Companies Act 1936 (NSW)
COMPANIES ACT.
Act No. 33, 1936.
An Act to amend and consolidate the law relating to companies; and for purposes connected therewith. [Assented to, 22nd July, 1936.]
BE it enacted by the King's Most Excellent Majesty, by and with tbe advice and consent of the Legis lative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :—
PART I.
PRELIMINARY.
1. ( 1 ) This Act may be cited as the " Companies Act,
1936."
( 2 ) This Act save as in this section mentioned shall commence on the first day of January, one thousand nine hundred and thirty-seven, but the Governor may by proclamation published in the Gazette from time to time appoint earlier days on which all or any of the pro visions of Par t I I , Par t V I I I , Pa r t X , Pa r t X I , Pa r t
PART II.—ADMINISTRATION OF ACT—s. 7. PART
X I I I , or Par t X I V of this Act or the relative Schedules
shall commence and the provisions specified in any such
proclamation shall commence accordingly.( 3 ) This section shall commence on the date on which the Royal Assent to this Act is given by the Governor on behalf of His Majesty.
2. This Act is divided in Parts , as follows:—
PART I.—PRELIMINARY—ss. 1-6.
P A R T TERS INCIDENTAL THERETO— SS.
I I I .—INCORPORATION
OP COMPANIES AND MAT
8 - 4 0 .
DIVISION 1.—Prohibition of large partners h i p s —
s. 8 .
DIVISION 2 .—Memorandum and articles of associ
ation— ss. 9 - 2 6 .
DIVISION 3 .—Regis tra t ion—ss . 2 7 - 3 6 .
DrvisioN 4 .—Proprietary companies— ss. 3 7 - 4 0 .
P A R T I V . — N O - L I A B I L I T Y COMPANIES— ss. 4 1 - 4 4 . P A R T V.—REGISTRATION OF COMPANIES NOT FORMED
UNDER THIS A C T — ss. 4 5 - 6 0 .
P A R T V I . — F O R E I G N COMPANIES— SS. 6 1 - 7 4 . P A R T COMPANIES— ss.
V I I . — M A N A G E M E N T
AND ADMINISTRATION
OF
7 5 - 1 3 5 .
DIVISION 1.—Registered office and name— ss. 7 5 - 7 7 .
DIVISION 2.—Regis ter of members— ss. 7 8 - 8 5 .
DIVISION 3 .—Branch register— ss. 8 6 , 8 7 .
DrvisioN 4 .—Annual return— ss. 8 8 - 9 1 .
DIVISION 5.—Meetings and proceedings— ss. 9 2 - 1 0 1 .
DrvisioN 6.—Accounts and audit— ss. 1 0 2 - 1 1 5 . DIVISION 7.—Inspection— ss. 1 1 6 - 1 1 9 . DIVISION 8.—Directors— ss. 1 2 0 - 1 3 2 .
DrvisioN 9 .—Arrangements and r e o n s t r uctions—
ss. 1 3 3 - 1 3 5 .
P A R T V I I I . — S H A R E CAPITAL AND D E B E N T U R E S — ss. 1 3 6 - 1 8 3 .
DIVISION 1.—Prospectus— ss. 1 3 6 - 1 4 1 . DIVISION 2.—Allotment— ss. 1 4 2 - 1 4 5 . DIVISION 3 .—Commissions and discounts— ss. 1 4 6 -
1 5 0 . DIVISION 4 .—Share
capital—
ss.
1 5 1 - 1 6 4 .
DIVISION 5 .—Workers ' shares— ss. 1 6 5 - 1 6 8 .
DIVISION 6.—Debentures— ss. 1 6 9 - 1 7 3 .
DIVISION 7.—Dealings in shares and d e b e ntures—
ss. 1 7 4 - 1 8 3 . P A R T P A R T IX.—REGISTRATION ©F CHARGES— ss. 1 8 4 - 1 9 8 .
P A R T X . — W I N D I N G U P — SS. 1 9 9 - 3 2 8 .
DIVISION 1.—Preliminary— ss. 1 9 9 - 2 0 5 .
DIVISION 2 .—Winding up by court— ss. 2 0 6 - 2 5 9 .
DIVISION 3 .—Voluntary winding up— ss. 2 6 0 - 2 8 8 .
DIVISION 4 .—Winding up subject to supervision of
court— ss. 2 8 9 - 2 9 3 .
DIVISION 5 .—Provisions applicable to every mode
of ivinding up— ss. 2 9 4 - 3 2 1 .
DIVISION 6.—Provisions as to dissolution— ss. 3 2 2 - 3 2 8 .
P A R T X L — W I N D I N G UP OF UNREGISTERED COMPANIES
— ss. 3 2 9 - 3 3 4 .
P A R T X I I .—RECEIVERS AND MANAGERS— SS. 3 3 5 - 3 4 0 .
P A R T X I I I . — R E S T R I C T I O N S ON SALE OF S H A R E S — ss. 3 4 1 - 3 4 4 .
P A R T X I V . — M I S C E L L A N E O U S — SS. 3 4 5 - 3 8 0 .
S C H E D U L E S 1 - 1 3 . 3. ( 1 ) The Acts ment ioned in Schedule One to
this Act a r e to the extent there in expressed hereby
repealed.
( 2 ) All persons appointed under or by v i r tue of
the provis ions of any enactment hereby repealed and holding office a t the commencement of this Act shall r emain in office as if this Act had been in force a t the time when they were appointed and they had been
accordingly. appointed hereunder , and this Act shall apply to them ( 3 ) All rules of court made under the au thor i ty of any enactment hereby repealed and being in force a t the commencement of this Act shall be deemed to have been made under the au thor i ty of this Act, and references in any such rules to the provis ions of any enactment hereby repealed shall be construed as references to the corre sponding provis ions of this Act.
( 4 ) All rules, regulat ions , and art icles of associa
tion, and every memorandum for reg is t ra t ion , and every memorandum of association duly made or deemed to
have
have been duly made, and all reg is t ra t ions duly effected or deemed to have been duly effected, and any other m a t t e r or th ing duly done under o r in accordance with any of the provisions of any enactment hereby repealed and in force and operat ive a t the commencement of this Act, shall be deemed to be and to have been duly made, effected or done under the corresponding provisions of th is Act, and as if this Act h a d been in force when the same were made, effected or done respectively.
4. (1) The repeal by this Act of any enactment shall no t affect—
(a)
the incorporation of any company registered unde r any enactment so repea led ;
(b)
Table A in the Second Schedule to the Com panies Act, 1899, or any p a r t thereof (ei ther as originally contained in tha t Schedule or a s a l tered in pursuance of section seventy- two of tha t A c t ) , so far as the same applies to any company exist ing a t the commencement
of this A c t ; (c)
the Seventh Schedule to the Companies Act.. 1899, or any p a r t thereof (ei ther as original ly f ramed or as a l tered in pursuance of section two hundred and seven of tha t A c t ) , so fa r a s the same applies to any company exist ing a t the commencement of th is Act.
(2) The provis ions of this Act with respect to
winding u p shall not apply to any company of which the
winding up has commenced before the commencement of
th i s Act, bu t every such company shall be wound up in
the same manner and with the same incidents as if this Act h a d not been passed, and, for the purposes of the winding up, the Act or Acts under which the winding up commenced and any rules of court made the reunder shall be deemed to remain in full force.
(3) The mention of pa r t i cu la r m a t t e r s in this
section or in any other section of th is Act shall not prejudice the genera l appl icat ion of sections six and eight of the In t e rp re t a t i on Act of 1897, with r e g a r d to the effect of repeals .
(1) E v e r y conveyance, mor tgage , deed or agree ment made, resolut ion passed, direction given, proceeding taken, ins t rument issued, or th ing done before the com mencement of this Act in pursuance of any enactment hereby repealed shall be of the same force as if this Act had not been passed, and to the extent necessary to give the foregoing provis ions full effect the repealed enact ment shall be deemed to remain in full force.
5 .
(2) W h e r e any enactment repealed by this Act is mentioned or re fe r red to in any Act or document, t h a t Act or document shall be read as if the corresponding provision, if any, of this Act were therein mentioned or re fer red to and subst i tu ted for the repealed enactment.
(3) Nothing in this Act shall affect the provisions of section five of the T r a d e Union Act, 1881, or of the Mining P a r t n e r s h i p s Act, 1900, or of section for ty- three of the Public Trus tee Act, 1913. A reference in any such Act to the Companies Act, 1899, or any Act repealed by tha t Act shall be read as a reference to this Act.
(4) The Governor m a y by proclamat ion published in the Gazette app ly and extend all or any of the p ro visions of this Act in relat ion to the prospectus of a company, with or wi thout any modifications, to and in respect of a min ing company formed and regis tered unde r the Mining P a r t n e r s h i p s Act, 1900, or p roposed tr- be so formed and regis tered.
A n y such proclamat ion may be f rom t ime to tim var ied or revoked by a like proclamat ion.
6. (1) I n this Act, unless the context otherwise requires , the following express ions have the meanings
hereby ass igned to them, tha t is to say:—
" Admin i s t r a to r " means admin i s t r a to r within the mean ing of the Wil ls , P r o b a t e and Adminis t ra t ion Act, 1898-1932, and includes the public t rus tee act ing as collector of an es ta te unde r an o rder to collect.
" A n n u a l r e t u r n " means the r e t u r n required to be made, in the case of a company having a share capital , under section eighty-eight, and, in the case of a company not having a share capital , under section eighty-nine, of this Act.
" A r t i c l e s "
" Art icles " means the art icles of association of a company, as originally f ramed or as a l tered by special resolution, including, so far as they app ly to the company, the regulat ions contained, as the case may be, in Table A in the Second Schedule to the Companies Act, 1899, or in tha t Table as a l tered in pursuance of section seventy-two of t ha t Act or in the Seventh Schedule to the Companies Act, 1899, or in tha t Schedule as a l tered in pursuance of section two hundred and seven of t ha t Act, or in Table A in Schedule Two to this Ac t ; and in relat ion to a no-liability company means the rules of the company.
" Bankrup tcy " includes any act or proceeding in law hav ing under any enactment heretofore or for the t ime being in force effects or resul ts s imilar to those of bankruptcy, and " bankrup t " has a meaning corresponding with t h a t of
" " Book and pape r " and " book or p a p e r " include bank rup t cy . " accounts, deeds, wri t ings , and documents.
" Capi ta l shares " means shares other t han w o r k e r s ' sha res .
" Company " means a company formed and regis te red under this Act or an existing company.
" Company l imited by guaran tee " means a company formed on the principle of having the liability of i ts members l imited by the memorandum to such amount as the members may respectively under take to contr ibute to the assets of the company in the event of i ts being wound up .
" C o m p a n y limited by s h a r e s " means a company formed on the principle of having the liabili ty of i ts members l imited by the memorandum to the amount unpa id on their shares .
" Cour t " means the Supreme Cour t in its equitable
jurisdict ion.
" Debenture " includes debenture stock, bonds and
any other securit ies of a company whether cons t i tu t ing a charge on the asse ts of the company
or not . " D i r e c t o r "
" Director " includes any pe r son occupying the posi t ion of di rector by whatever name called.
" D o c u m e n t " other legal process, and regis ters . includes summons, notice, order, and " Execu tor " means the executor to whom probate
has been g ran ted and includes an executor by
r igh t of representa t ion .
" Ex i s t ing company " means a company formed a n d regis tered under or subject to the Com panies Act, 1899, or a company deemed to be regis tered unde r tha t Act.
" F o r e i g n c o m p a n y " means a company incorpor a ted outside the Sta te , which establishes a place of business or car r ies on business within the Sta te , and includes a company incorpora ted unde r the law for the t ime being in force in the T e r r i t o r y for the Sea t of Government of the
Commonweal th of Aus t ra l ia .
" General rules " means genera l rules made under this Act, and includes forms.
" J u d g e " means a judge of the Supreme Court .
" Limi ted company " means a company limited by
shares or a company l imited by guaran tee , but
does not include a no-liability company.
" M a n a g e r "
director , secretary, or pr inc ipal executive officer
by whatever designat ion he is styled.includes act ing manager , manag ing " Memorandum " means the memorandum of asso ciation of a company as original ly f ramed or a s a l tered in pursuance of any enactment .
" Mor tgage " i n c l u d e s agreement to give a mor tgage . " No-liability company " means a company incor pora t ed on the no-liability sys tem in accordance wi th the provis ions of P a r t I V of this Act, or an exist ing company being a no-liability mining company.
" P r e s c r i b e d " means prescr ibed by this Act or by regula t ion or genera l rules or rules and orders made p u r s u a n t to this Act and in accordance with and subject to the provis ions of th is Act and the direct ions contained in Schedule Thi r teen to this Act.
" P r o p r i e t a r y
" P r o p r i e t a r y company " means a company whose memorandum or art icles contain the restric t ions and prohibi t ions re fe r red to in section thir ty-seven of this Act, and otherwise conforms to the t e rms of t ha t section.
" P rospec tus " means any prospectus , notice, cir cular, adver t isement , or other invi ta t ion offering to the public for subscript ion or purchase any shares or debentures of a company.
" Publ ic company " means a l imited company
other than a p r o p r i e t a r y company.
" Rules " in relat ion to a no-liability company means the rules of the company as originally framed or as a l tered by special resolution, including so far as they apply to the company the rules contained, as the case may be, in the Seventh Schedule to the Companies Act, 1899, or in tha t Schedule as a l tered in pursuance of section two hundred and seven of t ha t Act or in Table F of Schedule Two to th is Act.
" Secre ta ry " includes act ing secretary.
" Share " means share in the share capi ta l of thecompany, and includes stock except where a dist inction between stock and shares is expressed or implied.
" S ta t e " means the S ta t e of New South Wales .
" Subs id ia ry company " means a subsidiary com
p a n y as defined in section one hundred and seven
of this Act.
" Table A " means Table A in Schedule Two to
this Act.
" The Companies Acts " means the Companies Act, 1899, and any Act amending t h a t Act.
" The Regis t ra r -Genera l " includes a Depu ty Re g is t ra r -Genera l and any person appointed to
exercise the powers of the Regis t ra r -Genera l .
" Unl imited company " means a company formed on the principle of hav ing no limit placed on the liabili ty of i ts members .
" W o r k e r s ' shares " means shares issued as w o r k e r s ' shares in accordance with the provis ions of section one hundred and sixty-five of this Act.
( 2 )
(2) A person shall not be deemed within the mean ing of any provis ion of this Act to be a person in accordance wi th whose directions or ins t ruct ions the d i rec tors of a company a re accustomed to act, by reason only t ha t the di rectors of the company act on advice given by him in a professional capacity.
(3) The penal ty , pecuniary or other, set out—
(a) a t the foot of any section of this Act ; or
(b) at the foot of any subsection of any section of this Act, but not a t the foot of the section,
shall indicate tha t any contravent ion of the section or of the subsection respectively, whether by act or omission, shall be an offence agains t the Act, punishable upon con viction by a penal ty not exceeding the penal ty ment ioned:
P rov ided tha t where the penal ty is expressed to apply
to a p a r t only of the section or subsection, it shall apply
to tha t p a r t only. (4) In the appl icat ion of this Act to exist ing com panies (as defined in subsection one of this section) i t shall apply in the same manner—
(a)
in the case of a limited company other than a company limited by guaran tee as if the company had been formed and regis tered under this Act
as a company l imited by s h a r e s ; (b)
in the case of a company limited by guarantee as if the company had been formed and regis te red under this Act as a company limited by
g u a r a n t e e ; (c)
in the case of a company other than a limited company and not being a no-liability company as if the company had been formed and regis tered unde r this Act as an unlimited company;
(d)
in the case of a no-liability company as if the company had been formed and regis tered under this Act as a no-liability company.
( 5 ) This Act shall apply to every company regis
te red but not formed under the Acts repealed by th is Act in the same m a n n e r as in this Act i t is declared to apply, to companies reg is te red but not formed under this Act.
( 6 )
(6) In every case of a company re fe r red to in sub section four or subsection five of this section reference, express or implied, to the da te of reg is t ra t ion shall be construed as a reference to the da te at which the company concerned was regis tered under the Acts repealed by this Act or any Act which was repealed or replaced by any such Act.
(7) Any regis ter kept under any Act repealed by th is Act shall be deemed p a r t of the regis ter to be kept under the corresponding provisions of this Act.
P A E T I I .
ADMINISTRATION OF A C T .
(1) F o r the purposes of this Act the reg i s t ra t ion of companies shall be conducted and executed by the Eegis t ra r -Genera l , who shall also ca r ry out and perform such duties , powers , and functions as a re committed to him by this Act.
7.
(2) Subject to the provisions of the Publ ic Service Act, 1902, as amended by subsequent Acts , the Governor may from t ime to t ime appoin t such Depu ty E e g i s t r a r s - General , clerks and se rvan ts as he may think necessary to- assis t in the conduct and execution of the regis t r a t ion of companies and the ca r ry ing out and performance of the duties , powers , and functions com
mit ted to the Eeg i s t ra r -Genera l by this Act. (3) Eegula t ions may be made under the provi this Act a re requi red or pe rmi t t ed to be prescr ibed or sions of this Act prescr ib ing all m a t t e r s which by
which a re necessary or convenient to be prescribed, to
ca r ry any provis ion of this Act which re la tes to the reg i s t ra t ion of companies or which commits the Eegis t ra r -Genera l any duty, power or function into effect.
(4) Whenever anyth ing is by any law appointed to
be done by the Eeg i s t ra r -Genera l it may be done by any
Deputy Eegis t ra r -Genera l .
(5) The Governor may a r r a n g e with the Governor-
General of the Commonwealth for the hand ing over to the At torney-Genera l of the Commonwealth of all ins t ru ments and documents required by any Act repealed by
this
this Act in i ts appl icat ion to the T e r r i t o r y for the Seat of Government , to be regis tered, enrolled, recorded, filed, or deposited by or with the Regis t ra r -Genera l in respect of companies the regis tered offices of which a r e situate in the said Te r r i t o ry , or for the del ivery to such At torney-Genera l of copies thereof duly certified by the
Reg is t ra r -Genera l as correct copies. (6) The Regis t ra r -Genera l , officers of the court ac t ing in the winding u p of companies and other p re scribed officers shall make prescr ibed r e tu rns of the busi ness of thei r respect ive courts and offices a t the t imes and in the manne r prescr ibed to the Minister.
(7) The Minis ter shall cause a general annual re po r t of ma t t e r s wi thin this Act to be p r epa red and
laid
before both Houses of Par l i ament .
P A R T I I I .
INCORPORATION OF COMPANIES AND MATTERS INCIDENTAL
THERETO.
DIVISION 1.—Prohibition of large partnerships.
8. (1) No company association or p a r t n e r s h i p con
s is t ing of more than twenty persons shall be formed for the pu rpose of ca r ry ing on any business t ha t has for i ts object the acquisi t ion of gain by the company associat ion or pa r tne r sh ip , or by the individual members
Act, or is formed in pursuance of some other Act or thereof, unless it is regis tered as a company under this Imper i a l Act or of a royal cha r t e r or of le t te rs pa t en t or is a company formed for min ing purposes under or in pursuance of the Mining P a r t n e r s h i p s Act, 1900, or some Act repealed by t h a t Act.
(2) No company association or p a r t n e r s h i p con
sist ing of more t han ten persons shall be formed for the purpose of ca r ry ing on the business of banking unless i t is reg is te red as a company under th is Act, or is formed in pursuance of some o ther Act or Imper i a l Act, or of
a royal cha r t e r or le t ters pa tent .
DIVISION
DIVISION 2 .—Memorandum and articles of association. 9. (1) Any seven or more persons , or, where the company to be formed will be a p r o p r i e t a r y company, any two or more persons , associated for any lawful purpose may, by subscribing their names to a memor andum of associat ion and otherwise complying with the requi rements of this Act in respect of regis t ra t ion , form an incorpora ted company, with or wi ihout limited liability.
( 2 ) Such a company may be ei ther—
(a)
a company having the liability of its members l imited by the memorandum to the amount , if any, unpaid on the shares respectively held by
t h e m ; or (b)
a company having the liability of its members l imited by the memorandum to such amount as the members may respectively thereby under take to contr ibute to the asse ts of the company in the event of i ts being wound u p ; or
(c) a company not having any limit on the liability
of i t s members . 10. (1) I n the case of a company limited by shares the memorandum mus t
s t a te—
(a)
the name of the company, with " Limited " as the las t word in i ts n a m e ;
(b) the objects of the company;
(c) t ha t the l iabil i ty of the members is l imi ted; (d) the amount of share capital with which the company proposes to be regis tered, and the division thereof into shares of a fixed amoun t ; (e) the place in New South Wales in which the regis tered office of the company is proposed to
be s i tuate . ( 2 ) No subscriber of the memorandum may
take less than one share , and each subscriber must wri te in words opposite to his full name the number of shares t ha t he takes.
11 . gua ran tee the memorandum mus t
( 1 ) I n
the
case
of
a
company limited
by
s t a te—
(a) the name of the company, with " Limited " as
the las t word in i ts n a m e ; (b) the objects of the company ;
(c) t ha t the liability of the members is l imited;
(d) that each member undertakes to contribute • to the assets of the company in the event of i ts being wound up while he is a member, or within one y e a r af ter he ceases to be a member, for payment of the debts and liabilities of the company contracted before he ceases to be a member , and of the costs, charges and expenses of winding u p and for adjus tment of the r igh ts of the contr ibutor ies among themselves, such amount as m a y be required, not exceeding a
specified a m o u n t ; (e) the place in New South Wales in which the reg is te red office of the company is proposed to
be s i tua te .
(2) If the company has a share capital , the memorandum mus t also s ta te the amount of share capi tal wi th which the company proposes to be reg i s te red and the division thereof into shares of a fixed amount , and no subscriber of the memorandum may take less than one share , and each subscriber mus t wri te in words opposi te to his full name the number of shares t h a t he takes .
12. ( 1 ) I n the case of an unlimited company the memorandum mus t s ta te the name of the company, and the objects of the company, tha t the liabili ty of the members is unlimited, and the place in New South Wales in which the reg is te red office of the company is p roposed
to be s i tuate . (2) If. the company has a share capi tal , no subscriber of the memorandum m a y take less t han one share , and each subscriber mus t wr i te in words opposi te to his full name the number of shaves tha t he takes .
The memorandum of a company mus t be pr in ted , and mus t be signed by each subscriber in the presence of at least one witness , not being a subscriber, who mus t
13.
| a t tes t | the | s ignature . |
A company may not a l ter the conditions contained in i ts memorandum except in the cases, in the mode and to the extent for which express provision is made in this Act.
14.
15. ( 1 ) Subject to the provis ions of th is section a company may, by special resolution, a l te r the provis ions of i ts memorandum with respect to the objects of the company so fa r as m a y be requi red to enable i t to do any one or more of the following, tha t is to say—
(a)
to carry on its business more economically or more efficiently;
(b)
to attain its main purpose by new or improved m e a n s ;
(c) to enlarge or change the local area of its opera
t ions ; (d)
to carry on some business which under existing circumstances may conveniently or advan tageously be combined with the business of the company;
(e) to res t r ic t or abandon any of the objects specified
in the m e m o r a n d u m ; (f)
to sell or dispose of the whole or any part of the under t ak ing of the company;
(g) to amalgamate with any other company or body
(h) to subscribe to funds for charitable, philanof persons; thropic or pat r io t ic purposes .
( 2 ) The a l tera t ion shall not take effect until and
except in so far as it is confirmed by the court .
(3) Before confirming the a l te ra t ion the court
mus t be satisfied—
(a)
that sufficient notice has been given to every holder of debentures of the company, and to any persons or class of persons whose in teres ts will, in the opinion of the court , be affected by
the a l t e ra t ion ; and (h).
(b)
that with respect to every creditor who in the opinion of the cour t is enti t led to object, and who signifies his objection in manne r directed by the court , e i ther his consent to the a l tera t ion has been obtained or his debt or claim has been discharged or has determined, or has been secured to the sat isfaction of the cour t :
P rov ided tha t the court m a y in the case of any person or class, for special reasons , dispense with the notice required by this section.
( 4 ) The court may make an order confirming the
a l tera t ion ei ther wholly or in pa r t , and on such t e rms and conditions as it thinks fit, and may make such order as to costs as i t thinks p roper .
(5) The court shall, in exercising its discret ion under this section, have r e g a r d to the r igh ts and in te res t s of the members of the company, or of any class of them, a s well as to the r igh ts and in teres ts of the credi tors , and may, if i t th inks fit, ad journ the proceedings in order tha t an a r r angemen t m a y be made to the sat isfaction of the cour t for the purchase of the in teres ts of dissent ient member s ; and m a y give such directions and make such orders a s i t m a y think expedient for faci l i ta t ing or
ca r ry ing P rov ided tha t no p a r t of the capi ta l of the company
into
effect
any
such
a r r a n g e m e n t :
shall be expended in any such purchase .
(6) A n office copy of the order confirming the a l tera t ion , together wi th a p r in t ed copy of the
memor
andum as al tered, shall, within th i r ty days f rom the da te of the order , be filed by the company with the Reg i s t r a r -
General , and he shall reg is te r the copy so filed and shallcertify the reg i s t ra t ion unde r his hand, and the certificate shall be conclusive evidence t ha t all the requi rements of th is Act wi th respect to the a l te ra t ion and the confirma t ion thereof have been complied with, and hencefor th the memorandum so a l tered shall be the memorandum of the company.
The court m a y by o rder a t any t ime extend the t ime for the filing of documents with the Regis t ra r -Genera l unde r this section for such per iod as the court may think p roper .
( 7 )
(7) If a company makes default in filing with the Regis t ra r -Genera l any document required by this section to be filed with him the company and every officer who is in defaul t shall be guil ty of an offence.
P e n a l t y : Ten pounds for every day du r ing which this default continues.
16. There may, in the case of a company limited by shares , and there shall in the case of a company l imited by guaran tee o r unlimited, be regis tered wi th the memorandum, art icles of association prescr ib ing regula t ions for the company.
17. (1) I n the case of an unlimited company the articles, if the company has a share capital , mus t s ta te the amount of share capi tal with which the company proposes to be regis tered.
( 2 ) I n the case of an unlimited company or a
company limited by guaran tee , the art icles, if the com p a n y has not a share capital , mus t s ta te the number of members wi th which the company proposes to be regis tered.
(3) W h e r e a company not having a share capi tal has increased the number of i ts members beyond the reg is te red number, it shall, within fifteen days af ter the increase was resolved on or took place, file with the Regis t ra r -Genera l a notice of the increase, and the
Regis t ra r -Genera l shall record the increase. If default is made in complying with this subsection, the company and every officer of the company who is in default shall be guil ty of an offence.
18. (1) In the case of a company limited by shares ar t ic les of associat ion may adopt all or any of the regula t ions contained in Table A in Schedule Two to this Act. (2) I n the case of a company l imited by shares and regis tered af ter the commencement of this Act, if art icles a re not regis tered, or, if art icles a r e regis tered, in so far as the art icles do not exclude or modify the regula t ions in Table A, those regula t ions shall, so fa r as applicable, be the regula t ions of the company in the same manne r and to the same extent as if they were contained in duly regis tered art icles.
19. p a r a g r a p h s
(1) Art ic les mus t be pr in ted , and be divided into
numbered consecutively.
(2) Art ic les m u s t be signed by each subscriber
of the memorandum of associat ion in the presence ofa t leas t one witness , not being a subscriber, who must
a t tes t the s igna ture . 20. (1) Subject to the provis ions of this Act and to the conditions contained in i ts memorandum, a company may by special resolut ion a l ter or add to i ts articles.
(2) A n y a l te ra t ion or addi t ion so made shall bo
as val id as if originally contained in the art icles, and besubject in like manne r to a l te ra t ion by special resolution.
2 1 . The form of—
(a) the memorandum of association of a company
l imited by s h a r e s ; (b) the memorandum and articles of association of a company limited by guaran tee and not having
a sha re cap i t a l ; (c) the memorandum and articles of association of a company limited by guaran tee and having a
sha re cap i t a l ; (d) the memorandum and articles of an unlimited
company hav ing a share cap i ta l ;
shall be respectively in accordance wi th t h j forms set out in Tables B , C, D and E in Schedule Two to this Act,
or as n e a r the re to a s circumstances admit . 22 . (1) Subject to the provis ions of this Act, the memorandum and art icles shall, when regis tered, bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by each member , and contained covenants on the p a r t of each member to observe all the provis ions of the
m e m o r a n d u m and of the ar t icles . (2) All money payable by any member to the
company under the memorandum or ar t ic les shall be adebt due from him to the company, and shall be of the
n a t u r e of a special ty debt. 23 . (1) I n the case of a company l imited by gua ran tee and not hav ing a share capital , and regis tered af ter the commencement of this Act, every provis ion in the memorandum or art icles or in any resolut ion of the company p u r p o r t i n g to give any person a r igh t to pa r t i c ipa te in the divisible profits of the company otherwise than as a member shall be void.
(2) F o r the purpose of the provis ions of this Act re la t ing to the memorandum of any such company l imited by guaran tee and of this section, every provision in the memorandum or art icles, or in any resolution, of any company limited by guaran tee , and regis tered af ter the commencement of this Act, p u r p o r t i n g to divide the under tak ing of the company into shares or in teres ts shall be t r ea ted as a provision for a share capital , notwith s tanding tha t the nominal amount or number of the shares o r in teres ts is not specified thereby.
Notwi ths tanding anyth ing in the memorandum or art icles of a company no member of the company shall be bound by an a l tera t ion made in the memorandum or art icles af ter the da te on which he became a member, if and so fa r as the a l te ra t ion requires him to take or subscribe for more shares than the number held by h im a t the da te on which the a l tera t ion is made, or in any way increases his liability as a t t ha t da te to contr ibute to the share capi tal of, or otherwise to pay money to , the company :
24.
Prov ided tha t this section shall not apply in any case
where the member agrees in wri t ing, ei ther before or
af ter the a l te ra t ion is made , to be bound thereby. 25. (1) A company shall, on being so required by any member , send to h im a copy of the memorandum
and of the ar t icles , if any, and a copy of any Act of
P a r l i a m e n t which a l ters the memorandum, subject to payment , in the case of a copy of the memorandum and of the art icles, of one shilling or such less sum as the company m a y prescr ibe , and, in the case of a copy of an Act, of such sum not exceeding the published price as the company may require .
(2) If a company makes default in complying
with this section, the company and every officer of the
company who is in default shall be guil ty of an offence.
P e n a l t y : One pound. (1) W h e r e an a l te ra t ion is made in the memoran dum or ar t icles of a company, every copy of the memorandum or ar t icles issued af ter the da te of the a l te ra t ion shall be in accordance with the al terat ion.
26.
I t shall be a sufficient compliance with th is subsection wi th respect to the art icles if a p r in ted copy of the special resolut ion making the a l te ra t ion is annexed to the copy of the art icles and the pa r t i cu la r ar t icles affected indi cated in ink.
( 2 ) If, where any such a l te ra t ion has been made,
the company a t any time af ter the date of the a l te ra t ion issues any copies of the memorandum or art icles which a re not in accordance with the a l tera t ion, it shall be guil ty of an offence, and every officer of the company who is in default shall be gui l ty of a like offence.
P e n a l t y : One pound for each copy so issued.
DIVISION 3 .—Regis trat ion .
27. The memorandum and the art icles, if any, shall be filed wi th the Regis t ra r -Genera l ,
and he shall
r e ta in
and reg is te r them. 281 (1) On the reg i s t ra t ion of the memorandum of
a company the Regis t ra r -Genera l shall certify under his h a n d t h a t the company is incorporated, and in the case of a l imited company tha t the company is limited, and in the case of a p r o p r i e t a r y company tha t the
company is a p r o p r i e t a r y company.
(2) F r o m the da te of incorpora t ion ment ioned
in the certificate of incorporat ion, the subscribers of the
memorandum, together with such other persons as mayfrom time to t ime become members of the company, shall be a body corpora te by the name contained in the memorandum, capable for thwith of exercising all the functions of an incorpora ted company, and having per pe tua l succession and a common seal, but with such liabil i ty on the p a r t of the members to contr ibute to the assets of the company in the event of i ts being wound u p as is mentioned in this Act.
29 . A company incorpora ted under this Act shall have power to hold lands.
30. (1) A certificate of incorporat ion given by the Eeg i s t r a r -Genera l in respect of any association shall be conclusive evidence tha t all the requi rements of this Act in respect of regis t ra t ion and of m a t t e r s precedent and incidental thereto have been complied with, and tha t the association is a company author ised to be regis tered and duly regis tered under this Act.
(2) The Eeg is t ra r -Genera l may, if he thinks fit, requi re a s t a tu to ry declarat ion to be made by a solicitor of the court engaged in the format ion of the company, or by a person named in the art icles as a di rector or secre tary of the company, to be filed with h im s ta t ing tha t all or any of the requi rements mentioned in subsection one of this section have been complied with, and the Eegis t ra r -Genera l may accept such a declarat ion as sufficient evidence of compliance.
31 . (1) Subject to the provisions of this section a company regis tered as unlimited may regis ter under this Act as limited, or a company a l ready regis tered as a limited company may re-regis ter under this Act, but the reg is t ra t ion of an unlimited company as a l imited company shall not affect the r igh ts or liabilities of the company in respect of any debt or obligation incurred o r any contract entered into, by, to, with, or on behalf of the company before the regis t ra t ion , and those r ights o r liabilities may be enforced in manner provided by P a r t V of this Act in the case of a company regis tered
in pursuance of t ha t P a r t .
(2) On reg is t ra t ion in pursuance of this section
the Eeg is t ra r -Genera l shall close the former reg is t ra t ion of the company, and m a y dispense with the filing with him of copies of any documents with copies of which he was furnished on the occasion of the original regis t ra t ion of the company, but, save as aforesaid, the regis t ra t ion shall take place in the same manner and shall have effect as if it were the first reg is t ra t ion of the company under this Act, and as if the provis ions of the Acts under which the company was previously regis tered and regula ted had been contained in different Acts from those under which the company is regis tered as a l imited company.
32 . (1) No company shall be regis tered by a name which—
(a)
is identical with that by which a company or a foreign company is a l ready regis tered, or, in the opinion of the Regis t ra r -Genera l , so nea r ly resembles tha t name as to be calculated to deceive, except where the company or the foreign company is in the course of being dissolved and signifies i ts consent in such manner as the
Regis t ra r -Genera l r equ i r e s ; or (b)
is identical with that by which another com p a n y is proposed to be regis tered, and which is rese rved in pursuance of subsection three of this section, or which, in the opinion of the Regis t ra r -Genera l , so near ly resembles t ha t name as to be calculated to deceive; or
(c)
is identical with any name registered or deemed to be regis tered unde r the Business Names Act, 1934, or, in the opinion of the Regis t ra r -Genera l , so near ly resembles tha t name as to be calculated to deceive:
P rov ided tha t if the Regis t ra r -Genera l is
satisfied t ha t a company is being reg is te red for the purpose of taking over any business which is car r ied on unde r a business name reg is te red or deemed to be regis tered under t ha t Act, and will be entit led as aga ins t the proprietor of t ha t name to use t ha t name, he may regis ter the
company by tha t n a m e ; or
(d) contains the words " C h a m b e r of Commerce , " or " C h a m b e r of M a n u f a c t u r e s , " unless the company is a company which is to be regis t e red unde r a license g ran t ed in pursuance of section th i r ty- four of this Act without the addi t ion of the word " L i m i t e d " to i ts n a m e ; or
(e) contains the words " B u i l d i n g S o c i e t y " ; or
(f)
includes the word " P r o p r i e t a r y " or any abbre v ia t ion thereof unless the company complies with the provis ions of p a r a g r a p h (a) of sub section one of section thi r ty-seven of this A c t ;
(g)
(g)
is identical with that of any friendly society or branch regis tered under the F r i end ly Societies Act, 1912-1935, or which, in the opinion of the Regis t ra r -Genera l so near ly resembles t ha t name as to be calculated to deceive unless the regis t ra tion is applied for by the society in accordance with section sixty-one of t ha t Ac t ;
(h)
in the opinion of the Registrar-General is likely to mislead the public as to the na tu r e or the objects of the company;
(i) in the opinion of the Registrar-General is (2) Except with the consent of the Governor no
company shall be regis tered by a name which—
(a) contains the words " R o y a l " or " I m p e r i a l " or in the opinion of the Regis t ra r -Genera l suggests , or is calculated to suggest, the pa t ronage of H i s Majesty or of any member of the Royal Fami ly or connection with the Government or any depar tment thereof in any p a r t of His Majes ty ' s
Dominions ; or
(b) contains the words " M u n i c i p a l " or " C h a r t e r e d " or in the opinion of the Regis t ra r -Genera l suggests , or is calculated to suggest, connection with any municipal i ty or other local au thor i ty or with any society or body incorpora ted by
royal c h a r t e r ; or (c)
contains the word " C o - o p e r a t i v e " ; or (d)
contains the words " T r u s t " or " T r u s t e e . "
(3) A solicitor engaged in the format ion of r. company, or a person named in the proposed art icles as the secre tary of a proposed company, may file with the Reg is t ra r -Genera l a prescr ibed notice specifying the name by which i t is proposed tha t such company shall be regis tered, and if t ha t name is not identical with that by which a company a l ready in existence is reg is te red or with a name a l ready reserved, or does not, in the opinion of the Regis t rar -Genera l , so near ly resemble any such name as to be calculated to deceive, or does not otherwise contravene the provisions of this section, the name shall for t h i r t y days from the da te of filing of the notice be reserved for the company in respect of which
the notice is filed. 33 . 33 . E v e r y person who t r ades or car r ies on business
under any name or t i t le of which the word " L i m i t e d " or any contract ion or imi ta t ion of tha t word is the last word or under any name or title in which the word " L i m i t e d " or any contract ion or imi ta t ion thereof is so used as to indicate or suggest t ha t the liabili ty of such person is limited, shall unless duly incorpora ted with l imited liabili ty under this or some other Act or regis tered under P a r t V I of this Act be guil ty of an offence.
P e n a l t y : F ive pounds for every day upon which tha t name or t i t le is used.
34. (1) W h e r e i t is proved to the satisfaction of the
Governor t h a t an association about to be formed as a l imited company is to be formed for the purposes of recreat ion or amusement , or for p romot ing commerce, indus t ry , a r t , science, religion, char i ty , or any other useful object, and in tends to app ly i ts profits, if any, or other income in p romot ing its objects, and to prohibi t the pay ing of any dividend to i ts members , the Governor m a y by license direct t ha t the associat ion be regis tered as a company with l imited liability, wi thout the addi t ion of the word " Limi ted " to i ts name, and the association may be regis tered accordingly, bu t no such license shall be g r an t ed unless the Governor is satisfied tha t there is no other associat ion with similar objects of which the members of the proposed company might become mem bers upon reasonable t e rms and conditions.
(2) A license by the Governor unde r subsection
one of this section m a y be g ran ted on such conditions andsubject to such regula t ions as the Governor thinks fit, and
those conditions and regula t ions shall be binding on the association, and shall, if the Governor so direct , be inser ted in the memorandum and art icles, or in one of those documents .
Upon the appl icat ion for any such license the re shall be
pa id a fee of five guineas or such other less fee as may
be
prescr ibed. (3) The associat ion shall on reg i s t ra t ion
enjoy
all the privi leges of l imited companies, and be subject to all the i r obligations, except those of us ing the word " Limited " as any p a r t of i ts name, and of publ ishing
i t s
i ts name, and of sending lists of members to the Regis t rar-General , and of sending to the members a copy of the balance sheet p u r s u a n t to p a r a g r a p h (a) of sub section one of section one hundred and eleven.
(4) A license under subsection one of this section or unde r section fifty-two of the Companies Acts m a y a t any t ime be revoked by the Governor, and upon revoca t ion the Regis t ra r -Genera l shall en ter the word " L i m i t e d " a t the end of the name of the associat ion upon the regis ter , and the association shall cease to enjoy the exemptions and privileges g ran ted by th is sect ion:
P rov ided tha t before a license is so revoked the Minis ter shall give to the association notice in wr i t ing , and the Governor shall afford the association an oppor tun i ty of being h e a r d in opposit ion to the revocation.
(5) W h e r e the name of the association contains the words " Chamber of Commerce " or " Chamber of M a n u f a c t u r e s , " the notice to be given under subsection four of this section shall include a s ta tement of the effect of the provis ions of subsection three of section thirty-five of th is Act.
(6) No associat ion while holding a license under subsection one of this section or unde r section fifty-two of the Companies Acts shall without the sanction of the Governor hold more than two acres of l and :
P rov ided tha t the Governor m a y by license in the form
prescr ibed, empower any such associat ion to hold land
| m a y think fit. | in such quant i t ies and subject to such conditions as he | Noth ing in this subsection shall extend to an associa t ion formed for the purpose of p romot ing religion. |
| 3 5 . (1) A company may, by special resolution, and with the approva l of the Governor, change its name. | ||
| (2) If a company, th rough inadver tence or other wise, is, wi thout such consent as is ment ioned in p a r a g r a p h (a) of subsection one of section thir ty- two of this Act, regis tered by a name which is identical with t ha t by which a company in existence is previously |
reg is te red
regis tered or which in the opinion of the Reg i s t r a r - General so near ly resembles t ha t name as to be calculated to deceive, the first-mentioned company may by special resolut ion change its name with the sanction of the Regis t ra r -Genera l , and the approva l of the Governor shall not be required.
(3) W h e r e a license g ran t ed in pursuance of section th i r ty- four of this Act or in pursuance of the Companies Acts , to a company the name of which con ta ins the words " Chamber of Commerce " or " Chamber of Manufac tures " is revoked the company shall, within a per iod of six weeks from the da te of the revocat ion or such longer per iod as the Minis ter may think fit to allow, change i ts name to a name which does not contain those words .
If a company makes default in complying with the requi rements of this subsection, it shall be guil ty of an offence.
P e n a l t y : F i f ty pounds for every day du r ing which the; default continues.
(4) W h e r e a company changes i ts name the Regis t ra r -Genera l shall enter the new name on the regis ter in place of the former name, and shall issue a certificate of incorporat ion al tered to meet the circum stances of the case.
(5) The change of name shall no t affect the
ident i ty of the company or any r igh t s or obligations ofthe company, or render defective any legal proceedings
by or aga ins t the company, and any legal proceedings tha t might have been continued or commenced by or aga ins t it by i ts former name may be continued or
commenced by or against it by its new name.86. (1) The subscribers of the memorandum of a company shall be deemed to have agreed to become mem bers of the company, and on i ts reg i s t ra t ion shall be entered as members in i ts regis ter of members .
(2) E v e r y other person who agrees to become a
member of a company, and whose name is entered in i ts
reg is te r of members , shall be a member of the company.
DIVISION
DIVISION 4.—Proprietary companies.
37. ( 1 ) F o r the purposes of this Act the expression
| " p r o p r i e t a r y | company " | means | any company | limited |
by sha res not being a no-liability company which—
(a) by i ts memorandum or ar t ic les—
(i) res t r ic t s the r ight to t r ans fe r i ts s h a r e s ; and (ii) limits the number of its members (ex clusive of persons who a re in the employ ment of the company, and of persons who hav ing been formerly in the employment of the company, were while in tha t employment and have continued after the determinat ion of t ha t employment to be members of the company) to fifty; and
(iii) prohibits any invitation to the public to subscribe for any shares or debentures of the company, or to deposit money with the company for fixed per iods or payable a t call, whether bear ing or not bear ing
in te res t ; and
(b) has received a certificate of incorporation in
which the Regis t ra r -Genera l certifies t ha t the
company is a p r o p r i e t a r y company.
(2) The word " P r o p r i e t a r y " or the abbreviat ion
thereof " P t y . " shall form p a r t of the name of a pro p r i e t a ry company, and shall be inser ted immediately
| before | the word | " L i m i t e d . " |
( 3 ) A company limited by shares not being a no-
| liabili ty company may by special resolut ion | a l te r— |
(a) the name of the company by inser t ing the word " P r o p r i e t a r y "
or
the
abbrevia t ion
thereof
" P t y . " " L i m i t e d " ; immediate ly before the word and
(b) the provisions of its memorandum or articles
so as to res t r ic t , l imit, and prohibi t , as provided in subsection one of this sect ion:
P rov ided tha t in the case of an exist ing com p a n y the provis ion of sub-paragraph (ii) of p a r a g r a p h (a) of t ha t subsection shall be re garded as satisfied if—
(a) the number of members is limited to one hundred ins tead of to fifty;
(h)
(b) the approval of the Governor is first
obta ined; and (c)
the application to register as a proprie t a r y company is made within twelve months of the commencement of this Act.
(4) Upon the appl icat ion of a company and upon the filing of an office copy of the order confirming any a l te ra t ion of the memorandum, or the filing of a p r in ted copy of the resolution, as the case may be, together wi th a s t a tu to ry declara t ion by a director or manager of the company tha t the memorandum or art icles of associa t ion of the company so res t r ic t , limit and prohibit , the1 Regis t ra r -Genera l may issue a certificate of incorpora t ion al tered so as to certify t h a t the company is a
p rop r i e t a ry company.
( 5 ) A p r o p r i e t a r y company may, subject to
any th ing contained in the memorandum or art icles, by
a special resolution, de termine—
(a)
t ha t the word " P r o p r i e t a r y " or the abbrevia tion thereof " P t y . " be omitted from i ts n a m e ; and
(b) t ha t the company be a public company,
and by filing wi th the Regis t ra r -Genera l a copy thereof, and also such a s ta tement in lieu of prospectus as the company (if a public company) would have had to file before al lot t ing any of i ts shares or debentures , such
s ta tement being in the form set out in Schedule F o u r to th is Act, toge ther with such a s t a tu to ry declarat ion as the company (if a public company) would have had to file before commencing business, t u rn itself into a public company ; and thereupon the res t r ic t ions , l imitat ions, and prohibi t ions ment ioned in subsection one of th is section and embodied in the memorandum or ar t icles of associat ion of such company, shall cease to apply to t h a t company.
(6) Any exist ing company whose name includes
the word " P r o p r i e t a r y " or any abbrevia t ion thereof
shall, unless i t s m e m o r a n d u m or ar t icles conform to
the
t h e provisions of p a r a g r a p h (a) of subsection one of this sect ion, within six months after the commencement of
| t h i s Act by special | resolut ion— |
(a) alter its memorandum or articles so as to
conform the re to ; or
(b) with change i ts name, omit t ing the word
the t a r y " or any abbreviat ion thereof.
sanction
of
the
Regis t ra r -Genera l
" P r o p r i e
The provisions of subsection four of this section shall extend to any such al terat ion.
If a company makes default in complying with the provisions of this subsection it shall be guil ty of an offence.
P e n a l t y : F i f ty pounds for every day dur ing which the
| defaul t | continues. | |||
|
this section other than a change of the name of the com p a n y shall not be effective unti l confirmed by the court a n d an office copy of the order is filed with the Regis t ra r - General .
38. "Where two or more persons hold one or more s h a r e s in a p rop r i e t a ry company joint ly they shall for the purposes of section thir ty-seven of this Act be t r ea ted u s a single member.
39. The court may, on the applicat ion of the At torney-
Genera l or of any member or credi tor of any company certified by the Regis t ra r -Genera l to be a p rop r i e t a ry
| t a r y company within the meaning of this Act, and if the | Company, de termine whether the company is a p ropr ie | |
| court determines tha t it is not a p rop r i e t a ry company i t shall declare accordingly, and order t ha t the word " P r o p r i e t a r y " be removed from i ts n a m e ; and thereupon the company shall be a public company under this Act and subject to all the provisions and conditions of this Act | ||
| ||
| ||
| t h e da te of the order . |
H 40.
40. (1) W h e r e any a l te ra t ion has been made u n d e r
section thir ty-seven of this Act in the memorandum or art icles of a company, every copy of the memorandum or art icles issued af ter the da te of the a l tera t ion shall be
in accordance with the a l tera t ion.
I t shall be a sufficient compliance with this subsection wi th respect to the art icles if a p r in ted copy of t he special resolut ion making the a l te ra t ion is annexed to the copy of the art icles and the par t i cu la r articles affected indicated in ink.
(2) W h e r e the memorandum or art icles of a company includes the provisions which by section th i r ty- seven of this Act a re required to be included therein in order to const i tute the company a p rop r i e t a ry company, and defaul t is made in complying with any of those p ro visions the company shall thereupon cease to be enti t led to the pr ivi leges and exemptions conferred on pro p r i e t a r y companies under the provisions contained in subsection three of section ninety, section one hundred and eleven, section one hundred and twenty, p a r a g r a p h (d) of section two hundred and eight and section three hundred and forty-seven of this Act and thereupon the said provis ions shall apply to the company as if it were a public company :
P rov ided tha t the cour t on being satisfied t h a t t he fai lure to comply or default in complying with the con dit ions was accidental, or duo to inadvertence, or t o some other sufficient cause, or tha t on other g rounds i t is j u s t and equitable to g r a n t relief, may, on the applica t ion of the company or any other person in teres ted, and on such t e rms and conditions as seem to the court
j u s t and expedient, o rder tha t the company be relieved
f rom those consequences.
(3) If any company, being a p r o p r i e t a r y com
pany, a l te rs i ts memorandum or art icles in such m a n n e r t ha t they no longer include the provis ions which, unde r section thi r ty-seven of this Act, a re requi red to be included in the memorandum or art icles of a company in o rder to const i tute it a p r o p r i e t a r y company for t he purposes of this Act, the company shall, as on the da te of the a l tera t ion, cease to be a p r o p r i e t a r y company, and shall, wi thin a per iod of seven days af ter tha t date , file with the Reg is t ra r -Genera l such a s ta tement in lieu of
p rospec tus
prospec tus as the company, if a public company would have had to file before al lot t ing any of i ts shares or deben tures (such s ta tement being in the form set out in Schedule F o u r to this Act) together with such a s t a tu to ry dec la ra t ion as the company if a public company would have had to file before commencing business.
(4) The approva l of the Governor shall no t be
| requi red to a change of name p u r s u a n t to any | provis ion |
| of this Division. |
Subsection four and subsection five of section th i r ty- five shall extend to cases in which the name of a company is changed pu r suan t to any provision of this Division.
(5) If a company makes default in complying with any requirement of this section, the company, and every officer of the company who is in default , shall be gui l ty of an offence.
P e n a l t y : Twenty pounds .
P A E T IV. NO-LIABILITY COMPANIES.
(1) Subject to this P a r t , every company regis tered unde r this P a r t , and every member thereof, shall have and be enti t led to the same r igh ts and liabilities as if the company had been regis tered under Division 3 of
41.
| P a r t I I I of this Act. (2) I n the construct ion and for the purposes of |
this P a r t of this Act the expression—
" C o n t r i b u t i n g c a p i t a l " shall mean the whole of the nominal capital of the company as s ta ted in the memorandum for regis t ra t ion, or increased nominal capital , as the case may be, excepting
and deduct ing—
(a)
such part thereof as is represented by all shares (if any) which for some con s iderat ion other than cash are issuable by the company as fully paid u p ;
(b).
(b)
such p a r t thereof as is r ep resen ted b y the paid-up por t ion of all shares (if any) which for some considerat ion other t han cash a re issuable by t h e
company as pa r t l y pa id up .
(3) F o r the purposes of this section no s h a r e s shall be issuable as fully pa id up or p a r t l y paid up for a considerat ion other than cash unless such considerat ion shall be fully disclosed by some contract filed with the Reg is t ra r -Genera l a t or before the issue of such shares .
Companies having their capi tal divided into shares may be incorpora ted under this P a r t for the purposes of min ing in New South Wales or elsewhere and of t rea t ing , selling or otherwise disposing of ores, meta l s , minera ls and all products of mining, and with all powers necessary for or incidental to ca r ry ing on the business of mining in New South Wales or elsewhere.
42 .
43 . The acceptance of a share in a no-liability com pany whether by subscript ion to the memorandum fo r reg is t ra t ion or by original al lotment or by t r ans fe r or otherwise shall not be deemed to create a contract on t he p a r t of the person accepting the same to pay any calls o r other moneys in respect thereof or any contr ibution to the debts and liabilities of the company, and tha t person shall not be liable to be sued for any such calls or o ther moneys or contr ibut ions, but he shall not be enti t led to a dividend upon any share upon which a call is due and unpaid.
(1) Subject to section for ty- three of this Act and apply in relat ion to no-liability companies, subject to the of this Act re la t ing to companies limited by shares shall following qualifications and modifications, namely :— 44 . except where otherwise expressly provided, the prov is ions
(a)
Ten per centum of the contributing capital shall be actual ly pa id up in cash p r io r to the filing of the memorandum.
(b)
The memorandum of the company shall, instead of containing a s ta tement tha t the liability of the members is l imited, contain a s ta tement t ha t the members incur no liabili ty and shall be a s near lv as possible in the form contained in P a r t I of Table F of Schedule Two to this Act .
(c)
(c)
A statutory declaration, in or to the effect of the form in the said P a r t , shall be made by one of the subscribers to the memorandum, or by the m a n a g e r or provis ional manage r of the p ro posed company, verifying the s ta tements in the memorandum, and shall be filed wi th the Regis t ra r -Genera l a t the t ime of the filing of the memorandum.
The Regis t ra r -Genera l may require such fur the r evidence verifying the s ta tements as he
thinks fit.
(d) (i) Wi th in twenty-one days of the filing of the memorandum and declarat ion a copy of each shall be published in the Gazette and in at least two newspapers circulat ing in the town or distr ict in which the company ' s
regis tered office is to be s i tua ted . (ii) Within twenty-one days after such publi cation copies of such Gazette and news p a p e r s shall be filed wi th the Regis t ra r - General , and upon the Regis t rar -Genera l issuing a certificate of incorpora t ion the company shall be incorporated.
(e)
The certificate of incorporation shall state that the company is a no-liability company and shall refer to the Gazette and newspapers filed in which the memorandum for reg i s t ra t ion has been adver t ised and shall s ta te their respective- dates and the da te of incorporat ion.
(f) The rules of the company may adopt all or any of the regula t ions contained in P a r t I I of
Table F in Schedule Two to this Act.
If rules are not filed with the memorandum or if rules a re filed then in so far as they do not exclude or modify the provis ions contained in the said Table F the provis ions contained in tha t Table shall, so fa r as the same are applicable, be deemed to be the rules of the company.
(g) Whenever by this Act the word "Limited" is requi red to be added to the name of a company, the words " N o L i a b i l i t y " shall be added ins tead thereof, and the consequences of omit t ing to add
those
those words in any case shall be the same as the consequences of omit t ing to add the word " L i m i t e d " in the case of l imited companies formed under this Act.
(h) (i) Any director , manager , secretary, or agent of a company to which this P a r t of this Act applies engaging workmen, or order ing services, goods, plant , or other art icles whatsoever for the purposes of the company shall do so on p a p e r bearing the company ' s
name, including the words " N o L iab i l i ty . " (ii) If workmen be engaged, or services, goods, plant , or other art icles whatsoever be ordered otherwise than as aforesaid, the person engaging such workmen, or o rder ing such services, goods, p lant , or art icles shall be personal ly liable in the event of the com pany fail ing to pay.
(i) (i) The calls upon shares in every company to which this P a r t of this Act applies shall be made in such t ime and manner tha t they shall become due on the second Wednesday in a month, and on tha t day only :
P rov ided tha t if such Wednesday is a public holiday, they shall become due on the next succeeding week-day which is not a public holiday.
(ii) A notice shall be pr in ted on the face of
the company ' s share certificates s ta t ing tha t the day above mentioned is the day on which
calls fall due.(iii) When a call has been made, not less than fourteen d a y s ' notice of the day when it will fall due and of the place for payment thereof shall be published in two daily newspapers published in Sydney, and if the company ' s regis tered office is s i tuated outside Sydney, then also in a newspaper circulat ing in the town or dis t r ic t in which the company ' s regis tered office is s i tuated.
(iv)
(iv) In addition to the publication of such notices fourteen d a y s ' notice of any call shall be served by the company on each member personal ly or by sending the same through the post (postage p repa id ) ad dressed to such member a t his address as entered in the regis ter of members , and such notice shall specify the amount of the call and the t ime and place of payment .
(v) Such notice shall be deemed to have been duly served if posted in New South Wales not less than seventeen days p r io r to the due date of such call.
(j) When a call has been made no subsequent call shall be made unt i l af ter the expirat ion of four teen days from the day when the first-mentioned call has become due. (k) (i) Any share upon which a call has remained unpa id for twenty-one days af ter the due date of such call shall thereupon be abso lutely forfeited wi thout any resolution of directors or other proceeding.
(ii) Such share when forfeited shall be sold by public auction, notice whereof shall be ad ver t i sed in two daily newspapers published in Sydney, and if the company ' s regis tered office is s i tuated outside Sydney, then also- in one issue of a newspaper circulat ing in the town or distr ict in which the c o m p a n y ' s
regis tered office is s i tuated, and the last of such adver t i sements being not less than seven clays before the day appointed for the
sale.
(iii) E v e r y
number in the company ' s share regis ter of
the share so forfeited.such adver t i sement shall s ta te the (iv) The proceeds shall be applied in payment of all overdue calls unpa id thereon, and of any expenses necessari ly incurred in respect of the forfei ture, and the balance (if any) shall be paid to the person whose share has
been
been so forfeited on his del ivering to the company the certificate represen t ing the
forfeited share . (v) A new certificate may be issued by the di rectors for such forfeited share in place of the certificate delivered to the company or held by the person whose share has been so forfeited as aforesaid.
(vi) If the amount bid for such forfeited share is not sufficient to satisfy all overdue calls unpa id thereon with such expenses as afore said, the di rectors of the company m a y refuse to sell such share , and in such case they may thereaf te r sell such share in such manne r as they think fit.
(vii) The directors shall at any time before any such forfeited share has been sold annul the forfei ture thereof upon paymen t of the amount of all overdue calls thereon, to gether with all such expenses as aforesaid.
(viii) A sale may be made of forfeited shares of var ious shareholders together or in var ious parcels .
(ix) In advertising notice of any intended sale of any shares with consecutive numbers it shall be sufficient to s ta te the first and las t of the consecutive numbers as follows: [Numbered from ( ) to ( ) , both in clusive] .
(1) W h e r e a company to which this P a r t of this Act appl ies increases i ts capi ta l then before the al lotment or issue of any new shares , ten p e r centum of the contr ibut ing capi ta l (if any) r e presen ted by such new shares shall be pa id up to the company in cash, and a s t a tu to ry declara t ion in t ha t behalf in the prescr ibed form shall be made by a director or by the m a n a g e r of the company and filed wi th the Reg i s t ra r -Genera l and a certificate in the prescr ibed form issued b y h im tha t the requi rements of th is Act wi th re g a r d to the increase have been complied with.
(m)
(m) (i) On the winding-up of the company, but subject to the r ights of the holders of shares issued on special conditions, the surplus assets shall be dis t r ibuted among all classes of shareholders alike i r respect ive of the amount called u p on the respective shares or classes of shares .
(ii) No member who is in arrear in payment of any call, but whose shares have not been actual ly forfeited, shall be entit led to share in such dis t r ibut ion unt i l the amount owing in respect of such call has been fully pa id and satisfied.
(iii) Nothing in this p a r a g r a p h contained shall p reven t the dis t r ibut ion of such surplus in a different manner from tha t herein p ro vided, where a different mode of dis t r ibut ion is expressly provided for in the rules a s originally framed, or shall p reven t the holder of any share wholly or in p a r t actu ally paid in advance from shar ing in the surplus in respect of every such payment .
(n) The requi rement of p a r a g r a p h (a) of subsec
tion one of section seventy-eight as to the s tate ment of the amount pa id or agreed to be con sidered as paid on the shares of each member shall be deemed to have been complied with if there is entered in the regis ter of members to be kept pu r suan t to tha t section, a s ta tement of the amount pa id up or deemed to have been pa id up on the shares of each member a t the da te of al lotment of such shares , and there is entered in the first sheet of the reg is te r a sum m a r y of all calls made by the company showing the shares in respect of which each call was made , the number of each call and the respec tive dates when each call was made and was pay able.
(2) When a share in a no-liability company held by a person in the S ta te has become forfeited for default in payment of a call or has been declared forfeited for any other cause prescr ibed by the articles of the company
as
as a cause of forfei ture, any action agains t the company or any person in respect of tha t forfei ture shall be commenced within six months after the forfei ture for defaul t in payment of the call or within six months after notice of the resolution of the directors declar ing the forfei ture has been served upon the holder of the shares personal ly or by post , and not a f t e r w a r d s ; or, if the holder is outside the S ta te and within the Commonwealth the action shall be commenced within nine months and not a f te rwards , or it the holder is beyond the Commonwealth, then the action shall be commenced within twelve months
and not a f te rwards . (3) The provis ions of Schedule Three to this Act shall apply to and in respect of companies to which this P a r t of this Act applies .
P A R T V.
REGISTRATION OF COMPANIES NOT FORMED UNDER THIS A C T .
45 . (1) W i t h the exceptions and subject to the pro
visions contained in this section, any company formed, whether before or after the commencement of this Act, in pursuance of any Act or Imper i a l Act, or of le t ters pa tent , or being otherwise duly const i tuted according to law, and consist ing of seven or more members , may a t
any t ime reg is te r unde r this Act as an unlimited com
pany, or as a company limited by shares , or as a company
l imited P rov ided
by
g u a r a n t e e :
tha t—
(a)
a company registered or deemed to be regis tered under the Companies Acts shall not regis te r in pursuance of this sect ion;
(b)
a company having the liability of its members l imited by Act or Imper i a l Act or by le t ters patent , and not being a joint stock company as defined in this P a r t , shall not regis ter in pursu ance of this section;
(c)
(c)
a company having the liability of its members l imited by Act or Imper i a l Act or by le t te rs pa ten t shall not reg is te r in pursuance of this section as an unlimited company or as a com
p a n y l imited by g u a r a n t e e ; (d)
a company that is not a joint stock company as denned in section forty-seven of this Act shall not reg is te r in pursuance of this section as a
company l imited by s h a r e s ; (e)
a company shall not register in pursuance cf this section without the assent of a major i ty of such of i ts members as are presen t in person or by p roxy (in cases where proxies a re allowed by the regulat ions of the company) a t a general
meet ing summoned for the p u r p o s e ; (f)
where a company not having the liability of its members l imited by Act or Imper ia l Act or by le t ters pa t en t is about to reg is te r as a l imited company, the major i ty required to assent as provided in p a r a g r a p h (e) of this proviso shall consist of not less than three-fourths of the members presen t in person or by p roxy a t the
mee t ing ; and (g) member, or within one year af ter he ceases to where a company is about to register as a com pany limited by guaran tee , the assent to i t s being so regis tered shall be accompanied by a resolut ion declar ing tha t each member under takes to contr ibute to the assets of the company in the event of i ts being wound up while he is a be a member, for paymen t of the debts and liabilities of the company contracted before he ceased to be a member, and of the costs and expenses of winding up , and for the adjus tment of the r ights of the contr ibutories among them selves, such amount as is required, not exceeding a specified amount . (2) I n computing any major i ty under this sec tion when a poll is demanded r e g a r d shall be had to the number of votes to which each member is entit led accord ing to the regula t ions of the company.
( 3 )
(3) Nothing in this P a r t shall affect the operat ion
of section seventy of the Co-operation Act, 1923-1935.
The reg is t ra t ion of a company in pursuance of this P a r t shall not be invalid by reason only tha t it has been effected with a view to the company being wound up .
46.
47. F o r the purposes of this P a r t " a joint stock company " in relat ion to reg i s t ra t ion of companies as companies l imited by shares means a company having a pe rmanen t paid-up or nominal share capital of fixed amount divided into shares , also of fixed amount, or held and t ransferable as stock, or divided and held pa r t l y in one way and p a r t l y in the other, and formed on the pr inciple of having for i ts members the holders of those shares or tha t stock, and no other persons , and such a company when regis tered with l imited liabili ty under this Act shall be deemed to be a company l imited by shares .
48. of a jo int stock company, there shall be filed wi th the
Before the reg i s t ra t ion in pursuance of this P a r t
Regis t ra r -Genera l the following documents :—
(a)
a list showing the names, addresses, and occu pa t ions or descr ipt ions of all persons who on a day named in the list, no t being more t han six clear days before the day of such filing, were members of the company, with the addi t ion of the shares or stock held by them respectively, dis t inguishing, in cases where the shares a r e
numbered, each share by its n u m b e r ;
(b) a copy of any Act, Imperial Act, royal charter, le t ters pa tent , deed of sett lement, or o ther ins t rument const i tu t ing or regu la t ing the com
p a n y ; and (c) if the company is intended to be registered as a l imited company, a s ta tement specifying the
following p a r t i c u l a r s : — (i) the nominal share capital of the company and the number of shares into which i t is divided, or the amount of stock of
which it cons is ts ;
(ii)
(ii) the number of shares taken and the
amount pa id on each s h a r e ; (iii) the name of the company, with the addi
t ion of the word " L i m i t e d " as the last word thereof; and
(iv) in the case of a company intended to be regis tered as a company l imited by guarantee , the resolut ion declar ing the amount of the guaran tee .
49. of any company not being a joint stock company, there
Before the reg is t ra t ion in pursuance of this P a r t
shal l be filed with the Eegis t ra r -Genera l— (a) a list showing the names, addresses, and occu pat ions or descript ions of the directors or other manage r s (if any) of the company; and (b) a copy of any Act, Imperial Act, royal charter, le t ters patent , deed of sett lement, or other ins t rument const i tut ing or regula t ing the com
p a n y ; and (c) in the case of a company intended to be regis te red as a company limited by guaran tee , a copy of the resolut ion declar ing the amount of the guaran tee . 50. The lists of members and directors and any orber pa r t i cu la r s re la t ing to the company requi red to be filed wi th the Regis t rar -Genera l shall be verified by a s t a t u t o r y declarat ion of any two or more directors or
17. I f the prospectus invi tes the public to subscribe for shares in t he company and the share capi tal of the company is divided in to different classes of shares, the r i g h t of vot ing a t meet ings of the company conferred by, and the r igh t s in respect of capi ta l and dividends a t tached to, the several classes of shares respectively.
18. I n the case of a company which has been ca r ry ing on business, or of a business which has been carr ied on for less t h a n th ree years , the length of t i m e d u r i n g which t he business of t he company o r the business to be acquired, as the case m a y be, has been carr ied on .
PART I I . — R E P O R T S TO BE SET OUT IN PROSPECTUS.
1. A repor t by t he audi tors of t he company wi th respect to t he
profits of the company i n respect of each of t h e th ree financial years immedia te ly preceding t he issue of t he prospectus, and w i t h respect
to t h e ra tes of t he dividends, if any, pa id by t he company in respect
of each class of shares i n t he company in respect of each of t h e said three years , g iv ing pa r t i cu la r s of each such class of shares on which such dividends have been pa id and pa r t i cu la r s of t he cases i n which no dividends have been pa id i n respect of any class of shares in respect of any of those years , and, if no accounts have been made up i n respect of any p a r t of t he period of th ree years end ing on a, da te th ree mon ths before t h e issue of the prospectus, con ta in ing a
s t a t emen t of t h a t fact .
2. I f t he proceeds, or any pa r t of the proceeds, of t he issue of t he
shares or debentures are or is to be applied direct ly or indi rec t ly i n
the purchase of any business, a report m a d e by accoun tan t s who shall be n a m e d in t he prospectus upon t he profits of t he business i n respect of each of the th ree financial years immediate ly preceding the issue of the prospectus . PART
PART I I I .—PROVISIONS APPLYING TO PARTS I AND I I OF SCHEDULE.
1. T h e provisions of th is Schedule with respect to the memorandum and the qualification, r emunera t ion and in te res t of directors , the names , descr ipt ions and addresses of di rectors or proposed directors, and the a m o u n t or es t imated a m o u n t of the p re l iminary expenses, shall no t apply in the case of a prospectus issued more t h a n two years after the da te a t which the company is ent i t led to commence business.
2. Every person shall for the purposes of th is Schedule be deemed to be a vendor who has entered into any cont rac t , absolute or con di t ional , for t he sale or purchase , or for any option of purchase, of any proper ty to be acquired by the company, i n any case where—
(a) the purchase money is not fully paid at the date of the issue
of t he p rospec tus ; (b)
the purchase money is to be paid or satisfied wholly or in p a r t ou t of t he proceeds of the issue offered for subscr ipt ion by the prospec tus ;
(c) resul t of t ha t issue. the contract depends for its validity or fulfilment on the
3. Where any proper ty to be acquired by the company is to be t aken on lease, th is Schedule shall have effect as if the expression vendor " inc luded the lessor, and the expression " purchase money " included the considerat ion for the lease, a n d the expression " s u b - p u r c h a s e r " included a sub-lessee.
4. F o r the purposes of pa rag raph n ine of P a r t I of this Schedule where the vendors or any of t hem are a firm, the members of the firm shall no t be t rea ted as separate vendors .
5. I f i n the case of a company which has been ca r ry ing on business, or of a business which has been car r ied on for less t h a n th ree years , t h e accounts of t he company or business have only been m a d e up i n respec t of two years or one year, P a r t I I of t h i s Schedule shall have effect as if references to two years or one year, as t h e case m a y be,
were subs t i tu ted for references to t h r ee years .
6. T h e expression " financial y e a r " i n P a r t I I of t h i s Schedule m e a n s t he yea r i n respect of which the accounts of the company or of
t h e business , as the case may be, are m a d e u p , a n d where by reason ofa n y a l te ra t ion of t he da te on which the financial year of t he company or business t e rmina te s the accounts of the company or business have been m a d e up for a per iod grea te r or less t h a n a year , t h a t grea ter or less period shall for t he purpose of the said P a r t of th is Schedule be deemed to be a financial year .
S C H E D U L E
S C H E D U L E N I N E .
FORM OF STATEMENT IN LIEU OF PROSPECTUS TO BE FILED WITH REGISTRAR-GENERAL BY A COMPANY WHICH DOES NOT ISSUE A PROSPECTUS OR WHICH DOES NOT GO TO ALLOTMENT ON A PROSPECTUS ISSUED.
The Companies Act , 1936.
S ta t emen t in l ieu of prospectus filed for reg is t ra t ion by
[Insert the name of the Company.]
P u r s u a n t to section one hundred and for ty- three of t he Companies
Act , 1936. Filed for reg is t ra t ion by
The nominal share capital of the Company £
Divided in to ... Shares of £ each. " " " " " "
Amount (if any) of above capital which consists Shares of £ each. of redeemable preference shares.
The da te on or before which these shares are, or
are liable, to be redeemed.
Names, descriptions and addresses of directors
or proposed directors.
Names, descriptions and addresses of the secretary
and solicitors or proposed secretary a n d solicitors.
If the share capital of the Company is divided
in to different classes of shares, the right of
vot ing a t meetings of the Company conferred
by, and the r ights in respect of capital anddividends a t t ached to , the several classes of
shares respectively.
N u m b e r agreed t o be issued as fully or pa r t ly paid up
and otherwise t h a n in cash.
a m o u n t
of
shares and
debentures
1.
shares of £
fully
paid .
2. shares upon which
The consideration for the intended issue of those £ per share credited
shares and debentures . as paid. 3 . debenture
£
4 . Consideration:—
Names a n d addresses of vendors of property
purchased or acquired, or proposed to be pur
chased or acquired by the Company. Amount (in cash, shares, or debentures) payable to each separa te vendor.
Amount (if any) paid or payable (in cash or shares Total purchase price £
or debentures) for any such property, specifying Cash £
amount (if any) paid or payable for goodwill. Shares . . . £ Debentures . . . £ Goodwill . . . £
Amount (if any) pa id or payable as commission for subscribing or agreeing to subscribe or
Amount paid.
„ payable.
procuring or agreeing to procure subscriptions for any shares or debentures in the Company; or
Bate of the commission Rate per cent. The number of shares, if any, which persons have agreed for a commission to
subcribe absolutely.
S C H E D U L E
S C H E D U L E N I N E — c o n t i n u e d .
FORM OF STATEMENT, ETC.—continued.
E s t i m a t e d a m o u n t of prel iminary expenses
Amount paid or intended to be paid to any promoter .
Name of promoter .
Amount Consideration for the paymen t Consideration : — Dates of, and part ies to , every material contract (other t h a n contrac ts entered into in the ordin a ry course of the business intended to be carried on by the Company or entered into more than two years before the delivery of this s ta tement ) .
Time and place a t which the contracts or copies copies thereof m a y be inspected.
Names a n d addresses of the audi tors of the Com pany (if any) .
Ful l part iculars of the na ture and ex ten t of the interest of every director in the promotion of or in t h e proper ty proposed to be acquired by the Company, or, where the interest of such a director consists in being a par tner in a firm, the na tu re and ex ten t of the interest of the firm, with a s t a tement of all sums paid or agreed to be paid to him or to the firm in cash or shares, or otherwise, by a n y person ci ther to induce h im to become, or to qualify him as, a director, or otherwise for services rendered by him or by the firm in connection wi th the promotion or formation of the Company.
If i t is proposed to acquire a n y business, the amoun t , as certified by the persons by whom the accounts of the business have been audited, of the net profits of the business in respect of each of the three financial years immediately preced ing the da t e of th is s t a t emen t provided t h a t in the case of a business which has been carried on for less t h a n three years and the accounts of which have only been m a d e u p in respect of two years or one year the above requirement shall have effect as if references t o two years or one year, as the case m a y be, were substi tuted for references t o three years , a n d in any such case t h e s t a t emen t shall say how long the business to be acquired has been carried on,
( S i g n a t u r e s directors or proposed directors , or of
of
t he persons
above-named
as
the i r agents author ised i n wr i t ing . ) D a t e
N O T E . — I n this Schedule the expression "vendor" includes a vendor as
defined in P a r t I I I of Schedule E i g h t to this A c t and the expression "financial y e a r " has the meaning ass igned to i t i n that Par t of that Schedule.
S C H E D U L E
S C H E D U L E T E N . The Companies Act , 1936
PROVISIONS WHICH DO NOT A P P L Y IN THE CASE OF A WINDING U P
SUBJECT TO SUPERVISION OF THE COURT.
Power of court to appoint l iquida tor s. 220
Appo in tmen t and powers of provisional l iquida tor . . s. 221
S t a t emen t l iquidator
of
companies '
affairs
to
be
submi t ted
to
. . . . . . . . . . . . . . s. 222
Repor t of l iquidator s. 223
Appoin tment , etc., of l iquidators . . . . . . . . s. 226
Requ i remen t s to be observed by l iquida tors . . . . s. 227
Genera l provisions as t o l iquida tors . . . . . . s. 228
Exerc ise and control of l iqu ida tors ' powers . . . . s. 232
Books to be kept by l iqu ida tor . . . . . . . . s. 233
P a y m e n t s of l iquida tor in to bank . . . . . . . . s. 234
Control of cour t over l iquida tor . . . . . . . . s. 235
Liqu ida tor to answer inquir ies , etc. ... . . s. 236
Release of l iquidators . . . . . . . . . . s. 237
Meet ing of credi tors and cont r ibutor ies to de te rmine whether
commit tee of inspect ion shall be appointed . . . . s. 238
Cons t i tu t ion and proceedings of commit tee of inspect ion s. 239
Powers of cour t where no commit tee of inspect ion . . s. 240
Appoin tmen t of special manage r . . . . . . . . s. 248 Power to order publ ic examina t ion of promoters , directors ,
etc Power _ . . s. 254
to r e s t r a in f raudu len t persons from m a n a g i n g com
pan ie s . . Delegat ion to l iquida tor of ce r ta in powers of cour t
. .
. .
s.
255
s. 257 (2)
Power to appoint l iquida tor a s receiver for debenture
holders or credi tors . . . . . . . . . . . . s. 336
S C H E D U L E E L E V E N . The Companies Act , 1936.
Provisions referred to in sect ion th ree h u n d r e d and fifty-three of the Act.
Provisions relating t o —
Sec. 7.—Administration of Act.
Sec. 30.—Conclusiveness of certificate of incorporation.
Sec. 62.—Documents , etc., to be delivered to Regis t ra r -Genera l by foreign companies ca r ry ing on business in New Sou th Wales .
Sec. 67.—Return to be filed with Registrar-General when
documents, etc., altered.
Sec. 68.
See. 68.—Balance-sheet of foreign companies ca r ry ing on busi ness in New South Wales.
Sec. 69.—Obligat ion to state name of company, etc.
Sec. 72.—Notice of d i scon t inuance of business .Sec. 77.—Restr ic t ions on commencement of business.
Sec. 88 (3) of the company.
(1)
( m ) . — P a r t i c u l a r s
as to directors and
indebtedness
Sec. 89 .—Par t i cu la r s as to directors and s t a t emen t to be annexed
to r e t u r n . Sec. 91.—Certificate to be sent by propr ie tory company with
a n n u a l r e tu rn .
Sec. 93 .—Sta tu tory meet ing and s t a t u t o r y report. Sec. 115.—Auditor 's repor t and r igh t to in format ion and explana
t ions .
Sec. 121.—Restr ic t ions on appo in tmen t or adver t i sement of director .
Sec. 137.—Specific r equ i rements as to particulars in prospectus. Sec. 143.—Prohibi t ion of a l lo tment in cer ta in cases unless state
m e n t in lieu of prospectus filed wi th Reg is t ra r -Genera l . Sec. 145.—Return as to a l lo tments .
Sec. 185.—Regis t ra t ion of charges created by company registered
in N e w Sou th Wales . Sec. 186.—Duty of company to regis ter charges created by
company.
Sec. 198.—Applica t ion of P a r t I X to companies incorporated
outs ide Sec. 294.—Notice by l iquida tor of h is appoin tment . New S o u t h Wales .
Sec. 339.—Fil ing wi th Reg i s t ra r -Genera l of accounts of receivers
and managers .
S C H E D U L E T W E L V E . T h e Companies Act , 1936.
E n a c t m e n t s referred t o in section th ree h u n d r e d a n d seventy-seven.
Sec . 17 increase i n n u m b e r of i t s members by un l imi t ed
(3 ) .—As
to
filing
w i t h
Reg i s t r a r -Genera l
no t ice of
an
company or
company l imi ted by g u a r a n t e e . Sec. 40.—As to filing s t a t emen t i n l ieu of prospectus by a pro
pr i e t a ry company which h a s a l tered i t s m e m o r a n d u m or
ar t ic les i n ce r ta in respects .
Sec. 62.—As to r eg i s t ra t ion of foreign company. Sec. 63.—As to not ice of s i tua t ion of regis tered office of a fore ign company a n d change thereof.
Sec. 67.—As to r e t u r n as to a l t e ra t ion i n cons t i tu t ion , directors ,
persons to accept service, a n d regis tered office.
Sec. 68.—As to copy of balance-sheet of fore ign company .
Sec. 72.—As to not ice of d i scon t inuance of business of a foreign
company. t
[j Sec. 75,
Sec. 75.—As to - not ice of s i tua t ion of registered office or any change thereof.
Sec. 77 (1) (c) and (2) (c ) .—As to filing s t a tu to ry declarations that the provisions of pa rag raphs (a ) and (b) of subsection one or the provisions of pa rag raph (b) of subsection two o£ section seventy-seven have been complied with.
Sec. 78.—As to not ice of conversion of shares into stock.
Sec. 83.—As to not ice of rectification of regis ter of members .Sec. 86 (2) .—As to not ice of s i tua t ion of office where a b ranch
register is kept and any change in its s i tua t ion or of its
discontinuance.
Sec. 90.—As to copy of annua l r e tu rns .
Sec. 91.—As to certificates to accompany copy of a n n u a l return
of proprietary company.
Sec. 93.—As to filing a copy of t he s ta tu tory report of a com
pany.
Sec. 98.—As to reg is t ra t ion of resolut ions or agreements . Sec. 121.—As to— ( a ) filing of consent to act as a director;
(b) for qualification
filing
of u n d e r t a k i n g by a director to t ake and pay
sha re s ;
(c)
filing of statutory declaration by a director as to number of shares registered in his n a m e ;
(d)
filing of list of persons who have consented to be directors .
Sec. 125.—As to filing of r e t u r n of pa r t i cu la r s in the regis ter
of directors.
Sec. 133 (3) .—As to filing office copy order made p u r s u a n t to subsection two of section one hundred and th i r ty - th ree .
Sec. 134.—As to filing office copy of an order m a d e pursuant to
subsection one of section one hundred and thirty-four.
Sec. 136.—As to dating and filing of a copy of prospectus.
Sec. 143.—As to filing of statement in l ieu of prospectus.
Sec . 145.—As to filing of return of allotments or contracts pur suant to subsection one of section one hundred and forty- five or of the prescribed particulars required by subsection two of that section. Sec. 146.—As to filing of statement relating to the amount or rate per centum of commission paid to any person i n con sideration of his agreement to subscribe for shares or for. procuring or agreeing to procure subscriptions for shares.
Sec. 154.—As to filing notice specifying shares consolidated, divided, converted, subdivided, redeemed or cancelled or the stock reconverted.
Sec . 155.—As to filing notice of increase in capital and as to for warding to h im a printed copy of the resolution authorising the increase.
Sec. 164.—As to filing an office copy of an order disal lowing or confirming a var ia t ion of the r igh ts a t tached to a class of shares.
Sec. 168.—As to the filing of copies or abs t rac ts of prescribed par t icu lars of workers ' shares issued.
Secs. 185-186.—As to filing for reg is t ra t ion i n s t rumen t s crea t ing charges or certified copies thereof, etc.
As to filing of a deed or pa r t i cu la r s of issue of debenture referred to in subsection seven of section one hundred and eighty-five and as to filing the pa r t i cu la r s referred to in subsection eight of t h a t section.
Sec. 191.—As to filing of orders appoin t ing receivers or managers or of the appo in tmen t of a receiver or manage r under an i n s t rumen t , or not ice of a receiver or manage r ceasing to act as such.
Sec. 217.—As to filing a copy of a winding-up order.
Sec. 227.—As to filing not ice of the appo in tmen t of l iquidator .
Sec. 259.—As to filing an office copy order dissolving a company.Sec. 265.— As to filing of a s t a tu to ry declara t ion of solvency in
case of proposal to wind up a company voluntar i ly .
Sec. 271.—As to filing wi th the Regis t rar -Genera l a copy of final account and as to filing an office copy order deferr ing the date of dissolut ion of a company.
Sec. 280.—As to filing a copy of final account and r e t u r n of hold ing of meet ings and of the i r dates or a r e tu rn m e n t i o n e d in proviso to subsect ion three of section two hundred and e ighty a n d as to filing an office copy order defer r ing the da te of dissolut ion of a company.
Sec. 294.—As to filing a not ice of the appo in tmen t of a l iqu ida tor . Sec. 316.—As to filing s t a tements a n d accounts in pend ing l iqui
da t ions .
Sec. 322. As to filing wi th t he Regis t ra r -Genera l an office copy of a n order declar ing t he dissolut ion of a company void.
Sec. 323.—As to filing copy order res to r ing n a m e of company to
regis ter .
Sec. 339.—As to filing of abs t rac t of t he receipts and paymen t s
of receivers and manage r s appoin ted u n d e r t he powers con
ta ined Sec . 341.—As to filing of a copy of a prospectus of a foreign com
i n
any
i n s t r u m e n t .
p a n y or of a s t a t emen t i n l ieu of a prospectus r e l a t ing t o t he
offer for sale of debentures or shares .
Sec . 367.—As to t he a t t a ch ing to t he annua l r e t u r n of a company
of t h e certificate of t he aud i to r r e l a t i ng to t he Unc la imed Moneys Act , 1917.
Generally.—
General ly .—As to any m a t t e r or th ing required by th is Act , or the regula t ions or rules made thereunder , or by any Act repealed by this Act or any regulat ion or rule made thereunder , to be done by any company director , officer, audi tor , l iquidator , receiver or manager in the off ice of the Regis t ra r -Genera l with regard to a company or i ts affairs.
S C H E D U L E T H I R T E E N .
PART I.
E n a c t m e n t s referred to in paragraph (b) of subsection one of section
three hundred and eighty.
Sec. 7 (3) General and r e tu rns to be made to Min is te r .
(C) .—Relat ing
to admin i s t r a t ion
of Act
by
Reg i s t r a r -
Sec. 15 (6 ) .—Form of certificate of Regis t ra r -Genera l . Sec. 29 (2 ) .—Form of license. Sec. 32 (3 ) .—Form of not ice. Sec. 34 (2) .—Appl ica t ion for license to dispense with use of
"L imi ted . "
Sec. 44 (1) (1) .—Form of declarat ion and certificate.
Sec. 53.—Form of certificate of reg is t ra t ion of company p u r s u a n t
to F a r t V.
Sec. of agent by foreign company.
62.—Verification
of
copy of m e m o r a n d u m
of
appo in tmen t
Sec. 63.—Time for filing no t ice of s i tua t ion , etc., of regis tered office.
Sec. t ion , etc., of foreign company.
67.-—Return
to Regis t ra r -Genera l
of
a l te ra t ion
of
const i tu
Sec. 74 .—Manner of certification of copies or t r ans la t ions of
ce r ta in Sec. 75 .—Forms of not ices as t o company 's office a n d changes documents . the re in .
Sec. 77 .—Forms of declara t ion to be filed pr ior to commencement of Sec. 89 .—Form of a n n u a l r e t u r n by company no t hav ing a business .
share
capi ta l . Sec. 90 .—Manner of certification of t r ans l a t ions of balance-
sheets.
Sec. 125 ( 2 ) . — F o r m of r e t u r n as to directors , etc .
Sec. 145 (2 ) .—Par t i cu l a r s as t o contrac ts i n respect of which
shares a re al lot ted.
Sec. 146 ( 1 ) . — F o r m of s t a t emen t as to commission to be pa id i n
ce r ta in cases.
Sec. 155 (2 ) .—Par t i cu l a r s to be included i n not ice to Reg i s t ra r - General of increase of share capi ta l .
Sec. 161.—Form of certificate by Regis t ra r -Genera l as to and
m a t t e r s r e l a t ing to reg i s t ra t ion of order and m i n u t e of
reduc t ion of capi ta l .
Sec. 168.
See. 168.—Form of abs t rac t of pa r t i cu la r s as to workers ' shares
to be filed wi th the Regis t ra r -Genera l w i th a n n u a l re turn .
Secs. 185, 186 .—Par t icu la rs of charges created by companies to be filed wi th the
Regis t ra r -Genera l
p u r s u a n t to these sec
t ions Sec. 187.—Form of reg is te r of charges to be kept by Registrar- and General , and fo rm of index. ma t t e r s in re la t ion there to . Sec. 191.—Form of not ice of appo in tmen t of receiver or manage r and of ceasing to act.
Sec. 194 Sec. 265.—Form of declara t ion referred to i n th i s section.
( 2 ) . — P a r t i c u l a r s
of
en t r ies
referred
to .
Sec. 271.—Forms of r e t u r n s to be m a d e under th i s section in
members ' vo lunta ry winding-up .
Sec. 280.—Forms of r e t u r n s to be m a d e under th is section in
credi tors ' vo lun ta ry winding-up .
Sec. 294.—Form of not ice of appo in tmen t of l iquidator .
Sec. 316.—Informat ion wi th regard to pend ing l iquidat ions to
DO filed by l iquidators wi th Regis t rar -Genera l , etc., t imes a t
which pa r t i cu la r s are to be filed, forms of s ta tement ,
pa r t i cu la r s to be furnished, form of account and s ta tement ,
etc. Sec. 317 .—Par t icu la rs of payments to l iqu ida tors ' unc la imed moneys account to be furnished to Colonial T reasu re r and
the officer to give receipts for such moneys.
Sec. 339.—Form of abs t rac t or account to be filed wi th t he Regis t rar -Genera l
by receivers and
managers .
Sec. 341.—Matters r e l a t ing to reg is t ra t ion of prospectus of foreign company.
Sec . 342 (1 ) .—Manne r of cer t i fying t r ans la t ion of m a t t e r in
foreign language .
Sec . 352 (2 ) .—Authen t i ca t i on of documents to be filed or lodged.
Sec. 367.—Form Moneys Act , 1917.
of
aud i to r ' s
certificate
r e l a t i ng
to
Unc la imed
Sec. 368.—Fees to be pa id to Regis t ra r -Genera l for reg is t ra t ions ,
e tc . Sec . 369.—Fees to be pa id to Regis t ra r -Genera l for inspect ion , etc., of documents .
P A R T I I .
Enactments referred to in paragraph (b) of subsection two of section
three hundred and eighty.
Sec. 7 (6) .—Eeturns to be made to Minister by officers of the
court. Secs. 15 and 37 (7) .—Application to confirm alteration of objects
and matters incidental thereto.
Sec. 89.
Sec. 39.—Applicat ion to court to de te rmine whether company
registered as propr ie tary is properly so registered.
Sec. 40.—Applicat ion for relief from the effect of defaul t in
complying with provisions of section thir ty-seven.
Sec. 58.—Application to confirm a l te ra t ion of cons t i tu t ion of company not formed under Act .
Sec. 59.—Applications to stay or res t ra in proceedings.
Sec. 60.—Application for leave to proceed after winding-up order
made aga ins t company not formed u n d e r Act or any con
t r ibu to ry .
Sec . 71.—Applicat ion to wind up foreign company.
Sec. 81 (5) .—Appl ica t ion to compel inspect ion of regis ter , etc . Sec . 83.—Applicat ion to rectify register of members .
Sec. 92 (3) .—Appl ica t ion to call meet ings . Sec. 95.—Applicat ion for order t h a t mee t ing of company be
summoned.
Sec. 101 (4) .—Appl ica t ion to compel inspection of m i n u t e book. Sec. 102 (5) .—Appl ica t ion for order for inspect ion by accountan t . Sec. 116.—Form of summons by inspector and enqui ry as to
refusal to produce books and documents to inspector.
Sec. 125 (6) .—Appl ica t ion for order of inspect ion of regis ter of
directors .
Sec. 133.—Application for order for summons of meet ings of credi tors or members as to proposed compromise or a r range ment , and for sanc t ion ing same.
Sec . 135 t ion by d issent ing shareholders, etc., and appl icat ion by com
(1 ) .—Form of not ice to d issent ing shareholders , applica
pany to au thor i se not ice to d issent ing shareholders .
Sec. 145 (3) .—Appl ica t ion for extension of t ime for filing con t r ac t s r e la t ing to a l lo tment of shares as fully
or pa r t ly
paid
otherwise t h a n in cash.
Sec. 150.—Applicat ion for sanc t ion of resolut ion for issue of
shares a t a discount and for extension of t i m e for such issue.Sec. 157.—Applicat ion for sanc t ion to pay in te res t on share
capi ta l expended on temporar i ly unproduc t ive works, a n d as
t o r a t e of in teres t which m a y be pa id ou t of capi ta l . Secs. 159-162.—Application for confirmation of resolut ion for
reduct ion of share capi ta l and ma t t e r s r e l a t ing there to . Sec. 164.—Application for cancel lat ion of va r ia t ion of r igh t s of holders of special classes of shares.
Sec. 169 (5) .—Appl ica t ion to compel inspect ion of reg is te r of debenture holders or to d i rec t sending of copies.
Sec. 179.—Application for order to m a k e good defaul t as to issue of share certificate, etc .
Sec. 190.—Applicat ion for rectification of regis ter of charges .
Sec. 197.—Applicat ion for order for inspect ion of copies of
charges or of regis ter of charges .
Sec. 207 (2) .—Delegat ion of powers of Mas te r to other officers.
Sec. 217.—By whom copy wind ing-up order to be forwarded to
Regis t ra r -Genera l .
Sec. 222.
Sec. 222.—Form of s ta tement and fee for inspection.
Sec. 227.—Securi ty to be given by l iquidator .
Sec. 232.—Applicat ion for d i rec t ions by l iqu ida tor and for reversal or modification of act or decision of l iquidator .
Sec. 233.—Manner of keeping books by l iquidator .
Sec. 234.—Manner and t imes of payment by l iquidator of moneys
to bank.
Sec. 248.—Applicat ion for appo in tment of special manager .
Sec. 253.—Procedure under , also scale of witnesses ' expenses and
conduct money payable to persons examined, by persons
seeking the examina t ion .
Sec. 257.—Matters r e l a t ing to delegat ion to l iquidators of powers of cour t .
Sec. 2 5 9 . - A p p l i c a t i o n for order for dissolut ion. Sec. 293.—As to exclusion of section two hundred and th i r ty -
n ine .
Sec. 307 (1) .—Appl ica t ion for declara t ion of personal l iabil i ty. Sec. 307 (4) .—Appl ica t ion for leave to be a director , etc., where
disqualification order has been made .
Sec. 309.—Applicat ion as to prosecut ions of de l inquent officers
and members of company.
Sec. 311.—Applicat ion to review remunera t ion of l iquidator ,
Sec. 312.—Applicat ion to enforce dut ies of l iquidator .
Sec. 315 (3 ) .—Pos tponement of des t ruc t ion of books. Sec. 316 (7 ) .—Procedure under . Sec. 317 (2 ) .—Procedure unde r .
Sec. 317 (5 ) , (6 ) .—Appl ica t ion r e l a t ing to unc la imed or und i s t r i bu ted assets, m a n n e r of appeal from orders made thereon. Sec. 322.—Applicat ion to declare dissolut ion of company void. Sec. 323.—Applicat ion for order for res tora t ion of n a m e of com
pany to the regis ter .
Sec. 326.—Method of deal ing wi th surplus i n h a n d s of Genera l a r i s ing from disposal of assets of dissolved company.
Regis t rar -
Sec. 343.—Manner of appeal f rom order avoiding cont rac t m a d e
u n d e r Sec. 364.—Applicat ion th i s section.
to enforce m a k i n g of r e tu rn s .
Sec. 379.—Applicat ion to cour t for relief.
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