This Act may be cited as the Receiverships Act 1993.
(2)
This Act shall come into force on the 1st day of July 1994.
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Interpretation
(1)
In this Act, unless the context otherwise requires,—
account receivable has the same meaning as in section 16(1) of the Personal Property Securities Act 1999
account receivable: this definition was inserted, as from 1 May 2002, by section 3 Receiverships Amendment Act 2001 (2001 No 24). See clause 2 Receiverships Amendment Act Commencement Order 2002 (SR 2002/62).
Company has the same meaning as in—
(a)
Section 2 of the Companies Act 1955; or
(b)
Section 2 of the Companies Act 1993,—
as the case may be; and includes an overseas company
Court means the High Court
Creditor includes a person to whom the grantor owes a debt or is under a liability, whether present or future, certain or contingent, and whether an ascertained debt or liability or a liability in damages
Director, in relation to—
(a)
A company within the meaning of section 2 of the Companies Act 1955 or a company within the meaning of section 2 of the Companies Act 1993, as the case may be, includes—
(i)
Any person occupying the position of director of the company by whatever name called; and
(ii)
A person in accordance with whose directions or instructions a person referred to in subparagraph (i) of this paragraph may be required or is accustomed to act; and
(iii)
A person in accordance with whose directions or instructions the board of the company may be required or is accustomed to act:
(b)
An overseas company, includes an agent, officer, or employee responsible in New Zealand for the business of the overseas company:
(c)
Any other body corporate, means a person having functions similar to those of a director of a company;—
but does not include a receiver
Document means a document in any form; and includes—
(a)
Any writing on 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 one or more visual images are embodied so as to be capable (with or without the aid of equipment) of being reproduced:
Grantor means the person in respect of whose property a receiver is, or may be, appointed
inventory has the same meaning as in section 16(1) of the Personal Property Securities Act 1999
inventory: this definition was inserted, as from 1 May 2002, by section 3 Receiverships Amendment Act 2001 (2001 No 24). See clause 2 Receiverships Amendment Act Commencement Order 2002 (SR 2002/62).
Liquidator means a liquidator appointed under Part 6 of the Companies Act 1955 or under Part 16 of the Companies Act 1993, as the case may be; and
liquidation has a corresponding meaning
local authority means a local authority within the meaning of the Local Government Act 2002
Local authority: this definition was inserted, as from 1 July 2003, by section 262 Local Government Act 2002 (2002 No 84). See sections 273 to 314 of that Act as to the savings and transitional provisions.
Mortgage includes a charge on property for securing money or money's worth
Mortgagee includes a person from time to time deriving title under the original mortgagee; but does not include a receiver
new value has the same meaning as in section 16(1) of the Personal Property Securities Act 1999
new value : this definition was inserted, as from 1 May 2002, by section 3 Receiverships Amendment Act 2001 (2001 No 24). See clause 2 Receiverships Amendment Act Commencement Order 2002 (SR 2002/62).
Official Assignee means, in relation to the estate of a bankrupt, any Official Assignee or Deputy Assignee appointed under the Insolvency Act 2006 and having charge of that estate
Overseas company means a company incorporated outside New Zealand
Preferential claims means the claims referred to in Schedule 7 to the Companies Act 1993 (except clause 1(1) of that Schedule)
proceeds has the same meaning as in section 16(1) of the Personal Property Securities Act 1999
proceeds : this definition was inserted, as from 1 May 2002, by section 3 Receiverships Amendment Act 2001 (2001 No 24). See clause 2 Receiverships Amendment Act Commencement Order 2002 (SR 2002/62).
Property includes—
(a)
Real and personal property:
(b)
An estate or interest in real or personal property:
(c)
A debt:
(d)
Any thing in action:
(e)
Any other right or interest:
Property in receivership means property in respect of which a receiver is appointed
purchase money security interest has the same meaning as in section 16(1) of the Personal Property Securities Act 1999
purchase money security interest : this definition was inserted, as from 1 May 2002, by section 3 Receiverships Amendment Act 2001 (2001 No 24). See clause 2 Receiverships Amendment Act Commencement Order 2002 (SR 2002/62).
Receiver means a receiver, or a manager, or a receiver and manager in respect of any property appointed—
(a)
By or under any deed or agreement; or
(b)
By the Court in the exercise of a power conferred on the Court or in the exercise of its inherent jurisdiction—
whether or not the person appointed is empowered to sell any of the property in receivership; but does not include—
(c)
a mortgagee who, whether personally or through an agent, exercises a power to—
(i)
enter into possession of mortgaged property in a manner referred to in section 137 of the Property Law Act 2007; or
(ii)
sell or otherwise alienate mortgaged property; or
(d)
An agent of any such mortgagee:
Registrar, in relation to—
(a)
A company, has the same meaning as in section 2 of the Companies Act 1955 or section 2 of the Companies Act 1993, as the case may be:
(b)
A society registered under the Industrial and Provident Societies Act 1908, means the Registrar of Industrial and Provident Societies:
(c)
A society registered under the Incorporated Societies Act 1908, means the Registrar of Incorporated Societies:
(d)
A friendly society or a credit union registered under the Friendly Societies and Credit Unions Act 1982, means the Registrar of Friendly Societies and Credit Unions:
(e)
Any other body corporate registered under any enactment, means any person discharging the powers, functions, and duties of a registrar under that enactment.
security agreement has the same meaning as in section 16(1) of the Personal Property Securities Act 1999
security agreement : this definition was inserted, as from 1 May 2002, by section 3 Receiverships Amendment Act 2001 (2001 No 24). See clause 2 Receiverships Amendment Act Commencement Order 2002 (SR 2002/62).
security interest has the same meaning as in section 17 of the Personal Property Securities Act 1999
security interest : this definition was inserted, as from 1 May 2002, by section 3 Receiverships Amendment Act 2001 (2001 No 24). See clause 2 Receiverships Amendment Act Commencement Order 2002 (SR 2002/62).
(2)
In this Act, unless the context otherwise requires, a reference to a person by whom, or in whose interests, a receiver was appointed, as the case may be, includes a reference to a person to whom the rights and interests under any deed or agreement by or under which the receiver was appointed have been transferred or assigned.
Section 2(1) Official Assignee: amended, on 3 December 2007, by section 445 of the Insolvency Act 2006 (2006 No 55).
Section 2(1) preferential claims: amended, on 1 November 2007, by section 41 of the Companies Amendment Act 2006 (2006 No 56).
Section 2(1) receiver paragraph (c): substituted, on 1 January 2008, by section 364(1) of the Property Law Act 2007 (2007 No 91).
Where, pursuant to this Act, public notice must be given of any matter affecting a grantor, not being a grantor that is 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 New Zealand in which is situated—
(i)
The grantor's place of business; or
(ii)
If the grantor has more than 1 place of business, the grantor's principal place of business; or
(iii)
If the grantor has no place of business or neither its place of business nor its principal place of business is known, the grantor's registered office in the case of a body corporate, or the residence of the grantor in the case of an individual.
(2)
Where, pursuant to this Act, public notice must be given of any matter affecting a grantor that is 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 grantor; or
(ii)
If the grantor has more than 1 place of business in New Zealand, the principal place of business in New Zealand of the grantor.
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Application
(1)
This Act applies—
(a)
To a receiver appointed after the coming into force of this Act; and
(b)
With the exceptions and modifications specified in subsection (2) of this section, to a receiver holding office on the coming into force of this Act.
(2)
In the application of this Act to a receiver holding office on the coming into force of this Act,—
(a)
Section 5 (except subsections (1)(e) and (2)) does not apply:
(b)
Section 23 does not apply:
(c)
Section 24(1)(a) does not require a receiver to prepare a report in relation to the period of 12 months specified in section 348(2) of the Companies Act 1955 that expires before the coming into force of this Act or that first expires after the commencement of this Act and the provisions of section 348(2) of that Act continue in force in relation to that period notwithstanding the repeal of Part 7 of that Act:
(d)
Section 24(1)(b) does not require a receiver to give a report in respect of a receivership that ended before the commencement of this Act and the provisions of section 348(2) of the Companies Act 1955 shall continue in force notwithstanding the repeal of Part 7 of that Act:
(e)
Section 29 does not apply in respect of a receivership that ended before the commencement of this Act:
(f)
Paragraphs (b) and (c) of subsection (1) and subsections (5) and (6) of section 32 do not apply.
Subsection (2)(d) was amended, as from 1 July 1994, by section 2 Receiverships Amendment Act 1994 (1994 No 14) by substituting the word “report” for the word “notice”.
5-
Qualifications of receivers
(1)
Unless the Court orders otherwise, none of the following persons may be appointed or act as a receiver:
(a)
A person who is under 18 years of age:
(b)
A mortgagee of the property in receivership:
(c)
A person who is, or who has within the period of 2 years immediately preceding the commencement of the receivership been,—
(i)
A director of the grantor; or
(ii)
A director of the mortgagee of the property in receivership:
(d)
A person who has, or who has had within the period of 2 years preceding the commencement of the receivership, an interest, whether direct or indirect, in—
(i)
A share issued by the grantor; or
(ii)
Five percent or more of any class of shares issued by the mortgagee of the property in receivership:
(e)
An undischarged bankrupt:
(f)
A person who is, or is deemed to be, subject to a compulsory treatment order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992:
(g)
A person in respect of whom an order has been made under section 30 or section 31 of the Protection of Personal and Property Rights Act 1988:
(h)
A person in respect of whom an order has been made under section 286(5) of the Companies Act 1993:
(i)
A person in respect of whom an order has been made under section 37(6) of this Act:
(ia)
A person who would, but for the repeal of section 188A or section 189 or section 189A of the Companies Act 1955, be prohibited from being a director or promoter of, or being concerned in the management of, a company within the meaning of that Act:
(j)
[Repealed]
(k)
a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under the Companies Act 1993, or the Securities Act 1978, or the Securities Markets Act 1988, or the Takeovers Act 1993:
(l)
A person who is prohibited under section 299(1)(b) of the Insolvency Act 2006 from acting as a director or taking part directly or indirectly in the management of any company or class of company:
(m)
A person who is disqualified from acting as a receiver by the instrument that confers the power to appoint a receiver.
(2)
A body corporate must not be appointed or act as a receiver.
(3)
A person who contravenes subsection (1) or subsection (2) of this section commits an offence and is liable on summary conviction to a fine not exceeding $10,000.
Subsection (1)(ia) was inserted, as from 1 July 1994, by section 3(1) Receiverships Amendment Act 1994 (1994 No 14).
Subsection (1)(j) was amended, as from 1 July 1994, by section 3(2) Receiverships Amendment Act 1994 (1994 No 14) by inserting the words “or would be so prohibited but for the repeal of that Act”.
Subsection (1)(j) was repealed, as from 25 October 2006, by section 25 Securities Amendment Act 2006 (2006 No 46).
Subsection (1)(k) was substituted, as from 25 October 2006, by section 25 Securities Amendment Act 2006 (2006 No 46).
Section 5(1)(l): amended, on 3 December 2007, by section 445 of the Insolvency Act 2006 (2006 No 55).
6-
Appointment of receivers under deeds and agreements
(1)
A receiver may be appointed in respect of the property of a person by, or in the exercise of a power conferred by, a deed or agreement to which that person is a party.
(2)
The appointment of a receiver in the exercise of a power referred to in subsection (1) of this section must be in writing.
(3)
A receiver appointed by, or under a power conferred by, a deed or agreement is the agent of the grantor unless it is expressly provided otherwise in the deed or agreement or the instrument by or under which the receiver was appointed.
A power conferred by a deed or an agreement to appoint a receiver includes the power to appoint—
(a)
Two or more receivers:
(b)
A receiver additional to one or more presently in office:
(c)
A receiver to succeed a receiver whose office has become vacant—
unless the deed or agreement expressly provides otherwise.
(2)
Two or more receivers may act jointly or severally to the extent that they have the same powers unless the deed or agreement under which, or the order of the Court by which, they are appointed expressly provides otherwise.
8-
Notice of appointment
(1)
A receiver must, forthwith after being appointed,—
(a)
Give written notice of his or her appointment to the grantor; and
(b)
Give public notice of his or her appointment, including—
(i)
The receiver's full name:
(ii)
The date of the appointment:
(iii)
The receiver's office address:
(iv)
A brief description of the property in receivership.
(2)
Where the appointment of the receiver is in addition to a receiver who already holds office or is in place of a person who has vacated office as receiver, as the case may be, every notice under this section must state that fact.
(3)
If the grantor is a body corporate, the receiver must, within 7 days after being appointed, send a copy of the public notice to the Registrar.
(4)
Every receiver who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding $10,000.
9-
Application of section 92 of Property Law Act 1952 to receivers
[Repealed]
Section 9: repealed, on 1 January 2008, by section 364(1) of the Property Law Act 2007 (2007 No 91).
10-
Notice of receivership
(1)
Where a receiver is appointed in relation to a specific asset or specific assets, every deed or agreement entered into, and every document issued, by or on behalf of the grantor or the receiver that relates to the asset or assets and on which the name of the grantor appears must state that a receiver has been appointed.
(2)
Where a receiver is appointed in any other case, every deed or agreement entered into, and every document issued, by or on behalf of the grantor or the receiver and on which the name of the grantor appears must state that a receiver has been appointed.
(3)
A failure to comply with subsection (1) or subsection (2) of this section does not affect the validity of the deed or agreement or document.
(4)
Every person who—
(a)
Contravenes subsection (1) or subsection (2) of this section; or
(b)
Knowingly or wilfully authorises or permits a contravention of subsection (1) or subsection (2) of this section—
commits an offence and is liable on summary conviction to a fine not exceeding $5,000.
