ASIC Form 106 Sets Criteria and Process for Withdrawing Lodged Corporate Documents

Key Takeaways

• ASIC's Form 106 and its accompanying guide set out the limited circumstances in which a document already lodged on the public register can be withdrawn, namely duplication or an error where exceptional circumstances exist.
• Lodgement does not guarantee withdrawal, and many document types cannot be withdrawn at all.
• Compliance teams should treat lodgement accuracy as a front-end control, because corrections are discretionary and the withdrawn record stays visible.

Deep Dive

ASIC's Form 106 and its accompanying guide set out the limited circumstances in which a document already lodged on the public register can be withdrawn, namely duplication or an error where exceptional circumstances exist. Lodgement does not guarantee withdrawal, and many document types cannot be withdrawn at all. Compliance teams should treat lodgement accuracy as a front-end control, because corrections are discretionary and the withdrawn record stays visible.

A document may be withdrawn only for (1) duplication, where the document is identical to a previously lodged one, or (2) incorrect information where exceptional circumstances exist. ASIC's examples of exceptional circumstances include financial reports attached to a Form 388 for the wrong company, a deregistration application lodged by a company that does not meet the criteria, and a conditional director appointment or share issue where the triggering event fails to occur and evidence is provided. For the error pathway, the request must explain how the error occurred, what steps were taken to confirm it, and what contact was made with affected parties, supported by documentary evidence. The form must be signed by the person(s) who signed the original document, and the signatory certifies the information is true and complete.

Certain documents cannot be withdrawn, including Form 205 notifications of special resolutions (voluntary winding up, change of type, name or share structure), applications such as Form 201, and documents affecting company status such as Form 505. The list is not exhaustive. The guide asks for lodgement as soon as possible after the decision to withdraw, and there is no lodgement fee. Use of the form is optional. ASIC may request further evidence or contact affected parties. If ASIC is not satisfied, the company may need to apply to the Court under s1322(4)(b) of the Corporations Act 2001 to rectify the register, which adds cost and delay.

Withdrawn documents are not deleted. A copy of the withdrawn document or the Form 106 remains publicly searchable, so reputational and disclosure exposure persists. Details altered by processing the original form are restored on approval. Because the form is a signed certification, inaccurate statements in the request itself create additional liability for signatories.

Recommended actions:
- Strengthen pre-lodgement review and sign-off for ASIC filings, especially attachments such as financial reports.
- Maintain a register of lodged documents and their document numbers for quick error identification.
- Build an error-escalation procedure that preserves evidence, root-cause analysis, and affected-party communications.
- Identify early which filings are irreversible, such as special resolutions and status-affecting notices.
- Brief directors, company secretaries, and liquidators on signing responsibilities, and budget for possible court rectification.
- Verify that the 2014 and 2016 form versions are still current.

Source: Australian Securities and Investments Commission