Companies Act Amendment Act (No.2) 1975 (WA)

WESTERN AUSTRALIA.

COMPANIES (No. 2).

No. 100 of 1975.

AN ACT to give effect to an arrangement made under the Interstate Corporate Affairs Agreement for the reconciliation of differences in the Companies Acts of the States that are parties to that Agreement, and for that purpose to amend the Companies Act, 1961-1975, and for incidental and other purposes.

[Assented to 1st December, 1975.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:-

1. (1) This Act may be cited as the Companies Shoa title	and citation
Act Amendment Act (No. 2), 1975.

(2) In this Act the Companies Act, 1961-1975 is

Reprinted as approved for

referred to as the principal Act.

reprint, 1st July, 1975.

(3) be cited as the Companies Act, 1961-1975.

The principal Act as amended by this Act may

No. 100.]

Companies (No. 2).

[1975.

Commence-

ment.

2. The provisions of this Act shall come into operation on such date or dates as is or are, respectively, fixed by proclamation.

Section 5

amended.

3.	Section 5 of the principal Act is amended

(a)	by deleting the words "in relation to" in line one of paragraph (c) of the interpre- tation "branch register" in subsection (1);
(b)	by deleting the passage ", and any docu- ment deemed by subsection (5) of this section to be a debenture" in lines four, five and six of the interpretation "debenture" in subsection (1);
(c)	by deleting the words "and if that law is amended that law as amended from time to time" appearing at the end of the interpretation "declared law" in subsection (1);
(d)	by adding after the interpretation "declared law" in subsection (1) the following interpretation

"deed" includes an instrument having

the effect of a deed under any Act; ;

(e)	by deleting the words "body or association" in line six of paragraph (b) of the inter- pretation "foreign company" in subsection (1) and substituting the words "society association or body";
(f)	by adding after the interpretation "lodged" in subsection (1) the following interpre- tation

"machine copy" has the meaning ascribed to that expression in section seventy-three A of the Evidence Act, 1906; ;

(g)	by deleting the word "includes" in line six of the interpretation "marketable securi- ties" in subsection (1);
(h)	by deleting the word "voluntary" in line two of the interpretation "members volun- tary winding up" in subsection (1);

1975.]

Companies (No. 2).

[No. 100.

(i) by deleting the word "a" in line two of paragraph (ba) of the interpretation "officer" in subsection (1) and substituting the word "the";

(j)	by deleting the word "eleven" in line three of the interpretation "official liquidator" in subsection (1) and substituting the words "two hundred and thirty-one";
(k)	by deleting the words "by the company" in line three of the interpretation "principal register" in subsection (1);

(1) by adding after the interpretation "repealed Act" in subsection (1) the following interpretation

"reproduction" in relation to a document has the same meaning as is ascribed to that expression in section seventy- three A of the Evidence Act, 1906; ;

(m)	by adding after the interpretation "Table B" in subsection (1) the following interpre- tation

"transparency" in relation to a document

means

(a)	a developed negative or posi- tive photograph of that document (in this interpreta- tion referred to as an original photograph) made, on a trans- parent base, by means of light reflected from, or transmitted through, the document;
(b)	a copy of an original photo- graph made by the use of photo-sensitive material (be- ing photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

No. 100.]

Companies (No. 2).

[1975.

(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photo-sensitive material (being photo-sensi- tive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b) of this inter- pretation, and each succeed- ing copy in the series being made, in the same manner, from any preceding copy in the series; ;

(n)	by deleting paragraph (b) of subsection (la) and substituting the following

(b)	any law of that State or Territory to be a declared law for the purposes of this Act,

and may by Order vary or revoke a declaration made under paragraph (b) of this subsection. ;

(o)

by deleting the passage commencing with the passage ", but" in line twelve of sub- section (5) and ending with the word "debenture" in the last line of that sub- section and substituting the passage "(but not including a document which merely acknowledges the receipt of the money in any case where, in respect of the money, the corporation issues in compliance with section thirty-eight the document pres- cribed by subsection (2) of that section and complies with the other requirements of that section)";

(p)

by deleting paragraph (d) of subsection (6) and substituting the following paragraph

(d)	made to a dissenting offeree within the meaning of section one hundred and eighty X or, within the meaning of section one hundred and eighty- five, to existing members of a

1975.]

Companies (No. 2).

[No. 100.

transferor company with respect to shares in a transferee company or within the meaning of section two hundred and seventy, to existing members of a company and relates to shares in that company. ; and

(q) by repealing subsection (9).

4. Section 6A of the principal Act is repealed and	repealed
Section 6A
re-enacted as follows-	and
re-enacted.
6A. (1) Subject to this section, a person has a relevant interest in a share in a body corporate	Relevant
interests.

(a)	for the purposes of Division 3A of Part IV, if that share is a voting share and that person has power-

(i) to exercise, or to control the exercise of, the right to vote attached to that share; or

(ii) to dispose of, or to exercise control over the disposal of, that share;

(b)	for the purposes of sections one hundred and twenty-six and one hundred and twenty-seven, if that person has power to dispose of, or to exercise control over the disposal of, that share; and

has power-

(i) where the share is a voting share, to exercise, or to control the exercise of, the right to vote attached to that share; or

(ii) to dispose of, or to exercise control over the disposal of, that share, whether or not it is a voting share.

(2) It is immaterial for the purposes of this section whether the power of a person-

(a)	to exercise, or to control the exercise of, the right to vote attached to a voting share in a body corporate; or

No. 100.]

Companies (No. 2).

[1975.

(b)	to dispose of, or exercise control over the disposal of, a share,

is express or implied or formal or informal, is exercisable alone or jointly with another person or other persons, cannot be related to a particular share, or is, or is capable of being made, subject to restraint or restriction and any such power exercisable jointly with another person or other persons shall, for those purposes, be deemed to be exercisable by either or any of those persons.

A reference in this section to power or control includes a reference to power or control that is direct or indirect or is, or is capable of being, exercised as a result of, or by means of, or in breach of, trusts, agreements, arrangements, understandings and practices, or any of them, whether or not they are enforceable, and a reference in this section to a controlling interest includes a reference to such an interest as gives control.

(3)

For the purposes of this section, where a body corporate has power

(4)

(a)	to exercise, or to control the exercise of, the right to vote attached to a voting share; or
(b)	to dispose of, or to exercise control over the disposal of a share,

and

(c)	the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of the power;
(d)	a person has a controlling interest in the body corporate; or
(e)	a person has, the associates of a person have, or a person and his associates have power to exercise, or to control the exercise of, not less than fifteen per centum of the votes that may be exercised pursuant to rights to vote attached to the voting shares of the body corporate,

1975.1

Companies (No. 2).

[No. 100.

that person shall be deemed to have the same power in relation to that share as the body corporate has.

(5) For the purposes of subsection (4) of this section, a person is an associate of another person if the first-mentioned person is

(a)	a corporation that, by virtue of subsection (5) of section six, is deemed to be related to that other person;
(b)	a person in accordance with whose direc- tions, instructions or wishes that other person is accustomed or is under an obligation, whether formal or informal, to act in relation to the exercise of a power referred to in subsection (4) of this section;
(c)	a person who is accustomed or is under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that other person in relation to the exercise of that power;
(d)	a body corporate that is, or the directors of which are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that other person in relation to the exercise of that power; or
(e)	a body corporate in accordance with the directions, instructions or wishes of which, or of the directors of which, that other person is accustomed or under an obliga- tion, whether formal or informal, to act in relation to the exercise of that power.

(6) Where a person-

(a)	has entered into an agreement with respect to a share;
(b)	has a right relating to a share, whether the right is enforceable presently or in the future and whether on the fulfilment of a condition or not; or
(c)	has an option with respect to a share,

No. 100.]

Companies (No. 2).

[1975.

and, on fulfilment of the agreement, enforcement of the right or exercise of the option that person would have a relevant interest in the share he shall, for the purposes of this section, be deemed to have that relevant interest in the share.

(7) A relevant interest in a share shall be

disregarded

(a)	for the purposes of Division 3A of Part IV, sections one hundred and twenty-six and one hundred and twenty-seven and Part VIB-

(i) if the ordinary business of the person who has the relevant interest includes the lending of money and he has authority to exercise his powers as the holder of the relevant interest only by reason of a security given for the purposes of a transaction entered into in the ordinary course of busi- ness in connection with the lending of money;

(ii) if the relevant interest is that of a person who has it by reason of his holding a prescribed office;

(iii) if the ordinary business of the person who has the relevant interest includes dealing in securities within the meaning of the Securities Indus- try Act, 1975, and he has authority to exercise his powers as the holder of the relevant interest only by reason of instructions given to him by or on behalf of another person to dispose of that share on behalf of that person in the ordinary course of business; or

(iv) if the share is subject to a trust, the relevant interest is that of a trustee and a beneficiary is deemed, by sub- section (6) of this section, to have

1975.]

Companies (No. 2).

[No. 100.

that relevant interest by virtue of a presently enforceable and uncondi- tional right referred to in paragraph (b) of that subsection; and

(b)	for the purposes of Division 3A of Part IV and of Part VIB, if the relevant interest is that of a person who has it by reason of his having been appointed as a proxy or representative to vote at a meeting of members or a class of members, of a corporation.

(8) A relevant interest in a share shall not be disregarded by reason only of

(a)	its remoteness; or
(b)	the manner in which it arose. .

Section 7

5. Section 7 of the principal Act is amended by	amended.
repealing subsections (5), (6), (6a), (7), (7a), (8), (9), (10) and (11) and substituting the following subsections
(6) For the purpose of ascertaining whether the provisions of this Act or of a corresponding previous enactment have been or are being complied with the Commissioner or a person authorized by him

(a)	may inspect any books required by or under this Act or a corresponding previous enactment to be kept by, or by a person in respect of, a corporation (whether or not the corporation has been dissolved); and
(b)	may, where the Commissioner considers it necessary to inspect books kept by a banker who acts or has acted as banker to the corporation, inspect books kept by that banker that relate to the corporation (whether or not the corporation has been dissolved).

(7) No person shall make an inspection in pursuance of subsection (6) or subsection (7c) of this section unless he has made a declaration in the prescribed form.

No. 100.]

Companies (No. 2).

[1975.

(7a) The Commissioner or a person authorized by him shall not make an inspection in pursuance of subsection (6) of this section of books kept by a banker relating to a corporation unless the Commissioner or other person has served on the banker notice in writing to the effect that he intends to inspect books kept by the banker that relate to the corporation named in the notice.

(7b) Where under a provision of a declared law corresponding to subsection (6) of this section, a person is authorized to inspect any book required by or under that declared law to be kept by a corporation or a book kept by a banker who acts as banker to a corporation, the person-

(a)	shall have the same powers in Western Australia in relation to any such book in Western Australia as he would have had if he had been authorized under subsection (6), the reference in that subsection to this Act were a reference to that declared law and the book were a book referred to in that subsection; and
(b)	shall not exercise those powers in Western Australia unless he has made a declaration under a provision of a declared law corresponding to subsection (7) of this section and, in relation to books kept by a banker, has given a notice under a provision of a declared law corresponding to subsection (7a) of this section.

(7c) The powers that a person has under the declared law of a participating State that, by reason of subsection (7b) of this section, may be exercised in Western Australia, may be exercised by the Commissioner or a person authorized by him where, in any particular case, the corresponding interstate officer of the participating State has authorized the Commissioner or person so to do.

(8) A person-

(a)	who makes an inspection in pursuance of subsection (6) or subsection (7b) of this

1975.]

Companies (No. 2).

[No. 100.

1047

section before he has made a declaration referred to in subsection (7) of this section or a declaration referred to in a corresponding provision of a declared law of the participating State concerned; or

(b)	who, except for the purposes of this Act, or in the course of any criminal proceedings or proceedings under this Act, after making such a declaration makes a record of or divulges or communicates to any other person any information which he has acquired by reason of such an inspection,

shall be guilty of an offence against this Act.

Penalty: Two hundred dollars.

(8a) Where the regulations prescribe for the purposes of this section an office held under the law of the State or of the Commonwealth or of another State or of a Territory of the Commonwealth it shall not be a contravention of subsection (8) of this section to divulge or communicate to the holder of that office information connected with the duties of the office.

(9) An officer of a corporation, person required to keep any books in respect of a corporation or a banker, on being required by the Commissioner or a person authorized by him shall produce any book to which the requirement relates.

Penalty: Two hundred dollars.

(9a) An officer of a corporation, person required by or under a declared law to keep any books in respect of a corporation or a banker on being required in Western Australia by a person authorized under a provision of a declared law corresponding to subsection (6) of this section or a person authorized under subsection (7c) of this section, shall produce any book to which the requirement relates.

Penalty: Two hundred dollars.

No. 100.]

Companies (No. 2).

[1975.

(9b) An officer of a corporation, person required to keep any books in respect of a corporation or a banker, on being required by the Commissioner or a person authorized by him shall state where, to the best of his knowledge and belief, a book is at the time the request is made.

Penalty: Two hundred dollars.

(9c) An officer of a corporation, person required by or under a declared law to keep any books in respect of a corporation or a banker on being required in Western Australia by a person authorized under a provision of a declared law corresponding to subsection (6) of this section or a person authorized under subsection (7c) of this section, shall state where, to the best of his know- ledge and belief, a book is at the time the request is made.

Penalty: Two hundred dollars.

(10) A corporation, officer of a corporation, person required to keep any books in respect of a corporation or a banker shall not obstruct or hinder the Commissioner or a person authorized by him while exercising a power under subsection (6) of this section.

Penalty: Two hundred dollars.

(10a) A corporation, officer of a corporation, person required by or under a declared law to keep any books in respect of a corporation or a banker shall not in Western Australia obstruct or hinder a person authorized under a provision of a declared law corresponding to subsection (6) of this section or a person authorized under subsection (7c) of this section while exercising a power under subsection (7b) of this section.

Penalty: Two hundred dollars.

1975.1 (11) There shall be paid to the Commissioner

Companies (No. 2).

[No. 100.

(a)	the fees specified in the Second Schedule; and
(b)	such other fees as are prescribed.

(11a) The Governor may from time to time make regulations varying the Second Schedule or revoking the Second Schedule and substituting a new Second Schedule in place thereof, and the Second Schedule as so amended or substituted shall be the Second Schedule to this Act.

(12) Where a fee is payable to the Commissioner for or in respect of the lodging of a document with the Commissioner and the document is submitted without payment of the fee, the document shall be deemed not to have been lodged until the fee has been paid to the Commissioner.

(13) There may be paid out of the Consolidated Revenue Fund such amounts as are necessary to give effect to any agreement between the participating States relating to the apportionment of any fees or payments made with respect to refunds of fees specified therein and the Consolidated Revenue Fund is hereby appropriated accordingly. .

Section 9

6. Section 9 of the principal Act is repealed and	repealed and re-enacted.
re-enacted as follows-
Company
9. (1) Subject to subsection (2) of this section, a person-	auditors and
liquidators.

(a)	who was registered as a company auditor under the repealed Act;
(b)	who is a member of the Institute of Chartered Accountants in Australia or the Australian Society of Accountants or any other body established outside Australia prescribed on the recommendation of the Board as a body for the purposes of this subsection;

No. 100.]

Companies (No. 2).

[1975.

(c)	who is a registered company auditor in any State or Territory of the Commonwealth;
(d)	who holds a degree or a diploma from any University in the Commonwealth and who has passed examinations in the course for the degree or diploma in such subjects, under whatever name, as the appropriate authority of the University certifies to the Board to represent a course of study in accountancy or auditing of three years and in commercial law (including company law) of two years duration;
(e)	who holds the certificate in accountancy of a prescribed Institute of Technology or Technical College; or
(f)	who has satisfied the Board that he has a thorough knowledge of accounts and audit- ing and of the provisions of this Act and of such other subjects as are prescribed,

is, if the Board is satisfied with his general conduct and character and is satisfied that he has sufficient practical experience in accountancy and has the ability to act as a company auditor, entitled on payment of the prescribed fee to be registered as a company auditor.

(2)

The Board may refuse to register as a

company auditor a person who is not resident in a

State or Territory of the Commonwealth.

(3) A registered company auditor may apply to the Board for registration as a liquidator and, subject to subsection (4) of this section, the Board, if satisfied as to his experience and ability shall, on payment of the prescribed fee, register that person as a liquidator.

(4)

The Board may refuse to register as a

liquidator a person who is not resident in a State

or Territory of the Commonwealth.

1975.]

Companies (No. 2).

[No. 100.

(5) A person qualified to be appointed as a registered company auditor may apply to the Board for registration as a liquidator in respect of the winding up of a specified corporation and, subject to subsection (4) of this section, the Board if satis- fied

(a)	as to the experience and ability of that person;
(b)	that the nature of the property or business of the corporation or the interests of the creditors or contributories generally so require; and
(c)	that the prescribed fee has been paid,

shall register that person as a liquidator in respect

of that corporation.

(6) Subject to subsection (7) of this section, a person who is a registered company auditor or registered liquidator shall, on payment of the prescribed fee, be entitled to renewal of his registration.

(7) The Board may refuse to renew the registration of a registered company auditor or registered liquidator who-

(a)	is not resident in a State or Territory of the Commonwealth ; or
(b)	does not at least three months before his registration ceases to be in force apply to the Board for renewal of his registration and pay to the Board the prescribed fee.

(8) A registration and a renewal of registration of a registered company auditor or registered liquidator shall be in force until the 31st day of March in the year following the year in which the registration or renewal is effected.

(9) The Board after giving notice to a person who

is a registered company auditor or a registered

No. 100.]

Companies (No. 2).

[1975.

liquidator may inquire into the conduct, character and ability of that person, subject to his being given an opportunity of being heard.

(10) For the purposes of an inquiry under subsection (9) of this section, the Chairman of the Board may by notice in the prescribed form require a person to appear at the inquiry and give evidence on oath or affirmation (which the Chairman is hereby authorised to administer) as to a matter in relation to the subject-matter of the inquiry and the notice may require the production of books in the custody or under the control of that person.

(11) If, at an inquiry under subsection (9) of this section, a person who is a registered company auditor or a registered liquidator is found to have been guilty of conduct discreditable to an auditor or liquidator, as the case may be, or is found to be incapable of performing the duties of a registered company auditor or registered liquidator, as the case may be, the Board may, as it thinks fit, punish or deal with him in any one or more of the follow- ing ways

(a)	cancel his registration and order the removal of his name from the register;
(b)	suspend his registration for a period not exceeding one year;
(c)	impose on him a fine not exceeding one thousand dollars;

(d) admonish or reprimand him;

(e)	require him to give an undertaking to abstain from some specific conduct; require him to pay within a specified time the costs of and incidental to the inquiry by the Board.

(12) The Board shall give to the registered company auditor or registered liquidator to whom a decision of the Board under subsection (11) of this section relates, notice of that decision.

1975.1 (13) The Board may, in an inquiry under

Companies (No. 2).

[No. 100.

subsection (9) of this section, find

(a)	that a failure to pay costs required to be paid under paragraph (f) of subsection (11) of this section or a fine imposed under paragraph (c) of that subsection; or
(b)	that a failure to honour an undertaking referred to in paragraph (e) of that subsection,

is conduct discreditable to an auditor or liquidator, whether or not, in a case referred to in paragraph (a) of this subsection, the amount payable has been recovered under subsection (15) of this section.

(14) In addition to its other powers under this section the Board may, where it is satisfied in relation to a registered company auditor or registered liquidator

(a)	that his registration has been cancelled and his name removed from the register or his registration has been suspended in another State or in a Territory of the Commonwealth; and
(b)	that either an appeal against the cancellation or suspension has been disallowed or the time for appealing against the cancellation or suspension has expired without an appeal having been made,

cancel his registration and order the removal of his name from the register or suspend his registration in the State for a period not exceeding one year.

(15) The amount of a fine or costs imposed under subsection (11) of this section may be recovered in a court of competent jurisdiction as a debt due to the Crown.

(16) A person aggrieved by a decision of the

Board under this section may within one month

from the date of his receiving notice of the decision

No. 100.]

Companies (No. 2).

[1975.

or from the expiration of one week after the decision was made, whichever first occurs, appeal to the Court from the decision and the Court may, upon the hearing of the appeal, if it thinks fit, confirm, vary or reverse the decision and, if it thinks fit, may direct the Board to register or renew the registration of a person whom the Board has refused to register or whose registration the Board has refused to renew.

(17) A decision of the Board cancelling, suspending or refusing to renew the registration of a registered company auditor or registered liquidator takes effect upon his being notified of the decision or after seven days after the decision is made, whichever first occurs.

(18) Where the registration of a person has been cancelled under this section that person shall not again be registered as a company auditor or liquidator without the express direction of the Board or of the Court.

(19) A person who is, or is for the time being exercising the powers and performing the duties of, the Auditor-General of the Commonwealth or of a State or Territory of the Commonwealth shall be deemed to be a registered company auditor for the purposes of this and any other Act. .

Section 12

amended.

7. Section 12 of the principal Act is amended

(a)	by repealing subsection (2) and substitut- ing the following subsections

(2) A person may, on payment of the prescribed fee

(a)	inspect any document filed or lodged with the Commissioner;

1975.1

Companies (No. 2).

[No. 100.

(b)	require a certificate of the incorporation of any company or any other certificate issued under this Act to be given by the Commissioner; or
(c)	require a copy of or extract from any document kept by the Com- missioner to be given or given and certified by the Commissioner.

If a transparency or reproduction of a document is produced for inspection, a person shall not be entitled pursuant to paragraph (a) of subsection (2) of this section to require the production of the original of that document.

(2a)

(2b) The reference in paragraph (c) of subsection (2) of this section to a document includes, where a reproduction or trans- parency of that document has been incorporated with a register kept by the Commissioner, a reference to that reproduction or transparency and where such a reproduction or transparency has been so incorporated a person shall not be entitled pursuant to that paragraph to a copy of or extract from the original of that document. ;

(b)	by deleting the word "kept" in line one of subsection (3) and substituting the words "filed or lodged";
(c)	by adding after the word "copy" in line three of subsection (3) the words "or extract";

No. 100.]

Companies (No. 2).

[1975.

(d)	by deleting the passage "registered." in line four of paragraph (b) of subsection (7) and substituting the passage "registered; or" ; and
(e)	by adding at the end of subsection (7) the following paragraph

(c)	any document a transparency of which has been incorporated with a register kept by the Commissioner. .

Section 13

amended.

8. Section 13 of the principal Act is amended

(a)	by deleting the passage "or destroyed," in line five of subsection (1) and substituting the passage ", or has been destroyed other- wise than pursuant to paragraph (c) of subsection (7) of section twelve," ; and
(b)	by adding at the end thereof the following subsection

(7) Where a transparency of a document referred to in subsection (1) of this section has been incorporated with a register kept by the Commissioner and is lost or destroyed as referred to in that subsection, the foregoing provisions of this section shall have effect as if the document of which it is a transparency had been so lost or destroyed. .

Section 14

amended.

9. Subsection (3) of section 14 of the principal Act is amended by deleting paragraphs (a), (b) and (c) and substituting the following paragraphs

(a) in the case of-

(i) an association or partnership formed for the purpose of carrying on the profession or calling of accountancy; or

(ii) an association or partnership formed for the purpose of carrying on any other profession or calling declared by proclamation to be a profession

1975.]

Companies (No. 2).

[No. 100.

or calling that is not customarily carried on in the Commonwealth by a corporation,

of more than one hundred persons; or

(b)	in any other case, of more than twenty persons, .

10. Subsection (1) of section 18 of the principal Act Section /8	amended•
is amended by adding the word "and" immediately after paragraph (h).
Section 22
11. Section 22 of the principal Act is amended	amended.

(a)	by repealing subsection (la);
(b)	by deleting the words "the company" in lines three and four of subsection (7a) and substituting the words "a company";
(c)	by deleting the passage "Within twelve months of the commencement of section 8 of the Companies Act (Interstate Corpor- ate Affairs Commission) Amendment Act, 1975, or such longer period as is prescribed (whether before or after the expiry of that twelve months), a" in lines one, two, three, four, five and six of subsection (7b) and substituting the word "A";
(d)	by deleting the passage "(being a company which was incorporated before that com- mencement)" in lines nine, ten and eleven of subsection (7b);
(e)	by adding after subsection (8a) the follow- ing subsections-

(8aa) Notwithstanding that a name could be reserved in respect of an intended company or company under subsection (8) of this section, if the application in respect of that intended company or company under subsection (7) of this section specifies in accordance with subsection (8a) of this section that the intended company or company intends to carry on business or carries on business in a

No. 100.]

Companies (No. 2).

[1975.

participating State the name shall not be reserved unless the corresponding inter- state officer informs the Commissioner that the name is acceptable in that State.

(8ab) Where an application is made in a participating State for the reservation of a name under a provision of a declared law which corresponds to subsection (7) of this section and the applicant has specified in accordance with a provision of the declared law corresponding to subsection (8a) of this section that the company intends to carry on or carries on business in this State and the application is referred to the Commissioner by the corresponding interstate officer for advice as to whether the name is acceptable in this State, the Commissioner shall inform the correspond- ing interstate officer that the name is acceptable in this State if

(a) the name-

(i) is not, in the opinion of the Commissioner undesirable; and

(ii) is not a name or a name of a kind that the Minister has directed the Commissioner not to accept under sub- section (1) of this section; or

(b)	the Minister has consented to the name being acceptable in this State. ;

(f)

by adding after the word "shall" in line five of subsection (8b) the words "on pay- ment of the prescribed fee";

(g)

by repealing and re-enacting subsections

(8c) and (8d) as follows

(8c) Where the name of a company has

been reserved in a participating State

pursuant to the provisions of a declared law

1975.

Companies (No. 2).

[No. 100.

corresponding to subsection (8e) of this section as the result of a notification having been sent to the corresponding interstate officer under subsection (8b) of this section and

(a)	the name subsequently ceases to be reserved in this State; and
(b)	the intended company is not incorporated or is incorporated under a name other than the name notified under subsection (8b) of this section (as the case may be),

the Commissioner shall so notify the

corresponding interstate officer.

(8d) Where the name of a company has been reserved in a participating State pursuant to the provisions of a declared law corresponding to subsection (8e) of this section as the result of a notification having been sent to the corresponding interstate officer under subsection (7b) or subsection (8b) of this section and the company concerned

(a)	is dissolved; or
(b)	changes its name to a name other than the name which was so notified,

the Commissioner shall notify the cor- responding interstate officer of the dissolution of the company or that the company has so changed its name. ;

(h)	by adding after subsection (8d) the following subsection-

(8da) A company which is not carrying on business in a participating State in which its name has been reserved pursuant to a provision of a declared law corresponding to subsection (8e) of this section may notify the Commissioner that it no longer desires that its name be reserved in that State and the Commis- sioner shall so notify the corresponding interstate officer of that State. ;

No. 100.]

Companies (No. 2).

[1975.

(i) by adding after the passage "or (8d)" in the last line of subsection (8e) the passage "or (8da)";

(j)	by adding after subsection (8e) the following subsection-

(8ea) Where the Commissioner has not reserved a name of a recognized company under subsection (8e) of this section prior to the commencement of section eleven of the Companies Act Amendment Act (No. 2), 1975, the name of that company shall be deemed to be reserved under subsection (8e) of this section for the purposes of this Act from the commencement of that section if

(a)	the name of the company was approved under subsection (1) or subsection (3) of section three hundred and forty-three E as in force prior to that commencement; or
(b)	the company immediately before it became a recognized company was a registered foreign company. ; and

(k)	by adding at the end thereof the following subsection

(12) Where an applicant for the reservation of a name under subsection (7) of this section has paid a fee in respect of the notification of a name under subsection (8b) of this section and during the period for which that name is reserved the Commissioner is notified by the applicant that it is not intended to proceed with the incorporation of the intended company or that it is not intended that the company will change its name the applicant shall be entitled to a refund of half the amount of that fee and the name shall cease to be reserved. .

1975.]

Companies (No. 2).

[No. 100.

12. Subsection (4a) of section 24 of the principal :,=d3t,14.

Act is repealed and re-enacted as follows

(4a) The Minister may, in a license issued to a company under this section or by notice in writing served on a company in respect of which a license under this section or under a corresponding previous enactment is in force, exempt the company from complying with such of the provisions of this Act as are specified in the license or notice relating to the lodging of annual returns and of returns of particulars of directors, managers and secretaries.

Section 27

13. Section 27 of the principal Act is amended

amended.

(a)	by deleting the word "Minister" in line one of subsection (1) and substituting the word "Commissioner"; and
(b)	by deleting the word "the" in line one of paragraph (a) of subsection (2) and sub- stituting the word "a".

Section 38

14. Section 38 of the principal Act is amended

amended.

(a)	by deleting the words "or proposed corporation" in lines two and three of subsection (1);
(b)	by deleting the word "statements" in line two of paragraph (b) of subsection (5) and substituting the word "statement";
(c)	by deleting the word "Governor" in line two of paragraph (b) of subsection (7) and substituting the word "Minister";
(d)	by deleting the word "Governor" in line twenty-nine of subsection (7) and substituting the word "Commissioner";
(e)	by, adding after subsection (7) the following subsection

(7a) The Minister may by notice in the Government Gazette vary or revoke a declaration made under paragraph (b) of subsection (7) of this section. ;

No. 100.]

Companies (No. 2).

[1975.

(f)	by deleting the word "Governor" in line one of subsection (8) and substituting the word "Commissioner";
(g)	by deleting paragraph (b) of subsection (8) and substituting the following paragraph

(b)	vary or revoke any declaration or specification made under para- graph (c) of subsection (7) of this section or under this subsection. ;

(h)	by deleting the paragraph commencing with the word "Any" and ending with the passage "subsection." appearing at the end of subsection (8);

(i) by repealing and re-enacting subsection (10) as follows

(10) The provisions of this section relating to the description of any document acknowledging or evidencing or intended to acknowledge or evidence the indebtedness of a corporation shall apply to and in relation to every such document issued after the commencement of the Companies Act Amendment Act, 1964, notwithstanding anything in any debenture or trust deed issued or executed before that commencement and for the time being in force and any such document issued after that commencement shall be described in accordance with the require- ments of this section notwithstanding anything in any such debenture or trust deed. ; and

by adding at the end thereof the following

subsection

(12) The prospectus and a document issued in connection with or in relation to the prospectus, shall describe or refer to the document mentioned in subsection (11) of this section in the manner required or authorized by the Commissioner and shall so describe or refer to the document without any addition to or qualification of the

1975.]

Companies (No. 2).

[No. 100.

description or reference other than any addition that the Commissioner may approve or require in order to indicate the priority of the indebtedness that the docu- ment is to evidence.

15. The principal Act is amended by repealing MTaileicand

section 40 and substituting the following sections— ;ow `and

substituted.

40. (1) In this section

Certain

"notice" includes a circular and an advertise- inlgi ceisate ,

ment but does not include a registered published.

prospectus or a report, statement, notice,

circular or advertisement the publication of

which is permitted under section forty A;

"publish" includes issue, circulate, disseminate and distribute and cognate expressions have a corresponding meaning;

"registered prospectus" includes a prospectus registered under a declared law of a partici- pating State;

"statement" includes matter that is not writing but by reason of the form or context in which it appears conveys a message.

(2) A reference in this section to the publishing of a notice is a reference to the publishing in the State of the notice by any means, including the publishing in a newspaper or periodical, by broad- casting or televising or in a film.

(3) person shall not publish a notice that

Subject to subsection (4) of this section, a

(a)	offers to the public for subscription or purchase shares in, or debentures of, a corporation or proposed corporation;
(b)	invites the public to subscribe for or purchase shares in, or debentures of, a corporation or proposed corporation; or
(c)	refers or calls attention, whether directly or indirectly to-

(i) a prospectus;

No. 100.]

Companies (No. 2).

[1975.

(ii) an offer or intended offer to the public for subscription or purchase of shares in or debentures of a corporation;

(iii) an invitation or intended invitation to the public to subscribe for or purchase shares in or debentures of a corporation; or

(iv) another notice that refers or calls attention, whether directly or indirectly to a prospectus or such an offer, intended offer, invitation or intended invitation, not being a notice referred to in subsection (4) of this section.

(4) Subsection (3) of this section does not apply to or with respect to the publishing of a notice that refers to a registered prospectus and

(a)

states that allotments of or contracts for the subscription for or purchase of shares or debentures to which the prospectus relates will be made only on receipt of a form of application referred to in and attached to a copy of the prospectus but contains no other statements other than statements as to any or all of the follow- ing

(i) particulars of the shares in or deben- tures of the corporation or proposed corporation to which the prospectus relates;

(ii) the name of the corporation or pro- posed corporation, the date of its incorporation and the amount of its paid-up capital;

(iii) the general nature of the main business of the corporation or pro- posed corporation;

(iv) the names, addresses and occupations of the directors of the corporation or proposed corporation;

1975.]

Companies (No. 2).

[No. 100.

(v) the name and address of each broker and underwriter to the issue and the name of the Stock Exchange of which each broker or underwriter is a member;

(vi) where the prospectus relates to debentures, the name and address of the trustee for the debenture holders;

(vii) the time and place at which copies of the prospectus and forms of applications for the shares or debentures to which it relates may be obtained;

(viii) the period during which the invita- tion contained in the prospectus is open;

(b)

is published by the holder of a dealers licence or an investment advisers licence or by a recognized dealer or recognized invest- ment adviser within the meaning of the Securities Industry Act, 1975 but contains no other statements other than statements as to any or all of the matters referred to in paragraph (a) of this subsection and a statement as to-

(i) whether or not the person publishing the notice recommends acceptance of the invitation to which the prospectus relates; and

(ii) the interest (if any) that the person publishing the notice has in the success of the invitation to which the prospectus relates being an interest the person has as underwriter or sub-underwriter to the issue of the shares or debentures to which the prospectus relates or an interest, within the meaning of section five of the Securities Industry Act, 1975, in those shares or debentures; or

No. 100.]

Companies (No. 2).

[1975.

(c)	is published by the holder of a dealers licence or an investment advisers licence or by a recognized dealer or recognized investment adviser within the meaning of the Securities Industry Act, 1975 and is accompanied by a copy of the prospectus.

(5) The inclusion in a notice of a statement required by this or any other Act or law to be included in the notice does not affect the operation of subsection (4) of this section.

A person shall not contravene or authorize or

permit an act that constitutes a contravention of

this section.

(6)

Penalty: Two thousand dollars.

(7) Where a notice relating to a corporation is published in contravention of this section by or with the authority or permission of an officer of the corporation, the corporation is guilty of an offence under this Act.

Penalty: Two thousand dollars.

Certain

reports	40A. (1) In this section, unless the contrary
referring to

Prospectuses	intention appears
not to be

published.	"publish" and cognate expressions have the same meaning as in section forty;
"registered prospectus" has the same meaning as in section forty;
"report" includes a statement, notice, circular and an advertisement, whether or not in writing but does not include a notice, circular or advertisement the publication of which is permitted under section forty.

(2) A reference in this section to the publishing of a report is a reference to the publishing in the State of the report by any means, including the publishing in a newspaper or periodical, by broad- casting or televising or in a film.

19751

Companies (No. 2).

[No. 100.

(3) Subject to subsection (4) of this section, a person who is aware that a prospectus relating to an issue of shares or debentures

(a)	is in course of preparation by or on behalf of a corporation or in respect of a proposed corporation, for registration in a State or in a Territory of the Commonwealth ; or
(b)	has been issued by or on behalf of a cor- poration or in respect of a proposed corporation,

shall not publish a report that is reasonably likely to induce persons to apply for those shares or debentures.

(4) Subsection (3) of this section does not apply to or with respect to the publishing of a report that

(a) relates to the affairs of a corporation listed on a prescribed Stock Exchange and-

(i) is published only to that Stock Exchange or an officer of that Stock Exchange on behalf of the corpora- tion or by or on behalf of one or more of the directors of the corporation ; or

(ii) has been so published ;

(b)	is a report of the whole or part of the proceedings at a general meeting of a cor- poration listed on a prescribed Stock Exchange and contains no other matter other than matters laid before that meeting ;
(c)	or on behalf of a corporation or by or on behalf of one or more of the directors of the corporation and-

relates to a corporation and is published by

(i) does not contain matter that materi-

ally affects the affairs of the

corporation other than matter

No. 100.]

Companies (No. 2).

[1975.

previously made available in a registered prospectus, annual report or a report referred to in paragraph (a) or (b) of this subsection ;

(ii) does not contain a reference, whether directly or indirectly, to an invitation to the public to subscribe for or purchase shares or debentures that when the report is published, is open or is intended to be made, not being a reference to the principal business of the corporation in a case where the principal business of the corporation is the borrowing of money and the provision of finance ; and

(iii) is not accompanied by a registered prospectus or a notice described in subsection (3) of section forty and the corporation and its directors have taken all reasonable steps to ensure that the report is not pub- lished in a form or manner in which it might be associated with a notice described in subsection (3) of section forty;

(d)	is published on behalf of a corporation by or on behalf of the directors of a corpor- ation or of a proposed corporation with the consent of the Commissioner ;
(e)	is news report (whether or not with other

comment) or is bona fide comment

published in a newspaper or periodical or by broadcasting or televising by a person relating to-

(i) a registered prospectus or informa- tion contained in a registered pros- pectus ; or

(ii) a report referred to in paragraph (a), (b), (c) or (d) of this subsection,

1975.]

Companies (No. 2).

[No. 100.

if none of the following

(iii) that person ;

(iv) an agent or employee of that person ;

(v) where the report or comment is published in a newspaper or period- ical, the publisher of the newspaper or periodical ; or

(vi) where the report or comment is published by broadcasting or tele- vising, the licensee of the broad- casting or television station by which it is published,

receives or is entitled to receive any con- sideration or other benefit from a person who has an interest in the success of the issue of shares or debentures to which the report or comment relates as an induce- ment for or as the result of the publication of the report or comment;

(f) is not published by a person-

(i) by or on behalf of a corporation to which the report relates or whether directly or indirectly at the instiga- tion of or by arrangement with the corporation or the directors of the corporation;

(ii) by or on behalf of the directors or promoters of a proposed corporation to which the report relates; or

(iii) by or on behalf of a person who has an interest in the success of the issue of shares or debentures to which the report relates,

and the first-mentioned person does not receive and is not entitled to receive any consideration or other benefit from the corporation or any of the directors of the corporation or any of the directors or

No. 100.]

Companies (No. 2).

[1975.

promoters of the proposed corporation, or from a person mentioned in sub-paragraph (iii) of this paragraph as an inducement for or as the result of the publication of the report; or

(g)	contains only matter that is prescribed matter for the purpose of this subsection or that relates only to a corporation that is, or is included in a class that is, prescribed for the purposes of this subsection.

A person shall not contravene or authorize

or permit an act that constitutes a contravention

of this section.

(5)

Penalty: Two thousand dollars.

(6) Where a report relating to a corporation is published in contravention of this section by or with the authority or permission of an officer of the corporation, the corporation is guilty of an offence under this Act.

Penalty: Two thousand dollars.

Evidentiary

provisions,	40B. (1) In this section
eta.

"notice" means a notice within the meaning of section forty or a report within the meaning of section forty A;

"publish" and cognate expressions have the same meaning as in section forty.

(2) A person who publishes a notice relating to a corporation or proposed corporation after he has received a certificate that

(a)	specifies the names of two directors of the corporation or two proposed directors of the proposed corporation and is signed by those directors or proposed directors; and
(b)	is to the effect that, by reason of subsection (4) of section forty or subsection (4) of

1975.]

Companies (No. 2).

[No. 100.

section forty A, section forty or section forty A, as the case may be, does not apply to the notice,

is not guilty of an offence under section forty or

forty A, as the case may be.

(3) Where a notice to which a certificate under subsection (2) of this section relates is published, each director or proposed director who signed that certificate shall, for the purposes of sections forty and forty A, be deemed to have published the notice.

(4) A person who publishes a notice to which a certificate under subsection (2) of this section re- lates shall, if the Commissioner requires him to do so, forthwith deliver the certificate to the Com- missioner.

Penalty: One thousand dollars.

(5) In proceedings for an offence under section forty or forty A, a certificate relating to a notice that purports to be a certificate under this section is prima facie evidence that

(a)	when the certificate was issued, the persons named as such in the certificate were direc- tors of the corporation or proposed directors of the proposed corporation, as the case may be;
(b)	the signatures in the certificate purporting to be the signatures of the directors or pro- posed directors, as the case may be, are those signatures; and
(c)	the publication of the notice was authorized by those directors or proposed directors, as the case may be.

(6) Nothing in section forty, forty A or this section limits or diminishes the liability that a person may incur, otherwise than under section forty, forty A or this section, under any rule of law or under any other enactment. .

No. 100.]

Companies (No. 2).

[1975.

Section 42

amended.

16. Subsection (2) of section 42 of the principal Act is amended by deleting subparagraph (ii) of paragraph (e) and substituting the following sub- paragraph

(ii) where that other corporation is so stated to be under any such liability, the prospectus also gives full particulars of the nature and extent of that liability, of the circumstance under which that liability arose and the manner in which that liability is to be discharged. .

Section 54	17. Subsection (4) of section 54 of the principal Act is amended by deleting the words "if the Commis- sioner so requests" in lines two and three.
amended.
Section 64
amended.	18. Section 64 of the principal Act is amended

(a)	by deleting the passage commencing with the words "and may by order" in line eight of subsection (4) and ending with the word "reduction" being the last word in the sub- section;
(b)	by repealing and re-enacting subsection (6) as follows

(6) Upon the registration by the Com- missioner of an office copy of the order the resolution for reducing share capital as confirmed by the order shall take effect. ;

(c)	by deleting the word "lodging" in line one of subsection (8) and substituting the word "registration";
(d)	by deleting the passage "and any addition ordered by the Court to be made to the name of the company shall (in the case of any addition to the name, for such period as is specified in the order of the Court) be deemed to be alterations" in subsection (8) and substituting the words "shall be deemed to be an alteration";

1975.

]

Companies (No. 2).

[No. 100.

(e) by deleting the word "lodging" in line two of paragraph (a) of subsection (9) and substituting the word "registration";

by deleting the word "shareholder"

(f)

occurring-

(i) in line three and in line seven of subsection (12); and

(ii) in line three, in lines eight and nine and in line ten of subsection (13),

and substituting the word "member" in

each case; and

by adding at the end thereof the following

(g)	subsection

(14) Where land under the provisions of the Transfer of Land Act, 1893 is comprised in a strata plan registered under the Strata Titles Act, 1966 and at the time of registra- tion of the strata plan the registered proprietor of that land was a company, the transfer by the company of any lot in that strata plan in exchange for or in satisfaction of a right of a kind referred to in subsection (12) or (13) of this section shall not of itself constitute, and shall be deemed never to have constituted, a reduction of the share capital of the company. .

19. The principal Act is amended by adding after	Section MA
added.
section 64 the following new section-
Return of
64A. (1) Where shares in a company which were formerly not divided into classes are so divided or	division or
conversionof shares.
where shares of one class are converted into shares of another class, the company shall, within one month after the division or conversion, lodge with the Commissioner a return in the prescribed form showing particulars of the division or conversion.
(2) In the event of a default in complying with subsection (1) of this section, the company, and each officer of the company who is in default, is guilty of an offence against this Act.

Penalty: One hundred dollars. Default penalty. .

No. 100.]

Companies (No. 2).

[1975.

Section 67

amended.	20. Subsection (1) of section 67 of the principal Act is repealed and re-enacted as follows
(1) Except as is otherwise expressly provided by this Act no company shall give, whether directly or indirectly and whether by means of a loan guarantee or the provision of security or otherwise, any financial assistance for the purpose of or in connec- tion with a purchase or subscription made or to be made by any person of or for any shares in the company or, where the company is a subsidiary, in its holding company or in any way purchase, deal in or lend money on its own shares. .
Section 69A
amended.	21. Section 69A of the principal Act is amended

(a)	by deleting the passage "Governor, by notice" occurring-

(i) in line three of paragraph (b) of subsection (2); and

(ii) in line three of paragraph (c) of subsection (2),

and substituting the passage "Minister, by

order" in both cases; and

(b)	by deleting the words "Governor may by notice" in line one of subsection (3) and substituting the words "Minister may by order".

Section 6911

amended.	22. Subsection (1) of section 69B of the principal Act is amended by adding after the word "corpor- ate" in line five the words "or unincorporate".
Section 6£10
amended.	23. Section 69C of the principal Act is amended by deleting the words "an interest or interests" occurring

(a)

in line three of subsection (1); and

and substituting the words "a relevant interest or

relevant interests" in both cases.

(b)

in lines four and five of subsection (2),

1975.]

Companies (No. 2).

[No. 100.

Section 69D

24. Section 69D of the principal Act is amended

amended.

Note this paragraph is only applicable to an exempt proprietary company that is not an unlimited company all the members of which agreed not more than one month before the annual general meeting not to appoint an auditor." ;

No. 100.1

Companies (No. 2).

[1975.

(i) by adding after the passage "See section 132 (5)" under the heading "Certificate." the passage "of the Companies Act, 1961";

(j)	by deleting the heading "Particulars of the Directors Managers Secretaries and Auditors of the Limited, at the date of the Annual Return." and sub- stituting the heading "Particulars of the Directors Managers Secretaries and Auditors of Limited, at the date of the Annual Return." ; and
(k)	by deleting the words "List of persons holding shares in the Limited" appearing under the heading "Certificate." and substituting the words "List of persons holding shares in Limited".

Ninth

Schedule

emended.

164. The Ninth Schedule to the principal Act is

amended

(a)	by deleting the word "subsidiary" in the last line of paragraph (a) of subclause (1) of clause 2 and substituting the words "related corporation"; and
(b)	by deleting paragraph (i) of subclause (4) of clause 5 and substituting the following paragraph-

the total amount outstanding of any

(i) loans made, guaranteed or secured by the company or by the company and its subsidiaries, being loans made to a director of the company or of a related corporation or to a relative within the meaning of section 125 of such a director or to a corporation in which such a director or relative has, or two or more such persons together have, a substantial shareholding within the meaning of Division 3A of Part

IV. .

1975.]

Companies (No. 2).

[No. 100.

Transitional

165. (1) Where a person may revoke, vary or amend	provisions.
an instrument, declaration or determination made or published under a provision of the Companies Act, 1961 as amended by this Act, he may revoke, vary or amend an instrument, declaration or determination that

(a)	was made or published under that provision before the provision was amended; and
(b)	was in force immediately before the amendment of the provision,

notwithstanding that the instrument, declaration or determination was not made or published by him.

(2) The provisions of subsections (la) and (lab) of section two hundred and ninety-two of the principal Act, as amended by this Act, apply in respect of a company that is being wound up whether the order of the Court for the winding up or the date of commencement of the winding up of the company was made or occurred before or after the date of commencement of this section.