A certificate of incorporation is a single page from the Registrar, but it settles questions that would otherwise be litigated for years. This article explains what it settles and what it leaves open.
When it is issued
Under section 12(1) of the Associations Incorporation Act 2023, “as soon as the Registrar receives an application for incorporation that complies with Section 11”, the Registrar must enter the association on the register and issue a certificate of incorporation. The duty is mandatory once the application complies; the Registrar’s discretion was exercised earlier, at the notice-of-intention and objection stages. The certificate states the name, the registration number and the date of incorporation.
A certificate of incorporation is conclusive evidence that (a) all the requirements of this Act as to incorporation have been complied with; and (b) on and from the date of incorporation stated in the certificate, the association is incorporated under this Act.
What “conclusive evidence” means
Conclusive evidence cannot be contradicted. Once the certificate exists, no court will entertain an argument that the notice of intention was defective, that the newspaper advertisement was published on the wrong day, that the 60 days had not elapsed, that the statutory declaration was inaccurate, or that the rules did not cover the Schedule. Those were matters for objection under section 9 and appeal under section 10; after the certificate they are closed. The same rule protects companies under section 15 of the Companies Act, and the courts have long applied it to protect people who deal with the corporation and the corporation itself from technical challenges to its birth.
The certificate also fixes the date from which the association exists. That date matters for the vesting of property (section 15), the one-month period for ratifying pre-incorporation contracts (section 92), the running of the first accounting period (section 79(3)), the 18 months allowed for the first annual meeting (section 66(2)), and the exemption from an annual return in the year of incorporation (section 77(4)).
What the certificate does not prove
- That the association is still on the register. An association may since have been removed. A current search, or a certificate under section 150(2), shows its present status.
- Who its committee and public officer are. Those are on the register and change; section 150(2) certificates cover them.
- That its rules are valid. Section 148 provides that registration of a document creates no presumption about its validity, and section 20(7) provides that rules have no effect to the extent they contravene the Act. The certificate proves that rules covering the Schedule were lodged; it does not immunise a bad clause.
- That its purposes are lawful. Section 9(5) allows the Registrar to cancel an incorporation on the ground that the body should have been a company, and section 108 requires removal where incorporation was procured by fraud, where the association has ceased to have the prescribed qualifications, or where it has abused its authority or broken the law. Conclusiveness is about the process of incorporation, not a licence for what follows.
Using the certificate
Banks, the Registrar of Titles, funders and courts will ask for it. Under section 15(2) an incorporated association applies to the Registrar of Titles, producing the certificate, to be registered as owner of land held for it, without formal transfer or fee. Under section 150(1) any person may obtain a copy of the certificate from the Registrar on payment of the fee, so a lost certificate is replaced rather than re-earned. On a change of name the Registrar either notes the change on the certificate or issues a new one (section 17(3)); on a compelled change under section 18 an amended certificate is issued; on amalgamation a certificate of amalgamation is issued (section 103); and on restoration the association is treated as never having been removed (section 117(2)).
The certificate of re-registration
Associations incorporated under the 1966 Act that re-register under Part XVII receive a certificate of re-registration, which under section 169(2) is likewise conclusive evidence that the requirements for re-registration were complied with and that the association is registered under the 2023 Act from the date stated. Section 169(3) confirms that re-registration does not create a new legal entity or affect the association’s property, rights, obligations, membership or pending proceedings. The old certificate remains proof of the original incorporation; the new one proves the transition. See re-registration.
Plead the incorporation, and tender the certificate or a section 150 certificate from the Registrar. Section 150(2) makes the Registrar’s certificate of the association’s status on a given date “evidence of the matters stated” in all courts, and section 150(4) requires judicial notice of the Registrar’s signature. An unincorporated body, by contrast, has no legal personality and cannot sue or be sued in its own name; its members or a representative must be parties.
Sources
- Associations Incorporation Act 2023 — ss 9(5), 11, 12, 15, 17(3), 18(3), 20(7), 66(2), 77(4), 79(3), 92, 103, 108, 117(2), 148, 150, 169
- Companies Act 1997 — s 15 (certificate of incorporation of a company)
Before relying on anything here, read the current text of the Associations Incorporation Act 2023 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.