Procedure for Registering a Company in Australia and Legal Recourse against Negligent Acts

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Contents
Solution 1.........................................................................................................................................2
Issue.............................................................................................................................................2
Applicable law.............................................................................................................................2
Application of law and conclusion...............................................................................................4
Solution 2.........................................................................................................................................4
Issue.............................................................................................................................................4
Applicable Law............................................................................................................................5
Application of law and conclusion...............................................................................................6
Reference list...................................................................................................................................7

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Solution 1
Issue
To evaluate the procedure that is required needed by Richard so that he and his sons can
formulate a company?
Applicable law
In Australia, there is no single form of business that can be established and run by a person. The
various business forms include a partnership form of business, a sole trade ship, a trust or a
company. Every business form has its own steps of incorporation that are needed to establish a
business.
A company is one of the business forms which require registration for its incorporation. A
company can only be registered by following the steps that are laid by the Australian Securities
and Investment Commission and the Corporation Act 2001. When any business is registered by
following the steps of registration then as per Salomon v A Salomon and Co Ltd [1897], such a
company has its own personality with perpetual succession and has existence in law and is
analyzed in Lee v Lee's Air Farming Ltd [1960]). (Mangal 1995)
Separate Legal personality emphasis that registered companies is treated like a normal human
being in the eyes of law and have all the powers and roles that can be attributed to a normal
human bring. Thus, a company can enter into contracts, sue or be sued, purchase properties,
perpetual succession, tax benefits, finances can be acquired easily, share transferability etc.
(Tomasic et al 2002)
But, all these features can be attributes to a registered company only when the same is
incorporated/registered. A company can be registered effectively by following the steps that are
laid down by ASIC and under the Corporation Act 2001. (ASIC 2017)
I. To analyze the kind of company that is required to be incorporated. (James 2008)
The foremost step that is needed to register a company is to decide upon the kind of
company that must be formulated. There is no single forms of company that can is
normally found to be operated in Australia. Thus, there is a need to decide on the type
of company that must be registered. The various kinds of companies include:
a. When the liability of the company is not limited then it is called unlimited
company;
b. When the burden is limited to the share values of the shareholders then it is a
limited liability company;

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c. The company which have liability with guarantee is called company limited by
guarantee;
d. The public companies;
e. No liability companies are those which are formulated for resource and mining.
f. Not for profit company;
g. Special purpose company;
II. The next step that is required in the process of formulation of a company is to decide
upon the name of the company.
No company can be formulated or registered without deciding its name. The name of
the company is very important as it helps in bringing a distinction amid the various
companies.
The general rule is that no two companies can have similar names. However, there is
an exception to the same and two identical names can be registered provided; firstly,
an individual is holding the name an such person is the member/director; secondly,
when the name is of the joint venture or partnership and the partners of the proposed
director or member; thirdly, when the company is the holder of the name and the
company itself is the proposed director/member.
Also, at times Government approval is also needed for registration of certain names
which includes, royal, trust, Bank, incorporated.
However, there are few words which are strictly prohibited and such names cannot be
registered at all. The names includes words which are related to Royal families or
have some connection with the Government or which misled the general public or
which are related to ex servicemen organization or the words which are offensive and
illegal.
Thus, all the above requirements must be met before deciding the name.
III. The nest step that is needed for the registration of a company is to decide the
administration. The management is the brains of the company. A company being the
official personnel requires human beings to run the company which comprise of its
officers and they form the management of the company. the company management
can be formulated in three different ways which includes; firstly, when the company
is managing its affairs with the help of the constitution, then, it can be managed with
the help of replaceable rules; secondly, A company can also manage its affairs with
the help of a constitution which is a formal written document; thirdly, a company can
also be managed with the help of the both, that is, constitution and replaceable rules.
IV. It is also very important that the details of the shares of the company must be clearly
defined prior the registration of the company. When any proprietary company is
formulated then there should be minimum 50 non employees.