Corporations Act - Australia

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if the person is specified in the application with their consent as a proposed member, director or company secretary of the company.

      (2) The shares to be taken up by the members as specified in the application are taken to be issued to the members on registration of the company.

      Note: A member’s name must be entered in the register of members (see section 169).

      121 Registered office

      The address specified in the application for registration for the company’s proposed registered office becomes the address of the company’s registered office on registration.

      122 Expenses incurred in promoting and setting up company

      The expenses incurred before registration in promoting and setting up a company may be paid out of the company’s assets.

      123 Company may have common seal

      (1) A company may have a common seal. If a company does have a common seal, the company must set out on it:

      (a) for a company that has its ACN in its name — the company’s name; or

      (b) otherwise — the company’s name and either:

      (i) the expression “Australian Company Number” and the company’s ACN; or

      (ii) if the last 9 digits of the company’s ABN are the same, and in the same order, as the last 9 digits of its ACN — the expression “Australian Business Number” and the company’s ABN.

      Note 1: A company may make contracts and execute documents without using a seal (see sections 126 and 127).

      Note 2: For abbreviations that can be used on a seal, see section 149.

      (2) A company may have a duplicate common seal. The duplicate must be a copy of the common seal with the words “duplicate seal”, “share seal” or “certificate seal” added.

      (3) A person must not use, or authorise the use of, a seal that purports to be the common seal of a company or a duplicate if the seal does not comply with the requirements set out in subsection (1) or (2).

      (4) An offence based on subsection (3) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      Chapter 2B — Basic features of a company

      Part 2B.1 — Company powers and how they are exercised

      124 Legal capacity and powers of a company

      (1) A company has the legal capacity and powers of an individual both in and outside this jurisdiction. A company also has all the powers of a body corporate, including the power to:

      (a) issue and cancel shares in the company;

      (b) issue debentures (despite any rule of law or equity to the contrary, this power includes a power to issue debentures that are irredeemable, redeemable only if a contingency, however remote, occurs, or redeemable only at the end of a period, however long);

      (c) grant options over unissued shares in the company;

      (d) distribute any of the company’s property among the members, in kind or otherwise;

      (e) grant a security interest in uncalled capital;

      (f) grant a circulating security interest over the company’s property;

      (g) arrange for the company to be registered or recognised as a body corporate in any place outside this jurisdiction;

      (h) do anything that it is authorised to do by any other law (including a law of a foreign country).

      A company limited by guarantee does not have the power to issue shares.

      Note: For a company’s power to issue bonus, partly — paid, preference and redeemable preference shares, see section 254A.

      (2) A company’s legal capacity to do something is not affected by the fact that the company’s interests are not, or would not be, served by doing it.

      (3) For the avoidance of doubt, this section does not:

      (a) authorise a company to do an act that is prohibited by a law of a State or Territory; or

      (b) give a company a right that a law of a State or Territory denies to the company.

      125 Constitution may limit powers and set out objects

      (1) If a company has a constitution, it may contain an express restriction on, or a prohibition of, the company’s exercise of any of its powers. The exercise of a power by the company is not invalid merely because it is contrary to an express restriction or prohibition in the company’s constitution.

      (2) If a company has a constitution, it may set out the company’s objects. An act of the company is not invalid merely because it is contrary to or beyond any objects in the company’s constitution.

      126 Agent exercising a company’s power to make contracts

      (1) A company’s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company’s express or implied authority and on behalf of the company. The power may be exercised without using a common seal.

      (2) This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract.

      127 Execution of documents (including deeds) by the company itself

      (1) A company may execute a document without using a common seal if the document is signed by:

      (a) 2 directors of the company; or

      (b) a director and a company secretary of the company; or

      (c) for a proprietary company that has a sole director who is also the sole company secretary — that director.

      Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.

      (2) A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:

      (a) 2 directors of the company; or

      (b) a director and a company secretary of the company; or

      (c) for a proprietary company that has a sole director who is also the sole company secretary — that director.

      Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(6) for dealings in relation to the company.

      (3) A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).

      (4) This section does not limit the ways in which a company may execute a document (including a deed).

      Part 2B.2 — Assumptions people dealing with companies are entitled to make

      128 Entitlement to make assumptions

      (1) A person is entitled to make the assumptions in section 129 in relation to dealings with a company. The company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

      (2) A person is entitled to make the assumptions in section 129 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from a company. The company and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

      (3)

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