots every company with an ACN upon
registration.
Registrable Australian bodies are also given an
ARBN: s 601CB.
However, the ABN will progressively replace the ACN
and ARBN as the single business identifier for
Commonwealth purposes.
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ACN, ARBN and ABN
The identifying number must be displayed on:
• the company’s common seal (if any) (s123(1));
• its public documents (s 88A);
• its cheques (ss 153-155);
• every place at which the company carries on
business and is open to the public (s 144); and
• all documents lodged with ASIC (s 88A(1)(a)).
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Company Names
The company’s name is chosen by the promoters and
application can be made to “reserve” the name prior
to lodgment of the application for registration of the
company: s 152.
Certain companies limited by guarantee may be
registered without the word “Limited” in the company
name: s 150.
Promoters who wish to use the name of their
company should first search the register of
companies to see if the name they have chosen is
available: s 147(1).
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Company Names
Company names may infringe a trade mark or closely
resemble an existing company or business name.
Care should be taken to avoid:
• a breach of the tort of “passing off”;
• a breach of s 18 of the Australian Competition and
Consumer Act 2010 (Cth); and
• an ASIC determination that the name is “identical”
or “unacceptable”: Corporations Regulations, reg
6203, Sch 6.
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Certificate of Registration
Once the application has been processed, ASIC gives
the company its ACN and issues a certificate of
registration: s 118(1).
The certificate of registration contains the following
information:
• company’s name, ACN and type;
• that the company has been registered under the
Corporations Act;
• registered State or Territory; and
• date of registration.
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Ongoing Requirements
In summary, a graduated scale (of greater disclosure)
applies beginning with small proprietary companies,
then (unlisted) public companies, through to the most
stringent requirements for “disclosing entities” (as
defined in Pt 1.2A).
Disclosure must or may be required in relation to:
• registered office, certain changes or events;
• annual statement, financial records, financial reports;
• minute books, registers, annual general meeting; and
• continuous disclosure.
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Company Searches
Anybody can, by paying the appropriate fee, conduct a
search of any company or other body registered under
the Corporations Act. Details accessible by the public
includes:
• name and ACN/ARBN/ABN, status of the company;
• registered office;
• officeholders, share structure, shareholders;
• name of ultimate holding company;
• principal activities; and
• name of any liquidator appointed.
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PowerPoint slides to accompany Corporations Law: In Principle, 8 th Edition. Ciro & Symes.