Companies (Amendment) Act 1940 (NSW)

COMPANIES (AMENDMENT) ACT.

Act No. 56, 1940.

An Act to amend the Companies Act, 1936, as amended by subsequent Acts, in certain respects; and for purposes connected there- with. [Assented to, 11th December, 1940.]

BE it enacted by the King's Most Excellent Majesty, lative Council and Legislative Assembly of New South by and with the advice and consent of the Legis-	Wales in Parliament assembled, and by the authority of
the same, as follows :—

1 . This Act may be cited as the "Companies (Amend-

(b)

ment) Act, 1940."

2 . The Companies Act, 1936, as amended by subse-

quent Acts, is amended—

(a) by inserting in section two next after the matter relating to Par t V the following words and figures:—

PART VA.—REGISTRATION AND INCORPORATION OF

COMPANIES FORMED OUTSIDE THE STATE—
ss. 60A-60N.

(b) by inserting next after section sixty the follow­ ing new Part:—•

P A R T V A .

REGISTRATION AND INCORPORATION OF COMPANIES

FORMED OUTSIDE THE STATE.

60A. (1) W i t h the exceptions and subject to the provisions contained in this section, any company, incorpora ted ei ther before or af ter the commencement of the Companies (Amendment) Act, 1940, in any p a r t of H i s Majes ty ' s dominions outside the S ta te and being duly consti tuted according to the law of the place where i t was so incorpora ted , m a y a t any t ime regis ter unde r th is Act as an unlimited com­ pany, or as a company limited by shares , or as

a	company	l imited	by	g u a r a n t e e :
P rov ided	tha t—

(a)	a company shall not register in pur­ suance of th is section unless the law in force for the t ime being in the place in which i t was incorpora ted author ises
the t r ans fe r of i t s incorpora t ion from
tha t p lace ;
(b)	a company having the liability of its members l imited in accordance with the law of the place where it was in­ corporated, and not being a jo int stock company as defined in section forty- seven of this Act, shall not regis ter in pursuance of this section as a company l imited by s h a r e s ;
(c)	a company having the liability of its members l imited in accordance with the law of the place where i t was in­ corporated, shall not reg is te r in pur ­ suance of this section as an unlimited company ;
(d)	a company that is a joint stock com­ p a n y as defined in section forty-seven of th is Act shall not reg is te r in pursuance of this section as a company
l imited by g u a r a n t e e ;

(e)

(e) a company shall not register in pur­ suance of this section without the assent of ei ther—

(i) such number of d i rectors or

members of the governing body of the company as under the const i tut ion of the company, would const i tute a quorum at meet ings of such directors or

m e m b e r s ; or

(ii)   a majority of such of its mem­ bers as a re p resen t in person or by p roxy (in cases where proxies are allowed by the regulat ions of the company) a t a general

meet ing summoned for the

purpose .

(2) I n computing any major i ty under this section when a poll is demanded r e g a r d shall be had to the number of votes to which each member is enti t led according to the regula­ tions of the company.

60B. The reg i s t ra t ion of a company in pur­ suance of this P a r t shall not be invalid by reason only t ha t it has been effected with a view to the company being wound up .

60c. Before the reg i s t ra t ion in pursuance of
this P a r t of a company, there shall be filed with

the Reg is t ra r -Genera l the following evidence

and	documents :—
(a) evidence to the satisfaction of the Reg is t ra r -Genera l tha t the company has been incorpora ted and tha t the law in force for the t ime being in the place where the company was incorpora ted au thor i ses the t r ans fe r of i ts in­

corpora t ion f rom tha t p lace;

(b) evidence that the assent referred to in p a r a g r a p h (e) of subsection one of section 60A of this Act has been duly g iven;

(c)

(c)	a copy of the Memorandum and Art ic les of Associat ion or other the ins t rument const i tut ing or regula t ing the company, and, if such documents a re not wr i t ten in the Engl ish language
a certified t rans la t ion thereof;
(d)	in the case of a company to be regis tered as a company limited by guaran tee , the number of members with which it p roposes to regis ter .

60D. A S soon as pract icable af ter the reg is t ra ­ tion of the company under th is P a r t , and not in any case l a te r t han six mon ths af ter such reg is t ra t ion the company shall file wi th the

Regis t rar -General the following	documents :—
(a)	a list showing the names, addresses, and occupations or descr ipt ions of all persons who on a day named in the list, not being more t han th i r ty clear days before the day of such filing, were members of the company, with the addi t ion in the case of a company hav ing shares or stock, the shares or stock held by them respectively, dis­ t inguishing, in cases where the shares a r e numbered, each share by its number ;
(b)	if the company is intended to be regis­ tered as a l imited company, a s tate­ men t specifying the following par t icu­
la rs :—
(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

i t consis ts ;

(ii)   the number of shares taken and the amount paid on each s h a r e ;

(iii)   in the case of a company in­ tended to be regis tered as a company l imited by guaran tee , the pa r t i cu la r s of the amount of

the guaran tee .

60E.

60E. The l ists of members and any other par ­ t iculars re la t ing to the company required to be filed with the Reg is t ra r -Genera l shall be verified by a s t a tu to ry declara t ion of any two or more directors or other pr incipal officers of the com­ pany .

60F. The Regis t ra r -Genera l m a y require such

evidence as he thinks necessary for the purpose of sat isfying himself whether any company propos ing to be reg is te red is or is not a jo int stock company as defined in section forty-seven of this Act.

60G. W h e n a company reg is te r s in pursu­

ance of this P a r t wi th l imited liability, the word " L i m i t e d " shall form, and be regis tered as , p a r t of i ts name, and the name of the company, or, if such name is not wr i t t en in the Engl ish language, a t r ans la t ion thereof, having, as an addi t ion or otherwise, the word " L i m i t e d " as the las t word thereof shall form and be regis­ te red as the name of the company.

60H. (1) On compliance with the require­ ments of this P a r t with respect to reg is t ra t ion ,

t he Regis t ra r -Genera l shall cert ify unde r his h a n d tha t the incorpora t ion of the company apply ing for reg i s t ra t ion is changed to incor­ pora t ion as a company unde r this Act, and in the case of a l imited company tha t i t is l imited and in the case of a p r o p r i e t a r y company tha t it is a p r o p r i e t a r y company, and thereupon the

incorpora t ion of the company shall be so

changed and the company shal l be a company

incorpora ted unde r th is P a r t .

(2) The reg i s t r a t ion and incorporat ion

of a company under this P a r t —

(a) shall not create a new legal en t i ty ;

(b)	shall not in any way prejudice or affect the cont inui ty of such company;
(c)	shall not affect any property, powers,
r igh ts , au thor i t ies , duties, functions,

liabilities

liabilities or obligations of such com­ pany, or render defective any legal or other proceedings ins t i tu ted or to be ins t i tu ted by or aga ins t such company.

60I. (1) W h e r e a company is, a t the da te upon which it is regis tered in pursuance of this P a r t , a l ready regis tered unde r P a r t V I of this Act, the provis ions of this section shall have effect.

(2) Upon reg i s t ra t ion in pursuance of

this P a r t the company shall cease to be a foreign company, and shall cease to be incorpora ted outside the Sta te , and the obligation of the com­ pany under P a r t V I of this Act to file with the Regis t ra r -Genera l any documents shall cease, and its reg i s t ra t ion under P a r t V I of this Act shall be cancelled.

(3) I t shall be a sufficient compliance

with the requi rements of section 60D of this Act if the company files with the Regis t ra r -Genera l such of the documents and par t i cu la r s specified in tha t section as have not a l ready been filed by it under P a r t V I of this Act.

60J . (1) W h e n a company is regis tered in

pursuance of this P a r t , the provisions of this
section shall have effect.

(2) All provis ions contained in any memorandum and art icles of associat ion or other ins t rument const i tu t ing or regula t ing the company, shall be deemed to be conditions and regula t ions of the company, in the same manner and with the same incidents as if so much

formed under this Act, have been required to	thereof as would, if the company had been
be inser ted in the memorandum, were contained in a reg is te red memorandum, and the residue thereof were contained in regis tered art icles.
(3) All provis ions of this Act shall apply to the company and the members , contr ibutor ies , and credi tors thereof in the same manner in all respects as if it had been formed under this Act, subject as follows:—
(a)	Table A shall not apply unless adopted by special resolut ion;

(b)

(b)	in the event of the company being wound up , every person shall be a contr ibutory , in respect of the debts and liabilities of the company con­ t rac ted before reg is t ra t ion , who is liable to p a y or contr ibute to the pay­ ment of any debt or l iabili ty of the company contracted before regis­ t ra t ion , or to p a y or contr ibute to the payment of any sum for the adjustment of the r igh t s of the members among themselves in respect of any such debt or liability, or to p a y or contr ibute to the paymen t of the costs and expenses of winding up the company, so fa r as re la tes to those debts or l iabi l i t ies; but a pa s t member shall no t be liable to cont r ibute if he has ceased to be a member for one yea r or upwards before the commencement of the winding u p ; and
(c)	in the event of the company being wound up, every cont r ibutory shall be liable to contr ibute to the asse ts of the company, in the course of the winding up, all sums due f rom h im in respect of any such liability, and, in the event of the dea th or bankrup tcy of any contr ibutory, or the m a r r i a g e of any female contr ibutory, the provis ions of this Act with respect to the personal
representa t ives , to the t rus tees of
bank rup t contr ibutor ies , and to the
liabilities of husbands and wives
respect ively shall app ly ;
(d)	sections seventy-seven and one hun­ dred and for ty- three of this Act shall
no t a p p l y ;
(e)	Part IX of this Act shall not apply to or in respect of any charge created by a company before the da te of i ts r eg i s t ra t ion under this P a r t , bu t where any charge crea ted by the company

has

has by v i r tue of section one hundred and ninety-eight of this Act, been regis tered under tha t P a r t before tha t date , such reg i s t ra t ion shall continue, and shall be deemed to have been effected under section one hundred and eighty-five of this Act.

60K. (1) Subject to the provisions of this sec­ tion, a company regis tered in pursuance of this P a r t may by special resolut ion confirmed by the court a l ter the form of i ts const i tut ion by sub­ s t i tu t ing a memorandum and art icles for a deed

of sett lement.

(2) The provisions of this Act with respect to confirmation by the court and regis­ t r a t ion of an a l te ra t ion of the objects of a com­ pany shall so fa r as applicable app ly to an a l te ra t ion under this section with the following modifications:—

(a)	there shall be substituted for the copy of the a l tered memorandum requi red to be filed with the Regis t ra r -Genera l a copy of the subst i tu ted memorandum
and ar t ic les ; and
(b)	on the reg i s t ra t ion of the a l te ra t ion
being certified by the Reg i s t r a r -

General , the subst i tu ted memorandum and art icles shall apply to the company in the same m a n n e r as if i t were a company regis tered unde r this Act with

tha t memorandum and those art icles, and the company ' s deed of set t lement

shall cease to apply to the company.

(3) An a l te ra t ion unde r this section

may be made ei ther with or wi thout any al tera­ t ion of the objects of the company under this Act.

(4) In this section the expression " d e e d of s e t t l e m e n t " includes any Act or o ther ins t ru­ ment whatsoever const i tut ing or regula t ing the company, not being an Imper i a l Act, a royal

char te r , or le t ters pa ten t .

60L.

60L. The provis ions of th is Act wi th respect to s tay ing and r e s t r a in ing actions and proceed­ ings aga ins t a company a t any t ime af ter the p resen ta t ion of a pet i t ion for winding u p and before the mak ing of a winding-up order shall, in the case of a company reg is te red in pursu­ ance of this P a r t of th is Act when the applica­ tion to s tay or r e s t r a in is by a credi tor , extend to actions and proceedings aga ins t any con­

t r ibu to ry of the company.

60M. W h e r e an o rde r has been made for winding up a company reg is te red in pursuance of this P a r t , no action or proceeding shall be commenced or proceeded with aga ins t the com­ pany or any cont r ibutory of the company in respect of any debt of the company, except by leave of the court , and subject to such t e rms as the court imposes.

60N. (1) The Governor may, upon the appli­ cation of a company regis tered under this P a r t of this Act au thor i se the company to t r ans fe r i ts incorpora t ion from the S ta te upon such t e rms and subject to such conditions as the Governor may determine.

(2) W h e r e the Regis t ra r -Genera l is

satisfied t ha t the t e rms and condit ions so deter­ mined by the Governor have been complied with the Reg is t ra r -Genera l shall certify unde r his hand to t ha t effect and thereupon the company shall cease to be incorpora ted in the S ta te .

(c)	(i)	by inserting in Part I of Schedule Thirteen
in a p p r o p r i a t e numer ica l sequence the
following w o r d s : —

Sec. 6 0 H . — F o r m of certificate of regis­

t r a t i on of a company pursuant) to

P a r t V A .

(ii)   by inserting in Part II of the same schedule

in a p p r o p r i a t e numer ica l sequence the

following w o r d s : —

Sec. 60K.—Applicat ion to confirm al tera­

tion of const i tut ion of company

regis tered unde r P a r t VA.

Sec.

Sec. 60L.—Application to stay or restrain

proceedings.

Sec. 60M.—Application for leave to pro- ceed after winding-up order against company registered under Par t VA or any contributory.