Study Notes on Incorporation and Registration of Corporations

Introduction to Incorporation and Registration of Corporations

  • Overview:

    • Discussion surrounding incorporation as part of corporate law.

    • Focus on the registration process of corporations, specifically within the Australian legal context.

  • Cultural Reference:

    • Reference to Frankenstein metaphorically illustrates the concept of creating a corporation.

Legislation Framework

  • Relevant Legislation:

    • Introduction to the Corporations Act as the governing legislation for corporate registration in Australia.

    • Section 117: Defines the registration process for companies.

  • Role of ASIC:

    • ASIC (Australian Securities and Investments Commission): The corporate regulator responsible for the registration of companies.

    • Clarification on terminology between "incorporation" and "registration":

    • Incorporation: Refers to the act of creating a new company.

    • Registration: Refers to the process by which foreign companies can be recognized under Australian law.

Registration Process

  • Section 119 of the Corporations Act:

    • Establishes that a company exists from the date of its registration by ASIC.

    • The company name will be outlined in the certificate of registration.

    • Company remains in existence until it is deregistered.

  • Application Requirements:

    • Must lodge an application with ASIC to initiate the registration of a company.

    • Section 117(2) outlines detailed requirements:

    • Type of company being registered.

    • Proposed company name.

    • Names and addresses of all members (defined as shareholders for this context).

    • Detailed personal information for each director:

      • Former given names

      • Family names

      • Dates of birth

      • Places of birth

    • Proposed registered office address for the company.

Online Registration Process

  • ASIC provides an online platform for company registration.

  • Requirements imposed by ASIC stem from legislative mandates rather than arbitrary decisions.

  • After registration, the company can operate anywhere in Australia.

Incorporation Specifications

  • Forming a Company:

    • Per Section 114, companies can be formed with one or more members/shareholders.

    • Companies are not restricted to specific purposes, with the exception of no liability companies which can only be formed for mining-related purposes (discussed in later topics).

Company Naming Regulations

  • Naming the Company:

    • Section 148 stipulates that the company can adopt:

    • An available name or

    • The designation "Australian Company Number" followed by the allocated number from ASIC.

  • Determining an Available Name:

    • Section 147(1) identifies criteria for name availability:

    • Cannot be identical to a reserved name.

    • Cannot be identical to a name on the business names register.

    • Cannot be deemed unacceptable as per regulatory criteria.

Regulation Guidance

  • Additional insights on naming come from Corporations Regulations 2001, specifically:

    • Section 17 to identify identical names.

    • Identical names examples include:

    • Use of terms like "PTY Limited" or "No Liability" does not mitigate identity.

    • Section 2 of Schedule 6 discusses unacceptable names, such as:

    • Names that include "Commonwealth" or "Federal."

    • Names suggesting government connections or affinity with royal families or notable figures.

Company Type Designations

  • Formal Name Requirements:

    • Limited Companies: Must include the word Limited or abbreviation LTD.

    • Private Companies: Must have the words Proprietary Limited or abbreviation PTY LTD.

    • No Liability Companies: Must explicitly include No Liability.

    • Public Companies: Cannot suggest that they are proprietary.

Post-Registration Considerations

  • After Registration Formalities:

    • Maintain various registers:

    • Register of members (shareholders).

    • Director and company consent forms must be kept up-to-date.

    • Formal appointment of directors is necessary.

    • Prior incurred expenses for company setup can be reimbursed through company assets.

  • Legal Consequences of Registration:

    • Section 124: A registered company is considered a legal entity, capable of:

    • Owning property.

    • Entering into contracts.

    • Being sued or suing.

    • Powers unique to corporate entities include issuing and canceling shares.

Conclusion

  • Future Discussions:

    • Further exploration of registration consequences and the broader implications of corporate law will be covered in subsequent topics and seminar sessions.