This Act shall come into force on the 1 July 1994.
Part 1
Preliminary
2-
Interpretation
(1)
In this Act, unless the context otherwise requires,—
accounting period, in relation to a company, means a year ending on a balance date of the company and, if as a result of the date of the registration of the company or a change of the balance date of the company, the period ending on that date is longer or shorter than a year, that longer or shorter period is an accounting period
address for service in relation to a company, means the company's address for service adopted in accordance with section 192 of this Act
annual meeting means a meeting required to be held by section 120 of this Act
annual report—
(a)
means a report prepared under section 208; and
(b)
does not include a concise annual report
annual report: this definition was inserted, as from 18 June 2007, by section 4(3) Companies Amendment Act (No 2) 2006 (2006 No 62). See clause 2(1) Companies Amendment Act (No 2) 2006 Commencement Order 2007 (SR 2007/108).
balance date has the meaning set out in section 7 of the Financial Reporting Act 1993
board and board of directors have the meanings set out in section 127 of this Act
charge includes a right or interest in relation to property owned by a company, by virtue of which a creditor of the company is entitled to claim payment in priority to creditors entitled to be paid under section 313 of this Act; but does not include a charge under a charging order issued by a court in favour of a judgment creditor
class has the meaning set out in section 116 of this Act
company means—
(a)
a company registered under Part 2 of this Act:
(b)
a company reregistered under this Act in accordance with the Companies Reregistration Act 1993
concise annual report, in relation to a company and an accounting period, means a report on the affairs of the company during that period that is prepared in accordance with the requirements prescribed in regulations made under this Act
concise annual report: this definition was inserted, as from 18 June 2007, by section 4(3) Companies Amendment Act (No 2) 2006 (2006 No 62). See clause 2(1) Companies Amendment Act (No 2) 2006 Commencement Order 2007 (SR 2007/108).
constitution means a document referred to in section 29 of this Act
Court means the High Court of New Zealand
designated settlement system has the meaning set out in section 156M of the Reserve Bank of New Zealand Act 1989
director has the meaning set out in section 126 of this Act
distribution, in relation to a distribution by a company to a shareholder, means—
(a)
the direct or indirect transfer of money or property, other than the company's own shares, to or for the benefit of the shareholder; or
(b)
the incurring of a debt to or for the benefit of the shareholder—
in relation to shares held by that shareholder, and whether by means of a purchase of property, the redemption or other acquisition of shares, a distribution of indebtedness, or by some other means
dividend has the meaning set out in section 53 of this Act
document means a document in any form; and includes—
(a)
any writing on any material; and
(b)
information recorded or stored by means of a tape-recorder, computer, or other device; and material subsequently derived from information so recorded or stored; and
(c)
a book, graph, or drawing; and
(d)
a photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of equipment) of being reproduced
entitled person, in relation to a company, means—
(a)
a shareholder; and
(b)
a person upon whom the constitution confers any of the rights and powers of a shareholder
exempt company has the meaning set out in section 6A of the Financial Reporting Act 1993.
Exempt company: this definition was inserted, as from 2 September 1996, by section 2 Companies Act 1993 Amendment Act 1996 (1996 No 115).
Exempt company: this definition was substituted, as from 22 November 2006, by section 4(1) Companies Amendment Act (No 2) 2006 (2006 No 62). See section 4(2) of that Act as to the application of this amendment in relation to accounting periods.
existing company means a body corporate registered or deemed to be registered under Part 2 or Part 10 of the Companies Act 1955, or under the Companies Act 1933, the Companies Act 1908, the Companies Act 1903, the Companies Act 1882, or the Joint Stock Companies Act 1860
financial statements has the meaning set out in section 8 of the Financial Reporting Act 1993
group financial statements has the meaning set out in section 9 of the Financial Reporting Act 1993
group of companies has the meaning set out in section 2 of the Financial Reporting Act 1993
holding company has the meaning set out in section 5 of this Act
interested, in relation to a director, has the meaning set out in section 139 of this Act
interest group has the meaning set out in section 116 of this Act
interests register means the register kept under section 189(1)(c) of this Act
major transaction has the meaning set out in section 129(2) of this Act
New Zealand register means the register of companies incorporated in New Zealand kept pursuant to section 360(1)(a) of this Act
ordinary resolution has the meaning set out in section 105(2) of this Act
overseas company means a body corporate that is incorporated outside New Zealand
overseas register means the register of bodies corporate that are incorporated outside New Zealand kept pursuant to section 360(1)(b) of this Act
personal representative, in relation to an individual, means the executor, administrator or trustee of the estate of that individual
pre-emptive rights means the rights conferred on shareholders under section 45 of this Act
prescribed form means a form prescribed by regulations made under this Act that contains, or has attached to it, such information or documents as those regulations may require
property means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal, and includes rights, interests, and claims of every kind in relation to property however they arise
receiver has the same meaning as in section 2(1) of the Receiverships Act 1993
records means the documents required to be kept by a company under section 189(1) of this Act
redeemable has the meaning set out in section 68 of this Act
registered office has the meaning set out in section 186 of this Act
Registrar means the Registrar of Companies appointed in accordance with section 357(1) of this Act
related company has the meaning set out in subsection (3) of this section
relative, in relation to any person, means—
(a)
any parent, child, brother, or sister of that person; or
(b)
any spouse, civil union partner, or de facto partner of that person; or
(ba)
any parent, child, brother, or sister of a spouse, civil union partner, or de facto partner of that person; or
(c)
A nominee or trustee for any of those persons
Relative: paragraphs (a) and (b) of this definition were substituted, as from 26 April 2005, by section 7 Relationships (Statutory References) Act 2005 (2005 No 3).
Relative: paragraph (ba) of this definition was inserted, as from 26 April 2005, by section 7 Relationships (Statutory References) Act 2005 (2005 No 3).
relevant interest has the meaning set out in section 146 of this Act
secured creditor, in relation to a company, means a person entitled to a charge on or over property owned by that company
securities has the same meaning as in the Securities Act 1978
share has the meaning set out in section 35 of this Act
shareholder has the meaning set out in section 96 of this Act
share register means the share register required to be kept under section 87 of this Act
solvency test has the meaning set out in section 4 of this Act
special meeting means a meeting called in accordance with section 121 of this Act
special resolution means a resolution approved by a majority of 75% or, if a higher majority is required by the constitution, that higher majority, of the votes of those shareholders entitled to vote and voting on the question
spouse, in relation to a person (A), includes a person with whom A has a de facto relationship (whether that person is of the same or a different sex) and a civil union partner
subsidiary has the meaning set out in section 5 of this Act
surplus assets means the assets of a company remaining after the payment of creditors' claims and available for distribution in accordance with section 313 of this Act prior to its removal from the New Zealand register
working day means a day of the week other than—
(a)
Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, Labour Day, and Waitangi Day; and
(b)
a day in the period commencing with the 25 December in any year and ending with the 2 January in the following year; and
(c)
if the 1 January in any year falls on a Friday, the following Monday; and
(d)
if the 1 January in any year falls on a Saturday or a Sunday, the following Monday and Tuesday.
(2)
Where,—
(a)
in relation to a company or an overseas company, any document is required to be delivered or any thing is required to be done to a District Registrar or an Assistant Registrar in whose office the records relating to the company or overseas company are kept within a period specified by this Act; and
(b)
the last day of that period falls on the day of the anniversary of the province in which that office is situated,—
the document may be delivered or that thing may be done to that District Registrar or Assistant Registrar on the next working day.
(3)
In this Act, a company is related to another company if—
(a)
the other company is its holding company or subsidiary; or
(b)
more than half of the issued shares of the company, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, is held by the other company and companies related to that other company (whether directly or indirectly, but other than in a fiduciary capacity); or
(c)
more than half of the issued shares, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, of each of them is held by members of the other (whether directly or indirectly, but other than in a fiduciary capacity); or
(d)
the businesses of the companies have been so carried on that the separate business of each company, or a substantial part of it, is not readily identifiable; or
(e)
there is another company to which both companies are related;—
and related company has a corresponding meaning.
(4)
For the purposes of subsection (3) of this section, a company within the meaning of section 2 of the Companies Act 1955 is related to another company if, were it a company within the meaning of subsection (1) of this section, it would be related to that other company.
(5)
A reference in this Act to an address means,—
(a)
in relation to an individual, the full address of the place where that person usually lives:
(b)
in relation to a body corporate, its registered office or, if it does not have a registered office, its principal place of business.
Section 2(1) designated settlement system: inserted, on 24 November 2009, by section 16 of the Reserve Bank of New Zealand Amendment Act 2009 (2009 No 53).
Section 2(1) receiver: inserted, on 1 November 2007, by section 4(1) of the Companies Amendment Act 2006 (2006 No 56).
Section 2(1) spouse: inserted, on 1 November 2007, by section 4(2) of the Companies Amendment Act 2006 (2006 No 56).
Subsection (3)(b) was amended, as from 15 April 2004, by section 3 Companies Amendment Act (No 2) 2004 (2004 No 24) by substituting the expression “capital,” for the word “capital”.
Where, pursuant to this Act, public notice must be given of any matter affecting a company, that notice must be given by publishing notice of the matter—
(a)
in at least 1 issue of the Gazette; and
(b)
in at least 1 issue of a newspaper circulating in the area in which is situated—
(i)
the company's place of business; or
(ii)
if the company has more than 1 place of business, the company's principal place of business; or
(iii)
if the company has no place of business or neither its place of business nor its principal place of business is known, the company's registered office.
(2)
Where, pursuant to this Act, public notice must be given of any matter affecting an overseas company, that notice must be given by publishing notice of the matter—
(a)
in at least 1 issue of the Gazette; and
(b)
in at least 1 issue of a newspaper circulating in the area in which is situated—
(i)
the place of business in New Zealand of the overseas company; or
(ii)
if the overseas company has more than 1 place of business in New Zealand, the principal place of business in New Zealand of the overseas company.
For the purposes of this Act, a company satisfies the solvency test if—
(a)
the company is able to pay its debts as they become due in the normal course of business; and
(b)
the value of the company's assets is greater than the value of its liabilities, including contingent liabilities.
(2)
Without limiting sections 52 and 55(3) of this Act, in determining for the purposes of this Act (other than sections 221 and 222 which relate to amalgamations) whether the value of a company's assets is greater than the value of its liabilities, including contingent liabilities, the directors—
(a)
must have regard to—
(i)
the most recent financial statements of the company that comply with section 10 of the Financial Reporting Act 1993; and
(ii)
all other circumstances that the directors know or ought to know affect, or may affect, the value of the company's assets and the value of the company's liabilities, including its contingent liabilities:
(b)
may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances.
(3)
Without limiting sections 221 and 222 of this Act, in determining for the purposes of those sections whether the value of the amalgamated company's assets will be greater than the value of its liabilities, including contingent liabilities, the directors of each amalgamating company—
(a)
must have regard to—
(i)
financial statements that comply with section 10 of the Financial Reporting Act 1993 and that are prepared as if the amalgamation had become effective; and
(ii)
all other circumstances that the directors know or ought to know would affect, or may affect, the value of the amalgamated company's assets and the value of its liabilities, including contingent liabilities:
(b)
may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances.
(4)
In determining, for the purposes of this section, the value of a contingent liability, account may be taken of—
(a)
the likelihood of the contingency occurring; and
(b)
any claim the company is entitled to make and can reasonably expect to be met to reduce or extinguish the contingent liability.
5-
Meaning of holding company and subsidiary
(1)
For the purposes of this Act, a company is a subsidiary of another company if, but only if,—
(a)
that other company—
(i)
controls the composition of the board of the company; or
(ii)
is in a position to exercise, or control the exercise of, more than one-half the maximum number of votes that can be exercised at a meeting of the company; or
(iii)
holds more than one-half of the issued shares of the company, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital; or
(iv)
is entitled to receive more than one-half of every dividend paid on shares issued by the company, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital; or
(b)
the company is a subsidiary of a company that is that other company's subsidiary.
(2)
For the purposes of this Act, a company is another company's holding company, if, but only if, that other company is its subsidiary.
(3)
In this section and sections 7 and 8 of this Act, the expression company includes a body corporate.
