Companies Act 1855 (SA)

No. 25.

An Act to provide,for the Reeqistmtio?z of Joint Stock Compatties, L* -&l.-r

und f o ~	Limiting the Liability of	Members thereof.	g f K- AV-d
+-- d

[Assented to, June 18, 1856.1

HEIiXAS it is expedient to assist in developing the resources Preamble.

W of the Province by encouraging tho formation of Joint Stock Companies for mining and other purposes, and in order t o induce

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persons of capital to join such Associations, it is expedient to cnahle the members thereof, if they shall think fit, to limit their individual liability for the debts and engagements of the Companies with which they are connected-Be it therefore Enacted, by IIis Excel- lency the Governor-in-Chief of the Yrovince of South Australia, by and with the advice and consent of the Legislative Council thereof, as follows:

1. That any Joint Stock Company now or hereafter to be estab- MemorislofCom mg

lished in the said Province, the members whereof shall be desirous &g,""&::,	' e
of availing themselves of the provisions of this Act, shall file a me- moi-ial in the Supreme Court, in the form or to the effect of the memorial prescribed in Schedule A, to this Act annexed, and contain-
ing the particulars therein required to be set forth; together with an
affidavit or declaration by two of the Dircctors of the Company, verifying the contents of such memorial; and togcther with a list of the members of the Company, containing their names, occupations, and residences, according to the information possessed by the Dircctors
of the Company, and stating the number of shares held by each merrt-

ber respectively; and upon such memorial and affidavit, or declara- tion, being filed, with such list of members as aforesaid, and the pra- visions of this Act being otherwise complied with, the Registrar of certXc~teofRegiw

Joint Stock Companies, shall grant to such Campany a certificate of tratiOn to b0 pans

V 2 registation

registration, in the form specified in the Schedule marked l$ to this Act annexed, which certificate shall be received in evidence, without further proof, in any Court of Law or Equity, that such Company has been duly registered under this Act.

uompanim B be mn-

atituted under deed of	2. Every Joint Stock Company, intended to be registered under this Act, must be constituted under a deed of settlement. and before a certificate of registration shall be granted under the $rovisiona of this Act, an affidavit, or declaration by two of the Directors of the Company, must be filed in the Supreme Court, setting forth that one- half at least of the number of shares, into which the capital of the Company shall be divided, have been subscribed for, and a deposit amount.ing to at least ten per cent. upon the capital rcprcsented by such shares actually paid, and that 'the whole of the thcn shareholders have, by themselves or their attorneys, executed such deed of settlement.
.settlement.
%are8 to be dotted
b promoters to ap-	3. The promoters of every Company hereafter to be cstahlished, the shares of the Company only to persons making application in writing for the same; and every person making such application shall
p ' anb in writing	H	who intend to avail themselves of the provisions of this Act, shall allot
only.
be liable to pay the deposit and calls in respect of the shares for which
he shall have applied, and for the recovery of which the Company, after such registration as herein provided, may sue any such person, notwith- standing he may not have executed the deed of settlemelit of the Company: And the promoters of the Company shall, as soon as con- veniently may be after the applications for shares have been received, and within six calendar months after the date of the first application, alldt the shares of the Company to the applicants for the same, accord- ing to the discretion of the promoters; and shall give notice in writing, through the Post Office at Adelaide, or the nearest post town to the office or place of business of the Company, to such applicant to whom shares shall be allotted, stating the number of shares allotted to the person to whom such notice shall be addressed, and the promoters of the Company, or some or one of them, hall, within one calendar month
ARer allotment, gen-	after such allotment, call a general meeting of the members of the
eral meeting to be
oallod for election of	Company, at some convenient time and place, by advertisement in
Direotors, &c.	all the daily and weekly newspapers published in Adelaide, such advertisement to be inserted at least one week before the day of meeting, and the following business only shall be transacted at such meeting, namely-the election of a Chairman to preside thereat; the election of not less than three Directors to continue in office until ncw Directors shall be appointed under the dccd of settlenwnt
of the Company, and the adjustment, and settling the terms, PTO-
visions, and clauses of the deed of settlement of the Company, whlch shall be produced by the promoters, and read to thc meeting by the Chairman, or a person appointed for that purpose by him; and at every such meeting every person present, who shdl hold a notice of allotment of shares in the Company, shall be entitled to one vote in respect of each share alloted to him on all subjects submitted to the meeting, and every question shall be decided by a majority of votes;

and

alld any person holding u notice of allotnient shall be qualified to be Chairman of the meeting, and a Director of the Company; and thc Chairman shall be at liberty to adjourn such meeting from time to time, and if at any adjourned meting the Chairman of the former meeting shall not be present, then another Chairman maybe nominated from amongst the holders ofnotice of allotment present at the meeting.

4. So soon as the deed of settlement shall be agreed to at the In case anv allottee

meeting to be called as before provided, or any adjoGnrnent thereof, ~ ~ ~ l ~ $ ~ ~ ~ t ~ ~; n t

the directors shall cause the same to be engrossed, or fairly writtcn aner notice, Directors

whom shares in the Company shall have been allotted, stating the	out, and shall give notice through the post office to each person to %:FcUte On '"
time when, and the place where such deed of settlement may be
executed, and in case any person, t6 whom shares shall have been
allotted, shall neglect or refuse to execute such deed of settlement
for the space of fourteen days after such notice as last aforesaid, then
the Directors, or any two of them may, and they are hereby
iqpowered for and on behalf of such person so neglecting or refusing
to execute, and as the attorney of such person to sign and execute
such deed of settlement, and the execution thereof by such two
Directors shall be as valid and effectual, to all intents and purposes,
and as binding upon the person so neglecting or refusing to execute,
as if he had personally executed the same: Provided always, that, if
any person to whom shares shall have been allotted, shall dissent
fi.& the deed of scttlernent, and shall give notice of such dissent to
the Directors of the Company within the said period of fourteen days,
such person shall thereupon cease to be a shareholder of the Company; q
and all moneys paid by such person in respect of any shares allotted
to him shall be forfeited to the Company, and the shares so allotted
shall be cancelled; nevertheless, every such person shall be liable for the paymcnt of the deposit, and all other moneys due in respect of the shares so cancelled, up to the time of giving such notice as last aforesaid, in like rnmner as if he had executed the deed of settlement; and the Company may recover such deposit, and other moneys duc,
upon an account stated.

5. In the months of January and July, in every year, the Directors Wdf-gzarlg returns

of every Joint Stock Company, registered under this Act, shall make to	Registrar.	be	to the
or cause to be made, the following returns to the Registrar of Joint Stock Companies, that is to say-A return according to Schedule C, hercunto annexed, and containing the particulars therein set forth of every transfer of any share in such Company which shall have been made since the preceding half-yearly return (or, in the casc of the first return made by such Company, since the registration thereof) and which shall have come to the knowledge of the Directors; and also a return according to the Schedule D, hereunto annexed, and containing the particulars therein set forth of the names and places
of abode of all person8 who shall either have ceased to be shareholders
of such Company, or have become shareholders of such Company, otherwise than by a transfer as aforesaid, since the preceding half- yearly return, or since the registration of the Company, as the case

*ay

may require, and also of the changes in the names of all shareholders of such Company, whose names shall have been changedby marriage or otherwise since the last preceding half-yearly return, or since the registration of the Company, as the case may require; and if within any such period any such return be not made, then, on conviction thereof, every Director of such Company shall be liable to a penalty not exceeding Five Pounds, for each month beyond such period during which suck return shall not have been made.

until m'de of

transfer of shares the	6. Until the return of the transfer or other fact or event whereby
tranaferrerdeemed a

member of the C o w	a person becomes the holder of any shares be made, pursuant to the
pany.	the provisions hereinbefore contained, it shall not be lawful for such Company, its Directors, or officers, if such transfer, fact, or other event be known to them respectively, to pay to any such person any part of the profits of the concern, nor for any such person to sue for or recover any part of the profits arising in respect of such shares, or in anywise to act as a shareholder; and until the return of the transfer of any share shall have been made pursuant to the pro- visions hereinbefore contained, the person whose share shall ha& been transferred, shall, so far as respects his liability to the debts and engagements of the Company, and also as respects the reimbursements of any loss, damages, costs, and charges he may incur thereby, be deemed to continue a shareholder of such Company:
Trwferreg;stered	Provided always, that if at any time any party to a transfer of a

any time at request of

shareholders.

share, the calls on which having been duly paid, request the Directors of any such Compapy, in writing, to make a return thereof, then, forth- with, on such request, and the transfer being duly entered in the books of the Company, the Directors shall make such return accordingly.

Registrar to make

rcturns, with date of

7. When the particulars and documents severally by this Act required to be returned to or filed with the Registrar of Joint Stock Companies shall have been so returned, or filed, it shall be the duty of the said Registrar, and he is hereby required to cause to be written on every such document, and return of particulars brought to him, the day of the receipt thereof, and to cause to be marked on every such

filing, &C.

return or document, in writing or otherwise, a number denoting the order in which the same was received, and the same shall be entered

by the said Registrar in a book to be kept by him for the purpose of

facilitating reference thereto.

Annual m t m s be 8. Sometime in the month of January, in every year, every Joint

made by Companies.

Stack Company, registered under this Act, shall make a return to the Registrar of the name, and business, or purposes of the Company, and of the Chief Officer of the Company, and of the capital of the Company, and the names of the then Directors, in the form set forth in Schedule E, to this Act annexed, which return shall be signed by two of the Directors of the Company, and filed with the said Registrar;

and if such retwn shall not be made, then the Company neglecting to

make such return shall be deemed to have discontinued its business, a d shall be liable to be dissolved, under the provisions of the Act of

Council

Council No. 5 of 1854, intituled " An Act to facilitate the dissolution, and provide for winding up the affairs of Joint Stock Companies :" Provided always that, if no proceedings shall be taken under the last mentioned Act for the dissolution of the Company so neglect-

ing, as aforesaid, for a period of two calendar months next after

the time limited for making such annual return as hercinbefbre mentioned, then it shall be lawful for the Company, at any time before the expiration of the said period of two calendar months, to make such return; and such return shall, for all the purposes of this Act, be deemed to have been made in the month of January then next preceding the actual making thereof.

When ccrtificats of

9, Upon the registration of any Company, certified by the Regisc trar as hereinbefore provided, such Company, and the then shareholders	registry obtained
C;ompany incorpo-
therein, and all the succeeding shareholders, whilst shareholders,	rated.
shall be,and are hereby incorporated, as from the date of such certifi- cate, b y the name of the coGpany, as set forth in the deed of settle- ment, and for the purpose of carrying on the trade or business for which the Company was formed, but only according to the provisions of this Act, and of such deed as aforesaid, and for the purposes of sueing and being sucd, and of taking, and enjoying the property and effects of the said Company; and such Company shall continue so incorporated until it shall be dissolved, and all its affairs wound c p: but such iucorporatiou shall not restrict the liability of any of the shareholders of the Company under any judgment, decree, or order for the paynicnt of rnonex, which shall have been obtained against such Company in any actlon or suit prosecuted by or against such Company in any Court of Law or Equity, unless such liability shall be limited under the provisions of this Act hcrcinaftcr contained; and upon such incorporation, it shall be lawfd for such Company and they are hereby empowered as follows, that is to say: First-'l'o
use the registered name of the Company, adding thereto the word " registered :" Second-To haw a common scal (wlth power to break, alter, and change the same from time to time) but on which must be inscribed the name of the Company: Third-To sue and be sued by	their registered namc in respect of any claim by or upon the Company	upon or by any person, whether a member of the Company or not:
Fourth-To purchase and hold lands, tenements, and hereditaments in the lmne of the Company, and forthe yurposcs thereof.

10. Every Joint Stock Company registered under this Act shall Two aufitors appointed for every

appoint two auditors for the auditing the accounts of the Company, c	~	~	~	~	~	.
and an audit shall hke place at least once in every year, and always imrnediatcly before the declaration of a dividend; and such auditors
shall bc appointed at any meeting of shareholders, a i d may be
members or not of the Company, and may be rcmovcd and others appointed in their stead by the shareholders at any meeting; and every auditor shall have full power to call for and inspect the books of account of the Company, and all such documents as they shall require for .the full performance of their duty in auditing the accounts.

w2 11. Every

BOW bonbractg eu-

bred into, &c.	11. Every contract entered into on behalf of any Joint Stock Company registered under thia Act (except contracts for the purchase of any article the payment or consideration for which shall not exceed the sum of Fifty bunds), shall be in writing and signed by a quorum of the Directors of the Company, on whose behalf the same shall be entered into, and shall be countersigned by the Secretary; and every bill of exchange and promimory note (where the Directors of any Company ate authorized by deed of settlement or by-law to
issue or accept bills of exchange or promissory notes), and every
cheque or order for the payment of money shall be made, accepted, .ox signed by a quorum of Directors of the Company, and shall be countersigned by the Secretary, and all deeds and instruments bearing the seal of the Company shall be also signed by a quorum of Directors, and cauntersiped by the Secretary,

Companies may ob-	12. Any Joint Stock Company to be formed under this Act may
tain a certificate of

registration with	obtain a certificate of registration with limited liability upon com-
limited liability.	plying with the provisions of this Act, and adding the word limited " to the title or designation of the Company, in lieu of the word registered, which word shall be the last word in such title or dcsignaw tion: Provided always that every such Company shall contain a statement in the deed of settlement that it is formed with limited liability.
Companiee t o aEis	18. Every Joint Stock Company which has obtained a certificate of registration with limited liability, shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the business of the Company is carried on, in a con- spicuous position, in letters easily legible, and shall have its name engraven in legible characters, on the seal, and shall have its name mentioned in legible characters in all notices, advertisements, and other official publications of such Company, and in all bills of exchange, p~ornissory notes, chcques, orders for money, bills of parcels, invoices, receipts, letters, and other writings, used in the

the OuQide

office, &c.

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transaction of the business of thc Company.

Penalty.	14. If such Company do not paint or affix, and keep painted or affixed, its name in the manner aforesaid, each of the Directors thereof shall be liable to a penalty not exceeding Five Pounds, for not so painting or affixing its name, and for every day during which such name is not so kept painted or affixed; and if any Ilireetor or other officer of the Company, or any person on behalf of the Company, use any seal purporting to be a seal of the Company, wherein its name is not so engraven as aforesaid, or issue, or authorize the issue of any notice, advertisement, or other official publication of such Company, ox of any bill of exchange, promissory note, cheque, order for money, bill of parcels, invoice, receipt, letter, or other writing used in the transaction of the business of the Company, wherein its name
is not mentioned in the manner aforesaid, he shall be liable to a penalty
of Five Pounds, and shall further be personally liable to the holder of any such bill of exchange, promissory note, cheque, or order for

money,

money, for the mount thereof, unless the same shall be duly paid

by the Company.

15. The members of a Joint Stock Company which has so obtained acertificate of registration with limited liability, after such certificate is granted, shall not be liable under any judgment, dccree, or order, which shall be obtained against such Company, or for any debt or engagement of such Company further or otherwise than is herein- after provided,	How liability limited.
16. If any execution or other process, in the nature of an execution, either at law or in equity, shall have been issued against any such	to what extent exccu-
In what manner and
tion may be issued
Company as last aforesaid, or against the property or effects thereof,	againat individual
and if there cannot be found sufficient whereon to levy or enforce	members,
such execution or other process, then such execution or other process may bc issued against any one or more of the shareholders to the extent of the portions of their shares respectively in the capital of the Company not then paid up; but no shareholder shall be liable to pay in satisfaction of any one or more execution or other process a greater sum than shall be equal to the portion of his shares not paid up: Provided always, that no such execution shall issue against any shareholder, except upon an order of the Court, or of a Judge of the Court in which the action, suit, or other proceeding shall have been brought or instituted, and such Court or Judge m y order execution

to issue accordingly, with the reasonable costs of such application
and execution, to be taxed by the proper officer of such Court, and for the pnrposc of ascertaining the names of the shareholders, and the amount of capital remaining to be paid upon their respective shares, the returns filed in the SuprCme Court, under the provisions of this Act, shall be sufficient evidence.
17. If the Directors of any Company, which has obtained a certi- ficate of registration with limited liability, shall declare and pay any	Directors not to pay
dividends whcn Com-
pany insolvent.
dividend, when the Company is known by them to be insolvent, or any dividend the payment of which would, to their knowledge, ren- der it insolvent, they shall be jointly and severally liable for all the	debts of the Company then existing, and for all that shall be there-	after contrscted, so long as they shall respectively continue in office:
Provided that the amount for which they shall all bc so liable shall not exceed the amount of such dividend, and that if anv of thc Ilirectors shall be absent at the time of making such divide&, or shall object thereto, and shall file such objection, in writing, with the Clerk of the Company, they shall be exempted from the said liability.

18. In the case of any Company which has obtained a certificate Company to be wound up when three-fourths

of limited liability, whenever, on taking the yearly accounts of such 8ubscribea

Company, or by any report of the Auditors thereof, it shall appear lost-

that three-fourths of the subscribed capital of the Company has been

lost, the trading or business of such ~ompany shall f&hkith cease,

or shall be carried on for the sole purpose of winding up its affairs,

and the Directors of such Company shall forthwith take proper steps

for

for the dissolution of such Company, and for the winding up of it3 affairs, either under the deed of settlement of the Company or the

provisions of the said Act _L of -- Couafi - No. 5 of 1854,

Oontributiom by

members in case o f	19. I n case of the insolvency of any Company registered with towards the payment of the debts of the Company to the extent of the unpaid portion of the subscribed capital held by them respectively, notwithstanding the provisions of tlirc said Act of 1854, No. 5.
insolvency of Com-	Limited liability, the members shall only be liable to contribute
P"Y,

Before whom &da-	20. All affidavits, affirmations, and declarations required to be
vits, &C., to be

made.	made by this Act, may be madc before a Justice of the Pcace, o r a Notary Public of the Province.
Govcmormay appoint
a Registrar.	21. I t shall be lawful for the Governor to appoint a Registrar of Joint Stock Cornpanics, for the purposes of this Act, and until such appointment shall be made, the duties of such Registrar shall bc dis- charged by the Master or Chicf Clerk of the Supreme Court, who shall keep proper books of reference, and allow searches thercin to he madc at any time during the hours of businuss in the office of the
said Court. W
Fees.	22. The fees specified in Schedule F shall bc payable in rcspect of the scvcral inatters and thing9 therein mentioned.
Confitruction clmsc.	2.3. The words member and shareholder, when used in this Act, shall mean mclrbcr, shareholder, or proprietor of shares, or person having an interest as partner in the Company; every word importing the smgular number only shall extend to the phlral number dso; and cvery word importing the malc gender only shall equally apply
to females; the words Company, and Joint Stock Company, shall rr
mean ally Company, A ssociation, or partnership (excelt _-.- _ Banlrs _ _ a n t
r$s~rance Corn an* consisting originally of not less t han&

- @rsons: txe upreme Courts shall mean the Supreme Court of	South Australia; the word Promoters shall mean the persons whose - -8-
names shall appear in any public advertisement as the Committee, Provisional Committee, Cominittce of Management, Directors, or other persons originatifig or promoting the establishment of the Company; the word Registrar shall mcan thc person for the time
being discharging the duties of Registrar of Joint Stock Companies, unclcr this Act.

service OE notice anti	24. In all cases wherein it may be necessary for any person to serve any summons, demand, or notice, or aay writ, or other pro- ceeding at law or in equity, or otherwise, upon any Company regis- tered under this Act, service thereof respectively on the clerk of such Company, or by leaving the same at the head office for the time being of such Company; or, in case such clerk shall not be found or known, then service thereof on any agent or officer employed by such Company, ar by leaving the same at the usual place of abodc of such agent or officer, shall be deemed good and sufficient service of che same respectively on the said Company.
process on the
Company.

25, I11

25. In all cases wherein it may be necessary for any Company to f;$r; ,";""b~ '

serve or g i ~ e any summons, demand, or notice of any kind whatso- ever, to any person or Corporation, under the provisions or directions contained in this Act, such summons, demand, or notice, may be given, in writing, signed by the clerk, attorney, or solicitor, for the time being, of the said Company, without being required to be under the common seal of the said Company; and, unless otlrerwise pro- vided in this Act, may be sent through the Post Office.

26. All pecuniary penalties imposed by this Act may he recovered : how $ : : : : lo-

in a summary may, before any two Justices of the Peace of the

Province.

SCHEDULES REFERRED TO.

A

Memorial of the (here in& the 11.nme Of the Company, and if the liability ' I f ' the

members is intended to be limited, add the word Zimiteclj, filed in pursuance of (here set

out the title o f this A c t.

l. The name of the Company.

2. The business or purpose of thc Company.

3. Whether the liability of meml~crs is intended to bc limited,

or not.

4. The principal, or only place for carrying on the business of

the Company. l

5. The amount of the capital, or intended capital,

Company, and how divided. Of the 1

6. The amount of capital subscribed at date of filing this (

memorial. 5

7. The amount of paid up capital at date of filing this memorial.

8. Thc nanlcs of the then Directors of the Company.

9. Thc names of the thcn Trustecs of the Company (if an)).

10. The nitrnes of the then Auditors of the Conlpany.

11. The duration of the Company, and the mode provided for \ its dissolution. )

1, Master, or Chief Clerk, of the Suprrme Conri, or South

Australia, or Registrar of Joint Stock Companks (as 1 1 1 ~ 3 case n ~ i y be), do liereby certify that (here insert the desig?zcrfion qf the Conzpcr?y) is registered uuder the provisions of the Act of Council, 1855-6, Xo. intituled /here i m c r t the title of'

th i s Act).

Iteturn made pursuant to the Act of Coi~ncil, 1855-6, No. intituled (here itzwrt

the tit2e of this Act).

( H e r e insert the c/migmz tiorz of tha Conyan y .)

l

Namc and place of abode Namc and place of abode Distinctive numbcrs

of pcrmn by whom of person to whom of thn shares Date of transfer.

trimsfcr i b nlildc. tmaskr is msdc. transferred.

I

--p-	--p	-
l
l
I

(Date.) (Sipntzwe.) * D

D

Return made pursuant to Act of Council, 1856-6, No. intituled (here insert

title of this A ~ t j.

(Here imert designation of the C o m p c y. )

Persons known to have ccased to be shareholders (except by transfer), since the

day of

. -

p---"-

Name. Plncc of abode. Distinctive number of shares.

--	-p----
-- --

Persons known to have become members (except by transfer), sincc thc

day of

Place of nbodc. Distinctive number of ~hares.

------p-

Persons whose names have become changed by marriage, or otherwise.

E

Return made pursuant to the Act of Council, 1855-6, No. intituled f l w s imwt

the title ofthe Ac t ).

(Here insert the nanze of the Compnny, wnd the names of the Directors.)

l

Business of the Offirer of the Number of Amount of each Amouct paid up

Company. Company. Shares> I share. on each Shme.

- - 1 - -- --

I

(Date.)

The following fees shall be 'payable, in respect of the several matters and things herein mentioned :-

L! S. d.

For every search at the Supreme Court for documents filed ............ 0 2 6

For filing any returns or other document,. .......................... 0 P 6

For a certificate of registration., ................................... 2 0 0

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Adelaide : Printed by authority, by W. C. Cox, Go~ernment Printer, Victoria-square.