What is a Propriety Limited Company?

Describe the law of business in an organisation. 

A Propriety Company is a company, which is not a public company and is privately held by individuals. It may be either a limited company or an unlimited company. Propriety Limited Company is a propriety company in which the shareholders have a limited liability. The shareholders’ liability to pay off the debts of the Company extends to the amount of unpaid amount on the shares held by them (Business.vic.gov.au 2016).

The Australian Securities and Investments Commission (ASIC) is the authority, which registers Companies in Australia. An application form has to be lodged with the ASIC for registration of a Propriety Limited Company (Asic.gov.au 2016).

Section 117 of the Corporation Act, 2001 lays down the guidelines and instructions for lodging an application form with the ASIC (Legislation.gov.au 2016).

According to Section 117, the details, which need to be provided for a Propriety limited Company in the application form, are as follows:

1. a) Type of Company;
2. b) Proposed name of the Company;
3. c) The details (name & address) of persons who consent to be member of the Company;
4. d) The details (name, address, birth date, place of birth) of persons who consent to become a director of the Company;
5. e) The details (name, address, birth date, place of birth) of persons who consent to become a company secretary of the Company;
6. f) Address of proposed registered office of the Company;
7. g) Address of proposed principal business of the Company;
8. h) The details of shares (the class of shares and the number of shares, which the members consent to take up, provided the consent must be in writing);
9. i) The details of the amount to be paid by the members per share including the information whether full amount of the shares shall be paid on registration or not;
10. j) Whether, on registration, the shares are to be beneficially held by the members or not;
11. k) Whether, on registration, the Company will have an ultimate holding company or not;
12. l) The name of the State of Territory where the company is proposed to be registered.

To: NEUTRELA Propriety Limited

I consent to act as a Director of this Company. In compliance with Section 201D of the Corporation Act, 2001, I hereby provide my entire details, which are as follows:

First name: Stephen  

Surname: Stone

Address of residence

Street: 321 Pitt St.     

Suburb/City: Sydney

State: NSW                                

Post Code: 2000

Date of Birth: 20.07.1968

Place of Birth

Suburb/City: Sydney                                                                                        

State: NSW

Date: 20/05/2016

Signature:

To: NEUTRELA Propriety Limited

I do give my consent hereby to act as the Company Secretary and I hereby provide my personal details, which are as follows:

First name: Mark                                                                                              

Surname: Gomes

Address of Residence:

Street: 36 Market Street

Suburb/City: Sydney                         

State: NSW                             

Post Code: 2000

Date of Birth: 16/02/1987

Place of Birth

 Suburb/City: Sydney                                                                                

State: NSW

Date: 20/05/2016

Signature:

To: Ambition Propriety Limited

I, Andrew James, do hereby give my consent to become member of the NEUTRELA Propriety Limited. The class and number of shares, which I agree to purchase, are as follows:

Class of shares: H

Number of Shares: 3780

I also agree to pay, in full, the total amount of the shares at $2.29 per share.

Date: 20/05/2016

Signature:

Section 168 mandates a company to maintain a share register and Section 169 lays down the details to be included in the share register. (Alrc.gov.au 2016).

The following details are to be incorporated in the share register:

1. The name and address of the shareholders;
2. The date of entry of the name of the shareholders in the register;
3. The date of allotment of shares to the shareholders;
4. The number of shares allotted to such shareholders;
5. The classes of shares allotted to such shareholders;
6. Details of paid amount on such shares;
7. Whether full payment has been made on such shares;
8. Details of unpaid amount on such shares.

All these information have to be provided in the share register and any changes in any of this information have to be duly updated from time to time.

Procedure for registration of a Propriety Limited Company

Neutrela

Propriety Limited

Members’ Register

According to Section 134, a company is governed by its constitution or by the replaceable rules, which apply to it, or by both. Section 135 lays down the list of companies to which the replaceable rules apply (Legislation.gov.au 2016).

The constitution and replaceable rules lay down provisions for the internal procedures to be followed by a Company. The Constitution and replaceable rules are kind of contract and they bind the members with the Company, the directors and company secretaries with the Company, and they also bind the members with each other. These rules apply to carry out the internal management of the company (Rolfe 2013).

The constitution of NEUTRELA Propriety Limited lays down the following provisions with respect to “H” class redeemable preference shares:

1. The holders of this class of shares shall not be allowed to attend any meeting of the Company.
2. They shall also not be entitled to vote in any meeting of the Company.
3. The Company may return the amount paid up by the holder of redeemable preference shareholders and may redeem all such shares or may redeem part of those shares from time to time. The Company before doing such act shall give a notice, 7 days before, to the last known address of such shareholder, and on the expiry of 7 days of delivery such notice, the shares shall be considered to have been redeemed;
4. The Company shall give priority to this class of shareholders, with respect to returning the amount paid up by the shareholders, in case of winding up of the Company;
5. The “H” class redeemable preference shareholders are not allowed to participate in the division of excess profits/assets of the Company;
6. This class of shareholders are entitled to such non-cumulative dividend as are deemed fit by the Director and have no right to any cumulative dividend.  

A company is a separate legal body and it has been endowed with certain powers and capacities under Section 124 of the corporation Act, 2001. (Alrc.gov.au 2016).

 It may exercise all such powers as is necessary for carrying out its operations. It has a distinct existence of its own and it has full control and access to its properties and assets. It has legal capacity in the sense that all acts done by a Company will be considered to be valid and binding. The acts done by a Company cannot merely be considered to invalid in the sense that the acts were not done in the best interest of the Company.

This provision has mainly been incorporated to protect the interest of the third parties dealing with the Company. Third parties dealing with the Company are entitled to full protection, all transactions entered into between the Company and the third parties will be considered valid and binding. Thus, section 124 ensures to build up a legal relationship between a Company and a third party and none of the dealings between a bona fide third party and a Company shall be considered invalid so long as the Company is not acting contrary to any law made by a State or a Territory. Section 124, in a way, has also displaced the doctrine of ‘ultra vires’; it gives legal recognition to all acts done by the Company.

The Constitution of a Company sets out the rules and procedures, which it has to follow. These are internal procedures, which a company ought to follow in its transactions with an outsider. An outsider, dealing with a company may or may not have the knowledge whether all the internal procedures of the company have been followed or not. If a person enters into a transaction with a Company in good faith and with a bona fide belief that the Company has followed all internal procedures and afterwards it is found that there was irregularity in the internal procedures for which the dealing becomes invalid, then he may suffer a loss or damage with respect to such dealing. Section 129 has therefore been designed to protect the interests of such outsiders who deal with the company with a bona fide intention and has no knowledge of the procedural irregularities of the Company.

Sample registration form

This rule is also known as the rule of ‘indoor management’. This rue was enunciated in the case of Royal British Bank vs. Turquand. In this case, the Company, ‘Turquand’ had borrowed loan from the Bank in an irregular manner and thereafter failed to repay the loan amount. The Company contended since the loan was approved in an irregular manner, therefore it was not bound to repay the same. The Court rejected such contention. The principle laid down in this case is that an outsider or a third party is entitled to assume that the Company has duly complied with all the internal procedures and consequently all transactions entered into between the company and the third party shall be considered valid and binding (Stannard 2015).

The same rule has been incorporated under Section 129 of the corporation Act, 2001. 

The Directors of a Company play a vital role in managing the affairs of the Company. All the valuable assets of the Company are entrusted to the Directors, they are completely aware of financial situation of the Company, and they need to take responsible steps at every stage of the Company’s progress (Hussain et al. 2015).

During insolvency period of a Company, the Directors are ought to act more carefully and have to take steps by taking into consideration the best interest of the creditors and shareholders. During this period, if a Director knowingly takes credit from a person and such person suffers a loss due to the insolvency of the Company; in that case the Directors cannot be allowed to get away with it (Keay 2015).

Therefore, Section 588(M) (3) has been incorporated in the Corporation Act, 2001, which directs the Directors to return the amount lost or suffered by the Creditors who advanced loan during the insolvency period of a Company.

This rule has been laid down to give effect to the concept of ‘lifting of corporate veil’. A company has a distinct legal personality and all the acts done by a Company are attributed to it. In case of a fraudulent act done by a Company, this veil has to be pierced in order to find out the main culprit (Lam 2015)

Section 588(M) (3) demonstrates an instance of the application of this principle and imposes liability on the Directors who, during insolvency of a Company or at a time when the Company is about to get insolvent, knowingly takes loan from a creditor and causes loss to him. 

References

Alrc.gov.au. (2016). Corporations Act 2001 (Cth) | ALRC.

Anderson, H., 2014. Pressing the right buttons: Australian case studies in the protection of employee entitlements against corporate insolvency.International Labour Review, 153(1), pp.117-142.

Asic.gov.au. (2016). ASIC Home | ASIC – Australian Securities and Investments Commission. 

Briggs, K., 2012. The name of the game. Keeping Good Companies, 64(1), p.21.

Business.vic.gov.au. (2016). Business structures: 

Fittler, D. and Tobin, G., 2012. From incorporated association to a company limited by guarantee: Part 1 Comparison of legal structures suitable for NFPs.

Freudenberg, B., 2013. Lifting the Veil on Foreign Tax Flow-Through Companies: Could Australian Closely Held Business Benefit from Their Governance Regimes?. Australian Journal of Corporate Law, pp.201-232.

Goulding, S., 2013. Principles of company law. Routledge.

Hussain, M., Hussain, S. and Awais, A., 2015. Understanding Corporate Governance and Board of Directors: A Generic Analysis.

Keay, A., 2015. The shifting of directors’ duties in the vicinity of insolvency.International Insolvency Review, 24(2), pp.140-164.

Lam, C.L., 2015. Piercing the Corporate Veil.

Legislation.gov.au. (2016). Corporations Act 2001. 

McQueen, R., 2013. A Social History of Company Law: Great Britain and the Australian Colonies 1854–1920. Ashgate Publishing, Ltd..

Nyombi, C., 2014. Lifting the veil of incorporation under common law and statute. International Journal of Law and Management, 56(1), pp.66-81.

Rolfe, J., 2013. Shareholders’ right to know.

Shepherd, C. and Ridley, A., 2015. Company Law. Routledge.

Stannard, K., 2015. Unravelling the Turquand Rule: the law. Without Prejudice, 15(10), pp.79-80.

Stewart, James B. (American journalism professor) 2013, “Hiding behind the corporate veil”, Fordham Journal of Corporate & Financial Law, vol. 18, no. 1, pp. 1.