Corporations Act. Australia

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      Individual directors, the company secretary, company employees or agents may be authorised to enter into contracts that bind the company (see 7).

      In some circumstances, a company will be bound by something done by another person (see 1.8).

      1.8 Directors

      The directors of a company are responsible for managing the company’s business. It is a replaceable rule (see 1.6) that generally the directors may exercise all the powers of the company except a power that the Corporations Act, a replaceable rule or a provision of the company’s constitution (if any) requires the company to exercise in general meeting.

      The only director of a company who is also the only shareholder is responsible for managing the company’s business and may exercise all of the company’s powers.

      The Corporations Act sets out rules dealing with the calling and conduct of directors’ meetings. Directors must keep a written record (minutes) of their resolutions and meetings.

      There are 2 ways that directors may pass resolutions:

      • at a meeting; or

      • by having all of the directors record and sign their decision.

      If a company has only 1 director, the sole director may also pass a resolution by recording and signing their decision.

      [sections 198A, 198E, 202C, subsection 202F(1), sections 248A‑248G, 251A]

      1.9 Shareholders

      The shareholders of a company own the company, but the company has a separate legal existence and the company’s assets belong to the company.

      Shareholders can make decisions about the company by passing a resolution, usually at a meeting. A “special resolution” usually involves more important questions affecting the company as a whole or the rights of some or all of its shareholders.

      There are 2 ways that shareholders may pass a resolution:

      • at a meeting; or

      • by having all of the shareholders record and sign their decision.

      If a meeting is held, an ordinary resolution must be passed by a majority of the votes cast by shareholders of the company entitled to vote on the resolution at the meeting in person or by proxy (if proxies are allowed). A special resolution must be passed by at least 75 % of the votes cast by shareholders of the company entitled to vote on the resolution and who vote at the meeting in person or by proxy (if proxies are allowed).

      The sole shareholder of a company may pass a resolution by recording and signing their decision.

      A company must keep a written record (minutes) of the members’ resolutions and meetings.

      [sections 9 (special resolution), 249A, 249B, 249L, 251A]

      1.10 What others can assume about the company

      Anyone who does any business with the company is entitled to assume that the company has a legal right to conduct that business unless the person knows, or suspects, otherwise. For example, an outsider dealing with the company is entitled to assume:

      • that a person who is shown in a notice lodged with ASIC as being the director or company secretary of a company has been properly appointed and is authorised to act for the company; and

      • that a person who is held out by the company to be a director, company secretary or agent of the company has been properly appointed and is authorised to act for the company.

      [sections 128–130]

      2 The company structure for small business

      2.1 Proprietary company for small business

      Generally, a proprietary company limited by shares is the most suitable company for use by small business. Such a proprietary company must have a least 1 shareholder but no more than 50 shareholders (not counting employee shareholders). It may have 1 or more directors.

      [sections 112–113]

      3 Setting up a new company

      The operators of small businesses can either buy “shelf” companies or set up new companies themselves.

      3.1 “Shelf” companies

      The operator of a small business may find it more convenient to buy a “shelf” company (a company that has already been registered but has not traded) from businesses which set up companies for this purpose or from some legal or accounting firms.

      3.2 Setting up a company

      To set up a new company themselves, the operator must apply to ASIC for registration of the company.

      A proprietary company limited by shares must have at least 1 shareholder.

      To obtain registration, a person must lodge a properly completed application form with ASIC. The form must set out certain information including details of every person who has consented to be a shareholder, director or company secretary of the company.

      The company comes into existence when ASIC registers it.

      [sections 117–119, 135–136, 140]

      3.3 ACN and name

      When a company is registered, ASIC allocates to it a unique 9 digit number called the Australian Company Number (ACN). (For use of the ACN see 4.1).

      In practice, a new company must have a name that is different from the name of a company that is already registered. A proprietary company limited by shares must have the words “Proprietary Limited” as part of its name. Those words can be abbreviated to “Pty Ltd”.

      A proprietary company may adopt its ACN as its name. If it does so, its name must also contain the words “Australian Company Number” (which can be abbreviated to “ACN”). For example, the company’s name might be “ACN 123 456 789 Pty Ltd”.

      [sections 119, 147–161]

      3.4 Contracts entered into before the company is registered

      A company can ratify a contract entered into by someone on its behalf or for its benefit before it was registered. If the company does not ratify the contract, the person who entered into the contract may be personally liable.

      [sections 131–133]

      3.5 First shareholders, directors and company secretary

      A person listed with their consent as a shareholder, director or company secretary in the application for registration of the company becomes a shareholder, director or company secretary of the company on its registration.

      The same person may be both a director of the company and the company secretary.

      See 5.1 and 5.2 for directors and 5.4 for company secretaries. See 6.1 for shareholders.

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