A company may apply to ASIC to be de-registered under the Corporations Act [sec.
601AA(1)] provided, at the time, it:
- is solvent
- is not carrying on business and/or it is dormant
- has assets worth less than $1,000
- has no liabilities (real or contingent)
- has no charges (over assets) outstanding
- is not party to any legal proceedings
- owes nothing to ASIC*
- all members/shareholders of the company have agreed to de-registration.
An alternative is for the company to be voluntarily wound up under sec. 491 of the Act, although if the above criteria are met then application for de-registration is simpler, cheaper and quicker.
- Hold a Board Meeting or pass a Directors’ Resolution to agree:
- that the above criteria are met
- to recommend to shareholders/members to proceed to de-registration
- to seek unanimous consent of ALL shareholders either by having them all sign a written resolution or call a General Meeting.
- Obtain the consent of all shareholders to approve de-registration.
A Circulating Resolution, signed by all shareholders, is all that is really required for de-registration. However, a General Meeting may be called although even using that process the unanimous consent of ALL shareholders is required. To achieve this may require proxies from all shareholders not attending the meeting – or some form of written consent from each shareholder (eg, appointing an attorney).
- Complete and lodge Form 6010 “Application
for Voluntary Deregistration of
- Company” with ASIC:
- naming ‘the applicant’, which may be a directoror ‘the company’ itself (in which case a ‘nominee’ individual person must be named for contact/notification purposes);
- signed by a Director or Company Secretary, or a shareholder; and
- accompanied by the required fee.
- Once the Form is submitted the application to voluntarily de-register the company will be considered by ASIC and, if acceptable, ASIC will write to the applicant or the person nominated within 3 / 4 weeks advising approval to de-registration proceeding and formally give notice of such in the Govt Gazette [sec 601AA(4)].
- Two(2) months after gazettal (if there are no objections, etc) ASIC will:
- officially de-register the company
- give Notice of De-registration to the company.
Following de-registration any remaining company assets vest in ASIC [sec. 601AD(2)], including all property held on trust by the company [sec. 601AD(1A)], although, by negotiation, often these can be “bought back” by the directors or members – otherwise they can be auctioned.
In need, there are processes available under the Act [sec 601AH] or through the Courts for “reinstatement” of a company – for example: if the company suddenly “comes into” additional assets – otherwise these too vest in ASIC – or if a former creditor wishes to take action against the company.
Also, officers of the Company may still be liable for things done before de-registration [sec. 601AD(1)]. And, books and records of the company must be retained for at least three (3) years after de-registration [sec. 601AD(5)].
*Originally written by Company Secretary, an Australian virtual company secretary service.