NSW Resident Director definition

Discussion in 'Commercial Law Forum' started by Milena66, 2 September 2019.

  1. Milena66

    Milena66 Member

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    My wife and I are directors of a private Pty Ltd Australian company, incorporated in Australia 20 years ago, our third director (an Australian resident - living and working in Australia has just passed away). We both live and work in London for 90% of the year. We do not own property in Australia but both have:
    - a bank account
    - Australian driving licence
    - medibank card
    - Australian ID card


    My wife is an Australian citizen and
    I have been granted a Permanent Australian resident visa.

    1) Can I be a Resident director of a private Pty Ltd Australian company?
    2) Do we need to appoint (and pay for) a "resident director", since the Australian company has NO director residing in Australia?
    3) Is it correct to say that since there was a resident director when the company was incorporated - there is non need for us to to appoint another "resident director"?

    The Corporations Act - under section 201A
    - states that a Resident Director “must ordinarily reside in Australia.” “Ordinarily reside” is not defined by the Corporations Act(2001) and it seems that ASIC has not provided guidance on what constitutes a resident of Australia.
    Thanks in advance
     
  2. Rob Legat - SBPL

    LawTap Verified

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    "Ordinarily reside" is a term of common usage, so it doesn't necessarily get a specific definition. ASIC also regularly does not give guidance on what terms like this mean. However, the requirement applies at all times - not just for registration.

    Simply put, for an ordinary Pty Ltd company at least one director must 'live' in Australia. There are various ways to establish this, such as having a permanent residential address where they spend the majority of their time, and being domiciled in Australia for taxation purposes.

    The short answers to your questions are:
    1. If you live and work in London for 90% of the year: no.
    2. Yes.
    3. No.
     
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