Companies Ordinance 1962 (repealed) (ACT)
| 1962. | Companies. | No. 7. | 183 |
COMPANIES.
No. 7 of 1962.
An Ordinance relating to Companies.
1. This Ordinance may be cited as the Companies Ordi- short title.
nance 1962.*
2. This Ordinance shall come into operation on the first commence. day of July, One thousand nine hundred and sixty-two. | ment. |
3. This Ordinance is divided into Parts, as follows:— Part8-
Part I.—Preliminary (Sections 1-6). Part II.—Administration (Sections 7-13). Part III.—Constitution of Companies. Division 1.—Incorporation (Sections 14-18).
Division 2.—Powers (Sections 19-36).
Part IV.—Shares, Debentures and Charges. Division 1.—Prospectuses (Sections 37-47).
Division 2.—Restrictions on Allotment and
menced on 1st July, 1962.
Commencement of Business (Sections 48-53).
Division 3.—Shares (Sections 54-69).
Division 4.—Debentures (Sections 70-75).
Division 5.—Interests other than Shares, Deben-
tures, &c. (Sections 76-89).
Division 6.—Title and Transfers (Sections
90-99).
Division 7.—Registration of Charges (Sections
100-110).
• Made on 20th June, 1962; notified in the Commonwealth Gazette on 21st June, 1962, and com-
Companies. 1962.
Part V.—Management and Administration. Division 1.—Office and Name (Sections 111-
113).
Division 2.—Directors and Officers (Sections
114-134).
Division 3.—Meetings and Proceedings (Sec-
tions 135-149).
Division 4.—Register of Members (Sections
150-157).
Division 5.—Annual Return (Sections 158-
160).
Part VI.—Accounts and Audit. Division 1.—Accounts (Sections 161-164).
Division 2.—Audit (Sections 165-167).
Division 3.—Inspection (Sections 168-171).Division 4.—Special Investigations (Sections
172-180).
Part VII.—Arrangements and Reconstructions (Sections 181-186).
Part VIII.—Receivers and Managers (Sections
187-197).
Part IX.—Official Management (Sections 198-
215).
Part X.—Winding Up. Division 1.—Preliminary (Sections 216-220). Division 2.—Winding Up by the Court. Subdivision A.—General (Sections 221-
230).
Subdivision B.—Liquidators (Sections 231-240).
Subdivision C.—Committees of Inspection
(Sections 241-242).
Subdivision D.—General Powers of Court.
(Sections 243-253).
Division 3.—Voluntary Winding Up.
Subdivision A.—Introductory (Sections 254-257).
| 1962. | Companies. | No. 7. | 185 |
Subdivision B.—Provisions applicable
only to Members' Voluntary Winding Up
(Sections 258-259).
Subdivision C.—Provisions applicable
only to Creditors' Voluntary Winding Up
(Sections 260-263).
Subdivision D.—Provisions applicable to every Voluntary Wind- ing Up (Sections 264- 276).
Division 4.—Provisions applicable to every
mode of Winding Up.
Subdivision A.—General (Sections 277-
290).
Subdivision B.—Proof and Ranking of Claims (Sections 291- 292).
Subdivision C.—Effect on other Trans- actions (Sections 293- 299).
Subdivision D.—Offences (Sections 300-306).
Subdivision E.—Dissolution (Sections 307-313).
Division 5.—Winding Up of Unregistered Com-
panies (Sections 314-318).
Part XI.—Various Types of Companies, etc.
Division 1.—No Liability Companies (Sections
319-333).
Division 2.—Investment Companies (Sections
334-343).
Division 3.—Foreign Companies (Sections 344-
361).
Part XII.—General.
Division 1.—Enforcement of Act (Sections
362-373).
Division 2.—Offences (Sections 374-381).
Division 3.—Miscellaneous (Sections 382-386).
186 No. 7. Companies. 1962,
ggS&SSSof 4.—(1.) The Ordinances specified in Part I. of the First ordinances; Schedule are repealed. transitional * provisions. Sl936,̂ '33-4. (2.) The Ordinances specified in the first column of Part ofci95̂ 's6255 H- °f t n e First Schedule are amended as respectively set out in NO'532'?40'V" t n e second column of that Part of that Schedule.
S.A. No. 2196
W.A37'S'2' (3.) An Ordinance specified in the first column of Part III. NO°'XXXI, of the First Schedule, as amended by this Ordinance, may be Tat-, NO. 29 cited in the manner specified in the second column of that of 1959, s. 2. p a r t Qf t j j a t Schedule opposite to the reference to that Ordi- nance in the first column. (4.) Unless the contrary intention appears in this
Ordinance—
(a) all persons, things and circumstances appointed or created by or under the repealed Ordinance, or existing or continuing under the repealed Ordi- nance immediately before the commencement of this Ordinance, shall, under and subject to this Ordinance, continue to have the same status, operation and effect as they respectively would have had if the Ordinances specified in Part I. of the First Schedule had not been repealed; and
(b) in particular and without affecting the generality of the last preceding paragraph, the repeal effected by sub-section (1.) of this section does not disturb the continuity of status, operation or effect of any order, rule, regulation (not being a regulation made under section twenty-four of the Companies Ordinance 1954 or the Com-
panies Ordinance 1954-1961), appointment, conveyance, mortgage, charge, deed, agreement, resolution, direction, instrument, document, memorandum, articles, incorporation, nomina- tion, affidavit, call, forfeiture, minute, assign- ment, register, registration, transfer, list, licence, certificate, security, notice, compromise, arrange- ment, right, priority, liability, duty, obligation, proceeding, matter or thing made, done, effected, given, issued, passed, taken, validated, entered into, executed, lodged, accrued, incurred, existing, pending or acquired by or under the repealed Ordinance, or under any corresponding previous law of the Territory, before the com- mencement of this Ordinance.
1962. Companies. No. 7. (5.) Nothing in this Ordinance affects—
(a) Table A, or any part of Table A, in Schedule Two to the Companies Act (either as originally enacted or as altered in pursuance of any statu- tory power) or the corresponding Table in any corresponding previous law of the Territory (either as originally enacted or as so altered) so far as it applies to a company existing immediately before the commencement of this Ordinance; or
(b) Part II., or any part of Part II., of Table F in Schedule Two to the Companies Act (either as originally enacted or as altered in pursuance of any statutory power) or the corresponding pro- visions of the corresponding Table in any corre- sponding previous law of the Territory (either as originally enacted or as so altered) so far as it applies or they apply to a company existing immediately before the commencement of this Ordinance.
(6.) Any register, fund or account kept under any pro- vision of the repealed Ordinance shall be deemed to be part of any register, fund or account kept under the corresponding provision of this Ordinance.
(7.) Subject to this Ordinance, a company incorporated under the repealed Ordinance or under any corresponding previous law of the Territory shall be deemed to be incorporated under this Ordinance and this Ordinance extends and applies to the company accordingly, and any reference in this Ordi- nance, express or implied, to the date of registration of a company shall, in relation to such a company, be read as a reference to the date on which the company was registered
under the repealed Ordinance or under the corresponding
previous law of the Territory.(8.) This Ordinance applies to a corporation registered, but not incorporated, under the repealed Ordinance or any corresponding previous law of the Territory in the same manner as it applies to corporations registered but not incorporated under this Ordinance.
(9.) Where, within a period of six months before the com- mencement of this Ordinance, a prospectus was registered under the repealed Ordinance and the prospectus complied with the requirements of the repealed Ordinance, the prospectus shall, for the purposes of this Ordinance, until the expiration of a period of six months after the date on which it was registered, be deemed to be a prospectus registered under this Ordinance.
No. 7. Companies. 1962. (10.) A direction given by the Attorney-General under section thirty-two of the Companies Act and in force immediately before the commencement of this Ordinance shall, for the purposes of this Ordinance, be deemed to be a direction given by the Attorney-General under section twenty-two of this Ordinance,
(11.) Until the expiration of a period of three months after the commencement of this Ordinance, a person registered as a company auditor, or as a liquidator, under a law of a State corresponding with this Ordinance shall be deemed to be a registered company auditor or a registered liquidator, as the case may be, for the purposes of this Ordinance.
(12.) Where, before the date of commencement of this Ordinance, an inspector had been appointed to investigate the affairs of a company under Part IV. of the Companies Ordinance 1954-1961 and the investigation had not been com- pleted before that date, that Part shall continue to apply to and in relation to the investigation as if this Ordinance had not been made.
(13.) The provisions of this Ordinance with respect to winding up, other than the provisions of Subdivision E of Division 4 of Part X., do not apply to any company the winding up of which was commenced before the commencement of this Ordinance and such a company shall be wound up in the same manner and with the same incidents as if this Ordinance had not been made, and, for the purposes of the winding up, the law under which the winding up commenced shall be deemed to remain in force.
(14.) In the application of paragraph (b) of sub-section (1.) of section nine of this Ordinance to a person who became indebted to a corporation before the commencement of this Ordinance, his indebtedness shall, until the expiration of five
years after the commencement of this Ordinance, be disregarded
if—(a) the ordinary business of the corporation includes to a substantial degree the lending of money and the indebtedness was incurred in the ordinary course of that business; and
(b) the indebtedness would not have disqualified that
person from appointment as an auditor of the
corporation if this Ordinance had not been made.
(15.) Paragraph (c) of sub-section (1.) of section nine of
this Ordinance does not apply to any person in relation to a pro-
prietary company until the expiration of twelve months after the
commencement of this Ordinance if he was appointed an auditor
of that company before the commencement of this Ordinance.
| 1962. | Companies. | No. 7. | 189 |
(16.) Notwithstanding the repeal effected by sub-section (1.) of this section, the provisions of sub-sections (2.) and (4.) of section fifteen of the Companies Ordinance 1931-1949 con- tinue to apply in relation to instruments, documents and certified copies handed over in pursuance of that section and in relation to the memorandum or articles, or a resolution or instrument, of a company to which that section applied.
(17.) In the application of the Trade Union Act 1881 of the State of New South Wales as a law of the Territory, the reference in section five of that Act to " The Companies Act" shall be read as a reference to this Ordinance.
(18.) The provisions of this section are in addition to and not in derogation of the provisions of the Interpretation Ordi- nance 1937-1959.
5.—(1.) In this Ordinance, unless the contrary intention
appears— " annual general meeting ", in relation to a company, interpretation,
means a meeting of the company required to be UK., a & 12 held by section one hundred and thirty-six of this ss. 154,455. '
rs A- N.S.W. ss. 6, Ordinance;
107,137. Vic. s. 3. Qld. s. 5. S.A. s. 8. Tas. s. 3.
annual return (a) in relation to a company having a share capital—the return required to be made by section one hundred and fifty-eight of this Ordinance; and means— W.A. s. 3. (b) in relation to a company not having a share capital—the return required to be made by section one hundred and fifty-nine of this Ordinance,
and includes any document accompanying the
return;
" articles " means articles of association;
" banking corporation" means a bank as defined insection five of the Banking Act 1959;
" books" includes accounts, deeds, writings and
documents;
" branch register " means—
(a) in relation to a company—a branch register
of members of the company kept in
Companies. 1962. pursuance of section one hundred and
fifty-seven of this Ordinance; and(b) in relation to a foreign company—a branch register of members of the company kept in pursuance of section three hundred and fifty-four of this Ordinance;
" calendar year " means a period of twelve months com- mencing on the first day of January;
" certified ", in relation to a copy of a document, means certified in the prescribed manner to be a true copy of the document and, in relation to a translation of a document, means certified in the prescribed manner to be a correct translation of the document into the English language;
" charge " includes a mortgage and an agreement to give or execute a charge or mortgage whether upon demand or otherwise;
" company " means a company incorporated pursuant to this Ordinance or pursuant to any corresponding previous law of the Territory;
" company having a share capital " includes an unlimited company with a share capital;" company limited by guarantee" means a company formed on the principle of having the liability of its members limited by the memorandum of the company to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up;
" company limited by shares " means a company formed members limited by the memorandum of the company to the amount (if any) unpaid on the shares respectively held by them; on the principle of having the liability of its " contributory", in relation to a company, means a person liable to contribute to the assets of the company in the event of its being wound up, and includes the holder of fully paid shares in the company and, prior to the final determination of the persons who are contributories, includes any person alleged to be a contributory; " corporation" means any body corporate whether
formed or incorporated in the Territory or outside
| 1962. | Companies. | No. 7. | 191 |
the Territory, and includes a foreign company, but
does not include—(a) a body corporate incorporated within the Commonwealth that is a public authority or an instrumentality or agency of the Crown;
(b) a corporation sole;
(c) a society registered under the Co-operative
Societies Ordinance 1939-1962; or
{d) an association, society, institution or body incorporated under the Associations Incorporation Ordinance 1953-1962;
" creditors' voluntary winding up " means a winding up under Division 3 of Part X., other than a members' voluntary winding up;
" debenture " includes debenture stock, bonds, notes and any other securities of a corporation, whether constituting a charge on the assets of the corporation or not;
" default penalty " means a default penalty within the meaning of section three hundred and eighty of this Ordinance;
" director " includes any person occupying the position of director of a corporation, by whatever name called, and any person in accordance with whose directions or instructions the directors of a corporation are accustomed to act;
" document" includes summons, order and other legal process, and notice and register;
" emoluments ", in relation to a director or auditor of a company, includes any fees, percentages or other payments made (including the money value of any allowances or perquisites), or consideration given, directly or indirectly, to the director or auditor by the company or by a holding company or a subsidiary of that company, whether made or given to him in his capacity as a director or auditor or otherwise in connexion with the affairs of that company or of the holding company or the subsidiary; " exempt proprietary company" means a proprietary company no share in which is, by virtue of sub- sections (7.) and (8.) of this section, deemed to be owned by a public company;
" expert " includes engineer, valuer, accountant and any other person whose profession or reputation gives authority to a statement made by him;
" filed " means filed under this Ordinance or any corre- sponding previous law of the Territory;
Companies. 1962. " financial year ", in relation to a corporation, means the period in respect of which any profit and loss account of the corporation laid before it in general meeting is made up, whether that period is a year or not;
" foreign company " means—
(a) a company, corporation, society, association or other body incorporated outside the Territory; or
(b) an unincorporated society, association or other body which, under the law of its place of origin, may sue or be sued, or hold property in the name of the secretary or other officer of the body or association duly appointed for that purpose, and which does not have its head office or principal place of business in the Terri- tory;
" limited company " means a company limited by shares or by guarantee or both by shares and guarantee, but does not include a no liability company;
" lodged " means lodged under this Ordinance or any corresponding previous law of the Territory;
" manager ", in relation to a company, means the prin- cipal executive officer of the company for the time being by whatever name called and whether or not he is a director;
" marketable securities" means debentures, funds,
stocks, shares or bonds of any Government or local
government authority or of any corporation or society, and includes any right or option in respect of shares in any corporation and any interest as defined in sub-section (1.) of section seventy-six of this Ordinance;
" members' voluntary winding up " means a winding up under Division 3 of Part X. where a declaration has been made and lodged in pursuance of section two hundred and fifty-seven of this Ordinance;
" memorandum " means memorandum of association;
" minimum subscription", in relation to any sharesoffered to the public for subscription, means the amount stated in the prospectus relating to the offer in pursuance of paragraph (a) of clause 4 of the
| 1962. | Companies. | No. 7. | 193 |
Fifth Schedule as the minimum amount that, in the opinion of the directors, must be raised by the issue of the shares so offered;
" mining company " means a company the sole objects of which are mining purposes;
" mining purposes " means purposes of prospecting for or obtaining by any mode or method, or of selling or otherwise disposing of, ores, metals, minerals and all products of mining, and includes all or any of such purposes whether carried on in the Territory or elsewhere and purposes necessary for or inciden- tal to the foregoing purposes, but does not include quarrying operations for the sole purpose of obtain- ing stone for building, roadmaking or similar purposes;
" no liability company " means a company in which the acceptance of a share does not constitute a contract to pay calls;
" officer ", in relation to a corporation, includes—
(a) a director, secretary or employee of the cor-
poration;
(b) a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instru- ment; and
(c) a liquidator of the corporation appointed in
a voluntary winding up,
but does not include—
(d) a receiver who is not also a manager; (e) a receiver and manager appointed by the
Court; or
(/) a liquidator appointed by the Court or by
the creditors;
" official liquidator " means a person appointed as an official liquidator under section eleven of this Ordinance;
" official manager" means a person appointed as an official manager under Part IX.;" principal register ", in relation to a company, means the register of members of the company kept in pur- suance of section one hundred and fifty-one of this Ordinance;
" printed " includes type-written, lithographed or repro- duced by any mechanical means;
2492/64.—I.—7
Companies. 1962. " profit and loss account " includes income and expendi- ture account, revenue account and any other account showing the results of the business of a corporation for a period;
" promoter ", in relation to a prospectus issued by or in connexion with a corporation, means a promoter of the corporation who was a party to the preparation of the prospectus or of any relevant portion thereof, but does not include a person by reason only of his acting in a professional capacity;
" proprietary company " means—
(a) a company that, immediately prior to the
commencement of this Ordinance, was aproprietary company under the provisions
of the repealed Ordinance; ,
(b) a company incorporated as a proprietary company by virtue of section fifteen of this Ordinance; or
(c) a company converted into a proprietary company pursuant to the provisions of sub-section (1.) of section twenty-six of this Ordinance,
being a company that has not ceased to be a pro- prietary company under section twenty-six or twenty-seven of this Ordinance;
" prospectus" means a prospectus, notice, circular, advertisement or invitation inviting applications or offers from the public to subscribe for or purchase, or offering to the public for subscription or purchase, any shares in or debentures of, or any units of shares in or units of debentures of, a corporation or
proposed corporation;
" public company" means a company other than a proprietary company;
" registered " means registered under this Ordinance or
any corresponding previous law of the Territory;
" registered company auditor " means a person registered
as such under section nine of this Ordinance and,
in relation to a corporation that is not a company,
includes a person qualified to act as the auditor ofthe corporation under the law of the place in which
the corporation is incorporated;
" registered liquidator" means a registered company auditor who has been registered by the Board as a liquidator;
| 1962. | Companies. | No. 7. | 195 |
" resolution for voluntary winding u p " means the resolution referred to in section two hundred and fifty-four of this Ordinance;
" rules" means Rules of Court made under section twenty-eight of the Australian Capital Territory Supreme Court Act 1933-1960;
" Schedule " means Schedule to this Ordinance;
" share " means share in the share capital of a corpora-
tion, and includes stock except where a distinction
between stock and shares is expressed or implied;
" statutory meeting " means the meeting referred to in section one hundred and thirty-five of this Ordi- nance;
" statutory report" means the report referred to in section one hundred and thirty-five of this Ordinance;
" Table A " means Table A in the Fourth Schedule;
" Table B " means Table B in the Fourth Schedule;" the Board " means the Companies Auditors Board con-
stituted under this Ordinance;
" the Companies Act" means the Companies Act, 1936 of the State of New South Wales in its application in the Territory by force of, and as modified by, the Companies Ordinance 1954 or the Companies Ordinance 1954-1961;
" the Court " means the Supreme Court or the Judge of the Supreme Court;
" the Registrar " means the Registrar of Companies hold- Acting Registrar of Companies and a Deputy ing office under this Ordinance, and includes an Registrar of Companies so holding office;
" the repealed Ordinance " means the Companies Ordi- nance 1954 or the Companies Ordinance 1954- 1961, and includes the Companies Act;
" the Territory " or " the Australian Capital Territory " includes the Territory accepted by the Common- wealth in pursuance of the Jervis Bay Territory Acceptance Act 1915;
" this Ordinance " includes the regulations;
" unit ", in relation to a share, debenture or other interest,
means any right or interest therein, by whatever term
called;
No. 7. Companies. 1962. " unlimited company " means a company formed on the principle of having no limit placed on the liability of its members.
(2.) For the purposes of this Ordinance, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors act on advice given by him in a professional capacity.
(3.) For the purposes of this Ordinance, a statement included in a prospectus or statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form and con- text in which it is included.
(4.) For the purposes of this Ordinance, a statement shall be deemed to be included in a prospectus or statement in lieu of prospectus if it is contained in a report or memorandum appear- ing on the face thereof or it is by reference incorporated therein or issued therewith.
(5.) For the purposes of this Ordinance, an invitation to the public to deposit money with or to lend money to a corpora- tion shall be deemed to be an invitation to subscribe for or purchase debentures of the corporation.
(6.) A reference in this Ordinance to offering shares or debentures to the public shall, unless the contrary intention appears, be construed as including a reference to offering shares or debentures to any section of the public, whether selected as clients of the person issuing the prospectus or in any other manner, but a bona fide offer or invitation with respect to shares or debentures shall not be deemed to be an offer to the public if it is—
(a) an offer or invitation to enter into an underwriting agreement; (b) made to a person whose ordinary business it is to buy or sell shares or debentures, whether as principal or agent;
(c) made to existing members or debenture holders of a corporation and relates to shares in or debentures of that corporation; or
(d) made to existing members of a company within the meaning of section two hundred and seventy of this Ordinance and relates to shares in the cor- poration within the meaning of that section.
(7.) For the purposes of the definition of "exempt pro-
prietary company" in sub-section (1.) of this section, a share
in a proprietary company shall be deemed to be owned by a
| 1962. | Companies. | No. 7. |
public company if any beneficial interest in the share is held,
directly or indirectly, by—
(a) a public company;
(b) a proprietary company a beneficial interest in a
share in which is held, directly or indirectly, by a
public company; or
(c) a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by—
(i) a public company; or
(ii) another proprietary company a beneficialinterest in a share in which is held, directly or indirectly, otherwise than by a natural person.
(8.) For the purposes of, but without limiting the generality of, the last preceding sub-section—
(a) a reference in that sub-section to a public company shall be read as including a reference to a foreign company other than a foreign company that (whether or not Division 3 of Part XI. applies to it) is a foreign company of a kind referred to in sub-section (5.) of section three hundred and forty-eight of this Ordinance;
(b) a reference in that sub-section to a public company or to a proprietary company shall be read as not including a reference to a company in respect of which a licence under section twenty-four of this Ordinance, or under any corresponding previous
law of the Territory, is in force;
(c) where a corporation holds a beneficial interest in a
redeemable preference share in a proprietary
company and—-
(i) no voting rights attach to the share; or
(ii) any voting rights attaching to the shareare exercisable only in special circum- stances and do not include the right (except where any dividend in respect of the share is in arrears) to vote at an election of directors of the proprietary company,
the share shall be treated as if the beneficial interest in the share were held by a natural person; and
198 No. 7. Companies. 1962.
(d) a person (including a corporat ion) shall be deemed to hold a beneficial interest in a sha re— ( i ) if that person, either alone or together with other persons, is entitled (otherwise than as trustee for, on behalf of or on account of, another person) to receive, directly or indirectly, any dividends in respect of the share or to exercise, or to control the exercise of, any rights attaching to the share; or
( i i ) if that person, being a corporation, holds any beneficial interest in a share of another corporation which holds, or a subsidiary of which holds, any
beneficial interest in that first- mentioned share.
( 9 . )
shall be read as including a reference to a law of the State of
New South Wales in its application in the Terri tory.A reference in this Ordinance to a law of the Terri tory
Meanings of 6 . — ( 1 . ) For the purposes of this Ordinance , a corporat ion
company8-̂ shall, subject to the provisions of sub-section ( 3 . ) of this section, complny •• and be deemed to be a subsidiary of another corporation if—
company". {a) that other corporation—
U K s 1 5 4 - (i) controls the composition of the board of
vic's.'3%). ' directors of the first-mentioned S.A.' s! 146! corporation;
Ta£s.V(5)!
( i i ) controls more than half of the voting power of the first-mentioned corpora- tion; or
(h i ) holds more than half of the issued share capital of the first-mentioned corpora- tion (excluding any part thereof which carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the first-mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary.
(2.) For the purposes of the last preceding sub-section, the composition of a corporation's board of directors shall be deemed to be controlled by another corporation if that other corporation by the exercise of some power exercisable by it without the consent or concurrence of any other person can
| 1962. | Companies. | No. 7. |
appoint or remove all or a majority of the directors, and for the purposes of this provision that other corporation shall be deemed to have power to make such an appointment if—
(a) a person cannot be appointed as a director without the exercise in his favour by that other corpora- tion of such a power; or
(b) a person's appointment as a director follows neces- sarily from his being a director or other officer of that other corporation.
(3.) In determining whether one corporation is a subsidiary of another corporation—
(a) any shares held or power exercisable by that other corporation in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d) of this sub-
section, any shares held or power exercisable—
(i) by any person as a nominee for that other
corporation (except where that othercorporation is concerned only in a
fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary which is concerned only in a fiduciary capacity,
shall be treated as held or exercisable by that
other corporation;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned corporation, or of a trust deed for securing any issue of such debentures, shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for, that other corporation or its sub- sidiary (not being held or exercisable as mentioned in paragraph (c) of this sub-section) shall be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
(4.) A reference in this Ordinance to the holding company of a company or other corporation shall be read as a reference to a corporation of which that last-mentioned company or corporation is a subsidiary.
200 No. 7. Companies. 1962. (5.) Where a corporation—
(a) is the holding company of another corporation;
(b) is a subsidiary of another corporation; or(c) is a subsidiary of the holding company of another
corporation,
that first-mentioned corporation and that other corporation shall, for the purposes of this Ordinance, be deemed to be related to each other.
PART II.—ADMINISTRATION.
Registrar or 7.—(1-) For the purposes of this Ordinance, the companies, &c Attorney-General may appoint—
N.S.W.s.7. ' _ . . „
X£-s-4o ,o. W a Registrar of Companies;
Qld. ss. 8, 381A. \ / e r >
w .̂ss.339i. (b) an Acting Registrar of Companies to act in the office of Registrar of Companies during a vacancy in that office or during the illness or absence of the Registrar of Companies; and (c) such Deputy Registrars of Companies and other officers as the Attorney-General considers necessary. (2.) An Acting Registrar of Companies while acting in the office of Registrar of Companies has all the powers, and shall perform all the duties and exercise all the functions, of the Registrar of Companies.
(3.) A Deputy Registrar of Companies may, subject to the directions of the Registrar, exercise any power or perform any function of the Registrar.
(4.) The appointment of a Deputy Registrar of Companies
does not affect the exercise of a power or the performance of a
function by the Registrar of Companies.(5.) The Registrar shall have and use as the seal of his office a seal in such form as the Attorney-General, by notice in the Gazette, determines.
(6 . ) All courts, judges and persons acting judicially shall take judicial notice of—
(a) the signature of any person who holds or has held the office of Registrar, Acting Registrar or Deputy Registrar and of the fact that that person holds or has held that office; and
(b) the seal of the Registrar.
| 1962. | Companies. | No. 7. |
(7.) For the purpose of ascertaining whether a corporation is complying with the provisions of this Ordinance, the Registrar or a person authorized by him may inspect, and may require an officer of the corporation to produce to him, any book, minute book, register or record required by or under this Ordinance to be kept by the corporation.
(8.) A person shall not make an inspection in pursuance of the last preceding sub-section unless he has made a declaration in the prescribed form.
(9.) A person—
(a) who makes an inspection in pursuance of sub-section (7.) of this section before he has made a declara- tion referred to in the last preceding sub-section; or (/>) who after making such a declaration, except for the purposes of this Ordinance or in the course of any criminal proceedings, makes a record of, or divulges or communicates to any other person, any information that he has acquired by reason of such an inspection,
is guilty of an offence against this Ordinance.
Penalty: One hundred pounds.
(10.) A person shall comply with any requirement made in pursuance of sub-section (7.) of this section by the Registrar or a person authorized by the Registrar.
Penalty: One hundred pounds.
| that person is exercising any of the powers referred to in sub- | or person authorized by the Registrar while the Registrar or (11.) A person shall not obstruct or hinder the Registrar |
| section (7.) of this section. |
Penalty: One hundred pounds.
(12.) There shall be paid to the Registrar—
(a) the fees specified in the Second Schedule; and
(b) such other fees as are prescribed.
(13.) Where a fee is payable to the Registrar for or in respect of the lodging of a document with the Registrar, the document shall be deemed not to have been lodged until the fee has been paid to the Registrar.
202 No. 7. Companies. 1962.
Companies 8.—(1.) For the purposes of this Ordinance, there shall be Auditors Board. a Companies Auditors Board, the functions of which are— Vic. s. 5. S.A. ss. 370- (a) to report to the Attorney-General on any matters 371. W.A. ss. 137- relating to the operation of Part VI. which the 138, 402, 406. Tas. s. 138.
Board has investigated either on its own motion or at the request of the Attorney-General; and
(6) to effect and control the registration of company
auditors and liquidators as hereinafter prescribed.(2.) The Board shall consist of three persons appointed by the Attorney-General of whom—
(c) one shall be a duly qualified legal practitioner of not less than five years' standing who shall be the Chairman of the Board;
(b) one shall be selected from a panel of three persons, being persons resident in the Territory, nominated by the New South Wales State Coun- cil of The Institute of Chartered Accountants in Australia; and
(c) one shall be selected from a panel of three persons, being persons resident in the Territory, nomi- nated by the Divisional Council of the New South Wales Division of the Australian Society of Accountants.
(3.) A member of the Board may, with the approval of the Attorney-General, appoint a person to be his deputy, and the deputy shall hold office during the pleasure of the Attorney- General.
(4.) A person appointed to be deputy of the Chairman of the Board shall be a duly qualified legal practitioner of not less
than five years' standing.
(5.) The deputy of a member of the Board is, in the event of the absence of the member of whom he is the deputy from a meeting of the Board, entitled to attend that meeting and, when so attending, shall be deemed to be a member of the Board and, in the case of the deputy of the Chairman of the Board, shall be deemed to be the Chairman of the Board.
(6.) An appointment of a deputy and an act done by him as such shall not be questioned on the ground that the occasion for the exercise of his powers or functions had not arisen or had ceased.
| 1962. | Companies. | No. 7. | 203 |
(7.) At a meeting of the Board, two members constitute a
quorum.
(8.) A member of the Board holds office for such period, not exceeding three years, as is fixed by the terms of his appoint- ment, but is eligible for reappointment.
(9.) If a member of the Board—
(a) is absent, without leave of the Board, from three consecutive meetings of the Board;
(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit;
(c) is convicted of an offence involving fraud or dis- honesty punishable on conviction by imprison- ment for three months or more; or
(d) becomes of unsound mind,
the Attorney-General shall, by notice in the Gazette, declare that the office of the member is vacant, and thereupon the office shall be deemed to be vacant.
(10.) A member of the Board may resign his office by writing under his hand addressed to the Attorney-General.
(11.) A member of the Board, and the deputy of a member of the Board, shall be paid such fees and allowances as are prescribed.
9.—(1.) A person shall not knowingly consent to be appointed, and shall not knowingly act, as auditor of a company | Company |
| liquidators. |
| and shall not prepare, for or on behalf of a company, any report | Vic. s. 5. S.A. ss. 370- |
| required by this Ordinance to be prepared by a registered com- | 371. |
| W.A. ss. 137- | |
| pany auditor— | 138, 402, 456. Tas. s. 138. |
(a) if he is not a registered company auditor;
(b)
if he is indebted to the company or to a corporation that is deemed to be related to that company by virtue of sub-section (5.) of section six of this Ordinance in an amount exceeding Five hundred pounds; or
(c) except where the company is an exempt proprietary
company, if he is—
(i) an officer of the company;
No. 7. Companies. 1962. (ii) a partner, employer or employee of an officer of the company; or
(iii) a partner or employee of an employee of an officer of the company.
Penalty: One hundred pounds.
(2.) For the purposes of the last preceding sub-section, a person shall be deemed to be an officer of a company if he is an officer of a corporation that is deemed to be related to the company by virtue of sub-section (5.) of section six of this Ordinance or, except where the Board if it thinks fit in the cir- cumstances of the case directs otherwise, he has, at any time within the preceding period of twelve months, been an officer or promoter of the company or of such a corporation.
(3.) For the purposes of this section, a person shall not be deemed to be an officer of a company by reason only of his having been appointed as auditor of a corporation or, for any purpose relating to taxation, a public officer of a corporation.
(4.) A firm shall not consent to be appointed, and shall not act, as auditor of a company and shall not prepare, for or on behalf of a company, any report required by this Ordinance to be prepared by a registered company auditor unless—
(a) all the partners of the firm resident in a State or Territory of the Commonwealth are registered company auditors and, where the business name under which they are carrying on business is not registered under the Business Names Ordinance 1956-1962, a return in the prescribed form showing the full names and addresses of all the partners of the firm has been lodged with the Registrar; and
(b) no partner is disqualified under the provisions of
paragraph (b) or (c) of sub-section (1.) of this section from acting as the auditor of the
company.
(5.) If a firm contravenes the last preceding sub-section, each partner of the firm is guilty of an offence against this Ordinance.
Penalty: One hundred pounds.
(6.) A company or person shall not appoint a person as auditor of a company unless that last-mentioned person has, prior to such appointment, consented in writing to act as such auditor, and a company or person shall not appoint a firm as auditor of a company unless the firm has, prior to such appoint- ment, consented in writing under the hand of at least one partner of the firm to act as such auditor.
| 1962. | Companies. | No. 7. |
(7.) A person—
(a) who is a member of The Institute of Chartered Accountants in Australia or the Australian Society of Accountants or any other body estab- lished outside Australia that is, on the recom- mendation of the Board, prescribed as a body for the purposes of this sub-section;
(b) who is a registered company auditor in any State
or in any other Territory of the Commonwealth;
(c) who holds a degree or diploma from any University
in the Commonwealth and has passed examina-
tions in the course for such 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' durationand in commercial law (including company law)
of two years' duration;
(d) who holds the certificate in accountancy of a prescribed Institute of Technology or Technical College; or
(e) who has satisfied the Board that he has a thorough knowledge of accounts and auditing and of the provisions of this Ordinance and of such other subjects as are prescribed,
is, if the Board is satisfied with his general conduct and character, entitled on payment of the prescribed fee to be registered as a company auditor or, if he is a registered company auditor, to the renewal of his registration.
(8.) A registered company auditor may apply to the Board for registration as a liquidator and the Board, if it is satisfied | as to his experience and capacity, shall on payment of the |
| prescribed fee register such person as a registered liquidator. | |
(9.) Every registration, including a renewal of registration, of a company auditor or liquidator shall remain in force until the thirty-first day of March in the year next following the year in which the registration was effected or deemed to have been effected. | |
(10.) The Board, after giving notice to any person who is a registered company auditor or a registered liquidator, may inquire into the conduct and character and the abilities of the person, but shall not do so without giving to the person an opportunity of being heard. |
206 No. 7. Companies. 1962. (11.) For the purposes of an inquiry pursuant to the last preceding sub-section, the Chairman of the Board may, by notice in the prescribed form, require any person to appear at the inquiry and to give evidence on oath or affirmation (which the Chairman is hereby authorized to administer) as to any matter in relation to the subject matter of the inquiry and the notice may require the production of all or any books and documents in the custody or under the control of that person.
(12.) If, at any inquiry by the Board, a person who is a registered company auditor or a registered liquidator is found to have been guilty of any 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 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 following ways:—
(a) admonish or reprimand him;
(b) require him to pay the costs of and incidental to
the inquiry by the Board;
(c) require him to give an undertaking to abstain from some specific conduct;
(d) impose on him a fine not exceeding Fifty pounds; (e) suspend his registration for a period not exceeding
one year;
(/) cancel his registration and order the removal of his name from the register.
(13.) The amount of any fine or costs so imposed may be recovered in any court of competent jurisdiction as a debt due to the Commonwealth.
from such decision and thereupon the Court may confirm, vary within three months from the date thereof, appeal to the Court (14.) A person aggrieved by a decision of the Board may, or reverse the decision and, if it thinks fit, may direct the Board to register any person whom the Board has refused to register.
(15.) Where the registration of a person has been cancelled under this section, that person shall not be re-registered without the express direction of the Board.
Disqualifies 10 .—(1 . ) Subject to this section, a person shall not, except
liquidators. with the leave of the Court, consent to be appointed, and shall vie.». 202 not act, as liquidator of a company— SLA. ss.293, (f l) if he is not a registered liquidator or a corporation
WA S 184
- - - authorized by law to act as a liquidator;
| 1962. | Companies. | No. 7. | 207 |
(b)
if he is indebted to the company or to a corporation that is deemed to be related to the company by virtue of sub-section (5.) of section six of this Ordinance in an amount exceeding Five hundred pounds; or
(c) if he is—
(i) an officer of the company;
(ii) a partner, employer or employee of an
officer of the company; or
(iii) a partner or employee of an employee of an officer of the company.
Penalty: One hundred pounds.
(2.) Paragraph (a) of the last preceding sub-section does not apply to a members' voluntary winding up of an exempt proprietary company, and paragraph (c) of that sub-section does not apply—
(a) to a members' voluntary winding up; or
(b) to a creditors' voluntary winding up if, by a resolu-tion carried by a majority of the creditors in number and value present in person or by proxy and voting at a meeting of which seven days' notice has been given to every creditor stating the object of the meeting, it is determined that that paragraph shall not so apply.
(3.) For the purposes of sub-section (1.) of this section, a person shall be deemed to be an officer of a company if he is an officer of a corporation that is deemed to be related to the company by virtue of sub-section (5.) of section six of this Ordinance or has, at any time within the preceding period of twenty-four months, been an officer or promoter of the company
| pany unless he has, prior to such appointment, consented in | or of such a corporation. (4.) A person shall not be appointed as liquidator of a com- |
| writing to act as such liquidator. | |
| (5.) Nothing in this section affects any appointment of a liquidator made before the commencement of this Ordinance. |
11.—(1.) For the purpose of conducting proceedings in official
| Attorney-General may from time to time appoint as many $ V , 8 w | winding up companies and assisting the Court therein, the N'SIW!"^', |
registered liquidators as he thinks fit to be official liquidators, and may require of each of them such security as is prescribed for the due fulfilment of his duties. |
208 No. 7. Companies. 1962. (2.) Where security given under the last preceding sub- section is a bond to the Commonwealth with or without sureties, the Court may, on application and on being satisfied that any condition of the bond has been broken, order the Master of the Court to assign the bond to any person named in the order.
(3.) The person to whom the bond is assigned, or his executors or administrators, shall be entitled to sue upon the bond in his or their own name or names as if the bond had in the first instance been given to him or them and shall be entitled to receive thereon as trustee for all persons interested the full amount recoverable in respect of any breach of the condition of the bond.
Registers. 12.—(1.) The Registrar shall, subject to this Ordinance, dements, keep such registers as he considers necessary in such form as he
reiurns, to. t h i n k s fit. N.S.W.
viC?s9,6?78* (2.) A person may, on payment of the prescribed fee— 377.' ' (a) inspect any document filed or lodged with the
32o.' "• ' Registrar; or W.A. ss. 392
3?6,4oi'. ' (b) require a certificate of the incorporation of any company or any other certificate issued under this Ordinance or a copy of or extract from any document kept by the Registrar to be given or certified by the Registrar. (3.) A copy of or extract from any document filed or lodged at the office of the Registrar, or a certificate issued by the Registrar, certified to be a true copy or extract under the hand and seal of the Registrar is, in any proceedings, admissible in evidence as of equal validity with the original document or
seal of the Registrar that a requirement of this Ordinance speci- certificate. (4.) In any proceedings, a certificate under the hand and fied in the certificate— (a) had or had not been complied with at a date or within a period specified in the certificate; or
(b) had been complied with upon a date specified in
the certificate but not before the date,
is evidence of the matters specified in the certificate.
(5.) If the Registrar is of opinion that any document sub- mitted to him—
(a) contains matter contrary to law;
(b) by reason of any omission or misdescription has not
been duly completed;
| 1962. | Companies. | No. 7. |
(c) does not comply with the requirements of this
Ordinance; or
(d) contains any error, alteration or erasure,
he may refuse to register or receive the document and request that the document be appropriately amended or completed and re-submitted or that a fresh document be submitted in its place.
(6.) A person aggrieved by the refusal of the Registrar to register any corporation or to register or receive any document, or by any other act or decision of the Registrar, may appeal to the Court and the Court may confirm the refusal, act or decision or give such directions in the matter as seem proper or otherwise determine the matter, but this sub-section does not apply to any act or decision of the Registrar—
(a) in respect of which any provision in the nature of an appeal or review is expressly provided in this Ordinance; or
(b) which is declared by this Ordinance to be conclusive or final or is embodied in any document declared by this Ordinance to be conclusive evidence of any act, matter or thing.
(7.) The Registrar may, if in his opinion it is no longer necessary or desirable to retain them, destroy, or give to the National Library of Australia—
(a) in the case of any corporation—
(i) any return of allotment of shares for cash which has been lodged or filed for not less than two years;
(ii) any annual return or balance sheet that
has been lodged or filed for not lessthan seven years or any document
creating or evidencing a charge, or the complete or partial satisfaction of a charge, where a memorandum of satisfaction of the charge has been registered for not less than seven years; or
(iii) any other document (other than the memorandum and articles or any other document affecting them) which has been lodged, filed or registered for not less than fifteen years; or
(b) in the case of a corporation that has been dissolved or has ceased to be registered for not less than fifteen years, any document lodged, filed or registered.
210 No. 7. Companies. 1962. (8.) If a corporation or person, having made default in complying with—
(a) any provision of this Ordinance or of any other law which requires the lodging or filing in any man- ner with the Registrar of any return, account or other document or the giving of notice to him on any matter; or
(b) any request of the Registrar to amend or complete and re-submit any document or to submit a fresh document,
fails to make good the default within fourteen days after the service on the corporation or person of a notice requiring it to be done, the Court or the Court of Petty Sessions may, on an application by any member or creditor of the corporation or by the Registrar, make an order directing the corporation or any officer thereof or such person to make good the default within such time as is specified in the order.
(9.) Any such order may provide that all costs of and incidental to the application shall be borne by the corporation or by any officers of the corporation responsible for the default or by such person.
(10.) Nothing in this section shall prejudice the operation of any law imposing penalties on a corporation or its officers or such person in respect of any such default as aforesaid.
Reiodging 13.—(1.) If, in the case of any corporation incorporated or registered registered in the Territory, the memorandum or articles or any documents. other document relating to the corporation filed or lodged with
S.A.S. 378. the Registrar has been lost or destroyed, the corporation may jit's*'™' apply to the Registrar for leave to lodge a copy of the document
as originally filed or lodged.
(2.) On such application being made the Registrar may
direct notice thereof to be given to such persons and in such
manner as he thinks fit.
(3.) The Registrar, upon being satisfied—
(a) that the original document has been lost or
destroyed;
(b) of the date of the filing or lodging thereof with the
Registrar; and
(c) that a copy of such document produced to the Registrar is a correct copy,
may certify upon such copy that he is so satisfied and direct that such copy be lodged in the manner required by law in respect of the original.
1962. Companies. No. 7. 211
(4.) Upon the lodgment the copy has, from such date as is mentioned in the certificate as the date of the filing or lodging of the original with the Registrar, the same force and effect for all purposes as the original.
(5.) The Court may, by order made upon application by any person aggrieved and after notice to any other person as directed by the Court, confirm, vary or rescind the certificate, and the order may be lodged with the Registrar and shall be registered by him, but no payments, contracts, dealings, acts or things made, had or done in good faith before the registration of such order and upon the faith of and in reliance upon the certificate shall be invalidated or affected by such variation or rescission.
(6.) A fee is not payable upon the lodging of a document lodged in pursuance of this section.
PART III.—CONSTITUTION OF COMPANIES.
Division 1.—Incorporation.
14.—(1.) Subject to this Ordinance, any five or more Formation of prietary company) any two or more persons, associated for any yC8;9',, | persons, or (where the company to be formed will be a pro- "°^n i e s" |
lawful purpose may, by subscribing their names to a memoran- QUI-M. 12-13. dum and complying with the requirements of this Ordinance W.AV 11-12. as to registration, form an incorporated company. |
(2.) A company may be—
(a) a company limited by shares;
(b) a company limited by guarantee; (c) a company limited both by shares and by guarantee;
(d) an unlimited company; or
(e) in the case of a mining company, a no liability company.
(3.) No association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any business which has for its object the acquisition of gain by the association or partnership or the individual members thereof unless it is incorporated under this Ordinance or is formed in pursuance of some other Ordinance or letters patent.
15.—(1.) A company having a share capital (other than a proprietary company if its memorandum or articles— N.S.W. S. 37 no liability company) may be incorporated as a proprietary «™pany-
r J Vic. s. 13. (a) restrict the right to transfer its shares; sAiiitr W.A. s. 37. Tas. s. 13.
212 No. 7. Companies. 1962. (b) limit to not more than fifty the number of its mem- bers (counting joint holders of shares as one person and not counting any person in the employment of the company or of its subsidiary or any person who, while previously in the employment of the company or of its subsidiary, was and thereafter has continued to be a member of the company);
(c) prohibit any invitation to the public to subscribe
for shares in or debentures of the company; and
(d) prohibit any invitation to the public to deposit
money with the company for fixed periods orpayable at call, whether bearing or not bearing
interest.
(2.) A proprietary company may, by special resolution, alter any restriction on the right to transfer its shares included in its memorandum or articles or any limitation on the number of its members included in its memorandum or articles, but not so that the memorandum and articles of the company cease to include the limitation required by paragraph (b) of the last preceding sub-section to be included in the memorandum or articles of a company that may be incorporated as a proprietary company.
Registration 1 6 . — ( 1 . ) Persons desiring the incorporation of a company incorporation, shall lodge the memorandum and the articles (if any) of the UK. ss. 12-15 proposed company with the Registrar together with the other
N.S.W.SS.27- documents required to be lodged by or under this Ordinance,
vii. s.'14.' and the Registrar, on payment of the appropriate fees, shall, 25,27*37. subject to this Ordinance, register the company by registering 26^36?'23, the memorandum and articles (if any). W.A. ss. 24-26,
Tas. s. 14. (2 . ) The Registrar may, if he thinks fit, require to be lodged
qualified legal practitioner engaged in the formation of the with him a statutory declaration in the prescribed form by a company or by a person named in the articles as a director or secretary of the company stating that all or any of the require- ments of this Ordinance have been complied with, and the Registrar may accept such a declaration as sufficient evidence of compliance.
(3 . ) On the registration of the memorandum, the Registrar
shall certify under his hand and seal by a certificate in the prescribed form that the company is, on and from the date specified in the certificate, incorporated and that the company i s—
(a) a company limited by shares;
(b) a company limited by guarantee;
(c) a company limited both by shares and by guarantee;
| 1962. | Companies. | No. 7. |
(d) an unlimited company; or
(e) a no liability company,
as the case may be, and, where applicable, that it is a pro-
prietary company.
(4.) On and from the date of incorporation specified in the certificate of incorporation, but subject to this Ordinance, the subscribers to the memorandum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum capable forthwith of exercising all the functions of an incorporated company and of suing and being sued and having perpetual succession and a common seal with power to hold land, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is provided by this Ordinance.
(5.) The subscribers to the memorandum shall be deemed to have agreed to become members of the company and, on the incorporation of the company, shall be entered as members in its register of members, and every other person who agrees to become a member of a company and whose name is entered in its register of members shall be a member of the company.
17.—(1.) A corporation cannot be a member of a company that is its holding company, and any allotment or transfer of shares in a company to its subsidiary is void.
(2.) The last preceding sub-section does not apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary of the holding company is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a
business that includes the lending of money. (3.) This section does not prevent a subsidiary that is, at
the commencement of this Ordinance, a member of its holding
company from continuing to be such a member but, subject to the last preceding sub-section, the subsidiary has no right to vote at meetings of the holding company or of any class of members of the holding company.
(4.) This section does not prevent a subsidiary from continuing to be a member of its holding company if, at the time when it becomes a subsidiary of the holding company, it already holds shares in the holding company, but—
(a) subject to sub-section (2.) of this section, the subsidiary has no right to vote at meetings of the holding company or of any class of members of the holding company; and
214 No. 7. Companies. 1962. (b) the subsidiary shall, within the period of twelve months or such longer period as the Court may allow after becoming the subsidiary of its holding company, dispose of all of its shares in the holding company.
(5.) Subject to sub-section (2.) of this section, sub-sections (1.), (3.) and (4.) of this section apply in relation to a nominee for a corporation that is a subsidiary as if references in those sub-sections to such a corporation included references to a nominee for it.
(6.) In relation to a holding company that is either a company limited by guarantee or an unlimited company, any reference in this section to shares, whether or not the company has a share capital, shall be construed as including a reference to the interest of its members as such, whatever the form of that interest.
Requirements 18.—(1.) The memorandum of a company shall be printed, Memorandum, divided into numbered paragraphs, and dated, and shall state, in
N.S.W. addition to other requirements— ss. 10-13. ^
Qid.,i.1i4, is. (a) t h e n a m e o f t h e company;
w^A.M.u'-il: (b) the objects of the company;
(c) unless the company is an unlimited company, theamount of share capital (if any) with which the company proposes to be registered and the division thereof into shares of a fixed amount;
(d) if the company is a company limited by shares, that the liability of the members is limited;
(e) if the company is a company limited by guarantee,
that the liability of the members is limited andthat each member undertakes to contribute to
the assets of the company, in the event of its being wound up while he is a member or within one year after 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 up and for adjustment of the rights of the contributories among themselves, such amount as may be required not exceeding a specified amount in addition to the amount (if any) unpaid on any shares held by him;
(/) if the company is an unlimited company, that the liability of the members is unlimited;
(g) if the company is a no liability company, that the
acceptance of shares in the company shall not
| 1962. | Companies. | No. 7, | 215 |
constitute a contract to pay calls in respect of the shares or to make any contribution towards the debts and liabilities of the company;
(h) the full names, and the addresses and the occupa- tions, of the subscribers to the memorandum; and
(/) that such subscribers are desirous of being formed into a company in pursuance of the memorandum and (where the company is to have a share capital) respectively agree to take the number of shares in the capital of the company set out opposite their respective names.
(2.) Each subscriber to the memorandum shall, if the company is to have a share capital, in his own handwriting state in words the number of shares (being not less than one) that he agrees to take and, whether or not the company is to have a share capital, shall sign the memorandum in the presence of at least one witness (not being another subscriber) who shall attest the signature and add his address.
(3.) A statement in the memorandum of a company limited by shares that the liability of members is limited means that the liability of the members is limited to the amount (if any) unpaid on the shares respectively held by them.
Division 2.—Powers.
19. The powers of a company include— Powen. ( a ) power to m a k e donat ions for patr iot ic or for <?£.•.Vs.
chari table purposes ; T^if'is5'
{b)
power to transact any lawful business in aid of the Commonwea l th in the prosecut ion of any war in which the Commonwea l th is engaged; and
( c ) unless expressly excluded or modified by the
m e m o r a n d u m or articles, the powers set out in the Thi rd Schedule.
2 0 . — ( 1 . ) N o act of a company ( including the entering into Ultm ylres of an agreement by the company), and no conveyance or trans- lnilMai<"11'
fer of property, whether real or personal, to or by a company,
is invalid by reason only of the fact that the company was
without capacity or power to do such act or to execute or take
such conveyance or transfer.(2.) Any such lack of capacity or power may be asserted or relied on only in—
(a) proceedings against the company by any member of the company or, where the company has issued debentures secured by a floating charge over all or any of the company's property, by the holder
216 No. 7. Companies. 1962. of any of those debentures or the trustees for the holders of those debentures to restrain the doing of any act or acts or the conveyance or transfer of any property to or by the company;
(b) proceedings by the company, or by any member of the company, against the present or former officers of the company; or
(c) a petition by the Attorney-General to wind up the
company.
(3.) If the unauthorized act, conveyance or transfer sought to be restrained in any proceedings under paragraph (a) of the last preceding sub-section is being, or is to be, performed or made pursuant to any contract to which the company is a party, the Court may, if all the parties to the contract are parties to the proceedings and if the Court deems it to be just and equitable, set aside and restrain the performance of the contract and may allow to the company or to the other parties to the contract (as the case requires) compensation for the loss or damage sus- tained by either of them which may result from the action of the Court in setting aside and restraining the performance of the contract, but anticipated profits to be derived from the perfor- mance of the contract shall not be awarded by the Court as a loss or damage sustained.
General 21.—(1.) The memorandum of a company may be altered provisions as to alteration to the extent and in the manner provided by this Ordinance but of memo- randum. not otherwise. N.S.W. s. 14. Vic. s. 16.
(2.) In addition to observing, and subject to, any other Registrar of any resolution of a company or order of the Court, or other document, affecting the memorandum of a company,
Qld. s. 16. S.A. ss. 16,17. provision of this Ordinance requiring the lodging with the W.A. s. 17. Tas. s. 16.
such resolution, the making of any such order or the execution the company shall, within fourteen days after the passing of any of any such document, lodge with the Registrar notice thereof in the prescribed form and a copy of such resolution, an office copy of such order or a copy of such document, as the case may be, together with (unless the Registrar dispenses therewith) a printed copy of the memorandum as altered, and, if default is made in complying with this sub-section, the company and each officer of the company who is in default is guilty of an offence against this Ordinance.
Default penalty: Ten pounds.
(3.) The Registrar shall register every resolution, order or
other document lodged with him under this Ordinance that affects the memorandum of a company and shall certify by a
| 1962. | Companies. | No. 7. | 217 |
certificate in the prescribed form the registration of every such order, and, on such registration and not before, the alteration of the memorandum shall take effect.
(4.) The certificate of the Registrar is conclusive evidence
that all the requirements of this Ordinance with respect to the
alteration and any confirmation thereof have been complied with.
(5.) Notice of the registration shall be published in such manner (if any )as the Court or the Registrar directs.
(6.) The Registrar shall, where appropriate, issue a certifi- cate of incorporation in the prescribed form and in accordance with the alteration made to the memorandum.
22.—(1.) Except with the consent of the Attorney-General, Names of
a company shall not be registered by a name that is, in the uxTn!
| opinion of the Registrar, undesirable or is a name, or a name ftS3^-3s7s-44. | 10, |
| of a kind, that the Attorney-General has directed the Registrar v>c s.' n." | J |
' . - . . . ° Qld. s. 29. W.A. s. 28.
| not to accept for registration. | S.A. S. 27. |
| Tas. ». 17. | |
(2.) The Attorney-General shall cause a direction given by him under the last preceding sub-section to be published in the Gazette and a copy of the direction to be forwarded to the Attorney-General of each State. | |
| (3.) A limited company shall have the word "Limited" or the abbreviation " Ltd." as part of and at the end of its name. | |
(4.) A no liability company shall have the words "No Liability " or the abbreviation " N.L." as part of and at the end of its name. | |
| (5.) A proprietary company shall have the word "Pro- prietary " or the abbreviation " Pty." as part of its name, inserted immediately before the word " Limited " or before the abbrevia- | |
| tion " Ltd." or, in the case of an unlimited company, at the end of its name. | (6.) A description of a company shall not be deemed to be |
inadequate or incorrect by reason of the use of—
(a) the abbreviation " Co." or " Coy." in lieu of the word " Company " contained in the name of the company;
(b) the abbreviation "Pty." in lieu of the word " Proprietary" contained in the name of the company;
(c) the abbreviation " Ltd." in lieu of the word " Limited " contained in the name of the com- pany;
(d) the symbol " & " in lieu of the word " and " con- tained in the name of the company;
218 No. 7. Companies. 1962, (e) the abbreviation " N.L." in lieu of the words " No Liability " contained in the name of the company; or
(/) any of such words in lieu of the corresponding abbreviation or symbol contained in the name of the company.
(7.) A person may apply in the prescribed form to the Registrar for the reservation of a name set out in the application, as—
(a) the name of an intended company;
(b) the name to which a company proposes to change
its name; or
(c) the name under which a foreign company proposes- to be registered, either originally or on change of name.
(8.) If the Registrar is satisfied as to the bona fides of the application and that the proposed name is a name by which the intended company, company or foreign company could be registered without contravention of sub-section (1.) of this section, he shall reserve the proposed name for a period of two months from the date of lodging of the application.
(9.) If, at any time during a period for which a name is reserved, application is made to the Registrar for an extension of that period and the Registrar is satisfied as to the bona fides of the application, he may extend that period for a further period* of two months.
(10.) During a period for which a name is reserved, no company, foreign company, person, firm or society (other than,' the intended company, company or foreign company in respect of which the name is reserved) shall be registered under this Ordinance or under any other Ordinance, whether originally or on change of name, under the reserved name or under any other
name that, in the opinion of the Registrar, so closely resembles the reserved name as to be likely to be mistaken for that name. (11.) The reservation of a name under this section in respect of an intended company, company or foreign company does not in itself entitle the intended company, company or foreign com- pany to be registered by that name, either originally or on change of name.
change of 23 .—(1 . ) A company may, by special resolution and with
name. ^ e approval of the Registrar, change its name to a name by N'S.W' S. 35. which the company could be registered without contravention of oid. s. 31. sub-section (1.) of section twenty-two of this Ordinance. S.A. s. 29. W.A.S.30.
(2 .) If the name of a company is (whether through inadvertance or otherwise and whether originally or by change
of name) a name by which the company could not be registered1
| 1962. | Companies. | No. 7. | 219 |
without contravention of sub-section (1.) of section twenty-two •of this Ordinance, the company may by special resolution change its name to a name by which the company could be registered without contravention of that sub-section and, if the Registrar so directs, shall so change it within six weeks after the date of the direction or such longer period as the Registrar allows unless the Attorney-General by written notice annuls such direction, and, if the company fails to comply with the direction, it is guilty of an offence against this Ordinance.
Default penalty: Ten pounds.
(3.) Where the name of a company incorporated pursuant
to a previous law of the Territory corresponding with this Ordi- nance has not been changed since the commencement of this Ordinance, the Registrar shall not, except with the approval of the Attorney-General, exercise his power under the last preceding sub-section to direct the company to change its name.
(4.) A change of name pursuant to this Ordinance does not affect the identity of the company or any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced by or against it by its former name may be continued or commenced by or against it by its new name.
24.—(1.) Where it is proved to the satisfaction of the omission ?f
i , ' , , i i- •, , "Limited"
| Attorney-General that a proposed limited company— | in name of |
(a) is being formed for the purpose of providing recrea- "Smpanies. tion or amusement or promoting commerce, U.K. S. 19.
industry, art, science, religion, charity, pension vitT.19.34,
or superannuation schemes or any other object S.A;*!28! useful to the community; ritCil*'
(b) will apply its profits (if any) or other income in promoting its objects; and
(c) will prohibit the payment of any dividend to its
members,
the Attorney-General may (after requiring, if he thinks fit, the proposal to be advertised in such manner as he directs either generally or in a particular case) by licence direct that it be registered as a company with limited liability without the addition of the word " Limited " to its name, and the company may be registered accordingly.
(2.) Where it is proved to the satisfaction of the Attorney-
General—
(a) that the objects of a limited company are restricted to those specified in the last preceding sub- section and to objects incidental or conducive thereto; and
220 No. 7. Companies. 1692.
(b) that, by its constitution, the company is required to apply its profits (if any) or other income in promoting its objects and is prohibited from paying any dividend to its members,
the Attorney-General may by licence authorize the company to change its name to a name that does not contain the word " Limited ", being a name approved by the Registrar.
(3 . ) A licence under this section may be issued on such conditions as the Attorney-General thinks fit, and those condi- tions shall be binding on the company and shall, if the Attorney- General so directs, be inserted in the memorandum or articles of the company and the memorandum or articles may, by special resolution, be altered to give effect to any such direction.
(4 . ) A company is, while a licence issued under this section
or under any corresponding previous law of the Territory is in force, exempted from complying with the provisions of this Ordinance relating to the use of the word " Limited " as any part of its name and, except where the Attorney-General otherwise directs, the lodging of annual returns and of returns of particulars of directors, managers and secretaries and the publication of accounts.
(5 . ) A licence issued under this section or under any corre- sponding previous law of the Territory may at any time be revoked by the Attorney-General and, upon revocation, the Registrar shall enter the word " Limited " at the end of the name of the company upon the register, and the company shall thereupon cease to enjoy the exemptions and privileges granted by reason of the licence by this Ordinance but, before a licence is so revoked, the Attorney-General shall give to the company notice in writing of his intention and shall afford it an oppor-
tunity to be heard.
Registratioa 2 5 . — ( 1 . ) Subject to this section, an unlimited company
comSall"'̂ may convert to a limited company, or a company limited by limited, &c guarantee may convert to a company limited both by shares and N ^W! !.63i. guarantee, by passing a special resolution determining so to Qui.t 28.
convert and lodging with the Registrar for registration a copy (2.) On the lodging of the copy of the resolution, the
wjL'i.^7.
° f t n e resolution. Tas. s. 20. Registrar shall, subject to this Ordinance— (a) register the copy;
(b) make such endorsements in or alterations to hisregisters as are necessary to record the effect of the resolution with respect to the conversion; and
1962. Companies. No. 7. 221 (c) issue to the company a certificate of incorporation of the company altered to meet the circumstances of the case and cancel the previous certificate of incorporation of the company.
(3 . ) On issuing the certificate of incorporation, the Registrar
may, by notice in writing served on the company, dispense with the lodging by the company of any document that had been lodged with him on the occasion of or subsequent to the incorporation of the company.
(4.) The conversion takes effect on the issue of the certifi- cate of incorporation under sub-section (2.) of this section.
(5.) A conversion of a company pursuant to this section does not affect the identity of the company or any rights or obligations of the company or render defective any legal pro- ceedings by or against the company, and any legal proceedings that could have been continued or commenced by or against it prior to the conversion may, notwithstanding the conversion, be continued or commenced by or against it after the conversion.
26 .—(1. ) A public company having a share capital (other cj£j-*^'rom
than a no liability company) may convert to a proprietary proprietary company by lodging with the Registrar a copy of a special w« S " ° resolution (together with notice thereof in the prescribed V ^ I N " . " '
| f orm "> | Qi«i. ss. 38-39. |
| LKJLlllJ | S.A. s. 37. |
(a) determining to convert to a proprietary company x^',.s-2i!'
and specifying an appropriate alteration to its
name; and
(b) altering the provisions of its memorandum or
articles so far as is necessary to impose the restric-
Ordinance. tions, limitations and prohibitions referred to in sub-section (1.) of section fifteen of this
(2.) A proprietary company may, subject to anything contained in its memorandum or articles, convert to a public company by lodging with the Registrar—-
(a) a copy of a special resolution (together with notice thereof in the prescribed form) determining to convert to a public company and specifying an appropriate alteration to its name;
Certificate to be Given by all Companies
A certificate in the form set out hereunder shall be given by the secretary or a both a director and a secretary.
director of every company and, in the case of an exemn1 E-oprietary company, by
Certificate.
I /Wed) after having made due inquiries certify—
(a) that the provisions of Part III. of the Companies (Unclaimed Assets and Moneys) Ordinance 1950-1962 have been complied with;
(6) having made an inspection of the share register, that
transfers
haved) been registered since the date of the last annual return(l);have not the incorporation of the
company;
(c) (2) that the company has not, since the date of the last annual return,(3) issued any invitation to the public to subscribe for any shares in or debentures of the company or to deposit moneys for fixed periods or payable at call;
No. 7. Companies. 1962. EIGHTH SCHEDULE—continued.
Part W.—continued.
(d ) (4 ) that the excess of members of the company above fifty (counting joint holders of shares as one person) consists wholly of persons who are in the employment of the company or of its subsidiary or persons who, while previously in the employment of the company or of its subsidiary, were and thereafter have continued to be members of the company,
(e ) (5) that, to the best of our knowledge and belief, the company is an
exempt proprietary company, and has been an exempt proprietary
company, for the purposes of the Companies Ordinance 1962
f date of the previous return^)
since the ) incorporation of the companyW
I commencement of that Ordinance^);
(/) C) that, on the day of 19 , all the members of the company agreed pursuant to section 165 of that
Ordinance not to appoint an auditor for the financial year 19
Signature D i r ec to rW Signature Secretary
(1) Strike out whichever is inapplicable.
(2) Strike out except in the case of a proprietary company.
(3) In the case of the first annual return of a proprietary company, strike out the words
" last annual return " and substitute therefor the words " incorporation of the company ", (4) Strike out except in the case of a proprietary company whose members exceed fifty. (5) Strike out except in the case of an exempt proprietary company.
(6) Strike out if not appropriate.
(7) Strike out if inapplicable. Note this paragraph is only applicable to an exempt
proprietary company.
(8) A certificate signed by the same person in the capacity of both director and secretary will not be accepted. See section 132(5.).
Particulars of the Directors, Managers, Secretaries and Auditors of
Limited at the date of the Annual Return. Other business
occupation
and, in the case
Usual of directors,
Any former address. particulars Christian or Usual
Present Christian or other name or
other name residential of other
names and surname.* directorships
or names address in required to be or surname. case of shown by s. 134 directors. (2.) (c) and (3.) (If none, state
so).
Directorst
Manager (if any)
Secretaries
Auditors for current financial year
* In the case of a corporation, its corporate name and registered or principal office should be
ihown.
t " Director *' includes any person who occupies the position of a director by whatever name called, and any person in accordance with whose directions or instructions the directors of a company are accustomed to act.
| 1962. | Companies. | No. 7. |
EIGHTH SCHEDULE—continued.
Part II.—continued.
| List of persons holding shares in | Limited on |
the day of 19 (being the date of the return or other authorized date) and an account of the shares so held.
NOTE.—If the names in this list are not arranged in alphabetical order, an
index sufficient to enable the name of any person in the list to be readily found
must be annexed to this list.
NOTE.—In the case of a no liability company or a company exempted under the provisions of section one hundred and sixty of the Companies Ordinance 1962, this list is not required to be supplied.
* The aggregate number of shares held, and not the distinctive numbers, must be stated, and the column must be added up thoughout so as to make one total to agree with that stated in the summary to have been taken up.
t When the shares are of different classes, these columns may be subdivided so that the number of each class held may be shown separately. Where any shares have been converted into stock, particulars of the amount of stock must be shown.
No Liability Companies.
Particulars as to Calls and as to Sales of Forfeited Shares.
Date when each call made since the date of the last return or, in the case of a first return, since incorporation was payable :
Date since the last return or incorporation when shares forfeited were offered for sale and the place of offer :
Number of shares sold at each sale of forfeited shares made since the date of the last return or, in the case of a first return, since the date of incorporation :
Number of shares unsold at each offer for sale of forfeited shares made since the date of the last return or, in the case of a first return, since the date of incorporation :Number of shares disposed of pursuant to sub-section (3.) of section three hundred and twenty-four of the Companies Ordinance 1962, since the date of the last return, being shares withdrawn from sale or for which no bid was received :
[Signature.]
[State whether director or manager or secretary.]
No. 7. Companies. 1962.
Sections NINTH SCHEDULE. 162,341. ACCOUNTS. U.K.1948 c. 38. Profit and Loss Account. Eighth Schedule. 1. There shall be shown in respect of the period of accounting— Vic 9th (a) the net balance of profit and loss on the company's trading; Schedule. (6) income from investments in subsidiaries of the company;
(c) income from other investments distinguishing between income receivedfrom any shares and debentures which are dealt in on any prescribed Stock Exchange in the Commonwealth and income received from other sources;
id) amounts (if any) charged for depreciation or amortization on—
(i) investments; (ii) goodwill; or (iii) fixed assets;
(e) the amount of interest on the company's debentures and fixed term
loans;
(/) any profit or loss arising from a sale or revaluation of fixed or intangible assets if brought into account in determining the company's profit or loss;
(g) the amounts, if material, set aside or proposed to be set aside to, or withdrawn from, reserves;
(h) the amount, if material, set aside to provisions other than provisions for depreciation, renewals or diminution in value of assets or, as the case may be, the amount, if material, withdrawn from such provisions and not applied for the purposes thereof;(i) the amounts respectively provided for redemption of share capital and for redemption of loans;
(/) provision made for payment of income tax in respect of the period of
accounting;
(fc) the aggregate amount of the dividends paid and the aggregate amount of the dividends proposed to be paid;
(/) the total of the amount paid to the directors as remuneration for their services, inclusive of all fees, percentages, bonuses and commissions or other emoluments paid to or receivable by them by or from the company or by or from any subsidiary of the company, and inclusive of commission paid or payable for subscribing or agreeing to subscribe or procuring or agreeing to procure subscriptions for any shares in or debentures of the company or of its holding company or any subsidiary of the company, but the salaries and bonuses and commissions paid by way of salary of directors who are engaged in the full time employment of the company or any subsidiary of the company need not be included in this amount; and
(m) the total of the amount paid to or receivable by the auditors as remuneration for their services as auditors, inclusive of all fees, percentages or other payments or consideration given, by or from the company or by or from any subsidiary of the company.
Balance-sheet.
2.—(1.) There shall be shown as at the end of the period of accounting—
(a) the amount of authorized capital and particulars of issued capital distinguishing between classes of shares and specifying by way of note to the balance-sheet any portion of the share capital which has not already been called up and which is not capable of being called up except in the event and for the purposes of the company being wound up and stating the rates of dividend, and whether participating or cumulative or both, attaching to shares other than ordinary shares, and stating the amount of calls in arrear in each class;
(6) the part of the issued capital that consists of redeemable preference shares, the date on or before which these shares are, or are liable, to be redeemed and the earliest date on which the company has power to redeem those shares and the amount of the premium (if any) at which those shares are redeemable;
1962. Companies. No. 7. NINTH SCHEDULE—continued.
(c) so far as the information is not given in the profit and loss account, any share capital on which interest has been paid out of capital during the financial year, and the rate at which interest has been so paid;
(d) the amount of the share premium account;
(e) particulars of any redeemed debentures which the company has power
to re-issue;
(/) under separate headings, so far as they are not written off—
(i) the preliminary expenses;
(ii) any expenses incurred in connexion with any issue of shares or
debentures;
(iii) any sums paid by way of commission in respect of any shares
or debentures;
(iv) any sums allowed by way of discount in respect of any
debentures;
(v) the amount of the discount allowed on any issue of shares at
a discount; and
(vi) if the amount of the goodwill and of any patents and trade marks or part of that amount is shown as a separate item in or is otherwise ascertainable from the books of the company, or from any contract for the sale or purchase of any property to be acquired by the company, or from any documents in the possession of the company relating to the stamp duty payable in respect of any such contract or the conveyance of any such property—the said amount so shown or ascertained;
(g) the reserves, provisions, liabilities, fixed assets and current assets classified separately under headings appropriate to the company's business showing separately the provision for taxation and stating the method used to arrive at the amount of assets under each heading, but—
(i) where the amount of any class is not material, it may be
included under the same heading as some other class; and
(ii) where any assets of one class are not separable from assets ofanother class, those assets may be included under the same
heading;
(h) under separate headings, stating the methods used to arrive at the amount of the investments under each heading—
(i) investments in Government, municipal and other public debentures, stock or bonds;
(ii) investments in subsidiaries of the company;
(iii) investments in companies (not being subsidiaries of thecompany) the shares in or debentures of which are dealt in on any prescribed stock exchange in the Commonwealth or elsewhere; and (iv) investments in any other companies;
( 0 under separate headings—
(i) amounts owing by subsidiaries of the company;
(ii) trade debts and bills receivable (other than amounts owing
by subsidiaries of the company);
(iii) the amount outstanding of any loan made, guaranteed or secured by the company, being a loan made to a director of the company or of a company which is deemed by virtue of sub-section (5.) of section six of this Ordinance to be related to the company, or a loan made to another company in which a director of the company or of a company which is is so deemed to be related to the company owns a con- trolling interest; and
(iv) other debts owing to the company,
and where any amounts or debts shown under such a heading include any sums which consist of or are in the nature of interest, accom- modation charges, service charges, maintenance charges or insurance
No. 7. Companies. 1962. NINTH SCHEDULE—continued.
premiums, those sums shall, except to the extent that they have become due and payable and have been demanded, be shown as a deduction from the amounts or debts shown under that heading;
(/) balance of profit and loss account;
(k) debentures, showing separately amounts that are redeemable not laterthan twelve months after the date to which the accounts are made up and amounts that are redeemable later than twelve months after that date;
(/) liabilities (other than debentures, bank loans and overdrafts) secured by any charge on the assets whether registered or not, showing separately the aggregate of the amounts that are payable not later than twelve months after the date to which the accounts are made up and the aggregate of the amounts that are payable later than twelve months after that date;
(m) bank loans and overdrafts;
(n) amounts borrowed without security, showing separately the aggregateof the amounts that are repayable not later than twelve months after the date to which the accounts are made up and the aggregate of the amounts that are repayable later than twelve months after that date;
(o) amounts owing to subsidiaries of the company;
(p) amounts owing to trade creditors (other than amounts owing to
subsidiaries of the company);
(q) other amounts owing by the company;
(r) under separate headings (to be stated by way of note if not otherwise
shown)—
(i) contingent liabilities unsecured;
(ii) contingent liabilities secured upon the company's assets; and(iii) where practicable, the aggregate amount, if it is material, of
contracts for capital expenditure, so far as that amount has
not been provided for; and
(j) arrears of dividends on preference shares.
(2.) For the purposes of this clause, where more than one method is used to arrive at any amount shown in the balance-sheet, there shall be shown in the balance-sheet a separate total in respect of each of the methods so used.
(3.) In the case of a no liability company, the balance-sheet shall show, in addition to the matters required by the foregoing provisions of this clause to be shown—
(a) the total number of shares forfeited; and
(b) the number of shares forfeited in respect of each call and amount of each of those calls.
3.—(1.) The method of arriving at the amount of any investment or fixed asset
shall, subject to sub-clause (2.) of this clause, be to take the difference between—(a) its cost or, if it stands in the company's books at a valuation other than
cost, the amount of the valuation; and
(b) the aggregate amount provided or written off since the date of acquisition or valuation, as the case may be, for depreciation or diminution in value.
(2.) For the purposes of this clause, the net amount at which any assets stand in the company's books at the commencement of this Ordinance (after deduction of the amounts previously provided or written off for depreciation or diminution in value) shall, if the figures relating to the period before the commence- ment of this Ordinance cannot be obtained without unreasonable expense or delay, be treated as if it were the amount of the valuation of those assets made at the commencement of this Ordinance, and where any of those assets are sold, the net amount less the amount of the sales shall be treated as if it were the amount of a valuation so made of the remaining assets.
1962. Companies. No. 7. NINTH SCHEDULE—continued.
(3.) Sub-clause (1.) of this clause does not apply—
(a) to assets for which the figures relating to the period beginning with the commencement of this Ordinance cannot be obtained without unreason- able expense or delay; or
(b) to assets the replacement of which is provided for wholly or partly—
(i) by making provision for renewals and charging the cost ofreplacement against the provision so made; or (ii) by charging the cost of replacement direct to revenue; or
(c) to any investments of which the market value (or, in the case of investments not having a market value, their value as estimated by the directors) is shown either as the amount of the investments or by way of note; or
(d) to goodwill, patents or trade marks.
(4.) For the assets under each heading whose amount is arrived at in accord- ance with sub-clause (1.) of this clause, there shall be shown—
(a) the aggregate of the amounts referred to in paragraph (a) of that sub-
clause; and
(b) the aggregate of the amounts referred to in paragraph {b) of that
sub-clause.
(5.) As respects the assets under each heading whose amount is not arrived at in accordance with sub-clause (1.) of this clause because their replacement is provided for as mentioned in paragraph (6) of sub-clause (3.) of this clause, there shall be stated—
(a) the means by which their replacement is provided for; and
(b) the aggregate amount of the provisions (if any) made for renewals and
not used.
Holding and Subsidiary Companies.
4.—(1.) There shall be annexed to the profit and loss account of every holding company—
(a) a separate profit and loss account for each subsidiary of the company;
or
(b) a consolidated profit and loss account of the holding company and of its subsidiaries eliminating all inter-company transactions.
(2.) There shall be clearly stated (by way of note or otherwise), either in the profit and loss account of the holding company or in a document annexed thereto pursuant to sub-clause (1.) of this clause, the name and place of incorporation of each subsidiary to which that profit and loss account or other document relates.
(3.) There shall be annexed to the balance-sheet of every holding company—
(a) a balance-sheet of each subsidiary of the company; or
(b) a consolidated balance-sheet of the holding company and of its
subsidiaries eliminating all inter-company balances.
(4.) Such profit and loss accounts and balance-sheets shall be in the same form as the profit and loss account and balance-sheet of the holding company and shall be accompanied by the auditor's report thereon.
(5.) In the case of a subsidiary company incorporated outside the Territory whether it has or has not established a place of business in the Territory, it is sufficient if the separate profit and loss account or balance-sheet (as the case requires) of such subsidiary company is in such form and is so reported upon by auditors and contains such particulars and includes such documents (if any) as the company is required to make out and lay before the company in general meeting by the law for the time being applicable to such company in the place where it is incorporated.
(6.) If the auditor's report on the balance-sheet or profit and loss account of a subsidiary company is qualified in any way, the separate balance-sheet of the sub- sidiary company or the consolidated balance-sheet of the holding company (as the case may be) shall contain particulars of the manner in which the report is qualified.
(7.) This clause does not apply to a subsidiary which would not be a sub- sidiary but for the operation of sub-paragraph (i) or (ii) of paragraph (a) of sub-section (1.) of section six of this Ordinance.
No. 7. Companies. 1962. NINTH SCHEDULE—continued.
General.
5.—(1.) All amounts shown in profit and loss accounts and balance-sheets shall be quoted in Australian currency, and not otherwise.
(2.) Except in the case of the first balance-sheet or profit and loss account laid before the company after the commencement of this Ordinance there shall be sihown in every balance-sheet and profit and loss account the corresponding amounts at the end of the immediately preceding financial year for all items shown in the balance-sheet or profit and loss account
(3.) Every profit and loss account or balance-sheet shall state by way of note—
(a) if any conversion into Australian currency has been made for the
purposes of the profit and loss account and balance-sheet, the basis
of the conversion of the other currency into Australian currency; and(b) the aggregate quoted market value of any investment of a kind referred
to in paragraph (h) of sub-clause (1.) of clause 2 of this Schedule.
TENTH SCHEDULE.
PART A.
Requirements with which Take-over Offers to Comply.
1. The offer shall be dated and shall be dispatched to the offeree within three days of its date and shall state that, except in so far as it and all other take-over offers made under the take-over scheme may be totally withdrawn and every person released from any obligation incurred thereunder, it will remain open for acceptance by the offeree for at least one month from that date.
2. The offer shall not be conditional upon the offeree approving or consenting to any payment or other benefit being made or given to any director of the offeree corporation or any corporation which is deemed by virtue of sub-section (5.) of section six of this Ordinance to be related to that corporation as compensation for loss of office or as consideration for, or in connexion with, his retirement from office.
3. The offer shall state—
(a) whether or not the offer is conditional upon acceptances of offers madeunder the take-over scheme being received in respect of a minimum
number of shares and, if so, that number;
(6) if the shares are to be acquired in whole or in part for cash, the period
within which payment will be made and the method of payment; and
(c) if the shares are to be acquired for a consideration other than cash, the period within which the offeree will receive that consideration.
4. Where the offer is conditional upon acceptances in respect of a minimum number of shares being received, the offer shall specify—
(a) a date as the latest date on which the offeror corporation can declare the offer to have become free from that condition; and
(6) a further period of not less than seven days during which the offer will remain open for acceptance.
PART B.
Requirements with which Statement Given by Offeror Corporation to Comply.
1. The statement shall—
(a) specify the names, descriptions and addresses of all the directors of theofferor corporation;
(b) contain a summary of the principal activities of the offeror corporation; (c) specify the number and description and amount of marketable securities
in the offeree corporation held by or on behalf of the offeror corpora-
tion or, if none are so held, contain a statement to that effect;
1962. Companies. No. 7. TENTH SCHEDULE—continued.
Part B—continued.
(d) if the shares are to be acquired for a consideration other than wholly
in cash—
(i) set out the reports which, if the statement were a prospectus issued on the date on which notice of the take-over scheme is given to the offeree corporation, would be required to be set out in it under clauses 20 and 23 of the Fifth Schedule to this Ordinance; and
(ii) specify details of any alterations in the capital structure of the offeror corporation or of any subsidary of that corporation during the period of five years immediately preceding the date on which notice of the take-over scheme is given to the offeree corporation and particulars of the source of any increase in capital.
2. The statement shall contain particulars of any restriction on the right to transfer the shares to which the take-over scheme relates contained in the memorandum or articles or other instrument constituting or defining the consti- tution of the offeree corporation which has the effect of requiring the holders of the shares, before transferring them, to offer them for purchase to members of the offeree corporation or to any other person and, if there is any such restriction, the arrangements, if any, being made to enable the shares to be transferred in pursuance of the take-over scheme.
3. If the consideration for the acquisition of shares under the take-over scheme is to be satisfied in whole or in part by the payment of cash, the statement shall contain details of the arrangements that have been, or will be, made to secure payment of the cash consideration and, if no such arrangements have been or will be made, shall contain a statement to that effect.
4. The statement shall set out— (a) whether or not it is proposed in connexion with the take-over scheme
that any payment or other benefit shall be made or given to any director of the offeree corporation or of any corporation which is, by virtue of sub-section (5.) of section six of this Ordinance, deemed to be related to that corporation as compensation for loss of office or as consideration for, or in connexion with, his retirement from office and, if so, particulars of the proposed payment or benefit in respect of each such director;
(b) whether or not there is any other agreement or arrangement made between the offeror corporation and any of the directors of the offeree corporation in connexion with or conditional upon the outcome of the scheme and, if so, particulars of any such agreement or
arrangement;
(c) whether or not there has been within the knowledge of the offeror corporation any material change in the financial position of the offeree corporation since the date of the last balance-sheet laid before the corporation in general meeting and, if so, particulars of any such change; and
(d) whether or not there is any agreement or arrangement whereby any shares acquired by the offeror corporation in pursuance of the scheme will or may be transferred to any other person and, if so—
(i) the names of the persons who are parties to the agreement or arrangement and the number, description and amount of the shares which will or may be so transferred; and
(ii) the number, if any, and description and amount of shares of the offeree corporation held by or on behalf of each of those persons or, if no such shares are so held, a statement to that effect.
5. The succeeding provisions of this Part of this Schedule apply only where the consideration to be offered in exchange for shares of the offeree corporation consist* in whole or in part of marketable securities issued or to be issued by the offeror corporation or by any other corporation.
No. 7. Companies. 1962. TENTH SCHEDULE—continued.
Part B—continued.
6. Where the marketable securities are listed on or dealt in on a Stock Exchange, the statement shall state this fact and specify the Stock Exchanges concerned and specify—
(a) the latest available market sale price prior to the date on which notice of the take-over scheme is given to the offeree corporation;
(b) the highest and lowest market sale price during the three months immediately preceding that date and the respective dates of the relevant sales; and
(c) where the take-over scheme has been the subject of a public announce- ment in newspapers or by any other means prior to notice of the scheme being given to the offeree corporation, the latest market sale price immediately prior to the public announcement.
7. Where the securities are listed on or dealt in on more than one Stock Exchange, it is sufficient compliance with paragraph (a) of clause 6 of this Schedule if information with respect to the securities is given in relation to the Stock Exchange at which there have been the greatest number of recorded dealings in the securities in the three months immediately preceding the date on which notice of the take-over scheme is given to the offeree corporation.
8. Where the take-over scheme relates to securities which are not listed on or dealt in on a Stock Exchange, the statement shall contain all the information which the offeror corporation may have as to the number, amount and price at which the securities have been sold in the three months immediately preceding the date on which notice of the scheme is given to the offeree corporation and, ii the offeror corporation has no such information, a statement to that effect.
PART C.
Requirements with which Statement Given by Offeree Corporation to Comply.
1. The statement shall indicate—
(a) whether or not the board of directors of the offeree corporation recommends to share holders the acceptance of take-over offers made, or to be made, by the offeror corporation under the take-over scheme; or
(6) that the board of directors of the offeree corporation does not desire
to make a recommendation or consider themselves not justified in
making a recommendation.
2. The statement shall set out— (a) the number, description and amount of marketable securities in the
offeree corporation held by or on behalf of each director of that corporation or, in the case of a director where none are so held, that fact;
(b) in respect of each such director of the offeree corporation by whom, or on whose behalf, shares to which the take-over scheme relates are held—
(i) whether or not the present intention of the director is to accept any take-over offer that may be made in pursuance of the take-over scheme in respect of those shares; or
(ii) that the director has not decided whether he will accept such
a take-over offer;
(c) whether or not any marketable securities of the offeror corporation are held by, or on behalf of, any director of the offeree corporation and, if so, the number, description and amount of the marketable securities
•o held;
| 1962. | Companies. | No. 7. | 527 |
TENTH SCHEDULE—continued.
Part C—continued.
id) whether or not it is proposed in connexion with the take-over scheme that any payment or other benefit shall be made or given to any director of the offeree corporation or of any other corporation which is, by virtue of sub-section (5.) of section six of this Ordinance, deemed to be related to that corporation as compensation for loss of office or as consideration for, or in connexion with, his retirement from office and, if so, particulars of the proposed payment or benefit;
(e) whether or not there is any other agreement or arrangement made between any director of the offeree corporation and any other person in connexion with or conditional upon the outcome of the take-over scheme and, if so, particulars of any such agreement or arrangement;
</) whether or not any director of the offeree corporation has any interest in any contract entered into by the offeror corporation and, if so, particulars of the nature and extent of such interest;
ig) if the shares to which the scheme relates are not listed on or dealt in on a Stock Exchange, all the information which the offeree corpora- tion may have as to the number, amount and price at which any such shares have been sold in the six months preceding the date on which notice of the take-over scheme was given to the offeree corporation; and
</i) whether or not there has been any material change in the financial position of the offeree corporation since the date of the last balance- sheet laid before the corporation in general meeting and, if «o, particulars of such change.
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