BUSN2101 Chapter 17-18: ch17-18
Chapter 17: Reporting and Disclosure
Registered office:
S121: when a company is formed, it must nominate a place in Australia as its ‘registered office’
Pt 2B.5: rules relating to the registered office
s109X: for the purposes of any law, a document may be served on a company by leaving it at, or
posting it to, the company’s registered office
Financial records: s286
Minutes: s251A
Minutes required to be recorded within 1 month of members’ meetings, directors’ meetings and
resolutions passed without a meeting
s251B: members are entitled to inspect and request copies of these minutes
S251(A): a minute recorded within one month and signed by the meeting chairperson ‘is evidence of
the proceeding, resolution or declaration to which it relates, unless the contrary is proved.’
Inspecting the register
S173(1): any person is allowed to inspect the registers maintained by a company
S173(3): the company must provide a copy of the register (or part of the register) within 7 days if the
person asks for the copy and pays any fee (up to the permitted amount) required by the company
S1303: the court can compel inspection if a person refuses to permit it in contravention of the Act
S177(1) and (1A): information in the register cannot be used to contact or sent material to members
unless it is relevant to their shareholding. Even if the contact or material relates to their
shareholding, it cannot be made for a ‘prescribed purpose’. This includes making unsolicited off-
market offers to members to acquire their shares
S173(3A): a person applying for a copy of the register must specify each purpose for which it will be
used
O’Brien v Sporting Shooters Association of Australia (Victoria)
A person had asked under s 173(3) for a copy of the register of members, in order to solicit votes in
an upcoming election of directors.
However the Association refused to provide a copy, because of s177, in which prohibit a person
from using information from the register to contact or send material to people whose details appear
on it without the consent of the company, unless the use is relevant to the holding of the interests
recorded on the register or the exercise of rights (such as voting rights) attaching to them
The purpose for which the person sought access to the register was to enable the person to canvass
members of the association for their votes at the forthcoming meeting. The court held that such a
purpose was permitted by s 177
Westgold Resources NL v Precious Metals Australia Ltd
A person sought access to the register for the purpose of communicating with former shareholders
of the company to canvass their support for participation in a class action against the directors of
the company
The court decided not to allow the information in the register to be used to contact the former
members for this purpose. The judge held that the former members did not possess a sufficient
interest of a kind that would or might sustain an action by them against the company or its directors.
However, if it could be shown that there was an arguable case that former members would have
grounds to bring or join such an action, then that would be sufficient foundation to allow the
information in the register to be used to contact them
IMF (Australia) Ltd v Sons of Gwalia
The use of the register to write to shareholders inviting them to join a class action arising out of
alleged misleading and deceptive conduct was not allowed
Annual Review
s346A: ASIC sends each company an extract of particulars and an invoice within 14 days following
the company’s review date and the review date is the anniversary of the company’s date of
registration
—> includes the company’s name and ACN, the address of the registered office and of the principal
place of business, the name and address of each director and secretary, details of issued shares, and
details of options over unissued shares granted by the company
—> also sets out details of the company’s members, being:
• The names and addresses of members (if fewer than 20)
• The top 20 members of each class of shareholder (if more than 20)
• Details of the company’s ultimate holding company (if any)
s346C: if the information of the extract is incorrect, the required changes must be notified to ASIC
within 28 days of the date of issue of the extract of the particulars s347A: directors of companies
that have not lodged accounts with ASIC in the 12 months leading up to their review date must pass
a ‘solvency resolution’ within 2 months after their review date
s347B: if they pass a negative solvency resolution, or they fail to pass the resolution within the
required time, the company must lodge a notice to that effect with ASIC
Financial reports
S319: the companies which are required to prepare financial report and a directors’ report with
ASIC, have to lodge them within 3 months (if the company is a disclosing entity) or 4 months (if it is
not) of the end of its financial year
What information can be obtained through a company search?
Information about the company and its history, its registered office, its share capital and
shareholders, and its office holders
Periodic Financial Reporting
S285 (applies to companies limited by shares, unlimited companies and no liability companies) and s
285(A) (applies to companies limited by guarantee)
Ch 2M requires that:
• All public companies, other than certain small companies limited by guarantee, and
• Most large proprietary companies,
Prepare a financial report and a directors’ report annually
—> the financial report consists of the financial statements, disclosure and notes to the financial
statements, and a directors’ declaration
—> The directors’ report requires certain general and specific disclosures
Type of company
Annual financial
statements and directors’
report
Half-year
financial
reports
Audit
Disclosing entity
yes
Yes (s309)
Yes
Company limited by
guarantee (revenue $1m or
more)
yes
No
Yes
Company limited by
guarantee (revenue up to
$1m)
Yes
No- must be
reviewed
No
Small company limited by
guarantee
Only if requested by
members or ASIC
No
Only if requested by
members of ASIC
Other public company
Yes
No
Yes
Large proprietary company
Yes
No
Yes
