Corporations Act - Australia

Скачать книгу

be made even if an officer or agent of the company acts fraudulently, or forges a document, in connection with the dealings.

      (4) A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.

      129 Assumptions that can be made under section 128

      Constitution and replaceable rules complied with

      (1) A person may assume that the company’s constitution (if any), and any provisions of this Act that apply to the company as replaceable rules, have been complied with.

      Director or company secretary

      (2) A person may assume that anyone who appears, from information provided by the company that is available to the public from ASIC, to be a director or a company secretary of the company:

      (a) has been duly appointed; and

      (b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director or company secretary of a similar company.

      Officer or agent

      (3) A person may assume that anyone who is held out by the company to be an officer or agent of the company:

      (a) has been duly appointed; and

      (b) has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar company.

      Proper performance of duties

      (4) A person may assume that the officers and agents of the company properly perform their duties to the company.

      Document duly executed without seal

      (5) A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices.

      Document duly executed with seal

      (6) A person may assume that a document has been duly executed by the company if:

      (a) the company’s common seal appears to have been fixed to the document in accordance with subsection 127(2); and

      (b) the fixing of the common seal appears to have been witnessed in accordance with that subsection.

      For the purposes of making the assumption, a person may also assume that anyone who witnesses the fixing of the common seal and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices.

      Officer or agent with authority to warrant that document is genuine or true copy

      (7) A person may assume that an officer or agent of the company who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.

      (8) Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.

      130 Information available to the public from ASIC does not constitute constructive notice

      A person is not taken to have information about a company merely because the information is available to the public from ASIC.

      Part 2B.3 — Contracts before registration

      131 Contracts before registration

      (1) If a person enters into, or purports to enter into, a contract on behalf of, or for the benefit of, a company before it is registered, the company becomes bound by the contract and entitled to its benefit if the company, or a company that is reasonably identifiable with it, is registered and ratifies the contract:

      (a) within the time agreed to by the parties to the contract; or

      (b) if there is no agreed time — within a reasonable time after the contract is entered into.

      (2) The person is liable to pay damages to each other party to the pre‑registration contract if the company is not registered, or the company is registered but does not ratify the contract or enter into a substitute for it:

      (a) within the time agreed to by the parties to the contract; or

      (b) if there is no agreed time — within a reasonable time after the contract is entered into.

      The amount that the person is liable to pay to a party is the amount the company would be liable to pay to the party if the company had ratified the contract and then did not perform it at all.

      (3) If proceedings are brought to recover damages under subsection (2) because the company is registered but does not ratify the pre‑registration contract or enter into a substitute for it, the court may do anything that it considers appropriate in the circumstances, including ordering the company to do 1 or more of the following:

      (a) pay all or part of the damages that the person is liable to pay;

      (b) transfer property that the company received because of the contract to a party to the contract;

      (c) pay an amount to a party to the contract.

      (4) If the company ratifies the pre — registration contract but fails to perform all or part of it, the court may order the person to pay all or part of the damages that the company is ordered to pay.

      132 Person may be released from liability but is not entitled to indemnity

      (1) A party to the pre — registration contract may release the person from all or part of their liability under section 131 to the party by signing a release.

      (2) Despite any rule of law or equity, the person does not have any right of indemnity against the company in respect of the person’s liability under this Part. This is so even if the person was acting, or purporting to act, as trustee for the company.

      133 This Part replaces other rights and liabilities

      This Part replaces any rights or liabilities anyone would otherwise have on the pre — registration contract.

      Part 2B.4 — Replaceable rules and constitution

      134 Internal management of companies

      A company’s internal management may be governed by provisions of this Act that apply to the company as replaceable rules, by a constitution or by a combination of both.

      Note: There are additional rules about internal management in ordinary provisions of this Act and also in the common law.

      135 Replaceable rules

      Companies to which replaceable rules apply

      (1) A section or subsection (except subsection 129(1), this section and sections 140 and 141) whose heading contains the words:

      (a) replaceable rule—applies as a replaceable rule to:

      (i) each company that is or was registered after 1 July 1998; and

      (ii) any company registered before 1 July 1998 that repeals or repealed its constitution after that day; and

      (b) replaceable rule for proprietary companies and mandatory rule for public companies—applies:

      (i) as a replaceable rule to any proprietary company that is or was registered after 1 July 1998; and

      (ii) as a replaceable rule to any company that is or eas registered after 1 July 1998 and that changes or changed to a proprietary company (but only while it is a proprietary company); and

Скачать книгу