12. Registers Flashcards
- Registers
Evidentiary value of copies certified by Registrar
Evidence of statutory requirements
Registrar may refuse to register or receive document
Destruction or transfer of old records
- current CA :to maintain following registers at registered office:
(a) register of members;
(b) register of directors’ shareholdings;
(c) register of substantial shareholders for listed companies;
(d) register of directors, managers, secretaries and auditors;
(e) register of charges; and
(f) register of debenture holders.
(public may, upon payment of the prescribed fee, inspect and take copies or extracts of these registers) - new section expand categories of docs :allows inspection of any doc, notice of incorp or certificate issued under the Act, register of directors, chief executive officers, secretaries or auditors kept by the registrar under s 173(1) and the register of members of any private company kept by the registrar under s 196A, and to take copies or extracts thereof.
General overview
[12.01] There are four types of registers that all companies must maintain for the public’s inspection and to take copies thereof. Apart from administrative matters, subsection (4) confers admissibility of any copies or extracts issued by the registrar as evidence in court, as well as any certificate issued by the registrar as prima facie evidence of the matters stated therein. Subsections (5) and (6) are important because they deal with the registrar’s powers to refuse registration of any document lodged for registration and in such cases, the appeal procedure to the courts. Koo
[12.02] Currently, the Act requires all companies to maintain the following registers at their registered office: (a) register of members; (b) register of directors’ shareholdings; (c) register of substantial shareholders for listed companies; (d) register of directors, managers, secretaries and auditors; (e) register of charges; and (f) register of debenture holders. The public may, upon payment of the prescribed fee, inspect and take copies or extracts of these registers.
[12.03] The new s 12(2) expands the categories of registers and documents that the public may inspect and take copies of, upon payment of the prescribed fees as required by ACRA, see , effective as at 31 May 2017. This section allows the inspection of any document, notice of incorporation of a company or any certificate issued under the Act, the register of directors, chief executive officers, secretaries or auditors kept by the registrar under s 173(1) and the register of members of any private company kept by the registrar under s 196A, and to take copies or extracts thereof.
Register of members
[12.04]Section 110(1) of the Companies Act 1948 (UK) did not require a company not having a share capital to disclose in its register of members the member’s species of membership where its membership was divided into different classes; that under s 113(2) a company could only be compelled to supply such parts of its register of members as could be identified without reference to anything other than the information contained in the register; and that, accordingly, the applicant was not entitled to require the society to supply a list of its full members: Re Performing Right Society Ltd [1978] 1 WLR 1197, CA .
Register of charges
[12.05] For rectification of register of charges: see s 137; Re CL Nye Ltd [1971] Ch 442 where the English Court of Appeal held that although under s 101 of the Companies Act 1948 (UK) the court could order the rectification of an omission or a misstatement in the register, it had no power under that section to order the deletion of a whole registration;
Private company that is wholly owned by the government
- exempted from maintaining registers under CA
- exemption also applies to such cos removed from Gazette
[12.06] Section 12(1) does not apply to any exempt private company wholly owned by the government that the Minister may notify in the Gazette. In addition, the exemption applies to any such company that has been removed from the Gazette: see s 12(2A) and (2B).
Inspect/take copies or extracts without charge
- apply to dirs, ceo, sec, auditor, member for register of directors, ceo, secretaries, auditors and members of a company kept by the registrar
[12.07] Any director, chief executive officer, secretary, auditor or member of the company may, without charge, inspect and take copies of the register of directors, chief executive officer, secretaries, auditors and members of a company kept by the registrar under ss 173(1) and 196A respectively: see s 12(2C) and (2D).
Evidentiary value
[12.08] Section 12(3) confers admissibility of any copies or extract of a document, including microfilms, filed and lodged with the registrar in a non-electronic medium that is certified to be a true copy or extract by the registrar as evidence in any proceedings.
[12.09] A “non-electronic medium” means a medium other than the electronic transaction system established under Part VIA of the Accounting and Corporate Regulatory Authority Act (Cap 2A).
Prima facie evidence
[12.10] Section 12(4) provides that in any legal proceedings, a certificate under the hand and seal of the registrar is prima facie evidence of the matters specified in the certificate.
Refusal to register
[12.11] Section 12(5) provides that the registrar may refuse to register or receive any document for registration if he is of the opinion that it contains any matter contrary to law; has not been duly completed by any omission or misdescription; does not comply with the requirements of the law; or contains any error, alteration or erasure. This section is not to be confused with s 20 which deals with the registrar’s power to refuse the incorporation and registration of a company on the grounds stated therein.
Appeal
[12.12] Subsection (6) allows any person aggrieved by the refusal of the registrar to register any corporation or to register or receive any document or by any other act or decision of the registrar, to appeal to the court which may affirm the refusal, act or decision or give such directions as seem proper or otherwise determine the matter. The expression “person aggrieved” in s 12(6) of the Act should not be given a restricted meaning to apply only to a decision or act made or directed against the person claiming to be aggrieved and which affects his legal rights. It also applies to persons who were not parties to any act or decision of the registrar but who may have been indirectly affected by the registrar’s decision which made them aggrieved. The earlier registration of a company conferred a statutory protection in that it was assured that the registrar would not allow another company to register an identical name if he was of the opinion that it was an undesirable name. By allowing another company to register its new name, the registrar had deprived the existing company of this benefit or advantage. The loss of this benefit or advantage was sufficient to constitute the company as an “aggrieved person” in terms of s 12(6) of the Act
[12.13] However, subsection (6) would not apply to any act or decision of the registrar: (a) in respect of which any provision in the nature of an appeal or review is expressly provided in the Act; or (b) which is declared by this Act to be conclusive or final or is embodied in any document declared by this Act to be conclusive evidence of any act, matter or thing. In summary, s 12(6) was a catch-all provision which provides any “aggrieved party” an avenue to appeal against the Registrar’s decision to the court in three situations: (a) refusal to register any incorporation; (b) refusal to register or receive any document for filing; and (c) any other act or decision of the Registrar. But this catch-all provision does not apply where (i) there are specific provisions in the Act for an appeal or review of the Registrar’s act or decision; or (ii) the Registrar’s act or decision is declared to be conclusive or final or is embodied in any document declared by this Act to be conclusive evidence of any, matter or thing. Act No 36 of 2014 has repealed subsection (6). The specific provisions mentioned in subsection (6)(a) are any erroneous or defective particulars in a register under s 12B(1), any lost or destroyed constitution or document filed or lodged under s 14(5), the power of the Registrar to refuse the registration of a company under s 20(3), the power of the Registrar to refuse the registration of the name of a company under s 27(5) and the power of the Registrar to direct a change of name under s 28(3D) and (3DA). The non-appealable acts or decisions of the Registrar is found in s 12C(4) which relates to errors contained in any document filed or lodged with the Registrar, or any error in the filing or lodgment of any document with the Registrar. In other words, s 20(3) which provides for an aggrieved person to appeal the registrar’s decision to refuse the incorporation of a company to a Minister whose decision is final shall override subsection (6) such that there shall be no further appeal from the Minister’s decision.
[12.14] The Registrar’s powers to refuse registration of a company is subject to s 20(2)(a) and (b) and also any rule of law. The Registrar’s decision to refuse to incorporate a company is subject to judicial review by the Crown: R v Registrar of Companies, Ex p AG [1991] BCLC 476, QBD .
