Can I convert from a public company to a proprietary company?

A public company can convert to a proprietary company by passing a special resolution of the shareholders so long as the conversion between the two company types are allowed under section 162 of the Corporations Act 2001 (Cth). For the two most common types of public company, section 162 states that:

 A public company limited by shares may convert to:

  • An unlimited public company;
  • An unlimited proprietary company;
  • A proprietary company limited by shares; or
  • A no liability company.

A company limited by guarantee may convert to:

  • A public company limited by shares;
  • An unlimited public company;
  • A proprietary company limited by shares; or
  • An unlimited proprietary company.

An unlimited public company may convert to:

  • Public company limited by shares
  • Proprietary company limited by shares
  • Unlimited proprietary company

A public no liability company may convert to:

  • Public company limited by shares
  • Proprietary company limited by shares

In order to convert to a proprietary company, the requirements for proprietary companies set out in section 113 of the Corporations Act must also be met; one of these being that the company must not have more than 50 shareholders.

 In order to complete the conversion a special resolution must be passed; the appropriate Forms and documents must be lodged with ASIC and the relevant fee must be paid. The documents to be lodged are:

  • A Form 205 - Notification of resolution;
  • A Form 206 Application for change of company type; and
  • A copy of the new company constitution.
Does my company need a constitution?

A constitution sets out the rules by which a company is governed and may be adopted before or after registration of the company. If a company chooses not to adopt a constitution the default set of rules in the Corporations Act 2001 known as the replaceable rules will apply.

Generally, a company will be free to operate under the replaceable rules; however these rules are not applicable to a proprietary company where the same individual is both the sole director as well as the sole shareholder.

Similarly, if the company is to qualify as a special purpose (Home unit, Not-for-profit or Superannuation trustee) company in order to attract a reduced annual fee, it will need to be governed by a constitution which contains clauses specific to each type of company. A Not-for-profit company may also require specific clauses in order to qualify for tax concessions with the ATO.

Patricia Holdings has constitutions that are suitable for each of the above purposes.

Can I reserve a company name?

A company name can be reserved for you for a period of two months should you wish to secure the name but do not yet have all the details required to incorporate the company. Simply place an order with us and we will prepare and lodge the Form 410 electronically to quickly reserve the company name with minimal delay.  This reservation can be withdrawn at any time if required.

How do you deregister a company?

If you no longer require your company, you can apply to voluntarily deregister it with ASIC by lodging a Form 6010. Deregistering a company will mean that it no longer exists as a legal entity and the ongoing obligations of company officeholders will cease.

Before you can apply to deregister your company, you must ensure that:

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

Patricia Holdings can prepare and lodge the Form 6010 on your behalf. We will prepare all documentation the day the order is received and lodge the Form 6010 electronically with ASIC as soon as a signed copy has been returned to us. We will also provide you with Directors and Members resolutions.

ASIC will then notify Patricia Holdings when they have approved the application (usually about 2 weeks), which we will scan and email to you immediately. The application to deregister the company will then be published in the ASIC Gazette for a period of 2 months. Following this, ASIC will deregister the Company.

How do you change a company name?

An existing company can change its name by passing a special resolution and lodging a Form 205 Notification of resolution with ASIC. The Form 205 will need to contain details of the company’s special resolution with the proposed new company name.

In order to change the name of your company, you will need to choose a name that is available, pass a special resolution, and lodge the Form 205 with ASIC. Patricia Holdings can prepare the necessary Form and resolutions for you and lodge the Form 205 with ASIC electronically.

What is a member’s resolution?

A member’s resolution is the formal way that decisions made in members meetings are noted and then filed in the company’s register.

There are two types of member’s resolution, as some decisions require more of a majority in the members than others to pass. Ordinary resolutions require only a 50% majority in order to pass the decision they are noting. Special resolutions are needed in instances such as changing the company’s name, winding up the company and changing your company type. Special resolutions require at least 75% of the vote cast to be in favour of the decisions being made.

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