The following applies to Torrens Title land, Water Access Licences and the General Register of Deeds.
The terms 'company' and 'corporation' as used in these Directions do not have different meanings and refer to Australian companies registered with the Australian Securities and Investment Commission (ASIC), unless otherwise qualified.
Australian companies are identified as follows:
- a limited company (the most common form of company) must have the word "Limited" or the abbreviation "Ltd" at the end of its name. Note ASIC may exempt a company from using the word Limited in its name, e.g. Westpac Banking Corporation
- a limited proprietary company must have the words 'Proprietary Limited' or the abbreviation 'Pty Ltd' at the end of its name
- an unlimited proprietary company must have the word 'Proprietary' or the abbreviation 'Pty' at the end of its name
- a no liability company must have the words 'No Liability' or the abbreviation 'NL' at the end of its name
- by the name 'Australian Company Number [the companys ACN] Limited/Proprietary Limited/Proprietary' or
- by the name 'Australian Business Number [the companys ABN] Limited/Proprietary Limited/Proprietary'.
Check corporate status using ASIC website www.search.asic.gov.au/gns001.html National Names Index.
A registered company can deal with land or a Water Access Licence in the usual manner. For company execution requirements.
The ACN must be stated on a dealing or document following the first instance of the company's name and appear in the company seal.
A dealing involving a business other than a company, e.g. a partnership or trader, must be drawn in the name of the proprietor of the business and will be registered in the proprietor's name. Reference to a trading name etc is acceptable on a dealing but is not included in any notification entered on the title.
'Trust/superannuation funds' must have corporate status to be recorded on title. For example, 'ABC Ltd Superannuation Fund' cannot deal with land or a Water Access Licence as if it were a company, whereas 'ABC Superannuation Fund Ltd' can.
Companies change of name
A company, co-operative, co-operative housing society, incorporated association etc can change its name on the Register by lodging:
- a Change of Name form W-10CN (Water Access Licence) together with an office copy of the appropriate certificate of registration of the change of name issued by the administering authority
- a Record New Registered Proprietor form 04RP as regards a vesting pursuant to s46C Real Property Act 1900, together with the appropriate evidence; or
- a Request form W-11R (Water Access Licence) with an Order of Court.
Where a discrepancy exists between the name of a company on the WAL and the name of the company as stated on an incoming dealing and that company will be removed from the WAL on registration of the dealing, see Change of name of a party being removed.
Where a discrepancy exists between the name of a company on the WAL and the name of the company as stated on an incoming dealing and that company will remain on the WAL on registration of the dealing, see Change of name party remaining.
Staff processing information
A search of the Australian Securities and Investment Commission (ASIC) website www.asic.gov.au may be made in lieu of requisitioning for evidence of the change of name of a registered company. Marginally note the dealing as to the action taken.
Where a company etc has changed its name a card must be prepared and filed in the Corporations Index.
Companies under administration
The following applies to Real Property Act land, Water Access Licences and the General Register.
An administrator has the power to transfer or otherwise deal with any estate or interest held by a company under administration. While a company is under administration all dealings or documents must be by the administrator, or with the consent of the administrator or the Court.
A dealing or document by an administrator must be drawn in the name of the company and the name must be followed by the words 'under administration'. Evidence of the appointment is not required, except for a NSW/Local Aboriginal Land Council, Aboriginal Association or corporation.
The dealing or document may be executed:
- under the company seal attested by the administrator. The nature of the authority to sign must be stated, e.g. 'administrator for ...'; no other witness is required; or
- by the administrator personally. The nature of the authority to sign must be stated, e.g. 'administrator for ...', and the signature must be witnessed.
See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [80.550].
Companies in liquidation
The following applies to Real Property Act land, Water Access Licences and the General Register.
A liquidator has the power to sell or otherwise dispose of the assets of a company in liquidation.
A dealing or document by a liquidator must be drawn in the name of the company and the name must be followed by the words 'under liquidation'. Evidence of the appointment is not required.
The dealing or document may be executed:
- under the company seal attested by the liquidator. The nature of the authority to sign must be stated, i.e. 'liquidator for ...'; no other witness is required or
- by the liquidator personally. The nature of the authority to sign must be stated, e.g. 'liquidator for ...', and the signature must be witnessed.
See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [80.100].
For a disclaimer of onerous property by a liquidator, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [80.250].
Companies in receivership
The following applies to Real Property Act land, Water Access Licences and the General Register.
A receiver or controller has the power to transfer or otherwise deal with any estate or interest as set out in the Order of Court, statute or instrument of appointment. A receiver or controller may be appointed:
- by an Order of the Court
- pursuant to the statutory power conferred on a mortgagee by the Conveyancing Act 1919 or
- pursuant to an express power to appoint a receiver contained in a mortgage.
A dealing or document by a receiver or controller must be drawn in the name of the company and the name must be followed by the words 'receiver appointed' or 'controller appointed'. Evidence of the appointment is not required.
The dealing or document may be executed:
- under the company seal attested by the receiver or controller. The nature of the authority to sign must be stated, e.g. 'receiver for ...' or 'controller for ...'; no other witness is required or
- by the receiver or controller personally. The nature of the authority to sign must be stated, e.g. 'receiver for ...' or 'controller for ...', and the signature must be witnessed.
See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [80.300].
Corporations Index
The Corporations Index, located in the Bulk Lodgment area, consists of:
- information related to changes of name of companies, co-operatives, co-operative housing societies, incorporated associations etc
- information related to companies etc where the name etc may not clearly indicate the status of the body and
- letters of authority entitling specified parties to deal with land or Water Access Licences, and/or specified persons to execute dealings.
Staff processing information
A card must be prepared and filed in the Corporations Index if not already entered where:
- a company, co-operative society, co-operative housing society, incorporated association etc changes its name
- the status of a company etc is established by Legal Division and/or
- a company furnishes an authority for a person or persons other than the director or secretary to execute dealings on the company's behalf.
In all cases where there is a discrepancy in the name of a company etc, the status of a company etc requires verification, and/or the authority of a person executing a dealing (including a Water Access Licence dealing) on behalf of a company requires verification, the Corporations Index must be checked before referring the case to Legal, or rejecting the dealing from lodgment, or raising a requisition.
Deregistered companies
A dealing involving a deregistered company may be dealt with in one of the following ways:
- A holding or interest remaining in the name of a deregistered company after deregistration may only be dealt with by ASIC. An Application to record new registered holder form W-04NH must be lodged pursuant to s72 Water Management Act 2000 to have the holding or interest vest to Australian Securities and Investment Commission before a transaction may be registered, or
- A dealing that divests the deregistered company of a holding or interest must be drawn in the name of the deregistered company and be made pursuant to s601AF Corporations Act 2001. The dealing must be executed by an authorised officer of the Australian Securities and Investment Commission (ASIC).The capacity must be stated, and the execution must be witnessed.
If ASIC executes under a section other than 601AF then the dealing should be referred to Legal.
A Receiver of a Water Access Licence may be appointed by a secured creditor (mortgagee or chargee), even though the registered holder is a deregistered company.
Where a transfer is lodged and the registered holder is a deregistered company and the certificate of title is lost or destroyed, an Application for Replacement Licence Certificate (Form W-12PV) with the required evidence must be lodged by the transferee together with a statutory declaration by an authorised officer of the Australian Securities and Investment Commission (ASIC) corroborating evidence of loss.
Foreign companies
The following applies to Real Property Act land and Water Access Licences.
A foreign company must be registered with the Australian Securities and Investment Commission (ASIC) in order to carry on certain business in Australia, but is not required to be registered in order to deal with land or a Water Access Licence. If registered with ASIC the foreign company is given an ARBN.
A dealing involving a foreign company will be registered as drawn. If a foreign company does not state the ARBN, a statutory declaration or letter by an officer of the company is required stating that the company:
- is a foreign company
- is not a registered foreign company
- does not have an ARBN and
- does not carry on business in Australia.
Dealings by a foreign company must be executed in the same manner as for an Australian company.
See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [80.700].
Dealings containing text in a foreign language must be accompanied by a translation, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [155.150].
Indexing company names
For General Register of Deeds only - see Companies section under Indexing page (Deeds).