Companies (Application of Laws) Act 1982 (Tas)

Companies (Application of Laws) Act 1982 An Act to make provision for the formation of companies in Tasmania, the regulation of companies formed in Tasmania, the registration in Tasmania of certain other bodies, and certain other matters, and for other purposes [Royal Assent 30 June 1982] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Companies (Application of Laws) Act 1982 . 2. Commencement (1) This section and section 1 shall commence on the day on which this Act receives the Royal Assent. (2) Except as provided in subsection (1) , this Act shall commence on a day to be fixed by proclamation. 3. Interpretation (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires – Agreement means the agreement made on 22nd December 1978 between the Commonwealth and the States in relation to a proposed scheme for the co-operative regulation of companies and the securities industry or, if that agreement is or has been amended or affected by another agreement, that agreement as so affected; the applied provisions means the provisions applying by reason of sections 5 and 6 ; Commission means the National Companies and Securities Commission established by the National Companies and Securities Commission Act 1979 of the Commonwealth; Commissioner for Corporate Affairs means the person holding office as Commissioner for Corporate Affairs under section 4 of the Commissioner for Corporate Affairs Act 1980 , and includes any person holding that office in an acting capacity; the Commonwealth Act means the Companies Act 1981 of the Commonwealth; Ministerial Council means the Ministerial Council for Companies and Securities established by the Agreement. (2) In this Act, a reference to a Commonwealth Act shall be construed as including a reference to that Act as amended and in force for the time being and to an Act passed in substitution for that Act. (3) In this Act, a reference to the commencement of this Act is a reference to the day fixed under section 2 (2) . 4. Interpretation of Companies (Tasmania) Code The Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981 applies to the Companies (Tasmania) Code . PART II - Application of Laws 5. Application of Commonwealth Act Subject to this Act, the provisions of the Commonwealth Act , other than sections 1 , 2 , 3 , and 4 , apply – (a) as if amended as set out in Schedule 1 ; and (b) subject to and in accordance with the Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981 – as laws of Tasmania. 6. Application of company regulations Subject to this Act, the provisions of regulations in force for the time being under the Commonwealth Act as in force on 31 December 1990, other than provisions providing for the citation or commencement of the regulations, apply – (a) as if amended as set out in Schedule 2 ; and (b) subject to and in accordance with the Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981 – as regulations made under the provisions applying by reason of section 5 . 7. Fees payable (1) There shall be paid to the Commissioner for Corporate Affairs, for and on behalf of Tasmania, for or in respect of – (a) the lodgment of documents with the Commission under the applied provisions; (b) the registration of documents under the applied provisions or the inspection or search of registers kept by, or documents in the custody of, the Commission under the applied provisions; (c) the production by the Commission, pursuant to a subpoena, of any register kept by, or documents in the custody of, the Commission under the applied provisions; (d) the issuing of documents or copies of documents, the granting of licences, consents, or approvals, or the doing of other acts or things by the Ministerial Council or the Commission under the applied provisions; (e) the making of inquiries of, or applications to, the Ministerial Council or the Commission in relation to matters arising under the applied provisions; and (f) the submission to the Commission of documents for examination by the Commission – such fees (if any) as are prescribed by regulations in force on 31 December 1990 under the Companies (Fees) Act 1981 of the Commonwealth and specified in the Schedule to those regulations as if amended as set out in Schedule 3 and as if, unless the contrary intention appears, the expressions used had the same respective meanings as in the applied provisions. (1A) Where – (a) by virtue of section 265A of the Companies (Tasmania) Code , a company is to be deemed, for the purposes of that Code, to lodge a document with the Commission at a particular time; and (b) a fee would, if the company had lodged the document with the Commission at that time, have been payable to the Commissioner for Corporate Affairs under subsection (1) for or in respect of the lodgment – then – (c) the company shall pay to the Commissioner for Corporate Affairs, for and on behalf of the State, a fee (in this subsection referred to as the "relevant fee") of an amount equal to the amount of the fee referred to in paragraph (b) ; and (d) as from that time, the relevant fee is a debt due to the Crown and may be recovered by the Commissioner for Corporate Affairs in a court of competent jurisdiction. (2) Where a fee is payable to the Commissioner for Corporate Affairs for and on behalf of the State under subsection (1) for or in respect of the lodgment of a document with the Commission and the document is submitted for lodgment without payment of the fee, the document shall be deemed not to have been lodged until the fee has been paid. (3) Where a fee is payable to the Commissioner for Corporate Affairs, for and on behalf of the State under subsection (1) , for or in respect of any matter involving the doing of any act or thing by the Ministerial Council or the Commission, the Ministerial Council or the Commission shall not do that act or thing until the fee has been paid. (4) This section has effect notwithstanding anything contained in the applied provisions. (5) Nothing in this section prevents the Commissioner for Corporate Affairs, for and on behalf of the State, from – (a) waiving or reducing, in a particular case or classes of cases, fees that would otherwise be payable pursuant to this section; or (b) refunding in whole or in part, in a particular case or classes of cases, fees paid pursuant to this section. (6) In this section, unless the contrary intention appears, expressions used have the same respective meanings as in the applied provisions. 8. Amendment of regulations pursuant to Agreement (1) Where – (a) under the Agreement, the Ministerial Council approves a proposed amendment of regulations in force for the time being under the Commonwealth Act or the Companies (Fees) Act 1981 of the Commonwealth; and (b) on the expiration of 6 months after the date on which the Ministerial Council so approved, the amendment has not been made or has been made and is subject to disallowance or has ceased to be in force by disallowance or for any other reason – the Governor may make regulations in accordance with the proposed amendments approved by the Ministerial Council amending the provisions of regulations applying by reason of section 6 or the regulations referred to in section 7 , as the case may be. (2) Regulations under subsection (1) may amend Schedule 2 or 3 , as the case may be, and that Schedule as so amended shall be Schedule 2 or 3 , as the case may be, to this Act. (3) In this Act – (a) a reference to provisions of regulations applying by reason of section 6 includes a reference to provisions as so applying as amended in accordance with this section; and (b) a reference to fees prescribed by regulations under the Companies (Fees) Act 1981 of the Commonwealth includes a reference to those regulations as amended in accordance with this section. 9. Publication of Companies (Tasmania) Code (1) The Minister may from time to time authorize the publication by the Government Printer of the provisions of the Commonwealth Act , other than sections 1 , 2 , 3 , and 4 , amended as set out in Schedule 1 and in operation, or to come into operation, in Tasmania. (2) A document published under subsection (1) – (a) shall include the headings and sections set out in Schedule 4 ; (b) shall include a notification of the date, or dates, on which the several provisions set out in the document came, or come, into operation in Tasmania; (c) shall include a statement of the date on which the Minister authorized publication; and (d) may be cited as the Companies (Tasmania) Code . (3) A document that is, or purports to be, a copy of the Companies (Tasmania) Code that has been, or purports to have been, published in accordance with this section is prima facie evidence of the provisions of the Commonwealth Act applying by reason of section 5 as in operation, or to come into operation, in Tasmania as notified in the document in accordance with subsection (2) (b) . 10. Publication of Companies (Tasmania) Regulations (1) The Minister may from time to time authorize the publication by the Government Printer of the provisions of regulations under the Commonwealth Act , other than provisions providing for the citation or commencement of the regulations, amended as set out in Schedule 2 and in operation, or to come into operation, in Tasmania. (2) A document published under subsection (1) – (a) shall include the heading and provisions set out in Schedule 5 ; (b) shall include a notification of the date, or dates, on which the several provisions set out in the document came, or come, into operation in Tasmania; (c) shall include a statement of the date on which the Minister authorized the publication; and (d) may be cited as the Companies (Tasmania) Regulations. (3) A document that is or purports to be a copy of the Companies (Tasmania) Regulations that has been, or purports to have been, published in accordance with this section is prima facie evidence of the provisions applying by reason of section 6 as in operation, or to come into operation, in Tasmania as notified in the document in accordance with subsection (2) (b) . 11. Publication of Companies (Fees) (Tasmania) Regulations (1) The Minister may from time to time authorize the publication by the Government Printer of the Schedule to regulations prescribing fees under the Companies (Fees) Act 1981 of the Commonwealth amended as set out in Schedule 3 and in operation, or to come into operation, in Tasmania. (2) A document published under subsection (1) – (a) shall include the heading and provisions set out in Schedule 6 ; (b) shall include a notification of the date, or dates, on which the several provisions set out in the document came, or come, into operation in Tasmania; (c) shall include a statement of the date on which the Minister authorized the publication; and (d) may be cited as the Companies (Fees) (Tasmania) Regulations. (3) A document that is, or purports to be, a copy of the Companies (Fees) (Tasmania) Regulations that has been, or purports to have been, published in accordance with this section is prima facie evidence of the provisions of the Schedule to regulations referred to in section 7 as in operation, or to come into operation, in Tasmania as notified in the document in accordance with subsection (2) (b) . 12. Publication of provisions of amended Code or regulations (1) The Minister may, from time to time, authorize the publication by the Government Printer of a document setting out – (a) provisions that by reason of – (i) the enactment of an Act of the Commonwealth amending the Commonwealth Act ; and (ii) the operation of section 5 (including the operation, if applicable, of Schedule 1 ) – apply, or will apply, as laws of Tasmania; (b) provisions that by reason of – (i) regulations under the Commonwealth Act ; and (ii) the operation of section 6 (including the operation, if applicable, of Schedule 2 ) – apply, or will apply, as regulations made under the provisions applying by reason of section 5 ; or (c) fees that by reason of – (i) regulations under the Companies (Fees) Act 1981 of the Commonwealth; and (ii) the operation of section 7 (including the operation, if applicable, of Schedule 3 ) – are, or will be, payable under that section. (2) A document published under subsection (1) shall include a notification of the date or dates on which the provisions or fees set out in the document came, or come, into operation in Tasmania. (3) A document that has been or purports to have been published in accordance with this section is prima facie evidence of provisions or fees referred to in subsection (1) set out in the document. 13. Interpretation of references to the applied provisions (1) Unless the contrary intention appears, in this or any other Act, or in a regulation or other instrument made under this or any other Act, or in any other document made by or under the authority of, or for the purposes of, a law of Tasmania – (a) a reference to the Companies (Tasmania) Code is a reference to the provisions of the Commonwealth Act applying by reason of section 5 ; (b) a reference to a provision of that Code is a reference to the corresponding provision of the Commonwealth Act as so applying; (c) a reference to the Companies (Tasmania) Regulations is a reference to the provisions of regulations in force under the Commonwealth Act applying by reason of section 6 ; (d) a reference to a provision of those regulations is a reference to the corresponding provisions of the regulations in force under the Commonwealth Act as so applying; (e) a reference to the Companies (Fees) (Tasmania) Regulations is a reference to the Schedule to regulations prescribing fees in force under the Companies (Fees) Act 1981 of the Commonwealth as referred to in section 7 ; and (f) a reference to a provision of that Schedule is a reference to the corresponding provision of the Schedule to regulations prescribing fees in force under that Act as referred to in section 7 . (2) In subsection (1) , provision includes Part, Division, section, subsection, paragraph, subparagraph, Schedule, form, regulation, clause, subclause, or other division. 14. Amendment of certain provisions in accordance with approval of Ministerial Council Where, under the Agreement, the Ministerial Council – (a) approves – (i) a proposed amendment of the Commonwealth Act ; (ii) regulations proposed to be made under the Commonwealth Act (whether or not amending other regulations); (iii) a proposed amendment of the Companies (Fees) Act 1981 of the Commonwealth; or (iv) regulations proposed to be made under that Act (whether or not amending other regulations); and (b) approves proposed regulations to be made under this Act in connection with the operation of the proposed amendment or regulations referred to in paragraph (a) – the Governor may make regulations amending Schedule 1 , 2 , or 3 or section 7 , as the case may be, in accordance with that approval and that Schedule or section as so amended shall be Schedule 1 , 2 or 3 or section 7 , as the case may be, of this Act. 15. Exemptions from Division 6 of Part IV of the Companies (Tasmania) Code (1) Where the Ministerial Council approves the exemption of a company from complying with all or any of the provisions of Division 6 of Part IV of the Companies (Tasmania) Code in relation to any prescribed interest, or class of prescribed interests, specified by the Ministerial Council, the Governor may make regulations exempting that company, subject to such terms and conditions as are specified in the regulations, from so complying. (2) Where the Ministerial Council approves the declaration of a right or interest, or a right or interest included in a class or kind of rights or interests, as an exempt right or interest, or a class or kind of exempt rights or interests, for the purposes of Division 6 of Part IV of the Companies (Tasmania) Code , the Governor may make regulations declaring that right or interest, or a right or interest included in that class or kind of rights or interests, to be, subject to such terms and conditions as are specified in the regulations, an exempt right or interest, or a class or kind of exempt rights or interests, for the purposes of that Division. (3) Where the Ministerial Council approves – (a) a body corporate incorporated in Tasmania, not being a company within the meaning of the Companies (Tasmania) Code ; or (b) an unincorporated society, association, or other body, formed or established in Tasmania, that has been admitted to the official list of a stock exchange that is a prescribed stock exchange for the purposes of that Code and has not been removed from that official list – as a prescribed corporation for the purposes of Division 8 of Part IV of that Code , the Governor may make regulations prescribing that body corporate, unincorporated society, association, or other body as a prescribed corporation for the purposes of that Division. (4) Regulations under this section shall be read and construed as one with the Companies (Tasmania) Regulations. PART III - Repeals and Transitional Provisions 16. Interpretation: Part III Expressions used in this Part that are defined by section 5 of the Companies (Tasmania) Code or in the Companies and Securities (Interpretation and Miscellaneous Provisions) (Tasmania) Code have in this Part, unless the contrary intention appears, the respective meanings given to those expressions by that section or in that Code. 17. Repeals The Acts specified in Schedule 7 are repealed. 18. Particular provisions Unless the contrary intention appears in this Act or in the Companies (Tasmania) Code , all persons, things, and circumstances appointed or created by or under the Companies Act 1962 or existing or continuing under that Act immediately before the commencement of this Act shall, under and subject to this Act and the Companies (Tasmania) Code , continue to have the same status, operation, and effect as they respectively would have had if this Act had not been enacted. 19. General provisions Without affecting the generality of section 18 , unless the contrary intention appears in this Act or in the Companies (Tasmania) Code , neither this Act nor the Companies (Tasmania) Code disturbs the continuity of status, operation, or effect of any order, rule, regulation, scale of fees, appointment, conveyance, mortgage, charge, deed, agreement, resolution, direction, approval, application, requisition, instrument, document, memorandum, articles, incorporation, nomination, affidavit, call, forfeiture, minute, assignment, register, registration, transfer, list, licence, certificate, security, notice, compromise, arrangement, right, priority, liability, duty, obligation, proceeding, matter, or thing made, done, effected, given, issued, passed, taken, validated, entered into, executed, lodged, filed, accrued, incurred, existing, pending, or acquired by or under the Companies Act 1962 before the commencement of this Act. 20. Proceedings by or against Commissioner to be proceedings by or against Commission. (1) Where, before the commencement of this Act, a proceeding under the Companies Act 1962 had been commenced by or against the Commissioner for Corporate Affairs, the proceeding may be continued by or against the Commission. (2) Where, but for the enactment of this Act, a proceeding under the Companies Act 1962 could have been commenced by or against the Commissioner for Corporate Affairs, the proceeding may be commenced by or against the Commission. 21. Property vested in Commissioner vests in Commission Where, immediately before the commencement of this Act, property was vested in the Commissioner for Corporate Affairs by reason of the operation of section 310 of the Companies Act 1962 , the property vests by force of this section in the Commission and sections 462 , 463 , and 464 of the Companies (Tasmania) Code apply in relation to the property in like manner as they would apply if the property had vested in the Commission pursuant to section 461 of that Code . 22. Registers, funds, andaccounts Any register, fund, or account kept immediately before the commencement of this Act under any provision of the Companies Act 1962 shall be deemed to be part of a register, fund, or account kept under the corresponding provision of the Companies (Tasmania) Code . 23. Acts of Governor or Minister under Companies Act 1962 deemed to be acts of Ministerial Council or Commission, &c. (1) In this section – the Act means the Companies Act 1962 ; the Code means the Companies (Tasmania) Code ; the Gazette means the Commonwealth of Australia Gazette. (2) Where the Minister had given consent under section 22 (1) of the Act to the registration of a company or an intended company by a specified name and the company had not been registered by that name before the commencement of this Act, the consent shall be deemed to have been a consent to the reservation or registration of that name in respect of that company or intended company given by the Ministerial Council under section 38 (2) of the Code . (3) A licence issued to a company under section 24 of the Act or the corresponding provision of a previous enactment and in force immediately before the commencement of this Act continues in force as if – (a) the licence were a licence issued by the Commission under section 66 of the Code ; and (b) where the company was exempt from complying with provisions of the Act – the licence exempted the company from complying with the corresponding provisions of the Code – and a reference in the Code to a licence under section 66 of the Code shall be construed as including a reference to a licence to which this subsection applies. (4) A declaration under section 38 (7) (b) or (c) of the Act and in force immediately before the commencement of this Act shall be deemed to be a declaration made by the Commission under section 97 (7) (b) or (c) , as the case may be, of the Code . (5) A notice under section 38 (8) of the Act and in force immediately before the commencement of this Act shall be deemed to be a notice by the Commission published under section 97 (9) of the Code . (6) Where – (a) under section 44 (3) of the Act , an allotment of shares or debentures had been exempted from the operation of section 44 of the Act ; and (b) that exemption was in force immediately before the commencement of this Act – that allotment of shares or debentures shall be deemed to have been exempted by the Commission, under section 105 (3) of the Code , from the operation of section 105 of the Code . (7) An approval for the purposes of section 74 (1) (e) of the Act and in force immediately before the commencement of this Act shall be deemed to be an approval given by the Commission under section 152 (1) (h) of the Code . (8) An order under section 74D (2) of the Act and in force immediately before the commencement of this Act shall be deemed to be an order made by the Commission under section 156 (2) of the Code . (9) Where, under section 74D (2) of the Act , the trustee for the holders of debentures had been directed to apply to the Court for an order under section 74D (4) of the Act and at the commencement of this Act the trustee had not complied with that direction, the trustee shall be deemed to have been directed by the Commission under section 156 (2) of the Code to apply to the Court for an order under section 156 (4) of the Code . (10) A declaration by the Minister under section 74F (8) of the Act and in force immediately before the commencement of this Act shall be deemed to be a declaration made by the Commission under section 158 (10) of the Code . (11) An order under section 74F (9) of the Act and in force immediately before the commencement of this Act shall be deemed to be a notice published by the Commission under section 158 (11) (a) of the Code . (12) A direction under section 84 (3) of the Act and in force immediately before the commencement of this Act shall be deemed to be a direction given by the Commission under section 172 (5) of the Code . (13) Where – (a) a company had been exempted by notice under section 88 of the Act from complying, in relation to an interest or class of interests specified in the notice, with all or any of the provisions of Division V of Part IV of the Act ; and (b) that exemption was in force immediately before the commencement of this Act – that company is, subject to such terms and conditions (if any) as were specified in that notice, deemed to have been exempted from complying, in relation to that interest or class of interests, with the provisions of Division 6 of Part IV of the Code that correspond with the provisions specified in that notice and, for the purposes of section 176 of the Code , the notice shall be deemed to have been a notice published in the Gazette under section 176 (1) . (14) An order under section 160 (2) of the Act and in force immediately before the commencement of this Act shall be deemed to be an order made by the Commission published under section 265 (2) of the Code requiring the company to comply with the provisions of Division 5 of Part V of the Code and of the regulations made for the purposes of that Division that correspond with the provisions of the Act specified in the order. (15) An order under section 161A of the Act and in force immediately before the commencement of this Act shall be deemed to be an order made by the Commission under section 273 (1) of the Code relieving the directors of the company named in the order from compliance with the requirements of the Code that correspond with the requirements of the Act specified in the order and, where the order is subject to limitations, terms, or conditions, shall be deemed to be subject to those limitations, terms, or conditions. (16) An order by the Governor under section 334 (2) of the Act and in force immediately before the commencement of this Act shall be deemed to be a declaration made by the Commission by order published in the Gazette under section 490 (3) of the Code . (17) An order by the Governor under section 339 (b) of the Act and in force immediately before the commencement of this Act shall be deemed to be a declaration made by the Commission by order published in the Gazette under section 495 (2) of the Code . (18) A declaration under section 348 (5) (b) or (c) of the Act and in force immediately before the commencement of this Act shall be deemed to be a declaration made by the Commission by order published in the Gazette under section 516 (7) (b) or (c) , as the case may be, of the Code . (19) Where – (a) the Minister had given consent under section 353 (1) of the Act to the registration of a foreign company by a specified name; and (b) the foreign company had not been registered by that name before the commencement of this Act – the consent shall be deemed to be a consent given by the Ministerial Council under section 38 (2) of the Code . (20) Where – (a) the Minister had given consent under section 353 (2) of the Act to the registration of a change in the name of a foreign company to a specified new name; and (b) the change of name had not been registered before the commencement of this Act – the consent shall be deemed to be a consent to the reservation or registration of that name in respect of that foreign company given by the Ministerial Council under section 38 (2) of the Code . (21) Where – (a) under section 374 (2) of the Act , a corporation had been exempted from the provisions of section 374 (1) of the Act ; and (b) that exemption was in force immediately before the commencement of this Act – that corporation shall be deemed to have been exempted by the Commission by instrument in writing published in the Gazette under section 552 (2) of the Code from the provisions of section 552 (1) of the Code . 24. Names (1) A name under which a company was registered under the Companies Act 1962 immediately before the commencement of this Act shall, for the purposes of Division 2 of Part III of the Companies (Tasmania) Code , be deemed to be registered under that Division in respect of that company unless and until the registration of the name is cancelled, or ceases to be in force, under that Division. (2) A reference in subsection (1) to a company shall be construed as including a reference to a corporation that, immediately before the commencement of this Act, was registered under the Companies Act 1962 as a foreign company, whether that corporation is, for the purposes of the Companies (Tasmania) Code , a recognized company or a foreign company. (3) Where, within the period of 2 months immediately preceding the date of commencement of this Act – (a) a name was reserved under section 22 (8) of the Companies Act 1962 ; or (b) the period for which a name was reserved under that Act was extended by the Commissioner under section 22 (9) of that Act – the name shall, for the purposes of the Companies (Tasmania) Code , be deemed to be reserved under Division 2 of Part III of that Code until the date on which the reservation of that name under the Companies Act 1962 would have ceased. 25. Continued application of Table A and Table B in certain circumstances (1) Nothing in this Act or in the Companies (Tasmania) Code affects the continued operation of – (a) Table A , or any part of Table A, of the Fourth Schedule to the Companies Act 1962 (either as originally enacted or as amended from time to time) or the corresponding Table, or any part of the corresponding Table, in any corresponding previous law of the State (either as originally enacted or as so amended) so far as it applies to a company existing immediately before the commencement of this Act; or (b) Table B , or any part of Table B, of the Fourth Schedule to the Companies Act 1962 (either as originally enacted or as amended from time to time) or the corresponding Table, or any part of the corresponding Table, in any corresponding previous law of the State (either as originally enacted or as so amended) so far as it applies to a company existing immediately before the commencement of this Act. (2) This section does not prevent the articles of a company adopting, in accordance with section 75 (1) of the Companies (Tasmania) Code , all or any of the regulations contained in Table A or Table B of Schedule 3 to that Code . 26. Existing prospectuses and section 82 statements (1) Where a