Understanding Company Constitution And Its Importance Under Corporations Act

Constitution of Proprietary Company Under Corporations Act

Question:

Constitution of NNC golden australia Ptd. Ltd, refer all the laws and formalities according to Australian company law?

According to the Corporations Act, 2001, section 136 of the act provides that a company will adopt a constitution and that the constitution will provide all the necessary details for the working of the company in the appropriate manner. The constitution would also provide for the special provisions according to the Corporations Act, 2001 (Bevan, 2007). The company further has the rights to modify or repeal any part of the constitution or the constitution as a whole by passing a special resolution.

Preliminary

Nature

The company is a proprietary company and is limited by shares.

Replaceable rules

The replaceable rules in accordance to the Corporations Act will be applicable to the Company.

The internal management of the Company may be governed by:

• As has been given under sec 135 of the Corporations Act, the provisions of the act that applies to the company would be the replaceable rules;
• the Constitution

Objects

The Company has been established with the objective to operate as an accessories business.

Shares

Subject to the Corporations Act all the rights and restrictions in relation to a class of Shares, the Company shall:

• allot and issue Shares; and
• grant options over unissued Shares,

The Corporations Act, 2001 states that the Company will have ordinary shares as well as preference shares. The company rules in this regard are based on these provisions of the Corporations Act.

The Preference shares are to be issued to the members will be according to the rules given under the Corporations Act, 2001 as has been given under the Section 254 (A) (2) along with the four requirements.

The four requirements opine that the company will reserve the right to issue preference shares only under the circumstances when the rights attached to the following matters have been approved by a special resolution of the company. These matters are:

• repaying of capital;
• participating in surplus assets and profits;
• cumulative and non-cumulative dividends;
• voting;
• priority of payment of capital and dividends in relation to other shares or classes of preference shares

Registered holder is absolute owner

Only in accordance with the Corporations Act or this Constitution the Company will not recognize any interest in relation to any share other than the rightful legal owner of the member who is a holder of the share.

Forms of transfer

In accordance to this Constitution of the company and the existing law any member is allowed to transfer one or more shares that he holds by the instrument of transfer after he complies with the rules and regulations of this Constitution.

Instrument of transfer

The instrument of transfer of any Share is required to contain the following:

• it should be in writing;
• it should be in the usual form or in any such form that has been approved by the Director and that the law allows;
• it is required to be executed on behalf of the transfer;
• it should be duly stamped;
• it should be delivered properly to the company;

Suspension of transfers

The registration of the transfer of shares can be suspended by the Directors at any such time or for such period as they deem fit. Moreover, such kind of suspension should not be more than 30 days in one calendar year.

Who can call meetings of Members

In accordance with the Corporations Act, 2001, the Director of Directors can call for a meeting with the members or such specified number of members that the Directors deem fit, at any such time and place as the Directors deem fit.

The Directors can further arrange or call for a general meeting on the request of the members in accordance to the Corporations Act.

Internal Governance of the Company

The members also have the right to call or arrange a general meeting in accordance to the Corporations Act.

How to call meetings of Members 

The Company is required to render a prescribed notice for the meeting before holding any meeting. This notice is required to be given to each and every member, each and every Director and auditor of the Company.

Right to attend meetings

Every member and auditor of the Company is permitted to attend the meetings of the members. Each Director is also permitted to attend and speak at the meetings.

Quorum

The Quorum for a meeting would be as follows:

In such cases when the company has one member, the presence of such member would be adequate to form the quorum and in all other cases the presence of two members would be sufficient to form the quorum, additionally, in substitute of the members, the proxy member or representative of a member can also be present.

Number of votes

According to the Constitution and also the Corporations Act and any prohibitions relating to the shares, every shareholder, every member will have the right of one vote.

Any member who is present has the right to one vote for each fully paid share which the member holds;

The member further has a fraction of one vote for each and every partially paid share that the member holds. This fraction is to be equal to the amount credited on that share that is paid up.

Number of Directors

The Company will have one Director and one Secretary and under no circumstances will the Company have less than one director.

In case the company has no director due to any reason, an ad-hoc director would be appointed for the temporary time span after holding a proper meeting and voting of the members until a permanent director is appointed according to this Constitution.

Appointment of Directors

The first Director will be the individual who is specified to be the Director in the application for the registration of the Company under the Corporations Act.

In accordance to the Corporations Act, the Director is required to give a written consent about his or her intention to become the Director. The Director also is required to give all necessary details about him including his name, address, date of birth and other personal details to the Company.

Vacation of office

A Director reserves the right to resign from his office after the company receives a notice in writing from such Director;

The Company in a written resolution shall appoint any other person, which the Company deems fit as the Director.

Remuneration of Directors

The remuneration which will be payable to the Directors of the Company should be:

(i) restricted to such amount which has been approved by the Cabinet of the State Government and the Shareholding Ministers; or

(ii) in all other cases would be nil.

The First Secretary would be the person who has been specified in the application for the registration of the Company as the Company Secretary.

With respect to the Corporations Act, 2001, the Directors or the Company may under such circumstances make a written resolution under which a sole member may appoint a secretary or in a general meeting an ordinary resolution may be passed to appoint a secretary. However, it should be noted that the term and period shall be clearly mentioned during the appointment.

With regard to any agreement made between the Company and the Secretary, the Directors or the Company by a written resolution when there is a single member or in a general meeting by an ordinary resolution remove any secretary at any appropriate time without any cause.

The Director or the Company may by a written resolution or by any ordinary resolution in a general meeting may revoke or modify the appointment of the Secretary.

General Powers

The Company will have the right to exercise in any such manner allowed by the Corporations Act any power which a proprietary company that is limited by shares may exercise under the Corporations Act.

The Company business is required to be managed by the Directors and under their supervision and direction.

The Directors shall further exercise all the powers of the Company except all those powers that the Corporations Act or this Constitution requires the Company to exercise in the general meeting.

Execution of documents

The Company will have a Common seal and all execution of documents would be done on the fixation of the seal to the document and such fixation needs to be witnessed by:

• At least two Directors or;
• One director and one secretary;

Shareholders

The company may invite people to send their names to be shareholders in the company.

Any person showing interest needs to give a written consent to be a shareholder of the company.

All shareholders will have the right to participate in the surplus assets.

All shareholders would be given the right to cast their vote.

Distributions proportional to paid up capital

With regard to winding up of the company the surplus must be divided among the members in the appropriate proportions which in dependent on the amount paid on the share o the members including the amount credited.

Distributions of assets

Subject to the restrictions related to the class of Shares the winding up of the company would be done with the with the sanctions of the members-

• Distribution of the property or part of the property among the members;
• Distribution between members and class of members

Conclusion

The constitution of NNC Golden Australia Ptd. Ltd. is for a proprietary company that is limited by shares. The constitution has been prepared according to the Corporations Act, 2001in Australia. The Constitution comprises of all the essential data including the necessary rules and regulations that is required for a smooth sailing of a proprietary company that is limited by shares (Tomasic, Bottomley and McQueen, 2002). 

References

Bevan, C. (2007). Corporations law. Rozelle, N.S.W.: Lawbook Co.

Tomasic, R., Bottomley, S. and McQueen, R. (2002). Corporations law in Australia. Leichhardt, NSW: Federation Press.