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You cannot have a company’s name which is identical to another existing business name or a company. Company’s name should end with its legal status. A proprietary company must include the word 'Proprietary' or the abbreviation 'Pty' in its name. A company whose liability is limited to the amount contributed as capital by its members must end with the word 'Limited' or the abbreviation 'Ltd'.
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Certain words and phrases such as' building society', 'trust', 'university', 'chamber of commerce' and 'chartered', as well as words suggesting a misleading connection with Government, the 'Royal Family' or an ex-servicemen's organisation cannot be used in the company name without prior approval. ASIC may refuse any name which they think is offensive or suggest illegal activities.
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Click here to download ASIC guideline of Names which are unacceptable for company registration.
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A company's internal management may be governed by provisions of the Corporations Act 2001 (the Corporations Act) that apply to the company as replaceable rules, by a constitution, or by a combination of both. There are additional requirements concerning internal management contained in ordinary provisions of this Act and also in common law.
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Replaceable rules apply to companies registered after the commencement of s135(1) of the Corporations Act, and to companies registered prior to the commencement that repeal their constitution after 1 July 1998. A company may modify some or all of the replaceable rules by adopting a constitution.
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Replaceable rules do not apply to sole member/director companies if the member/director is the same person. Please see s198E, 201F, 202C of the Corporations Act, for special provisions that apply to these companies.
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The following companies must be governed by a constitution:
- public companies 'Limited by Guarantee' who are applying to omit the word Limited from their name under section 150;
- 'No Liability' public companies under s112;
- 'special purpose companies' that want to obtain the reduced annual review fee under item 103 of the Corporations (Review Fees) Regulations 2003.
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The Constitution for most companies is drawn up prior to the registration of the company. The Constitution has the effect of 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.
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A company must provide an up-to-date copy of the Constitution (s139) to any member who requests it within 7 days.
It is not necessary to lodge the Constitution of a proprietary company (not being an unlimited company) with the application for registration but they must be kept with the company's records and made available if required.
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A company adopts a Constitution either:
- on registration, if each person specified in the registration application as a person who consents to become a member, agrees in writing to the terms of a constitution before the application is lodged; or;
- after registration, if the company passes a special resolution adopting a constitution.
A company may modify or repeal its constitution, or a provision of its constitution, by passing a special resolution. A special resolution requires at least 21 days notice (28 days for public listed companies) and the agreement of a 75% majority of votes cast (refer s9, 136, 137, 140, 249H and 249L).
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A table of replaceable rules can be found in the Corporations Act, s141. The content of each of those sections in the Corporations Act applies as the replaceable rule.
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A company may include in its constitution (by reference or otherwise) a replaceable rule that does not otherwise apply to it. Also, a provision of a section or subsection that applies to a company as a replaceable rule can be displaced or modified by the company’s constitution.
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This information is to be used as a guide only. You should consult the Corporations Act 2001 and Corporations Regulations 2001 on any specific matter of law.
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