A no risk organization is an open organization that is restricted by offers. According to s.112(2) of the Corporations Act, 2001, an organization is qualified to be enlisted as a no obligation organization just on the off chance that it satisfies the accompanying fundamentals:
A body corporate that has not yet been enrolled as an organization likewise needs to satisfy the previously mentioned criteria with a specific end goal to enlist itself as a no risk organization. The principles relating to its enlistment are revered for the most part under s. 117-123, 136(1), 148, 152, 156, 162, 254B, 601BA. (French, 2014) Taking after are the means that an organization must attempt with a specific end goal to enrol itself as a no risk organization:
According to s.148, an organization may enrol itself under an organization name, or work under its ACN, i.e. its Australian Company Number, which is created by the ASIC upon enrolment.
It is up to the incorporators to decide if the organization should take after the replaceable guidelines as enrolled in the Corporations Act, or draft its own particular standards as constitution. Since a no risk organization, generally, is an open organization, it is required to have no less than one secretary and at least three chiefs. Since a no risk organization additionally has an offer capital, its individuals are likewise required to agree to take up a predefined number of offers at the season of enlistment and to pay the sum owed by them in regard of the offers.
Keeping in mind the end goal to hold a name for the no risk organization, Form 201 is to be sent as an application to the ASIC.
The ASIC will audit the application made by the organization and enlist it under the name or an ACN on the off chance that it regards that the organization satisfy all the previously mentioned prerequisites
The doctrine of capital maintenance - i.e. that an organization must acquire legitimate thought for offers that it issues and that having gotten such capital it must not reimburse it to individuals with the exception of in specific conditions - is a key rule of organization law. Indeed, the tenet stresses on an essential obligation of the organizations to keep the capital in place for the wellbeing of the lenders giving the command to the courts to regulate whether the capital is dispersed legitimately or not. (Knapp, 2013)
The explanations behind the birthplace of the convention can be twofold; right off the bat, to secure the enthusiasm of the lenders, and furthermore to guarantee the legal scattering of the advantages of the organization. The courts have dependably been on edge to stay with the capital of the intact for "the lender offers credit to that capital; offers credit to the organization on the confidence of the portrayal that the capital might be connected just with the end goal of the business and, subsequently, has a privilege to state that the enterprise should keep its capital and not return it to its shareholders." (Hendricks, 2014) However, it merits specifying that the principle has been produced through a progression of legal elucidation in organization law cases in England. Jessel M. R., in Flitcrofts Case, by implication expressed around two parts of the principle of capital support "i) the lenders have a privilege to see that the capital is not scattered unlawfully; and ii) the individuals must not have the capital come back to them surreptitiously. These two angles are represented by the standards of a) capital lessening and b) organization appropriations."
For an illustration, where an organization activities the alternative to recover redeemable inclination shares, the obligation of an executive under s 588G might be activated at the time that the organization practiced the choice. (Visser, 2014)
The doctrine of capital maintenance had been struck down by Corporation Act. The doctrine has been argued to be of ‘no use’ to the creditors, is outdated and meritless, as the exceptions that it bears supersede it. Further, the logic provided is fallible as, in practice, creditors do not rely on the share capital to recover their debts and usually enter into contractual agreements with the company to protect their own rights. Thus, the doctrine is irrelevant in the Australian context. (Novak, 2014)
French, D., Mayson, S., Mayson, S.W. and Ryan, C., 2014. Mayson, French & Ryan on company law. Oxford University Press, USA.
Hendricks, R. and Blackwood, C., 2014. Capital management. Tax Specialist, 17(5), p.222.
Knapp, J., 2013. A Reconsideration of Consolidation Accounting Requirements and Pre?acquisition Dividends. Australian Accounting Review, 23(3), pp.190-207.
Novak, A., 2014. Capital sentencing discretion in Southern Africa: A human rights perspective on the doctrine of extenuating circumstances in death penalty cases. African Human Rights Law Journal, 14(1), pp.24-42.
Tomasic, R., 2015. The Rise and Fall of the Capital Maintenance Doctrine in Australian Corporate Law.
Visser, A., 2014. The return of capital to shareholders by means of a repurchase of securities (Doctoral dissertation, University of Pretoria).
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