Chapter 20
Companies — Introduction
The Corporations Law
[20.3] The Australian Securities Commission (ASC) has been renamed the Australian Securities and Investments Commission (ASIC).
Classes of company
[20.6] Under new s 112 companies limited both by guarantee and shares can no longer be registered.
Under new s 150 a company limited by guarantee can now only be registered without ‘Limited’ at the end of its name if its objects are charitable. This is considerably narrower than old s 383, which required the objects to be merely ‘useful to the community’. The constitution of the company must prohibit the making of distributions to members and the payment of fees to directors.
Proprietary and public companies
[20.7] Old s 116 has been replaced by new s 113.
Articles of association and replaceable rules
[20.9] Companies are no longer required to have a memorandum and articles of association. A company may adopt a constitution on or after registration: new s 136. No liability companies and new s 150 companies (companies limited by guarantee without ‘Limited’ at the end their name) must have constitutions: new ss 112(2)(b) and 150(1) respectively. If a company does not adopt a constitution, some 40 provisions of the Corporations Law termed ‘replaceable rules’ will apply to the company: new s 135. Approximately half of the replaceable rules relate to company meetings, and most of these derive from Table A and the previous provisions of the Corporations Law. A list of replaceable rules in contained in new s 141; however, one replaceable rule, new s 224D (directors may appoint other directors), is missing from the list. The replaceable rules apply to the extent they are not displaced or modified by the company’s constitution (if any): new s 135(2).
The replaceable rules do not apply to companies registered before 1 July 1998, unless the company repeals its constitution: new s 135(1)(a). The memorandum and articles of association of a company registered before 1 July 1998 continue as its constitution, unless repealed: new s 1415.
Both the company’s constitution (if any) and the replaceable rules have the effect of a contract between the company and each member, director and secretary, and between each member and each other member: new s 140.
Tables A and B
[20.10] Tables A and B have been repealed. Many of their provisions, however, have been subsumed into the new replaceable rules: see [20.9]. Moreover, in the case of companies registered before 1 July 1998 any provisions of Tables A or B that were not excluded or modified by the company’s articles of association, and therefore deemed to be included in the company’s articles under old s 175, will continue to apply to the company as part of its constitution: new s 1415 and note.
Types of company meetings
[20.12] The statutory meeting and statutory report have been abolished and old s 244 repealed. Old s 245 (annual general meeting) has been replaced by new ss 250N and 250P. Old ss 246 and 247 (other general meetings) have been replaced by new ss 249D–249F.
