When a company is applying for incorporation, the application must select the state or territory in which the company is taken to be registered. Similarly, when a trust deed is drafted, a jurisdiction must be selected which determines the governing law of the deed. This article summarises why a jurisdiction is selected, and provides some guidance for selecting the jurisdiction.Marc Hertz, Maddocks Lawyers
When a person applies to the ASIC to register a company, they must nominate a state or territory in which the company is registered. This nomination is made on the Form 201 which is submitted to ASIC. 
While all companies are governed by the federal Corporations Act, all companies must be registered in a state or territory. The state or territory of registration is listed on the company's certificate of registration and is also publically available on the ASIC Register.
For the products with a trust deed (Discretionary, Unit, SMSF), the customer must choose a jurisdiction in the product interface, which is then inserted into the trust deed as the deed's governing law.
The implications of this choice is that:
However, while the parties to the deed agree that the relevant law is to apply, some case law suggests this may not be determinative. We discuss this further below.
There is little guidance in the Act relating to the choice of state or territory in which a company is registered.
The Act does make it clear that the company's legal capacity and powers do not depend in any way on the particular state or territory in which it is registered.
Section 119A, Note 3, of the Act provides the following:
A law of a State may impose obligations, or confer rights or powers, on a person by reference to the State or Territory in which a company is taken to be registered for the purposes of this Act. For example, a State or Territory law dealing with stamp duty on share transfers might impose duty on transfers of shares in companies that are taken to be registered in that State or Territory for the purposes of this Act.
As this note is expressed in discretionary language, it acts as a form of guidance, rather than prescribing consequences for a choice of state or territory.
In the absence of any statutory or judicial guidance, we suggest that a company should be registered in the state or territory in which it intends to primarily conduct its business or where its registered head office is located.
Unlike the trust documents, the state or territory in which a company is registered does not mean that the company submits to the jurisdiction of the courts within that selected jurisdiction. Instead, this will be determined by the subject matter of those proceedings. Separately, the shareholders may then agree in a shareholders agreement that they (and the company) submit to the courts in a selected jurisdiction (and it would make sense for this to be the state or territory of registration).
The starting position is that a deed which expressly provides a governing law will be governed by the laws of that state or territory, and all parties to the deed will be bound by those laws.
However an express term as to governing law will not necessarily be determinative of the issue. For example, a court will not give effect to a choice of law made in order to evade the application of a law which would have applied had the parties not chosen some other governing law: Akai Pty Ltd v The People's Insurance Co Ltd. 
Furthermore, in the Victorian case of Ballard,Justice Kyrou provided that in the absence of an express or implied choice of the proper law of the trust by the settlor, the proper law is the law with which the trust has its closest and most real connection. In ascertaining that law, the following considerations are particularly relevant:
Therefore, when deciding which jurisdiction to choose for your trust deed, it is important to evaluate each of the above factors from Ballard. As there is no judicial guidance on which of the above factors are the most important, each factor has to be given an equal weighting.
What does appear to be clear is that when considering which jurisdiction to choose, the above factors are more relevant than where the trust itself is executed, at least from a judicial perspective.
For more information, please contact Maddocks on (03) 9258 3555 and ask to speak to a member of the Commercial team.
 Section 117(2)(n) of the Corporations Act.
 Section 119A, Note 1 of the Corporations Act.
 Section 119A, Note 2 of the Corporations Act.
 (1996) 141 ALR 374.
 Graeme William Ballard and Others v The Attorney General for the State of Victoria  VSC 525.
Qualifications: BA, LLB, University of Melbourne
Julia is a Partner in Maddocks Corporate and Private Clients team. Julia has extensive expertise in:
Julia’s clients include high net worth individuals and families and privately held businesses.
Clients value Julia’s empathic, common sense yet technically sound approach to complex legal (and often interpersonal) issues.
She has been recognised as an Accredited Specialist by The Law Institute of Victoria with an accreditation in Wills & Estates Law. She has also been recognised in Doyles Guide for Wills, Estates & Succession Planning Law Recommended – Victoria in 2023.
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