CORPORATIONS LAW - Part 1.5 -- Small business guide

This legislation has been repealed.

CORPORATIONS LAW - Part 1.5 -- Small business guide

This guide summarises the main rules in the Corporations Law that apply to 
proprietary companies limited by shares-the most common type of company used
by small business. The guide gives a general overview of the Corporations Law
as it applies to those companies and directs readers to the operative 
provisions in the Law.
        
        
The notes in square brackets at the end of paragraphs in the guide indicate the
main provisions of the Corporations Law, the regulations made under the Law, 
and Australian Securities and Investments Commission Practice Notes that are 
relevant to the information in the paragraphs.
        
        
Other Commonwealth, State and Territory laws also impose obligations on 
proprietary companies and their operators.


1 What registration means


1.1 Separate legal entity that has its own powers
        
As far as the law is concerned, a company has a separate legal existence that 
is distinct from that of its owners, managers, operators, employees and agents.
A company has its own property, its own rights and its own obligations. A 
company's money and other assets belong to the company and must be used for 
the company's purposes.
        
        
A company has the powers of an individual, including the powers to:
        
·own and dispose of property and other assets
        
·enter into contracts
        
·sue and be sued.
        
        
Once a company is registered, its separate legal status, property, rights and 
liabilities continue until ASIC (Australian Securities and Investments 
Commission) deregisters the company.
[sections 119, 124­125, 601AA­601AD]


1.2 Limited liability of shareholders        
        
Shareholders of a company are not liable (in their capacity as shareholders) 
for the company's debts. As shareholders, their only obligation is to pay the 
company any amount unpaid on their shares if they are called upon to do so. 
However, particularly if a shareholder is also a director, this limitation may
be affected by other laws and the commercial practices discussed in 1.3 and 1.4.
[section 516]


1.3 Director's liability for company's debts
                
A director of a company may be liable for debts incurred by the company at a 
time when the company itself is unable to pay those debts as they fall due.
        
        
A director of a company may be liable to compensate the company for any losses
the company suffers from a breach of certain of the director's duties to the 
company (see 5.3).
        
        
In addition to having liability for the company's debts or to pay compensation
to the company, a director may also be subject to a civil penalty.
        
        
If a company holds property on trust, a director of the company may be liable 
in some circumstances for liabilities incurred by the company as trustee.
[sections 197, 344, 588G, 588J, 588M, 1317H]


1.4 Director's liability as guarantor/security over personal assets        
        
As a matter of commercial practice, a bank, trade creditor or anyone else 
providing finance or credit to a company may ask a director of the company:
        
· for a personal guarantee of the company's liabilities; and
        
· for some form of security over their house or personal assets to secure the 
  performance by the company of its obligations.
        
        
The director of a company may, for example, be asked by a bank to give a 
mortgage over their house to secure the company's repayment of a loan. If the 
company does not repay the loan as agreed with the bank, the director may lose
the house.


1.5 Continuous existence        
        
A company continues to exist even if 1 or more of its shareholders or directors
sells their shares, dies or leaves the company. If a company has only 1 
shareholder who is also the only director of the company and that person dies,
their personal representative is able to ensure that the company continues to 
operate.
[sections 119, 224A]


1.6 Rules for the internal management of a company         
        
The Law contains a basic set of rules for the internal management of a company
(appointments, meetings etc.).
        
        
Some of these rules are mandatory for all companies. There are a few special 
rules for single shareholder/single director companies.
        
        
Other internal management rules in the Law are replaceable rules. The 
replaceable rules do not apply to:
        
· a single shareholder/single director company; or
        
· a company that had a constitution before the introduction of the replaceable
  rules regime and has not repealed it.
        
        
A company does not need to have a separate constitution of its own; it can 
simply take advantage of the rules in the Law. The company will need a 
constitution only if it wants to displace, modify or add to the replaceable 
rules.
[sections 134­141, 224B]


1.7 How a company acts        
        
A company does not have a physical existence. It must act through other people.
        
        
Individual directors, the company secretary, company employees or agents may be
authorised to enter into contracts that bind the company (see 7).
        
        
In some circumstances, a company will be bound by something done by another 
person (see 1.8).


1.8 Directors        
        
The directors of a company are responsible for managing the company's business.
It is a replaceable rule (see 1.6) that generally the directors may exercise 
all the powers of the company except a power that the Law, a replaceable rule 
or a provision of the company's constitution (if any) requires the company to 
exercise in general meeting.
        
        
The only director of a company who is also the only shareholder is responsible
for managing the company's business and may exercise all of the company's 
powers.
        
        
The Law sets out rules dealing with the calling and conduct of directors' 
meetings. Directors must keep a written record (minutes) of their resolutions 
and meetings.
        
        
There are 2 ways that directors may pass resolutions:
        
· at a meeting; or
        
· by having all of the directors record and sign their decision.
        
        
If a company has only 1 director, the sole director may also pass a resolution
by recording and signing their decision.
[sections 224B, 226A, 248A­248G, 251A]


1.9 Shareholders        
        
The shareholders of a company own the company, but the company has a separate 
legal existence and the company's assets belong to the company.
        
        
Shareholders can make decisions about the company by passing a resolution, 
usually at a meeting. A ``special resolution'' usually involves more important
questions affecting the company as a whole or the rights of some or all of its
shareholders.
        
        
There are 2 ways that shareholders may pass a resolution:
        
· at a meeting; or
        
· by having all of the shareholders record and sign their decision.
        
        
If a meeting is held, an ordinary resolution must be passed by a majority of 
the votes cast by shareholders of the company entitled to vote on the 
resolution at the meeting in person or by proxy (if proxies are allowed). A 
special resolution must be passed by at least 75% of the votes cast by 
shareholders of the company entitled to vote on the resolution and who vote at
the meeting in person or by proxy (if proxies are allowed).
        
        
The sole shareholder of a company may pass a resolution by recording and 
signing their decision.
        
        
A company must keep a written record (minutes) of the members' resolutions and
meetings.
[sections 9 (special resolution), 249A, 249B, 249L, 251A]


1.10 What others can assume about the company 
                
Anyone who does any business with the company is entitled to assume that the 
company has a legal right to conduct that business unless the person knows, or
suspects, otherwise. For example, an outsider dealing with the company is 
entitled to assume:
        
· that a person who is shown in a notice lodged with ASIC as being the director
  or company secretary of a company has been properly appointed and is 
  authorised to act for the company; and
        
· that a person who is held out by the company to be a director, company 
  secretary or agent of the company has been properly appointed and is 
  authorised to act for the company.
[sections 128­130]


2 The company structure for small business


2.1 Proprietary company for small business        
        
Generally, a proprietary company limited by shares is the most suitable company
for use by small business. Such a proprietary company must have a least 1 
shareholder but no more than 50 shareholders (not counting employee 
shareholders). It may have 1 or more directors.
[sections 112­113]


3 Setting up a new company        
        
The operators of small businesses can either buy ``shelf'' companies or set up
new companies themselves.


3.1 ``Shelf'' companies        
        
The operator of a small business may find it more convenient to buy a ``shelf''
company (a company that has already been registered but has not traded) from 
businesses which set up companies for this purpose or from some legal or 
accounting firms.


3.2 Setting up a company         
        
To set up a new company themselves, the operator must apply to ASIC for 
registration of the company.
        
        
A proprietary company limited by shares must have at least 1 shareholder.
        
        
To obtain registration, a person must lodge a properly completed application 
form with ASIC. The form must set out certain information including details of
every person who has consented to be a shareholder, director or company 
secretary of the company.
        
        
The company comes into existence when ASIC registers it.
[sections 117­119, 135­136, 140]


3.3 ACN and name        
        
When a company is registered, ASIC allocates to it a unique 9 digit number 
called the Australian Company Number (ACN). (For use of the ACN see 4.1).
        
        
In practice, a new company must have a name that is different from the name 
of a company that is already registered. A proprietary company limited by 
shares must have the words ``Proprietary Limited'' as part of its name. Those
words can be abbreviated to ``Pty Ltd''. 
        
        
A proprietary company may adopt its ACN as its name. If it does so, its name 
must also contain the words ``Australian Company Number'' (which can be 
abbreviated to ``ACN''). For example, the company's name might be 
``ACN 123 456 789 Pty Ltd''.
[sections 119, 147­161]


3.4 Contracts entered into before the company is registered
                
A company can ratify a contract entered into by someone on its behalf or for 
its benefit before it was registered. If the company does not ratify the 
contract, the person who entered into the contract may be personally liable.
[sections 131­133]


3.5 First shareholders, directors and company secretary
                
A person listed with their consent as a shareholder, director or company 
secretary in the application for registration of the company becomes a 
shareholder, director or company secretary of the company on its registration.
        
        
The same person may be both a director of the company and the company 
secretary.
        
        
See 5.1 and 5.2 for directors and 5.4 for company secretaries. See 6.1 for 
shareholders.
[section 120]


3.6 Issuing shares        
        
It is a replaceable rule (see 1.6) that, before issuing new shares, a company 
must first offer them to the existing shareholders in the proportions that the
shareholders already hold. A company may issue shares at a price it determines.
[sections 254B, 254D]


3.7 Registered office         
        
A company must have a registered office in Australia and must inform ASIC of 
the location of the office. A post office box cannot be the registered office 
of a company. The purpose of the registered office is to have a place where 
all communications and notices to the company may be sent.
        
        
If the company does not occupy the premises where its registered office is 
located, the occupier of the premises must agree in writing to having the 
company's registered office located there.
        
        
A proprietary company is not required to open its registered office to the 
public but this does not affect its obligation to make documents available for
inspection.
        
        
The company must notify ASIC of any change of address of its registered office.
[sections 100, 142, 143, 173, 1300]


3.8 Principal place of business        
        
If a company has a principal place of business that is different to its 
registered office, it must notify ASIC of the address of its principal place 
of business and of any changes to that address.
[sections 117, 146]


3.9 Registers kept by the company        
        
A company must keep registers, including a register of shareholders and a 
register of charges. A company must keep its registers at:
        
· the company's registered office; or
        
· the company's principal place of business; or
        
· a place (whether on premises of the company or of someone else) where the 
  work in maintaining the register is done; or
        
· another place approved by ASIC.
        
        
A register may be kept either in a bound or looseleaf book or on computer.
        
        
If a register is kept on computer, its contents must be capable of being 
printed out in hard copy.
[sections 172, 1300­1302, 1306]


3.10 Register of shareholders        
        
A company must keep in its register of shareholders such information as:
        
· the names and addresses of its shareholders; and
        
· details of shares held by individual shareholders.
[sections 168­169]


3.11 Register of charges        
        
A company must keep a register of charges if the company gives a bank, trade 
creditor or anybody else a charge over company assets.
[section 271]


4 Continuing obligations after the company is set up
        
The Corporations Law and other laws impose obligations on companies themselves
and on their directors and company secretaries. Some of the more important 
obligations imposed under the Corporations Law are discussed below.


4.1 Use of company name and ACN
        
The name of a company must be shown at all the company's business premises (including its registered office) that are open to the public. The company's name and its ACN must appear:
        
· on some of its public documents; and
        
· on its cheques and negotiable instruments; and
        
· on all documents lodged with ASIC; and
        
· if it has one, on its common seal.
[sections 123, 144, 147­156,
Australian Securities Commission Practice Note 47]


4.2 Annual return
        
A company must lodge with ASIC an annual return which contains such 
information as:
        
· names and addresses of each director and company secretary; and
        
· issued shares and options granted; and
        
· details of its shareholders; and
        
· address of its registered office; and
        
· address of its principal place of business; and
        
· a statement that the directors have resolved in the last month that, in the 
  directors' opinion, there are reasonable grounds to believe the company will
  be able to pay its debts as and when they become payable (but if the company
  has lodged an annual financial report with ASIC within the last 12 months,it
  does not need to include this statement).
        
        
An annual return may be lodged with ASIC on a printed form or, if an agreement
is in place to lodge electronically, in accordance with the agreement.
        
        
ASIC may send a partially completed annual return to a company that wants to 
lodge its annual return on a printed form for the company to check, amend if 
necessary, verify and send back to ASIC. However, a company must lodge an 
annual return with ASIC even if ASIC does not send a partially completed annual
return to the company.
[sections 345­348, 352]


4.3 Annual fee
        
A company must pay an annual fee to ASIC on lodgment of the annual return.
[Corporations (Fees) Regulations]


4.4 Notification to ASC of changes
        
The company must notify ASIC if certain basic changes to the company occur. The
following table sets out these notification requirements.


	Notification requirements			
		If . . .	the company must notify ASIC of the change . . .	using 
Form No. . . .	see
section . . .	
	1.	a company issues shares	within 1 month after the issue	207	254X	
	2.	a company changes the location of a register	within 7 days after the change	909	172, 1302	
	3.	a company changes the address of its registered office or principal place of business	within 14 days after the change	203	142, 146	
	4.	a company changes its directors or company secretary	within 14 days after the change	304	242	
	5.	there is a change in the name or address of the company's directors or secretary	within 14 days after the change	304	242	
	6.	a company creates certain kinds of charges	within 45 days after the charge is created	309	263	


5 Company directors and company secretaries


5.1 Who can be a director
                
Only an individual who is at least 18 years old can be a director. If a company
has only 1 director, they must ordinarily reside in Australia. If a company has
more than 1 director, at least 1 of the directors must ordinarily reside in 
Australia.
        
        
A director must consent in writing to holding the position of director. The 
company must keep the consent and must notify ASIC of the appointment.
        
        
In some circumstances, the Corporations Law imposes the duties and obligations
of a director on a person who, although not formally appointed as a director of
a company, nevertheless acts as a director or gives instructions to the 
formally appointed directors as to how they should act.
        
        
The Court or ASIC may prohibit a person from being a director or from otherwise
being involved in the management of a company if, for example, the person has 
breached the Corporations Law.
        
        
A person needs the Court's permission to be a director if the person has been 
convicted of certain offences or is, in some circumstances, unable to pay their
debts as they fall due.
        
        
Generally, a director may resign by giving notice of the resignation to the 
company. The company must notify ASIC of a director's resignation. A director 
who resigns may also notify ASIC of the resignation.
[sections 60, 221, 222A, 224, 228­230, 242, 242C, 599, 600, 206C, 1317G, 1317EA(3)]


5.2 Appointment of new directors
        
It is a replaceable rule (see 1.6) that shareholders may appoint directors by 
resolution at a general meeting.
[section 224C]


5.3 Duties and liabilities of directors
        
In managing the business of a company (see 1.7), each of its directors is 
subject to a wide range of duties under the Corporations Law and other laws. 
Some of the more important duties are:
        
· to act in good faith
        
· to act in the best interests of the company
        
· to avoid conflicts between the interests of the company and the director's 
  interests
        
· to act honestly
        
· to exercise care and diligence
        
· to prevent the company trading while it is unable to pay its debts
        
· if the company is being wound up-to report to the liquidator on the affairs 
  of the company
        
· if the company is being wound up-to help the liquidator (by, for example, 
  giving to the liquidator any records of the company that the director has).
        
        
A director who fails to perform their duties:
        
· may be guilty of a criminal offence with a penalty of $200,000 or 
  imprisonment for up to 5 years, or both; and
        
· may contravene a civil penalty provision (and the Court may order the person
  to pay to the Commonwealth an amount of up to $200,000); and
        
· may be personally liable to compensate the company or others for any loss or
  damage they suffer; and
        
· may be prohibited from managing a company.
        
        
A director's obligations may continue even after the company has been 
deregistered. 
[Sections 180, 181, 182, 183, 184, 475, 530A, 588G, 596, 601AE,
601AH, 1317H]


5.4 Company secretaries
        
A company must have a company secretary. The directors appoint the company 
secretary. A company secretary must be at least 18 years old. If a company has
only 1 company secretary, they must ordinarily reside in Australia. If a 
company has more than 1 company secretary, at least 1 of them must ordinarily 
reside in Australia.
        
        
A company secretary must consent in writing to holding the position of company
secretary. The company must keep the consent and must notify ASIC of the 
appointment.
        
        
The same person may be both a director of a company and the company secretary.
        
        
Generally, a company secretary may resign by giving written notice of the 
resignation to the company. The company must notify ASIC of a company 
secretary's resignation. A company secretary who resigns may also notify ASIC 
of the resignation.
        
        
The company secretary is an officer of the company and, in that capacity, may 
be subject to the requirements imposed by the Corporations Law on company 
officers. The company secretary has specific responsibilities under the 
Corporations Law, including responsibility for ensuring that the company 
notifies ASIC about changes to the identities, names and addresses of the 
company's directors and company secretaries and that the company lodges its 
annual return.
        
        
A company secretary's obligations may continue even after the company has been
deregistered.
[sections 83, 142, 222A, 240, 242, 242C, 345, 601AD, 601AH]


6 Shares and shareholders
        
A proprietary company limited by shares must have a share capital and at least
1 shareholder. ASIC may apply to a Court to have a company wound up if it does
not have any shareholders.
[sections 461­ 462]


6.1 Becoming a shareholder and ceasing to be a shareholder
        
A person may become a shareholder of a company in several ways, including the 
following:
        
· the person being listed as a shareholder of the company in the application 
  for registration of the company
        
· the company issuing shares to the person
        
· the person buying shares in the company from an existing shareholder and the
  company registering the transfer.
        
        
Some of the ways in which a person ceases to be a shareholder are:
        
· the person sells all of their shares in the company and the company 
  registers the transfer of the shares
        
· the company buys back all the person's shares
        
· ASIC cancels the company's registration.
[sections 117, 120, 601AA­601AD]


6.2 Classes of shares
        
A company may have different classes of shares. The rights and restrictions 
attached to the shares in a class distinguish it from other classes of shares.
[sections 254A­254B]


6.3 Meetings of shareholders
        
Directors have the power to call meetings of all shareholders or meetings of 
only those shareholders who hold a particular class of shares.
        
        
Shareholders who hold at least 5% of the votes which may be cast at a general 
meeting of a company have the power to call and hold a meeting themselves or 
to require the directors to call and hold a meeting. Meetings may be held 
regularly or to resolve specific questions about the management or business of
the company.
        
        
The Law sets out rules dealing with shareholders' meetings. 
        
        
A shareholder of a company may ask the company for a copy of the record of a 
meeting or of a decision of shareholders taken without a meeting.
[sections 249A­251B]


6.4 Voting rights
        
Different rights to vote at meetings of shareholders may attach to different 
classes of shares. It is a replaceable rule (see 1.6) that, subject to those 
different rights, each shareholder has 1 vote on a show of hands and, on a 
poll, 1 vote for each share held.
[sections 250E, 254A­254B]


6.5 Buying and selling shares
        
A shareholder may sell their shares but only if the sale would not breach the 
company's constitution (if any). It is a replaceable rule (see 1.6) that the 
directors have a discretion to refuse to register a transfer of shares. 
[sections 1091D­1091E]


7 Signing company documents
        
A company's power to sign, discharge and otherwise deal with contracts can be 
exercised by an individual acting with the company's authority and on its 
behalf. A company can deal with contracts without using a common seal.
        
        
A company may execute a document by having it signed by:
        
· 2 directors of the company; or
        
· a director and the company secretary; or
        
· for a company with a sole director who is also the sole secretary-that 
  director.
        
        
If the document is to have effect as a deed, it should be expressed to be a 
deed.
[sections 126­127, 240]
        
        
A company is not required to have a common seal. If it does, the seal must show
the company's name and its ACN. The seal is equivalent to the company's 
signature and may be used on important company documents such as mortgages.
[sections 123, 127(2)]


8 Funding the company's operations
        
The shareholders may fund the company's operations by lending money to the 
company or by taking up other shares in the company. Except if it is raising 
funds from its own employees or shareholders, a proprietary company must not 
engage in any fundraising activity that would require disclosure to investors 
under Chapter 6D (for example, advertising in a newspaper inviting people to 
invest in the company).
        
        
The company may also borrow money from banks and other financial organisations.
        
        
Anyone who has lent money, or provided credit, to the company may ask for a 
mortgage or charge over the company's assets to secure the performance by the 
company of its obligations.
[sections 113, 124]


9 Returns to shareholders
        
Shareholders can take money out of the company in a number of ways, but only if
the company complies with its constitution (if any), the Corporations Law and 
all other relevant laws. If a company pays out money in a way that results in 
the company being unable to pay its debts as they fall due, its directors may 
be liable:
        
· to pay compensation; and
        
· for criminal and civil penalties.
[588G, 1317H]


9.1 Dividends
        
Dividends are payments to shareholders out of the company's after tax profits.
It is a replaceable rule (see 1.6) that the directors decide whether the 
company should pay a dividend.
[sections 254T, 254U]


9.2 Buy­back of shares
        
A company can buy back shares from shareholders.
[sections 257A­257J]


9.4 Distribution of surplus assets on winding up
        
If a company is wound up and there are any assets left over after all the 
company's debts have been paid, the surplus is distributed to shareholders in 
accordance with the rights attaching to their shares.


10 Annual financial reports and audit


10.1 The small/large distinction
        
The accounting requirements imposed on a proprietary company under the 
Corporations Law depend on whether the company is classified as small or large.
A company's classification can change from 1 financial year to another as its 
circumstances change.
        
        
A company is classified as small for a financial year if it satisfies at least
2 of the following tests:
        
· gross operating revenue of less than $10 million for the year
        
· gross assets of less than $5 million at the end of the year
        
· fewer than 50 employees at the end of the year.
        
        
A company that does not satisfy at least 2 of these tests is classified as 
large.
[section 45A]
        
        
As the great majority of proprietary companies are small under these tests, 
the discussion below deals mainly with the accounting requirements for small 
proprietary companies.
[sections 286­301]


10.2 Financial records
        
Under the Corporations Law, all proprietary companies must keep sufficient 
financial records to record and explain their transactions and financial 
position and to allow true and fair financial statements to be prepared and 
audited. Financial record here means some kind of systematic record of the 
company's financial transactions-not merely a collection of receipts, invoices,
bank statements and cheque butts. Financial records may be kept on computer.
[sections 286­289]


10.3 Preparing annual financial reports and directors' reports
        
The Corporations Law requires a small proprietary company to prepare an annual 
financial report (an annual profit and loss statement, a balance sheet and a 
statement of cash flows) and a directors' report (about the company's 
operations, dividends paid or recommended, options issued etc.) if:
        
· the shareholders with at least 5% of the votes in the company direct it to 
  do so; or
        
· ASIC directs it to do so.
        
        
Unless the shareholders' direction specifies otherwise, the company must 
prepare the annual financial report in accordance with the applicable 
accounting standards.
        
        
Although the Corporations Law itself may not require a small proprietary 
company to prepare a financial report except in the circumstances mentioned, 
the company may need to prepare the annual financial reports for the purposes 
of other laws (for example, income tax laws). Moreover, good business practice
may also make it advisable for the company to prepare the financial reports so
that it can monitor and better manage its financial position.
        
        
Large proprietary companies must prepare annual financial reports and a 
directors' report, have the financial report audited and send both reports to 
shareholders. They must also lodge the annual financial reports with ASIC 
unless exempted.
[sections 286­301, 319­320]


11 Disagreements within the company


11.1 Special problems faced by minority shareholders
        
There are remedies available to a shareholder of a company if:
        
· the affairs of the company are being conducted in a way that is unfair to 
  that shareholder or to other shareholders of the company; or
        
· the affairs of the company are being conducted in a way that is against the 
  interests of the company as a whole.
        
        
A Court may, for example, order the winding up of a company or the appointment
of a receiver.
[sections 246AA, 461]


11.2 Buy­back of shares
        
        
A company may buy back the shares of a shareholder who wants to sever their 
relationship with the company.
[sections 257A­257J]


11.3 Selling shares
        
A shareholder in a company who wants to sever their relationship with the 
company may decide to sell their shares. However, the shareholder may not be 
able to sell their shares readily-particularly if they want to sell their 
shares to someone who is not an existing shareholder. Some of the difficulties
they may face in that case are:
        
· under the replaceable rules the directors have a discretion to refuse to 
  transfer the shares; and
        
· restrictions in the company's constitution (if any) on transferring shares.
[sections 995, 707, 1091D­1091E] 


12 Companies in financial trouble


12.1 Voluntary administration
        
If a company experiences financial problems, the directors may appoint an 
administrator to take over the operations of the company to see if the 
company's creditors and the company can work out a solution to the company's 
problems.
        
        
If the company's creditors and the company cannot agree, the company may be 
wound up (see 12.3).
[Part 5.3A]


12.2 Receivers
        
A receiver, or receiver and manager, may be appointed by order of a Court or 
under an agreement with a secured creditor to take over some or all of the 
assets of a company. Generally this would occur if the company is in financial
difficulty. A receiver may be appointed, for example, because an amount owed 
to a secured creditor is overdue.
[Part 5.2]


12.3 Winding up and distribution
        
A company may be wound up by order of a Court, or voluntarily if the 
shareholders of the company pass a special resolution to do so.
        
        
A liquidator is appointed:
        
· when a Court orders a company to be wound up; or
        
· the shareholders of a company pass a resolution to wind up the company.
[Part 5.2, section 495]


12.4 Liquidators
        
A liquidator is appointed to administer the winding up of a company. The 
liquidator's main functions are:
        
· to take possession of the company's assets; and
        
· to determine debts owed by the company and pay the company's creditors; and
        
· to distribute to shareholders any assets of the company left over after 
  paying creditors (any distribution to shareholders is made according to the
  rights attaching to their shares); and
        
· finally, to have the company deregistered.
[Parts 5.4B, 5.5]


12.5 Order of payment of debts
        
Generally, creditors who hold security over company assets are paid first.
[Division 6 of Part 5.6]


12.6 Cancellation of registration
        
If a company has ceased trading or has been wound up, it remains on the 
register until ASIC cancels the company's registration. Once a company is 
deregistered, it ceases to exist.
[sections 601AA­601AB, 601AH]