SMSF Trustee Company

Unfortunately, no.  ACNC registration requirements can be somewhat complex. While our special purpose not-for-profit constitutions are suitable for registration with the ACNC, Patricia Holdings does not participate in the registration of your charity beyond registering it with ASIC.

While both company types have been developed for use by not-for-profit entities, there are some distinct differences.

The NFP Pty Ltd Company is mainly used to act as the trustee of either a public or private ancillary fund. It can also be used however for other not-for-profit purposes such as a charity if it chooses to obtain charity status through the ACNC and the ATO. This product establishes a private company limited by shares. Its funding generally comes from shareholders in the form of share capital and less so from the public. As it is registered as an ASIC special purpose company, its assets cannot be distributed to its shareholders at any time.

Public companies limited by guarantee have been developed for use as a not-for-profit organisation usually seeking charity status. This product establishes a public company that is limited by guarantee meaning it does not have share capital. Instead, its funding mainly comes from the public. The liability of members is limited by the members guarantee which is the nominal amount the member agrees to pay in the event that the company is wound up. LBGs are not permitted to make distributions of profits or assets to its members. LBGs can be considered a special purpose not for profit company or not.

Patricia Holdings provides both of these company types with suitable constitutions for each structure. Contact our friendly team today.

There are various types of structures that would also be suitable for not-for-profit purposes. These include public companies limited by guarantee (or LBGs), incorporated associations, or even trusts. Patricia Holdings can help you set up an LBG or a charitable trust at the click of a button. Incorporated associations are set up through the relevant state or territory so it is recommended you do this yourself. For more information about LBG’s, click here. For further info about our charitable trust deeds click here.

Of course you can. In order to meet ASIC’s eligibility requirements of a special purpose not-for-profit company and take advantage of the reduced annual review fee, you will need to make sure that the constitution:

- Requires the company to pursue charitable purposes only and to apply its income in promoting those purposes;

- Prohibits the company making distributions to its members and paying fees to its directors; and

- Requires its directors to approve all other payments the company makes to them.

- Specifies that on winding-up, the company must distribute its assets to an entity with similar objectives, and not to the company’s members.

No they can’t. Per ASIC’s special purpose eligibility requirements, directors cannot be paid fees or remuneration for their services as directors. There is an additional requirement that any expenses incurred in relation to their duties as directors must be approved before any payment is made back to them. The Patricia Holdings constitution has been drafted in a way that satisfies ASIC’s requirements and allows the not-for-profit company to take advantage of the reduced annual review fees each year.

The capital and profits of a not-for-profit company cannot be distributed to the members – this is what makes the company NFP. Capital and income must be applied solely towards the company’s charitable purpose. This should be written in the company’s constitution.

On winding-up, the assets that are left over after the not-for-profit company has paid its debts must be distributed to another entity with similar objectives to the NFP such as (but not limited to) a charity. Assets cannot be distributed to shareholders at any point.

The ACNC describes ancillary funds as special funds that provide a link between people who want to give (known as ‘donors’) and organisations that receive tax deductible donations (known as ‘deductible gift recipients’ or DGRs). Ancillary funds are set up for the purpose of providing money, property or benefits to DGRs and are established and maintained under a will or instrument of trust. They are endorsed by the ATO as tax exempt. There are two types of ancillary funds:

1. Public – also known as PuAFs, seek donations from the public.
2. Private – also known as PAFs, use donations from business, families and individuals.

The Patricia Holdings NFP Pty Ltd constitution is suitable to use for trustee companies of ancillary funds both public and private.

While a not-for-profit pty ltd company is set up to pursue charitable purposes, this does not mean it is a charity. Charities must be registered with the Australian Charities and Not-for-profits Commission (ACNC) and endorsed by the Australian Taxation Office (ATO) for certain tax concessions. There are further requirements imposed by the ACNC and ATO with regards to the entity’s constitution. If looking to set up a charity, you would need to seek independent legal advice about these requirements and making changes to the company documents provided to you by Patricia Holdings.

A company can issue different classes of shares with the rights and restrictions attached to them distinguishing it from other classes. While a NFP company is unable to make distributions to its members (including on winding up), rights relating to receiving notice of, or attending meetings, as well as voting, and any restrictions on the holders of a particular share class, are still relevant.

Share capital generally allows a company to distribute profits and dividends to shareholders in proportion to the shares they hold meaning that companies registered with shares are considered a “for-profit” structure.

To be considered a special purpose company and be eligible for the reduced ASIC annual review fees, the constitution of a not-for-profit company must be drafted in a way that excludes the company from making distributions to its members or paying its directors and ensures that the company is used to pursue charitable purposes only. This is what makes it a “not-for-profit”.

Yes, the Patricia Holdings Not-for-profit Pty Ltd Company is considered a special purpose company according to ASIC and is eligible for the reduced annual review fee.

The legal requirements for a special purpose not-for-profit company are set out in section 3(d) of the Corporations (Review Fees) Regulations 2003 under the Corporations Act 2001 (Cth). The regulations state that the constitution:

- Requires the company to pursue charitable purposes only and to apply its income in promoting those purposes;

- Prohibits the company making distributions to its members and paying fees to its directors; and

- Requires its directors to approve all other payments the company makes to them.

The Patricia Holdings NFP Pty Ltd constitution complies with these regulations.

Yes, the Patricia Holdings Home Unit Company is considered a special purpose company according to ASIC and is eligible for the reduced annual review fee.

The legal requirements for a special purpose not-for-profit company are set out in section 3(e) of the Corporations (Review Fees) Regulations 2003 under the Corporations Act 2001 (Cth). The regulations state that:

• the company is the proprietor of land on which a building divided into separate residential areas and areas for common use is erected;
• the members of the company are entitled, because of the shares they hold in the company, to the exclusive occupation of 1 or more of the residential areas and to use of the common areas; and
• the company only operates to facilitate and enforce the rights of company members in relation to exclusive occupation of the residential areas and to maintain the common areas.

The Patricia Holdings Home Unit Company complies with these regulations.

A company can issue different classes of shares with the rights and restrictions attached to them relating to distributions, voting and receiving notice of meetings, distinguishing it from other classes. Shares in a home unit company represent the flats or units within the block and are generally split into different “share groups”. The unit entitlements are expressed as a percentage and the share groups denote a particular lot or unit to which the shareholder(s) are entitled to. It is for this reason that we believe issuing different classes of shares would be futile. As such, the Patricia Holdings Home Unit Company Constitution only allows for ordinary class shares to be issued at the time of registration.

A home unit company is a type of proprietary limited company that involves a group of people (directors or members) who own or live in a block of flats or units. The company exists as a body corporate to administer the property. The company will qualify for reduced ASIC annual review fees if:

• the company is the proprietor of land on which a building divided into separate residential areas and areas for common use is erected;
• the members of the company are entitled, because of the shares they hold in the company, to the exclusive occupation of 1 or more of the residential areas and to use of the common areas; and
• the company only operates to facilitate and enforce the rights of company members in relation to exclusive occupation of the residential areas and to maintain the common areas.

Per the Patricia Holdings Home Unit Company Constitution, if the company is wound up and the property of the company is more than sufficient to pay all debts as well as the costs, charges and expenses of the winding up, the excess must be divided among the members in proportion to the unit entitlement held by them. The liquidator may divide among the members the whole or any part of the company, and, determine how the division is to be carried out.

The Patricia Holdings Home Unit Company does not allow for directors to be paid any fees or remuneration for their services as director. Directors of home unit companies are lot owners and not professionals employed for the purposes of managing the company title building.  This follows the situation with strata title committee members.

Of course you can. In order to meet ASIC’s eligibility requirements of special purpose home unit companies and take advantage of the reduced annual review fee, you will need to make sure that:

• the company is the proprietor of land on which a building divided into separate residential areas and areas for common use is erected;
• the members of the company are entitled, because of the shares they hold in the company, to the exclusive occupation of 1 or more of the residential areas and to use of the common areas; and
• the company only operates to facilitate and enforce the rights of company members in relation to exclusive occupation of the residential areas and to maintain the common areas.

Should you choose not to use the Patricia Holdings Home Unit Company Constitution, due to the complexity of this particular company type, we suggest having the constitution drafted by a property law specialist.

Company title schemes were introduced in NSW around 1920 with strata schemes introduced in the 1960s. Generally speaking, the main difference between company title and strata title schemes are that unlike with strata title, in company title the company title owner does not have the title to any real estate but has, through ownership of shares in the home unit company, the right to occupy an apartment or unit in the building owned by the home unit company. A strata title owner on the other hand will obtain a legal interest in the real estate defined by the registered strata plan.

Company title is less common than strata title, as most buildings have chosen to change to strata title but in some areas, company title remains the norm. The shares in the company should correspond to the value of the units based on the size and location of the units in the building. Unlike with strata title, the buyer of a company title home unit does not receive a certificate of title to the property but instead they receive a share certificate.

In company title properties, the Board of Directors is also required to approve the share transfer to a prospective buyer whereas this same approval process is not a requirement of strata title properties.

Company Title Pros

• They are typically more affordable than strata title properties
• Money is saved on strata costs like insurance and administration
• With less complicated approval processes and by-laws, resolving basic disputes or addressing problems may be simpler
• The residents are typically owner-occupiers or permanent residents that have been approved by the board, which may lead to more harmonious living and less short-term occupancy
• There are very specific agreements associated with company title so you know exactly what you’re getting and what can and can’t be done

Company Title Cons

• Prospective buyers need to be approved by the company’s board which will have rules and restrictions on potential owners
• Tenants will also need to be approved if there are no restrictions on whether you can rent your place out to a tenant
• Lenders are more reluctant to approve home loans for company title compared with strata title. There are stricter LMI levels, and the lender may want to see the agreement before approving a mortgage
• Because the company directors approve the transfer of shares (the new buyer) the pool of purchasers and how quickly the unit may sell might be restricted
• Rents might be a little lower than what could be achieved for a strata property
• The apartment’s value may not increase at the same pace as strata title units

There are a few steps to take to convert from company title to strata title such as seeking local council approval, but to put it simply, yes you may convert to strata title in the future. This process is started by way of special resolution of the share group holders.

The two are related but no, they are not the same thing.

A home unit company involves a group of people (directors or members) who own or live in a block of flats or units. The company exists as a body corporate to administer the property. Company title is a scheme of land ownership through which a company (the home unit company) owns the title to the land. Shareholders in the home unit company are entitled to exclusive occupancy of their unit. The owner does not have a title deed but instead they have a Share Certificate representing their ownership of the unit. The building and land would be considered a company title property with the home unit company administering the property.

Per the Patricia Holdings Home Unit Company Constitution, to qualify for appointment, a director is required to be a member of the company either solely or jointly in one or more share groups, or, be the nominee of such member.

A public company is the correct company structure for listing on the stock exchange (ASX) however companies looking to list on the stock exchange in Australia must meet significant legal and regulatory requirements to satisfy the "listing rules". There are also listing requirements that must be met with regards to shareholders, company size, working capital and reporting. Preparing a company for listing should be handled by solicitors or other professionals.

The ASX listing rules can be easily accessed by the public on the Australian Securities Exchange website.

www.asx.com.au
https://www.asx.com.au/regulation/rules/asx-listing-rules.htm

To list a company with Australian Stock Exchange (ASX), the company must satisfy the minimum admission criteria concerning structure, size, free float and number of shareholders. These requirements ensure the quality of the market that ASX operates. The company must:

• have a minimum of 300 non-affiliated investors at $2000 each
• have a free float of 20%
• be of a particular size worked out using the profit test or the asset test.
• If seeking admission under the asset test, the company must also have working capital of $1.5 million

The company does not need to have the required shareholder spread or free float before the listing application is made. The approval for listing is granted subject to the company meeting the shareholder spread requirement through the offer of shares associated with the listing application.

Outside of ASIC’s reporting requirements, public companies listed on the stock exchange must also follow the below reporting criteria:

• Financial reporting is required on a half-yearly and annual basis in Australia
• Certain companies that are listed without a track record of revenue or profit are required to also file quarterly cash flow statements.
• Mining and oil and gas exploration companies are required to file quarterly reports on cash flow, and activities including changes in tenement interests, issued and quoted securities.

Public companies can be registered limited by shares, or limited by guarantee.

Shares are a unit of ownership providing the shareholder with equity in the company. Shares in a public company can be sold to the general public. Each share in a class of shares in a public company must have the same rights to dividends as each other. Public companies limited by shares are generally used by businesses who are seeking fund raising from the general public, or by companies with over 50 shareholders (as they are not allowed to be a private company per ASIC’s rules).

Public companies limited by guarantee (or LBGs) do not have a share capital or shareholders but instead the members act as guarantors. The members agree to pay a nominal amount in the event of the winding up of the company known as the members guarantee. LBGs are used by organisations such as recreational clubs, cultural communities and charitable organisations in Australia.

Patricia Holdings can help you set up your unlisted public company with shares, or limited by guarantee.

The financial reporting obligations of an unlisted public company depend on whether it is a company that is:

• Not a disclosing entity or a company limited by guarantee – these public companies must prepare annual financial reports in accordance with chapter 2M of the Corporations Act 2001 (Cth). These reports must be audited, lodged with ASIC within four months of the financial year end, and, sent to members by the report due date or 21 days before the AGM (whichever is sooner).
• Not a disclosing entity – these public companies are not required to comply with the same reporting requirements as the above if all conditions of ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 are met and the company is not a borrowing corporation, the guarantor of such a borrower, or, a financial services licensee. These companies must be a wholly owned entity and have undertaken a deed of cross guarantee with every company in the closed group.
• Limited by guarantee – public companies limited by guarantee are required to prepare annual financial repost and a director’s report with specific disclosure as set out in section 300B of the Corporations Act 2001 (Cth). These reports must be prepared in accordance with Chapter 2M of the Corps Act and must be audited or reviewed.

Once a public company lists on the stock exchange, their reporting requirements may change.

In Australia, there are two main categories of companies – private (proprietary) (Pty Ltd) companies and public (Ltd) companies with private companies being the most common. The key difference between proprietary companies and public companies is that public companies are open to investment by the public where proprietary companies are not. This makes it easier for public companies to raise capital however it attracts a higher level of regulation and compliance protecting investors and the general public.

While both public and proprietary companies are regulated by ASIC, the level of disclosure a company has to make to ASIC varies depending on their company type. Most small to medium proprietary companies will not be required to lodge financial reports with ASIC but all public companies (unless otherwise exempt) must disclose financial statements, directors’ reports and audited accounts on an annual basis. They must also hold an Annual General Meeting.

There are differing requirements surrounding Officeholders in each company type – proprietary companies must have at least one Director but appointment of a Secretary is not mandatory. Public companies on the other hand must have at least three Directors and one Secretary appointed at all times.

Most small and medium businesses will choose to register as a proprietary company limited by shares however they are restricted to a maximum of 50 shareholders so sometimes a small unlisted public company is a better fit.

Generally speaking you should be able to convert your unlisted public company to a proprietary company down the road. During the life of your company, you may decide that the company type you registered with no longer suits the activities or nature of your business. A special resolution of the members must be passed agreeing to the conversion and a form 205 and 206 lodged with ASIC. Patricia Holdings can help you with these lodgements – contact us today.

Section 162 of the Corporations Act states that only some kinds of company conversions are allowable.  These are outlined below:

In Australia, there are four different types of public companies. These include:

• Public companies limited by shares
  The same as a proprietary company limited by shares, a public company that is limited by shares is a company where the liability of its members is limited to the nominal amount of their shares. Where a proprietary company has a maximum of 50 shareholders though, this public company type has no limit.
• Public companies limited by guarantee
  The difference with a company that is limited by guarantee is that members can guarantee a fixed amount to be undertaken to contribute to the company when it is wound up. These types of companies have no share capital and are generally used for NFPs and Community organisations.
• Unlimited public companies with a share capital
  An unlimited public company with a share capital is a company where its members liability is not limited.
• No liability companies (mining and resource companies)
  In Australia, a no liability public company is a type of public company that has share capital. They can only be used where the principal activity of the company is that of mining or resource exploration.

Patricia Holdings offers two types of public companies – unlisted public companies limited by shares and unlisted public companies limited by guarantee.

A Limited by Guarantee Company is usually a not-for-profit company, or a charity company.

LBGs are formed "on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up" - Corporations Act 2001 (Cth)

A Limited by Guarantee Company must have at least three (3) directors (of which two (2) must reside in Australia), one (1) secretary (must reside in Australia) and one (1) member (can reside in Australia or overseas). It must also have a members guarantee amount and should have its objectives listed in its constitution.

No, LBG Companies have members whose liability is limited to an amount that will be paid on the winding up of the company if the company’s assets are less than its liabilities. This is known as the Members Guarantee. There are no shares allotted thus no share certificates issued.

The constitutions that we provide when incorporating a Public Company Limited By Guarantee (LBG) are suitable if you wish to establish a not-for-profit organisation (NFP), including if you are thinking of registering your NFP as a charity with the Australian Charities and Not-for-profits Commission (ACNC).

Please note however that using any of our constitutions does not guarantee that your application for registration as a charity will be successful because there are a number of factors that the ACNC must consider beyond just your constitution. For more information on the requirements for registration as a charity you can visit the ACNC website at www.acnc.gov.au.

An LBG company that is registered as a charity with the ACNC does not have to pay any annual renewal fees to the Australian Securities and Investments Commission (ASIC).

If your LBG is not registered as a charity then it will need to pay an annual renewal fee. The amount of this fee will depend on whether or not it is a ‘special purpose’ company (see below for more detail).

If you will not be registering your company with the ACNC (and wish to be eligible for reduced annual ASIC fees) or if you would like to operate your LBG without the word ‘Limited’ or ‘Ltd’ in its name, you will have to meet the requirements set down for what is called a ‘special purpose company’. In the context of a charity, this means that your LBG will need to be established for charitable purposes and must contain wording in its constitution that prevents Directors from being paid in their capacity as Directors.

If you choose not to register as a charity, but still meet the ‘special purpose’ company requirements, then your annual renewal fee with ASIC will be reduced by around $1100.

So, if you do want to operate without the word ‘Limited’ or ‘Ltd’, or if you want to prevent payments to Directors for whatever reason, then our constitution entitled "Limited by Guarantee – special purpose not-for-profit" is the one for you.

If you do want to pay Directors then the constitution entitled "Limited by Guarantee- standard constitution" is for you.

Please note - if you want to operate without the word ‘Limited’ or ‘Ltd’ you must first incorporate your company, then register as a charity with the ACNC and then later apply to ASIC for removal.

Warning: While paying Directors in their capacity as Directors does not in and of itself prevent you from being registered as a charity, or even from receiving deductible gift recipient endorsement, it can result in other consequences. For example, requiring ministerial approval to obtain a charitable fundraising authority in NSW, loss of protection under the Civil Liability Act (or equivalent) and being treated differently for the purposes of work health and safety and superannuation laws. We recommend you seek professional advice if you are planning to pay directors in their capacity as directors.

To be eligible to apply for DGR endorsement you must, except in some very limited circumstances, first be registered as a charity with the ACNC.

Please note: Not all charities are eligible for DGR endorsement – i.e. you are not automatically granted DGR endorsement if you are registered as a charity.

To become endorsed as a DGR you must also meet the specific requirements set out for the particular category of DGR that you are seeking. Note there are approximately 50 different categories of DGR.

While each of our LBG constitutions have been prepared with the fundamental and common requirements for DGR endorsement, we strongly recommend that you seek professional advice about the exact requirements for the DGR category that best suits your purposes and activities before lodging a DGR application.

Unfortunately, no.  ACNC registration requirements can be somewhat complex. While our special purpose not-for-profit constitutions are suitable for registration with the ACNC, Patricia Holdings does not participate in the registration of your charity beyond registering it with ASIC.

A company can issue different classes of shares with the rights and restrictions attached to them relating to distributions, voting and receiving notice of meetings, distinguishing it from other classes. A super trustee company has several restrictions on it though which we believe would make issuing different classes of shares futile.

The company is not only prohibited from distributing it’s income or property to its members, it is only permitted to act as trustee of a regulated superannuation fund meaning it wouldn’t be holding any assets for the benefit of its members or deriving any income anyway. Decisions made by the company on behalf of the super fund are made by the trustees of the fund (the directors) in accordance with the Superannuation Industry (Supervision) Act 1993.

It is for these reasons that the Patricia Holdings Super Trustee Constitution only allows for ordinary or preference class shares to be issued at the time of registration. There is however a clause in the constitution that allows members to issue new classes of shares and vary their rights by way of special resolution as they see fit.

A self-managed superannuation fund is a trust structure that provides benefits to its members upon their retirement. The difference between a SMSF and other superannuation funds is that they are, as the name suggests, controlled by the members of the fund. That means the members are also the trustees running the fund for their own benefit. In the case or a corporate trustee, all eligible members of the fund must also be directors of the trustee company.

All assets held by the company are being held for the benefit of the super fund. This means that on a winding up of the company, the assets would either be distributed to the members at their retirement, or they would be transferred over to a new trustee – this transfer could only be to a different trustee company, to the members in their capacity as individual trustees, or, to an industry super fund.

The company may only act in the capacity of trustee of a regulated super fund. Any assets the company holds must be held for the benefit of the members of the super fund. The capital and profits of a super trustee company cannot be distributed to the members. This should be written in the company’s constitution in order for the company to be eligible for ASIC’s concessional annual review fees.

Of course you can. In order to meet ASIC’s eligibility requirements of a special purpose superannuation trustee company and take advantage of the reduced annual review fee, you will need to make sure that the constitution:

• prohibits distribution of the company’s income or property to its members; and
• specifies that the sole purpose of the company is to act as the trustee of a regulated superannuation fund within the meaning of section 19 of the Superannuation Industry (Supervision) Act 1993.

Yes, the Patricia Holdings Superannuation Trustee Company is considered a special purpose company according to ASIC and is eligible for the reduced annual review fee.

The legal requirements for a special purpose superannuation trustee company are set out in section 3(f) of the Corporations (Review Fees) Regulations 2003 under the Corporations Act 2001 (Cth). The regulations state that the constitution:

• prohibits distribution of the company’s income or property to its members; and
• specifies that the sole purpose of the company is to act as the trustee of a regulated superannuation fund within the meaning of section 19 of the Superannuation Industry (Supervision) Act 1993.

The Patricia Holdings Super Trustee Constitution complies with these regulations.

No, we do not sell shelf companies. All of our companies are new. Your company will be incorporated with your choice of name, directors and shareholders.

Through Patricia, you can order your company online, or you can download an order form and email or fax it to us. Online ordering is marginally cheaper than completing a “manual” order form.

To order a company you can follow the links to online ordering.

Click “here” to download a PDF order form for a Standard Pty Ltd Company.

If we have any queries about your order or require any further information we will contact you as soon as possible.

After the company is incorporated the documents are sent out to you by email and/or courier depending on your selection.

The cost varies between company types. Prices can be found here.

Patricia Holdings can incorporate your company, and deliver it to you by courier, printed and bound in a special purpose professional folder from $280 (ex gst) + ASIC fee if you order your company online. When you order our bound hard copy product, for just an additional $15 (ex gst), we will email you a PDF version of your register.

If you prefer to only receive a PDF of your company register, Patricia Holdings charges from $150 (ex gst) + ASIC fee if ordered online.

We offer clients the ability to order via email on a "manual" order form which costs an additional $60 (ex gst) service fee.

We offer clients the ability to order companies 24 hours a day, 7 days a week via our online “Instant” system. In circumstances where the order is error free, does not get flagged for manual review at ASIC and the ASIC system is not down for maintenance, companies are often incorporated and company documents delivered to your email within 10 minutes of the order being received by us.

Where you would like us to review your company data before incorporation, companies are normally delivered as PDFs within an hour of the order being received.

If you are in the Sydney metropolitan area, and order before midday, we are normally able to deliver your couriered company register on the same day. For other areas, or orders received later in the day, in most cases company folders are delivered the next day. For more remote and rural areas delivery can take up to 3 days.

If you have made a mistake in your application and your company has been incorporated with incorrect information you will need to contact ASIC directly. If your mistake is immaterial then ASIC may well be willing to correct the error over the phone. More serious mistakes made by you can be fixed by lodging a Form 492 with ASIC. We are unable to lodge this on your behalf but are more than happy to assist you with the process. ASIC require evidence that we made the mistake if they are to accept the Form 492 from us.

And of course, if we make a mistake we will promptly lodge the Form 492 to rectify the error. 

ASIC needs to be notified of all changes to the company after its incorporation. ASIC provides information about ongoing compliance here and has a range of forms that need to be completed and lodged.

Patricia Holdings is also able to assist with all of your company changes including lodging forms with ASIC and providing minutes for the company register. In most cases, we charge from $100 (ex gst) to lodge your forms with ASIC and provide you with the necessary documents and minutes for your register.

Patricia Holdings is able to register most company types. We can incorporate and provide compliant documents for the following types of companies:

• Proprietary Limited (Pty Ltd)
• Superannuation Trustee
• Public
• Limited By Guarantee
• Home Unit

If you no longer need your company, you can voluntarily deregister your company through ASIC.  This is subject to the following prerequisites:

1. All members of the company agree to the deregistration
2. The company is not carrying on business
3. The company's assets are worth less than $1,000
4. The company has paid all fees and penalties payable under the act
5. The company has no outstanding liabilities
6. The company is not a party to any legal proceedings

Patricia Holdings can complete the required forms, lodge them with ASIC and provide you with the necessary minutes. For more information, click here.

ASIC will then notify Patricia Holdings when they have approved the application (usually about 2 weeks). The application to deregister the company will then be published in the ASIC Gazette which can take around 2 months.

You can check the availability of your chosen name by searching the ASIC register “here”

Alternatively you are more than welcome to call or email us and we can search the name for you.

Different company types have different requirements.

At a minimum you’ll need:

• A company name
• State of registration
• A registered office address - a PO Box address is not acceptable
• Principal place of business address- a PO Box address is not acceptable
• Officeholder details (full name, residential address, date & place of birth)
• Members names and addresses (shareholders)
• Number, class and value of shares

For a Proprietary Company - one (1).

If an overseas Director is appointed to a Proprietary Company it must also have an Australian Resident as a Director.

For Unlisted Public Companies and Limited by Guarantee (LBG) there is a minimum of 3 directors and at least 2 must be Australian residents.

Directors must be at least 18 years old and must not be a disqualified person per the Corporations Act 2001.

For a standard Proprietary Company – none (0)

Appointing a Secretary is not required for a Proprietary Limited Company. All secretaries appointed must reside in Australia.

For Unlisted Public Companies and Limited by Guarantee (LBG) companies there is a minimum of 1 secretary and at least 1 must be an Australian resident.

A company secretary must be at least 18 years old and must not be a disqualified person per the Corporations Act 2001.

The Directors are responsible for the safe and legal running of the company. They must ensure the company complies with any laws applicable to the company’s operations, and also comply with the general duties that the law imposes on individuals that take on the role of director. Some of the key responsibilities that a director takes on include:

the duty to exercise your powers and duties with the care and diligence;

the duty to exercise your powers and duties in good faith in the best interests of the company and for a proper purpose;

the duties not to improperly use your position, or information obtained through your position, to gain an advantage for yourself or someone else, or to cause detriment to the company, and

the duty to prevent the company from trading while insolvent.

In general, the Secretary is responsible for many of the compliance and governance-related administrative tasks of the board and organisation. As company secretaries are an ‘officer’ under the Corporations Act, many of the duties that apply to directors apply to secretaries also, as well as a number of other reporting obligations related to keeping up to date ASIC records. A proprietary company is not required to have a Secretary but are permitted to voluntarily.

Broadly speaking, the shareholders are the owners of a company. A shareholder invests and is liable to the company for the amount agreed to be paid in return for a number of shares. Typically the investment affords the shareholder the right to have a say in relation to key aspects of how the company is run, such as the right to appoint or dismiss the directors of the company. A Shareholder typically also receives the financial benefits from the company.

The Public Officer of a company is the person who deals with the Tax Office in relation to the company's taxation affairs such as record keeping and submitting company returns.

Under the Income Tax Assessment Act 1936 (Cth), Companies are required to appoint a Public Officer within 3 months of the company commencing to carry on a business or derive an income in Australia. If a Company doesn't appoint a Public Officer within that 3 month period, it is guilty of an offence for each day it doesn’t have a Public Officer. Please note that we are unable to appoint the Public Officer on your behalf at the time of incorporation. 

We do however provide both a Consent to Act as Public Officer template and a notification letter that you can send to the ATO after incorporation to ensure compliance. Please note however that the Public Officer can only be appointed to a company that has a TFN and/or ABN.

If Patricia Holidings completes the ABN application for your company you will be asked to nominate a Public Officer and and we are able to appoint this person at the time of lodging the ABN/TFN application.

The appointed Public Officer a must be at least 18 years of age, an Australian resident and must understand the nature of their appointment.

One (1) and that shareholder can be a person or Company. The shareholder(s) can also be an overseas person or Company.

“Beneficially held” means the shareholder gets the direct benefit of owning the shares.

“Non-beneficially” held means that the shareholder is holding the share "as trustee for" or "in trust for" a second entity such as a Trust, a company or another individual.

A Trust can be the beneficial owner but the Trustee of the Trust is the legal owner of the shares and holds the shares on behalf of and for the benefit of the Trust. It is the Trustee who is the shareholder of the company.

Our website defaults shares at $1.00 however you can specify a value of your choosing. If you are registering the company with shares at less than $0.01 each, you will need to contact our office before placing the order.

Not on incorporation.

Yes but they can be valued in cents if you wish.

Yes. We offer a multi-class constitution that allows for shareholders to hold different classes of shares. To see the available classes and attached rights, click here.

The registered office must be an Australian physical address, not a Post Office Box. You cannot use an overseas address.

An Ultimate Holding Company has overall control of another company. It can have any number of subsidiaries but cannot be a subsidiary itself. It is sometimes referred to as a controlling entity.

An example of an ultimate holding company is seen in the instance of Wesfarmers - both Kmart and Coles are separate subsidiary companies, however they are both owned by Wesfarmers, a global conglomerate that has overall control of several smaller companies.

A public company can have an overseas Secretary provided that there is also an Australian Secretary.

For a proprietary company, regardless of how many Secretaries are appointed, they ALL must reside in Australia.

No, we only register Australian Companies in Australia.

This is an 8-digit number unique to a particular company that is sent directly to the Registered Office within 28 days of incorporation. It is like a pin number for your company and must be noted when you lodge some paper documents with ASIC.

If the Corporate Key has been misplaced, you will need to contact ASIC to have it reissued.

Yes, but they will only incorporate the company and provide you with a certificate of registration. They will not provide you with a company register or a constitution. It is a requirement of Corporations Law that a company maintains an up to date corporate register.

Patricia Holdings can register the company and provide you with all the compliance documents you need.

A company constitution is a document that sets out governing rules of a company. It is essentially a contract between the company and its shareholders and officeholders which outlines the rights and obligations that each party has.

No. You can choose to operate using the “Replaceable Rules” which are a basic set of rules for managing your company found in the Corporation Act 2001, but financial institutions will generally require a Constitution for opening bank accounts and other transactions.

No, ASIC supplies the ACN (Australian Company Number) and then you apply to the ATO (Australian Taxation Office) for the ABN after receiving your ACN. It is a separate process.

A company is an entity that has a separate legal existence from its owners. The owners of the company are known as members or shareholders. Its legal status gives a company the same rights as a natural person which means that a company can incur debt, sue and be sued. Companies are managed by company officers who are called directors and company secretaries.

The most common type of company structure is a proprietary limited company (which has the words 'Pty Ltd' after the name). This type of company does not sell its shares to the public and has limited liability.

Yes, this is possible. The only ASIC regulation is that the holder of the business name be a part of the company at the time of incorporation. If the business name holder is:

• a sole trader, then this individual must be an Officer or Member of the company at the time of incorporation.
• a company, then the company must be a Member of the new registration.
• a trust, then the trustee of the trust must be a member of the company holding the shares non-beneficially for the trust. The trust deed will also need to be sighted by ASIC proving the trustee of the trust is who is listed; this can be emailed to Patricia Holdings who will forward on to ASIC with the 201.
• a partnership, then all members of the partnership must be Officers or Members of the company
• an incorporated association or any other organisation holding an ABN, then the association or organisation will need to be a Member of the company

The entity holding the business name does not need to be involved with the company beyond the point of incorporation and can be ceased as an Officer or Member of the company as early as the next day.

These are two totally different things – a trust is an arrangement between 2 or more parties. It is a set of responsibilities that are imposed on a nominated party (the trustee) to hold assets on behalf of another party. A company is a legal entity registered with ASIC, that exists separately from its owners (its shareholders). A company’s status as a separate legal entity gives it the same rights as a natural person, meaning it can be sued, is liable for debts and it can sue another entity.

Business names are registered to an ABN however an ABN for a company can only be applied for once an ACN has been issued by ASIC, so this really depends on if you’re already trading or not. If you’re not already trading then we suggest waiting until you have registered your company. Outside of needing an ACN to have an ABN, there are three main reasons for this:

1. It can be difficult to register a company (depending on who the business name holder is) with the same name as your business name.
2. Transferring a business name from one entity to another comes with the same fees as registering a business name – this means you may end up paying double the registration fees.
3. If you are registering a business name that is exactly the same as an existing company’s name, then only that company can register the business name (as it is already considered “taken” to ASIC) – this can save on registration fees as you may not need to register the business name.

If you are already trading, chances are you already have a business name registered. You can either use this name to register your new company (see article Can I set up a company with the same name as a registered business name?) or you can transfer the business name to the company’s ABN once obtained

A shelf company is one that has been incorporated, and has been sitting on the “shelf” for a certain amount of time without trading or holding any assets or liabilities. This was common practice prior to the inception of online registration, as registering a company then was time consuming and difficult – it was simply much easier to “purchase off the shelf”. Nowadays, with such a streamlined process and the ability to register a company instantly online, there is generally no need to acquire a shelf company.

Fun fact: the original owner of Patricia Holdings pioneered the shelf company concept back in 1968. We are now one of the leading companies to forge this online registration platform and continue to be a leader 50 years on.

An entity must be registered with ASIC to carry on business in Australia if it meets the definition of a “foreign company” in Section 9 of the Corporations Act 2001. A foreign company is defined as a body corporate which has been incorporated in an external territory or outside Australia, or an unincorporated body that is formed in an external territory or outside Australia and may sue and be sued or may hold property in the name of its secretary or other officer.

In order to register your foreign company in Australia, there are a few steps which must be followed.  Firstly you must ensure that the name you wish to use is available. Next, you must complete and submit a Form 402 – Application for Registration as a Foreign Company, along with the required supporting documents and the applicable fees.

Documents that must be lodged with the Form 402 are:

1. a Certified copy of the Certificate of Incorporation or similar document and a Certified copy of the body's Constitution, including any amendments (which are not more than 3 months old);
2. a memorandum of appointment of the local agent or power of attorney in favour of the local agent which can be done using an ASIC Form 418. The form must state the name, address and appointment date of the local agent who must be an Australian individual or company, authorised to accept, on behalf of the foreign company, service of process and notices.
   Note: if the Form 418 is being lodged by a third party on behalf of the company, a copy of the document which authorises them to lodge the document must be provided as well as a Form 403 to verify the authorising document; and
3. a memorandum stating the powers of certain directors where the directors of the foreign company include directors who are resident in Australia and are members of a local board of directors.

In order to be a director of an Australian company, there are a few minimum requirements that must be met. The person applying to be a director must:

1. be 18 years of age;
2. have provided written consent to taking on the role and the responsibilities of being a director prior to being appointed; and
3. not have otherwise been disqualified from being a director.

An individual will be disqualified from being a director if they:

1. are an undischarged bankrupt;
2. have entered into a personal insolvency agreement under the Bankruptcy Act 1966 and have failed to fulfil the terms;
3. have been banned by ASIC or a court from managing corporations; or
4. have been convicted of dishonesty-related offences.

An individual will be disqualified from being a director if they:

1. are an undischarged bankrupt;
2. have entered into a personal insolvency agreement under the Bankruptcy Act 1966 and have failed to fulfil the terms;
3. have been banned by ASIC or a court from managing corporations; or
4. have been convicted of dishonesty-related offences.

If an individual is already a director in a corporation and then becomes subject to one of the above four categories, they will be automatically disqualified and removed from any directorship they currently occupy by ASIC.

Yes, a foreign person can be a director of a company in Australia, however they cannot be a sole director of an Australian company. Section 201A of the Corporations Act 2001 sets out the minimum number of directors, including the minimum number of Australian directors that a company must have. It states that a private pty ltd company must have at least one director, who must ordinarily reside in Australia. A public company must have at least three directors and at least two directors who ordinarily reside in Australia.

A non-resident can start a company in Australia, however they cannot do it on their own. In Australia, at least one director of any company must be an Australian resident, two of the minimum three directors of a Public company must be Australian residents. This means that a non-resident cannot open a company on their own; however they can do so in partnership with an Australian resident.

Yes you can be, however you cannot be a sole director of a company – you must have at least one resident director for Australian companies (or two if the company is a Public company; minimum three directors in total)

Yes an individual of any nationality or residency can be a director of an Australian company however you should be aware of Section 201A of the Corporations Act 2001 which states that a proprietary company must have at least one director that ordinarily resides in Australia, and in a public company, at least two of the minimum three Directors must reside in Australia.

Yes, a foreign citizen can start a business in Australia. If the business is run as a company structure, due to the minimum requirements for directors, there will need to be at least one Australian resident involved as a director of the company.

If you are a foreign citizen wanting to register a company and do not meet the minimum director requirements, get in contact with us and see how we may be able to help. See: https://www.patricia.com.au/other-services/australian-resident-director.

As at the 1^st of July 2021, the ASIC fees for company registration changed, and are currently as follows:

• $512 for a Standard Pty Ltd companies, Superannuation Trustee Companies, Home Unit Companies, Not-for-profit Pty Ltd Companies and Public Companies
• $422 for companies Limited by Guarantee

These fees described above are ASIC fees only, and do not include our service fees – if you would like to see full pricing information please visit this link.

In our multi-class constitutions, each different class of share is assigned a different set of rights and restrictions. This would be useful in a company where there are different tiers within the shareholders, as it allows certain shareholders to hold voting rights, whereas others only hold rights to dividends and so on.