Table of Contents
When you own or run a company, by law, you must update the Australian Securities and Investments Commission (ASIC) in relation to certain changes to details about your company. So, what happens if you make a mistake when lodging a form to update ASIC in relation to certain information? To maintain accurate details for your company on the ASIC Companies Register (ASIC Register), you must make an application to correct the form previously lodged with incorrect details instead of lodging a new form completely. This article will outline your obligations to maintain accurate registers and how to correct a form containing incorrect information.
Internal Maintenance of Company Details
Under the Corporations Act 2001 (Cth) (Corporations Act), a company must set up and maintain a register of members, a register of option holders (and any documents relating to the issue of options) and a register of debenture holders.
Each register required to be kept or prepared by a company may be kept:
- by making entries in a bound or looseleaf book;
- by recording or storing the matters in a mechanical, electronic or other device; or
- in any other manner approved by ASIC.
Further, the registers must be kept at:
- the company’s registered office address;
- the company’s principal place of business address;
- a place in the jurisdiction of the company (whether of the company or someone else) where the work involved in maintaining the register is done;
- another place in the jurisdiction of the company approved by ASIC.
Members Register
The register of members must contain the following:
- member’s name and address;
- date on which the entry of the member’s name in the register is made;
- date on which every allotment of shares takes place;
- number of shares in each allotment;
- shares held by each member;
- class of shares;
- share numbers (if any), and share certificate numbers (if any), of the shares;
- the amount paid on the shares;
- whether or not the shares are fully paid;
- the amount unpaid on the shares (if any); and
- whether or not the shares are being held by a trustee of a trust.
The register of members must also show details of each member who ceased being a company member within the past seven years. Likewise, the date on which that member ceased to be a member. It is best practice to keep a record of the details of former members of your company indefinitely.
Option Holders Register
The option holders register must contain the following information:
- the option holder’s name and address;
- date of entry onto the register;
- date of grant of the options;
- number and description of the shares or interests over which the options were granted;
- either:
- the period during which the options may be exercised; or
- the time at which the options may be exercised;
- any event that must happen before the options can be exercised;
- any consideration for the grant of the options; and
- any consideration for the exercise of the options or the method by which that consideration is to be determined.
The option holders register records options that are exercisable. Therefore, the register must be updated whenever options are exercised or expire.
Debenture Holders Register
The register of debenture holders must contain the following:
- the debenture holder’s name and address; and
- the amount of the debentures held.
If you are a company director, complying with directors’ duties are core to adhering to corporate governance laws.
This guide will help you understand the directors’ duties that apply to you within the Australian corporate law framework.
External Maintenance of Company Details
Your company must internally maintain a members register containing the above details and maintain these details on the ASIC Register. If any changes occur, you must inform ASIC through an ASIC Form 484 (Form 484).
Further, you must update ASIC concerning any changes to the following details of your company:
- change company addresses;
- appoint and cease company officeholders;
- add or remove ultimate holding company;
- change share structure;
- transfer shares; and
- appoint or cease members.
You must notify changes to these details within 28 days of that change occurring. For example, if a share issue occurs on 1 January, you have until 29 January to update ASIC. Otherwise, late fees may apply.
Continue reading this article below the formCall 1300 544 755 for urgent assistance.
Otherwise, complete this form and we will contact you within one business day.
How to Correct an Incorrectly Lodged Form
To correct a previously lodged form containing incorrect information, you must prepare and lodge an ASIC Form 492 (Form 492). Form 492 serves to correct a previously lodged document.
Lodging a new Form 484 to correct the incorrect details is an improper process.
Once Form 492 is processed, the ASIC Register will show the correct information. Form 492 is then added as an annexure to the previously lodged Form 484 to show the initial lodgement was incorrect and that the correct information is as shown in Form 492.
Preparing a Form 492
When preparing the Form 492, most simple corrections can be made without providing evidence regarding the correct information.
For example, you may have mistakenly listed a shareholder as holding their shares as a trustee of a trust when they are not. In this case, you can lodge a Form 492 stating which shareholder’s information is incorrect and what the correct information is meant to be.
The statement can be simple: “Shareholder 1 is incorrectly stated as holding their shares non-beneficially (this means they are holding the shares as a trustee). Please correct the beneficial holding status from ‘N’ to ‘Y’.”
On the other hand, some changes require detailed evidence that ASIC will assess in combination with Form 492. Such changes include:
- corrections to a shareholding entity; and
- any matters concerning the number of shares held and the price paid on the shares.
For example, suppose Form 484 is lodged stating that there were 100,000 Ordinary shares issued to Shareholder 2. In fact, the company has only issued 10,000 Ordinary shares. The Form 492 to correct the number of shares issued must be accompanied by a document showing the correct information. Evidence that can be provided includes, but is not limited to:
- the board resolution approving the share issue and number of shares to be issued;
- the members resolution approving the share issue and number of shares to be issued; or
- the share subscription agreement stating the number of shares to be issued.
Key Considerations
Importantly, the evidence you provide must be a document your company executed before the share issue occurred. For example, a board resolution one week before the share issue indicates the board’s approval to issue a certain number of shares. If you do not have suitable evidence to support the correction you want to make, ASIC may reject Form 492.
When preparing to correct a document lodged a significant amount of time in the past, consider the effect of the incorrect form. For example, suppose there is a situation where a form was lodged on 1 May 2022 stating your company has 100,000 shares on issue instead of 10,000. Likewise, the company has lodged 10 Forms 484 updating share issues from 2 May 2022 to 1 May 2023. Accordingly, each of the 10 Forms 484 lodged after the incorrect form must also be corrected.
What Happens if a Form 492 is Rejected?
If your Form 492 is rejected, ASIC will return the lodged Form 492 along with any evidence submitted and provide a reason for the rejection. Usually, ASIC will outline the necessary evidence required.
If rejected, the options available to you are:
- amending the Form 492 with the suggestions provided by ASIC, then resubmitting the Form 492; or
- applying to the court to have the register corrected.
To avoid the drawn-out process of a rejected Form 492, be sure to provide detailed and consistent evidence. For example, in the scenario with “Shareholder 2” above, the evidence you provide must show that 10,000 Ordinary shares were meant to be issued instead of 100,000 Ordinary shares. If your evidence does not show this, the Form 492 will most likely be rejected.
Key Takeaways
Your company must maintain accurate company details on the ASIC Register. If you make a mistake to a Form 484, you may be able to lodge a Form 492 to correct the incorrect information. To do so, you must prepare the Form 492 and provide any evidence to show the correct information is, firstly, the correct information and secondly, that the information is true and accurate.
For more information about correcting a mistake to a Form 484, our experienced business lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers who can answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Your company must internally maintain a members register containing certain details and maintain these details on the ASIC Register. You must inform ASIC of any changes to your company’s details through a Form 484.
If you have made a mistake, you should prepare and lodge a Form 492 to correct the previously lodged Form 484.
In short, no. You must lodge a Form 492 as it serves to correct a previously lodged document. Lodging a new Form 484 to correct the incorrect details is an improper process.
When preparing the Form 492, most simple corrections do not require evidence. For example, you may have mistakenly listed a shareholder as holding their shares as a trustee of a trust when they are not. In this case, you can lodge a Form 492 stating which shareholder’s information is incorrect and what the correct information is meant to be.
On the other hand, preparing and lodging a Form 492 to correct the shareholding entity, dates of changes, and any matters concerning the number of shares held and price paid on the shares will require detailed evidence that ASIC will assess.
We appreciate your feedback – your submission has been successfully received.
