Tuesday, June 23, 2020

Have I lost you?** - Lost company constitutions

View Legal blogpost 'Have I lost you?** - Lost company constitutions ' by Matthew Burgess

Previous posts have considered the key issues in relation to lost trust deeds (let me know if you want access to any of these). A related issue that comes up regularly is the loss of other essential documents, and in particular, the constitutions for companies.

In most instances, the ramifications of losing a constitution for a company (or as they were formally known the 'memorandum and articles') are normally not as problematic as with the case with discretionary trust deeds.

This said, we would always normally recommend that, if possible, at least a copy of the constitution be located, and particularly for older companies, this can often be achieved via the microfiche records retained by the ASIC.

As many advisers will be aware, up until around the 1990s, all company constitutions had to be lodged with the ASIC on registration of a company.

Where no copy can be found, there is also a process available to adopt a replacement constitution, however some difficulties (particularly from a tax perspective) can arise in this regard if there is uncertainty as to the rights attaching to the shares on issue in the company.

** for the trainspotters, the title here is riffed from the Supremes song ‘Have I lost you’.