Incorporation And Registration Of A Company In Australia

Application

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There are a number of business structures which can be followed by the prospective business runners in the nation. Amongst these, the key one is a company form of business structure, which has perpetual succession, unlimited liability, can raise funds from public and has a complex setting up process (Australian Government, 2016). The Corporations Act, 2001 (Cth) is the governing act in Australia, which covers different provisions including the incorporation and registration of the companies. When an individual makes a decision to go forward with a company sort of business structure, the very first decision which has to be made relates to which type of company one needs to opt for. This is because under section 112 of this act, an individual could opt for either a proprietary company or a public company. These two are further divided, where a proprietary company can be either limited by shares or be unlimited with share capital. On the other hand, a public company can also have these two forms, along with being a no liability company and limited by shares (Australian Government, 2017). A key difference between the two types of companies can be inferred from the fact that the public companies can raise shares from general public, but the proprietary companies can only raise shares from their acquaintances, friends and families, and not from the general public (Australian Institute of Company Directors, 2016).

Once the decision on the type of the company has been undertaken, the individuals have to make a decision on the name of the company. The availability of a particular name of the company can be checked online. Under section 147 of Corporations Act, the companies can freely chose any name, so long as it does not clash with the name of an existing company as a per-existing name cannot be given to another company. The rationale behind this is that on the basis of the name of the company, the company can sue or be sued by others. Under section 148, the requirement is given that the name of the company to be formed can be selected on the basis of availability or on the basis of the ACN of the company, which stands for the Australian Company Number (Australian Government, 2017).

The company’s name shows the kind of company it is as the name is affixed with certain terms denoting the same. So, for a company having no liability, the words “No Liability” would be stated at the end, and for the limited company, the term would be “Limited” at the end of the company name (Department of Industry, Innovation and Science, 2016). Once the name of the company has been shortlisted, section 152 requires an application to be made to the Australian Securities and Investments Commission, or short for ASIC, so that this particular elected name can be reserved (Australasian Legal Information Institute, 2017).

The Tort of Negligence and Piercing of Corporate Veil Concept

Section 117 of this act provides that the application which is submitted to ASIC should have certain details like the name and details of the members, the address of the registered office of the company, the share details, and the like (Australian Government, 2017). Upon the ASIC being satisfied that the required items are covered under the application, pursuant to section 118 of this act, the ASIC provides the company with the ACN and the company is registered pursuant to which a certificate is issued in which the name, the type and the ACN is covered. And section 119 provides that the day on which the company is registered, becomes the day of its inception. And till the company is de-registered, the company exists (Australasian Legal Information Institute, 2017).

The next decision relates to the choice between constitution and replaceable rules. Replaceable rules are covered under section 141 of this act and are applicable on certain specified provisions only. Hence, mostly, a constitution is opted, which is covered under section 136 of this act. The constitution can be adopted before or after the company is registered. But where it is adopted afterwards, there is a need for a written agreement to be formed which states that a constitution is being adopted and there is also a need of special resolution (ASIC, 2017a). When the application is filed with ASIC, section 117 dictates that the application needs to clearly specify between which two of the governing instrument is being adopted.  

Once the company is incorporated, the affairs of the business can be initiated. Further, there is a need to follow all the key statutory instruments which apply on the company. The name of the company is to be clearly stated on all its communication documents, along with the ACN. Lastly, the details of the company always have to be kept updated (ASIC, 2017b).

In the rules segment, the process of incorporation and registration of the company has been stated which needs to be followed by Richard and his two sons when they want to convert their family business in the company form of business structure. Apart from this, they need to make a decision upon what the name of the company would be, along with the type of company. As the need is of raising money from general public, the public type of company, which is limited by shares, should be opted. For the name part, whichever of the two names is available should be adopted. There is an option of keeping both names, where one could be the name of the company and the other could be the name of the business. Lastly, there is a need to choose between constitution and replaceable rules. As replaceable rules are deemed as restrictive, they should opt for a constitution formed before the incorporation of the company.

Hence, it can be concluded that Richard and his two sons have to follows the procedure laid down in the rules segment; and for the dispute regarding the name of the company, they have to mutually reach a resolution. Lastly, for their needs, a public company limited by shares and ruled by constitution needs to be adopted.

Amongst the different torts in Australia, is the key tort of negligence. Under negligence, party X owes a duty of care to party Y, where the actions of X have the capability of injuring/ harming party Y and where the injury/ loss is foreseeable in a rationale manner (Trindade, Cane and Lunney, 2007). When such a duty is breached, the aggrieved party can apply for remedies in form of damages (Latimer, 2012).

The company form of business structure has a unique characteristic of being a separate artificial legal person, whereby they are treated in a separate manner from the ones who run the affairs of the company. This means that for the actions of the directors and the management, the company cannot be made accountable. However, a key exception to this can be found in the piercing of corporate veil whereby the courts, in just cases, can pierce the veil of corporate as is held by the entity, and make the ones running the business off the company, liable for the undertake actions (Vanderkerckhove, 2007). Hence, where a company has been created just for evading the liabilities of the old company, the incorporation of the new company is deemed as a facade or sham. And in such cases, the corporate veil of the new company is pierced and the old company is held accountable for their negligence (Cheng, 2011).

For further explaining this, reference needs to be made to Creasey v Breachwood Motors Ltd [1993] BCLC 480; 10 ACLC 3,052 in which a new company was formed to evade the liabilities of the old company arising from the wrongful dismissal of the old company’s employee. And so, the court held that in the interest of justice, it was necessary to pierce the corporate veil. And ultimately, the new company was made liable for the money to be paid for the wrongful dismissal (French, Ryan and Mason, 2016).

In this case, the company Lazarus Pty Ltd had been incorporated so that the liabilities of GMS could be avoided. The liabilities of CMS were raised as a result of the employees and the residents of a particular area getting cancer as they had been negligent in their work. Applying the case of Creasey, the new company here would be made liable. Hence, Lazarus Pty Ltd would be required to pay the liabilities of CMS arising out of their negligence.

It has already been stated that the companies have a separate legal entity status in the nation as per which, the subsidiary and its holding company are deemed as two separate entities. Though, in cases where such circumstances are present which make the court uphold justice and fairness, the court would pierce the corporate veil and set aside the separate legal entity status (Wibberley and Gioia, 2017). Where the company’s conduct is against the law, again the corporate veil would be pierced and the ones responsible would be made accountable for the debts owed by company (Rudorfer, 2009).

In the leading matter of CSR Ltd v Young [1998] Aust Tort Reports 81-468, the parent company’s position was held as being similar to the position of the subsidiary company. And owing to the strong control of the parent company over subsidiaries actions, the holding company was made liable (Anderson, 2008). In another matter of Smith, Stone & Knight Ltd v Birmingham Corp [1939] 4 All ER 116, the veil was pierced due to the subsidiary being an implied agent of the holding company. In this case, the business of the subsidiary was being carried only for the purpose of holding company. Hence, the holding company was required to compensate for the liabilities arising out of subsidiary’s business (Swarb, 2016).

It is very clear from the case study that CMS is subsidiary and CM is holding/ parent company. The control of CM over CMS is clear from the leasing charges being paid to CMS, which were 10% more than the normal rates. And based on CSR Ltd case, CM would be made liable. Also, the work of CMS was being done for CM only. So, based on Smith, the corporate veil will be pierced and CM would be accountable for CMS’s negligence.

For making a case of negligence, there is a need to show the presence of obligation of care, its violation, resulting harm or loss, foreseeability, remotes and direct causation (Kelly, Hammer and Hendy, 2014). In this regard, the Snail in Bottle case, i.e., Donoghue v Stevenson [1932] UKHL 100 proves to be of help. In this case, as a result of the dead snail, the ginger beer bottle was contaminated, which caused D’s sickness and for which she claimed compensation from S. The Court held that the required elements of negligence were present due to which S had to compensate D for her illness as a result of present negligence (British and Irish Legal Information Institute, 2017).

The case study shows that CM owed an obligation of care towards the residents of that area and towards its employees, as people getting cancer from mining activities is a reasonably foreseeable harm. Further the proximity between the parties gave rise to the presence of obligation of care. Hence, based on Donoghue, CM would be required to compensate the residents and the employees for the negligence.

Conclusion

Hence, it becomes very clear that damages would be awarded to Terry for claims raised by her against the three parties.

References

Anderson, H. (2008) Directors’ Liability for Unpaid Employee Entitlements: Suggestions for Reform Based on their Liabilities for Unremitted Taxes. Sydney Law Review, 30 (470), pp. 478.

ASIC. (2017a) Constitution and replaceable rules. [Online] ASIC. Available from: https://asic.gov.au/for-business/starting-a-company/constitution-and-replaceable-rules/ [Accessed on: 26/09/17]

ASIC. (2017b) Starting a company – How to start a company. [Online] ASIC. Available from: https://asic.gov.au/for-business/starting-a-company/how-to-start-a-company/ [Accessed on: 26/09/17]

Australasian Legal Information Institute. (2017) Corporations Act 2001. [Online] Australasian Legal Information Institute. Available from: https://www.companydirectors.com.au/director-resource-centre/organisation-type/organisation-definitions [Accessed on: 26/09/17]

Australian Government. (2016) Business structure. [Online] Australian Government. Available from: https://www.business.gov.au/info/plan-and-start/start-your-business/business-structure [Accessed on: 26/09/17]

Australian Government. (2017) Corporations Act 2001. [Online] Australian Government. Available from: https://www.legislation.gov.au/Details/C2013C00605 [Accessed on: 26/09/17]

Australian Institute of Company Directors. (2016) Organisation definitions. [Online] Australian Institute of Company Directors. Available from: https://www.companydirectors.com.au/director-resource-centre/organisation-type/organisation-definitions [Accessed on: 26/09/17]

British and Irish Legal Information Institute. (2017) Donoghue v Stevenson [1932] UKHL 100 (26 May 1932). [Online] British and Irish Legal Information Institute. Available from: https://www.bailii.org/uk/cases/UKHL/1932/100.html [Accessed on: 26/09/17]

Cheng, T. (2011) The Corporate Veil Doctrine Revisited: A Comparative Study of the English and the U.S. Corporate Veil Doctrines. Boston College International and Comparative Law Review, 34(2), pp. 329- 412.

Department of Industry, Innovation and Science. (2016) Register your company. [Online] Australian Government. Available from: https://www.business.gov.au/info/plan-and-start/start-your-business/business-and-company-registration/register-your-company [Accessed on: 26/09/17]

French, D., Ryan, C., and Mason, S. (2016) Mayson, French and Ryan on Company Law. 33^rd ed. Oxford: Oxford University Press, pp. 140.

Kelly, D., Hammer, R., and Hendy, J. (2014) Business Law. 2^nd ed. Oxon: Routledge.

Rudorfer, M. (2009) Piercing the Corporate Veil. Norderstedt: GRIN Verlag.

Swarb. (2016) Smith, Stone And Knight Limited V Birmingham: 1939. [Online] Swarb. Available from: https://swarb.co.uk/smith-stone-and-knight-limited-v-birmingham-1939/ [Accessed on: 26/09/17]

Trindade, F., Cane, P. and Lunney, M. (2007). The law of torts in Australia. 4^th ed. South Melbourne: Oxford University Press.

Vanderkerckhove, K. (2007) Piercing the Corporate Veil. Netherlands: Kluwer Law International.

Wibberley, J., and Gioia, M.D. (2017) Lifting, Piercing And Sidestepping The Corporate Veil. [Online] Guildhall Chambers. Available from: https://www.guildhallchambers.co.uk/uploadedFiles/PiercingtheCorporate%20Veil.JW,MDG.pdf [Accessed on: 26/09/17]