CHAPTER 2B
-
BASIC FEATURES OF A COMPANY
PART 2B.7
-
CHANGING COMPANY TYPE
SECTION 162
CHANGING COMPANY TYPE
162(1)
A company may change to a company of a different type as set out in the following table by:
(a)
passing a special resolution resolving to change its type; and
(b)
complying with sections
163
and
164
.
Allowed conversions
|
[
operative table]
|
|
This type of company may change
…
|
…
to this type of company
|
1 |
proprietary company limited by shares |
unlimited proprietary company |
|
|
unlimited public company |
|
|
public company limited by shares |
2 |
unlimited proprietary company |
proprietary company limited by shares (
but only if, within the last 3 years, it was not a limited company that became an unlimited company
) |
|
|
public company limited by shares (
but only if, within the last 3 years, it was not a limited company that became an unlimited company
) |
|
|
unlimited public company |
3 |
public company limited by shares |
unlimited public company |
|
|
unlimited proprietary company |
|
|
proprietary company limited by shares |
|
|
no liability company (see subsection (2)) |
4 |
company limited by guarantee |
public company limited by shares |
|
|
unlimited public company |
|
|
proprietary company limited by shares |
|
|
unlimited proprietary company |
5 |
unlimited public company |
public company limited by shares (
but only if, within the last 3 years, it was not a limited company that became an unlimited company
) |
|
|
proprietary company limited by shares (
but only if, within the last 3 years, it was not a limited company that became an unlimited company
) |
|
|
unlimited proprietary company |
6 |
public no liability company |
public company limited by shares (
but only if all the issued shares are fully paid up
) |
|
|
proprietary company limited by shares (
but only if all the issued shares are fully paid up
) |
Note 1: A public company seeking tochange to a proprietary company must comply with the requirements for proprietary companies set out in section
113
.
Note 2: Other types of companies that were previously allowed can change type under the Part
10.1
transitionals.
162(2)
A public company limited by shares may only convert to a no liability company if:
(a)
the company
'
s constitution states that its sole objects are mining purposes; and
(b)
under the constitution the company has no contractual right to recover calls made on its shares from a shareholder who fails to pay them; and
(c)
all the company
'
s issued shares are fully paid up.
Note: Section
9
defines
mining purposes
and
minerals
.
162(3)
The company must lodge a copy of the special resolution with ASIC within 14 days after it is passed.
[
CCH Note:
S 162(3) will be amended by No 69 of 2020, s 3, Sch 1[480], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
162(3A)
An offence based on subsection
(3)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 162(3A) inserted by No 117 of 2001, s 3, Sch 1
[
22].
162(4)
A special resolution to change an unlimited company that has share capital to a company limited by shares may also provide that a specified portion of its uncalled share capital may only be called up if the company becomes a Chapter
5
body corporate.
History
S 162(4) amended by No 11 of 2016, s 3, Sch 2[83] (effective 1 March 2017).
SECTION 163
APPLYING FOR CHANGE OF TYPE
Lodging application
163(1)
To change its type, a company must lodge an application with ASIC.
[
CCH Note:
S 163(1) will be amended by No 69 of 2020, s 3, Sch 1[480], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Contents of the application
163(2)
The application must be accompanied by the following:
(a)
a copy of:
(i)
the special resolution that resolves to change the type of the company, specifies the new type and the company
'
s new name (if a change of name is necessary); and
(ii)
any other special resolution passed in connection with the change of type;
(b)
for a company limited by guarantee changing to a company limited by shares:
(i)
a statement signed by the directors of the company that in their opinion the company
'
s creditors are not likely to be materially prejudiced by the change of type and that sets out their reasons for that opinion; and
(ii)
any special resolution dealing with an issue of shares according to section
167
;
(c)
for a company limited by shares or a company limited by guarantee changing to an unlimited company:
(i)
an assent to the change of type in the prescribed form signed by all the members of the company; and
(ii)
a statement signed by a director or a company secretary of the company that all the members of the company have signed the assent;
(d)
for a proprietary company changing to a public company:
(i)
a consolidated copy of the company
'
s constitution (if any) as at the date of lodgment; and
(ii)
a copy of each document (including an agreement or consent) or resolution that is necessary to ascertain the rights attached to issued or unissued shares of the company.
Note 1: The company must lodge a copy of any special resolution modifying its constitution passed after the application is lodged (see subsection
136(5)
).
Note 2: The company must lodge information relating to any change of rights attached to its shares, or any division or conversion of its shares into new classes, occurring after the application is lodged (see section
246F
).
[
CCH Note:
S 163(2) will be amended by No 69 of 2020, s 3, Sch 1[481] and
[
482], by omitting
"
in the prescribed form
"
in para (c)(i) and inserting
"
with the Registrar
"
after
"
lodge
"
in notes 1 and 2, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 163(2) amended by No 106 of 2018, s 3, Sch 1
[
9] (effective 19 October 2018).
S 163(2) amended by No 17 of 2017, s 3, Sch 2
[
2] (effective 28 September 2017).
[
CCH Note:
S 163(2A) will be inserted by No 69 of 2020, s 3, Sch 1[483] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 163(2A) will read:
163(2A)
An assent of a kind mentioned in subparagraph (2)(c)(i) must meet any requirements of the data standards.]
Company limited by guarantee to company limited by shares
163(3)
If shares will be issued to persons under paragraph
166(2)(c)
on the change of type from a company limited by guarantee to a company limited by shares, the application must state:
(a)
that the company has prepared a list that sets out the following details about each person to whom the shares will be issued:
(i)
name and address;
(ii)
the number and class of shares the person will take up;
(iii)
the amount (if any) the person will pay for the shares;
(iv)
the amount (if any) that will be unpaid on the shares; and
(b)
the number and class of shares those persons will take up; and
(c)
the amount (if any) those persons will pay for the shares; and
(ca)
the amount (if any) that will be unpaid on the shares; and
(d)
if the shares will be issued for non-cash consideration
-
the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application; and
(e)
that each of those persons who is not a member of the company when the application is made consents in writing to the inclusion in the list of the details about them that are referred to in paragraph (a).
The shares may be issued to existing members only, to new members only or to existing and new members.
Note: An offer of shares associated with a proposed change of type may need disclosure to investors under
Part 6D.2
(see sections
706
,
707
,
708
,
708AA
and
708A
).
History
S 163(3) (Note) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
20].
S 163(3) (Note) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
10].
163(3A)
For a company changing to a proprietary company, if any of the particulars in the register kept by the company under section
169
and mentioned in paragraph
178A(1)(b)
are different from the particulars set out:
(a)
in the latest extract of particulars received by the company; or
(b)
if the company responded to the latest extract it received
-
in the company
'
s extract taken together with the company
'
s response to the extract;
the application must set out those different particulars in addition to the other information required by this section.
History
S 163(3A) inserted by No 24 of 2003, s 3, Sch 1
[
18].
163(3B)
If the company has more than 20 members, the company is only required to set out the different particulars under subsection
(3A)
that relate to a person who is a top 20 member of a class of the company.
Note: See also section
107
.
History
S 163(3B) inserted by No 24 of 2003, s 3, Sch 1
[
18].
163(3C)
If subsection
(3A)
applies and any details mentioned in subsection
178C(1)
are different from the details set out:
(a)
in the latest extract of particulars received by the company; or
(b)
if the company responded to the latest extract it received
-
in the company
'
s extract taken together with the company
'
s response to the extract;
the application must set out those different details as well.
History
S 163(3C) inserted by No 24 of 2003, s 3, Sch 1
[
18].
163(4)
The application must be in the prescribed form.
[
CCH Note:
S 163(4) will be amended by No 141 of 2020, s 3, Sch 4[115], by substituting
"
meet any requirements of the data standards
"
for
"
be in the prescribed form
"
, (effective on the later of: (a) 18 December 2020; and (b) the day items 1 to 1258 of Schedule 1 to the
Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020
commence.).]
163(5)
The company must have the consents referred to in paragraph
(3)(e)
(if any) when the application is lodged. The company must keep the consents.
163(6)
An offence based on subsection
(5)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 163(6) inserted by No 117 of 2001, s 3, Sch 1
[
23].
SECTION 164
ASIC CHANGES TYPE OF COMPANY
[
CCH Note:
S 164 heading will be amended by No 69 of 2020, s 3, Sch 1[484], by substituting
"
CHANGES TO
"
for
"
ASIC CHANGES
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
164(1)
ASIC must give notice under subsection
(3)
that it intends to alter the details of the company
'
s registration if:
(a)
ASIC is satisfied that:
(i)
the application complies with section
163
; and
(ii)
for an application by a company limited by guarantee to change to a company limited by shares
-
the company
'
s creditors are not likely to be materially prejudiced by the change; and
(b)
for an application by a company limited by guarantee to change to a company limited by shares that is accompanied by a copy of a special resolution dealing with an issue of shares according to section
167
-
ASIC is not of the opinion that the obligations that would attach to the shares are unreasonable compared with the obligations that attach to membership of the company limited by guarantee.
[
CCH Note:
S 164(1) will be amended by No 69 of 2020, s 3, Sch 1[485] and
[
486], by substituting
"
The Registrar
"
for
"
ASIC
"
(first occurring) and
"
the Registrar
"
for
"
ASIC
"
in para (a) and (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
164(2)
To make a decision under subparagraph (1)(a)(ii), ASIC may direct the company in writing to:
(a)
notify some or all of its creditors of the proposed change in the way ASIC specifies; and
(b)
invite those creditors to make submissions to ASIC.
[
CCH Note:
S 164(2) will be amended by No 69 of 2020, s 3, Sch 1[487], by substituting
"
the Registrar
"
for
"
ASIC
"
(wherever occurring) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
164(3)
The notice that ASIC intends to alter the details of the company
'
s registration must be:
(a)
included on ASIC
[
sic
] database; and
(b)
published in the
Gazette
.
The notice must also state that ASIC will alter the details of the company
'
s registration 1 month after the notice has been published in the
Gazette
unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so.
164(3)
The notice that ASIC intends to alter the details of the company
'
s registration must be:
(a)
included on ASIC
[
sic
] database; and
(b)
published in the
Gazette
.
The notice must also state that ASIC will alter the details of the company
'
s registration 1 month after the notice has been published in the
Gazette
unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so.
[
CCH Note:
S 164(3) will be substituted by No 69 of 2020, s 3, Sch 1
[
488] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 164(3) will read:
164(3)
The notice that the Registrar intends to alter the details of the company
'
s registration:
(a)
must be included in the records of the Registrar; and
(b)
must be made accessible to the public; and
(c)
must meet any requirements of the data standards that relate to the notice (including requirements relating to including the notice in the records of the Registrar and making the notice accessible to the public); and
(d)
without limiting paragraph
(c)
, must state that the Registrar will alter the details of the company
'
s registration 1 month after the notice has been made accessible to the public unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so.]
164(4)
Subject to an order made by a court or the Administrative Appeals Tribunal within that month, after that month has passed ASIC must alter the details of the company
'
s registration to reflect the company
'
s new type.
[
CCH Note:
S 164(4) will be amended by No 69 of 2020, s 3,Sch 1[489], by substituting
"
the Registrar
"
for
"
ASIC
"
(wherever occurring) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
164(5)
A change of type under this section takes effect when ASIC alters the details of the company
'
s registration. Despite subsection
246D(3)
and section
246E
, a special resolution passed in connection with the change of type also takes effect when ASIC alters the details of the company
'
s registration.
[
CCH Note:
S 164(5) will be amended by No 69 of 2020, s 3, Sch 1[489], by substituting
"
the Registrar
"
for
"
ASIC
"
(wherever occurring) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
164(6)
ASIC must give the company a new certificate of registration after it alters the details of the company
'
s registration. The company
'
s name is the name specified in the certificate of registration issued under this section.
Note: For the evidentiary value of a certificate of registration, see subsection
1274(7A)
.
[
CCH Note:
S 164(6) will be amended by No 69 of 2020, s 3, Sch 1[490] and
[
491], by substituting
"
The Registrar
"
for
"
ASIC
"
and
"
section 1274AAA
"
for
"
subsection 1274(7A)
"
in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
164(7)
If ASIC alters the details of a company
'
s registration under subsection
(4)
, a court is not to make an order reversing the alteration of the details of the company
'
s registration.
Note: The Administrative Appeals Tribunal cannot review the change of the company
'
s type once ASIC has issued a new certificate of registration to the company (see subsection
1274(7A)
and paragraph
1317C(b)
).
[
CCH Note:
S 164(7) will be amended by No 69 of 2020, s 3, Sch 1[492]
-
[
494], by substituting
"
the Registrar
"
for
"
ASIC
"
,
"
the Registrar
"
for
"
ASIC
"
in the note and
"
section 1274AAA
"
for
"
subsection 1274(7A)
"
in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
SECTION 165
ASIC MAY DIRECT A PROPRIETARY COMPANY TO CHANGE TO A PUBLIC COMPANY IN CERTAIN CIRCUMSTANCES
165(1)
ASIC may direct a proprietary company in writing to change to a public company within 2 months if it is satisfied that the company has contravened section
113
(requirements for proprietary companies).
165(2)
The company must comply with the direction within 2 months after being given it by doing everything necessary to change to a public company under section
164
.
165(2A)
An offence based on subsection
(2)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 165(2A) inserted by No 117 of 2001, s 3, Sch 1
[
24].
165(3)
If a proprietary company does not comply with subsection
(2)
, ASIC may change the company from a proprietary to a public company by altering the details of the company
'
s registration to reflect the company
'
s new type.
[CCH Note:
S 165(3) will be amended by No 69 of 2020, s 3, Sch 1[495] and
[
496], by inserting
"
direct the Registrar to
"
after
"
ASIC may
"
and
"
The Registrar must comply with the direction.
"
at the end of subsection, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
165(4)
A change of type under this section takes effect when ASIC alters the details of the company
'
s registration.
[
CCH Note:
S 165(4) will be amended by No 69 of 2020, s 3, Sch 1[497], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
165(5)
ASIC must give the company a new certificate of registration after it alters the details of the company
'
s registration under subsection
(3)
. The company
'
s name is the name specified in the certificate of registration issued under this section.
Note: For the evidentiary value of a certificate of registration, see subsection
1274(7A)
.
[
CCH Note:
S 165(5) will be amended by No 69 of 2020, s 3, Sch 1[498] and
[
499], by substituting
"
The Registrar
"
for
"
ASIC
"
and
"
section 1274AAA
"
for
"
subsection 1274(7A)
"
in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
SECTION 166
EFFECT OF CHANGE OF TYPE
166(1)
[
Effect of change]
A change of type does not:
(a)
create a new legal entity; or
(b)
affect the company's existing property, rights or obligations (except as against the members of the company in their capacity as members); or
(c)
render defective any legal proceedings by or against the company or its members.
166(2)
[
Company limited by guarantee]
On the change of type of a company from a company limited by guarantee to a company limited by shares:
(a)
the liability of each member and past member as a guarantor on the winding up of the company is extinguished; and
(b)
the members cease to be members of the company; and
(c)
if shares are to be issued to a person as specified in the list referred to in subsection 163(3):
(i)
the shares are taken to be issued to that person; and
(ii)
the person is taken to have consented to be a member of the company; and
(iii)
the person becomes a member of the company.
Note: The company must maintain a register of members that complies with subsection 169(3).
SECTION 167
ISSUE OF SHARES BY COMPANY OR HOLDING COMPANY
-
COMPANY LIMITED BY GUARANTEE CHANGING TO COMPANY LIMITED BY SHARES
167(1)
[
Members]
If:
(a)
a company limited by guarantee changes type under this Part to a company limited by shares; and
(b)
that company, or another company that beneficially owns all the shares in that company, issues shares to a person who was a member of that company immediately before the change of type took effect;
the person becomes a member of the company issuing the shares if:
(c)
the issue of the shares is in accordance with the special resolution that accompanied the application to change type under subparagraph 163(2)(a)(ii); and
(d)
the shares are fully paid up; and
(e)
the business, assets and liabilities of the issuing company (together with its subsidiaries) when the shares are issued are substantially the same as the business, assets and liabilities of the company changing type (together with its subsidiaries) immediately before the change of type took effect.
167(2)
[
Court not to make order]
If shares are issued according to this section, a court is not to make an order reversing the issue of the shares.
SECTION 167AA
APPLICATION OF PART TO COMPANY LIMITED BOTH BY SHARES AND BY GUARANTEE
167AA(1)
[
Company limited both by shares and guarantee]
A company limited both by shares and by guarantee may change to one of the following types of companies under this Part:
(a)
a proprietary company limited by shares;
(b)
a public company limited by shares;
(c)
a company limited by guarantee.
167AA(2)
[
Application]
This Part applies to the change with any modifications that are necessary.