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Corporations Act. Australia
Читать онлайн.Название Corporations Act
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isbn 9785392086429
Автор произведения Australia
Жанр Юриспруденция, право
Издательство Проспект
Under the Corporations Act, all proprietary companies must keep sufficient financial records to record and explain their transactions and financial position and to allow true and fair financial statements to be prepared and audited. Financial record here means some kind of systematic record of the company’s financial transactions — not merely a collection of receipts, invoices, bank statements and cheque butts. Financial records may be kept on computer.
[sections 286–289]
10.3 Preparing annual financial reports and directors’ reports
The Corporations Act requires a small proprietary company to prepare an annual financial report (an annual profit and loss statement, a balance sheet and a statement of cash flows) and a directors’ report (about the company’s operations, dividends paid or recommended, options issued etc.) if:
• the shareholders with at least 5 % of the votes in the company direct it to do so; or
• ASIC directs it to do so.
Unless the shareholders’ direction specifies otherwise, the company must prepare the annual financial report in accordance with the applicable accounting standards.
Although the Corporations Act itself may not require a small proprietary company to prepare a financial report except in the circumstances mentioned, the company may need to prepare the annual financial reports for the purposes of other laws (for example, income tax laws). Moreover, good business practice may also make it advisable for the company to prepare the financial reports so that it can monitor and better manage its financial position.
Large proprietary companies must prepare annual financial reports and a directors’ report, have the financial report audited and send both reports to shareholders. They must also lodge the annual financial reports with ASIC unless exempted.
[sections 286–301, 319–320]
11 Disagreements within the company
11.1 Special problems faced by minority shareholders
There are remedies available to a shareholder of a company if:
• the affairs of the company are being conducted in a way that is unfair to that shareholder or to other shareholders of the company; or
• the affairs of the company are being conducted in a way that is against the interests of the company as a whole.
A Court may, for example, order the winding up of a company or the appointment of a receiver.
[sections 232‑235, 461]
11.2 Buy — back of shares
A company may buy back the shares of a shareholder who wants to sever their relationship with the company.
[sections 257A—257J]
11.3 Selling shares
A shareholder in a company who wants to sever their relationship with the company may decide to sell their shares. However, the shareholder may not be able to sell their shares readily — particularly if they want to sell their shares to someone who is not an existing shareholder. Some of the difficulties they may face in that case are:
• under the replaceable rules the directors have a discretion to refuse to transfer the shares; and
• restrictions in the company’s constitution (if any) on transferring shares.
[sections 707, 1041H, 1091D‑1091E]
12 Companies in financial trouble
12.1 Voluntary administration
If a company experiences financial problems, the directors may appoint an administrator to take over the operations of the company to see if the company’s creditors and the company can work out a solution to the company’s problems.
If the company’s creditors and the company cannot agree, the company may be wound up (see 12.3).
[Part 5.3A]
12.2 Receivers
A receiver, or receiver and manager, may be appointed by order of a Court or under an agreement with a secured creditor to take over some or all of the assets of a company. Generally this would occur if the company is in financial difficulty. A receiver may be appointed, for example, because an amount owed to a secured creditor is overdue.
[Part 5.2]
12.3 Winding up and distribution
A company may be wound up by order of a Court, or voluntarily if the shareholders of the company pass a special resolution to do so.
A liquidator is appointed:
• when a Court orders a company to be wound up; or
• the shareholders of a company pass a resolution to wind up the company.
[Parts 5.4, 5.4B, 5.5].
12.4 Liquidators
A liquidator is appointed to administer the winding up of a company. The liquidator’s main functions are:
• to take possession of the company’s assets; and
• to determine debts owed by the company and pay the company’s creditors; and
• to distribute to shareholders any assets of the company left over after paying creditors (any distribution to shareholders is made according to the rights attaching to their shares); and
• finally, to have the company deregistered.
[Parts 5.4B, 5.6]
12.5 Order of payment of debts
Generally, creditors who hold security interests in company assets are paid first.
[Division 6 of Part 5.6]
12.6 Cancellation of registration
If a company has ceased trading or has been wound up, it remains on the register until ASIC cancels the company’s registration. Once a company is deregistered, it ceases to exist.
[sections 601AA—601AB, 601AH]
Part 1.6 — Interaction with Australian Charities and Not‑for‑profits Commission Act 2012
111K Bodies corporate registered under the Australian Charities and Not‑for‑profits Commission Act 2012
This Part applies to a body corporate that:
(a) is registered under the Australian Charities and Not‑for‑profits Commission Act 2012; and
(b) is none of the following:
(i) a Commonwealth company for the purposes of the Commonwealth Authorities and Companies Act 1997;
(ii) a subsidiary of a Commonwealth company for the purposes of that Act;
(iii) a subsidiary of a Commonwealth authority for the purposes of that Act.
111L Provisions not applicable to the body corporate
(1) A provision of this Act mentioned in the following table does not apply to the body corporate, subject to any conditions prescribed by the regulations for the purposes of this subsection in relation to the provision:
Provisions of this Act that do not apply to bodies corporate registered under the ACNC Act
Item
Column 1
Provision(s)
Column 2
Topic
1
subsection 136(5)