I found Incorporator.com.au the most useful website I have visited in the last 6 months.
It made the daunting task of formi...
Cheers, David Mitchell PhD, MEI
Optional guidance is
available for all but the most basic of questions. There is also a free 1300 helpline
(1300 653 373) answered from 9am to 5pm, Monday to Friday - excluding Public Holidays, if you have any questions or happen to
need any assistance.
When you have finished answering all of Incorporator's questions you
will have the option of either applying to register the company electronically online (in
which case you will pay a single, all-up, secure online card payment of $665 - $479 of which is
for the ASIC company registration fee which we pass on to ASIC) or lodging manually (in which case you pay $186
securely online by credit/debit card to Incorporator, plus $479 which you will pay directly
to ASIC when you lodge the application to register the company at ASIC - either over the
counter or through the post). But no matter which option you choose, Incorporator will
automatically and immediately generate for you all the associated legally required documents
in electronic form (registers, consents, agreements, share certificates etc.) for you to
download and print out, on your own printer. These documents will have been tailored according to your
answers to Incorporator's questions.
These documents are as follows (All of the documents will be
pre-completed and tailored taking into account your answers to
Incorporator's questions. They will also comply with all the
relevant provisions of the Corporations Act 2001).
You will also receive:
If you already have a registered business name, and you want to incorporate
a company with that same name (plus, for example, 'Pty Ltd' at the end), you can do
so via Incorporator. Incorporator will ask you appropriate questions in that regard
(as you go through Incorporator's automated online interview process) and take that
into account. But you should realize that even though you may think that you are
'incorporating your existing business/business name' you will actually be creating a
new/separate legal entity (separate from your existing business) and that this has a
number of consequences including the following three consequences.
One, you will need a new ABN for the new company - you will not be able to use your existing
business's ABN (you will probably apply, via the ATO, to have your existing ABN cancelled).
Two, you will have to decide what to do with the existing registered business name.
Commonly people have such a business name 'transferred' to the new company (allowing
the company to trade either under its own full name including, for example, its 'Pty Ltd'
name ending, or the 'shortened' business name and thus without the 'Pty Ltd' name ending).
See this ASIC publication entitled Transfer a business name.
Three, if you are transferring/gifting/rolling over the existing business/existing business assets to
the newly incorporated company (which is common) you should be aware of any tax consequences
and you should at least get advice about the 'rollover provisions' - a starting point is to
read this ATO publication entitled 'Rollover for an individual (includes sole trader) or
trustee who incorporates'. And you should at least read this ATO publication entitled
aspects of incorporating your business'. Further, one of the assets commonly
transferred/gifted/rolled over from the existing business to the newly incorporated company
is the balance of the existing business's bank account (which bank account is commonly closed
and the balance of which is commonly transferred to a newly opened bank account in the name of
the new company).
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.
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.
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, if you want to minimise your time on the Incorporator site you may first want to gather the
following basic and essential information -
Neal is a Solicitor (now non-practising) of the Supreme Court of Queensland, the
High Court of Australia 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
(subsequently Salomon Smith Barney and now Citi 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
The site is a product of many thousands of hours of logical analysis and construction,
writing, programming, reviewing and testing, and continual improvement based on user experiences
Incorporator was the Australia-wide 1st prize winner in the highly prestigious
Technology Award. The judges for this award included representatives from each of the state
law societies plus a representative of the CCH legal editorial team.
Incorporator also received the runner up award in the
Channel 9 Small Business Show's Brother
Best Business Software Awards (in which there were about 150 entrants).
Incorporator was also the winner of the Best IT Start Up Award
in the ASIA-Pacific Qld. ITT awards.
Also, a great many customers have openly recommended Incorporator - see testimonials.
Further, Incorporator will not disclose any information transmissions it receives from users
(other than information which it transmits electronically to ASIC if users choose to lodge electronically online),
unless compelled by law (which, so far - 10 years at the time of writing - has never happened),
or unless the user has committed a fraud, or otherwise engaged in illegal activity, in relation to the user's usage of Incorporator.
Further, this website uses the Google AdWords remarketing service to potentially advertise on third party websites (including Google)
specifically to previous visitors of this website (either generally and regardless of what those previous users have done or not done
on this website, or specifically – for example, only to those previous visitors who have not purchased from this website). Such third
party websites (including Google) can know that their visitors have previously visited this website (and thus know to potentially display
this website’s advertisements) because this website has allowed Google to place a so called ‘cookie’ on the computers of such visitors.
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.
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
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
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 -
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
of the Corporations Act 2001.
Newly formed companies no longer have to have memorandums and articles of
association. Instead a company's internal management may be governed by the replaceable rules,
by a constitution or by a combination of both - section
of the Corporations Act 2001.
The 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
and 135(2) of the Corporations Act 2001.
The replaceable rules do not apply to proprietary companies with the same person
as their sole director and shareholder - section
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
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.