Replace Australian Lost Company Constitution

Replace a lost Company Constitution on a law firm’s website

Lost your company constitution? Build a replacement company constitution on our law firm’s website. You get:

• law firm letter  – confirms the law firm authored the replacement of the lost company constitution
• member minutes
• new constitution to replace the lost Constitution or Memorandum of Articles of Association

To replace the lost constitution update, ASIC requires nothing from you – thanks to Legal Consolidated’s unique wording

The advantages of the Legal Consolidated Constitution Replacement Kit are:

• you do not need to send a copy of the new constitution to the Australian Securities and Investments Commission (ASIC)
• there are also no ASIC fees when you update the lost company constitution

Before the 1990s, all company constitutions must be lodged with the company regulator. This is when you first registered your company with ASIC. But this rule is abolished. Thanks to the unique wording of Legal Consolidated’s minutes and Constitution you:

• pay ASIC no money to replace your lost Pty Ltd Company Constitution
• not required to lodge your new Constitution with the Australian Securities 

That is the benefit of dealing with a law firm.

However, for all companies, the company must provide a current copy of the constitution to any member who requests it. This is within seven days. If a fee is charged, the constitution must be provided within seven days of payment.

What did the lost Pty Ltd company constitution do?

A lost company constitution was a contract between:

1. the company and:
   • each member
   • each director
   • the company secretary
2. a member and each other member

A company constitution is a set of rules that everyone follows. Every Australian company must have a Constitution, or it suffers Replaceable Rules.

Lost Company Constitution vs Replaceable Rules

Companies are governed by:

• a constitution (recommended), or
• replaceable rules (provided by government legislation)

We often review a company incorporated on a non-law firm’s website. To ‘save time’ the non-law firm website adopts replacement rules for:

• a sole director, sole member company; or
• a Self-Managed Super Fund corporate trustee (special purpose company)

However, both require a constitution.

Lost Constitution vs the government replaceable rules

Replaceable rules (from the Corporations Act 2001) provide a basic set of rules for your company. They are not good. Few accountants, lawyers or advisers recommend their use.

Sadly, Replaceable rules are less than the bare minimum. There are many additional powers that a company requires. These are only found in a constitution.

Replaceable rules change at the whim of the current government.

Replaceable rules change at the whim of the current government. While the changes may benefit ‘society’, they may not be in the best interests of shareholders. In contrast, shareholders can upgrade their constitutions anytime.

I got a new company directly with ASIC – but it has no Constitution

Q: I have a new client. She went ahead and registered a new Company directly with ASIC. This is without talking to me first.

I asked her for all the Company details including a Constitution. She said she did not get a Constitution. I am surprised ASIC did not require a Constitution during the process of incorporating a Company.

Does ASIC provide her with a Constitution? Or do I build a Constitution on Legal Consolidated’s website?

A: The client with the ‘lost’ Constitution is foolish:

1. for setting up a company without speaking to her accountant and financial planner first
2. dealing directly with ASIC. ASIC is a government regulator. Like the ATO and other government agencies, only approach government regulators through your accountant and adviser
3. ASIC only provides the spartan and often dangerous Replaceable Rules
4. ASIC and the Australian government want you to have these dangerous Replaceable Rules. This is so governments can ‘control‘ your company. The forever-changing, Replaceable Rules may, for example, in the future require:
   • pay your employees a higher rate of pay
   • give contractors all the additional benefits of  employees
   • at least one Christian as a director
   • a higher standard over and above the requirements of the Modern Slavery Act 2018
5. As governments change, Canberra, through the Replaceable Rules, may come up with all sorts of strange requirements. Do not let the government dictate its current fads to your company. Built your replacement Company Constitution to escape government control. Keep autonomy with a Company Constitution. Merely build this new Company Constitution to escape the Replaceable Rules

What is a ‘Constitution’ in a Pty Ltd’s purpose?

Like a Shareholders Agreement, an Australian company constitution is a contract between:

• the company and each member
• the company and each director
• the company and the company secretary
• a member and each other member

Can I change the Constitution after I have registered the company?

Yes. A company can adopt a constitution before or after it is incorporated.

Do I need to have all the Shareholders agree to replace the lost Constitution?

A company can change or repeal its constitution by passing a “special resolution”.

A special resolution for a Pty Ltd company requires:

• 21 days’ notice to the shareholders; and
• at least 75% of the votes cast must be in favour.

However, if you cannot get 100% of the shareholders to agree telephone us. The Lost Constitution Kit is designed for all Shareholders to be in agreement.

Eight benefits when replacing a Lost Company Constitution with Legal Consolidated

The lost company constitution replacement you are building updates your company’s internal rules and procedures. It fully complies with the new changes to the Corporations Act. The eight benefits are:

1. No Technology in old lost Company Constitution

Technology changes how boards communicate with employees and shareholders. Traditionally board decisions are mailed out in physical form to shareholders. The update reflects technology changes. The new constitution outlines how technology is used in meetings. Members do not need to attend meetings and can appoint a proxy.

2. Dividends confusing in old lost Memo & Articles

In 2010, the Australian government amended section 254 of the Corporations Act. This section governs how dividends are paid.

Before 2010 dividends are only payable from company profits. Now a company can declare dividends if:

1. its assets exceed liabilities; and

2. the payment is fair and reasonable; and

3. the payment does not materially prejudice the company’s ability to pay its creditors.

Under old constitutions, you are not able to pay dividends. Insolvency specialists pursue this argument. They challenge all dividends paid since 2010.

3. Share buy-backs allowed in the new company constitution

Share buy-backs allow companies to buy back their shares from shareholders. In Australia, there are five types: equal access, on-market, employee share scheme, selective buy-back and minimum holding. Replace a company constitution and ensure the legality of the buy-back.

4. Preference shares in a Constitution

The new constitution allows the company to issue preference shares under Australian law.

5. Single Director not allowed in old Memo & Articles

Before 1995, two directors are required. This was a disaster for asset protection. Both directors go bankrupt along with the insolvent company.

Asset protection is having no assets in a risky person’s name. Instead, assets are in the safe person’s name. For a couple, this is the ‘man of straw and the woman of substance’.

Owe money to the ATO for PAYG or superannuation? All directors are liable automatically for these ATO debts.

The Law Simplification Act 1995 (Cth) reduces the minimum number of directors from two to one.

Now, most companies have a single director. Only one person goes down if the company is insolvent.

The new constitution you are building allows you to have a single director.

 

6. Directors cannot resign if two directors are required

As stated above, only a single director is required. However, in Australia, there are over 27,000 Memorandum of Articles of Association and 59,000 constitutions that still require two directors.

We review brand-new company constitutions incorporated on non-law firm websites. Many still require the company to have two directors.

What if your rules say two directors – but one wants to resign? You lodge the correct form with ASIC to resign as a director. ASIC accepts the form. However, the resignation is void. This is against a company liquidator and a trustee in bankruptcy.

To rectify this, update your company rules.

A company with insufficient officers breaches the Corporations Act 2001. You suffer penalties and are prosecuted.

7. Division 7A Loan Agreement v’s Memo & Articles

Your new Legal Consolidated Constitution contains a Division 7A Loan Agreement. It is part of the Constitution. It works for existing and future members. All shareholders are deemed to have the Div 7A Loan Deed.

8. Escape the company seal

A “company seal” is a stamp. You apply the stamp on legal documents ‘signed’ by the company. Many Constitutions require all deeds signed by the company to be “signed under seal”. But, the signing under seal rule is abolished. No seal is required under the Company Law Review Act 1988 (Cth).

If your rules require a seal then a deed signed without a seal is invalid. Our new update gets rid of the seal requirement.

Other names for a “company seal” is a “corporate seal” and “common seal”.

Four faults in old Constitutions and Memo & Articles of Association

Australian companies created before 1 July 1998 had a ‘Memo & Articles of Association’. Like old Constitutions, your Memo & Articles of Association still operates, but not well. Faults with the M&A include:

1. Mandatory Annual General Meetings each year in old Company Constitutions

Many constitutions require AGM. If you fail to hold the AGM, your company is in breach. This is for both taxation and insolvency laws. The law no longer requires an AGM for Pty Ltd companies. Our new update gets rid of the requirement.

2. Memo & Articles only restrict the company’s purpose

Stating a ‘list of objects’. This is the purpose of the company. E.g. ‘sell fishing tackle and retail’. What if your company now does something else, such as acting as a trustee of a doctor’s surgery? Then you break the law. Your company is acting ‘ultra vires’. It is acting outside its powers. Again, your company is non-compliant. Legal Consolidated’s Constitution allows you to do anything a human can do – and more.

3. Two directors go bankrupt, instead of one

Requiring two directors. As stated above, the laws have changed. You now only need one director. It is safer to only have one director in case the company goes insolvent.

4. Perform out-of-date and illegal actions

Old Constitutions and Memorandum and Articles require you to perform illegal actions. Instead, update the company constitution to allow these correct powers:

• • exercise corporate powers
  • issue and allot shares
  • not avoid liability (a very strange requirement)
  • transfer shares
  • vote and proxies
  • appoint directors and company secretary
  • conduct general and director meetings
  • sign bank documents, loans and mortgages (however, this may be useful because banks often cannot enforce a loan made by a company that is still working under the old Constitution or M&A)
  • no longer require a company seal

---

Do I need to record the changed directors over the last few years when I replace the lost company constitution?

Such questions are answered as part of the building process.

It is free to Start Building the Lost Company Replacement kit. Start building for free. Read the hints for each question. Enjoy the free education.

And then if you still have questions we will put in a new hint to answer that question. We have been doing this since 1988 so it is rare we hear a new question. But it does happen and we appreciate a ‘never before answered question’.

The Checklist sets out the questions we will ask. There is no question for past or current directors. Therefore, we do not require and will not ask about who the directors are.

We only require the information in the Checklist.

Does the Lost Company Replacement kit also replace the Replacement Rules, old Constitution and Memo & Articles?

Yes, that is correct Build this lost Company Constitution kit to replace:

1. the government provided Replaceable Rules; or
2. an old Constitution; or
3. a Memorandum and Articles of Association

Start building the lost Constitution replacement. Ring us and we can check your answers. But answer as many questions as you can before you telephone us.

See also:

Lost Family Trust Deed

Convert the old company to an SMSF Trust – Special Purpose Company

Build a Division 7A Loan Agreement

ATO says ‘loans’ to a company are not a loan