CHAPTER 2A
-
REGISTERING A COMPANY
PART 2A.1
-
WHAT COMPANIES CAN BE REGISTERED
SECTION 112
TYPES OF COMPANIES
Types of companies
112(1)
The following types of companies can be registered under this Act:
Proprietary companies |
Limited by shares |
|
Unlimited with share capital |
Public companies |
Limited by shares |
|
Limited by guarantee |
|
Unlimited with share capital |
|
No liability company |
Corporate collective investment vehicles |
Limited by shares |
Note 1: Other types of companies that were previously allowed continue to exist under the Part 10.1 transitionals.
Note 2: For corporate collective investment vehicles, see Chapter
8B
.
History
S 112(1) amended by No 8 of 2022, s 3, Sch 1[1]
-
[
3] (effective 1 July 2022).
No liability companies
112(2)
A company may be registered as a no liability company only if:
(a)
the company has a share capital; and
(b)
the company
'
s constitution states that its sole objects are mining purposes; and
(c)
the company has no contractual right under its constitution to recover calls made on its shares from a shareholder who fails to pay them.
Note 1: Section 9 defines
mining purposes
and
minerals
.
Note 2: Special provisions on no liability companies are found in the provisions referred to in the following table:
No liability company provisions
|
|
item
|
topic
|
provisions
|
1 |
names |
148
,
156
,
162 |
2 |
terms of issue of shares |
254B |
3 |
liability on partly-paid shares |
254M |
4 |
calls |
254P
-
254R |
5 |
winding up |
477
-
478
,
483
,
514 |
6 |
registering a body as a company |
601BA |
7 |
transitional |
the Part
10.1
transitionals |
History
S 112(2) (Note 2) amended by No 5 of 2011, s 3, Sch 1
[
22] (effective 22 March 2011).
112(3)
A no liability company must not engage in activities that are outside its mining purposes objects.
112(4)
The directors of a no liability company must not:
(a)
let the whole or proportion of a mine or claim on tribute; or
(b)
make any contract for working any land on tribute;
unless:
(c)
the letting or contract is approved by a special resolution; or
(d)
no such letting or contract has been made within the period of 2 years immediately preceding the proposed letting or contract.
112(5)
An act or transaction is not invalid merely because of a contravention of subsection
(3)
or
(4)
.
SECTION 113
PROPRIETARY COMPANIES
113(1)
A company must have no more than 50 non-employee shareholders if it is to:
(a)
be registered as a proprietary company; or
(b)
change to a proprietary company; or
(c)
remain registered as a proprietary company.
Note: Proprietary companies have different financial reporting obligations depending on whether they are small proprietary companies or large proprietary companies (see section
45A
and Part
2M.3
).
113(2)
In applying subsection
(1)
:
(a)
count joint holders of a particular parcel of shares as 1 person; and
(b)
an employee shareholder is:
(i)
a shareholder who is an employee of the company or of a subsidiary of the company; or
(ii)
a shareholder who was an employee of the company, or of a subsidiary of the company, when they became a shareholder; and
(c)
do not count as a shareholder any CSF shareholder of the company; and
(d)
do not count as a shareholder an entity, in relation to a security of the company held by the entity, if:
(i)
that security was originally issued to another entity pursuant to a CSF offer by the company; and
(ii)
unless the circumstances (if any) prescribed by the regulations for the purposes of this subparagraph exist
-
no securities of the company have been traded on a financial market (whether in Australia or elsewhere); and
(iii)
all the other requirements (if any) prescribed by the regulations for the purposes of this subparagraph are met.
History
S 113(2) amended by No 106 of 2018, s 3, Sch 1
[
6] (effective 19 October 2018).
113(3)
A proprietary company must not engage in any activity that would require disclosure to investors under Chapter
6D
, except for:
(a)
an offer of its shares, or of options in respect of its shares, to:
(i)
existing shareholders of the company; or
(ii)
employees of the company or of a subsidiary of the company; or
(b)
a CSF offer.
History
S 113(3) amended by No 14 of 2022, s 3, Sch 4[11] (effective 1 October 2022).
S 113(3) substituted by No 106 of 2018, s 3, Sch 1
[
7] (effective 19 October 2018).
113(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 113(3A) inserted by No 117 of 2001, s 3, Sch 1
[
3].
113(4)
An act or transaction is not invalid merely because of a contravention of subsection
(3)
.
Note: If a proprietary company contravenes this section, ASIC may require it to change to a public company (see section
165
).
SECTION 114
114
MINIMUM OF 1 MEMBER
A company needs to have at least 1 member.
SECTION 115
RESTRICTIONS ON SIZE OF PARTNERSHIPS AND ASSOCIATIONS
115(1)
[
Restrictions]
A person must not participate in the formation of a partnership or association that:
(a)
has as an object gain for itself or for any of its members; and
(b)
has more than 20 members;
unless the partnership or association is incorporated or formed under an Australian law.
Note: For the effect of a contravention of this section, see section
103
.
115(2)
[
Regulations]
The regulations may specify a higher number that is higher than the number specified in paragraph (1)(b) for the purposes of the application of that paragraph to a particular kind of partnership or association.
115(3)
[
Strict liability offence]
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 115(3) inserted by No 117 of 2001, s 3, Sch 1
[
4] (effective 15 December 2001).
SECTION 116
116
TRADE UNIONS CANNOT BE REGISTERED
A trade union cannot be registered under this Act.