Congratulations you are about to convert to a single director company on our law firm’s website. You are building everything you need including:
* the Constitution
* Member Minutes
* law firm letter
Do not send a copy of the new Constitution to ASIC. There are no ASIC fees when you convert to a single director company. You are now allowed to have one of the directors resign.
As we have drafted the convert to a single director company, each shareholder signs to give their consent. If you can’t get every shareholder to sign please telephone us.
Yes, this convert to a single director company update allows a two director Pty Ltd to be converted to a sole Director/Secretary Pty Ltd. It is part of the change.
The shareholders can have Governing Director shares. The shares can be owned by different directors and other shareholders. And the shares can have different rights. By changing the directors none of these shareholdings change. There is, therefore, no Capital Gains Tax or other issues. The conversion from two or more directors to just one has no such taxation issues. You only get CGT issues if you change the ownership of shares. This convert to a single director company update does not do that.
The Constitution is a contract between the company, directors and shareholders (members). It is not mandatory to create a constitution. Your internal procedures are, instead, governed by government Replaceable Rules. However, no accountants, lawyers or financial advisers would advise your company to rely on these Replaceable Rules. This is because Replaceable Rules are not tailored to your specific needs. Relying on Replaceable Rules is dangerous.
Your company must have a set of rules. The rules are either in:
* a Constitution – which you are about to build; or failing that
* Replacement Rules – set out in the Corporations Act
We often review a company incorporated on a non-law firm’s website. To ‘save time’ the non-law firm website adopts Replacement Rules for:
1. a sole director, sole member company; or
2. a Self-Managed Super Fund corporate trustee (special purpose company)
However, both of these companies must have a Constitution.
Further, the Replaceable Rules are the bare minimum. There are additional powers that a company should have – our Constitution contains these additional powers and benefits.
Also, the 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 the shareholders. In contrast, constitutions can be amended at any time by the Members, just as you are about to do.
Trade creditors and banks often require company directors to all sign personal guarantees. You guarantee the company’s debt. If the company cannot pay then they come looking for you, the guarantor.
We had one situation where (by mistake) mum and dad were both directors of a company. The lender required both sign personal guarantees for the companies’ new loan. Mum refused to sign. Instead, they amended the company constitution to allow a one director company. Dad then applied as a single director to the same person at the same bank. The wife was no longer required to sign a guarantee. The company got the loan.
Think twice before allowing the ‘safe house’ spouse to sign guarantees. For asset protection see here.
The Constitution you are building updates your company’s internal rules and procedures. It allows you to convert to a single director company. It fully complies with changes to the Corporations Act. The 7 improvements are:
Technology has changed how a board can communicate with itself, employees and shareholders. When you replace a Company Constitution it is updated to reflect how changes in technology affect your business operations. Traditionally board decisions are mailed out in physical form to shareholders. However, email is a faster form of communication that is used by many businesses to correspond with shareholders. Your convert to a single director company update takes into consideration how instantaneous communication affects your shareholders. Further, your constitution outlines how technology can be used in meetings.
In 2010, the Australian government amended section 254 of the Corporations Act. This section governs how dividends are paid.
Before 2010 the Corporations Act stated that dividends could only be paid from company profits. However, after 2010 a company is not allowed to declare a dividend unless:
1. the company’s assets exceed its liabilities; and
2. the payment is fair and reasonable; and
3. the payment does not materially prejudice the company’s ability to pay its creditors.
Under an old constitution, you may not have been able to legally pay dividends. Insolvency specialists pursue this argument. They challenge all dividends that you have paid since 2010.
Shareholders can cast a vote regarding a meeting. Do it either online or through personalised voting forms. Members do not need to attend the meeting and can appoint a proxy. Your new Constitution improves meeting efficiency.
Share buybacks allow companies to buy back its shares from the shareholders. In Australia, there are 5 types of share buybacks. They are: equal access, on-market, employee share scheme, selective buy-back and minimum holding. Replace a Company Constitution and ensure the legality of the share buyback.
A company has the power to issue preference shares under Australian law. Your new Constitution ensures that the preference shares are clear.
The Corporations Act now permits sole director companies. You now only have to have one director for your company. Before this time, you had to have a minimum of 2 directors. This would often be a wife and husband.
Having two directors was a disaster for asset protection. Instead of one, both directors go bankrupt along with the insolvent company. Owe money to the ATO for PAYG or superannuation? Then all the directors are liable automatically for such unpaid debts. Better only a single director goes down with the sinking ship.
Asset protection at a basic level is having no assets in a risky person’s name. Instead, assets are in the safe person’s name. This is called the ‘man of straw and the woman of substance’.
Your new Constitution allows you to have a single director.
When you replace a Company Constitution you get a Division 7A Loan agreement. It works for each Member and for any new Member. Build one here.
Australian companies created before 1 July 1998 had a ‘Memo & Articles of Association’. Like old Constitutions, your Memo & Articles of Association still operates but not well. Like old Constitutions, faults with the Memo & Articles of Association include:
requiring an Annual General Meeting (AGM). However, the law no longer requires an AGM for Pty Ltd companies. No one has AGMs anymore. But if you don’t then your company is non-compliant. This is for both taxation and insolvency laws. Your new Constitution ensures that you don’t have to have AGMs.
stating a ‘list of objects’. This is the purpose of the company. E.g. ‘sell fishing tackle and retail’. What if your company now does something else, such as acting as a trustee of a doctor surgery? Then you break the law. Your company is acting ‘ultra vires’. It is acting outside its powers. Again, your company is non-compliant. Legal Consolidated’s Constitution allows you to do anything a human can do – and more.
requiring two directors. As stated above, the laws have changed. You now only need one director. It is safer to only have one director in case the company goes insolvent.
requiring illegal actions. Instead, update the company constitution to allow these correct powers:
* exercise corporate powers
* issue and allot shares
* not avoid liability (a very strange requirement)
* transfer shares
* vote and proxies
* appoint directors and company secretary
* conduct general and director meetings
* sign bank documents, loans and mortgages (however this may be useful because banks often cannot enforce a loan made by a company that is still working under the old Constitution or M&A)
For more legal advice telephone us. We are a law firm. We can help you answer the questions to convert to a single director company.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm
39 Stirling Highway, Nedlands, WA 6009
Mobile: 0477 796 959
National: 1800 141 612
Email: [email protected]