The Corporations Act 2001 (Cth) (Act) requires a company to have a constitution. The following document is a basic precedent for an unlimited proprietary company with shares.
There is no “one size fits all” precedent constitution. This precedent should be used as a guide only, tailored to suit a company’s particular circumstances. However, each proprietary constitution must contain the following information:
- the company’s name;
- its objective;
- whether it is limited or unlimited;
- maximum number of shares the company can issue (share capital); and
- a statement that the members want to form the company (including names, addresses, number of shares etc).
A constitution is not a stand-alone code that governs the powers, duties, rights and obligations of the company, its directors and officers and shareholders. Regard must always be had to the Act and the common law when considering any issue relating to a company.
There is no legal requirement for a proprietary company to lodge a copy of its company constitution.
Tailoring the constitution
If the company and its shareholders enter into a shareholders’ agreement, the constitution and the shareholders’ agreement should be reviewed together, to ensure that they do not conflict. (See the separate precedents “Shareholders’ agreement (short form)” and “Shareholders’ agreement (long form)”.)
This precedent constitution excludes the replaceable rules in the Act. Practitioners should consider the replaceable rules to see if they are more suitable to the company’s particular circumstances than the relevant provisions of the precedent constitution.
This precedent Constitution does not restrict or prohibit the company’s exercise of any of its powers. If such restrictions are required, a suitable amendment will need to be inserted.
For other company constitutions, see:
- “Company constitution – general”;
- “Company constitution – public company limited by guarantee”;
- “Company constitution – Aboriginal and Torres Strait Islander corporation”;
- “Company constitution – public company limited by shares”;
- “Company constitution – no liability mining company”; and
- “Company constitution – unlimited public company”.
This document has been authored for Lexis Nexis by Sarah Harvey, Directions In Governance. It is based on a company constitution reviewed and updated by Stephen Newman, Executive Counsel, Ponte Earle.
This document is prepared with the assistance of Specialist Editor Stephen Newman, Executive Counsel, Ponte Earle.