Frequently asked legal questions
Is voluntary deregistration the same as winding up?
No, voluntary deregistration is not the same as winding up the company.
Winding up refers to the procedure of a liquidator taking control of a company's affairs to prepare it for deregistration — the process of finalising the company's affairs, settling its liabilities and distributing any surplus assets. Winding up can be instigated by the members voluntarily, or by a court if the company is insolvent. Once the company is wound up, it can then be deregistered.
Voluntary deregistration is an application made directly to ASIC to deregister a company. It is an alternative to winding up, and avoids the need to appoint a liquidator. It can only be done if certain conditions are satisfied.
Who can apply for company deregistration?
The person making the application for voluntary deregistration must be either:
- a director and/or member of the company; or
- the company itself.
You can use Cleardocs to voluntarily deregister a company if the applicant and person nominated to received notice from ASIC of the deregistration is a director. The company must make sure that it has met all of its lodgement, reporting and payment obligations with government agencies, before it proceeds to voluntarily deregister the company.
What are some examples of the liabilities I need to make sure are not outstanding?
You need to pay any outstanding fees and penalties before you apply for deregistration.
In addition to the usual creditor liabilities, make sure that the company does not owe any: PAYG/GST, employee benefits, annual leave, long service leave, redundancy pay, wages and superannuation, or the ASIC annual review fee. We suggest you check with ASIC whether the company will be exempt from an annual review fee.
When must I lodge a hard copy application for deregistration with ASIC?
The Cleardocs document package generates the ASIC Form 6010 for you and lodges it online with ASIC. However, there are some situations where an applicant is required by ASIC to lodge a paper form.
These situations include:
- where an application to wind up the company or the filing of an application for a winding up order in relation to the company has been made in the 6 months prior to the application for voluntary deregistration; or
- a Form CLP1, civil legal proceedings under section 1274(11) of the Corporations Act, has been lodged 24 months prior to the application for voluntary deregistration.
If these situations apply to you, you can cannot use the Cleardocs document package. If you are unsure whether this applies to you, you should obtain legal advice.
What is the effect of deregistration?
Once the company is deregistered, it ceases to exist as a legal entity and cannot do anything in its own right.
The company will need to notify the ATO and the Australian Business Register to cancel the company's ABN.
Can a meeting of directors take place if some or all of the directors are temporarily outside Australia?
For circulating resolutions of directors, do all the directors have to sign the same document?
If your company has a Cleardocs Constitution or uses the replaceable rules: No, the directors can each sign and date separate copies of the resolution, if the wording is identical in each copy (sent by email) — but the resolutions will only take effect from the date when the last director signs.
If your company has a Constitution that is not a Cleardocs Constitution: You will need to review the terms of the Constitution to check whether the directors can sign separate documents to give effect to a resolution. If they can, the directors can all sign separate copies of document containing the resolutions — but the resolutions will only take effect when the last director signs. If the Constitution is silent, or if you are unsure, you should obtain legal advice.
If passing resolutions by email, all emails must be received before the resolution is effective. Documents may be emailed or faxed to directors and emailed replies or signed faxed responses are acceptable. For added security, it is permissible to request the signed original of a fax to be sent to the secretary for inclusion in the minute book with copies of all approval emails or signed documents.
For circulating resolutions of members, do all the members have to sign the same document?
No, but they must all sign an identical form of the document.
Companies with more than one member may reach decisions by circulating resolution, but it first requires all of the members to sign and date a document, or identical documents. The resolution is not effective until the last member signs.
If passing resolutions by email, all emails must be received before the resolution is effective. Documents may be emailed or faxed to members and emailed replies or signed faxed responses are acceptable. For added security, it is permissible to request the signed original of a fax to be sent to the secretary for inclusion in the minute book with copies of all approval emails or signed documents.