This note provides a brief overview of the process for transferring the registration of a “foreign company” (or other body corporate) to be registered as a company in Australia.
As with most legal processes, there are specific conditions that must be met and a variety of supporting material to provide in order to implement the transfer process.
In considering a transfer process, people should also take appropriate legal, tax and accounting advice generally to ensure the transfer is implemented on an appropriate basis.
The basics to transfer registration to Australia
ASIC Form 202 (Application for registration of a body corporate as an Australian company) should be completed carefully and lodged with ASIC, together with the supporting documentation referred to below.
Lodgement of the ASIC Form 202 requires a lodgement fee of $382 with ASIC.
Once the transfer is processed by ASIC, the company is immediately “converted” from a foreign company registered in Australia to an Australian-registered company.
Transferring foreign incorporation requires Australian directors
The ASIC Form 202 must specify the type of Australian-registered company the relevant foreign company is to “convert” to.
Any incorporation transferring to become an Australian registered proprietary company must have at least one resident Australian director (a company secretary is optional, however if appointed, that secretary must reside in Australia).
Alternatively, if it is a public company, it must have a minimum of three directors (2 resident in Australia) and one company secretary resident in Australia.
Double-check the supporting documentation
Before lodging an ASIC Form 202, it is important to check that all relevant supporting material has been provided in the appropriate form.
If the materials are not provided in appropriate form, the application cannot go ahead and will not be processed by ASIC.
The key supporting material includes:
- Proof the company is not under external administration – ASIC requires the following documents to demonstrate that a company is not under external administration:
- a credit rating for the company from an approved information broker (eg Veda through GlobalX); and
- a declaration from a director (or a company resolution) that the company is solvent and no application has been made to wind up or approve a compromise or arrangement between the company and another person (in Australia or elsewhere).
- If documents evidencing the above points have been lodged with a foreign companies office (eg the NZ Companies Office (NZCO) (or relevant country Companies Office), evidence should consist of a document certified by NZCO (or relevant country Companies Office)).
- A written statement by a director or secretary (eg a statutory declaration) of the company confirming authorisation of the transfer of incorporation and stating the following:
- the proposed transfer of incorporation from the foreign country to Australia has been duly authorised;
- details of the foreign country’s legislation authorising the transfer and attaching a true copy of such legislation (note that there must be a reciprocal provision in the relevant country’s legislation to transfer the incorporation). In respect of this legislation, an extract of the relevant provisions together with covering page of the relevant Act is sufficient; and
- confirmation that the company has met the requirements of the relevant legislation of the foreign country.
- A certified copy of a current certificate of incorporation of the company in the foreign country. The certification must be done by the companies office of the other country or by a notary public if the companies office will not provide such certification. The certification should be dated no more than three months prior to its lodgement with ASIC.
- A certified copy of the company’s constitution (with the method of certification being the same as above).
Adopting a New Constitution
Once the transfer of registration is complete, the company should adopt a new constitution which is compliant with the Australian Corporations Act.
Removal of newly registered Australian entity from foreign companies register
Ensuring the removal of the newly registered Australian entity from its relevant foreign companies register also needs to be addressed.
Each country has its own unique processes and specific documentation requirements which should be followed. For example, a company that was registered in New Zealand must have its status as a New Zealand company removed from the New Zealand Companies Office. In the case of New Zealand for example, a Form 21 “Application for removal from New Zealand Register” must be signed by a company director, and be lodged with specific supporting documents.
Note: This insight contains commentary for general reference purposes only. It does not constitute legal advice and should not be relied on for any purpose. You should always seek specific legal advice based on your own individual circumstances.