This Act may be cited as the Companies (Bondholders Incorporation) Act 1934-35.
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Interpretation
(1)
In this Act, unless the context otherwise requires,—
Bond means an instrument (being one of a series of similar instruments issued by or on account of any company incorporated in New Zealand) which entitles or purports to entitle the holder thereof to share in any land in New Zealand with trees or plants growing or to be grown thereon intended to be used for commercial purposes, or in the produce of such trees or plants, or in the proceeds of the realisation of such land and produce or of such produce; and includes a contract for the issue of any such instrument
Bondholder or the holder of a bond means the owner of a bond
Bondholders company means a company formed in pursuance of this Act for the incorporation of bondholders
Bond-issuing company means a company by or on account of which any bonds have been issued
Commission means the Bondholders Incorporation Commission constituted under this Act.
(2)
Where a company has agreed to procure the issue of bonds by a trustee for the bondholders the bonds so issued shall for the purposes of this Act be deemed to have been issued by or on account of such company and not by such trustee.
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Statement to be delivered to Registrar of Companies by bond-issuing companies
(1)
Every bond-issuing company shall, within 3 months after the passing of this Act, deliver to the Registrar of Companies at Wellington a statement in accordance with this section. The statement shall be filed by the Registrar, and shall be open to inspection in accordance with section 9 of the Companies Act 1955 as if it were a document kept by the Registrar pursuant to that Act.
(2)
Every statement under this section shall contain the following particulars:
(a)
The name of the bond-issuing company:
(b)
The situation of its registered office:
(c)
The names and addresses of its secretary and of its directors:
(d)
The names and addresses of the trustees (if any) for its bondholders, and the amount of any trust fund held by any such trustee:
(e)
The number and face value of the bonds issued by or on account of the company:
(f)
The total area of the lands affected by the bonds issued by or on account of the company:
(g)
Such other particulars as may be prescribed by regulations under this Act or as may be required by the Registrar.
(3)
If default is made in complying with any of the provisions of this section, the company and any director, manager, secretary, or other officer of the company who knowingly and wilfully authorises or permits the default shall be liable on summary conviction to a fine of $200, and to a further fine of $40 for every day during which the default continues.
(4)
No prosecution for an offence against this section shall be commenced except with the leave of the Attorney-General.
In subsection (1), section 9 of the Companies Act 1955 has been substituted for section 10 of the repealed Companies Act 1933.
For the purposes of this Act there shall be established a Commission to be called the Bondholders Incorporation Commission.
(2)
The Commission shall consist of 3 persons, to be appointed by the Governor-General and to hold office during his pleasure. One such person shall be appointed by the Governor-General to be the Chairman of the Commission.
(3)
In the event of the absence or temporary incapacity of the Chairman of the Commission the Governor-General may appoint any person to act as Chairman. In the event of the absence or temporary incapacity of any member of the Commission the Governor-General may appoint any person to act in the place of such member. Every person so appointed shall, while such absence or incapacity continues, be deemed for all purposes to be a member of the Commission, and, in the case of a person appointed to act as Chairman, to be the Chairman of the Commission.
(4)
The powers of the Commission shall not be affected by any vacancy in the membership thereof.
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Constitution of Commission not to be questioned
(1)
The appointment of the Chairman, or of a member, or of an acting Chairman or acting member, of the Commission shall not be questioned on any ground whatsoever; and no act done by the Commission sitting with an acting Chairman or acting member, or done by an acting Chairman or acting member, shall be questioned on the ground that the occasion for the appointment of such acting Chairman or acting member, or for his acting as the Chairman or a member of the Commission, had not arisen or had ceased.
(2)
Whether the Commission at any sitting thereof is duly constituted as required by the provisions of this Act or has been duly convened for such sitting are matters to be determined by the Chairman, whose decision thereon shall be final and conclusive, and shall not be questioned in any proceedings before the Commission or in any Court.
(3)
The fact that a sitting of the Commission has been held shall be conclusive evidence of a decision by the Chairman that the Commission was properly constituted at and duly convened for that sitting.
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Remuneration of Commission
(1)
The members of the Commission shall be entitled to receive such allowances as may be prescribed and all travelling expenses reasonably incurred by them in respect of their attendance at sittings of the Commission and in transacting the business thereof.
(2)
All such amounts shall be paid out of the Consolidated Account.
In subsection (2) the reference to the “Consolidated Account” was substituted for a reference to the “Consolidated Revenue Account” (as substituted for a reference to the “Consolidated Fund” by section 4(4) of the Public Revenues Amendment Act 1963) by section 114(6) of the Public Finance Act 1977. The term “Consolidated Account” was abolished by section 83(1) Public Finance Act 1989 (1989 No 44) and should now be read as a reference to the “Crown Bank Account”.
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Clerk and other officers
There shall be appointed as officers of the Public Service a Clerk of the Commission and such other officers of the Commission as may be deemed necessary.
The Commission shall have a seal, in such form as the Chairman approves. Judicial notice shall be taken of the seal by all Courts and for all purposes.
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Records
The Clerk of the Commission shall keep proper books in which shall be entered minutes of all proceedings before the Commission.
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Sittings of Commission
(1)
The Commission shall sit at such times and places as the Chairman from time to time determines.
(2)
At any sitting of the Commission 2 members (of whom one shall be the Chairman) shall form a quorum.
(3)
The Commission may, if it thinks fit, refer any matter or proceeding before it to any member or members of the Commission for inquiry and report, and for the purposes of any such inquiry such member or members shall have all the powers of the Commission.
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Decisions
(1)
The decision of a majority of the members present at a sitting of the Commission, or, if the members present are equally divided in opinion, then the decision of the Chairman shall be the decision of the Commission.
(2)
The decision of the Commission in every case shall be delivered by the Chairman.
(3)
Every order made by the Commission shall be signed by the Chairman and sealed with the seal of the Commission.
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Commissions of Inquiry Act to apply
Subject to the provisions of this Act, the provisions of sections 3 to 9 and of section 11 of the Commissions of Inquiry Act 1908 shall, with the necessary modifications, apply with respect to the Commission and to proceedings before it as if it were a Commission under that Act and as if the proceedings before the Commission were an inquiry under that Act.
The Commission may act on any testimony, sworn or unsworn, and may receive as evidence any statement, document, information, or matter that in the opinion of the Commission may assist the Commission to deal effectually with the matters before it, whether or not the same would be legally admissible evidence in a Court of law.
(2)
Subject to the foregoing provisions of this section, the Evidence Act 2006 shall apply to the Commission and to the members thereof and to all proceedings before it in the same manner as if the Commission were a Court within the meaning of that Act.
Subsection (2) was amended, as from 1 August 2007, by section 216 Evidence Act 2006 (2006 No 69) by substituting “Evidence Act 2006” for “Evidence Act 1908”. See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).
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Proceedings to be private
(1)
Unless the Commission otherwise directs, the sittings of the Commission shall not be open to the public; and no report or account of any such sitting or of any evidence or proceedings before the Commission shall be published save with the consent of the Commission.
(2)
Every person who publishes or causes to be published any report or account in contravention of the provisions of this section shall be liable on summary conviction to a fine of $200.
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Procedure of Commission
The procedure of the Commission shall, subject to this Act and to any regulations thereunder, be such as the Commission thinks fit.
Incorporation of bondholders
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Order for scheme for incorporation of bondholders
(1)
The Commission may at any time make an order requiring that a scheme for the incorporation, in accordance with the following provisions of this Act, of the holders of bonds issued by or on account of any bond-issuing company, or of the holders of any specified class or classes of such bonds, be submitted to the Commission by the bond-issuing company, or by any trustee for the bondholders, on or before a date to be specified in that behalf in the order, being not earlier than 3 months after the date of the order. Successive orders may be made from time to time under this subsection in respect of the bonds or of any specified classes of bonds issued by or on account of any bond-issuing company.
(2)
Any order under this section may be made on the application of the bond-issuing company or of any bondholder or of any trustee for the bondholders, but an order shall not be made on any application to which the bond-issuing company or any such trustee is not a party until the company or trustee, as the case may be, has had such opportunity as the Commission considers reasonable of being heard on the application.
(3)
If any bond-issuing company or trustee is ordered to submit a scheme under this section and fails without reasonable cause (the burden of proving which shall be on the defendant) to do so within the time specified in that behalf in the order, or within such extended time as may be allowed by the Commission, such company or trustee, and in the case of a company (including a company acting as trustee) any director, manager, secretary, or other officer of the company who knowingly and wilfully authorises or permits the default, shall be guilty of an offence against this Act, and shall be liable on summary conviction to a fine of $200, and to a further fine of $40 for every day during which the default continues.
(4)
Where an order has been made for the submission by any person of a scheme for the incorporation of the holders of bonds issued by or on account of a bond-issuing company (whether or not a scheme is submitted by that person), any other person may submit to the Commission proposals in respect of the incorporation of the holders of any bonds issued by or on account of such bond-issuing company.
Where a scheme has been submitted in pursuance of an order made under the last preceding section, or where default has been made in complying with any such order, the Commission, after considering the scheme and proposals, (if any) submitted under the last preceding section, but without being bound by any such scheme or proposal, may make an order that a company (in this Act referred to as the bondholders company) be formed under the Companies Act 1955, and by such order (hereinafter referred to as the order for incorporation) may make such provisions, not inconsistent with this Act, or with the Companies Act 1955 as modified by this Act, as the Commission thinks fit in relation to the formation of the bondholders company, and in particular, without limiting the generality of the foregoing provisions, with respect to the following matters:
(a)
The contents of the memorandum and articles of association:
(b)
The situation of the registered office:
(c)
The names of the first directors:
(d)
The amount of share capital with which the company is to be registered, its division into shares, and, if necessary, into classes of shares, the rights and conditions attached to each class of shares, the persons to whom the shares are to be allotted, and the amount to be deemed to be paid up on each share:
(e)
The grant or loan to the bondholders company by the trustees of any trust fund established for the protection of the bondholders or any of them, out of the trust fund, or, if and so far as there is no such fund, the loan to the bondholders company by the bond-issuing company, of such amounts as the Commission may consider necessary or expedient, on such terms as the Commission determines, to provide for the promotion and incorporation of the bondholders company and for matters preliminary or incidental thereto, and for the furtherance of the objects of the bondholders company, or the interests of the bondholders:
(f)
The repayment by the bondholders company of any expenditure incurred by any person, whether before or after the passing of this Act, for purposes in the opinion of the Commission beneficial or likely at the time of the incurring of the expenditure to be beneficial to the interests of the bondholders or of any class of the bondholders, including, without limiting the generality of the foregoing provision, the whole or any part of any levies, fees, costs, or expenses in relation to proceedings under this Act:
(g)
The surrender of bonds, and the delivery of all title deeds and other documents of title in relation to any property affected by the order.
(2)
The order for incorporation may from time to time be added to or varied by subsequent orders made by the Commission. All such subsequent orders shall be deemed to be part of the order for incorporation.
In subsection (1) the Companies Act 1955 has been substituted for the repealed Companies Act 1933.
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Bondholders to receive shares in exchange for their bonds entitling them to the same rights
(1)
The order for incorporation shall provide for the vesting in the bondholders company upon the incorporation of that company, without any transfer or assignment, of the bonds to which the order relates and all benefits thereunder, and for the allotment to each bondholder of a share or shares which will, as nearly as may in the opinion of the Commission be practicable, entitle him to the same proportionate interest in the same property and rights as he was or would be entitled to under his bond or bonds.
(2)
Upon the vesting of any bonds in the bondholders company in pursuance of the order for incorporation, all such liabilities of the bondholders in respect of their bonds as may be specified in the order, being—
(a)
Liabilities of the individual bondholders for the balance (if any) remaining unpaid to the bond-issuing company for the issue of the bonds; or
(b)
Liabilities incurred on behalf of all the bondholders or on behalf of all the members of any class of the bondholders—
shall be deemed to have become liabilities of the bondholders company and to have ceased to be liabilities of the bondholders.
(3)
Subject to the last preceding subsection, every bondholder shall remain bound by all encumbrances, trusts, and liabilities in relation to his bonds, and they shall affect the shares allotted to him in the bondholders company to the extent to which the bonds represented by such shares were affected by such encumbrances, trusts, and liabilities immediately prior to the incorporation of the bondholders company.
(4)
The amount deemed to be unpaid on any share or shares allotted in pursuance of the order for incorporation, as provided in subsection (1) hereof, shall not exceed the amount (if any) unpaid on the bond represented thereby, and the order for incorporation shall provide for the making of calls in respect of such unpaid amounts corresponding, as nearly as may in the opinion of the Commission be practicable, to the instalments payable on the bonds.
(5)
Without limiting the foregoing provisions of this section, where any bondholder has any rights in respect of the surrender of his bonds the order for incorporation shall make provision for the holder of the shares representing such bonds having as nearly as may be the same rights in respect of the surrender of such shares.
(6)
Subject to the foregoing provisions of this section, if any question arises as to the ownership of any bond, or as to the rights or liabilities of any bondholder under his bonds, or as to any other matter referred to in this section, it shall be determined by the Commission.
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Bond-issuing company's rights in the land may be vested in bondholders company in exchange for shares
(1)
Where the bond-issuing company is entitled to any rights or interests in any land or produce affected by the bonds, including any rights or interests represented by bonds that have been forfeited, or surrendered, or transferred to or otherwise vested in the bond-issuing company, the order for incorporation may, if the Commission thinks fit, provide for the vesting in the bondholders company, upon the incorporation of that company, without any conveyance, transfer, or assignment, of all or any of those rights or interests, subject to such encumbrances and liabilities and upon such terms as may be specified in the order, and for the allotment to the bond-issuing company in consideration thereof of shares of such number, class, and nominal value, having such amounts deemed to be paid up thereon, and with such rights and conditions attached thereto, as the Commission considers just and equitable, so as to entitle the bond-issuing company as nearly as may be to the same proportionate interest in the land or produce as it would have been entitled to but for the vesting of such rights or interests in the bondholders company.
(2)
The order for incorporation may provide for the payment by the bond-issuing company to the bondholders company of such amounts, or the giving of such other considerations, in such manner, and at such times, as may be agreed upon, or, in default of agreement, as may be determined by the Commission, in respect of the cost of collecting the amounts unpaid on shares representing bonds vested in the bondholders company, or in respect of any actual or estimated loss or deficiency in collecting or attempting to collect such amounts.
A sealed copy of the order for incorporation shall be delivered to the Registrar of Companies for registration, by such person as may be determined by the Commission, and thereupon, after compliance with the provisions of the Companies Act 1955 in that behalf, the bondholders company shall be registered under that Act.
(2)
Section 117 of the Companies Act 1955 shall not apply to the bondholders company.
In subsection (2) Section 117 of the Companies Act 1955 has been substituted for the repealed Section 104 of the Companies Act 1933.
