Corporations Act 2001

To change its type, a company must lodge an application with ASIC.

The application must be accompanied by the following:

a copy of:

the special resolution that resolves to change the type of the company, specifies the new type and the company’s new name (if a change of name is necessary); and

any other special resolution passed in connection with the change of type;

for a company limited by guarantee changing to a company limited by shares:

a statement signed by the directors of the company that in their opinion the company’s creditors are not likely to be materially prejudiced by the change of type and that sets out their reasons for that opinion; and

any special resolution dealing with an issue of shares according to section 167;

for a company limited by shares or a company limited by guarantee changing to an unlimited company:

an assent to the change of type in the prescribed form signed by all the members of the company; and

a statement signed by a director or a company secretary of the company that all the members of the company have signed the assent;

for a proprietary company changing to a public company:

a consolidated copy of the company’s constitution (if any) as at the date of lodgment; and

a copy of each document (including an agreement or consent) or resolution that is necessary to ascertain the rights attached to issued or unissued shares of the company.

The company must lodge a copy of any special resolution modifying its constitution passed after the application is lodged (see subsection 136(5)).

The company must lodge information relating to any change of rights attached to its shares, or any division or conversion of its shares into new classes, occurring after the application is lodged (see section 246F).

If shares will be issued to persons under paragraph 166(2)(c) on the change of type from a company limited by guarantee to a company limited by shares, the application must state:

that the company has prepared a list that sets out the following details about each person to whom the shares will be issued:

name and address;

the number and class of shares the person will take up;

the amount (if any) the person will pay for the shares;

the amount (if any) that will be unpaid on the shares; and

the number and class of shares those persons will take up; and

the amount (if any) those persons will pay for the shares; and

the amount (if any) that will be unpaid on the shares; and

if the shares will be issued for non‑cash consideration—the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application; and

that each of those persons who is not a member of the company when the application is made consents in writing to the inclusion in the list of the details about them that are referred to in paragraph (a).

An offer of shares associated with a proposed change of type may need disclosure to investors under Part 6D.2 (see sections 706, 707, 708, 708AA and 708A).

For a company changing to a proprietary company, if any of the particulars in the register kept by the company under section 169 and mentioned in paragraph 178A(1)(b) are different from the particulars set out:

in the latest extract of particulars received by the company; or

if the company responded to the latest extract it received—in the company’s extract taken together with the company’s response to the extract;

If the company has more than 20 members, the company is only required to set out the different particulars under subsection (3A) that relate to a person who is a top 20 member of a class of the company.

See also section 107.

If subsection (3A) applies and any details mentioned in subsection 178C(1) are different from the details set out:

in the latest extract of particulars received by the company; or

if the company responded to the latest extract it received—in the company’s extract taken together with the company’s response to the extract;

The application must be in the prescribed form.

The company must have the consents referred to in paragraph (3)(e) (if any) when the application is lodged. The company must keep the consents.

An offence based on subsection (5) is an offence of strict liability.

For strict liability, see section 6.1 of the Criminal Code.