This Act may be cited as the Chateau Companies Act 1977.
(2)
This Act shall be deemed to have come into force at 7.30 pm on the 8th day of June 1977.
2-
Interpretation
In this Act, unless the context otherwise requires,—
Bank means a person carrying on in New Zealand the business of banking
The words “person carrying on in New Zealand the business of banking” were substituted, as from 30 June 1995, for the words “bank within the meaning of the Banking Act 1982” pursuant to section 2(2) Banking Act Repeal Act 1995 (1995 No 32).
Court means the High Court
The words “High Court” in the definition of Court were substituted, as from 1 April 1980, for the words “Supreme Court” pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).
Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act
Minister: substituted, as from 1 October 1995, by section 10(3) Department of Justice (Restructuring) Act 1995 (1995 No 39).
Trustee, in relation to any company to which this Act applies, means the trustee or trustees for the time being of the assets of that company appointed by or under section 4 of this Act.
Compare: 1974 No 27 s 2
3-
Application of Act
This Act shall apply to the following companies:
(a)
Chateau Commodore (Blenheim) Limited:
(b)
Chateau Hotels Limited:
(c)
Chateau Commodore (Timaru) Limited.
Compare: 1974 No 27 s 3
4-
Trustees in respect of assets of companies
(1)
There shall be a trustee of the assets of each of the companies to which this Act applies.
(2)
The first trustee of the assets of each of the companies specified in paragraphs (a), (b), and (c) of section 3 of this Act shall be Kenneth James Jensen of Christchurch, Chartered Accountant.
(3)
Every trustee of the assets of any company to which this Act applies shall hold office at the pleasure of the Minister, who may from time to time appoint a different or an additional person as trustee of the assets of the company.
On the commencement of this Act all property and rights whatsoever of each of the companies to which this Act applies shall be and the same are hereby vested, without conveyance or assignment, in the trustee of the assets of the company.
(2)
Upon the appointment by the Minister of a different or an additional person as trustee of the assets of any company to which this Act applies, all property and rights whatsoever of the company at the time of the appointment shall be and the same are hereby vested, without conveyance or assignment, in the person or persons who are thereafter to be the trustee or trustees of the assets of the company.
(3)
On the vesting under subsection (1) or subsection (2) of this section of the assets of Chateau Commodore (Blenheim) Limited and Chateau Hotels Limited respectively, the trustee in whom those assets vest shall take the land described in Schedule 1 to this Act free from such reservations, restrictions, encumbrances, liens, caveats, and other interests as are existing at the commencement of this Act, except the easements shown on the titles to the land and any easements intended to be granted or reserved under section 243 of the Resource Management Act 1991 and any caveat placed on the title to any land by the Corporation of any borough and any provision relating to fencing.
(4)
On the vesting under subsection (1) or subsection (2) of this section of the assets of any company to which this Act applies, the trustee in whom those assets vest shall take all personal property of the company free from all encumbrances existing at the commencement of this Act.
(5)
On the vesting under subsection (1) or subsection (2) of this section of the assets of Chateau Commodore (Blenheim) Limited and Chateau Hotels Limited respectively in a trustee, the District Land Registrar for the land registration district in which the land is situated shall without further authority than this Act and upon notification make such entries in the register and generally do all such things as may be necessary to give full effect to the provisions of this section in relation to the land specified in Schedule 1 to this Act, whether in the case of land that belonged to Chateau Hotels Limited immediately before the commencement of this Act it is registered in the name of that company or of Chateau Commodore (Hotels) Limited.
(6)
In any case where any land, other than land specified in Schedule 1 to this Act, vests in a trustee under this section, the District Land Registrar for the land registration district in which the land is situated, on the deposit with him of such plans and documents as he may require, shall make such entries in the register and generally do all such things as may be necessary to give full effect to the provisions of this section.
Compare: 1974 No 27 s 5
Subsection (3) was amended, as from 1 October 1991, by substituting a reference to “section 243 of the Resource Management Act 1991” for the reference to “section 351E of the Municipal Corporations Act 1954”.
6-
Sale of liquor licences to vest in trustee
From the commencement of this Act the trustee of the assets of any company to which this Act applies shall be deemed to be the holder of any on-licence issued under the Sale of Liquor Act 1989 in respect of that company, and the Clerk of the appropriate Licensing Committee shall, without further authority than this Act, amend his records and any licence accordingly.
The Sale of Liquor Act 1962 (1962 No 139) was repealed, as from 1 April 1990, by section 230(2) Sale of Liquor Act 1989 (1989 No 63).
7-
Duties and functions of trustee
(1)
In the exercise in relation to the assets of any company to which this Act applies of the powers and functions conferred upon the trustee of the company by this Act, it shall be the duty of the trustee to take possession of and protect and preserve those assets, to hold them for the benefit of creditors, to manage them, to realise them, and to hold the proceeds on trust to apply the same in accordance with sections 12 and 13 of this Act.
(2)
Nothing in this section shall limit the powers conferred on any such trustee by or under sections 9, 10, and 11 of this Act.
Compare: 1974 No 27 s 12
8-
Trustee's duties in respect of certain land subject to a mortgage
(1)
Where any interest in land, other than land specified in Schedule 1 to this Act, vests in the trustee of the assets of a company to which this Act applies pursuant to section 5 of this Act and is subject to a mortgage or charge, the trustee shall either—
(a)
Register under the Land Transfer Act 1952 transmission of the interest in the land to him; or
(b)
Give notice to the mortgagee or other person entitled under the charge that he does not intend so to register transmission or cannot register transmission.
(2)
Notice under paragraph (b) of subsection (1) of this section shall be deemed to be notice to the mortgagee or any other person entitled under the charge that the interest of the company has vested in the trustee. Thereupon the mortgagee or person entitled under the charge shall, in the event of entering into possession or selling, be liable to account to the trustee as if the trustee were the registered proprietor.
(3)
In any case where the trustee does not register transmission, whether or not notice has been given under paragraph (b) of subsection (1) of this section, if the company is in possession of the interest in the land at the commencement of this Act and remains in possession thereof until the discharge of the trustee under section 17 of this Act, the interest in the land shall thereupon revest in the company, subject to any order that the Court may make in relation thereto, whether before or after the revesting. In making any such order the Court shall have regard to the good faith of the company, the length of time from the commencement of this Act, the value of the improvements made since the commencement of this Act, and all other relevant matters.
The trustee of any company to which this Act applies shall have the following powers:
(a)
To take and retain possession of all property, whatsoever and wheresoever situated, belonging to the company or held by or vested in any receiver under any debenture, and in particular, but without limiting the generality of the power conferred by this paragraph, to demand, receive, and hold all scrip, share certificates, or other instruments of title to property of the company (whether registered in the name of the company or not) which is or may be in the hands of any person or corporation, whether or not employed by the company, with all related documents, records, and lists of such instruments:
(b)
To demand and receive all money payable to the company or held by or vested in any receiver under any debenture; and to take over bank accounts of the company:
(c)
To sell the whole or any part of the assets of the company by public auction or public tender on such terms and conditions as he thinks fit, with power to buy in at any auction or to rescind or vary any contract for sale on such terms as he thinks fit, and with power also to sell the whole thereof to any person or to sell the same in parcels and in any order:
(d)
To let or grant a lease of any assets of the company; and to take a lease or tenancy of any property required by the trustee:
(e)
To repair and insure against any damage, whether by fire or earthquake or accident or otherwise, any assets of the company, and to insure against any other risk or liability against which the trustee considers it prudent to insure:
(f)
To pay all rates, taxes, insurance premiums, or other outgoings payable in respect of the assets of the company, or under any policy of insurance of any kind:
(g)
To apply money forming part of the assets of the company, whether arising from real or personal property and whether income or capital, in or towards the payment of any debts, obligations, or liabilities incurred by the trustee in the exercise of his powers as such:
(h)
To borrow, on the security of any assets of the company, any money that may be required for the purposes of the administration of the assets of the company:
(i)
To carry out and perform contracts entered into by the company or any receiver under any debenture before the appointment of the trustee; and to meet any liability incurred by any such receiver which the trustee considers was properly incurred in carrying on the business of the company:
(j)
To vary or rescind any contract in any case where by law, if this Act had not been passed, the company would be entitled to do so:
(k)
To cause to be brought to New Zealand any books, records, vouchers, securities, instruments of title, or any other movable property of the company held out of New Zealand:
(l)
To carry on the business of the company so far as may be necessary or expedient for the beneficial disposal of the same, and for that purpose to employ such person or persons as he thinks fit:
(m)
To appoint servants, clerks, managers, and agents on such terms and subject to such conditions as the trustee thinks fit, and at his discretion to dismiss any person appointed by the company or by the trustee:
(n)
To appoint a fit person to be the registered agent or public officer of the company in any place in any other country:
(o)
To grant powers of attorney to any person in or out of New Zealand to do any act or thing with respect to the assets or affairs of the company that the trustee could personally do by virtue of this Act:
(p)
To consult and employ counsel, solicitors, accountants, sharebrokers, and other persons.
(2)
In addition to the powers given by subsection (1) of this section, but subject to the provisions of this Act, the trustee may sell by private contract—
(a)
Any perishable property:
(b)
Any property offered for sale by public auction or public tender and not sold:
(c)
Any property that, by reason of its nature, situation, value, or other special circumstances, he considers it unnecessary or inadvisable to sell by public auction or public tender:
(d)
Any property for which authority has been given by a resolution of creditors to sell by private contract:
Provided that the sale shall be in accordance with the terms of the authority so conferred:
(e)
Securities in any company, securities of the Government of New Zealand, and securities issued by any local authority within the meaning of Part 1 of the Local Authorities Loans Act 1956, if the sale is made through a person authorised to undertake trading activities on a registered exchange's securities market (within the meaning of section 2(1) of the Securities Markets Act 1988).
(3)
Before exercising any of the powers conferred by the foregoing provisions of this section, the trustee may in his discretion apply to the Court ex parte for directions with respect to the exercise of those powers, and the Court may, on any such application, make such order declaring the rights of persons before the Court or otherwise, as the Court thinks just.
(4)
Where the trustee of any company to which this Act applies refuses to meet any liability incurred by any receiver under the power conferred on him by subsection (1)(i) of this section, the trustee shall, if so requested by the receiver and on giving notice to all interested parties, apply to the Court for directions with respect to the exercise of that power, and the Court may make such order as it thinks just.
(5)
Where a document is made or executed in professed exercise of the power to sell conferred by this section, the title of any person acquiring title thereunder shall not be impeachable except on the ground of fraud, or be affected on the ground that no case has arisen to authorise the sale, or that the power was otherwise improperly or irregularly exercised.
Compare: 1958 No 23 s 7; 1967 No 54 s 72
Section 9(2)(e): amended, on 24 November 2009, by section 23(1) of the Securities Markets Amendment Act 2009 (2009 No 54).
Subsection (2)(e) was amended, as from 1 December 2002, by section 30 Securities Markets Amendment Act 2002 (2002 No 44) by substituting the words “person authorised to undertake trading activities on a registered exchange's market (within the meaning of section 2(1) of the Securities Markets Act 1988)” for the words “member of a registered stock exchange”.
10-
Power to terminate contract of agency or service
The trustee of any company to which this Act applies may at any time terminate any contract of service or agency between the company and any person who is a servant or agent of the company, notwithstanding that by law, apart from this Act, the company could not have so terminated the contract until some future date; and where a contract is so terminated under this section the company shall thereupon be discharged from the further performance of the contract, and from all liability for subsequent non-performance of the contract:
Provided that after the termination of his contract the person may, within 6 months of receiving notice of the termination, apply to the Court for compensation in respect of the contract; and that Court may award such compensation in respect of the contract as it considers just and reasonable having regard to the value of the consideration provided by the person, and to all amounts and benefits that the person has received under the contract, and to the conduct of the parties.
Compare: 1958 No 23 s 5A; 1959 No 88 s 4
11-
Court may confer additional powers on trustee
In addition to the powers conferred on the trustee of any company to which this Act applies by or under sections 9 and 10 of this Act, that trustee shall have, in relation to the assets of the company, such further powers (if any) as the Court, on application by the trustee in that behalf, may confer.
All money received by the trustee of the assets of a company to which this Act applies, in respect of that company, shall be paid by him as soon as practicable into a trust account established by him at a bank, and shall be applied,—
(a)
First, in payment of all costs, charges, and expenses (including costs, charges, and expenses in carrying on any business) incurred by the trustee and payable under section 16 of this Act:
(b)
Secondly, in payment of the preferential payments referred to in section 308 of the Companies Act 1955 and on the terms and conditions set out in that section and in section 101 of that Act, which last-mentioned section shall apply as if the trustee were a receiver:
(c)
Thirdly, in payment of secured debts in accordance with such order or orders as the Court may make in that behalf:
(d)
Fourthly, in payment of the balance, if any, to such person or persons as the Court orders.
(2)
All debts in one order of priority shall be paid in full before those with a lower priority, but among debts of the same priority they shall rank equally among themselves, and if the assets are insufficient to meet them in full they shall abate proportionately.
13-
Settling of scheme of payments
(1)
In settling any scheme of payments under section 12 of this Act, the Court shall determine—
(a)
The validity and value of each security as if this Act had not been passed:
(b)
The priority of each valid claim in respect of each asset as if this Act had not been passed:
(c)
The proportion of the trust fund that represents the various realised assets (including the value of the land comprised in each certificate of title):
(d)
From which asset or assets expenses and charges of the trustee shall be met, and in what proportions.
(2)
Any such scheme of payments in relation to the assets of any company to which this Act applies may be settled by the Court either before or after the completion of the realisation by the trustee of those assets.
14-
Duty to deliver books and property to trustee
(1)
It shall be the duty of all persons having possession and control of any books or records or documents or other property, whatsoever and wheresoever situated, belonging to any company to which this Act applies, forthwith after the commencement of this Act, to deliver or yield up possession of all such books, records, documents, or other property as aforesaid to the trustee of the assets of the company or his authorised agent.
(2)
If any person fails for not less than 14 days to comply with the requirements of subsection (1) of this section, he shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding $200, and to a further fine not exceeding $20 for every day during which the offence has continued.
(3)
If any person fails to comply with the requirements of subsection (1) of this section, the trustee may at any time certify the failure to the Court (whether or not an offence has been committed under subsection (2) of this section), and the Court may thereupon inquire into the matter of the failure and, after hearing any witnesses who may be produced against or by or on behalf of the alleged offender, and after hearing any statement that may be offered in defence, may punish the offender in like manner as if he had been guilty of contempt of the Court.
(4)
It shall be no defence to any proceedings under this section that the person in possession or control of any property as aforesaid is or was a trustee of the property for the company or entitled to a lien or other charge over that property, or was a receiver or manager of the property appointed under Part 7 of the Companies Act 1955.
(5)
The rights of any person who, in accordance with this section, delivers any property to the trustee of the assets of any company to which this Act applies or his authorised agent shall continue while the trusteeship continues as if the person had not so delivered the property; and on the termination of the trusteeship, subject to the provisions of this Act and unless the Court otherwise orders, the property shall be returned to the person who delivered it or to someone who derives a right to possession of the property from that person. The provisions of this subsection shall apply whether the person who delivers the property is a receiver or manager appointed under Part 7 of the Companies Act 1955, or a person entitled to a lien or charge in respect of the property, or any other person having any rights whatsoever in respect thereof.
For the purposes of this Act the trustee of the assets of any company to which this Act applies shall be deemed to be an officer of the Court, and in the exercise of his powers and functions under this Act shall have all the privileges and be entitled to the same protection as if he had been appointed by the Court.
(2)
No such trustee shall be liable for any acts done by him in good faith in the exercise of his powers and functions as trustee, and every such trustee shall be indemnified out of the assets of the company in respect of all liabilities properly incurred.
(3)
No action or proceeding shall be proceeded with or commenced against any company to which this Act applies or against any such trustee except by leave of the Court and subject to such terms as the Court may impose.
