What will it cost/Price Comparison? Incorporator will charge $149.95 including GST (this will be payable at the end of Incorporator's automated online interview process, not at the beginning). By comparison, an equivalent charge by well known and prominent Australian shelf company providers and company formation agents, appears to be around $270 (plus $400 for the ASIC company registration fee, making their common all-up charge for a company around $670). However, if price is particularly important to you, you may want to make your own price comparisons. The only other fee, when using Incorporator, will be the unavoidable government company registration fee of, at most, $400 which you will pay direct to ASIC (Australian Securities and Investments Commission). [This fee will only be $330 in the very unlikely event that you are forming a company which will not have any shares - i.e. a public company limited by guarantee (almost all newly formed Australian companies are private/proprietary companies limited by shares i.e. 'Pty Ltd' companies).]
So all-up, the most you will pay to form a company using Incorporator is $549.95 ($149.95 to Incorporator plus $400 to ASIC/the government).
How long will it take? Depending on various factors, it may take you between 5 minutes and an hour to answer all of Incorporator's questions. You will then have to print out the necessary documents which Incorporator will have prepared for you and post or lodge one of them to or with ASIC (Australian Companies and Securities Commission). ASIC will process the matter and, if all is in order, post the Certificate of Registration back to you within a few business days or hand it back to you over the counter.
There is an ASIC Service Centre in each state and territory capital city - Incorporator will give you their addresses and contact details.
Can I form a company with just one person owning and directing it? Yes you can (but only since changes to Australian Company Law which became effective on 1 July 1998).
If you are forming a proprietary company limited by shares (i.e. a 'Pty Ltd' company ), the same person may be the company's -
Incorporator refers to this type of company as a 'one person company'.
A proprietary company limited by shares is the most common type of company and the type almost always used for the conduct of small and medium sized businesses which choose to operate as a company. * Since a change in the law effective 13 March 2000, a proprietary company is no longer required to have a company secretary.
Some additional advantages of using Incorporator
Is Incorporator hard to use? No. Any literate adult should have no trouble using Incorporator.
Incorporator takes you carefully through the procedure. Only one step is taken at a time. Each step generally takes the form of a single question with some optional answers which you 'click upon'. Further optional guidance is available for all but the most basic of steps.
What sort of information do I need to have at my fingertips? Strictly, none.
Incorporator will ask you, as you go along, for the relevant information. Also, you can spend as long as you like in the Incorporator site at no extra charge from Incorporator.
However, you may want to minimise your time on the Incorporator site because, for example, your Internet service provider uses time-based charging. Or maybe you just want to get on with things. If so you may first want to gather the following basic and essential information -
Who wrote Incorporator? Neal Macrossan B Econ, LLB (Hons).
Neal is a Solicitor (now non-practising) of the Supreme Court of Queensland and the High Court of England and Wales. He has worked as a practising solicitor in the commercial departments of four of Australia's top ranking law firms, Morris Fletcher & Cross (now Minter Ellison), Clayton Utz, Phillips Fox and most recently Freehill Hollingdale & Page (now Freehills). In addition Neal has worked in the corporate finance department of a Wall Street investment bank, Salomon Brothers (now Salomon Smith Barney), as well as the overseas borrowing and foreign exchange section of the Queensland Treasury. He also spent approximately four years working in the City of London for the investor compensation subsidiary of the Securities and Investments Board (otherwise known as 'SIB' - the then chief regulatory body of the UK financial markets). Since ceasing private practice, Neal has worked, and continues to work, on and for Incorporator.
Simon Hart B Com, LLB, conducted extensive review, checking and testing of the site. Simon is a Solicitor (now non-practising) of the Supreme Court of Queensland and of the High Court of Australia with over fifteen years of private legal practice experience, including five years as a partner at the national firm of Dunhill Madden Butler (now Deacons). Since ceasing private practice, Simon has also worked, and continues to work, on and for Incorporator. The site is a product of many thousands of hours of logical analysis and construction, writing, programming, reviewing and testing, including extensive confidential testing and feedback provided by a range of external test users.
What will be involved? Incorporator will simply ask you questions, one at a time, which you will mostly answer by 'pointing and clicking'. Sometimes you will type in the answers (for example when the question asks for the names and addresses of the proposed directors).
Optional guidance is available for all but the most basic of questions.
When you have finished answering all of Incorporator's questions you will print out, on your own printer, all the necessary documents (registers, consents, agreements, share certificates etc.) which Incorporator will have prepared for you. These documents will have been tailored according to your answers to Incorporator's questions.
You will then sign (or have signed) one of the documents and post it to, or lodge it with, an ASIC (Australian Securities and Investments Commission) Service Centre, along with your cheque for the government filing fee (currently $400 for a company having a share capital and $330 in the very unlikely event that you are forming a company not having a share capital - i.e. a public company limited by guarantee). ASIC will process the application and, if all is in order, post you back the Certificate of Registration within a few business days or hand it back to you over the counter.
Will Incorporator look after the ongoing management and regulatory requirements of my company? Incorporator prepares all the initial documents required under the Corporations Act 2001 prior to, and on registration of, your company, and all other documents and registers which are legally required immediately following the incorporation of the company (as well as some additional registers for possible future use and the relevant share certificate(s)). However, other than in relation to those matters just mentioned, Incorporator does not look after the ongoing legal requirements of your new company. These will be your/the director(s)'/the company secretary(s)' responsibilty. Incorporator does, however, highlight the basic ongoing regulatory requirements and offers links to some useful and relevant sources of information. But if further help is needed with these ongoing requirements, a professional advisor such as a solicitor or an accountant should be consulted.
Are there any advantages of this manual step? Yes. First, you retain ultimate control over the application process. You will know exactly what is in the application and when it was made and will be able to retain a hard copy of the signed application.
Secondly, ASIC requires that the truth of the contents of the application be confirmed. As the contents of the application will be determined by your answers to Incorporator's questions, Incorporator's current view is that only you or an appropriate person can properly confirm the truth of the contents (via a signature). However ASIC is not yet accepting electronic company registrations and associated digital signatures direct from the public but only through certain intermediaries. (If a publicly available regime is established, Incorporator intends to upgrade to allow for direct electronic lodgment by users).
I'm a solicitor and I already know how to incorporate a company. Why might I still want to use Incorporator? You might find it more efficient and cost-effective to use Incorporator. For example, unless you are confident that you have up-to date precedent documents on your PC, you may have to construct the various required registers, consents, agreements and share certificates from scratch. You might therefore prefer to take advantage of Incorporator's automated production of those documents for you - which you can print out in your own office.
Alternatively, it may be some time since you last incorporated a company.
You may therefore not want to spend the time necessary to be certain about matters such as whether you're using correct and up-to-date forms, registers, consents, agreements and share certificates etc. and know the appropriate filing fees.
You may also not want to spend your own time researching and updating your knowledge of relatively recent and very significant changes to Australian company law, such as the abolishment of the concepts of par value and authorised capital and the substitution of replaceable rules and constitutions for memorandums and articles of association. You may consider it preferable to rely on Incorporator to take account of all these important changes for you.
You might appreciate having sections of the Corporations Act 2001 specifically relevant to each step of the incorporation process cited and viewable at your fingertips (Incorporator cites such sections and hyperlinks them to the actual texts of the sections so that you may read them in full if you wish to check anything.)
Or maybe you decided long ago that the fees you could charge for this type of work were simply not worth the effort. You may have relinquished this work to shelf company providers. However with Incorporator you could have your legal assistant do the substantive work - Incorporator will take your assistant through everything step by step without any instruction from you. (Incorporator imagines that you would then want to peruse the final product to fulfill your professional responsibilities.) And your client may appreciate not having this aspect of the client's work farmed off and the speed at which your clients' new company can be formed.
Also, you might find Incorporator convenient in that it effectively provides a checklist of all the information you need from a client to form a company. If you use Incorporator while you are gathering instructions from your client you will never have to make embarrassing additional calls back to your client asking things like 'What is so and so's place of birth?'.
You might also appreciate having the option of displaying your firm's name on the highly professional and modern outputted documents.
I could work out myself how to incorporate a company. Why might I still want to use Incorporator?
In order to -
I already know how to incorporate a company. Why might I still want to use Incorporator? Incorporator is confident that even if you already know how to incorporate a company you will still find it more efficient and cost-effective to use Incorporator. For example, unless you have precedent documents on your PC, you may have to construct the various required registers, consents, agreements and share certificates from scratch. And even if you do have precedent documents on your PC you may not be confident that they have been updated in order to take account of any relevant changes in the law. You might therefore prefer to allow Incorporator to complete all those documents for you rather than merging the information yourself.
You may also not want to spend your own time researching and updating your knowledge of relatively recent and very significant changes to Australian company law, such as the abolishment of the concepts of par value and authorised capital and the substitution of replaceable rules and constitutions for memorandums and articles of association.
You may consider it preferable to rely on Incorporator to take account of these important changes for you.
What about a company/common seal? Incorporator will not provide a common seal as companies are no longer required to have them - section 123(1) of the Corporations Act 2001.
However, a company may have a common seal if it wants one - section 123(1) of the Corporations Act 2001. Company seals can generally be obtained from rubber stamp makers/stationers at minimal cost and at short notice.
What about memorandums and articles of association, constitutions and replaceable rules? Incorporator will not produce:
If a constitution is required it can and will be adopted immediately upon the formation of the company, so long as each proposed member has previously agreed in writing to its terms - section 136(1)(a) of the Corporations Act 2001. Alternatively, a constitution may subsequently be adopted (or modified) if the company passes a special resolution to do so - sections 136(1)(b) and 136(2) of the Corporations Act 2001.
(A 'special resolution' is a resolution made on at least 21 days notice to members and passed by at least 75% of eligible voters - sections 9 , 249H and 249L of the Corporations Act 2001.)
A proprietary company is not required to lodge with ASIC a copy of any constitution it may adopt, or modification of it, or any associated special resolution, irrespective of whether the adoption, or modification, took place on or after the formation of the company (unless the modification alters the company's name, share structure or type). However a constitution, if adopted, must be kept with the company's records so that copies can be given to members on request - section 139 of the Corporations Act 2001.
However, in the case of a public company adopting a constitution on its formation, a copy of the constitution must be lodged at the same time, and together with, the application to form the company - section 117(3) of the Corporations Act 2001.
A public company adopting (or modifying) a constitution after the company's formation, must lodge with ASIC, within 14 days, a copy of any constitution it may adopt (or modification of it), and a copy of the special resolution adopting it - section 136(5) of the Corporations Act 2001.
Background to the changes in the law relating to memorandums and articles of association, constitutions and replaceable rules Prior to major amendments to Australian company law (effective 1 July 1998), companies had to have a document detailing certain of the company's key characteristics, called a memorandum of association, as well as a document governing the company's internal management called articles of association. Also, all companies were previously obliged to ensure that the companies' office (then called the ASC but now called ASIC) had records indicating the content of companies' memorandums and articles.
Newly formed companies no longer have to have memorandums and articles of association. Instead a company's internal management may be governed by replaceable rules, by a constitution or by a combination of both - section 134 of the Corporations Act 2001.
Replaceable rules are certain sections of the Corporations Act 2001 which automatically apply to a company (except a company with the same person as its only director and shareholder) unless they have been wholly or partly replaced or modified by a specifically adopted constitution - sections 135(1) and 135(2) of the Corporations Act 2001.
Replaceable rules do not apply to proprietary companies with the same person as their sole director and shareholder - section 135(1) of the Corporations Act 2001. This makes sense when one considers that replaceable rules are designed largely to regulate relations and disputes between, and divide powers between, directors and shareholders. Such a rationale falls away when the same person is the company's sole director and shareholder. Instead, sections 201F and 198E of the Corporations Act 2001 automatically apply to a one person company and directly regulate important matters such as the appointment of additional directors, and their powers and duties.
Proprietary companies limited by shares - being the most common type of company - are not required to lodge copies of any constitution they may adopt, unless they are proposing to change to a public company. Essentially, only public companies are required to lodge documents indicating the current content of their constitution - section 136(5) of the Corporations Act 2001.
A company's constitution, if any, and any replaceable rules that apply to the company, have the effect of a contract between the company and each of its members, between the company and each of its directors and company secretaries and between each of a company's members - section 140(1) of the Corporations Act 2001.
What about ECR (electronic company registration)? ASIC is not yet accepting electronic company registrations direct from the general public but only through certain intermediaries such as shelf company formation agents. Instead of those agents physically lodging the application for incorporation they can lodge it electronically. But the ECR regime does not create all or any of the other legally required documents for incorporation (e.g. written, signed director(s), member(s), shareholder(s) consent(s) etc.) or otherwise fulfil various associated legal requirements. Further, there are various issues associated with authentication. Nevertheless, Incorporator may, in the future, upgrade to allow for electronic lodgement.
Minimum recommended system requirements? Computer/Processor: 486DX/66MHz or higher processor with 32MB physical RAM Operating System: Windows 95, Windows 98, Windows 2000, Windows NT4.0 (with Service Pack 3 or later), Windows XP, or Mac OS 9.0 or later. Hard Drive Space: 55MB
Screen Resolution: The site is optimised for 800x600 screen resolution. To check, right click on your desktop, click 'properties' then select 'settings' tab.
Also, you need all of the following -
