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1. What will it cost?
   
2. How long will it take?
   
3. What will be involved?
   
4. ECR - Electronic Company Registration
   
5. Will I receive the ACN (Australian Company Number) online?
   
6. Will I receive an ASIC Certificate of Registration online?
   
7. Will I receive all the legally required documents online?
   
8. How will I receive the documents?
   
9. What documents will Incorporator generate?
   
10. What about an ABN for the new company?
    
11. What if I already have a registered business name?
    
12. Do I have to pre-register or give out my email address?
    
13. Can I form a company with just one person owning and directing it?
    
14. Some additional advantages of using Incorporator
    
15. Is Incorporator hard to use?
    
16. What sort of information do I need to have at my fingertips?
    
17. Who wrote Incorporator?
    
18. Does Incorporator have any independent recognition or awards?
    
19. Security - how will my payment over the internet be secured?
    
20. Privacy & Confidentiality
    
21. Refund Policy
    
22. Will Incorporator look after the ongoing management and regulatory requirements of my company?
    
23. What about a company/common seal?
    
24. What about memorandums and articles of association, constitutions and replaceable rules?
    
25. Background to the changes in the law relating to memorandums and articles of association, constitutions and replaceable rules
    
26. Do you have any related company formation sites?
    
27. Difficulties/Help Line/Queries/Contact Us
    

3. What will be involved?

Optional guidance is available for all but the most basic of questions. There is also a free 1300 helpline (1300 653 373) answered from 9am to 5pm, Monday to Friday - excluding Public Holidays, if you have any questions or happen to need any assistance.

When you have finished answering all of Incorporator's questions you will have the option of either applying to register the company electronically online (in which case you will pay a single, all-up, secure online card payment of $665 - $495 of which is for the ASIC company registration fee which we pass on to ASIC) or lodging manually (in which case you pay $170 securely online by credit/debit card to Incorporator, plus $495 which you will pay directly to ASIC when you lodge the application to register the company at ASIC - either over the counter or through the post). But no matter which option you choose, Incorporator will automatically and immediately generate for you all the associated legally required documents in electronic form (registers, consents, agreements, share certificates etc.) for you to download and print out, on your own printer. These documents will have been tailored according to your answers to Incorporator's questions.

9.  What documents will Incorporator generate?

These documents are as follows (All of the documents will be pre-completed and tailored taking into account your answers to Incorporator's questions. They will also comply with all the relevant provisions of the Corporations Act 2001).

• Application to incorporate
• Director's consent(s)
• Secretary's consent(s) (if applicable)
• Occupier's consent for use of registered office (if applicable)
• Member's consent(s)
• Agreement(s) to take up shares (if applicable)
• Share certificate(s)
• Register of members
• Register of charges
• Register of option holders
• Register of debentures
• Member's guarantee(s) (if applicable)

You will also receive:

• Access to a collated, standard set of rules for the governance of the company known as the 'Replaceable Rules' (these rules are an optional alternative to a 'Constitution')
• Bank Account Opening Instructions
• Access to initial guidance and resource links regarding ongoing legal and regulatory requirements

11.  What if I already have a registered business name?

If you already have a registered business name, and you want to incorporate a company with that same name (plus, for example, 'Pty Ltd' at the end), you can do so via Incorporator. Incorporator will ask you appropriate questions in that regard (as you go through Incorporator's automated online interview process) and take that into account. But you should realize that even though you may think that you are 'incorporating your existing business/business name' you will actually be creating a new/separate legal entity (separate from your existing business) and that this has a number of consequences including the following three consequences.

One, you will need a new ABN for the new company - you will not be able to use your existing business's ABN (you will probably apply, via the ATO, to have your existing ABN cancelled).

Two, you will have to decide what to do with the existing registered business name. Commonly people have such a business name 'transferred' to the new company (allowing the company to trade either under its own full name including, for example, its 'Pty Ltd' name ending, or the 'shortened' business name and thus without the 'Pty Ltd' name ending). See this ASIC publication entitled Transfer a business name.

Three, if you are transferring/gifting/rolling over the existing business/existing business assets to the newly incorporated company (which is common) you should be aware of any tax consequences and you should at least get advice about the 'rollover provisions' - a starting point is to read this ATO publication entitled 'Rollover for an individual (includes sole trader) or trustee who incorporates'. And you should at least read this ATO publication entitled 'Tax aspects of incorporating your business'. Further, one of the assets commonly transferred/gifted/rolled over from the existing business to the newly incorporated company is the balance of the existing business's bank account (which bank account is commonly closed and the balance of which is commonly transferred to a newly opened bank account in the name of the new company).

13.  Can I form a company with just one person owning and directing it?

If you are forming a proprietary company limited by shares (i.e. a 'Pty Ltd' company ), the same person may be the company's -

• sole member - i.e. shareholder or owner;
• sole director; and
• sole company secretary.*

Incorporator refers to this type of company as a 'one person company'.

A proprietary company limited by shares is the most common type of company and the type almost always used for the conduct of small and medium sized businesses which choose to operate as a company.

* Since a change in the law effective 13 March 2000, a proprietary company is no longer required to have a company secretary.

14.  Some additional advantages of using Incorporator

• Automated, electronic online 24/7 service.
• No meetings or conferences - you won't have to make an appointment, meet with, confer with, or communicate with a shelf company provider, solicitor or accountant; you simply interact with the Incorporator computer program.
• No to-ing and fro-ing - you won't need to send any documents or other items to or from a shelf company provider, solicitor or accountant, for signing or other purposes.
• Available anytime - you can form your company online 24/7.
• Save money - a mere A$665 (including GST & ASIC $495 company registration fee) to register a company.
• You get a 'clean' company - you form your own company from scratch. You won't be buying a pre-existing company 'off the shelf'. In this way you can be absolutely sure that your new company has no previous trading history for which you/your company/your client might become liable (unlike the situation with shelf companies).
• Mistake free - it is almost impossible to make a procedural mistake. Incorporator will 'pull you up' if you do. For example, if you try to enter the details of a director who is less than 18 years of age, Incorporator will give you a message telling you that this is not possible.
• Proceed and ponder at your own pace - take as long as you like to answer each question (subject to a 12hr session inactivity timeout - but even this is of no concern if you choose to save your inputs for your possible future use).
• Always up to date - Incorporator is constantly monitored and updated as necessary in order to ensure that it takes into account any relevant changes to the Corporations Act 2001.

15.  Is Incorporator hard to use?

Incorporator takes you carefully through the procedure. Only one step is taken at a time. Each step generally takes the form of a single question with some optional answers which you 'click upon'. Further optional guidance is available for all but the most basic of steps.

16.  What sort of information do I need to have at my fingertips?

Incorporator will ask you, as you go along, for the relevant information. Also, you can spend as long as you like in the Incorporator site at no extra charge from Incorporator.

However, if you want to minimise your time on the Incorporator site you may first want to gather the following basic and essential information -

• For each proposed director, their full name, former full name (if any), residential address, date and place of birth (a proprietary company may have a single director).
• For each proposed company secretary (if any - a proprietary company no longer needs to have a company secretary), their name, former full name (if any), residential address, date and place of birth (a public company must have one, or more than one, company secretary).
• For each proposed member/shareholder, their name, address and the number of shares they will own in the proposed company (a company may have a single member).
• The address of the proposed registered office of the company (an address in Australia where documents may be officially served on the company - this may be the company's principal place of business but it need not be).
• The address of the company's proposed principal place of business in Australia.

17.  Who wrote Incorporator?

Neal is a Solicitor (now non-practising) of the Supreme Court of Queensland, the High Court of Australia and the High Court of England and Wales. He has worked as a practising solicitor in the commercial departments of four of Australia's top ranking law firms, Morris Fletcher & Cross (now Minter Ellison), Clayton Utz, Phillips Fox and most recently Freehill Hollingdale & Page (now Freehills). In addition Neal has worked in the corporate finance department of a Wall Street investment bank, Salomon Brothers (subsequently Salomon Smith Barney and now Citi Smith Barney), as well as the overseas borrowing and foreign exchange section of the Queensland Treasury. He also spent approximately four years working in the City of London for the investor compensation subsidiary of the Securities and Investments Board (otherwise known as 'SIB' - the then chief regulatory body of the UK financial markets). Since ceasing private practice, Neal has worked, and continues to work, on and for Incorporator.

Simon Hart B Com, LLB, conducted extensive review, checking and testing of the site. Simon is a Solicitor (now non-practising) of the Supreme Court of Queensland and of the High Court of Australia with over fifteen years of private legal practice experience, including five years as a partner at the national firm of Dunhill Madden Butler (now Deacons). Since ceasing private practice, Simon has also worked, and continues to work, on and for Incorporator.

The site is a product of many thousands of hours of logical analysis and construction, writing, programming, reviewing and testing, and continual improvement based on user experiences and feedback.

18.  Does Incorporator have any independent recognition or awards?

Incorporator was the Australia-wide 1st prize winner in the highly prestigious CCH Legal Technology Award. The judges for this award included representatives from each of the state law societies plus a representative of the CCH legal editorial team.

Incorporator also received the runner up award in the Channel 9 Small Business Show's Brother Best Business Software Awards (in which there were about 150 entrants).

Incorporator was also the winner of the Best IT Start Up Award in the ASIA-Pacific Qld. ITT awards.

Also, a great many customers have openly recommended Incorporator - see testimonials.

20.  Privacy & Confidentiality

Further, Incorporator will not disclose any information transmissions it receives from users (other than information which it transmits electronically to ASIC if users choose to lodge electronically online), unless compelled by law (which, so far - 10 years at the time of writing - has never happened), or unless the user has committed a fraud, or otherwise engaged in illegal activity, in relation to the user's usage of Incorporator.

Further, this website uses the Google AdWords remarketing service to potentially advertise on third party websites (including Google) specifically to previous visitors of this website (either generally and regardless of what those previous users have done or not done on this website, or specifically ?for example, only to those previous visitors who have not purchased from this website). Such third party websites (including Google) can know that their visitors have previously visited this website (and thus know to potentially display this website’s advertisements) because this website has allowed Google to place a so called ‘cookie?on the computers of such visitors. Visitors of this website may opt out of Google’s use of cookies by visiting Google’s Ads Settings webpage.

23.  What about a company/common seal?

However, a company may have a common seal if it wants one - section 123(1) of the Corporations Act 2001. Company seals can generally be obtained from rubber stamp makers/stationers at minimal cost and at short notice.

24.  What about memorandums and articles of association, constitutions and replaceable rules?

• Memorandums and Articles of Association
  (This is because these documents have effectively been abolished for newly formed companies - Part 2B.4 of the Corporations Act 2001),

  nor

• Constitutions
  (Constitutions will not be produced for a number of reasons -
  • First, because they are not mandatory, even for public companies - section 134 of the Corporations Act 2001 - and are therefore not essential to Incorporator's core function of forming companies.
  • Secondly, because the Corporations Act 2001 includes relatively modern replaceable rules which automatically operate to govern the internal management of companies which have not specifically adopted constitutions - sections 135(1) and 135(2) of the Corporations Act 2001.
  • Thirdly, because a (now) common type of company - a proprietary company with the same person as its only director and shareholder - essentially has no issues of internal management to be governed. This is reflected in section 135(1) of the Corporations Act 2001 which makes the replaceable rules inapplicable to such companies.
  • Fourthly, because if it is desirable that a specific constitution be adopted then Incorporator recommends and prefers that a solicitor be consulted to tailor the constitution to the user's specific requirements, rather than Incorporator offering a range of generic constitutions for adoption - however this process can still be done in conjunction with your use of Incorporator.)

If a constitution is required it can and will be adopted immediately upon the formation of the company, so long as each proposed member has previously agreed in writing to its terms - section 136(1)(a) of the Corporations Act 2001. Alternatively, a constitution may subsequently be adopted (or modified) if the company passes a special resolution to do so - sections 136(1)(b) and 136(2) of the Corporations Act 2001.

(A 'special resolution' is a resolution made on at least 21 days notice to members and passed by at least 75% of eligible voters - sections 9 , 249H and 249L of the Corporations Act 2001.)

A proprietary company is not required to lodge with ASIC a copy of any constitution it may adopt, or modification of it, or any associated special resolution, irrespective of whether the adoption, or modification, took place on or after the formation of the company (unless the modification alters the company's name, share structure or type). However a constitution, if adopted, must be kept with the company's records so that copies can be given to members on request - section 139 of the Corporations Act 2001.

However, in the case of a public company adopting a constitution on its formation, a copy of the constitution must be lodged at the same time, and together with, the application to form the company - section 117(3) of the Corporations Act 2001.

A public company adopting (or modifying) a constitution after the company's formation, must lodge with ASIC, within 14 days, a copy of any constitution it may adopt (or modification of it), and a copy of the special resolution adopting it - section 136(5) of the Corporations Act 2001.

25.  Background to the changes in the law relating to memorandums and articles of association, constitutions and replaceable rules

Newly formed companies no longer have to have memorandums and articles of association. Instead a company's internal management may be governed by the replaceable rules, by a constitution or by a combination of both - section 134 of the Corporations Act 2001.

The replaceable rules are certain sections of the Corporations Act 2001 which automatically apply to a company (except a company with the same person as its only director and shareholder) unless they have been wholly or partly replaced or modified by a specifically adopted constitution - sections 135(1) and 135(2) of the Corporations Act 2001.

The replaceable rules do not apply to proprietary companies with the same person as their sole director and shareholder - section 135(1) of the Corporations Act 2001. This makes sense when one considers that replaceable rules are designed largely to regulate relations and disputes between, and divide powers between, directors and shareholders. Such a rationale falls away when the same person is the company's sole director and shareholder. Instead, sections 201F and 198E of the Corporations Act 2001 automatically apply to a one person company and directly regulate important matters such as the appointment of additional directors, and their powers and duties.

Proprietary companies limited by shares - being the most common type of company - are not required to lodge copies of any constitution they may adopt, unless they are proposing to change to a public company. Essentially, only public companies are required to lodge documents indicating the current content of their constitution - section 136(5) of the Corporations Act 2001.

A company's constitution, if any, and any replaceable rules that apply to the company, have the effect of a contract between the company and each of its members, between the company and each of its directors and company secretaries and between each of a company's members - section 140(1) of the Corporations Act 2001.