• Company Registration

• $687 includes GST

• Includes ASIC fees

• Start Building
• Checklist

Register your new company on our law firm’s website

We check your Pty Ltd company registration. This is before it proceeds to ASIC.

Incorporating a company with ASIC is important.

Our company and constitution comply as a:

1.  trustee of a family trust
2. trustee of a unit trust
3. trustee of Self-Managed Superannuation Fund (special purpose company)
4. trustee of a Custodian Bare trust when an SMSF borrows money
5. bare trustee: Acknowledgement of Trust – ‘AFTER the Trustee buys’
6. bare trustee: Declaration of Trust BEFORE you buy – ‘secretly buy’
7. bare trustee: Bare Trust Deed – ‘hide assets you own’
8. crowd-sourced funding vehicle
9. vehicle to operate a business in its own right (rather than through a trust)

We talk to ASIC on your behalf. This is to make sure your company is registered correctly. Our law firm provides a complete company register. It contains all minutes and our constitution. The documents are stored online for you to access at any time.

Restricting your choice of company name

As you build your Australian company on our website, check if your preferred company name is available.

You cannot use the words:

‘bank’
‘trust’
‘royal’
‘incorporated’

You cannot use words that could mislead people about a company’s activities. This includes links to the Government, the Royal Family, or ex-service groups.

ASIC refuses offensive and illegal names.

Allowed short-forms in company names

and: &

Australian Business Number: ABN

Company: Co, Coy

Proprietary: Pty

Australian: Aust

Proprietary Limited: Pty Ltd

Constitution vs replaceable rules

Companies are governed by:

* a constitution (recommended), or
* replaceable rules

Replaceable rules (from the Corporations Act 2001) provide a basic set of rules for your company. They are not good. Few accountants, lawyers or advisers recommend them.

Replaceable rules are less than the bare minimum. There are many additional powers that a company should have. These are only found in a constitution.

Replaceable rules change at the whim of the current government. While the changes may benefit ‘society’, they may not be in the best interests of shareholders. In contrast, shareholders can amend constitutions anytime.

Our Company Constitution contains:

* Adj Professor, Dr Brett Davies’ Doctorate was on business succession planning, our pre-emptive rights are cutting edge
* ‘tag along’ requirement forcing minority shareholders to also sell their shares together with majority shareholders
* accountant friendly, GAAP compliant valuation powers
* profit distributions, even when there is no ‘profit’ for ATO purposes
* over 30 different classes of shares
* allowing Directors and shareholders to use Skype and other online facilities
* built-in Division 7A Loan Deeds

Pty Ltd is an abbreviation for Proprietary Limited

• ‘Proprietary‘ means the company is privately held.
• ‘Limited‘ means the liability of the shareholders to pay the debts of the company is limited. This is called ‘limited liability‘. See here for asset protection.

Minimum requirements for an Australian Pty Ltd company:

• at least one director/secretary living in Australia
• a physical Australian address for the registered office
• at least one shareholder (but no more than 50 non-employee shareholders0

Pty Ltd companies form the vast majority of companies registered in Australia. Over 99% of companies incorporated in Australia are Pty Ltd.

Seven advantages of using a law firm website to build your company

The 7 advantages of using Legal Consolidated:

1. 94% of incorporations happen within 25 minutes of you building the company online
2. lawyers personally vet the details before submitting to ASIC
3. when required, we contact ASIC to confirm your company name
4. what if your company name is unavailable or challenged by ASIC? We contact you and help you find one that is available
5. you receive a secure, personalised email containing
   • Certificate of Incorporation
   • Company Constitution
   • All minutes
   • Letter on our law firm’s letterhead
6. as always, our hints and training videos guide you. The law firm is available for legal advice on how to build your document
7. a constitution is a deed. Only a law firm can legally prepare deeds.

Australian company tax rates

A company pays tax at a fixed rate. (In contrast, a human being pays tax at different marginal tax rates. The more you earn the higher the tax rate.) Your company (flat) tax rate depends on whether the company is a base rate entity.

From 2021 there is a 5% difference.

For example, in 2018/19, a company’s base rate entity and use the Low Rate if its aggregated turnover is less than $50m and 80% or a less of its assessable income is base rate passive income. Passive income includes such things as dividends and rent.

The maximum rate that a company can use to frank dividends is its corporate tax rate for imputation purposes. It is worked out based on the company’s position in the prior year. It is either the current year Low Rate or the High Rate based on the prior year’s levels of aggregated turnover, base rate passive income and assessable income.

If the company was set up in the current year then the maximum franking rate is the Low Rate for the current year.

Constitution allows for digital signatures

Q: When purchasing a new company on your website, does the constitution by default include a clause allowing for digital signatures of Directors? I know you don’t like digital signatures!!

A: You are correct, I do not like digital signatures. But the Constitution is fully updated to allow for all legislation of digital signatures and over Internet meetings, such as:

• Zoom
• Google Meet
• GoToMeeting
• join.me
• Webex for whiteboarding
• Slack

Can an Australian company, itself, give a Power of Attorney?

Yes. It is called a Corporate Power of Attorney. Legal Consolidated Constitutions allow for Company POAs.

Different types of Directors in a Pty Ltd

Over 99% of Pty Ltd companies only have one director. This is for asset protection. But you can have more. There are distinctions in the types of directors. These are all ‘nicknames’ for different roles a director may hold. You can mix and match these powers as the shareholders see fit:

• Managing Director – appointed, by the directors. The “MD” may take all of the board’s power
• Chair of directors – exercises procedural control at the meetings and signs the minutes
• Nominee director – represents the interests of a particular group. For example, employees may be entitled, pursuant to the company constitution, to elect a director
• Alternate director – fills in during a director’s absence
• Executive director – a full-time employee of the company
• Non-executive director – not involved in full-time management of the company. Not an employee. An outsider is free of any business or other relationship with the company. Considered ‘independent’. Often these are experts. They provide specific expertise for certain areas of the company’s business
• Governing director – see below

The above expressions are descriptive. They are not strict legal terms. Because you have a Legal Consolidated Constitution you can change and amend the powers of the directors.

Maintaining a company register

A Pty Ltd company in Australia requires a company register. All Australian companies keep some form of written financial records that:

• record and explain the financial position and performance
• enable accurate financial statements to be prepared

Requirements for company ‘books’ and registers

Section 9 Corporations Act defines ‘books’ to include:

• registers
• records of information
• financial reports
• financial records
• other documents

All Australian Pty Ltd companies maintain ‘books’. The common expression is the ‘company secretary file’. The Corporations Act sets out how this is maintained. It also states who is provided access to the information in the company secretary file.

You suffer penalties if you fail to maintain the company’s books, destroy or falsify them. For example, false minutes carry a fine and two years in jail.

Mandatory company books and their requirements are:

• The Constitution – Is available for inspection at the company’s registered office. Access is provided (at no charge) to ASIC, directors, the auditor, liquidators, receivers, administrators, debenture holders and anyone authorised by ASIC and (for a fee) to shareholders (Authorised Persons).
• Financial Records – Are kept for seven years. See section 286. They are also available for inspection. Keep them at the company’s registered office. Otherwise, you need to go out of your way to let ASIC know where they are kept. You provide access to the finances to the Authorised Persons for a fee. However, members see the finances for free.

  • These financial records can be electronic. But they must be convertible into hard copy. You must be able to print them.

  • Even if the financial records are held by your accountant, you, as a company officeholder, are still responsible for providing copies to auditors or anyone entitled to inspect your records.

• Minute book of Directors’ Meeting – Minutes are recorded in the Directors’ minute book. This is within one month of the meeting. These are available for inspection at the registered office and principal place of business. The Authorised Person, other than members, access Directors’ Minutes.
• Minute book of Members’ Meetings – As with Directors’ meetings minutes are recorded within one month of the members’ meeting. They are available for inspection at the registered office, principal place of business or elsewhere approved by ASIC. The Authorised Person access the shareholders meeting minutes.
• Register of Members – Section 169 Corporations Act requires an up to date register of all shareholders. This is for 7 years. And showing the changes over that 7 years of incoming and outgoing members. The register is kept in Australia. This is at either the registered office, principal place of business or at an ASIC approved share registry. It is available for inspection. Access to these documents is provided to both the Authorised Persons and the general public for a fee. This Register of Members includes:
  • names
  • addresses
  • share certificate number
  • amount paid for the shares
  • number of shares held
• Debenture holders and option holders – only if they exist these interests are also recorded.

Does an Australian Company Secretary file be electronic?

Section 1306 Corporations Act 2001 permits companies to prepare and store their ‘books’. This includes registers and minutes, in a ‘mechanical, electronic and other device’.

But, the data stored in the device must be able to be reproduced ‘at any time’ in a written form. You must be able to print it out.

Also, Pty Ltd companies take reasonable precautions to protect its records against damage and tampering.

A company is also obliged to keep written financial records that correctly record and explain the company’s activities, financial position and performance. See section 286 Corporations Act 2001.

These records are kept for seven years. Section 288 allows financial records to be kept electronically. But, again, this is so long as they can be converted into a hard copy on demand.

Minutes must be signed with a wet signature

Electronic signatures are recognised in Australian law under the Electronic Transactions Act 1999 (Cth). States adopt similar rules.

But these provisions do not apply to the Corporations Act 2001. Therefore, minutes are signed in hard copy before electronic storage.

Governing Director in a Pty Ltd

Q: I want to appoint a Governing Director. This is so they cannot be removed. They are on the Board until they die, become of unsound mind or resign.

The powers of the Governing Director are:

• Appoint new Directors and remove them
• Solely call a Shareholder meeting
• Had final approval on any discussions past at Directors’ meetings

A: Also, a Governing director has:

• life tenure; and
• control of the board for life. This is not the case for public companies.

Shareholders Agreement

After your company is incorporated think about a Shareholders Agreement. This is if you have more than just you and your spouse control the Pty Ltd company. Shareholders agreements are in addition to the constitution. It between the members. It governs share ownership and transfers, dividend policies and management roles. They override the constitution.

Build a Shareholders Agreement. And in the Minutes have the shareholders unanimously agree to the powers of the Governing director.

For more legal advice on incorporating a company telephone us.

Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm

National Australia law firm
Mobile: 0477 796 959
National: 1800 141 612
Email: [email protected]