There is no jurisdiction under this Act to wind up a foreign company which Sect. 5. has carried on business in this country by means of agents, but which has no branch office of its own here: In re Lloyd Gen. Italiano, 29 Ch. D. 219. 4. This Act is divided into Seven Parts (4), relating to the Division of Act. following subject matters: The First Part,-to the constitution and incorporation of The Second Part,-to the distribution of the capital and The Third Part,-to the management and administration of The Fourth Part,-to the winding-up of companies and The Fifth Part,-to the registration office : The Sixth Part,-to companies authorised to register under The Seventh Part,―to application of this Act to unregistered Sections 249, 250, deal with repeal of Acts; and the last section, 251, deals with the time of commencement of the Act. 25 & 26 Vict c. 89, s. 5. PART. I. (ss. 5-19). CONSTITUTION AND INCORPORATION OF COMPANIES AND ASSOCIATIONS Memorandum of Association. forming com 5. Any seven or more persons associated for any lawful Mode of purpose may, by subscribing their names to a memorandum of pany. association (a), and otherwise complying with the requisitions of 89, s. 6. 25 & 26 Vict. c. Sect. 6. this Act in respect of registration (b), form an incorporated company with or without limited liability. Buckley, pp. 6-8. (a) See forms in Sch. II., infra. (b) ss 16, 17. A company may be registered here, although its object is to carry on business outside New South Wales: semble, see Princess of Reuss v. Bos, L.R. 5 H.L. 176. The memorandum may be signed by agent: In re Whitley Partners, Limited, 32 Ch. Div. 337. 6. The liability of the members (a) of a company formed under this Act may, according to the memorandum of association, be limited either to the amount (if any) unpaid on the shares respectively held by them, or to such amount as the members may respectively undertake by the memorandum of association to contribute to the assets of the company in the event of its being wound up. Buckley, pp. 8, 9. (a) Defined by s. 21. The liability of members is controlled by the memorandum of association and not by the articles of association: Dent's Case, 8 Ch., at p. 775; though the latter may extend the liability of shareholders in certain cases, as, for the adjustment of the rights of the shareholders inter se : McKewan's Case, 6 Ch. Div. 447. The liability of directors may be unlimited, ss. 37-41. 7. Where a company is formed on the principle of having the liability of its members limited to the amount unpaid on their shares, hereinafter referred to as a company limited by shares, the memorandum of association (a) shall contain the following things: (that is to say,)— (1) The name of the proposed company, with the addition of the word "limited" (b) as the last word in such name: (2) The place in New South Wales (A) in which the registered office of the company is proposed to be situate: (3) The objects for which the proposed company is to be established: (4) A declaration that the liability of the members is limited]: (5) The amount of capital with which the company pro- Subject to the following regulations : (1) That no subscriber shall take less than one share : (2) That each subscriber of the memorandum of association Buckley, p. 9. (A) Eng. Act reads “The part of Scotland, or Ireland.” the United Kingdom, whether England, (a) Sch. II., Form A, infra. (b) But as to companies not formed for purposes of gain, see s. 54. Sect. 8. Memorandum 25 & 26 Vict. c. 89, s. 9. 8. Where a company is formed on the principle of having the liability of its members limited to such amount as the members respectively undertake to contribute to the assets of the company guarantee. in the event of the same being wound up, hereinafter referred to as a company limited by guarantee (a), the memorandum of association (b) shall contain the following things: (that is to say,) (1) The name of the proposed company, with the addition name: (2) The place in New South Wales (A) in which the (3) The objects for which the proposed company is to be (4) A declaration that each member undertakes to contri bute to the assets of the company, in the event of the Sect. 9. Memorandum of association of an unlimited company 89, s. 10. Signature and effect of memo. contributories amongst themselves, such amount as may be required, not exceeding a specified amount (c). Buckley, pp. 9-11. (A) Eng. Act reads "The part of Scotland, or Ireland." (a) The capital may or may not be (c) And as to such companies having a capital divided into shares, see s. 13. 9. Where a company is formed on the principle of having no limit placed on the liability of its members, hereinafter referred to as an unlimited company, the memorandum of association (a) shall contain the following things: (that is to say,)— (1) The name of the proposed company: (2) The place in New South Wales (A) in which the regis- (A) Eng. Act reads "Part of the Scotland, or Ireland." (a) Sch. II., Form D., infra. (b) And as to such companies having a capital divided into shares, see s. 13. See note to Eng. Act, s. 9, Buckley, pp. 10, 11. 10. The memorandum of association (A) shall be signed by randum of asso- each subscriber in the presence of, and be attested by, one ciation. 25 & 26 Vict. c. 89, s. 11. Power of certain com witness at the least (B). It shall, when registered, bind the company and the members thereof to the same extent as if each member (a) had subscribed his name and affixed his seal thereto, and as if (c) there were in the memorandum contained, on the part of himself, his heirs, executors, and administrators, a covenant to observe all the conditions of such memorandum, subject to the provisions of this Act. Buckley, pp. 11, 12. (A) Eng. Act inserts here-" shall bear the same stamp as if it were a deed, and " attestation shall be a sufficient attesta- (c) Eng. Act omits " (B) Eng. Act inserts here-" and that (a) Defined by s. 21. As to the effect of the articles of association, see s. 15. The memorandum of association must be stamped with a shilling stamp as an agreement under the "Stamp Duties Act, 1880." 11. Any company limited by shares may so far modify the panies to alter conditions contained in its memorandum of association, if memorandum of association, 89, s. 12. authorised to do so by its regulations as originally framed, or as Sect. 12. altered by special resolution in manner hereinafter mentioned 25 & 26 Vict. c. (a) as to increase its capital (b) by the issue of new shares of such amount as it thinks expedient, or to consolidate and divide its capital into shares of larger amount than its existing shares, or to convert its paid-up shares into stock (c), but, save as aforesaid, and save as is hereinafter provided in the case of a change of name (d), no alteration shall be made by any company in the conditions contained in its memorandum of association (e). Buckley, pp. 12-17. (a) ss. 82, 83. (b) s. 32, Sch. I., Table A. (26)-(28). (c) ss. 26, 27, Sch. I., Table A. (23) -(25). (d) ss. 12-19. (e) But as to alterations in the articles, see ss. 82, 240. And by s. 41 the memorandum of association may be altered so as to make the liability of directors unlimited. By ss. 42-51 the conditions in the memorandum of In Sparke v. Blanton, 7 N.S.W. L.R. Eq. 39, it was decided that the word "stock" in a vesting order includes "shares." The section confers power on a company limited by shares to alter its memorandum of association in certain respects; but except as empowered by this section and the other sections referred to in note (e), the memorandum is unalterable. "The memorandum of association is, as it were, the charter, and defines the limitation of the powers of a company to be established under the Act": Per Cairns, L.C., Ashbury Co. v. Riche, L.R. 7 H.L. 653, at p. 668. And articles of association professing to confer authority to modify the memorandum Articles cannot beyond the limited extent allowed by the Act, are wholly void; and a contract extend memooutside the provisions of the memorandum is wholly void and cannot be Contract when ratified: S.C., and see on this subject the judgments generally in that case. randum. ultra vires. panies to change name. 25 & 26 Vict. c. 89, s. 13. 12. Any company under this Act, with the sanction of a special Power of comresolution of the company passed in manner hereinafter mentioned (a), and with the approval of the Governor with the advice of the Executive Council testified in writing under the hand of the Clerk of the Council (A), may change its name (b), and upon such change being made the Registrar shall enter the new name on the register in the place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case; but no such alteration of name shall affect any rights or obligations of the company, or render defective any legal proceedings instituted or to be instituted by or against the company, |