Companies Act 1908
Companies Act 1908
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Companies Act 1908
Companies Act 1908
Public Act |
1908 No 26 |
|
Date of assent |
4 August 1908 |
|
Contents
An Act to consolidate certain Enactments of the General Assembly relating to the Incorporation, Regulation, and Winding-up of Companies and other Associations.
BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:—
1 Short Title.
(1.)
The Short Title of this Act is “The Companies Act, 1908.”
Enactments consolidated.
(2.)
This Act is a consolidation of the enactments mentioned in the First Schedule hereto, and with respect to those enactments the following provisions shall apply:—
Savings.
(a.)
All offices, appointments, rules, regulations, registers, registrations, certificates, and generally all acts of authority which originated under any of the said enactments or any enactment thereby repealed, and are subsisting or in force on the coming into operation of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated.
(b.)
All matters and proceedings commenced under any such enactment, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.
1903, No. 53, sec. 1
(3.)
This Act is divided into Parts, as follows:—
Part I.—Preliminary. (Sections 2 to 12.)
Part II.—Constitution and Incorporation of Companies. (Sections 13 to 28.)
Part III.—Distribution of Capital, and Liability of Members of Companies. (Sections 29 to 68.)
Part IV.—Management and Administration of Companies. (Sections 69 to 163.)
Part V.—Private Companies. (Sections 164 to 172.)
Part VI.—Winding-up of Companies. (Sections 173 to 267.)
Part VII.—Application of Act to Companies registered under former Acts. (Sections 268 to 271.)
Part VIII.—Companies authorised to register under this Act. (Sections 272 to 296.)
Part IX.—Companies incorporated outside New Zealand. (Sections 297 to 321.)
Part X.—Miscellaneous Provisions. (Sections 322 to 325.)
Part XI.—Special as to Fire and Marine Insurance Companies. (Sections 326 to 339.)
Part XII.—Mining Companies. (Sections 340 to 371.)
Part I Preliminary
2 Interpretation.
1903, No. 53, sec. 2
In this Act, if not inconsistent with the context,—
“Company” means a company or association incorporated or registered under this Act, and includes private company:
“Court” means the Supreme Court, and includes a Judge thereof:
“Debenture” includes debenture stock:
“Directors” means the persons having the general control of the business or affairs of a company; and “director”
includes any person occupying the position of director, by whatever name called:
“Manager” includes any officer of a company, however designated, having the management of the business or affairs of a company under the control of directors, but does not include a person who is merely secretary:
“Private company” means a company registered under Part V of this Act:
“Prospectus” means any prospectus, notice, circular, advertisement, or other invitation offering to the public for subscription or purchase any shares or debentures of a company:
“Registrar” means the Registrar of Companies under this Act:
“Regulations” includes Royal charters, letters patent, articles of association, deeds of settlement, and by-laws; and includes regulations as originally framed or as altered by special resolution.
3 Act not to apply to banks.
Ibid, sec. 3 1906, No. 58, sec. 4
With the exception of Part IX, and also of the provisions relating to branch registers, this Act shall not apply to persons associated together for the purpose of banking within New Zealand, but the whole Act shall apply to persons associated together for the purpose of carrying on banking at any place out of New Zealand.
4 Insurance companies to be unlimited.
1903, No. 53, sec. 4
Except as provided by Part XI of this Act, no company that carries on the business of insurance, whether or not in common with any other business, shall be registered with limited liability.
5 Partnerships not to exceed ten persons.
1903, No. 53, sec. 4
(1.)
No company, association, or partnership consisting of more than ten persons shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the company, association, or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of some Act of the Imperial Parliament, or of the General Assembly, or by Royal charter, or letters patent.
(2.)
The members of any such company, association, or partnership that is not registered under this Act, or formed in pursuance of some Act of the Imperial Parliament or of the General Assembly, or by a Royal charter, or letters patent, shall be jointly and severally liable for the whole debts of such company, association, or partnership; and any of such members may be sued for any of such debts without the joinder in the action of any other member.
(3.)
Any such company, association, or partnership as aforesaid may be wound up under the provisions of this Act.
6 Registration Office.
Ibid, sec. 6
(1.)
The Governor may from time to time—
(a.)
Appoint a Registrar of Companies:
(b.)
Determine the place or places at which offices for the registration of companies are to be established, and define districts for the purposes of this Act:
(c.)
Appoint Assistant Registrars as he thinks fit:
(d.)
Appoint such officers and clerks as he thinks necessary for the registration of companies under this Act:
(e.)
Make such regulations as he thinks fit prescribing the duties and powers of the Registrar, Assistant Registrars, officers, and clerks as aforesaid:
(f.)
Direct a seal or seals to be prepared for the authentication of any documents required for or connected with the registration of companies.
(2.)
There shall be paid to the Registrar, and to any Assistant Registrar, officer, or clerk employed in the registration of companies, such salary as the Governor directs, out of any moneys duly appropriated by Parliament for the purpose.
(3.)
The Registrar shall keep at each office for the registration of companies a register, in which there shall be recorded all matters required by this Act or by any regulations made under this Act to be recorded by the Registrar.
7 Powers of Assistant Registrars.
Ibid, sec. 7
(1.)
Within a district wherein an Assistant Registrar is appointed, any act or duty that the Registrar is authorised or required to do or perform under this Act may be done or performed by the Assistant Registrar in that district, provided such act or duty is within the prescribed duties of such Assistant Registrar.
(2.)
Until regulations are made prescribing the duties and powers of Assistant Registrars, every Assistant Registrar shall have and may exercise all the duties and powers of a Registrar.
8 Fees as in Table C where capital divided into shares.
Ibid, sec. 8
(1.)
There shall be paid to the Registrar,—
(a.)
By a company having a capital divided into shares, in respect of the several matters mentioned in Table C in the Second Schedule hereto, the several fees therein specified:
Fees as in Table D where capital not divided into shares.
(b.)
By a company not having a capital divided into shares, in respect of the several matters mentioned in Table D in the Second Schedule hereto, the several fees therein specified:
Miscellaneous fees as in Table E.
(c.)
In respect of the several matters mentioned in Table E in the Second Schedule hereto, the several fees therein specified.
(2.)
The Governor may from time to time, by Order in Council, direct that smaller fees shall be paid in respect of any of the matters specified in Tables C or D respectively.
9 Fees payable in advance.
1903, No. 53, sec. 9
Where the Registrar or any other officer is empowered by this Act to do any act for which a fee is payable, he may refuse to do such act until such fee is paid.
10 Application of fees.
Ibid, sec. 10
All fees paid to the Registrar under this Act shall be paid into the Public Account and form part of the Consolidated Fund.
11 Power to inspect documents, &c.
Ibid, sec. 11
(1.)
Every person may inspect any documents lodged with the Registrar on payment of the fee prescribed for each inspection.
Power to requite certified copies of documents, &c.
(2.)
Any person may, on payment of the prescribed fee, require a certificate of the incorporation of any company, or a copy of or extract from any document or any part of any document, to be given or certified by the Registrar or Assistant Registrar respectively.
12 Evidence of documents.
Ibid, sec. 12
(1.)
Any certificate of the incorporation of a company given by the Registrar shall be received in evidence as if it were the original certificate.
(2.)
Any copy of or extract from any document or part of a document kept and registered at any office for the registration of companies in New Zealand shall, if duly certified to be a true copy under the hand of the Registrar, without proof of the signature of the Registrar, be received in evidence in all proceedings, civil or criminal, as of equal validity with the original document.
Part II Constitution and Incorporation of Companies
Memorandum of Association
13 Mode of forming company.
Ibid, sec. 13
Any seven or more persons associated for any lawful purpose may, by subscribing their names to a memorandum of association and otherwise complying with the requirements of this Act in respect of registration, form an incorporated company, with or without limited liability.
14 Mode of limiting liability of members.
Ibid, sec. 14
The liability of the members of a company formed with limited liability may, according to the memorandum of association, be limited either to the amount (if any) unpaid on the shares respectively held by them, or to such amount as the members respectively undertake by the memorandum of association to contribute to the assets of the company in the event of its being wound up.
15 Memorandum of association of company limited by shares.
Ibid, sec. 15
Where a company is formed on the principle of having the liability of its members limited to the amount unpaid on their shares (hereinafter referred to as “a company limited by shares”
), the memorandum of association shall contain the following things, that is to say:—
(a.)
The name of the proposed company, with the addition of the word “Limited”
as the last word in such name:
(b.)
The objects for which the proposed company is to be established:
(c.)
A declaration that the liability of the members is limited:
(d.)
The amount of capital with which the company proposes to be registered, divided into shares of a certain fixed amount.
16 Memorandum of association of company limited by guarantee.
1903, No. 53, sec. 16
(1.)
Where a company is formed on the principle of having the liability of its members limited to such amount as the members respectively undertake to contribute to the assets of the company in the event of the same being wound up (hereinafter referred to as “a company limited by guarantee”
), the memorandum of association shall contain the following things, that is to say:—
(a.)
The name of the proposed company, with the addition of the word “Limited”
as the last word in such name:
(b.)
The objects for which the proposed company is to be established:
(c.)
A declaration that each member undertakes to contribute to the assets of the company, in the event of the same being wound up while he is a member, or within one year after he has ceased to be a member, for payment of the debts and liabilities of the company contracted before he ceased to be a member, and of the costs, charges, and expenses of winding up the company, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required not exceeding a specified amount.
(2.)
Where a company limited by guarantee desires to have a capital divided into shares, the memorandum of association shall state, in addition to the matters hereinbefore mentioned, the amount of capital with which the company proposes to be registered, divided into shares of a certain fixed amount.
(3.)
A company limited by guarantee, whether formed before or after the passing of this Act, may by special resolution, if authorised so to do by its regulations, modify the conditions contained in its memorandum of association by providing for a capital divided into shares.
(4.)
The resolution effecting such modification shall state the amount of such capital and the number and nominal amount of the shares into which it is divided.
(5.)
No company limited by guarantee shall be capable of having a capital divided into shares unless its memorandum of association as originally framed or as altered by special resolution so provides; but this subsection shall not apply to any company limited by guarantee incorporated before the passing of this Act and having before the passing of this Act by its articles of association provided for a capital divided into shares.
(6.)
In the case of a company limited by guarantee and not having a capital divided into shares, every provision in the memorandum or articles of association, or in any resolution of the company, purporting to give any person a right to participate in the profits of the company available for dividend otherwise than as a member shall be void; but nothing herein shall affect the power of a company to issue debentures carrying a rate of interest varying with the profits, or shall affect the powers of any company incorporated before the passing of this Act.
(7.)
Except where otherwise expressly provided, all the provisions of this Act relating to the powers, rights, duties, and obligations of a company limited by shares, and of the members, directors, and officers of such a company, shall apply to a company limited by guarantee and having a capital divided into shares.
17 Memorandum of association of an unlimited company.
1903, No. 53, sec. 17
Where a company is formed on the principle of having no limit placed on the liability of its members (hereinafter referred to as “an unlimited company”
), the memorandum of association shall contain the following things, that is to say:—
(a.)
The name of the proposed company:
(b.)
The objects for which the proposed company is to be established.
18 Shares to be taken by subscribers.
Ibid, sec. 18
In the case of every company having a capital divided into shares, each subscriber to the memorandum of association shall write opposite to his name the number of shares he takes, and shall take not less than one share.
19 Stamp, signature, and attestation.
Ibid, sec. 19
The memorandum of association shall bear and be liable to the same stamp duty as if it were a deed not otherwise charged according to the provisions of “The Stamp Duties Act, 1908,”
and shall be signed by each subscriber in the presence of and be attested by one witness at the least; and that attestation shall be a sufficient attestation, whether the signature is made in New Zealand or not.
20 Effect of memorandum of association.
Ibid, sec. 20
(1.)
The memorandum of association shall, when registered, bind the company and the members thereof to the same extent as if each member had duly executed the same as a deed and there were in the memorandum a covenant with the company on the part of himself, his executors and administrators, to observe all the conditions of such memorandum, subject to the provisions of this Act.
(2.)
Save as provided by this Act, no alteration shall be made by any company in the conditions contained in its memorandum of association.
21 Member defined.
Ibid, sec. 21
The subscribers of the memorandum of association of any company shall be deemed to have agreed to become members of the company whose memorandum they have subscribed, and upon the registration of the company shall be entered as members on the register of members hereinafter mentioned; and every other person who has agreed to become a member of a company, and whose name is entered on the register of members, shall be deemed to be a member of the company.
Articles of Association
22 Regulations to be prescribed by articles of association.
Ibid, sec. 21
(1.)
The memorandum of association may in the case of a company limited by shares, and shall in the case of a company limited by guarantee or unlimited, be accompanied, when registered, by articles of association signed by the subscribers to the memorandum of association, and prescribing such regulations for the company as such subscribers deem expedient.
(2.)
The articles shall be expressed in separate paragraphs numbered arithmetically.
(3.)
They may adopt all or any of the regulations in Table A in the Second Schedule hereto.
(4.)
They shall, in the case of an unlimited company having a capital divided into shares, state the amount of capital with which the company proposes to be registered; and in the case of a company, whether limited by guarantee or unlimited, not having a capital divided into shares, state the number of members with which the company proposes to be registered, for the purpose of enabling the Registrar to determine the fees payable on registration.
23 Application of Table A.
1903, No. 53, sec. 23
In the case of a company limited by shares, if the memorandum of association is not accompanied by articles of association, or in so far as the articles do not exclude or modify the regulations contained in Table A in the Second Schedule hereto, the last-mentioned regulations shall, so far as the same are applicable, be the regulations of the company in the same manner and to the same extent as if they had been inserted in articles of association and such articles had been duly registered.
24 Stamp duty, signature, and effect of articles of association.
Ibid, sec. 24
(1.)
The articles of association shall be printed.
(2.)
They shall bear and be liable to the same stamp duty as if they were contained in a deed not otherwise charged according to the provisions of “The Stamp Duties Act, 1908.”
(3.)
They shall be signed by each subscriber in the presence of and be attested by one witness at the least; and such attestation shall be a sufficient attestation, whether the signature is made in New Zealand or not.
(4.)
When registered, they shall bind the company and the members thereof to the same extent as if each member had duly executed the same as a deed, and there were in such articles a covenant with the company on the part of himself, his executors and administrators, to conform to all the regulations contained in such articles, subject to the provisions of this Act.
(5.)
All moneys payable by any member to the company in pursuance of any of the conditions or regulations of the company shall be deemed to be a debt due from such member to the company.
25 Copies of memorandum and articles to be given to members.
Ibid, sec. 25
A copy of the memorandum of association, having annexed thereto the articles of association (if any), shall be forwarded to every member, at his request, on payment for each copy of the sum of two shillings or such less sura as may be prescribed by the company; and if any company commits any breach of this section it shall for each offence be liable to a fine not exceeding five pounds.
Incorporation and Name of Company
26 Memorandum and articles of association to be registered.
Ibid, sec. 26
(1.)
The memorandum of association and the articles of association (if any) shall be delivered to the Registrar, who shall retain and register the same upon payment of the prescribed fees.
(2.)
A statutory declaration by the solicitor (if any) engaged in the formation of the company, or the directors (if any), or the subscribers of the memorandum of association, that all or any of the requirements of this Act in respect of registration and of matters precedent or incidental thereto have been complied with shall be produced to the Registrar, who may accept the same as sufficient evidence of such compliance.
Effect of registration.
(3.)
Upon the registration of the memorandum of association and of the articles of association, where such articles are required by this Act or by desire of the parties to be registered, the Registrar shall issue a certificate under his hand that the company is incorporated, and, in the case of a limited company that the company is limited.
Certificate conclusive.
(4.)
Every certificate of incorporation, whether issued before or after the coming into operation of this Act, shall be conclusive evidence that all statutory requirements in respect of registration and of matters precedent and incidental thereto have been complied with, and that the association is a company authorised to be registered and duly registered under this Act or under any Act heretofore in force, as the case may be.
Incorporation of company.
(5.)
Upon the issue of such certificate the subscribers of the memorandum of association, together with all other persons who from time to time become members of the company, shall, as from the date of incorporation mentioned in the certificate, be a body corporate by the name contained in the memorandum of association, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, with power to hold lands, but with such liability on the part of the members to contribute to the assets of the company in the event of the same being wound up as is hereinafter mentioned.
27 Prohibition against identity of names in companies.
1903, No. 53, sec. 27
No company shall be registered under a name identical with that by which an existing company is already registered, or so nearly resembling the same as to be calculated to deceive, except where such existing company is in the course of being dissolved, and testifies its consent in such manner as the Registrar requires.
28 Name to be changed where likely to mislead.
Ibid, sec. 28
If any company, through inadvertence or otherwise, is without such consent as aforesaid registered by a name identical with that by which an existing company is registered, or so nearly resembling the same as to be calculated to deceive, such first-mentioned company may, with the sanction of the Court, change its name in the manner hereinafter provided and with the like effect.
Part III Distribution of Capital, and Liability of Members of Companies
Shares and Transfer of Shares
29 Shares to be numbered.
Ibid, sec. 29
In the case of a company having a capital divided into shares, each share shall be distinguished by its appropriate number.
30 Nature of interest in company.
Ibid, sec. 30
The shares or other interest of any member in a company shall be personal property, capable of being transferred in manner provided by the regulations of the company, and shall not be of the nature of real estate.
31 Certificate of shares or stock evidence of title.
1903, No. 53, sec. 31
(1.)
A certificate under the common seal of the company, specifying any share or shares or stock held by any member of a company, shall be prima facie evidence of the title of the member to the share or shares or stock therein specified.
(2.)
Every such certificate issued by a company shall have printed thereon particulars of any preferential, deferred, qualified, special, or limited rights, privileges, or conditions attaching to the shares or stock specified therein, whether attaching by the company’s memorandum or articles of association, or any resolution of the company or of the directors.
(3.)
Every director and manager who issues any certificate in breach of this section is liable to a fine not exceeding fifty pounds.
(4.)
The omission to comply with this section shall not affect the rights of any holder of shares or stock.
(5.)
Where the rights, privileges, or conditions attaching to any shares or stock are varied or altered, the company may by notice to the holders of such shares or stock require any certificate issued in respect thereof to be surrendered to the company, and all such certificates shall be so surrendered accordingly on the issue by the company of fresh certificates showing particulars of the new or varied rights, privileges, or conditions attaching to such shares or stock.
(6.)
Where after such notice is sent to the holder of any shares or stock the certificate is not surrendered, the company shall be under no further liability in respect thereof, or of the shares or stock for which it was issued, than it would have been under had such certificate been surrendered and a fresh certificate as aforesaid issued.
32 Transfer by personal representative.
Ibid, sec. 32
A transfer of the share or other interest of a deceased member of a company made by his executor or administrator shall, notwithstanding such executor or administrator may not himself be a member, be of the same validity as if he had been a member at the time of the execution of the instrument of transfer.
33 Liability of executors as registered holders of shares.
Ibid, sec. 33
Where any deceased person was at the time of his death registered or equitably entitled to be registered as the holder of a share in a company, the executor or administrator of such person may, with the consent of the directors of the company, and, where the deceased was equitably entitled as aforesaid, with the consent of the registered holder, be registered as such executor or administrator, and on such registration shall in respect of such share be subject to the same liabilities and no more as he would have been subject to if such share had remained or been in the name of such deceased person.
34 Transfer may be registered at request of transferor.
Ibid, sec. 34
A company shall, on the application of the transferor of any share or interest in the company, enter in its register of members the name of the transferee of such share or interest in the same manner and subject to the same conditions as if the application for such entry had been made by the transferee.
35 Transfer of share on which call unpaid.
Ibid, sec. 35
It shall be the duty of the directors of a company to refuse to register a transfer of any shares on which any call or instalment is due and unpaid, and every director who authorises the registration of a transfer of such shares shall be liable to pay to the company the amount due to the company in respect of such shares at the time of such registration.
Shares differing as to Liability to Calls, &c
36 Company may have some shares fully paid and others not.
1903, No. 58, sec. 36
Nothing herein shall be deemed to prevent any company, if authorised by its regulations, from doing all or any of the following things, namely:—
(a.)
Making arrangements on the issue of shares for a difference between the holders of such shares in respect of the amount of calls to be paid, and in the time of payment of such calls:
(b.)
Accepting from any member of the company who assents thereto the whole or a part of the amount remaining unpaid on any share or shares held by him, either in discharge of the amount of a call payable in respect of any other share or shares held by him, or without any call having been made:
(c.)
Paying dividend in proportion to the amount paid up on each share in cases where a larger amount is paid up on some shares than on others.
Reserve Capital
37 In limited company.
Ibid, sec. 37
A limited company may by special resolution declare that any portion of its capital not already called up shall not be called up except in the event of and for the purposes of the company being wound up; and thereupon it shall not be lawful to call up such portion of capital except in such event and for such purposes.
Subdivision and Consolidation of Shares
38 Shares may be divided into shares of smaller amount.
Ibid, sec. 38
A company limited by shares, if authorised by its regulations, may by special resolution so far modify the conditions contained in its memorandum of association as—
(a.)
To divide its capital, or any part thereof, by subdivision of its existing shares or any of them into shares of smaller amount than is fixed by its memorandum of association:
(b.)
To consolidate and divide its capital, or any part thereof, into shares of larger amount than its existing shares:
(c.)
To convert its paid-up shares into stock:
(d.)
To reconvert such stock into paid-up shares of any denomination:
Proportion between amounts paid and unpaid on shares to be preserved.
Provided that, in the subdivision of the existing shares, the proportion between the amount paid and the amount (if any) unpaid on each share of reduced amount shall be the same as it was in the case of the existing share or shares from which the share of reduced amount is derived.
39 Statement of shares as altered to be embodied in memorandum of association.
Ibid, sec. 39
The statement of the number and amount of the shares into which the capital of the company is divided contained in every copy of the memorandum of association issued after the passing of any such special resolution shall be in accordance with such resolution; and any company that makes default in complying with the provisions of this section is liable to a tine not exceeding one pound for each copy in respect of which such default is made; and every director and manager of the company who knowingly or wilfully authorises or permits such default is liable to a like fine.
40 Company to give notice of consolidation or of conversion of capital into stock.
1903, No. 53, sec. 40
Every company having a capital divided into shares that has consolidated and divided its capital into shares of larger amount than its existing shares, or has converted any portion of its capital into stock, or has reconverted such stock into paid-up shares, shall give notice to the Registrar of such consolidation, division, conversion, or reconversion, specifying the shares so consolidated, divided, converted, or reconverted.
41 Effect of conversion of shares into stock.
Ibid, sec. 41
Where any company having a capital divided into shares has converted any portion of its capital into stock, and has given notice of such conversion to the Registrar, all the provisions of this Act applicable to shares only shall cease as to so much of the capital as is converted into stock; and the register of members hereby required to be kept by the company, and the list of members to be forwarded to the Registrar, shall show the amount of stock held by each member, instead of the amount of shares and the particulars relating to shares hereinbefore required.
Increase of Capital or Members
42 Increase of capital or conversion into stock.
Ibid, sec. 42
Any company limited by shares may, if authorised to do so by its regulations, modify the conditions contained in its memorandum of association so as to increase its capital by the issue of new shares of such amount as it thinks expedient.
43 Notice of increase to be sent to Registrar.
Ibid, sec. 43
(1.)
Where a company has a capital divided into shares, whether such shares have or have not been converted into stock, notice of any increase in such capital beyond the registered capital, and, where a company has not a capital divided into shares, notice of any increase in the number of members beyond the registered number, shall be given to the Registrar, in the case of an increase of capital, within fifteen days from the date of the passing of the resolution by which such increase was authorised, and, in the case of an increase of members, within fifteen days from the time at which such increase of members was resolved on or took place; and the Registrar shall forthwith record the amount of such increase of capital or members.
(2.)
If such notice is not given within the period aforesaid, the company in default shall be liable to a fine not exceeding five pounds for every day during which such default continues, and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to a like fine.
Reduction of Capital
44 Power of company to reduce capital
Ibid, sec. 44
(1.)
Any company limited by shares may, if authorised so to do by its regulations, by special resolution modify the conditions contained in its memorandum of association so as to reduce its capital, including paid-up capital; but no such resolution for reducing the capital of any company shall come into operation until an order of the Court has been registered by the Registrar as hereinafter mentioned.
Company to add “and reduced”
to its name.
(2.)
The company shall, after the date of the passing of any special resolution for reducing its capital, add to its name, until such date as the Court appoints, the words “and reduced”
as the last words in its name; and these words shall, until such date, be deemed to be part of the name of the company.
Company to apply to the Court for an order confirming reduction.
(3.)
The company may apply to the Court by petition for an order confirming the reduction, and on the hearing of the petition the Court, if satisfied that, with respect to every creditor of the company who under the provisions of this Act is entitled to object to the reduction, either his consent to the resolution has been obtained, or bis debt or claim has been discharged or has determined or has been secured as hereinafter provided, may make an order confirming the reduction on such terms and subject to such conditions as it deems fit.
45 Creditors may object to reduction.
1903, No. 53, sec. 45
(1.)
Where a company proposes to reduce its capital, every creditor of the company who at the date fixed by the Court is entitled to any debt or claim which, if that date were the commencement of the winding-up of the company, would be admissible in proof against the company shall be entitled to object to the proposed reduction and to be entered in the list of creditors so entitled to object.
List of objecting creditors to be settled by the Court.
(2.)
The Court shall settle a list of such creditors, and for that purpose shall ascertain as far as possible, without requiring an application from any creditor, the names of such creditors and the nature and amount of their debts or claims, and may publish notices appointing a certain day or days within which creditors of the company who are not entered on the list are to claim to be entered thereon, or to be excluded from the right of objecting to the proposed reduction.
46 Court may dispense with consent of creditor on security being given for his debt.
Ibid, sec. 46
Where a creditor whose name is entered on the list of creditors, and whose debt or claim is not discharged or determined, does not consent to the proposed reduction, the Court may (if it thinks fit) dispense with such consent on the company securing the payment of the debt or claim of such creditor by setting apart and appropriating, in such manner as the Court directs, a sum of such amount as is hereinafter mentioned, that is to say,—
(a.)
If the company admits such debt or claim, or, though not admitting the same, is willing to set apart and appropriate the full amount thereof, then the full amount of the debt or claim shall be set apart and appropriated:
(b.)
If the company does not admit and is not willing to set apart and appropriate the full amount of such debt or claim, or if the amount is contingent or not ascertained, then the Court may (if it thinks fit) inquire into and adjudicate upon the validity of such debt or claim and the amount for which the company is liable in respect thereof, in the same manner as if the company were being wound up by the Court; and the amount fixed by the Court on such inquiry and adjudication shall be set apart and appropriated.
47 Order confirming reduction and minute to be registered.
Ibid, sec. 47
(1.)
The Registrar, upon the production to him of an order of the Court confirming the reduction of the capital of the company, and the delivery to him of a copy of the order and of a minute (approved by the Court) showing the amount of the capital of the company as altered by the order, the number of shares into which it is to be divided, and the amount of each share, shall register the order and minute; and, on registration, the special resolution confirmed by the order so registered shall take effect.
(2.)
Notice of such registration shall be published in such manner as the Court directs.
(3.)
The Registrar shall certify under his hand the registration of the order and minute; and his certificate shall be conclusive evidence that all the requirements of this Act with respect to the reduction of capital have been complied with, and that the capital of the company is such as is stated in the minute.
Minute to form part of memorandum of association.
(4.)
The minute, when registered, shall be deemed to be substituted for the corresponding part of the memorandum of association of the company, and shall be of the same validity and subject to the same alterations as if it had been originally contained in the memorandum of association.
(5.)
Subject to the provisions of this Act, no member of the company, whether past or present, shall be liable in respect of any share to any call or contribution exceeding in amount the difference (if any) between the amount paid on such share and the amount of the share as fixed by the minute.
48 Saving of rights of creditors who are ignorant of the proceedings.
1903, No. 53, sec. 48
(1.)
If any creditor who is entitled in respect of any debt or claim to object to the reduction of the capital of a company is in consequence of his ignorance of the proceedings taken with a view to such reduction, or of their nature and effect with respect to his claim, not entered on the list of creditors, and after such reduction the company is unable, within the meaning of section one hundred and seventy-eight hereof, to pay to the creditor the amount of such debt or claim, every person who was a member of the company at the date of the registration of the order and minute relating to the reduction of the capital of the company shall be liable to contribute, for the payment of such debt or claim, an amount not exceeding the amount he would have been liable to contribute if the company had commenced to be wound up on the day prior to such registration.
Liability of members to contribute for payment of claim of such creditors.
(2.)
On the company being wound up, the Court, on the application of such creditor, and on proof that he was ignorant of the proceedings taken with a view to the reduction, or of their nature and effect with respect to his claim, may, if it thinks fit, settle a list of such contributories accordingly, and make and enforce calls and orders on the contributories settled on such list in the same manner in all respects as if they were ordinary contributories in a winding-up.
(3.)
Nothing in this section shall affect the rights of the contributories of the company among themselves.
49 Minute to be embodied in memorandum of association.
Ibid, sec. 49
The minute, when registered, shall be embodied in every copy of the memorandum of association issued after its registration, and if any company makes default in complying with this section it shall be liable to a fine not exceeding one pound for each copy in respect of which such default is made; and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to a like fine.
50 Concealing name of creditor.
Ibid, sec. 50
If any director, manager, or officer of the company wilfully conceals the name of any creditor of the company who is entitled to object to the proposed reduction, or wilfully misrepresents the nature or amount of the debt or claim of any creditor of the company, or if any director or manager of the company aids or abets in or is privy to any such concealment or misrepresentation as aforesaid, every such director, manager, or officer shall be liable to three years’ imprisonment with hard labour.
51 Power to make rules concerning the foregoing matters.
1903, No. 53, sec. 51
(1.)
The power of making rules concerning the winding-up of companies conferred by this Act upon the Judges of the Court shall extend to making rules concerning matters in which the Court has jurisdiction under sections forty-four to forty-eight hereof; and until such rules are made, and in so far as no provision is made by such rules, the ordinary practice of the Court in matters of the same nature shall, so far as the same is applicable, be followed.
(2.)
In any proceeding under the said sections the Court may make such order as to costs as it deems fit.
52 Profits may be divided notwithstanding loss of capital.
Ibid, sec. 52
(1.)
In any case where—
(a.)
A company by the working or exhaustion of a mine, quarry, patent, timber right, leasehold, or other wasting asset in the ordinary course of its business has reduced the net value of its capital assets to an amount less than the amount of the company’s paid-up capital; or
(b.)
The net value of a company’s capital assets is, by loss of capital, less than the amount of the company’s paid-up capital, whether such loss of capital be a realised and ascertained loss or an estimated loss,—
it shall not be obligatory on such company before declaring a dividend from the profits on the company’s operations for any period to have the company’s capital reduced in accordance with the provisions of this Act, or to reinstate any lost capital out of profits, provided that the auditor or auditors of the company certify on the company’s balance-sheet for the period in respect of which it is proposed to declare a dividend that the assets of the company other than the profits proposed to be divided are, upon a valuation thereof made to his or their satisfaction, more than sufficient to pay the debts and liabilities (excluding the paid-up capital) of the company.
(2.)
Nothing herein shall be construed as authorising a return of capital to shareholders excepting such as may be involved in the working of a mine, quarry, patent, timber right, leasehold, or other wasting asset in the ordinary course of a company’s business.
Cancellation of Capital and Shares
53 Power to cancel lost capital.
Ibid, sec. 53
The power to reduce capital shall include a power to cancel any lost capital or any capital unrepresented by available assets, or to pay off any capital in excess of the wants of the company; and paid-up capital may be reduced either with or without extinguishing or reducing the liability (if any) remaining on the shares of the company, and to the extent to which such liability is not extinguished or reduced it shall be deemed to be preserved:
Provided that where the reduction of the capital does not involve either the diminution of liability in respect of unpaid capital or the payment to any shareholder of any paid-up capital,—
(a.)
The creditors of the company shall not, unless the Court directs otherwise, be entitled to object or required to consent to the reduction; and
(b.)
The words “and reduced”
need not be added to the name of the company before the presentation of the petition for confirming the reduction, and the Court may, if it thinks fit, dispense altogether with the addition of those words.
54 Company to publish reasons for reduction.
1903, No. 53, sec. 54
In any case where the Court thinks fit it may require the company to publish, in such manner as it thinks fit, the reasons for the reduction of its capital, or such other information in regard to the reduction of its capital as the Court thinks expedient, with a view to giving proper information to the public as to the reduction of its capital, and, if the Court thinks fit, the causes that led to such reduction.
55 Contents of minute.
Ibid, sec. 55
The minute required to be registered in the case of reduction of capital shall show, in addition to the other particulars required by law, the amount (if any) which it is proposed shall be deemed to have been paid up on each share at the date of the registration of the minute.
56 Power to reduce capital by cancelling unissued shares.
Ibid, sec. 56
Any company limited by shares may, if authorised so to do by its regulations, modify the conditions contained in its memorandum of association so as to reduce its capital by cancelling any shares that at the date of the passing of such resolution were not taken or agreed to be taken by any person; and the provisions of sections forty-four to fifty hereof shall not apply to any reduction of capital made under this section.
Application of Capital in Payment of Commission
57 Commission, discounts, &c.
Ibid, sec. 57
(1.)
Upon any offer of shares to the public for subscription it shall be lawful for a company to pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, if the payment of the commission and the amount or rate per centum thereof are respectively authorised by the articles of association and disclosed in the prospectus, and the commission paid or agreed to be paid does not exceed the amount or rate so authorised.
(2.)
Save as aforesaid, a company shall not apply any of its shares or capital money, directly or indirectly, in payment of any commission, discount, or allowance to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares of the company, whether the shares or money are so applied by being added to the purchase-money of any property acquired by the company or to the contract price of any work to be executed for the company, or the money is paid out of the nominal purchase-money or contract price, or otherwise.
(3.)
Nothing in this section shall affect the power of any company to pay such brokerage as it has heretofore been lawful for a company to pay.
Share Warrants to Bearer
58 Warrants for fully paid-up shares or stock may be issued to bearer.
1903, No. 53, sec. 58
(1.)
A company limited by shares, if authorised so to do by its regulations, and subject to the provisions of such regulations, may with respect to any share fully paid up, or with respect to stock, issue under its common seal a warrant stating that the bearer of the warrant is entitled to the share or shares or stock therein specified, and may provide, by coupons or otherwise, for payment of future dividends on the share or shares or stock included in such warrant, hereinafter referred to as a “share warrant.”
Effect of share warrants.
(2.)
A share warrant shall entitle the bearer thereof to the shares or stock specified therein, and such shares or stock may be transferred by the delivery of the share warrant.
59 Registration of bearer of share warrant.
Ibid, sec. 59
The bearer of a share warrant shall, subject to the regulations of the company, be entitled, on surrendering such warrant for cancellation, to have his name entered as a member in the register of members, and the company shall be responsible for any loss incurred by any person by reason of the company entering in its register of members the name of any bearer of a share warrant as the holder of the shares or stock specified therein without the share warrant being surrendered and cancelled.
60 Bearer of share warrant deemed to be a member.
Ibid, sec. 60
The bearer of a share warrant may, if the regulations of the company so provide, be deemed to be a member of the company within the meaning of this Act, either to the fall extent or for such purposes as may be prescribed by the regulations:
Bat not to qualify as a director.
Provided that the bearer of a share warrant shall not be qualified as the holder of the shares or stock specified in such warrant to become a director or manager of the company.
61 Entries in register where share warrant issued.
Ibid, sec. 61
On the issue of a share warrant in respect of any share or stock the company shall strike out of its register of members the name of the member then entered therein as holding such share or stock, as if he had ceased to be a member, and shall enter in the register the following particulars:—
(a.)
The fact of the issue of the warrant:
(b.)
A statement of the shares or stock included in the warrant, distinguishing each share by its number:
(c.)
The date of the issue of the warrant.
62 Particulars to be entered in register.
Ibid, sec. 62
Until the warrant is surrendered the above particulars shall be deemed to be the particulars required by section one hundred hereof to be entered in the register of members of a company; and on the surrender of a warrant the date of such surrender shall be entered as if it were the date at which a person ceased to be a member.
63 Particulars to be contained in annual summary.
Ibid, sec. 63
After the issue by the company of a share warrant, the annual summary required by section one hundred and one hereof shall contain the following particulars:—
(a.)
The total amount of shares or stock for which share warrants are outstanding at the date of the summary;
(b.)
The total amount of share warrants issued and surrendered respectively since the last summary was made; and
(c.)
The number of shares or amount of stock comprised in each warrant.
64 Stamps on share warrants.
1903, No. 53, sec. 64
(1.)
There shall be charged on every share warrant, upon the first issue thereof, a stamp duty of an amount equal to three times the amount of the ad valorem stamp duty that would be chargeable on a deed transferring the share or shares or stock specified in the warrant if the consideration for the transfer were the nominal value of such share or shares or stock.
(2.)
Such stamp duty shall be collected, recovered, and enforced under the provisions of “The Stamp Duties Act, 1908,”
as if such duty was imposed thereby.
65 Issuing share warrants not duly stamped.
Ibid, sec. 65
If a share warrant is issued without being duly stamped, the company issuing the same, and also any person who at the time when it is issued is the managing director or secretary or other principal officer of the company, shall be liable to a fine not exceeding fifty pounds.
Liability of Members on their Shares
66 Liability of present and past members of company.
Ibid, sec. 66
In the event of a company being wound up every present and past member of such company shall be liable to contribute to the assets of the company to an amount sufficient for payment of the debts and liabilities of the company, and the costs, charges, and expenses of the winding-up, and for the payment of such sums as are required for the adjustment of the rights of the contributories amongst themselves: Provided that—
(a.)
No past member shall be liable to contribute to the assets of the company—
(i.)
If he has ceased to be a member for one year or upwards prior to the commencement of the winding-up; or
(ii.)
In respect of any debt or liability of the company contracted after the time when he ceased to be a member; or
(iii.)
Unless it appears to the Court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act:
(b.)
In the case of a company limited by shares, no contribution shall be required from any member exceeding the amount (if any) unpaid on the shares in respect of which he is liable as a present or past member:
(c.)
In the case of a company limited by guarantee, no contribution shall be required from any member exceeding the amount of the undertaking entered into by or on his behalf by the memorandum of association, and the amount (if any) unpaid on the shares (if any) in respect of which he is liable as a present or past member.
67 Limitation of company’s liability under policy or contract.
Ibid, sec. 67
Nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members upon any such policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of such policy or contract.
68 Creditors to be preferred to members.
Ibid, sec. 68
No sum due to any member of a company in his character of a member, by way of dividends, profits, or otherwise, shall be deemed to be a debt of the company payable to such member in a case of competition between himself and any other creditor not being a member of the company; but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories amongst themselves.
Part IV Management and Administration of Companies
Appointment and Duties of Directors
69 Subscribers to memorandum to be directors.
1903, No. 53, sec. 69
Unless directors are appointed by the articles of association or until directors are appointed in the manner provided by the articles of association, the subscribers to the memorandum of association of any company shall be the directors of the company.
70 Restrictions on appointment or advertisement of director.
Ibid, sec. 70
(1.)
In the case of a company having a capital divided into shares a person shall not be appointed director of the company by the articles of association, or named as a director or proposed director of the company in any prospectus issued by or on behalf of the company, unless before the registration of the articles or the publication of the prospectus, as the case may be, he has by himself or by his agent authorised in writing—
(a.)
Signed and filed with the Registrar a consent in writing to act as such director; and
(b.)
Either signed the memorandum of association for a number of shares, not less than his qualification (if any), or signed and filed with the Registrar a contract in writing with the company to take from the company and pay for his qualification shares (if any).
(2.)
On the application for registration of the memorandum and articles of association of a company the applicant shall deliver to the Registrar a list of the persons who have consented to be directors of the company, and if such list contains the name of any person who has not so consented the applicant shall be liable to a fine not exceeding fifty pounds.
(3.)
This section does not apply to a company registered before the eighth day of November, one thousand nine hundred and one, or to a company for whose shares the public have not been invited to subscribe, or to a prospectus issued by or on behalf of a company after the expiration of three years from the date when the company is entitled to commence business.
71 Qualification to be retained.
Ibid, sec. 71
(1.)
Without prejudice to the restrictions imposed by the last preceding section, it shall be the duty of every director who is not already qualified to obtain his qualification within two months after his appointment, or within such shorter time as may be fixed by the regulations of the company.
(2.)
The office of director of a company shall be vacated if the director does not within the time hereinbefore prescribed obtain his qualification (if any), or if after the expiration of such time he ceases at any time to hold such qualification; and a person vacating office under this section shall be incapable of being reappointed director of the company until he has obtained his qualification.
(3.)
If, after the expiration of the time hereinbefore prescribed, any unqualified person acts as director of a company, he shall be liable to a fine not exceeding five pounds for every day during which he so acts.
Payment of Calls by Directors
72 Directors to pay calls on shares held by them.
1903, No. 53, sec. 72
(1.)
Whenever a call on any shares is made payable it shall be obligatory on the directors of the company to pay the amount of such call on all shares held by them respectively on or before the day on which such calls are made payable by shareholders.
(2.)
Every director who fails to comply with this section is liable to a fine not exceeding fifty pounds and not less than five pounds, in addition to his liability for payment of the amount of the call.
(3.)
Every director who within two months from the due date thereof fails to pay any call on shares held by him shall, ipso facto, cease to be a director.
Directors’ Fees
73 When directors’ fees to be withheld.
Ibid, sec. 73
(1.)
It shall not be lawful for any director to receive or for any company to pay any fees or other remuneration to any director who is indebted to the company in respect of calls on his shares, or who has been absent from the meetings of the directors for a period of three months or upwards, unless he was so absent with the leave of the directors.
(2.)
Every director who receives any payment contrary to this section, or who is party to any such payment, is liable for each offence to a fine not exceeding fifty pounds, and any money so paid may in the event of the company being wound up within three years after such payment was made be recovered by the liquidator.
Prospectus
74 Filing of prospectus.
Ibid, sec. 74
(1.)
Every prospectus issued by or on behalf of a company or with reference to any intended company shall be dated, and that date shall, unless the contrary be proved, be taken as the date of the publication of the prospectus.
(2.)
A copy of every such prospectus shall be signed by every person who is named therein as a director or proposed director of the company, or by his agent authorised in writing, and shall be filed with the Registrar on or before the date of its publication.
(3.)
The Registrar shall not register any prospectus unless it is so dated and signed.
(4.)
No prospectus shall be issued until so filed for registration, and every prospectus shall state that it has been so filed.
75 Particulars of prospectus.
Ibid, sec. 75
(1.)
Every prospectus issued by or on behalf of a company, or by or on behalf of any person who is or has been engaged or interested in the formation of a company, shall state—
(a.)
The contents of the memorandum of association, with the names, addresses, and descriptions of the signatories, and the number of shares subscribed for by them respectively and
(b.)
The number of shares (if any) fixed by the articles of association (if any) as the qualification of a director, and any provision in the articles of association as to the remuneration of the directors; and
(c.)
The names, addresses, and descriptions of the directors or proposed directors; and
(d.)
The minimum subscription on which the directors may proceed to allotment, and the amount payable on application and allotment on each share, and, in the case of a second or subsequent offer of shares, the amount offered for subscription on each previous allotment and the amount actually allotted, and the amount (if any) paid on such shares; and
(e.)
The number and amount of shares and debentures issued, or agreed to be issued, as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and the number and amount of shares issued or agreed to be issued with preferential, deferred, qualified, special, or limited rights, privileges, or conditions attaching thereto, and the nature and extent of the interest of the holders of such shares in the property and profits of the company, and in every case the consideration for which such shares or debentures were issued or are proposed or intended to be issued; and
(f.)
The names and addresses of the vendors of any property purchased or acquired by the company, or proposed so to be purchased or acquired, which is to be paid for wholly or partly out of the proceeds of the issue offered for subscription by the prospectus, or the purchase or acquisition of which has not been completed at the date of publication of the prospectus, and the amount payable in cash, shares, or debentures to the vendor, and, where there is more than one vendor or the company is a subpurchaser, the amount so payable to each vendor; and
(g.)
The amount (if any) paid or payable as purchase-money in cash, shares, or debentures for any such property as aforesaid, specifying the amount payable for goodwill; and
(h.)
The amount (if any) paid or payable as commission for subscribing or agreeing to subscribe, or procuring or agreeing to procure subscriptions, for any shares in the company, or the rate of any such commission; and
(i.)
The amount or estimated amount of preliminary expenses; and
(j.)
The amount paid or intended to be paid to any promoter, and the consideration for any such payment; and
(k.)
The dates of and parties to every material contract, and a reasonable time and place at which any such contract or a copy thereof may be inspected:
Provided that this requirement shall not apply to a contract entered into in the ordinary course of the business carried on or intended to be carried on by the company, or to any contract entered into more than three years before the date of publication of the prospectus; and
(l.)
The names and addresses of the auditors (if any) of the company; and
(m.)
Full particulars of the nature and extent of the interest (if any) of every director in the promotion of the company or in any property proposed to be acquired by the company, with a statement of all sums paid or agreed to be paid to him in cash or shares by any person, either to qualify him as a director or otherwise for services rendered by him in connection with the formation of the company.
(2.)
For the purposes of this section every person shall be deemed to be a vendor who has entered into any contract, absolute or conditional, for the sale or purchase, or for any option of purchase, of any property to be acquired by the company in any case where—
(n.)
The purchase-money is not fully paid at the date of publication of the prospectus; or
(o.)
The purchase-money is to be paid or satisfied wholly or in part out of the proceeds of the issue offered for subscription by the prospectus; or
(p.)
The contract depends for its validity or fulfilment on the result of such issue.
(3.)
Where any of the property to be acquired by the company is to be taken on lease, this section shall apply as if the expression “the vendor”
included the lessor, and “purchase-money”
included the consideration for the lease, and “subpurchaser”
included a sublessee.
(4.)
This section does not apply to a circular or notice inviting existing members or debenture-holders of a company to subscribe for further shares or debentures; but, subject as aforesaid, applies to any prospectus, whether issued on or with reference to the formation of a company or subsequently thereto:
Provided that, in the case of a prospectus published more than three years after the date at which the company is entitled to commence business,—
(q.)
The requirements as to the memorandum of association, and the qualifications, remuneration, and interest of directors, the names, addresses, and descriptions of directors or proposed directors, and the amount or estimated amount of preliminary expenses, shall not apply; and
(r.)
The obligation to disclose all material contracts shall be limited to a period of two years immediately preceding the publication of the prospectus.
(5.)
Any condition requiring or binding an applicant for shares or debentures to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus, shall be void
(6.)
Where any such prospectus as is mentioned in this section is published as a newspaper advertisement, it shall not be necessary to specify the contents of the memorandum of association or the signatories thereto, or the number of shares subscribed for by them.
(7.)
In the event of non-compliance with any of the requirement of this section a director or other person responsible for the prospectus shall not incur any liability by reason of such non-compliance if he proves that,—
(s.)
As regards any matter not disclosed, he was not cognisant thereof; or
(t.)
The non-compliance arose from an honest mistake of fact on his part:
Provided that in the event of non-compliance with the requirements of paragraph (m) of subsection one of this section a director or other person shall not incur any liability in respect of such non-compliance unless it is proved that he had knowledge of the matters not disclosed.
(8.)
This section shall not limit or diminish any liability incurred by any person under this Act or under the general law apart from this section.
76 Liability for state-ments in prospectus.
1903, No. 53, sec. 76
(1.)
Every person who is a director of a company at the time of the issue of a prospectus by or in relation to such company, and every person who, having authorised such naming of him, is named in the prospectus as a director of the company, or as having agreed to become a director of the company either immediately or after an interval of time, and every promoter of the company, and every person who has authorised the issue of the prospectus, is liable to pay compensation to all persons who subscribe for any shares or debentures on the faith of such prospectus for any loss or damage they may sustain by reason of any untrue statement in the prospectus, or in any report or memorandum appearing on the face thereof, or by reference incorporated therein or issued therewith, unless it is proved,—
(a.)
With respect to every such untrue statement not purporting to be made on the authority of an expert, or of a public official document or statement, that he had reasonable ground to believe, and up to the time of the allotment of the shares or debentures, as the case may be, did in fact believe, that the statement was true; and
(b.)
With respect to every such untrue statement purporting to be a statement by an expert, or contained in what purports to be a copy of or extract from any report or valuation by an expert, or a copy of or extract from any assay certificate or other document setting forth the capacity, productiveness, or other quality of anything material to the objects or purposes for which the company is formed or intended to be formed, or any of them, that it fairly represented such statement, or was a correct copy of or extract from such report or valuation or such assay certificate or other document, and that such director, person named, promoter, or other person authorising the issue of the prospectus as aforesaid had reasonable ground to believe that the person making the statement, report, valuation, assay certificate, or other document was competent to make it; and
(c.)
With respect to every such untrue statement purporting to be a statement made by an official person, or contained in what purports to be a copy of or extract from a public official document, that it was a correct and fair representation of such statement, or copy of or extract from such document; or unless it is proved
(d.)
That, having consented to become a director of the company, he withdrew his consent before the issue of the prospectus, and that the prospectus was issued without his authority or consent; or
(e.)
That the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue he forth-with gave reasonable public notice that it was so issued without his knowledge or consent; or
(f.)
That after the issue of such prospectus, and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto, and caused reasonable public notice of such withdrawal, and of the reason therefor, to be given.
(2.)
Every action or other legal proceeding under this section shall be commenced within three years after the cause of action arose.
(3.)
In this section—
“Expert” includes any person whose profession or occupation, or assumed profession or occupation, gives authority to a statement made by him:
“Promoter” means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing such untrue statement, but does not include any person by reason only of his acting in a professional capacity for persons engaged in procuring the formation of the company.
77 Indemnity where name of person improperly Inserted as director.
1903, No. 53, sec. 77
Where any such prospectus as aforesaid contains the name of any person as a promoter or director of the company, or as having agreed to become a promoter or director thereof, and such person has not consented to become a promoter or director, or has withdrawn his consent before the issue of such prospectus, and has not authorised or consented to the issue thereof, the promoters or directors of the company (except any without whose knowledge or consent the prospectus was issued), and any other person who authorised the issue of such prospectus, shall be liable to indemnify the person named as a promoter or director of the company, or as having agreed to become a promoter or director thereof as aforesaid, against all damages, costs, charges, and expenses to which he becomes liable by reason of his name being inserted in the prospectus, or in defending himself against any action or legal proceedings brought against him in respect thereof.
78 Contribution from co-directors, &c.
Ibid, sec. 78
(1.)
Every person who by reason of his being a promoter or director, or of his being named as a promoter or director, or as having agreed to become a promoter or director, or of his having authorised the issue of the prospectus, becomes liable to make any payment under the provisions of this Act shall be entitled to recover contribution, as in cases of contract, from any other person who, if sued separately, would have been liable to make the same payment.
(2.)
Every action or other legal proceeding under this section shall be commenced within three years after the liability to contribute arose.
79 Person inserting name of another in prospectus as director, &c., without authority.
1903, No. 53, sec. 79
(1.)
Every person who knowingly and wilfully inserts or causes to be inserted in any prospectus or notice inviting the public to subscribe for shares or debentures of a company the name of any other person, whether as director, broker, or solicitor, without the express authority in writing of the person whose name is so inserted is liable to a fine not exceeding one hundred pounds, or to three years’ imprisonment with hard labour.
(2.)
This section shall not prejudice or affect any other liability imposed by or under this Act.
80 Making or issuing false certificate, report, &c.
Ibid, sec. 80
Every person is liable to three years’ imprisonment with hard labour who, being an “expert”
within the meaning of section seventy-six hereof, knowingly and wilfully makes, signs, or gives, or causes to be made, signed, or given, any false assay certificate, report, valuation, or other document relating to or setting forth the capacity, productiveness, or other quality of anything material to the objects or purposes for which any company is formed or is intended to be formed, or who, knowing the same to be false, issues, utters, offers, or disposes of any such document as aforesaid.
81 Limitation of action.
Ibid, sec. 81
Every prosecution or other criminal proceeding for any offence under the two last preceding sections shall be commenced or taken within three years after the alleged offence was committed.
Unlimited Liability of Directors
82 Limited company may have directors with unlimited liability.
Ibid, sec. 82
Where a company is formed as a limited company, the liability of the directors or managers of such company, or of the managing director, may, if so provided by the memorandum of association, be unlimited.
83 Notice to be given to director on his election that his liability will be unlimited.
Ibid, sec. 83
(1.)
In any such company the directors of the company (if any), and the member who proposes any person for election or appointment to such office, shall add to such proposal a statement that the liability of the person holding such office will be unlimited, and the promoters, directors, and manager (if any) of such company, or one of them, shall, before such person accepts such office or acts therein, give him notice in writing that his liability will be unlimited.
Neglect to give notice.
(2.)
Every director, manager, or proposer who makes default in adding such statement, and every promoter, director, or manager who makes default in giving such notice, is liable to a fine not exceeding one hundred pounds, and is also liable for any damage which the person so elected or appointed sustains from such default; but the liability of the person elected or appointed shall not be affected by such default.
84 Existing limited companies may, by special resolution, make liability of directors unlimited.
Ibid, sec. 84
A limited company may, by a special resolution, if authorised so to do by its regulations as originally framed, or as altered by special resolution, from time to time modify the conditions contained in its memorandum of association so far as to render unlimited the liability of its directors or of the managing director.
85 Copy of resolution to be embodied in memorandum.
Ibid, sec. 85
Such special resolution shall be of the same validity as if it had been originally contained in the memorandum of association, and a copy thereof shall be embodied in or annexed to every copy of the memorandum of association issued after the passing of the resolution; and any default in this respect shall be deemed to be a default in complying with the provisions of section ninety-four hereof, and shall be punishable accordingly.
86 Liability of director, past and present, to contribute in winding-up where liability in unlimited.
1903, No. 53, sec. 86
(1.)
On the winding-up of a limited company any director or manager, whether past or present, whose liability is in pursuance of this Act unlimited shall, subject to the provisions hereinafter contained, in addition to his liability (if any) to contribute as an ordinary member, be liable to contribute as if he were at the date of the commencement of such winding-up a member of an unlimited company.
(2.)
No contribution required from any such past director or manager who has ceased to hold office for one year or upwards prior to the commencement of the winding-up shall exceed the amount (if any) he is liable to contribute as an ordinary member of the company.
(3.)
No contribution required from any such past director or manager in respect of any debt or liability of the company contracted after the time when he ceased to hold such office shall exceed the amount (if any) he is liable to contribute as an ordinary member of the company.
(4.)
Subject to the regulations of the company, no contribution required from any such director or manager shall exceed the amount (if any) he is liable to contribute as an ordinary member, unless the Court deems it necessary to require such contribution in order to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding-up.
Director with unlimited liability may have set-off as under section 199.
(5.)
The Court may, if it thinks fit, make to any such director or manager the same allowance by way of set-off as under section one hundred and ninety-nine hereof it may make to a contributory where the company is not limited.
Meetings of Shareholders
87 Statutory meeting of company.
Ibid, sec. 87
(1.)
Every company limited by shares shall, within a period of not less than one month nor more than three months from the date at which the company is entitled to commence business, hold a general meeting of the members of the company, which shall be called “the statutory meeting.”
(2.)
The directors shall, at least seven days before the day on which the meeting is held, forward to every member of the company a report certified by not less than two directors of the company, or, where there are less than two directors, by the sole director and manager, stating—
(a.)
The total number of shares allotted, distinguishing shares allotted as fully or partly paid up otherwise than in cash, and, in the case of shares partly paid up, the extent to which they are so paid up, and in either case the consideration for which they have been allotted;
(b.)
The total amount of cash received by the company in respect of such shares, distinguished as aforesaid;
(c.)
An abstract of the receipts and payments of the company on capital account to the date of the report, and an account or estimate of the preliminary expenses of the company;
(d.)
The names, addresses, and occupations of the directors, auditors (if any), manager (if any), and secretary of the company; and
(e.)
The particulars of any contract to be submitted to the meeting for modification, together with particulars of the modification proposed.
(3.)
The report shall, so far as it relates to the shares allotted by the company, and to the cash received in respect of such shares, and to the receipts and payments of the company on capital account, be certified as correct by the auditors (if any) of the company.
(4.)
The directors shall cause a copy of the report, certified as aforesaid, to be filed with the Registrar forthwith after the sending thereof to the members of the company.
(5.)
The directors shall cause a list showing the names, addresses, and occupations of the members of the company, and the number of share’s held by them respectively, to be produced at the commencement of the meeting, and to remain open and accessible to any member of the company during the continuance of the meeting.
(6.)
The members of a company present at the meeting may, if the articles or regulations so provide, elect or confirm the election or appointment of directors.
(7.)
The members of the company present at the meeting shall be at liberty to discuss any matter relating to the formation of the company or arising out of the report, whether previous notice thereof has been given or not; but no resolution may be passed of which notice has not been given in accordance with the articles of association.
(8.)
The meeting may adjourn from time to time, and at any such adjournment any resolution may be passed of which notice has been given in accordance with the articles of association, either before or after the former meeting, and the adjourned meeting shall have the same powers as an original meeting.
(9.)
If default is made in filing such report as aforesaid, or in holding the statutory meeting, then, at the expiration of fourteen days after the last day on which the meeting ought to have been held, any member may petition the Court for the winding-up of the company; and upon the hearing of the petition the Court may either direct that the company be wound up, or give directions for the report to be filed or for a meeting to be held, or make such other order as is just, and may order that the costs of the petition be paid by any persons who, in the opinion of the Court, are responsible for the default.
88 General meeting of company.
1903, No. 53, sec. 88
A general meeting of every company shall be held once at least in every year.
89 Extraordinary general meeting.
Ibid, sec. 89
(1.)
Notwithstanding anything in the regulations of a company, the directors shall, on the requisition of the holders of shares representing not less than one-tenth of the issued capital of the company upon which all calls or other sums then due nave been paid, forthwith proceed to convene an extraordinary general meeting of the company.
(2.)
The requisition shall state the objects of the meeting, and be signed by the requisitionists and deposited at the office of the company, and may consist of several documents in like form, each signed by one or more requisitionists.
(3.)
If the directors of the company do not proceed to cause a meeting to be held within twenty-one days from the date of the requisition being so deposited, the requisitionists, or a majority in value of them, may themselves convene the meeting, provided that the meeting so convened shall be held within three months from the date of such deposit.
(4.)
If at any such meeting a resolution requiring confirmation at another meeting is passed, the directors shall forthwith convene a further extraordinary general meeting for the purpose of considering the resolution, and, if thought fit, of confirming it as a special resolution; and if the directors do not convene such further meeting within seven days from the date of the passing of the first resolution the requisitionists, or a majority in value of them, may themselves convene the meeting.
(5.)
Any meeting convened under this section by requisitionists shall be convened in the same manner as nearly as possible as meetings convened by directors according to the regulations of the company.
90 Provision where no regulations as to meetings.
1903, No. 53, sec. 90
Unless the regulations of a company otherwise provide,—
(a.)
Every member shall have one vote:
(b.)
A general meeting shall be held to be duly summoned if seven days’ notice in writing has been served on every member in the manner in which notices are required to be served by Table A in the Second Schedule hereto:
(c.)
Five members shall be competent to summon the meeting:
(d.)
The members present may elect any person to be chairman of such meeting.
Special and Extraordinary Resolutions
91 Special resolution defined.
Ibid, sec. 91
(1.)
A resolution passed by a company shall be deemed to be a “special resolution”
if—
(a.)
Passed by a majority of not less than three-fourths of such members of the company entitled under the regulations of the company to vote as are present in person or by proxy (in cases where by the regulations of the company proxies are allowed) at any general meeting of which notice stating the intention to propose such resolution has been duly given; and
(b.)
Confirmed by a majority of such members for the time being entitled according to the regulations of the company to vote as are present in person or by proxy at a subsequent general meeting of which notice has been duly given, held at an interval of not less than fourteen days nor more than one month from the date of the meeting at which such resolution was first passed.
(2.)
At any meeting mentioned in this section, unless a poll is demanded by at least five members, a declaration of the chairman that any resolution has been carried shall be deemed conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against the same.
(3.)
In computing the majority under this section when a poll is demanded reference shall be had to the number of votes to which a member is entitled by the regulations of the company.
(4.)
Notice of any meeting shall, for the purposes of this section, be deemed to be duly given and the meeting to be duly held whenever such notice is given and meeting held in manner prescribed by the regulations of the company.
92 Extraordinary resolution defined.
1903, No. 53, sec. 92
A resolution shall be deemed to be “an extraordinary resolution”
if passed by a majority of not less than three-fourths of such members of the company entitled under the regulations to vote as are present in person or by proxy (in cases where by the regulations proxies are allowed) at any general meeting of which notice stating the intention to propose such resolution has been duly given.
93 Registration of special resolutions.
Ibid, sec. 93
(1.)
A copy of every special resolution shall be forwarded to the Registrar and recorded by him.
(2.)
If default is made in forwarding such copy for fifteen days from the date of the confirmation of the resolution, the company shall be liable to a fine not exceeding two pounds for every day after the expiration of such fifteen days during which such default continues; and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to a like fine.
94 Copies of special resolutions.
Ibid, sec. 94
(1.)
Where articles of association have been registered, a copy of every special resolution for the time being in force shall be annexed to or embodied in every copy of the articles of association issued after the passing of such resolution.
(2.)
Where no articles of association have been registered, a copy of any special resolution shall be forwarded to any member requesting the same on payment of one shilling, or such less sum as the company directs.
(3.)
If any company makes default in complying with this section it shall be liable to a fine not exceeding one pound for each copy in respect of which such default is made; and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to a like fine.
Allotment of Shares
95 Restrictions as to allotment.
Ibid, sec. 95
(1.)
No allotment shall be made of any share capital of a company offered to the public for subscription unless—
(a.)
The amount (if any) fixed by the memorandum or articles of association and named in the prospectus as the minimum subscription upon which the directors may proceed to allotment; or
(b.)
If no amount is so fixed and named, then the whole amount of the share capital so offered for subscription—
has been subscribed, and the sum payable on application for the amount so fixed and named, or for the whole amount offered for subscription, has been paid to and received by the company.
(2.)
The amount so fixed and named, and the whole amount aforesaid, shall be reckoned exclusive of any amount payable otherwise than in cash, and is in this Act referred to as “the minimum subscription.”
(3.)
The amount payable on application on each share shall not be less than ten per centum of the nominal amount of the share.
(4.)
If the foregoing conditions are not complied with within ninety days after the first issue of the prospectus all money received from applicants for shares shall be forthwith repaid to the applicants without interest; and if any such money is not so repaid within ninety-eight days after the issue of the prospectus the directors of the company shall be jointly and severally liable to repay that money, with interest at the rate of five per centum per annum from the expiration of the ninety-eight days:
Provided that a director shall not be liable if he proves that the failure to pay such money was not due to any misconduct or negligence on his part.
(5.)
Any condition requiring or binding any applicant for shares to waive compliance with any requirement of this section shall be void.
(6.)
This section, except subsection three, does not apply to any allotment of shares subsequent to the first allotment of shares offered to the public for subscription.
96 Effect of irregular allotment.
1903, No. 53, sec. 96
(1.)
An allotment made by a company to an applicant in breach of the foregoing provisions shall be voidable at the instance of the applicant within one month after the holding of the statutory meeting of the company, and not later, and shall be so voidable notwithstanding that the company is in course of being wound up.
(2.)
If any director of a company knowingly commits or permits or authorises a breach of any of the foregoing provisions relating to allotment he shall be liable to compensate the company and the allottee respectively for any damage, loss, or costs the company or the allottee may have sustained or incurred thereby:
Provided that proceedings to recover the same shall not be commenced after the expiration of two years from the date of the allotment.
97 Return of allotments.
Ibid, sec. 97
(1.)
Whenever a limited company makes any allotment of its shares the company shall within one month thereafter file with the Registrar—
(a.)
A return of the allotments, stating the number and nominal amount of the shares comprised in the allotment, the names, addresses, and descriptions of the allottees, and the amount (if any) paid or due and payable on each share; and
(b.)
In the case of shares allotted in whole or in part for a consideration other than cash, a contract in writing constituting the title of the allottee to such allotment, together with any contract of sale, or for services or other consideration in respect of which such allotment was made, such contracts being duly stamped, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they were allotted.
(2.)
Every director, manager, secretary, or other officer of the company who is knowingly a party to any breach of this section is liable to a fine not exceeding fifty pounds for every day during which such breach continues.
98 Provision where no contract registered.
1903, No. 53, sec. 98
In any case where shares in any company were issued prior to the coming into operation of “The Companies Act, 1901,”
as fully or partly paid up for a consideration other than cash, but no contract was filed as required by section thirty-four of “The Companies Act, 1882,”
then if such shares—
(a.)
Were issued bona fide for a substantial consideration; or
(b.)
Were subsequently acquired by any person bona fide without notice of the omission as aforesaid,—
the allottee or holder of such shares shall not be liable to pay to the company in respect of such shares any sum other than the amount of the nominal liability (if any) subject to which the shares were issued.
Commencement of Business
99 Restriction on commencement of business.
Ibid, sec. 99
(1.)
A company shall not commence any business or exercise any borrowing-powers unless—
(a.)
Shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription hereinbefore mentioned; and
(b.)
Every director of the company has paid to the company on each of the shares taken or contracted to be taken by him, and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription; and
(c.)
There has been filed with the Registrar a statutory declaration by the manager or one of the directors that the aforesaid conditions have been complied with.
(2.)
The Registrar, on the filing of such statutory declaration, shall certify that the company is entitled to commence business, and such certificate shall be conclusive evidence that the company is so entitled.
(3.)
Any contract made by a company before the date at which it is entitled to commence business shall be provisional only, and shall not be binding on the company until that date, and on that date it shall become binding.
(4.)
Nothing in this section shall prevent the simultaneous offer for subscription of any shares and debentures, or the receipt of any application.
(5.)
If a company commences business or exercises borrowing-powers in breach of this section, every person who is responsible for the breach shall, without prejudice to any other liability, be liable to a fine not exceeding fifty pounds for every day during which the breach continues.
(6.)
Subsections one to five of this section do not apply to a company registered before the eighth day of November, one thousand nine hundred and one, nor to any company for whose shares the public have not been invited to subscribe.
(7.)
Where a company does not before it commences business issue a prospectus offering shares to the public, it shall be the duty of the directors before commencing business or undertaking any obligation in furtherance of any of the objects contained in its memorandum of association (other than the exercise of borrowing-powers) to file with the Registrar a statutory declaration, signed by all the directors, stating the amount of capital for which shares have been subscribed and allotted with a liability to pay for the same wholly or partly in cash, and stating that, in their opinion, the capital subscribed for and shares allotted as aforesaid, together with the money (if any) raised under the company’s borrowing-powers, are sufficient to justify the company in commencing business.
(8.)
Every director who commits a breach of the last preceding subsection, or who negligently, and without having made a reasonable investigation or inquiry as to the requirements of the company, makes such declaration as aforesaid is liable to a fine not exceeding one hundred pounds.
(9.)
Nothing in subsection seven hereof shall apply to any liability incidental to the engagement of officers of the company, or to the expenses preliminary or incidental to the establishment of the company.
Register of Members
100 Register of members.
1903, No. 53, sec. 100
(1.)
Every company shall cause to be kept in one or more books a register of its members, and there shall be entered therein the following particulars;—
(a.)
The names and addresses and the occupations (if any) of the members of the company, with the addition, in the case of a company having a capital divided into shares, of a statement of the shares held by each member, distinguishing each share by its number, and of the amount paid or agreed to be considered as paid on the shares of each member;
(b.)
The date at which the name of any person was entered in the register as a member; and
(c.)
The date at which any person ceased to be a member.
(2.)
Any company committing a breach of this section shall be liable to a fine not exceeding five pounds for every day during which such breach continues, and every director or manager of the company who knowingly and wilfully authorises or permits such breach is liable to a like fine.
101 Annual summary.
Ibid, sec. 101
(1.)
Every company having a capital divided into shares shall once at least in every year make a list of all persons who are members of the company on the fourteenth day succeeding the day on which the ordinary general meeting is held, or, if there are more ordinary general meetings than one in each year, then on the fourteenth day succeeding the day on which the first of such ordinary general meetings is held; and such list shall state the names, addresses, and occupations of all the members therein mentioned, and the number of shares held by each of them, and shall contain a summary specifying the following particulars:—
(a.)
The amount of the capital of the company, and the number of shares into which it is divided;
(b.)
The number of shares taken, from the commencement of the company up to the date of the summary, distinguishing between the shares issued for cash and those issued otherwise than for cash or only partly for cash;
(c.)
The amount of calls made on each share;
(d.)
The total amount of calls received;
(e.)
The total amount of calls unpaid;
(f.)
The total amount of shares forfeited;
(g.)
The names, addresses, and occupations of the persons who have ceased to be members since the last list was made, and the number of shares held by each of them;
(h.)
The total amount of debt due from the company in respect of all mortgages required to be registered under this Act; and
(i.)
The names and addresses and occupations of every person who is a director or manager of the company at the date of the summary.
(2.)
The above list and summary shall be contained in a separate part of the register, and shall be completed and signed by the manager or by the secretary of the company within seven days after the fourteenth day above mentioned, and a copy shall forthwith be forwarded to the Registrar.
Failing to forward list of members.
(3.)
Any company making default in forwarding such list of members or summary to the Registrar is liable to a fine not exceeding five pounds for every day during which such default continues, and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to a like fine.
102 List of directors to be kept and sent to Registrar.
1903, No. 53, sec. 102
(1.)
Every company not having a capital divided into shares shall keep at its registered office a register containing the names and addresses and the occupations of its directors and manager, and shall send to the Registrar a copy of such register, and shall from time to time notify to the Registrar the appointment of any new director or manager.
Fine on company not keeping or sending list of directors.
(2.)
If default is made in compliance with this section the company shall be liable to a tine not exceeding five pounds for every day during which such default continues, and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to a like fine.
103 No entry of trusts on register.
Ibid, sec. 103
No notice of any trust, expressed, implied, or constructive, shall be entered on the register or be receivable by the Registrar.
104 Inspection of register.
Ibid, sec. 104
(1.)
The register of members, commencing from the date of the registration of the company, shall be kept at the registered office of the company hereinafter mentioned.
(2.)
Such register, except when closed as hereinafter mentioned, shall during business hours (or during such time, not being less than two hours in each day, as the company in general meeting may appoint) be open to the inspection of any member gratis, and to the inspection of any other person on the payment of one shilling, or such"less sum as the company prescribes for each inspection.
(3.)
Every such member or other person shall be entitled to a copy of such register or any part thereof, or of such list or summary of members as is hereinbefore mentioned, on payment of sixpence for every hundred words required to be copied.
(4.)
If such inspection or copy is refused the company shall be liable for each refusal to a fine not exceeding five pounds, and a further fine not exceeding two pounds for every day during which such refusal continues; and every director and manager of the company who knowingly authorises or permits such refusal is liable to a like fine, and, in addition to the above fine, the Court may order the register to be forthwith produced for inspection.
105 Power to close register.
1903, No. 53, sec. 105
Any company may, upon giving notice by an advertisement in some newspaper circulating in the district in which the registered office of the company is situated, close the register of members for any time or times not exceeding in the whole thirty days in each year.
106 Remedy for error in register.
Ibid, sec. 106
(1.)
If the name of any person is without sufficient cause entered in or omitted from the register of members of any company, or if default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member of the company, the person or member aggrieved, or any member of the company, or the company itself, may apply to the Court for an order that the register be rectified.
(2.)
The Court may either refuse such application, with or without costs, or, if satisfied of the justice of the case, make an order for the rectification of the register, and direct the company to pay all the costs of such application, and any damages the party aggrieved has sustained.
107 Court may rectify register.
Ibid, sec. 107
In any proceeding under the last preceding section the Court may decide any question relating to the title of any party to such proceeding to have his name entered in or omitted from the register, whether such question arises between two or more members or alleged members, or between any members or alleged members and the company, and generally the Court may in any such proceeding decide any question relating to the rectification of the register:
Provided that the Court may direct an issue to be tried in which any question of law may be raised, and in such case any decision of the Court shall be subject to appeal in the manner authorised by any law or practice for the time being in force.
108 Notice of rectification to be given to Registrar.
Ibid, sec. 108
Where an order is made rectifying the register of members of a company required to send a list of its members to the Registrar, the Court snail by its order direct that due notice of such rectification be given to the Registrar.
109 Register to be evidence.
Ibid, sec. 109
The register of members shall be prima facie evidence of any matters by this Act directed or authorised to be inserted therein.
110 Insurance and other companies to publish statements as in Table B.
Ibid, sec. 110
(1.)
Every insurance company and every company that carries on the business of insurance in common with any other business shall, before it commences business, and once in every year during which it carries on business, make a statement in the form in Table B in the Second Schedule hereto, or as near thereto as circumstances admit; and a copy of such statement shall be put up in a conspicuous place in the registered office of the company, and in every branch office or place where the business of the company is carried on.
(2.)
If default is made in compliance with this section the company shall be liable to a fine not exceeding five pounds for every day during which such default continues, and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to a like fine.
(3.)
Every member and every creditor of any company mentioned in this section shall be entitled to a copy of the above-mentioned statement on payment of a sum not exceeding sixpence.
Branch Registers
111 Companies may keep branch registers.
1903, No. 53, sec. 111
(1.)
Any company incorporated in New Zealand may, if authorised so to do by any special Act of the General Assembly, or by its regulations, cause to be kept in any place within His Majesty’s dominions beyond New Zealand a branch register of any of its members who desire to have their names entered thereon.
Particulars to be entered thereon.
(2.)
The same particulars shall be entered on a branch register as are entered on the principal register kept at the principal office of the company in New Zealand.
112 Copies of entries in branch register to be entered on duplicates.
Ibid, sec. 112
A copy of every entry in a branch register shall be forthwith transmitted to the company’s principal office as aforesaid, and, on receipt thereof, shall be entered in a duplicate of the branch register, to be there kept for the purpose by the company.
113 Entries to be evidence.
Ibid, sec. 113
A branch register and the duplicate thereof shall for all purposes be deemed to be a part of the principal register, and shall be prima facie evidence of the particulars entered therein respectively.
114 Transactions to be registered in branch register only.
Ibid, sec. 114
No transaction with respect to any shares registered in a branch register shall during the continuance of such registration be entered in any other register of the company.
115 On discontinuance of branch register entries to be transferred.
Ibid, sec. 115
A company may, if duly authorised so to do, cease to keep any branch register, and thereupon all entries on that register shall be transferred to the principal register, or to some other branch register, at the option of the company.
116 Stamp duty.
Ibid, sec. 116
Any instrument of transfer of a share registered in a branch register shall be deemed to be a transfer of property situated out of New Zealand, and shall be exempt from New Zealand stamp duty.
117 Regulations for keeping branch registers.
Ibid, sec. 117
Subject to this Act, any company may by its regulations make such provision as it thinks fit respecting the keeping of branch registers.
118 As to existing branch registers.
Ibid, sec. 118
Where a company has heretofore kept a branch register at any place containing the same particulars as are contained in the principal register, such branch register shall be deemed to have been lawfully established and kept, and the transfers recorded therein to have been legally made; and the provisions of this Act shall hereafter apply and be complied with accordingly.
119 As to estate duty payable in New Zealand.
Ibid, sec. 119
Upon the death of a member registered in a branch register his share or other interest shall, so far as relates to any tax or duty payable to the Crown in respect of the estate of a deceased person in New Zealand, be deemed not to be part of his estate in New Zealand for or in respect of which probate or letters of administration is or are to be granted, if he died domiciled in any part of the United Kingdom; but, if he died domiciled elsewhere, then such share or interest shall be deemed to be part of such estate in like manner as if he were registered in the register of members kept at the principal office of the company and had been domiciled in New Zealand at the date of his death.
120 Transfer not to be registered until duty paid.
1903, No. 53, sec. 120
No company shall register any transfer or other transmission of any share or interest of any deceased member domiciled elsewhere than in the United Kingdom except on production of a certificate from the Minister of Stamp Duties that all duty payable in respect of such share or interest has been paid or provided for; and if any company fails to comply with this provision any such duty payable as aforesaid shall be deemed to be a debt due by the company to the Crown, and may be recovered accordingly.
Protection of Members
121 Restriction on alteration of terms of prospectus.
Ibid, sec. 121
A company shall not prior to the statutory meeting vary the terms of a contract referred to in the prospectus, except subject to the approval of the statutory meeting.
122 Power to alter regulations by special resolution.
Ibid, sec. 122
(1.)
Subject to the provisions of this Act and to the conditions contained in the memorandum of association, any company may in general meeting, from time to time, by passing a special resolution, alter all or any of the regulations of the company contained in the articles of association, or in Table A in the Second Schedule hereto, where such table is applicable to the company, or make new regulations to the exclusion of or in addition to all or any of the regulations of the company.
(2.)
Any regulations so made by special resolution shall be deemed to be regulations of the company and of the same validity as if they had been originally contained in the articles of association, and may in like manner be altered or modified by any subsequent special resolution.
123 Deed of sale open for inspection in certain cases.
Ibid, sec. 123
Where any land or other property or any rights are acquired by a company otherwise than for cash, the deed of sale or transfer, or a true copy thereof, shall at all times be kept at the registered office of the company, and shall there be open to the inspection of any shareholder free of charge during the usual business hours.
Protection of Creditors
124 Registered office of company.
Ibid, sec. 124
(1.)
Every company shall have a registered office, to which all communications and notices may be addressed.
(2.)
If any company carries on business without having such an office it shall be liable to a fine not exceeding five pounds for every day during which business is so carried on.
125 Notice of situation of registered office.
Ibid, sec. 125
(1.)
Notice of the situation of such registered office, and of any change therein, shall be given to the Registrar and recorded by him.
(2.)
Until such notice is given, the company shall be deemed not to have complied with the provisions of this Act with respect to having a registered office.
126 Publication of name by company.
1903, No. 53, sec. 126
(1.)
Every limited company, whether limited by shares or by guarantee, shall paint or affix its name, and shall keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in a conspicuous position, and in letters easily legible.
(2.)
It shall also have its name engraven in legible characters on its seal, and shall have its name mentioned in legible characters in all notices, advertisements, and other official publications issued by it, and in all bills of exchange, promissory notes, indorsements, cheques, and orders for money or goods purporting to be signed by it or on its behalf, and in all its bills of parcels, invoices, receipts, and letters of credit.
127 Fine on non-publication of name.
Ibid, sec. 127
If any such company does not paint or affix, and keep painted or affixed, its name in manner aforesaid, it shall be liable to a fine not exceeding five pounds for not so painting or affixing its name, and to a further fine not exceeding five pounds for every day during which such name is not so kept painted or affixed; and every director and manager of the company who knowingly and wilfully authorises or permits such default is liable to the like fine.
128 On omitting name from documents, &c.
Ibid, sec. 128
If any director, manager, or officer of such company, or any person on its behalf, uses or authorises the use of any seal, purporting to be a seal of the company, whereon its name is not so engraven as aforesaid, or issues or authorises the issue of any notice, advertisement, or other official publication of such company, or signs or authorises to be signed on behalf of such company any bill of exchange, promissory note, indorsement, cheque, or order for money or goods, or issues or authorises to be issued any bill of parcels, invoice, receipt, or letter of credit of the company wherein its name is not mentioned in manner aforesaid, he shall be liable to a fine not exceeding fifty pounds, and shall further be personally liable on any such bill of exchange, promissory note, cheque, or order for money or goods, unless the same is duly paid by the company.
129 Register of mortgages.
Ibid, sec. 129
(1.)
Every limited company shall keep a register of all mortgages and charges specifically affecting property of the company, and shall enter in such register in respect of each mortgage or charge a short description of the property mortgaged or charged, the amount of charge created, and the names of the mortgagees or persons entitled to such charge.
(2.)
If any property of the company is mortgaged or charged without such entry as aforesaid being made, every director, manager, or other officer of the company who knowingly and wilfully authorises or permits the omission of such entry shall be liable to a fine not exceeding fifty pounds.
(3.)
The register of mortgages required by this section shall be open to inspection by any creditor or member of the company at all reasonable times; and if such inspection is refused any officer of the company refusing the same, and every director and manager of the company authorising or knowingly and wilfully permitting such refusal, shall be liable to a fine not exceeding five pounds, and a further fine not exceeding two pounds for every day during which such refusal continues; and, in addition to the above penalty, the Court may order the register to be forthwith produced for inspection.
130 Mortgage not operative unless registered.
1903, No. 53, sec. 130
(1.)
Every mortgage as hereinafter defined given by any company, whether registered in or out of New Zealand, shall, so far as any security on the company’s assets or undertaking is thereby conferred, be void against the liquidator and any creditor of the company unless within twenty-one days after the execution of the instrument creating the mortgage the same is registered by lodging in the office of the Registrar a copy of the instrument creating the mortgage, accompanied by an affidavit of the execution of the instrument and verifying the copy as a true copy.
(2.)
In the case of a mortgage executed out of New Zealand by or on behalf of any company affecting or intending to affect assets in New Zealand, it shall be sufficient compliance with this section if the mortgage is registered within three months after the execution thereof; but any such mortgage registered more than twenty-one days after the execution thereof shall, as to assets in New Zealand, take effect only subject to any rights acquired prior to actual registration thereof.
(3.)
The Registrar shall keep with respect to each company a register-book, wherein he shall, on payment of the prescribed fee, enter with respect to every mortgage registered under this section the date of the mortgage, the amount secured by it, short particulars of the property mortgaged, and the names of the persons entitled to the charge; and such register and the documents entered therein shall be open to inspection by all persons on payment of a fee of one shilling.
(4.)
Where a series of debentures containing or constituting any mortgage, to the benefit of which the holders thereof are entitled pari passu, is created by a company, it shall be sufficient to lodge with the Registrar a copy of one debenture of the series, verified as aforesaid, and to enter on the register—
(a.)
The total amount secured by the whole series; and
(b.)
The dates of the resolutions creating the series, and of the covering deed (if any) by which the security is created or defined; and
(c.)
A general description of the property mortgaged; and
(d.)
The names of the trustees (if any) for the debenture-holders.
(5.)
Where more than one issue is made of debentures in the same series, the company may require the Registrar to enter in the register the date and amount of any particular issue; but an omission to do this shall not affect the validity of the debentures issued.
(6.)
The registration of a mortgage in pursuance of this section shall not be invalid merely by reason of any accidental or inadvertent omission or misstatement in the copy lodged as hereby required, provided that it discloses in substance the nature of the security, and that such omissions or misstatements are not of such a nature as to be likely to mislead or deceive any person to his prejudice.
(7.)
The Court, on being satisfied that the omission to register any mortgage, or that the omission or misstatement of any particular in any such copy as aforesaid, was accidental or due to inadvertence or some other sufficient cause, or is not of such a nature as to prejudice the position of creditors or members of the company, or that on other grounds it is just and equitable to grant relief, may, on the application of any person interested, and on such terms and conditions as it deems expedient, order that such omission or misstatement be rectified.
(8.)
The Registrar shall, if required, give a certificate under his hand of the registration of any mortgage or charge registered in pursuance of this section, stating the amount thereby secured; and such certificate shall be conclusive proof that the requirements of this section as to registration have been complied with.
(9.)
For every registration under this section (including the registration of a series of debentures) there shall be paid to the Registrar a fee of five shillings.
(10.)
If any director or manager of a company makes default in complying with any of the requirements of this section, he shall, without prejudice to any other liability he may incur thereby, be liable to a fine not exceeding fifty pounds.
(11.)
For the purposes of this section “mortgage”
means—
(a.)
A mortgage or charge for the purpose of securing any issue of debentures; or
(b.)
A mortgage or charge on uncalled capital of the company; or
(c.)
A mortgage or charge created or evidenced by an instrument that if executed by an individual would require registration as a bill of sale; or
(d.)
A floating charge on the undertaking or assets of the company.
(12.)
For the purposes of this and the next succeeding section “Registrar”
means the Registrar or Assistant Registrar, as the case may be, in the district wherein the company itself is registered, if it is registered in New Zealand, or, if it is registered out of New Zealand, then the Registrar at Wellington; and the office for registration of mortgages and charges shall be ascertained accordingly.
(13.)
In the case of mortgages or charges registered prior to the passing of this Act in the office of the Registrar at Wellington, or of the Assistant Registrar in any district, the validity of such registration shall not be affected by reason merely of the situation of the office, but the Registrar at Wellington shall cause all such registrations and the entries affecting the same to be transferred to the appropriate office under this Act, to the intent that in each office there may be a complete record of all registrations and entries.
131 Memorandum of satisfaction.
1903, No. 53, sec. 131
(1.)
The Registrar may, on evidence being given to his satisfaction that the debt for which any registered mortgage was given has been paid or satisfied, enter on the register a memorandum of satisfaction in respect of such mortgage.
(2.)
The Court, On application made to it for that purpose, and on being satisfied that the debt, claim, or liability for which any registered mortgage was given has been paid or satisfied, may order that a memorandum of satisfaction be entered on the register, and the Registrar shall enter the same accordingly.
132 Liability of members of company carrying on business with less than seven members.
1903, No. 53, sec. 132
If any company carries on business when the number of its members is less than seven, for a period of six mouths after the number has been so reduced, every person who is a member of such company during the time that it so carries on business after such period of six months, and is cognisant of the fact that it is so carrying on business with fewer than seven members, is severally liable for the payment of all the debts of the company contracted during such time, and may be sued for the same without the joinder in the action of any other member.
Audit of Accounts
133 Appointment of auditors.
Ibid, sec. 133
(1.)
Every company shall at each annual general meeting appoint an auditor or auditors, to hold office until the next annual general meeting.
(2.)
If no such appointment is made at the annual general meeting, the Minister of Internal Affairs may, on the application of any member of the company, appoint an auditor of the company for the current year, and fix the remuneration to be paid to him by the company for his services.
(3.)
A director or officer of the company shall not be capable of being appointed auditor of the company.
(4.)
The first auditors of the company may be appointed by the directors at any time before the first annual general meeting, and if so appointed shall hold office until that meeting, unless previously removed by a resolution of the members in general meeting, in which case the members at such meeting may appoint auditors.
(5.)
The directors of a company may fill any casual vacancy in the office of auditor, but while any such vacancy continues the surviving or continuing auditor or auditors (if any) may act.
134 Remuneration of auditors.
Ibid, sec. 134
The remuneration of the auditors shall be fixed by the company in general meeting, except that the remuneration of any auditors appointed before the statutory meeting, or to fill any casual vacancy, may be fixed by the directors.
135 Rights and duties of auditors.
Ibid, sec. 135
(1.)
Every auditor of a company shall have a right of access at all times to the books and accounts and vouchers of the company, and shall be entitled to require from the directors and officers of the company such information and explanation as may be necessary for the performance of his duties.
(2.)
The auditors shall sign a certificate at the foot of the balance-sheet stating whether or not all their requirements as auditors have been complied with, and shall make a report to the members on the accounts examined by them and on every balance-sheet laid before the company in general meeting during their tenure of office.
(3.)
In every such report the auditors shall state whether, in their opinion, the balance-sheet referred to in the report is properly drawn up so as to exhibit a true and correct view of the state of the company’s affairs as shown by the books of the company; and such report shall be read before the company in general meeting.
136 Where Audit Office is appointed.
Ibid, sec. 136
In any case where the Audit Office is appointed by the Minister of Internal Affairs under section one hundred and thirty-three hereof to be the auditor of a company the Audit Office shall have, in respect of such company, its accounts, and all persons dealing with its moneys, the same powers as if the company were a local authority within the meaning of “The Public Revenues Act, 1908.”
Special Audit
137 Audit of accounts of companies
1903, No. 53, sec. 137
The Governor, from time to time, on the application—
(a.)
Of a majority in number representing two-thirds in value of the shareholders of any limited company or company limited by guarantee; or
(b.)
Of a majority in number of the shareholders of any unlimited company,—
shall order the accounts of such company to be audited by the Audit Office; and, if so required by the applicants, shall order a valuation to be made of the assets of the company.
138 Powers of Audit Office.
Ibid, sec. 138
(1.)
Where any such order has been made it shall be the duty of all officers and agents of the company to produce for the examination of the Audit officer appointed to inspect the accounts of any company all books and documents in their custody or power.
(2.)
Any such Audit officer may examine on oath the officers and agents of the company as to its business, and may administer such oath accordingly.
(3.)
Every officer or agent of the company who refuses to produce any such book or document, or to answer any question relating to the affairs of the company, is liable for each offence to a fine not exceeding fifty pounds, or to imprisonment for a term not exceeding three months.
(4.)
Upon the conclusion of the examination the Audit Office shall report to the directors of the company, who shall place such report before the shareholders of the company at its next meeting, and in case the directors fail so to do they shall severally be liable to a fine not exceeding fifty pounds, to be recovered in a summary manner on the prosecution of any shareholder of the company.
139 Expenses of audit to be paid by company.
Ibid, sec. 139
(1.)
The costs and expenses of any such audit, or of any such audit and valuation, as aforesaid shall be according to the scale fixed by the Governor in Council for the audit of the accounts of local bodies.
(2.)
Such costs and expenses shall be borne by the company, and shall be paid out of its assets into the Public Account and form part of the Consolidated Fund.
(3.)
If the company fails to pay such costs and expenses the Audit Office shall cause the same to be recovered as a debt due to the Crown in any Court of competent jurisdiction.
Inspection of Affairs of Company
140 Inquiry into affairs of company by inspectors appointed by Supreme Court.
Ibid, sec. 140
The Court may appoint one or more competent inspectors to inquire into the affairs of any company, and to report thereon in such manner as the Court directs, upon application as follows, that is to say:—
(a.)
In the case of a company having a capital divided into shares, upon the application of members holding not less than one-fifth part of the whole shares of the company for the time being issued.
(b.)
In the case of a company not having a capital divided into shares, upon the application of members being in number not less than one-fifth of the whole number of persons for the time being entered in the register of the company as members.
141 Application or inquiry to be supported by evidence.
1903, No. 53, sec. 141
The application shall be supported by such evidence as the Court requires, for the purpose of showing that the applicants have good reason for requiring such inquiry to be made, and that they are not actuated by malicious motives in instituting the same.
142 Security for costs may be required.
Ibid, sec. 142
The Court may also require the applicants to give security for payment of the costs of the inquiry before appointing an inspector.
143 Inspection of books and examination of officers.
Ibid, sec. 143
(1.)
It shall be the duty of all officers and agents of the company to produce for examination by the inspector all books and documents in their custody or power.
(2.)
An inspector may examine upon oath the officers and agents of the company in relation to its business, and may administer such oath accordingly.
(3.)
If any officer or agent refuses to produce any such book or document, or to answer any question relating to the affairs of the company, he shall be liable to a fine not exceeding five pounds in respect of each offence.
Report of result of inquiry.
(4.)
Upon the conclusion of the inquiry the inspector shall report his opinion to the Court.
(5.)
Such report shall be written or printed, as the Court directs.
(6.)
A copy shall be forwarded by the Registrar of the Court to the registered office of the company, and a further copy shall, at the request of the members upon whose application the inquiry was made, be delivered to them or to any one or more of them for the use of all such members.
(7.)
All expenses of and incidental to any such inquiry as aforesaid shall be defrayed by the members upon whose application the inquiry was made, unless the Court directs the same to be paid out of the assets of the company, which it is hereby authorised to do.
144 Power of company to appoint inspectors.
Ibid, sec. 144
(1.)
Any company may by special resolution appoint one or more inspectors for the purpose of examining into the affairs of the company.
(2.)
The inspector so appointed shall have the same powers and perform the same duties as inspectors appointed by the Court, save only that instead of making his report to the Court he shall make the same in such manner and to such persons as the company in general meeting directs; and the officers and agents of the company shall incur the same penalties in case of refusal to produce any hook or document hereby required to be produced to such inspector, or to answer any question, as they would incur if such inspector had been appointed by the Court.
145 Report of inspector to be evidence.
Ibid, sec. 145
A copy of the report of an inspector, authenticated by the seal of the company into whose affairs he has made inquiry, shall be admissible in any legal proceeding as evidence of the opinion of the inspector as to any matter contained in such report.
Contracts
146 Contracts on behalf of companies, how to be made.
1903, No. 53, sec. 146
Any contract that, if made between private persons,—
(a.)
Must be by deed, shall, when made by a company, be in writing under the common seal of the company:
(b.)
Must be in writing signed by the parties to be charged therewith, may, when made by a company, be in writing signed by any person acting on behalf of and under the express or implied authority of the company:
(c.)
Might be made verbally without writing, may, when made by a company, be made verbally without writing by any person acting on behalf of and under the express or implied authority of the company.
147 How to be varied.
Ibid, sec. 147
All contracts made according to the provisions herein contained may in the same way be varied or discharged, and shall be effectual in law, and shall be binding on the company and its successors, and all other parties thereto, their executors or administrators, as the case may be.
148 Promissory notes and bills of exchange.
Ibid, sec. 148
A promissory note or bill of exchange shall be deemed to have been made, accepted, or indorsed on behalf of any company if made, accepted, or indorsed in the name of the company by any person acting under the express or implied authority of the company, or if made, accepted, or indorsed by or on behalf of or on account of the company by any person acting under the authority of the company.
149 Execution of instruments abroad.
Ibid, sec 149
Any company may, by instrument in writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney to execute instruments on its behalf in any place in or beyond New Zealand; and every instrument signed by such attorney on behalf of the company shall be binding on the company, and have the same effect as if it were a contract or engagement of the company made or executed as hereinbefore provided.
150 Execution of instruments under seal or by attorney.
Ibid, sec. 150
(1.)
A company, whether incorporated in or out of New Zealand, may by deed under its common seal, or under its official seal for use in New Zealand, appoint an attorney to act for the company in or out of New Zealand.
(2.)
Any deed, contract, or instrument evidencing or carrying into effect any matter within the powers of the company, and whether executed before or after the passing of this Act,—
(a.)
To which the common or official seal of the company is affixed; or
(b.)
Which is executed in the name of the company by any person who has been appointed the attorney of the company, and has at the time of such execution made a statutory declaration that he is the attorney of the company acting under a power of attorney specified by him, that he has executed such deed, contract, or instrument under the powers thereby conferred, and that he has not at the time of such declaration received any notice of the revocation of such power of attorney by the dissolution of the company or otherwise,—
shall be deemed to have been duly executed by the company, and shall bind the company; and all persons dealing in good faith without notice of any irregularity shall be entitled to presume the regular and proper execution of such deed, contract, or instrument and to act accordingly.
Notices
151 Service of notices on company.
1903, No. 53, sec. 151
Any summons, notice, order, or other document required to be served upon the company may be served by leaving the same at the company’s registered office, or by sending it through the post in a prepaid and registered letter addressed to the company at that office.
152 Service of notices by post.
Ibid, sec. 152
Any document to be served by post on the company shall be posted in such time as to admit of its being delivered in the due course of delivery within the period (if any) prescribed for the service thereof; and in proving service of such document it shall be sufficient to prove that such document was properly directed, and that it was put as a prepaid and registered letter into the post-office.
153 Authentication of notices by company.
Ibid, sec. 153
Any summons, notice, order, or proceeding requiring authentication by the company may be signed by any director, secretary, or other authorised officer of the company, and need not be under the common seal of the company.
Minutes of Meetings
154 Evidence of proceedings at meetings.
Ibid, sec. 154
(1.)
Every company shall cause minutes of all resolutions and proceedings of general meetings of the company and of the directors to be duly entered in books to be from time to time provided for the purpose.
(2.)
Any such minute as aforesaid, if purporting to be signed by the chairman of the meeting at which such resolutions were passed or proceedings taken, or by the chairman of the next succeeding meeting, shall be received as evidence in all legal proceedings.
(3.)
Until the contrary is proved, every general meeting of the company, or meeting of directors, shall be deemed to be duly held and convened, and all resolutions or proceedings passed or taken thereat, or recorded in such minutes to be duly passed and taken, and all appointments of directors or liquidators shall be deemed to be valid; and all acts done by such directors or liquidators shall be valid, notwithstanding any defect afterwards discovered in their appointments or qualifications.
Legal Proceedings
155 Security for costs to be given by plaintiff company in certain cases.
Ibid, sec. 155
Where a limited company is plaintiff in any action or other legal proceeding, and there appears by any credible testimony to be reason to believe that if the defendant is successful in his defence the assets of the company will be insufficient to pay his costs, any Court or Judge having jurisdiction in the matter may require sufficient security to be given for such costs, and may stay all proceedings until such security is given.
156 Allegations in actions against members.
1903, No. 53, sec. 156
In any action brought by a company against any member to recover any call or other moneys due from him in his character of member it shall not be necessary to set forth the special matter, but it shall be sufficient to allege that the defendant is a member of the company and is indebted to the company in respect of a call made, or other moneys due, whereby an action has accrued to the company.
157 Power of assignee to sue and be sued.
Ibid, sec. 157
Any person to whom anything in action belonging to a company is assigned in pursuance of this Act may sue or be sued in respect thereof in his own name.
158 Recovery of fines.
Ibid, sec. 158 1889, No. 14, sec. 16
All fines under this Act or any Part thereof may be recovered in a summary way before any two or more Justices in the manner provided in “The Justices of the Peace Act, 1908.”
Arbitration
159 Companies may refer matters to arbitration.
1903, No. 53, sec. 159
Any company may from time to time agree to refer and may refer to arbitration, in accordance with the provisions of “The Arbitration Act, 1908,”
any existing or future difference, question, or other matter in dispute between itself and any other company, association, or person, and the parties to the arbitration may delegate to the person or persons to whom the reference is made any power to settle any terms, or to determine any matter capable of being lawfully settled or determined by the parties themselves, or by the directors of such companies.
Change of Name of Company
160 Power of companies to change name.
Ibid, sec. 160
(1.)
Any company, with the sanction of a special resolution of the company and with the approval of the Court, may change its name.
(2.)
Before any such change is made the Court may cause such inquiries to be made as it thinks fit, and may direct such notices to be given either to particular persons or generally, in such manner as it deems necessary, and may summon before it any person interested or claiming to be interested in the matter, and, after hearing all such persons as it deems to be so interested, may make an order changing the name of such company, either upon or without conditions, or may decline to make such order.
(3.)
Upon the order of the Court being made, the Registrar shall enter the new name on the register in the place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case.
(4.)
Such alteration of name shall not affect any rights or obligations of the company, or render defective any legal proceedings instituted by or against the company; and any legal proceedings may be continued or commenced against the company by its new name that might have been continued or commenced against the company by its former name.
Change of Constitution and Objects of Company
161 Deed of settlement defined.
Ibid, sec. 161
In the next two succeeding sections “deed of settlement”
includes any instrument constituting or regulating the company, not being an Act of the General Assembly, Royal charter, or letters patent.
162 Company may alter its constitution, subject to confirmation by Court.
1903, No. 53, sec. 162
(1.)
A company may by special resolution alter the provisions of its memorandum of association or deed of settlement relating to the objects of the company, so far as may be required for any of the purposes hereinafter specified, or alter the form of its constitution by substituting a memorandum and articles of association for a deed of settlement, either with or without any such alteration as aforesaid relating to the objects of the company, but in no case shall any such alteration take effect until confirmed by the Court on petition.
Coart to be satisfied as to certain points.
(2.)
Before confirming any such alteration the Court must be satisfied—
(a.)
That sufficient notice has been given to every holder of debentures of the company, and any persons or class of persons whose interests will, in the opinion of the Court, be affected by the alteration; and
(b.)
That with respect to every creditor who in the opinion of the Court is entitled to object, and who signifies his objection in manner directed by the Court, either his consent to the alteration has been obtained, or his debt or claim has been discharged or has determined, or has been secured to the satisfaction of the Court:
Provided that the Court may, in the case of any person or class of persons, for special reasons, dispense with the notice required by this subsection.
Order may be made on terms.
(3.)
An order confirming any such alteration may be made on such terms and subject to such conditions as to costs and otherwise as the Court deems fit.
Court to exercise discretion as to interests of members and of creditors.
(4.)
The Court shall in exercising its discretion under this Act have regard to the rights and interests of the members of the company, or of any class of those members, as well as to the rights and interests of the creditors, and may, if it thinks fit, adjourn the proceedings in order that an arrangement may be made to its satisfaction for the purchase of the interests of dissentient members, and may give such directions and make such orders as it thinks expedient for the purpose of facilitating any such arrangement or carrying the same into effect:
Provided that it shall not be lawful to expend any part of the capital of the company in any such purchase.
Court may confirm any proposed alteration in certain cases.
(5.)
The Court may confirm, either wholly or in part, any such alteration as aforesaid relating to the objects of the company if it appears that the alteration is required in order to enable the company—
(c.)
To carry on its business more economically or more efficiently; or
(d.)
To attain its main purpose by new or improved means; or
(e.)
To enlarge or change the local area of its operations; or
(f.)
To carry on any business or businesses that under existing circumstances may conveniently or advantageously be combined with the business of the company; or
(g.)
To restrict or abandon any of the objects specified in the memorandum of association or deed of settlement.
163 Registration of order, and consequences thereof.
1903, No. 53, sec. 163
(1.)
Where a company has altered the provisions of its memorandum of association or deed of settlement relating to the objects of the company, or has altered the form of its constitution by substituting a memorandum and articles of association for a deed of settlement, and such alteration has been confirmed by the Court, an office copy of the order continuing such alteration, together with a printed copy of the memorandum of association or deed of settlement so altered, or together with a printed copy of the substituted memorandum and articles of association, as the case may be, shall be delivered by the company to the Registrar within fifteen days from the date of the order.
(2.)
The Registrar shall register such document, and certify under his hand the registration thereof, and his certificate shall be conclusive evidence that all the requirements of this Act with respect to such alteration and the confirmation thereof have been complied with, and thenceforth (but subject to the provisions of this Act) the memorandum or deed of settlement so altered shall be the memorandum of association or deed of settlement of the company; or, as the case may be, such substituted memorandum and articles of association shall apply to the company in the same manner as if the company were a company registered under Part II of this Act with such memorandum and articles of association, and the company’s deed of settlement shall cease to apply to the company.
(3.)
If a company makes default in delivering to the Registrar any document required by this section to be delivered to him, the company shall be liable to a fine not exceeding ten pounds for every day during which it is in default.
Part V Private Companies
164 Private companies may be registered as such.
Ibid, sec. 164
Notwithstanding anything in this Act, it shall be lawful for any number of persons not exceeding twenty-five associated for any lawful purpose, by subscribing their names to a memorandum of association as hereinafter specified, and otherwise complying with the requirements of this Act in respect of registration, to form a private company having its capital divided into shaves, and having the liability of its members limited by shares, or by shares and by guarantee.
165 Certain provisions of the Act to apply.
Ibid, sec. 165
Excepting as mentioned in this Part of this Act, all the provisions of this Act applicable to companies whose liability is limited by shares or by guarantee shall apply to private companies, according to the nature thereof.
166 The memorandum of association.
Ibid, sec. 166
(1.)
Where a company is formed under this Part of this Act the memorandum of association shall state—
(a.)
The name of the proposed company, with the addition of the word “limited”
as the last word of such name:
(b.)
That the company is a private company:
(c.)
The objects for which the company is proposed to be established:
(d.)
That the liability of the members is limited:
(e.)
The amount of share capital with which the company proposes to be registered.
(2.)
All the share capital with which a private company is registered shall be subscribed for in the memorandum of association.
(3.)
The memorandum of association shall, in case the liability of the members is limited by shares and by guarantee, contain a declaration that each member undertakes to contribute to the assets of the company (in addition to any amount which he may be liable to contribute in respect of his shares), in the event of the same being wound up during the time that he is a member or within one year afterwards, such sum as may be required, not exceeding an amount specified in respect of each member in the memorandum of association, for payment of the debts and liabilities of the company contracted before the time at which he ceases to be a member, and of the costs, charges, and expenses of winding up the company, and for the adjustment of the rights of contributories among themselves.
167 Certificate of incorporation.
1903, No. 53, sec. 167
Every certificate of incorporation issued in respect of a private company shall state expressly that it is so issued.
168 Certain provisions of the Act not to apply.
Ibid, sec. 168
(1.)
It shall not be obligatory on a private company to register its articles of association (if any) or its regulations, nor to forward to the Registrar the list and summary as required by subsection two of section one hundred and one hereof.
Change of members to be registered.
(2.)
Every private company shall, within fourteen days after any alteration is made in its register of members, forward to the Registrar a complete list of such members, showing their names, addresses, and occupations (if any), and the number of shares held by each, and such list shall be signed by the manager or secretary; and any default in compliance with this subsection shall be deemed to be a default in compliance with section one hundred and one hereof, and shall be punishable accordingly.
Register of members.
(3.)
Every private company shall permit any creditor or member thereof to inspect at all reasonable times its register of members and directors and the summary required by section one hundred and one hereof. Any company committing a breach of this subsection shall be liable to a fine not exceeding one hundred pounds, unless (in the case of a creditor) it pays the debt due to such creditor.
(4.)
The following provisions of this Act do not apply to private companies, namely:—
Section thirty-five, as to transfers of shares in respect of which calls are unpaid:
Sections seventy to seventy-three, as to directors’ qualifications, payment of calls, and directors’ fees:
Section eighty-seven, as to the statutory meeting:
Sections ninety-five to ninety-seven, relating to allotment of shares and returns of allotment and filing contracts as to fully or partly paid-up shares:
Section ninety-nine, relating to commencement of business: Section one hundred and thirty-two, as to carrying on business with fewer than seven members.
(5.)
It shall not be lawful for a private company or for the directors thereof to issue any prospectus inviting subscriptions for shares in its capital.
(6.)
Anything that may be done by a company registered under Part II hereof by resolution, special resolution, or extraordinary resolution may be done by a private company by an entry in its minute-book signed by at least three-fourths of the members, holding in the aggregate at least three-fourths of the shares in the capital of the company, and the company shall forthwith on any such entry being signed forward to every member who has not signed the same a copy thereof, including the signatures to such entry.
169 Private company carrying on business with more than twenty-five members.
1903, No. 53, sec. 169
(1.)
If any private company carries on business with a greater number of members than twenty-five, every member of such company shall be liable to a fine of five pounds for every day during which it so carries on business.
Or less than two.
(2.)
If any private company carries on business for a period of six months when the number of its members shall be reduced to one only, such member shall be personally liable for the payment of the whole debts of the company contracted during the time it so carries on business, and may be sued for the same in any Court of competent jurisdiction.
170 Winding-up of private companies.
Ibid, sec. 170
(1.)
If it appears to the Court on the winding-up of a private company that any member of such company acting in its affairs has, prior to such winding-up, knowingly done or omitted any act, or been party or privy to any act or omission, which, if such member were a sole trader and had been adjudged bankrupt, would render him liable to the penalty imposed by section one hundred and thirty-eight of “The Bankruptcy Act, 1908,”
the Court may, if it finds that such act or omission has in fact prejudiced the creditors or any creditor of the company, order any such member to pay to the liquidator of the company such sura in addition to the amount for which he may be liable under the constitution of the company as to the Court may seem just.
(2.)
The Court may by the same or any subsequent order direct that such sum or any part thereof shall be applied in payment of the claims of any particular creditor or creditors of the company, on such terms (if any) as the Court may direct.
(3.)
The powers conferred by this section shall be in addition to any other powers which the Court may have on winding up.
171 Application of Part to existing companies.
Ibid, sec. 171
(1.)
Any company incorporated prior to the coining into operation of this Act, or under Part II of this Act, the number of whose members is or may at any time hereafter be or be reduced to twenty-five or any less number, may be registered under this Part of this Act on lodging with the Registrar an application, signed by all the members of the company, stating that—
(a.)
The persons therein named are the only members of the company:
(b.)
Such members hold shares to the full amount of the nominal capital of the company:
(c.)
They have made a fair valuation of the company’s assets and liabilities, and that the company is solvent:
(d.)
The members of the company desire that the company be re-registered under this Part of this Act.
(2.)
Such application shall be verified by the statutory declaration of every member of the company, and the company shall lodge with the application the company’s certificate of incorporation, and a certificate by two auditors, made not more than three months prior to the date of the application, that they have investigated the affairs of the company, and that the company is at the date of such certificate a solvent company.
(3.)
The Registrar shall, on payment of a fee of five pounds, enter on the memorandum of association of such company a minute that the company is re-registered under this Part of this Act as a private company, and shall enter a similar minute on the certificate of incorporation of the company, and shall sign each such minute and state therein the date thereof, and thereupon the same consequences shall follow as to the rights, powers, and duties of the company as if the same had originally been incorporated under this Part of this Act; and the said minutes shall be conclusive evidence of the same matters as a certificate of incorporation; but such re-registration shall not alter the identity of the corporation, or affect the rights of the company or of any person against the company.
(4.)
The Registrar shall make all such entries in the Register as shall be necessary to give effect to and evidence such re-registration as aforesaid.
172 Private company may be registered as a public company.
1903, No. 53, sec. 172
(1.)
Any company registered under this Part of this Act, whether originally incorporated hereunder or not, may be re-registered as a company under Part II hereof on lodging with the Registrar an application, signed by all the members of such company, stating that the persons therein named are the only members of such company, and that it is desired to register the company as a company limited by shares or limited by guarantee under Part II hereof, as the case may be.
(2.)
Such application shall be verified by the statutory declaration of every member of the company, and the company shall lodge with the said application its certificate of incorporation and a copy of its regulations signed by all the members of the company.
(3.)
The Registrar shall, on payment of the fee of five pounds, enter on the memorandum of association of such company a minute that the company is re-registered under Part II hereof, and shall enter a similar minute on the certificate of incorporation of the company, and shall sign each such minute and state therein the date thereof, and thereupon the same consequences shall follow as to the rights, powers, and duties of the company under this Act as on incorporation under Part II of this Act; and the said minutes shall be conclusive evidence of the same matters as a certificate of incorporation; but such re-registration shall not alter the identity of the corporation or affect the rights of the company or of any person against the company.
(4.)
The Registrar shall make all such entries in the register as shall be necessary to give effect to and evidence such re-registration as aforesaid.
(5.)
Any company re-registered under this section shall forthwith on such re-registration forward to the Registrar the list and summary required by section one hundred and one hereof to be forwarded to the Registrar, and a default in compliance with this requirement shall be a default in compliance with section one hundred and one hereof, and be punishable accordingly.
Part VI Winding-up of Companies
173 Contributory defined.
1903, No. 53, sec. 173
The term “contributory”
means every person liable to contribute to the assets of a company in the event of the same being wound up; and also, in all proceedings for determining the persons who are to be deemed contributories, and in all proceedings prior to the final determination of such persons, includes any person alleged to be a contributory.
174 Nature of liability of contributory.
Ibid, sec. 174
The liability of any person to contribute to the assets of a company in the event of the same being wound up shall be deemed to create a debt accruing due from such person at the time when his liability commenced, but payable at the time or respective times when calls are made as hereinafter mentioned for enforcing such liability; and it shall be lawful, in the case of the bankruptcy of any contributory, to prove against his estate the estimated amount of his liability to future calls as well as his ascertained liability for calls already made.
175 Contributories in case of death.
Ibid, sec. 175
If a contributory dies, either before or after he is placed on the list of contributories hereinafter mentioned, his executors or administrators shall be liable in due course of administration to contribute to the assets of the company in discharge of his liability, and shall be deemed to be contributories accordingly.
176 Contributories in case of bankruptcy.
Ibid, sec. 176
If a contributory becomes bankrupt, either before or after he is placed on the list of contributories, the assignee of his estate shall be deemed to represent him for all the purposes of the winding-up, and to be a contributory accordingly, and may be called upon to admit to proof against the estate of such bankrupt, or otherwise allow to be paid out of his assets in due course of law any moneys due from such bankrupt in respect to his liability to contribute to the assets of the company being wound up.
Winding-up by the Court
177 When company may be wound up by Court.
Ibid, sec. 177
A company may be wound up by the Court under the following circumstances, that is to say:—
(a.)
If the company passes a special resolution requiring the company to be wound up by the Court; or
(b.)
If the company does not commence its business within a year from its incorporation, or suspends its business for the space of a whole year; or
(c.)
If the members are reduced in number to less than seven; or
(d.)
If the company is unable to pay its debts; or
(e.)
If the Court is of opinion that it is just and equitable that the company should be wound up.
178 When company deemed unable to pay its debts.
Ibid, sec. 178
A company shall be deemed to be unable to pay its debts—
(a.)
Whenever a creditor, by assignment or otherwise, to whom the company is indebted at law or in equity in a sum exceeding fifty pounds then due has served on the company, by leaving the same at its registered office, a demand under his hand requiring the company to pay the sum so due, and the company for the space of three weeks succeeding the service of such demand has failed to pay such sum, or to secure or compound for the same to the reasonable satisfaction of the creditor:
(b.)
Whenever execution or other process issued on a judgment, decree, or order obtained in any Court in favour of any creditor, in any proceeding instituted by such creditor against the company, is returned unsatisfied in whole or in part:
(c.)
Whenever it is proved to the satisfaction of the Court that the company is unable to pay its debts.
179 Application for winding-up to be made by petition.
1903. No. 53, sec. 179
(1.)
Any application to the Court for the winding-up of a company shall be by petition presented by the company, or by any one or more creditors or contributories of the company, or by all or any of the above parties, together or separately; and every order made on any such petition shall operate in favour of all the creditors and all the contributories of the company in the same manner as if made upon the joint petition of a creditor and a contributory.
(2.)
For the purposes of this section “creditor”
includes every person who, if the company were ordered to be wound up, would be entitled to prove against the company in respect of any debt or claim, but nothing herein shall entitle a person to present a petition under paragraph (a) or (b) of the last preceding section in respect of a debt not due and presently payable.
(3.)
The holder of a share warrant to bearer, or of any stock, may present a petition as if he were a contributory whose shares were fully paid up, and shall have all the rights of such a contributory.
180 When contributory not entitled to present petition.
Ibid, sec. 180
A contributory of a company shall not be entitled to present a petition for winding up such company unless the members of the company are reduced in number to less than seven, or unless the shares in respect of which he is a contributory, or some of them, either were originally allotted to him, or have been held by him and registered in his name for a period of at least six months during the eighteen months previous to the commencement of the winding-up, or have devolved upon him through the death of a former holder.
181 Commencement of winding-up by Court.
Ibid, sec. 181
A winding-up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding-up.
182 Provisional liquidator.
Ibid, sec. 182
The Court may at any time after the presentation of a petition for winding up a company appoint a provisional liquidator of the assets of the company, and may limit and restrict his powers by the order appointing him, or by any subsequent order.
183 Order of Court on hearing petition.
Ibid, sec. 183
(1.)
Upon hearing the petition the Court may either grant or dismiss the same, with or without costs, or adjourn the hearing conditionally or unconditionally, and make any interim order or any other order that it deems just.
(2.)
A copy of every such order shall forthwith be forwarded by the company to the Registrar, who shall make a minute thereof in his books relating to the company.
184 Power of Court to stay proceedings.
Ibid, sec. 184
The Court may, at any time after an order has been made for winding up a company, upon the application by motion of the liquidator or any creditor or contributory of the company, and upon proof to the satisfaction of the Court that all proceedings in relation to such winding-tip ought to be stayed, make an order staying the same, either altogether or for a limited time, on such terms and subject to such conditions as it deems fit.
185 Court may regard wishes of creditors or contributories.
1903, No. 53, sec. 185
(1.)
The Court may, as to all the matters relating to the winding-up, have regard to the wishes of the creditors or contributories as proved to it by any sufficient evidence, and may direct meetings of the creditors or contributories to be summoned, held, and conducted in such manner as it thinks fit for the purpose of ascertaining their wishes, and may appoint a person to act as chairman at any such meeting, and to report the result of such meeting to the Court.
(2.)
In the case of creditors regard is to be had to the amount or value of the debts due to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations of the company.
Official Liquidators
186 Official Assignee to be Official Liquidator of company.
Ibid, sec. 186
Where a company is ordered to be wound up by the Court, the Official Assignee under “The Bankruptcy Act, 1908,”
of the district wherein the company’s principal office is situate shall, by force of this Act, and without the necessity of any appointment or order, be the sole liquidator (under the style of “the Official Liquidator”
) of the company.
187 Court may appoint Supervisors to assist in winding-up.
Ibid, sec. 187
In any such case the Court may, on the application of any creditor or contributory of the company, appoint any number of fit persons (not exceeding three) to be Supervisors for the purpose of assisting and advising the Official Liquidator in the winding-up of the company.
188 Vacancy in office of Supervisor.
Ibid, sec. 188
Any Supervisor may resign by notice in writing to the Official Liquidator, or may be removed by the Court on the application of the Official Liquidator or of any creditor or contributory on due cause shown, and any vacancy occasioned thereby or by the death of a Supervisor may be filled up by the Court.
189 Settlement of questions between Official Liquidator and Supervisors.
Ibid, sec. 189
The Official Liquidator shall have regard to the views and advice of the Supervisors; and, if any question or difference arises between him and them or any of them, the Court, on the application of the Official Liquidator or of any Supervisor, may give directions in the matter.
190 Official Liquidator may appoint solicitor.
Ibid, sec. 190
With the consent of the Supervisors (if any) the Official Liquidator may from time to time employ a solicitor to assist him in the performance of his duties.
191 Remuneration to be paid out of assets of company.
Ibid, sec. 191
(1.)
The Official Liquidator and each Supervisor shall be entitled to such remuneration out of the assets of the company us is fixed by the Court.
(2.)
Such remuneration shall be a first charge on the assets of the company, and, in the case of the Official Assignee, shall be paid into the Public Account and form part of the Consolidated Fund.
192 Style and duties of Official Liquidator.
Ibid, sec. 192
The Official Liquidator shall be described by the style of the Official Liquidator of the particular company in respect of which he is appointed, and not by his individual name; he shall take into his custody or under his control all the property, effects, and things in action to which the company is or appears to be entitled, and shall perform such duties in reference to the winding-up of the company as are imposed by the Court.
193 Deputy Official Liquidator.
1903, No. 53, sec. 193
(1.)
On the application of the Official Liquidator the Court may, in the course of the winding-up of a company, appoint the Deputy Assignee or other fit person to act in lieu of the Official Liquidator, under the style of the “Deputy Official Liquidator”
; and in such case, and for the purposes of such winding-up, the person so appointed shall have all the powers and functions of the Official Liquidator.
(2.)
In every case where the Deputy Official Liquidator acts in the winding-up of a company he shall be entitled to receive, out of moneys to be appropriated by Parliament, such remuneration as the Governor directs, in no case exceeding the amount paid into the Public Account in respect of the Official Liquidator’s remuneration for such winding-up.
194 Official Liquidator’s accounts and audit.
Ibid, sec. 194
The provisions of section one hundred and forty-nine of “The Bankruptcy Act, 1908,”
relating to accounts and audit, shall, mutatis mutandis, apply to the Official Assignee as Official Liquidator.
195 Powers of Official Liquidator.
Ibid, sec. 195
The Official Liquidator shall have power, with the sanction of the Court, to do the following things:—
(a.)
Bring or defend any action, prosecution, or other proceeding, civil or criminal, in the name and on behalf of the company:
(b.)
Carry on the business of the company so far as is necessary for the beneficial winding-up of the same:
(c.)
Sell the real and personal property, effects, and things in action of the company by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels:
(d.)
Do all acts and execute in the name and on behalf of the company all deeds, receipts, and other documents, and for that purpose use when necessary the company’s seal:
(e.)
Prove, rank, claim, and draw a dividend in the matter of the bankruptcy of any contributory for any balance against the estate of such contributory, and take and receive dividends in respect of such balance as a separate debt due from such bankrupt, and rateably with the other separate creditors:
(f.)
Draw, accept, make, and indorse any bill of exchange or promissory note in the name and on behalf of the company; and the drawing, accepting, making, or indorsing of every such bill of exchange or promissory note on behalf of the company shall render the company liable thereon in like manner as if such bill or note bad been drawn, accepted, made, or indorsed by or on behalf of such company in the course of carrying on the business thereof:
(g.)
Raise from time to time, upon the security of the assets of the company, any requisite sum or sums of money:
(h.)
Take out, if necessary, in his official name, letters of administration to any deceased contributory, and do in the like name any other act necessary for obtaining payment of any moneys due from a contributory or from his estate that cannot be conveniently done in the name of the company; and in all cases where he takes out letters of administration, or otherwise uses his official name for obtaining payment of any moneys due from a contributory, such moneys shall, for the purpose of enabling him to take out such letters or recover such moneys, be deemed to be due to the Official Liquidator himself:
(i.)
Do and execute all other things necessary for winding up the affairs of the company and distributing its assets.
196 Discretion of Official Liquidator.
1903, No. 53, sec. 196
The Court may provide by any order that the Official Liquidator may exercise any of the above powers without the sanction or intervention of the Court.
Ordinary Powers of the Court
197 Collection and application of assets.
Ibid, sec. 197
As soon as may be after making an order for winding up the company the Court shall settle a list of contributories, with power to rectify the register of members in all cases where such rectification is required in pursuance of this Act, and shall cause the assets of the company to be collected and applied in discharge of its liabilities.
198 Provision as to representative contributories.
Ibid, sec. 198
In settling the list of contributories the Court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.
199 Power of Court to require delivery of property.
Ibid, sec. 199
The Court may, at any time after making an order for winding up a company,—
(a.)
Require any contributory, trustee, receiver, banker, or agent or officer of the company to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the Court directs, any sum or balance, books, papers, estate, or effects which happen to be in his hands for the time being, and appearing prima facie to be the property of the company, to or into the hands of the Official Liquidator:
To order payment of debts by contributory.
(b.)
Make an order on any contributory directing payment to be made in the manner mentioned in the order of any moneys due to the company from him, or from the estate of the person whom he represents, exclusive of any moneys that he or the estate of the person whom he represents is liable to contribute by virtue of any call made by the Court under this Act; and in making such order the Court may, when the company is not limited, allow to such contributory by way of set-off any moneys due from the company to him, or to the estate he represents, on any independent dealing or contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit:
Provided that when all the creditors of any company, whether limited or unlimited, have been paid in full, any moneys due on any account from the company to any contributory may be allowed to him by way of set-off against any subsequent call or calls:
To make calls.
(c.)
Make calls on and order payment thereof by all or any of the contributories to the extent of their liability, for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding-up, and for the adjustment of the rights of the contributories amongst themselves; and in making any such call the. Court may take into consideration the likelihood that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same; and it may make such calls either before or after it has ascertained the sufficiency of the company’s assets.
200 To order payment into back.
1903, No. 53, sec. 200
The Court may order any contributory, purchaser, or other person from whom money is due to the company to pay the same into such bank carrying on business in New Zealand as the Court appoints, to the account of the Official Liquidator, instead of to the Official Liquidator, and such order may be enforced in the same manner as if it directed payment to the Official Liquidator.
201 Regulation of account with Court.
Ibid, sec. 201
The Court may give such directions as it thinks fit concerning the keeping of the account of any moneys, bills, notes, or other securities so ordered to be paid into any bank, and concerning the payment and delivery in or investment and payment and delivery out of the same.
202 Where representative contributory fails to pay moneys ordered.
Ibid, sec. 202
If any person made a contributory as representative of a deceased contributory makes default in paying any sum ordered to be paid by him, proceedings may be taken for administering the estate of such deceased contributory, and of compelling payment thereout of the moneys due.
203 Order conclusive evidence.
Ibid, sec. 203
Any order made by the Court in pursuance of this Act upon any contributory shall, subject to the provisions herein contained for appealing against such order, be conclusive evidence that the moneys (if any) thereby appearing to be due or ordered to be paid are due; and all other pertinent matters stated in such order shall be taken to be truly stated as against all persons and in all proceedings.
204 Court may exclude creditors not proving within certain time.
Ibid, sec. 204
The Court may fix a certain day or certain days on or within which creditors of the company are to prove their debts or claims, or to be excluded from the benefit of any distribution made before such debt or claim is proved.
205 Court to adjust rights of contributories.
Ibid, sec. 205
The Court shall adjust the rights of the contributories amongst themselves, and distribute any surplus that may remain amongst the parties entitled thereto.
206 Court may determine priority of costs.
Ibid, sec. 206
The Court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the estate of the company of the costs, charges, and expenses incurred in the winding-up, in such order of priority as the Court thinks just.
207 Dissolution of company.
1903. No. 53, sec. 207
When the affairs of the company have been completely wound up the Court shall make an order that the company be dissolved from the date of such order, and the company shall be dissolved accordingly.
208 Report to Registrar.
Ibid, sec. 208
(1.)
Any order so made shall be reported by the Official Liquidator to the Registrar, who shall make in his books a minute of the dissolution of such company.
(2.)
If the Official Liquidator makes default under this section he shall be liable to a fine not exceeding five pounds for every day during which he is so in default.
209 Petition to constitute a “suit pending.”
Ibid, sec. 209
Any petition for winding up a company by the Court shall constitute a suit pending within the meaning of “The Deeds Registration Act, 1908,”
provided the same is duly registered in the manner in which memorials of suits pending may be registered under that Act.
Extraordinary Powers of the Court
210 Court may summon persons suspected of having property of company.
Ibid, sec. 210
(1.)
The Court may, after it has made an order for winding up the company, summon before it any officer of the company or any person known or suspected to have in his possession any of the estate or effects of the company, or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the trade dealings, estate, or effects of the company; and the Court may require any such officer or person to produce any books, papers, deeds, writings, or other documents relating to the company in his custody or power.
(2.)
If any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the Court at the time appointed, having no lawful impediment (made known to the Court at the time of its sitting, and allowed by it), the Court may cause such person to be apprehended and brought before it for examination.
(3.)
Where any person claims any lien on papers, deeds, or writings, or documents produced by him, such production shall be without prejudice to such lien; and the Court shall have jurisdiction in the winding-up to determine all questions relating to such lien.
211 Examination of parties by Court.
Ibid, sec. 211
The Court may examine on oath, either by word of mouth or upon written interrogatories, any person appearing or brought before it in manner aforesaid, concerning the affairs, dealings, estate, or effects of the company, and may reduce into writing the answers of every such person, and require him to subscribe the same.
212 Arrest of contributory about to abscond, &c.
Ibid, sec. 212
The Court, at any time before or after it has made an order for winding up a company, upon proof being given that there is probable cause for believing that any contributory to such company is about to quit New Zealand, or abscond, or to remove or conceal any of his goods or chattels for the purpose of evading payment of calls, or for avoiding examination in respect of the affairs of the company, may cause such contributory to be arrested, and his books, papers, moneys, securities for moneys, goods, and chattels to be seized, and him and them to be safely kept until such time as the Court orders.
213 Powers of Court cumulative.
1903, No. 53, sec. 213
Any powers conferred by this Act on the Court shall be deemed to be in addition to and not in restriction of any other powers the Court may have of instituting proceedings against any contributory, or the estate of any contributory, or against any debtor of the company, for the recovery of any call or other sums due from such contributory or debtor or his estate, and such proceedings may be instituted accordingly.
Enforcement of and Appeals from Orders
214 Power to enforce orders.
Ibid, sec. 214
All orders made by the Court under this Act may be enforced in the same manner in which orders made in any action pending in the Court may be enforced.
215 Appeals from orders.
Ibid, sec. 215
Rehearings of and appeals from any order or decision made or given in the matter of the winding-up of a company by the Court may be had in the same manner and subject to the same conditions in and subject to which appeals are had from any order or decision of the Court in cases within its ordinary jurisdiction:
Provided that no such rehearing or appeal shall be heard unless notice of the same is given within twenty-eight days after the order complained of has been made, or within such further time as may be allowed by the Court in the case of a rehearing, or by the Court of Appeal in the case of an appeal.
216 Examination of witnesses by commission.
Ibid, sec. 216
The Court may make all such orders and do all such things for and incidental to the examination of witnesses before any person or persons either in or beyond New Zealand as it may make or do in its ordinary jurisdiction.
Reference of Proceedings to District Court
217 Winding-up may be referred to District Court.
Ibid, sec. 217
Where the Court makes an order for winding up a company, it may, if it thinks fit, direct all subsequent proceedings to be taken in a District Court, and thereupon such District Court shall for the purpose of such winding-up be deemed to be ‘‘the Court” within the meaning of this Act, and shall have all the jurisdiction and powers of the Supreme Court.
218 Transfer of winding-up from one District Court to another.
Ibid, sec. 218
If during the progress of the winding-up it appears to the Supreme Court that the same can be more conveniently carried on in any other District Court, it shall be competent for the Supreme Court to transfer the same to such other District Court, and thereupon the winding-up shall proceed in such other District Court.
219 Parties aggrieved may appeal.
Ibid, sec. 219
(1.)
Any party in a winding-up who is dissatisfied with any determination or direction of a Judge of a District Court may appeal therefrom to the Supreme Court.
(2.)
The party appealing shall, within twenty-eight days after such determination or direction, give notice of appeal to the other party or his solicitor, and deposit with the Clerk of the District Court the sum of ten pounds as security for the costs of the appeal.
(3.)
The Supreme Court may make such final or other decree or order, and also such order with respect to the costs of the appeal, as it thinks fit.
Voluntary Winding-up
220 When company may be wound up voluntarily.
1903, No. 53, sec. 220
A company may be wound up voluntarily—
(a.)
Where, on the expiration of any period fixed by the memorandum or articles of association for the duration of the company, or on the happening of any event on the happening of which it is provided by the memorandum or articles of association that the company shall be dissolved, the company in general meeting passes a resolution requiring the company to be wound up voluntarily:
(b.)
Where the company passes a special resolution requiring the company to be wound up voluntarily:
(c.)
Where the company passes an extraordinary resolution to the effect that it is proved to its satisfaction that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same.
221 Commencement of voluntary winding-up.
Ibid, sec. 221
A voluntary winding-up shall be deemed to commence on the passing of the resolution authorising such winding-up.
222 Effect of voluntary winding-up on status of company.
Ibid, sec. 222
Where a company is wound up voluntarily it shall from the date of the commencement of such winding-up cease to carry on its business except in so far as is required for the beneficial winding-up thereof; and all transfers of shares (except transfers made to or with the sanction of the liquidators) and all alterations in the status of the members of the company taking place after the commencement of such winding-up shall be void; but its corporate state and all its corporate powers shall, notwithstanding its regulations provide otherwise, continue until the affairs of the company are wound up.
223 Notice of resolution to wind up voluntarily.
Ibid, sec. 223
Notice of any special or extraordinary resolution passed for winding up a company voluntarily shall be gazetted.
224 Consequences of voluntary winding-up.
Ibid, sec. 224
On the voluntary winding-up of a company—
(a.)
Liquidators shall be appointed for the purpose of winding up the affairs of the company and distributing its assets:
(b.)
The liquidators shall pay the debts of the company, and adjust the rights of the contributories amongst themselves:
(c.)
The assets of the company, subject to the preferential claims provided for by section two hundred and forty-nine hereof, shall be applied rateably in satisfaction of its liabilities, and the surplus (if any) shall, unless the memorandum of association or the regulations of the company provide otherwise, be distributed amongst the members according to their rights and interests in the company:
(d.)
The company in general meeting shall appoint such persons or person as it thinks tit to be liquidators or a liquidator, and may fix the remuneration to be paid to them or him:
(e.)
If one person only is appointed, all the provisions herein contained in reference to several liquidators shall apply to him:
(f.)
Upon the appointment of liquidators all the powers of the directors shall cease except in so far as the company in general meeting, or the liquidators, sanction the continuance of such powers:
(g.)
Where several liquidators are appointed every power hereby given may be exercised by such one or more of them as may be determined at the time of their appointment, or, in default of such determination, by any two or more of them:
(h.)
The liquidators may, without the sanction of the Court, exercise all powers by this Act given to the Official Liquidator:
(i.)
The liquidators may exercise the powers hereinbefore given to the Court of settling the list of contributories of the company, and any list so settled shall be prima facie evidence of the liability of the persons named therein to be contributories:
(j.)
The liquidators may at any time after the passing of the resolution for winding up the company, and before they have ascertained the sufficiency of the company’s assets, call on all or any of the contributories to pay to the extent of their liability all or any sums they deem necessary to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding-up, and for the adjustment of the rights of the contributories amongst themselves; and the liquidators may, in making a call, take into consideration the likelihood that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same.
225 Company may delegate authority to appoint liquidators.
1903, No. 53, sec. 225
A company about to be wound up voluntarily, or in the course of being so wound up, may by an extraordinary resolution delegate to its creditors, or to any committee of its creditors, the power of appointing liquidators, or any of them, and of supplying any vacancies in the appointment of liquidators, or may by a like resolution enter into any arrangement with respect to the powers to be exercised by the liquidators and the manner in which they are to be exercised; and any act done by the creditors in pursuance of such delegated power shall have the same effect as if done by the company.
226 Power for liquidators, creditors, or contributories to apply to Court.
Ibid, sec. 226
(1.)
Where a company is being wound up voluntarily the liquidators, or any creditor or contributory of the company, may apply to the Court to determine any question arising in the matter of the winding-up, or to exercise in the enforcing of calls or in any other matter all or any of the powers the Court might exercise if the company were being wound up by the Court.
(2.)
On the hearing of such application the Court, if satisfied that the determination of such question or the required exercise of power will be just and beneficial, may accede to such application on such terms and subject to such conditions as the Court thinks tit, or may make such other order or decree on such application as it thinks just.
227 Power of liquidators to call general meeting.
1903, No. 53, sec. 227
Where a company is being wound up voluntarily the liquidators may from time to time during the continuance of such winding-tip summon general meetings of the company for the purpose of obtaining the sanction of the company by special resolution or extraordinary resolution, or for any other purpose they think tit.
228 Vacancy in office of liquidator.
Ibid, sec. 228
(1.)
Where the office of any liquidator appointed by the company becomes vacant by death, resignation, or otherwise, the company in general meeting may, subject to any arrangement entered into with its creditors, fill up such vacancy.
(2.)
A general meeting for the purpose of filling up such vacancy may be convened by the continuing liquidators (if any), or by any contributory of the company.
(3.)
Such meeting shall be deemed to be duly held if held in the manner prescribed by the regulations of the company, or in such other manner as, on application by the continuing liquidator (if any), or by any creditor or contributory of the company, is determined by the Court.
229 Power of Court to appoint liquidators.
Ibid, sec. 229
(1.)
If from any cause there is no liquidator acting in a voluntary winding-up, the Court may, on the application of any creditor or contributory, appoint a liquidator or liquidators.
(2.)
The Court may also, on due cause shown, remove any liquidator and appoint another liquidator to act in the matter of a voluntary winding-up.
230 Liquidators to account.
Ibid, sec. 230
(1.)
As soon as the affairs of the company are fully wound up the liquidators shall make up an account showing the manner in which such winding-up has been conducted and the assets of the company disposed of, and thereupon they shall call a general meeting of the company for the purpose of laying the account before such meeting, and offering any explanation they may wish to give.
(2.)
Notice of such meeting, specifying the time, place, and object of the meeting, shall be advertised in the Gazette, and a copy of the notice shall be sent by post to every member of the company at least fourteen days before the meeting.
231 Liquidators to report meeting to Registrar.
Ibid, sec. 231
(1.)
The liquidators shall make a report to the Registrar of such meeting being held, and of the date at which the same was held, and on the expiration of three months from the date of the registration of such report the company shall be deemed to be dissolved.
(2.)
If the liquidators make default under this section they shall be liable to a fine not exceeding five pounds for every day during which such default continues.
232 Costs of voluntary liquidation.
Ibid, sec. 232
All costs, charges, and expenses properly incurred in the voluntary winding-up of a company, including the remuneration of the liquidators, shall be payable out of the assets of the company in priority to all other claims.
233 Creditor or contributory may insist on winding-up by Court.
Ibid, sec. 233
The voluntary winding-up of a company shall not be a bar to the right of any creditor or contributory of such company to have the same wound up by the Court, if the Court is of opinion that the rights of such creditor or contributory will be prejudiced by a voluntary winding-up.
234 Court may adopt proceedings of voluntary winding-up.
1903, No. 53, sec. 234
Where a company is being wound up voluntarily, and proceedings are taken for the purpose of having the same wound up by the Court, the Court may, if it thinks fit, notwithstanding that it makes an order directing the company to be wound up by the Court, provide in such order or in any other order for the adoption of all or any of the proceedings taken in the course of the voluntary winding-up.
Winding-up under Supervision of the Court
235 Court may direct voluntary winding-up to continue subject to supervision.
Ibid, sec. 235
(1.)
Where a resolution has been passed by a company to wind up voluntarily, the Court, on petition praying that the company be wound up by the Court, or that it be wound up subject to the supervision of the Court, may make an order directing that the winding-up shall continue, but subject to such supervision of the Court, and with such liberty for creditors, contributories, or others to apply to the Court, and generally upon such terms and conditions, as the Court thinks just.
Effect of petition for continuance of winding-up subject to supervision.
(2.)
A petition that the company be wound up subject to the supervision of the Court shall for the purpose of giving jurisdiction to the Court be deemed to be a petition for winding up the company by the Court.
(3.)
A winding-up under this section is herein referred to as a winding-up subject to the supervision of the Court.”
236 Court may have regard to wishes of creditors.
Ibid, sec. 236
(1.)
The Court may, in determining whether a company is to be wound up altogether by the Court or subject to the supervision of the Court, in the appointment of liquidators, and in all other matters relating to the winding-up subject to supervision, have regard to the wishes of the creditors or contributories as proved to it by any sufficient evidence; and may direct meetings of the creditors or contributories to be summoned, held, and regulated in such manner as it directs, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting and report the result of such meeting to the Court.
(2.)
In the case of creditors regard shall be had to the amount or value of the debts due to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations of the company.
237 Court may appoint additional liquidators.
Ibid, sec. 237
(1.)
Where an order is made by the Court for a winding-up subject to the supervision of the Court, the Court may in such order, or in any subsequent order, appoint any additional liquidator or liquidators; and any liquidators so appointed by the Court shall have the same powers, be subject to the same obligations, and in all respects be in the same position as if they had been appointed by the company.
(2.)
The Court may from time to time remove any liquidators so appointed by the Court, and fill up any vacancy occasioned by such removal or by death or resignation.
238 Powers of liquidators.
Ibid, sec. 238
Where an order is made for a winding-up subject to the supervision of the Court, the liquidators appointed to conduct such winding-up may, subject to any restrictions imposed by the Court, exercise all their powers without the sanction or intervention of the Court, in the same manner as if the company were being wound up altogether voluntarily.
239 Effect of order of Court.
1903. No. 53, sec. 239
Save as aforesaid, an order made by the Court for a winding-up subject to the supervision of the Court shall for all purposes, including the staying of actions and other proceedings, be deemed to be an order for winding up the company by the Court, and shall confer full authority on the Court to make calls, or to enforce calls made by the liquidators, and to exercise all other powers it might exercise if an order were made for winding up the company altogether by the Court; and in the construction of the provisions empowering the Court to direct any act or thing to be done to or in favour of the Official Liquidator the expression “Official Liquidator”
shall be deemed to include liquidators conducting a winding-up subject to the supervision of the Court.
240 Appointment of voluntary liquidators to be Deputy Official Liquidators.
Ibid, sec. 240
Where an order has been made for the winding-up of a company subject to the supervision of the Court, and such order is afterwards superseded by an order directing the company to be wound up compulsorily, the Court may in such last-mentioned order or in any subsequent order appoint the voluntary liquidators or any of them, either provisionally or permanently, and either with or without the addition of any other person, to be Deputy Official Liquidators.
General Provisions relating to the Winding-up of Companies
241 Liquidator defined.
Ibid, sec. 241
“Liquidator”
in this and the succeeding provisions of this Act relating to winding up companies means the Official Liquidator, or any other liquidator or liquidators, as the case may be.
242 Dispositions of property, &c., after the commencement of the winding-up to be void.
Ibid, sec. 242
Where any company is being wound up by the Court, or subject to the supervision of the Court, all dispositions of the property, effects, and things in action of the company, and every transfer of shares or alteration in the status of the members of the company, made between the commencement of the winding-up and the order for winding up shall, unless the Court otherwise orders, be void.
243 Court may grant injunction.
Ibid, sec. 243
The Court may at any time after the presentation of a petition for winding up a company, and before making an order for winding up the company, upon the application of the company, or of any creditor or contributory of the company, restrain any proceeding against the company upon such terms as the Court thinks fit.
244 Stay of proceedings.
Ibid, sec. 244
Where an order has been made, or an effective resolution has been passed, for winding up a company,—
(a.)
No action or other proceeding shall be commenced or proceeded with against the company except with the leave of the Court, and subject to such terms as the Court imposes.
(b.)
Any attachment, distress, or execution thereafter put in force against the assets of the company shall be void.
245 Effect of winding-up on share capital of company limited by guarantee.
Ibid, sec. 245
Where a company limited by guarantee and having a capital divided into shares is being wound up, any share capital not called up shall be deemed to be assets of the company, and to be a debt due from each member to the company to the extent of any sums unpaid on any shares held by him, and the Court and the liquidator shall in respect to such uncalled capital have the same powers as are herein conferred on the Court and liquidator in respect of the uncalled capital of a company limited by shares.
246 Where company insolvent, rules of bankruptcy to apply.
1903, No. 53, sec. 246
Where, on the winding-up of a company, the assets of the company may prove to be insufficient for the payment of its debts and liabilities and the cost of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and of future and contingent liabilities respectively, as are in force under the law of bankruptcy with respect to the estates of persons adjudged bankrupt; and all persons who under such law would be entitled to prove for and receive dividends out of the assets of such company may come in under the winding-up and prove their claims against the company accordingly.
247 Fraudulent preference.
Ibid, sec. 247
(1.)
Any such conveyance, mortgage, delivery of goods, payment, execution, or other act relating to property as would, if made or done by or against any person, be deemed, in the event of his bankruptcy, to have been made or done by way of undue or fraudulent preference of the creditors of such person shall, if made or done by or against any company, be deemed, in the event of such company being wound up, to be made or done by way of undue or fraudulent preference of the creditors of such company, and shall be invalid accordingly.
Transfer of effects to trustees for benefit of creditors to be void.
(2.)
For the purposes of this section the presentation of a petition for winding up a company shall, in the case of a company being wound up by the Court or subject to the supervision of the Court, and a resolution for winding up the company shall, in the case of a voluntary winding-up, be deemed to correspond with the act of bankruptcy in the case of any such person as aforesaid; and any conveyance or assignment made by any company of all its estate and effects to trustees for the benefit of all its creditors shall be void not only as against the creditors of the company and the liquidators, but also as between the parties thereto.
248 Debts and claims to be proved.
Ibid, sec. 248
Where a company is being wound up, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company; a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency, or sound only in damages, or for some other reason do not bear an ascertained value.
249 Wages and salary to be preferential claims, and to rank equally.
Ibid, sec. 249
(1.)
In the distribution of the assets of a company being wound up there shall be paid, in priority to other debts,—
(a.)
All wages or salary of any clerk or servant in respect of services rendered to the company during four months before the commencement of the winding-up, not exceeding fifty pounds; and
(b.)
All wages of any labourer or workman in respect of services rendered to the company during two months before the commencement of the winding-up.
(2.)
The foregoing debts shall rank equally one with another, and shall be paid in fall, unless the assets of the company are insufficient to meet them, in which case they shall abate in equal proportions.
Liquidator to discharge same upon receipt of sufficient assets.
(3.)
Subject to the retention of such sums as are necessary for the costs of administration or otherwise, the liquidator shall discharge the foregoing debts forthwith, so far as the assets of the company are sufficient to meet them, as and when such assets come into his hands.
250 The books of the company to be evidence.
1903, No. 53, sec. 250
Where any company is being wound up, all books, accounts, and documents of the company and of the liquidator shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.
251 Annual meetings.
Ibid, sec. 251
In the event of the winding-up of a company continuing for more than one year, the liquidator shall summon a general meeting of the company at the end of the first year and of each succeeding year from the commencement of the winding-up, or as soon thereafter as may be convenient, and shall lay before each such meeting an account showing his acts and dealings and the manner in which the winding-up has been conducted during the preceding year.
252 As to disposal of books, accounts, and documents of the company.
Ibid, sec. 252
Where a company has been wound up and is about to be dissolved, the books, accounts, and documents of the company and of the liquidator may be disposed of in the following manner, that is to say: where the company has been wound up by or subject to the supervision of the Court, in such manner as the Court directs, and where the company has been wound up voluntarily, in such manner as the company by an extraordinary resolution directs; but after the lapse of five years from the date of such dissolution no responsibility shall rest on the company, or the liquidator, or any one to whom the custody of such books, accounts, and documents has been committed, by reason that the same or any of them cannot be produced to any party or parties claiming to be interested therein.
253 Inspection of books.
Ibid, sec. 253
Where an order is made for winding up a company by the Court, or subject to the supervision of the Court, the Court may make such order as it thinks fit for the inspection of the company’s books and papers by the creditors or contributories, and any books and papers in the possession of the company may be inspected by creditors or contributories in conformity with the order of the Court, but not further or otherwise.
254 Court may adjudicate against delinquent director and officers.
Ibid, sec. 254
(1.)
Where in the course of the winding-up of a company it appears that any person who has taken part in the formation or promotion of the company, or any past or present director, manager, Official or other Liquidator, or any officer of such company, has misapplied or retained, or has become liable or accountable for any moneys or other assets of the company, or has been guilty of any misfeasance or breach of trust in relation to the company, the Court may, on the application of any liquidator, or of any creditor or contributory of the company, notwithstanding that the offence is one for which the offender is criminally responsible, examine into the conduct of such director, promoter, manager, liquidator, or other officer, and compel him to repay any moneys or restore any assets so misapplied or retained, or for which he has become liable or accountable, together with interest thereon after such rate as the Court thinks just, or to contribute to the assets of the company such sums of money as the Court thinks just by way of compensation for such misapplication, retainer, misfeasance, or breach of trust.
(2.)
This section applies in the winding-up of any company, whether the same is being wound up by or subject to the supervision of the Court or voluntarily, and whether the winding-up commenced before or after the coming into operation of this Act.
255 Destruction or falsification of books.
1903, No. 53, sec. 255
Every director, officer, or contributory of any company wound up under this Act who destroys, mutilates, alters, or falsifies any books, papers, writings, or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account, or other document belonging to the company, with intent to defraud or deceive any person, is liable to two years’ imprisonment with hard labour.
256 Prosecution of delinquent directors in the case of winding-up by Court, or under supervision.
Ibid, sec. 256
Where, in the course of the winding-up of a company by the Court or subject to the supervision of the Court, it appears that any past or present director, manager, officer, or member of the company has been guilty of any offence in relation to the company for which he is criminally responsible, the Court may, on the application of any person interested in the winding-up, or of its own motion, direct the liquidator to prosecute any such person, and may order the costs and expenses of such prosecution to be paid out of the assets of the company.
257 In case of voluntary winding-up.
Ibid, sec. 257
Where, in the course of the voluntary winding-up of a company, it appears to the liquidator that any past or present director, manager, officer, or member of the company has been guilty of any offence in relation to the company for which he is criminally responsible, the liquidator may, with the previous sanction of the Court, prosecute any such person, and all expenses properly incurred by the liquidator in such prosecution shall be payable out of the assets of the company in priority to all other liabilities.
Compromises and Arrangements
258 Power to make compromises with creditors.
Ibid, sec. 258
The liquidator may, with the sanction of the Court where the company is being wound up by the Court or subject to the supervision of the Court, and with the sanction of an extraordinary resolution of the company where the company is being wound up voluntarily,—
(a.)
Pay any class of creditors in full, or make such compromise or other arrangement as he deems expedient with the creditors or persons claiming to be creditors, or persons having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable; or
Power to make compromises with contributories and debtors.
(b.)
Compromise all calls and liabilities to calls, debts and liabilities capable of resulting in debts, and all claims whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and any contributory or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets of the company or the winding-up of the company, upon the receipt of such sums, payable at such times, and generally upon such terms as are agreed on, with power to take any security for the discharge of such debts or liabilities, and to give complete discharges in respect of all or any such calls, debts, or liabilities.
259 Power for liquidator to accept shares, &c., on sale of property to another company.
1903, No. 53, sec. 259
(1.)
Where a company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidator of the first-mentioned company may, with the sanction of a special resolution of the company by which he was appointed, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement,—
(a.)
Receive in compensation or part compensation for such transfer or sale, shares, policies, or other like interests in such other company for the purpose of distribution amongst the members of the company being wound up; or
(b.)
Enter into any other arrangement whereby the members of the company being wound up, in lieu of or in addition to receiving cash, shares, policies, or other like interests, may participate in the profits of or receive any other benefit from the purchasing company.
(2.)
Any sale made or arrangement entered into by the liquidator under this section shall be binding on the members of the company being wound up, subject to this proviso: that if any member of the company being wound up who has not voted in favour of the special resolution passed by the company of which he is a member, at either of the meetings held tor passing the same, expresses his dissent from such special resolution by notice in writing, addressed to the liquidator, and left at the registered office of the company not later than seven days after the date of the meeting at which such special resolution was confirmed, such dissentient member may require the liquidator to do one of the following things, as the liquidator may prefer, that is to say:—
(c.)
Either abstain from carrying such resolution into effect; or
(d.)
Purchase the interest held by such dissentient member at a price to be determined in manner hereinafter mentioned, such purchase-money to be paid before the company is dissolved, and to be raised by the liquidators in such manner as may be determined by special resolution.
(3.)
No special resolution shall be deemed invalid for the purposes of this section by reason that it is passed prior to or concurrently with any resolution for winding up the company, or for appointing liquidators; but if within a year an order is made for winding up the company by or subject to the supervision of the Court such resolution shall not be of any validity unless sanctioned by the Court.
Mode of determining price.
(4.)
The price to be paid for the purchase of the interest of any dissentient member may be determined by agreement; but if the parties dispute about the same such dispute shall be settled by arbitration.
Appointment of arbitrator when questions are to be determined by arbitration.
(5.)
Any appointment required to be made on behalf of any company in respect of such arbitration may be made under the hand of the liquidator, and such arbitration shall be conducted in accordance with the provisions of “The Arbitration Act, 1908.”
260 Compromise with creditors of company.
1903, No. 53, sec. 260
(1.)
Where a compromise or arrangement between the company and its creditors or members or contributories, or any class thereof respectively, is proposed by a company about to be wound up voluntarily and embodied in an extraordinary resolution of the company, or by the liquidator of a company in course of being wound up, such compromise or arrangement shall, subject to such right of appeal as is hereinafter mentioned, be binding on all such creditors, members, or contributories, or class thereof respectively, and also on the company or the liquidator and contributories of the company, as the case may be, if a majority in number representing three-fourths in value of such creditors, members, or contributories, or class thereof respectively, present, either in person or by proxy, at a meeting of such creditors, members, or contributories, or class thereof respectively (summoned in the same manner as a meeting to consider an extraordinary resolution of the company), agree to such compromise or arrangement.
(2.)
The Court, in addition to any of its other powers, may, on the application in a summary way of any creditor or member, or of the liquidator, order that a meeting of such creditors or members or contributories, or class thereof respectively, be summoned in such manner as it directs.
(3.)
Any creditor, member, or contributory of a company that lifts in the manner aforesaid entered into any such compromise or arrangement with its creditors, members, or contributories, or class thereof respectively, may, within twenty-one days from the date of the meeting at which such compromise or arrangement was agreed to, appeal to the Court against such compromise or arrangement, and the Court may if it thinks fit amend, vary, or confirm the same.
(4.)
Any such compromise or arrangement as aforesaid shall remain binding notwithstanding any subsequent order of the Court staying proceedings in the winding-up, unless the Court in such order otherwise directs.
Power of Court to make Rules
261 Power of Judges of Supreme Court to make rules.
Ibid, sec. 261
(1.)
Any three or more of the Judges of the Supreme Court, of whom the Chief Justice shall be one, may, as often as circumstances require,—
(a.)
Make rules of procedure for winding up a company by the Court, or by the District Court when such Court has jurisdiction tinder sections two hundred and seventeen or two hundred and eighteen hereof:
(b.)
Fix a scale of costs and charges to be paid to barristers and solicitors in all proceedings in a winding-up in the District Court.
(2.)
All such rules and scales shall be subject to the approval of the Governor in Council.
Dissolution of Companies
262 Application for dissolution.
1903, No. 53, sec. 262
(1.)
Where a limited company, the shares of which are fully paid up, has distributed the whole of its assets and ceased to carry on its operations, the chairman, manager, or any two directors or shareholders of such company may, on making an affidavit in the form numbered (1) in the Fourth Schedule hereto or to the like effect, and lodging the same, together with a fee of five guineas, with the Registrar, apply for a declaration of dissolution of such company.
Notice of dissolutions.
(2.)
The Registrar shall forthwith publish a copy of such affidavit, together with a notice in the form numbered (2) in the Fourth Schedule hereto, in three consecutive issues of the Gazette, and in three consecutive issues of some newspaper circulating in the locality where the registered office is, or in which the last registered office of the company was.
263 Notice of objection.
Ibid, sec. 263
If notice of objection in writing, in the form numbered (3) in the Fourth Schedule hereto, accompanied by a statutory declaration by the objector of the matter set forth or relied upon in such notice of objection, is lodged with the Registrar by any person declaring himself to be a shareholder or creditor of such company within sixty days of the first publication of the affidavit as directed in the last preceding section, the Registrar shall notify the same in the Gazette as aforesaid, and in some newspaper circulating as aforesaid, in the form numbered (4) in the Fourth Schedule hereto, and in such case he shall not declare the dissolution of such company.
264 Declaration of dissolution.
Ibid, sec. 264
(1.)
If no notice of objection as aforesaid is lodged, then the Registrar shall proceed to declare, by notice in the Gazette and in some newspaper circulating as aforesaid, in the form numbered (5) in the Fourth Schedule hereto, that such company is dissolved, and from and after the gazetting of such notice such company shall be dissolved.
(2.)
All books, papers, accounts, and documents of such company shall be deposited with the Registrar before such last-mentioned notice is published, and thereafter shall be kept by him in his office and be open to inspection by any person on payment of a fee of two shillings.
265 Dissolution not to bar prosecutions for fraud or misconduct, &c.
Ibid, sec. 265
(1.)
Nothing in this Act shall bar any civil or criminal proceeding against any chairman, director, manager, or other officer of any company for fraud or misconduct, or for any acts, matters, or things for which any such proceeding might have been taken before the company was declared to be dissolved.
Nor prevent creditor insisting on winding-up by Court.
(2.)
A declaration of dissolution shall not prejudice the right of any creditor or shareholder of the company to institute proceedings for the purpose of having the same wound up by the Court.
Striking Companies off Register
266 Power of Registrar to strike defunct companies off the register in certain cases.
Ibid, sec. 266
(1.)
Where the Registrar has reasonable cause to believe that a company is not in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or is in operation.
(2.)
If within one month after sending the letter the Registrar does not receive any answer thereto he shall, within fourteen days after the expiration of such month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received by him, and that if an answer is not received to the second letter within one month from the date thereof a notice will be published in the Gazette with a view to striking the name of the company off the register.
(3.)
If the Registrar either receives an answer from the company to the effect that it is not in operation, or does not within one month after sending the second letter receive any answer thereto, the Registrar may publish in the Gazette, and send to the company, a notice that at the expiration of three months from the date of that notice the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company dissolved,
(4.)
At the expiration of the time mentioned in the notice the Registrar may, unless cause to the contrary is previously shown by the company, strike the name of the company off the register, and shall publish a notice thereof in the Gazette, and thereupon the company shall be dissolved:
Provided that the liability (if any) of every director, manager, and member of the company shall continue, and may be enforced as if the company had not been dissolved.
(5.)
If any company or person feels aggrieved by the name of the company having been struck off the register in pursuance of this section, such company or person may apply to the Court; and the Court, if satisfied that it is just so to do, may order the name of the company to be restored to the register, and thereupon the company shall be deemed to have continued in existence as if the name thereof had never been struck off; and the Court may give such directions and make such provisions as it thinks just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had never been struck off.
(6.)
A letter or notice authorised or required for the purposes of this section to be sent to a company may be sent by post addressed to the company at its registered office; or, if no office has been registered, then addressed to the care of some director or officer of the company; or, if there is no director or officer of the company whose name and address are known to the Registrar, the letter or notice (in identical form) may be sent to each of the persons who subscribed the memorandum of association, addressed to him at the address mentioned in that memorandum.
267 Where company is being wound up.
1903, No. 53, sec. 267
Where at any time after the commencement of proceedings for the winding-up of any company the Registrar has reasonable cause to believe that no liquidator is acting, or that the affairs of the company are fully wound up, and the reports required to be made by the liquidator are not made for a period of six months after notice by the Registrar demanding the same has been sent by post to the registered office of the company, or to the liquidator at his last known place of business, the provisions of the last preceding section shall apply in like manner as if the Registrar had not within one month after sending the second letter therein mentioned received any answer thereto.
Part VII Application of Act to Companies registered under former Acts
268 Joint Stock Companies Acts defined.
1903, No. 53, sec. 268
In this and the succeeding Parts of this Act the expression “Joint Stock Companies Acts”
means “The Joint Stock Companies Act, 1860,”
and its amendments.
269 Application of Act to companies formed under Joint Stock Companies Acts.
Ibid, sec. 269
Subject as hereinafter mentioned, this Act, with the exception of Table A in the Second Schedule, shall apply to companies formed and registered under the Joint Stock Companies Acts, in the same manner in the case of a limited company as if such company had been formed and registered under this Act as a company limited by shares, and, in the case of a company other than a limited company, as if such company had been formed and registered as an unlimited company under this Act:
Provided that where reference is made expressly or impliedly to the date of registration, such date shall be deemed to be the date at which such companies were respectively registered under the said Joint Stock Companies Acts:
Provided also that the power of altering regulations by special resolution given by this Act shall, in the case of a company formed and registered under the said Joint Stock Companies Acts, extend to altering any provisions contained in Table B annexed to “The Joint Stock Companies Act, 1860,”
and shall also, in the case of an unlimited company formed and registered as aforesaid, extend to altering any regulations relating to the amount of capital or its distribution into shares, notwithstanding that such regulations are contained in the memorandum of association.
270 Application of Act to companies registered under Joint Stock Companies Acts.
Ibid, sec. 270
This Act applies to companies registered but not formed under the Joint Stock Companies Acts in the same manner as it is herein declared to apply to companies registered but not formed under this Act:
Provided that where reference is made expressly or impliedly to the date of registration, such date shall be deemed to be the date at which such companies were respectively registered under the Joint Stock Companies Acts.
271 Provisions of Part III to apply.
Ibid, sec. 271
(1.)
Subject to the provisions of this Part of this Act, all the powers conferred on companies by Part III of this Act may be exercised by any company registered under the Joint Stock Companies Acts as if it had been registered under this Act.
Mode of transferring shares.
(2.)
Any company registered under the Joint Stock Companies Acts may cause its shares to be transferred in manner hitherto in use, or in such other manner as the company directs.
Part VIII Companies authorised to register under this Act
272 Rules as to registration of existing companies.
Ibid, sec. 272
The following rules shall be observed with respect to the registration of companies under this Part of this Act, that is to say:—
(a.)
No company having the liability of its members limited by Act of the Imperial Parliament or of the General Assembly, or by Royal charter or letters patent, and not being a joint-stock company as hereinafter defined, shall register under this Act in pursuance of this Part thereof.
(b.)
No company having the liability of its members limited by Act of the Imperial Parliament or of the General Assembly, or by Royal charter or letters patent, shall register under this Act in pursuance of this Part thereof as an unlimited company, or as a company limited by guarantee.
(c.)
No company that is not a joint-stock company as hereinafter defined shall, in pursuance of this Part of this Act, register under this Act as a company limited by shares.
(d.)
No company shall register under this Act in pursuance of this Part thereof unless an assent to its so registering is given by a majority of such of its members as are present personally or by proxy, in cases where proxies are allowed by the regulations of the company, at some general meeting summoned for the purpose.
(e.)
Where a company, not having the liability of its members limited by Act of the Imperial Parliament or of the General Assembly, or by Royal charter, or by letters patent, is about to register as a limited company, the majority required to assent as aforesaid shall consist of not less than three-fourths of the members present personally or by proxy at such last-mentioned general meeting.
(f.)
Where a company is about to register as a company limited by guarantee, the assent to its being so registered shall be accompanied by a resolution declaring that each member undertakes to contribute to the assets of the company, in the event of the same being wound up during the time that he is a member or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceased to be a member, and of the costs, charges, and expenses of winding up the company, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceeding a specified amount.
(g.)
In computing any majority under this section, when a poll is demanded, regard shall be had to the number of votes to which each member is entitled according to the regulations of the company of which he is a member.
273 Companies capable of being registered.
1903. No. 53, sec. 273
Subject to the foregoing rules, every existing company, including any company registered under the Joint Stock Companies Acts, consisting of seven or more members, and any company hereafter formed in pursuance of any Act of the Imperial Parliament or of the General Assembly (other than this Act), or by Royal charter or letters patent, or being otherwise duly constituted by law, and consisting of seven or more members, may at any time register itself under this Act as an unlimited company, or as a company limited by shares, or a company limited by guarantee; and no such registration shall be invalid by reason that it has been effected with a view to the company being wound up.
274 Joint-stock company defined.
1903. No. 53, sec. 274
For the purposes of this Part of this Act, so far as the same relates to defined companies empowered to register as companies limited by shares, a joint-stock company shall be deemed to be a company having a permanent paid-up or nominal capital of fixed amount, divided into shares also of fixed amount, or held and transferable as stock, or divided and held partly in one way and partly in the other, and formed on the principle of having for its members the holders of shares in such capital or the holders of such stock, and no other persons; and such company, when registered with limited liability under this Act, shall be deemed to be a company limited by shaves.
275 Registration by joint-stock companies.
Ibid, sec. 275
Previous to the registration under this Part of this Act of any joint-stock company there shall be delivered to the Registrar the following documents, that is to say:—
(a.)
A list showing the names, addresses, and occupations of all persons who, on a day named in such list, and not being more that six clear days before the day of registration, were members of the company, with the addition of the shares held by such persons respectively, distinguishing, in cases where such snares are numbered, each share by its number:
(b.)
A copy of any Act of the Imperial Parliament or of the General Assembly, or of any Royal charter, letters patent, deed of settlement, or other instrument constituting or regulating the company:
(c.)
If the company is intended to be registered as a limited company, the above list and copy shall be accompanied by a statement specifying the following particulars, that is to say,—
(i.)
The nominal capital of the company and the number of shares into which it is divided;
(ii.)
The number of shares taken, and the amount paid on each share;
(iii.)
The name of the company, with the addition of the word “Limited”
as the last word thereof; and also
(iv.)
In the case of a company limited by guarantee, by a copy of the resolution declaring the amount of the guarantee.
276 Registration by other companies.
Ibid, sec. 276
Prior to the registration under this Part of this Act of any company, not being a joint-stock company, there shall be delivered to the Registrar a list showing the names, addresses, and occupations of the directors of the company, and also a copy of any Act of the Imperial Parliament or of the General Assembly, or of any Royal charter, letters patent, deed of settlement, or other instrument constituting or regulating the company, with the addition, in the case of a company intended to be registered as a company limited by guarantee, of the resolution declaring the amount of the guarantee.
277 The company may register amount of stock instead of shares.
1903, No. 53, sec. 277
Where a joint-stock company authorised to register under this Act has had the whole or any portion of its capital converted into stock, such company shall, as to the capital so converted, instead of delivering to the Registrar a statement of shares, deliver to the Registrar a statement of the amount of stock belonging to the company, and the names of the persons who are holders of such stock, on some day to be named in the statement, not more than six clear days before the day of registration.
278 Authentication of particulars required.
Ibid, sec. 278
The lists of members and directors, and any other particulars relating to the company hereby required to be delivered to the Registrar, shall be verified by a statutory declaration of the directors of the company or any two of them, or of any two other principal officers of the company.
279 Evidence as to nature of company.
Ibid, sec. 279
The Registrar may require such evidence as he thinks necessary for the purpose of satisfying himself whether an existing company is or is not a joint-stock company as hereinbefore defined.
280 Exemption from payment of fees.
Ibid, sec. 280
No fees shall be charged in respect of the registration under this Part of this Act of any company in cases where such company is not registered as a limited company, or where prior to its being registered as a limited company the liability of the shareholders was limited by some other Act of the Imperial Parliament or of the General Assembly, or by Royal charter, or by letters patent.
281 Addition to name.
Ibid, sec. 281
Any company authorised by this Part of this Act to register with limited liability shall, for the purpose of obtaining registration with limited liability, change its name by adding thereto the word “Limited.”
282 Certificate of incorporation.
Ibid, sec. 282
Upon compliance with the requirements of this Part of this Act relating to registration, and on payment of such fees (if any) as are payable under Tables C and D in the Second Schedule hereto, the Registrar shall certify under his hand that the company so applying for registration is incorporated as a company under this Act, and in the case of a limited company that it is limited; and thereupon such company shall be incorporated, and shall have perpetual succession and a common seal, with power to hold lands.
283 Certificate to be evidence.
Ibid, sec. 283
A certificate of incorporation given at any time to any company registered under this Part of this Act, or under the corresponding provisions of any former Act relating to companies shall have the same effect in all respects as if it had been issued under section twenty-six hereof.
284 Transfer of assets to company.
Ibid, sec. 284
All assets belonging to or vested in the company at the date of its registration under this Act shall, on registration, pass to and vest in the company as incorporated under this Act for all the estate and interest of the company therein.
285 Registration not to affect existing rights or liabilities.
Ibid, sec. 285
The registration under this Part of this Act of any company shall not affect or prejudice the liability of any such company to have enforced against it, or its right to enforce, any debt or obligation incurred, or any contract entered into by, to, or with or on behalf of such company previously to such registration.
286 Continuation of existing actions.
Ibid, sec. 286
All actions and other legal proceedings at the time of the registration of any company under this Part of this Act commenced by or against such company, or the public officer or any member thereof, may be continued in the same manner as if such registration had not taken place; nevertheless execution shall not issue against the effects of any individual member of such company upon any judgment, decree, or order obtained in any action or other proceeding so commenced as aforesaid; but, in the event of the assets of the company being insufficient to satisfy such judgment, decree, or order, an order may be obtained for winding up the company.
287 Effect of registration.
1903, No. 53, sec. 287
Where a company is registered under this Part of this Act, all provisions contained in any Act of the Imperial Parliament or of the General Assembly, Royal charter, letters patent, deed of settlement, or other instrument constituting or regulating the company (including, in the case of a company registered as a company limited by guarantee, the resolution declaring the amount of the guarantee) shall have the same effect as if they were contained in a registered memorandum of association and articles of association; and all the provisions of this Act shall apply to such company, and the members, contributories, and creditors thereof, in the same manner in all respects as if it had been formed under this Act, subject to the provisions following, that is to say:—
(a.)
Table A in the Second Schedule hereto shall not, unless adopted by special resolution, apply to any company registered under this Part of this Act.
(b.)
The provisions of this Act relating to the numbering of shares shall not apply to any joint-stock company whose shares are not numbered.
(c.)
No company shall have power to alter any provision contained in any Act of the Imperial Parliament or of the General Assembly, or in any letters patent relating to the company.
(d.)
In the event of the company being wound up every person shall be a contributory in respect of the debts and liabilities of the company contracted prior to registration who is liable to pay or contribute to the payment of any such debt or liability, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members amongst themselves in respect of any such debt or liability, or to pay or contribute to the payment of the costs, charges, and expenses of winding up the company so far as the same relate to such debts or liabilities.
(e.)
Every such contributory shall be liable to contribute to the assets of the company, in the course of the winding-up, all sums due from him in respect of any such liability as aforesaid.
(f.)
In the event of the death or bankruptcy of any such contributory as last aforesaid the provisions hereinbefore contained with respect to the representatives of deceased contributories, and the assignees of bankrupt contributories, shall apply.
(g.)
Any company registered under this Part of this Act or under the corresponding provisions of any Act heretofore in force for like purposes may after the provisions of its constitution as if it were a company originally formed under this Act; provided that provisions which would appropriately be contained in its memorandum of association may only be altered under the provisions of this Act relating to alterations of a memorandum of association.
288 Saving of powers under special Act, &c.
1903, No. 53, sec. 288
Nothing herein shall derogate from any power of altering its constitution or regulations that may be vested in any company registering under this Part of this Act, by virtue of any Act of the Imperial Parliament or of the General Assembly, Royal charter, letters patent, deed of settlement, or other instrument constituting or regulating the company.
289 Stay of proceedings on winding-up.
Ibid, sec. 289
The Court may at any time after the presentation of a petition for winding up a company registered under this Part of this Act, and before making an order for winding up the company, upon the application by motion of the company or of any creditor or contributory of the company, restrain further proceedings in any action or other proceeding against any contributory of the company, as well as against the company, upon such terms as the Court thinks fit.
290 After order for winding-up no legal proceedings to be taken without leave of Court.
Ibid, sec. 290
Where an order has been made for winding up a company registered under this Part of this Act, no action or other proceeding shall be commenced or proceeded with against any contributory of the company in respect of any debt due by the company except with the leave of the Court and subject to such terms as the Court imposes.
Re-registration of Companies
291 Registration anew of company.
Ibid, sec. 291
Subject as mentioned in this Act, any company registered as an unlimited company may register under this Act as a limited company, or any company already registered as a limited company may re-register under the provisions of this Act.
292 Effect of such registration.
Ibid, sec. 292
The registration in pursuance of this Act of an unlimited company as a limited company shall not affect or prejudice any debts, liabilities, contracts, or obligations incurred or entered into by, to, with, or on behalf of such company prior to registration; and such debts, liabilities, contracts, and obligations may be enforced in the manner provided by this Part of this Act in the case of a company registering in pursuance thereof.
293 Reserve capital of company, how provided.
Ibid, sec. 293
An unlimited company may, in accordance with the resolution passed by the members when assenting to registration as a limited company under this Act, and for the purpose of such registration or otherwise, increase the nominal amount of its capital by increasing the nominal amount of each of its shares:
Provided that no part of such increased capital shall be called up except in the event of and for the purposes of the company being wound up.
294 Uncalled capital in unlimited company.
Ibid, sec. 294
Where no such increase of nominal capital is resolved upon, an unlimited company may, by such resolution as aforesaid, provide that a portion of its uncalled capital shall not be called up except in the event of and for the purposes of the company being wound up.
295 Closing of former registry in case of re-registration.
Ibid, sec. 295
On the registration, in pursuance of section two hundred and ninety-one hereof, of a company that has already been registered, the Registrar shall make provision for closing the former registration of the company, and may dispense with the delivery to him of copies of any documents with copies of which he was furnished on the occasion of the original registration of the company; but, save as aforesaid, the registration of such company shall take place in the same manner and have the same effect as if it were the first registration of that company under this Act.
296 Privileges of Act available, notwithstanding constitution of company.
1903, No. 53, sec. 296
A company authorised to register under the provisions of this Act relating to re-registration may register thereunder and avail itself of the privileges conferred by this Act, notwithstanding any provisions contained in any Act of the Imperial Parliament or of the General Assembly, Royal charter, letters patent, deed of settlement, regulations, or other instrument constituting or regulating the company.
Part IX Companies incorporated outside New Zealand
297 Foreign company defined.
Ibid, sec. 297
In this Part of this Act, if not inconsistent with the context,—
“Foreign company” means any partnership, association, company, or corporation incorporated outside New Zealand.
Carrying on Business
298 Company may appoint attorney within New Zealand.
Ibid, sec. 298
(1.)
A foreign company may from time to time, by an instrument in writing under its common seal, or executed in such manner as to be binding on the company, empower any person, either generally or in respect of any specified matters, as its attorney, to sue and be sued, or otherwise appear or be impleaded in any Court in any civil or criminal proceeding, or before any arbitrator or person having by law or consent of parties authority to take evidence, and generally on behalf of such company to do all acts and to execute any deeds or instruments within New Zealand.
(2.)
Where more than one person is appointed,—
(a.)
The appointment may be joint, or joint and several; and
(b.)
The powers and authorities conferred on such persons may be in respect of the same or separate matters.
299 Acts of attorney to be binding on company.
Ibid, sec. 299
Every act done or purporting to be done, and every deed or instrument executed or signed by such attorney on behalf of the foreign company by whom he is appointed, shall bind the company in the same way and to the same extent, and have the same force and effect in every respect, as if such act had been done by the company, and as if such deed or instrument had been duly sealed with the common seal of the company, or otherwise executed or signed in such manner as to bind the company.
300 Power of attorney appointing agent to be deposited with Registrar of Court.
Ibid, sec. 300
(1.)
Before any foreign company commences business in New Zealand the attorney so appointed shall deposit in the office of the Court nearest to the place where such company proposes to carry on business a certified copy of the original power of attorney under which he claims to represent such company, together with a certified copy of the certificate or other evidence of the incorporation of such company as hereinafter mentioned.
(2.)
It shall be the duty of the Registrar of the Court to ascertain that such copies so deposited are true copies of the original instruments; and such copies shall be open to the inspection of the public on payment of a fee of one shilling.
301 Where foreign company carries on business in several places copies to be deposited in each.
1903, No. 53, sec. 301
If the foreign company proposes to carry on business in different places in New Zealand, or, after commencing business in one part thereof, extends its operations to other parts of New Zealand, the attorney shall deposit like copies of the power of attorney and certificate or other evidence of incorporation at the principal office of the Court in the judicial district within which the company so proposes to carry on or desires to extend its business; and all the provisions of the last preceding section shall apply accordingly.
302 Foreign company to have office in New Zealand where notices, &c., may be served.
Ibid, sec. 302
Every foreign company shall have an office or place of business in New Zealand where legal process of any kind may be served upon it, and notices of any kind may be addressed or delivered; and for the purposes of this Act the following provisions shall apply:—
(a.)
Before any foreign company commences or carries on business in New Zealand the attorney of every such company shall cause a notice to be inserted in at least three consecutive issues of the Gazette, and of some newspaper circulating in the place where it is proposed to commence or carry on business, stating the situation and locality of such office or place of business.
(b.)
If any change is made in the situation or locality of such office or place of business the attorney shall cause a like notice of such change to be given in the manner hereinbefore provided.
(c.)
The preceding provisions of this section shall extend and apply to every place where the foreign company carries on business at any time in New Zealand.
(d.)
Service of legal process or the delivery of any notice at any such office or place of business shall for all purposes be deemed good service on the company; but nothing herein shall be deemed to control or affect any statute or rule now or hereafter in force regulating the service of legal process upon any person or corporate body according to the practice of the Court whence such process issues.
(e.)
Every attorney of a foreign company who fails to comply with any of the foregoing provisions is liable to a fine of five pounds for every day during which the business of such company is carried on contrary to this Act.
303 Declaration as to incorporation of company to be evidence.
Ibid, sec. 303
(1.)
A declaration indorsed upon or annexed to any instrument appointing, or purporting to appoint, an attorney as hereinbefore mentioned, made or purporting to be made by one of the directors or by the general manager of the foreign company so appointing an attorney, before a Mayor, Provost, notary public, British Consul or Vice-Consul, or other person lawfully authorised to take such declaration, to the effect that—
(a.)
The company is incorporated under the style mentioned in the instrument, in accordance with the law of the country where it is so incorporated [Naming such country]; and
(b.)
The seal affixed thereto is the common seal of the said company; and
(c.)
The seal has been affixed, and the instrument executed, and the powers and authorities purporting to be conferred upon the attorney are authorised to be conferred under the constitution of the company, or in pursuance of the Act or instrument under which the company is incorporated, or by the regulations for the time being thereof; and
(d.)
The declarant is a director or general manager of the company,—
shall be conclusive evidence of the facts set forth therein.
Declaration where no seal necessary.
(2.)
In cases where by the law of the country where the foreign company is incorporated no seal is necessary, or the company has no seal, the existence of such law or the fact that the company has no seal may be stated in such declaration, and the provisions of this section may be modified and shall take effect accordingly.
304 Power of attorney receivable in evidence.
1903, No. 53, sec. 304
Any power of attorney in respect of which any such declaration has been made as hereinbefore required, and any certified copy of any such power of attorney deposited under the provisions of this Act, shall for all purposes be receivable in evidence without further proof of the sealing, signature, or other execution thereof.
305 Power of attorney to continue in force until notice of revocation received.
Ibid, sec. 305
Every power of attorney purporting to be granted by any foreign company as hereinbefore mentioned shall, as between the company, its successors and assigns, on the one hand, and the persons dealing with the attorney of such company and all parties claiming through or under such persons, on the other hand, continue in force (notwithstanding that such power has been revoked, or the company wound up or dissolved) until the attorney of the company, or all and every the attorneys, if more than one, to whom such power is given have received notice or information of such revocation, winding-up, or dissolution.
306 Declaration of attorneys to be sufficient proof of non-revocation.
Ibid, sec. 306
(1.)
A statutory declaration by the attorney of any foreign company that he has not received any notice or information of the revocation of the power of attorney, or of the winding-up or dissolution of the company, shall be taken to be conclusive proof that no such revocation, winding-up, or dissolution has taken place.
(2.)
Where there are more attorneys than one, such declaration may be made by any one of the attorneys.
307 Foreign company to give due notice of intention to cease carrying on business.
Ibid, sec. 307
(1.)
Before any foreign company voluntarily ceases to carry on business in any part of New Zealand at least three months’ notice shall be given by its attorney of its intention so to do, and such notice shall be published in at least three consecutive issues of the Gazette and of some newspaper circulating at each place in New Zealand where the company carries on business.
(2.)
For a period of three months after the first gazetting of such notice legal process and other documents may be served on the attorney of the company under this Act, or, if there is no such attorney, then by leaving the same at any office or place of business where the company carried on business prior to the giving of the notice aforesaid, and such service shall be as effectual as if the notice aforesaid had not been given.
308 Evidence of incorporation of company.
Ibid, sec. 308
(1.)
A certificate of incorporation given under the hand of any officer who may by the law of the country in which such foreign company purports to be incorporated be authorised to grant such certificate, duly verified by declaration made by one of the directors or the manager of such company before a Mayor, Provost, notary public, British Consul or Vice-Consul, or other person lawfully authorised to take such declaration, shall be conclusive evidence that such company has been duly incorporated.
(2.)
The date of incorporation mentioned in such certificate or in such declaration shall be deemed to be the date at which such company was incorporated; or if no such date be mentioned, then the date of such certificate shall be deemed to be the date at which such company was incorporated.
(3.)
Where no certificate of incorporation has been given, an exemplification of any Royal charter, or a copy of the Act or instrument of incorporation, or any document of a similar effect to a certificate of incorporation under which the foreign company purports to be incorporated, duly verified as hereinbefore required, shall be sufficient evidence for the purposes of this section.
(4.)
Nothing herein shall be construed as limiting the power of any Court to receive any evidence of the incorporation of a foreign company that it deems sufficient.
309 Act not to authorise issue of bank or promissory notes.
1903, No. 53, sec. 309
Nothing in this Part of this Act shall be construed to authorise any foreign company incorporated as aforesaid to issue notes or promissory notes payable on demand in New Zealand.
Winding-up
310 May be wound up by the Court.
Ibid, sec. 310
(1.)
Any foreign company may be wound up under this Act—
(a.)
Where the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs:
(b.)
Where the company is unable to pay its debts:
(c.)
Where the Court is of opinion that it is just and equitable that the company should be wound up:
Provided that no company shall be wound up under this Act voluntarily, or subject to the supervision of the Court.
(2.)
All the provisions of this Act relating to winding up apply to the winding-up of a foreign company.
311 When company unable to pay its debts.
Ibid, sec. 311
A foreign company shall, for the purposes of this Act, be deemed to be unable to pay its debts—
(a.)
If a creditor to whom the company is indebted, by assignment or otherwise, in a sum exceeding fifty pounds has served on the company, by leaving the same at the principal place of business of the company, or by delivering the same to the manager or some director or principal officer of the company, or by otherwise serving the same in such manner as the Court approves or directs, a demand under his hand requiring the company to pay the sum so due, and the company has for the space of twenty-one days after the service of such demand failed to pay such sum, or to secure or compound for the same to the satisfaction of the creditor; or
(b.)
If an action or other proceeding has been commenced against any member of the company for any debt or demand due or claimed to be due from the company or from him in his character of member of the company, and notice in writing of the commencement of such proceeding has been served upon the company in the manner aforesaid, and the company has not within ten days after service of such notice paid, secured, or compounded for such debt or demand, or procured such proceeding to be stayed, or indemnified the defendant to his reasonable satisfaction against such proceeding, and against all costs, damages, and expenses to be incurred by him by reason thereof; or
(c.)
If execution or other process issued on a judgment, decree, or order obtained in any Court in favour of any creditor in any proceeding commenced by such creditor against the company, or any member thereof as such member, or against any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied; or
(d.)
If it is otherwise proved to the satisfaction of the Court that the company is unable to pay its debts.
312 Principal office to be deemed to be registered office.
1903, No. 53, sec. 312
Where proceedings are taken for winding up a foreign company, the principal place of business in New Zealand of such company shall for all purposes of this Part of this Act be deemed to be the registered office of the company.
313 Powers of liquidator of British company.
Ibid, sec. 313
The liquidator of a foreign company now or hereafter being wound up may exercise all or any of the powers conferred on a company by this Part of this Act.
314 Powers under Companies Seals Act.
Ibid, sec. 314
A liquidator of a foreign company incorporated in the United Kingdom may exercise all or any of the powers conferred on a company by the Imperial Act known as “The Companies Seals Act, 1864,”
and such liquidator shall be deemed to have had, from the passing thereof, authority to exercise all or any of such powers.
315 Declaration of liquidator conclusive as to certain facts.
Ibid, sec. 315
Where a foreign company is being wound up a declaration made by the liquidator before a Mayor, Provost, notary public, British Consul or Vice-Consul, or other person lawfully authorised to take such declaration, indorsed upon or annexed to any instrument appointing or purporting to appoint an attorney for the purposes of the winding-up, to the effect that—
(a.)
The company is incorporated in Great Britain or elsewhere under the style mentioned in the instrument;
(b.)
The seal affixed thereto is the common seal of the company;
(c.)
The seal has been so affixed and the instrument executed;
(d.)
The powers and authorities purporting to be conferred by the said instrument upon the person therein mentioned have been authorised; and
(e.)
The person making the declaration is a liquidator of the company,—
shall be final and conclusive evidence of the facts set forth therein.
316 Protection of persons dealing with liquidator.
Ibid, sec. 316
No person dealing bona fide with the liquidator of a foreign company now or hereafter being wound up, whether in or out of New Zealand, shall be affected by any invalidity or irregularity in or about the winding-tip of such company, or the appointment of such liquidator.
317 Who to be deemed contributories in the event of foreign company being wound up.
1903, No. 53, sec. 317
(1.)
In the event of a foreign company being wound up every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members amongst themselves, or to pay or contribute to the payment of the costs, charges, and expenses of winding up the company.
(2.)
Every such contributory shall be liable in the course of the winding-up to contribute to the assets of the company all sums due from him in respect of any such liability as aforesaid.
(3.)
In the event of the death or bankruptcy of any contributory the provisions hereinbefore contained with respect to the representatives of a deceased contributory, and to the assignee of a bankrupt contributory, shall apply.
318 Stay of proceedings where petition presented for winding up.
Ibid, sec. 318
The Court may, at any time after the presentation of a petition for winding up a foreign company, and before making an order for winding up the company, upon the application of the company or of any creditor or contributor of the company, restrain further proceedings in any action or other proceeding against any contributory of the company, or against the company, upon such terms as the Court thinks fit.
319 After order for winding-up no proceedings to be taken without leave of Court.
Ibid, sec. 319
Where an order is made for winding up a foreign company, no action or other proceeding shall be commenced or proceeded with against any contributory of the company in respect of any debt due by the company except with the leave of the Court and subject to such terms as the Court imposes.
320 Property of company may be vested in Official Liquidator, &c.
Ibid, sec. 320
(1.)
If any foreign company has no power to sue and be sued in a common name, or if for any reason it appeal’s expedient, the Court may, by the order made for winding up such company or by any subsequent order, direct that all property, including all interests, claims, and rights in, to, and out of property, and including things in action belonging to or to be vested in the company, or belonging to or vested in any person or persons upon trust for or on behalf of the company, or any part of such property, shall vest in the Official Liquidator, and thereupon the same or such part thereof as is specified in the order shall vest accordingly.
(2.)
The Official Liquidator may in his official name, or in such name or names and after giving such indemnity as the Court directs, bring or defend any action or other proceeding relating to any property vested in him, or necessary to be brought or defended for the purposes of effectually winding up the foreign company and recovering the property thereof.
321 Provisions in this Part of Act cumulative.
Ibid, sec. 321
(1.)
The provisions of this Part of this Act shall be deemed to be in addition to and not in restriction of any provisions hereinbefore contained with respect to the winding-up of companies by the Court.
Application of other Parts of Act to unregistered companies.
(2.)
Where a foreign company is being wound up under this Act the Court or Official Liquidator may exercise any powers or do any act that might be exercised or done by it or him in winding up companies formed under this Act; but a foreign company shall not, except in the event of its being wound up, be deemed to be a company under this Act, and then only to the extent provided by this Part of this Act.
Part X Miscellaneous Provisions
322 Provisions as to associations formed for purposes not of gain.
1903, No. 53, sec. 322
(1.)
Where any association desires to be registered under this Act as a limited company, if it is proved to the Governor in Council that such association is formed for the purpose of promoting art, science, religion, charity, or any other useful object, and that it intends to apply its profits, if any, or other income in promoting such objects, and to prohibit the payment of any dividend or bonus to its members, the Governor may, by Order in Council, direct such association to be registered with limited liability without the addition of the word “limited”
to its name.
(2.)
Such associations may be registered accordingly, and upon registration shall enjoy all the privileges and be subject to the obligations by this Act conferred or imposed on limited companies:
Provided that none of the provisions of this Act requiring a limited company to use the word “limited”
as any part of its name, or to publish its name, or to send a list of its members, directors, or managers to the Registrar, shall apply to an association so registered.
(3.)
Such Order in Council may be granted upon such conditions and subject to such regulations as are prescribed therein; and such conditions and regulations shall be binding on the association, and may, at the option of the Governor in Council, be inserted in the memorandum of association and articles of association, or in either of such documents.
Prohibition against certain companies holding land.
(4.)
No such company shall, without the sanction of the Governor in Council, hold more than two acres of land:
Provided that the Governor in Council may empower any such company to hold lands in such quantity and subject to such conditions as he thinks fit.
323 Forms in Third Schedule to be used.
Ibid, sec. 323
The forms set forth in the Third Schedule hereto, or forms as near thereto as circumstances admit, shall be used in all matters to which such forms refer.
324 Governor in Council may alter forms.
Ibid, sec. 324
The Governor in Council may from time to time make such alterations in the tables and forms contained in the Schedules hereto, or make such additions to the said forms, as he deems requisite, so long as he does not increase the amount of fees payable to the Registrar mentioned in the Second Schedule.
325 Alterations to be gazetted.
Ibid, sec. 325
Any such table or form, when altered, shall be gazetted, and thereupon it shall have the same force as if it were included in the appropriate Schedule hereto; but no alteration made by the Governor in Council in Table A in the Second Schedule hereto shall affect any company registered prior to the date of such alteration, or repeal as respects such company any portion of such table.
Part XI Special as to Fire and Marine Insurance Companies
326 Interpretation.
1889, No. 14, sec. 2
In this Part of this Act, if not inconsistent with the context,—
“Insurance company.” means any association, person, or persons, corporate or unincorporate, who within New Zealand carry on the business of fire and marine insurance conjointly, or the business of fire or marine insurance, or who carry on such business or either of them in common with any other business; and includes companies registered or established out of New Zealand, and mutual associations as well as proprietary:
“Foreign insurance company” means an insurance company, as hereinbefore defined, registered or established beyond the limits of New Zealand:
“Local insurance company” means an insurance company, as hereinbefore defined, registered or established within New Zealand.
327 Fire and marine insurance company may be registered with limited liability if it has a capital of £50,000 intact.
Ibid, sec. 3
(1.)
Any insurance company carrying on business on the sixteenth clay of September, one thousand eight hundred and eighty-nine (being the date of the coming into operation of “The Fire and Marine Insurance Companies Act, 1889”
), may, notwithstanding anything to the contrary contained in section four of this Act, be registered under this Act with limited liability, if such company has a paid-up capital intact to the extent of not less than fifty thousand pounds.
Meaning of expression “capital intact,”
(2.)
For the purposes of this Part of this Act the expression “capital intact”
means that the company in relation to which such expression is used has a paid-up capital to the amount mentioned clear of all claims or demands then actually due or pending, or that could be enforced against such company, and not being contingent liabilities arising out of or in relation to the business of the company.
328 Companies registered with unlimited liability may be re-registered with limited liability.
Ibid, sec. 4
(1.)
Any such company which has been registered with unlimited liability under this Act, or under any former Act for like purposes, may be re-registered with limited liability, under the provisions of section two hundred and ninety-one and the succeeding sections of this Act providing for re-registration.
Liability of shareholders.
(2.)
On such re-registration a shareholder of such company shall be liable to pay only to the extent of the amount unpaid on the nominal or subscribed value of the share or shares held by him, and no more, but without prejudice, however, to any debts, liabilities, obligations, or contracts incurred or entered into by, to, with, or on behalf of such company prior to re-registration, all of which may be enforced as in section two hundred and ninety-two of this Act is mentioned.
329 When company re-registered, evidence that it has a paid-up capital of £50,000.
Ibid, sec. 5
When any such company is re-registered as aforesaid it shall be made to appear to the Registrar, either by the last balance-sheet issued by the company or by such other satisfactory documentary evidence as the Registrar thinks sufficient, that such company has, at the time of or immediately prior to such re-registration, not less than fifty thousand pounds paid-up capital intact.
330 Registration fees payable on re-registration, but no new license under Stamp Duties Act necessary.
1889, No. 14, sec. 6
On such re-registration the company shall be liable to pay all fees which may be chargeable under this Act in respect thereof, but shall not be liable for and during the year in which such re-registration has been effected to obtain any fresh license or to pay any additional duty in respect thereof under “The Stamp Duties Act, 1908,”
and the annual license then already issued in respect of such company shall continue in force and be available for such re-registered company for the remaining part of such year only.
331 Loral companies may hereafter be registered as companies with limited liability.
Ibid, sec. 7
Any local insurance company hereafter registered under this Act may be registered as a company with limited liability, but no such company shall commence to do business in New Zealand unless and until it has a paid-up capital of fifty thousand pounds:
Provided that it shall be a sufficient compliance with this section if it is made to appear to the Registrar that the capital of such company consists of twenty-five thousand pounds actually paid up and intact and twenty-five thousand pounds called up and payable within six months after the date of registration:
Provided further that no such company shall carry on business within New Zealand after the expiration of eight months from the date of such registration unless the whole amount of fifty thousand pounds has been fully paid up and is kept intact.
332 When a local company may be registered for purpose of insuring property of shareholders.
Ibid, sec. 8
Any local insurance company hereafter registered under this Act, and incorporated for the purpose of insuring only the property of its own shareholders, and of no other person, may be registered as a limited liability company, if such company has a paid-up capital intact of not less than twenty-five thousand pounds, and also an unpaid capital of not less than twenty-five thousand pounds:
Provided that the company shall not insure the property of any shareholder holding a share or shares to a less amount than ten pounds of nominal capital of which not less than five pounds have been paid up:
Provided further that if any such company insures the property of any person other than a shareholder as aforesaid the company shall be liable to a fine not exceeding fifty pounds for every insurance so effected; and provided also that when the paid-up capital of any such company as shown by its balance-sheet is reduced below twenty-five thousand pounds the provisions of the next succeeding section shall, mutatis mutandis, apply.
333 If balance-sheet of company shows less capital, same to be made up to required amount, or directors liable for debts of company.
Ibid, sec. 9
(1.)
Where at any time the balance-sheet of any insurance company that has been re-registered or registered with limited liability under this Act shows less than fifty thousand pounds of capital intact, the directors of such company shall, without delay, call up sufficient capital to make up such fifty thousand pounds, and such additional capital shall be payable within four months from the date of the balance-sheet which showed the deficiency of capital intact.
(2.)
After the expiration of a period of six months from the date of such balance-sheet, if such additional capital is not paid up, the company shall cease to carry on business in New Zealand as a limited company; and if it continues to carry on business the shareholders of such company shall be liable for its debts, contracts, and engagements as if such company was not registered with limited liability.
334 Foreign companies to have like paid-up capital intact.
1889, No. 14. sec. 10
(1.)
Every foreign insurance company with limited liability which at the date of the coming into operation of this Act carries on business, or which hereafter commences to carry on business, in New Zealand shall have a paid-up capital intact of not less than fifty thousand pounds.
To be liable to certain provisions of this Act and to deposit balance-sheets, &c.
(2.)
No such company shall so carry on business unless it has complied with Part IX of this Act, and has also, together with any power of attorney or other instrument required to be deposited or filed under the said Part IX, deposited a verified copy of the last balance-sheet of such company, or such other documentary evidence as may sufficiently prove that the company has such paid-up capital intact.
335 Balance-sheets to be deposited yearly.
Ibid, sec. 11
(1.)
At least once in each year after the date on which the first balance-sheet or other evidence was deposited as aforesaid every such foreign insurance company shall cause a true and duly verified copy of the last balance-sheet issued by such company to be deposited at the place where such power of attorney is deposited as aforesaid.
If paid-up capital less than required amount, company not to carry on business.
(2.)
If any such balance-sheet shows that the fifty thousand pounds paid-up capital is not intact within the meaning of this Act, and the deficiency is not made up within six months, the onus of proof of which shall lie on the attorney or agent of the company, such company shall be incapable of carrying on business in New Zealand, and shall cease to carry on such business until this Act has been fully complied with.
336 Foreign company to use word “Limited,”
unless expressly authorised to contrary.
Ibid, sec. 12
Unless expressly authorised to the contrary by an Act of the Imperial Parliament, or by Royal charter or letters patent, or by some Act of the Legislature of any British colony or dependency, every foreign insurance company shall have, and for all purposes and on all occasions shall use, the word “Limited”
as the last word in the name of such company.
337 Local companies to add word “Limited”
after name.
Ibid, sec. 13
Every local insurance company registered or re-registered in accordance with the provisions of this Part of this Act shall have, and for all purposes and on all occasions shall use, the word “Limited”
as the last word in the name of such company.
338 Registrar not to issue certificate of incorporation unless Act complied with.
Ibid, sec. 14
No Registrar shall hereafter issue a certificate of incorporation to a local insurance company, either upon the first registration or upon a re-registration of such company, until the provisions of this Part of this Act have been fully complied with.
339 Fine on companies for non-compliance with Act.
Ibid, sec. 15
Every insurance company which commences to carry on business or continues business without complying with the requirements of this Part of this Act, or which, after and during any period within which it is prohibited from carrying on business in New Zealand, delivers any policy of insurance or collects any premiums, or transacts any other business of insurance, commits an offence, and is liable to a fine not exceeding fifty pounds for every day during which such offence continues; and in the case of a foreign insurance company the attorney, agent, or other officer acting in the general management of the business of such company shall also be personally liable to such fine.
Part XII Mining Companies
340 Interpretation.
1904. No. 39, sec. 2
In this Part of this Act, if not inconsistent with the context,—
“Mining company” means a company, partnership, or co-adventure for mining purposes:
“Mining purposes” means the purpose of obtaining any precious metal or precious stone of any kind by any method whereby the soil or earth, or any rock or stone, may be disturbed, removed, carted, carried, washed, sifted, smelted, refined, crushed, or otherwise dealt with for the purpose of obtaining such precious metal or precious stone, whether such metal or stone is the property of the Crown, or of any company, or of any person whomsoever; and also the purchase, construction, erection, and maintenance of machinery of any kind, and letting the same for hire, for all or any such purposes as aforesaid; and also the purchase, construction, erection, and maintenance of races, sluices, and watercourses, and letting or selling the water or water-power therefrom or thereof for all or any such purposes as aforesaid.
341 Mining companies to be registered under this Act.
Ibid, sec. 3
No company, association, or partnership consisting of more than twenty-five persons shall be formed for mining purposes unless it is registered under this Act, or is formed in pursuance of some Act of the Imperial Parliament, or of the General Assembly, or by Royal charter, or letters patent.
342 Certain mining companies not required to register under this Act.
1903, No. 53, sec. 326
Notwithstanding anything elsewhere contained in this Act, any company, association, or partnership formed for mining purposes other than mining for coal, and consisting of not more than twenty-five members, may be formed and may carry on any mining business that has for its object the acquisition of gain to such company, association, or partnership, or to the individual members thereof, without being registered as a company under this Act.
343 Liability of members of unregistered company.
1904, No. 39, sec. 4
(1.)
The members of any company, association, or partnership required by this Part of this Act to be registered that is not so registered shall be jointly and severally liable for the whole debts of the company, association, or partnership; and any such member may be sued for any such debts without the joinder in the action of any other member.
(2.)
Any such unregistered company, association, or partnership may be wound up under the provisions of this Act.
344 Registration of mining companies.
Ibid, sec. 5
Subject to the provisions of this Part of this Act, a mining company may be registered in the same manner, and with the same consequences in all things, as a company limited by shares.
345 Provisions applied to mining companies.
Ibid, sec. 6
Subject as aforesaid, all the provisions of this Act relating to companies limited by shares shall, so far as the same are applicable, mutatis mutandis, extend and apply to mining companies.
346 All mining companies deemed to be registered under this Act.
Ibid, sec. 7
All mining companies registered or deemed to be registered under “The Mining Companies Act, 1904,”
shall be deemed to be registered under this Act.
347 Varieties of mining companies.
1904, No. 30, sec. 8
A mining company may be registered either as—
(a.)
A limited company, meaning thereby a company formed on the principle of having the liability of its members limited to the amount unpaid on their shares, in which case the word “Limited”
shall form the last word of the name of the company; or
(b.)
A no-liability company, meaning thereby a company formed on the principle that there is no contract between the company and its members that the members will pay or be liable in respect of their shares for any calls, or any contribution towards the debts and liabilities of the company, in which case the words “No Liability”
shall form the last words of the name of the company.
348 Effect of certificate of incorporation.
Ibid, sec. 9
On the issue of a certificate of incorporation of a mining company the subscribers of the memorandum of association, together with all other persons who from time to time become members of the company, shall, as from the date of incorporation mentioned in the certificate, be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, with power to hold lands and with power also to hold mining privileges under any Act for the time being in force relating to mining, but with such liability on the part of the members (except in the case of a no-liability company) to contribute to the assets of the company in the event of its being wound up under this Act.
Transfer of Shares
349 Transfers.
Ibid, sec. 10
(1.)
In every form of transfer of shares in a mining company there shall be written in ink the name of the transferee, whether a person or a company.
(2.)
Transfers may be made on a separate document, instead of being indorsed on a scrip certificate.
(3.)
A fee of one shilling only shall be charged in respect of the registration of the transfer of any share or shares included in one certificate.
350 Name of transferee to be entered on register.
Ibid, sec. 11
(1.)
No share in a mining company shall be deemed to be transferred unless and until the name of the transferee is entered as such transferee in the register of members in manner as herein mentioned.
(2.)
The transferor of a share in a mining company, or, where there are more transferors than one, then the transferor who first executes the transfer, shall, at the time of executing the transfer, attach to his signature the true date of signing the same, and such date shall be deemed to be the date of the transfer of the share to the transferee.
Transfer to be registered within certain time.
(3.)
The transferee shall present the transfer for registration in the books of the company within thirty days from the date of the transfer if the same was executed in New Zealand, within sixty days if executed in the Commonwealth of Australia or in Fiji, and within one hundred and twenty days if executed in any other place.
(4.)
On receipt of any transfer the secretary of the mining company shall forthwith indorse thereon the true date on which it was received.
(5.)
Every transferor of a share in a mining company who signs a transfer in which the true date of his signing is not inserted, and every company that registers a transfer contrary to this section, and every secretary of the company who neglects to indorse on any transfer the true date upon which the same was received for the purpose of registration, is liable to a fine of ten pounds; and if the transferee fails to cause the transfer to be registered as aforesaid he shall be liable to a fine not exceeding twenty pounds.
(6.)
No transfer shall be registered by any mining company after the expiration of one hundred and twenty days from the execution thereof by the transferor without the authority of a Judge of the Supreme Court or of a District Court, who, upon reasonable cause being shown him why the transfer was not previously registered, may order the secretary to register such transfer upon such terms or conditions as such Judge thinks fit.
351 Trust on fraudulent transfer incapable of being enforced.
1904, No. 39, sec. 12
If a member of a mining company, with a view of evading the liabilities incident to his share, transfers the same upon some trust or understanding under or according to which he is to be entitled at any future time to have retransferred to him or to resume the ownership of or to have any interest in such share, he shall be disabled from enforcing in any Court any trust for him in such share.
Recovery of Calls and Forfeiture of Shares
352 Proceedings for the recovery of unpaid calls.
Ibid, sec. 13
(1.)
The amount of any unpaid call on a share in any mining company (other than a no-liability company), together with interest thereon at the rate of six per centum per annum, may, at any time within fourteen days after the call became payable, be recovered as a debt due from the holder of the share to the company.
(2.)
In any proceeding under this section it shall be sufficient to state that the defendant is indebted to the company in the sum due for the call, the day on which the call became payable, and the sum claimed for interest.
(3.)
A copy of the resolution of the directors of the company declaring a call to be payable on that day, verified as being a true copy by the statutory declaration of the secretary of the company (whose signature and position as secretary it shall not be necessary to prove), shall be prima facie evidence that such call was duly made.
(4.)
If the amount of any judgment obtained in any such proceeding is not paid within twenty-one days after the date of the judgment, the share shall at the expiration of such twenty-one days be absolutely forfeited, without any resolution of directors or other proceeding.
353 Forfeiture of shares for non-payment of calls.
Ibid, sec. 14
Where proceedings under the last preceding section have not been taken, and the call remains unpaid at the expiration of twenty-one days after the day on which it became payable, or where a call on any share in a no-liability company remains unpaid for a like period, such share shall thereupon be absolutely forfeited, without any resolution of directors or other proceeding, whether or not proceedings for the recovery of the call have been commenced during such twenty-one days.
354 When holder of share subject to section 66 hereof.
Ibid, sec. 15
Notwithstanding the forfeiture of any share in a mining company other than a no-liability company, the holder of the share at the time of its forfeiture shall continue to be subject to the provisions of section sixty-six hereof.
355 Notice of forfeiture to be given.
1904, No. 39, sec. 16
(1.)
Not later than seven days after any share is forfeited, the secretary of the mining company shall send by registered letter addressed to the person registered in respect of such share, at his address appearing in the register, notice of the forfeiture, and of the time and place of the intended sale of the share under the provisions of the next succeeding section.
(2.)
If such notice is not sent as aforesaid, the secretary of the company shall be liable to a fine not exceeding ten pounds.
356 Forfeited shares to be sold by auction.
Ibid, sec. 17
(1.)
The directors of the mining company shall cause every forfeited share to be offered for sale by public auction, not earlier than twenty-eight nor more than forty-two days after the forfeiture.
(2.)
The date and place appointed for such auction shall be advertised not less than seven nor more than fourteen days before such date in a newspaper circulating in the neighbourhood where the registered office of the company is situate and also where its mining operations are carried on.
(3.)
In the case of a forfeited share in a no-liability company, the directors may offer the same for auction on the condition that the share may be withdrawn from sale if there is no bid equal to the amount of the unpaid call thereon; but in all other cases the share shall be offered without reserve.
(4.)
If any forfeited share is not offered for sale as prescribed in this section, the directors and secretary of the company shall each be liable to a fine not exceeding ten pounds in respect of each share not so offered.
357 Application of proceeds.
Ibid, sec. 18
(1.)
If such share is sold at such sale, the proceeds shall be applied in payment of any calls due or made at the date of such sale, and of the expense of the advertisement, and any other expenses necessarily incurred in respect of the forfeiture and auction sale, and, where proceedings have been taken for the recovery of any such call, of all costs and expenses incurred against the member in respect of such proceedings, and the balance (if any) shall be paid to him upon his delivering to the company the scrip representing such forfeited share.
Recovery of balance.
(2.)
If the share does not realise the amount of the calls, together with the costs and expenses as aforesaid, the balance shall (except in the case of shares in a no-liability company) be recoverable from the member in any competent Court as a debt due to the company, together with interest thereon calculated at the rate of six per centum per annum from the due date of the call or calls to date of payment of such balance.
358 Forfeited shares, how dealt with if unsold.
Ibid, sec. 19
(1.)
If any forfeited share in a mining company offered for sale by public auction is not sold, it shall forthwith be registered in the name of the company, and shall, until reissued, be the property of the company; but no liability shall attach to the company in respect of any such share, which shall be deemed to be held in trust for the company.
(2.)
Before reissuing any shares held in trust for the company as aforesaid, notice in writing shall be sent to every member of the company offering the shares to the members in proportion as nearly as may be to the number of shares previously held by each member respectively, and on such terms as the directors think fit.
(3.)
Such offer shall remain open for fourteen days from the date of the notice, after which the directors may offer to the public the shares offered to and not accepted by any member.
359 Redemption of forfeited shares.
1904. No. 39. sec. 20
Notwithstanding anything hereinbefore contained, the registered bolder of any forfeited share in a mining company at the time of its forfeiture may, at any time up to or on the day previous to that on which it is intended to sell the share, redeem the same by payment to the company of all calls made thereon, and of all expenses incurred by the company in respect of the forfeiture, and of all costs and expenses of any such proceedings that may have been taken as aforesaid; and upon such payment the secretary shall reenter the name of such person in the register of members, and he shall thereupon be entitled to the share as if the forfeiture had not been incurred.
360 Office to be open the day before sale.
Ibid, sec. 21
On the day previous to that on which a forfeited share in a mining company is to be offered for sale the company’s office shall be open during the hours for which it is by the regulations of the company to be kept open on days when it is by such regulations to be open.
361 Extraordinary meeting to be convened when one-third of shares in company forfeited.
Ibid, sec. 22
(1.)
Whenever shares equal to one-third in number or value of the total nominal capital of a mining company have become forfeited, and have been registered in the name of the company as hereinbefore provided, the directors shall within seven days thereafter convene an extraordinary meeting of the members of the company.
(2.)
The notice convening such meeting shall specify the names of the members who have forfeited their shares, and the number and nominal value of the shares so forfeited, and shall declare the business of the meeting to be to take into consideration the position of the company, and to provide for the disposal of the forfeited shares in accordance with the provisions of this Act.
(3.)
If the directors fail within the said seven days to call such meeting the same may be convened by any five or more shareholders who have not forfeited their shares.
Dividends
362 No dividend payable on shares when call is unpaid.
Ibid, sec. 23
No member of a mining company shall be entitled to a dividend on any share on which a call is due and unpaid, unless the amount of the dividend exceeds the amount of the unpaid call, in which case he shall only be entitled to the difference between such amounts.
363 Dividends payable from profits only.
Ibid, sec. 24
(1.)
Subject to the provisions of section fifty-two of this Act, no dividend shall be payable to the members of any mining company except out of the profits arising from the business of such company.
Directors paying dividends otherwise to be personally liable.
(2.)
Every director of a mining company who permits any dividend to be paid otherwise than out of such profits is liable to a fine not exceeding five hundred pounds and not less than one hundred pounds, and in default of payment thereof to imprisonment for a period of not less than three nor exceeding twelve months, and shall also be liable to the creditors of the company for the amount of the debts due by the company to them respectively to the extent that the dividends so paid exceeded the profits, and such amount may be recovered by the creditors, or the liquidators suing on behalf of the creditors.
(3.)
If the whole of any such debt is recovered from one director, he may recover contribution against any other director who also made or permitted such payment.
Directors
364 Disqualification of directors.
1904, No. 39, sec. 25
(1.)
No director of a mining company shall be or continue to be a director of any company working or holding ground abutting on or next to the company of which he was first appointed a director and engaged in litigation with that company.
(2.)
No person shall be eligible for election as a director of a mining company, or shall act as such, if he—
(a.)
Holds any office or place of profit under the company;
(b.)
Is in the pay or employment for valuable consideration of the company;
(c.)
Is concerned in or participates in the profits of any contract with the company;
(d.)
Is indebted to the company in any sum due in respect of any shares held by him; or
(e.)
Is a sharebroker, and has within six months prior to his election, or at any time thereafter whilst he is a director, had any dealings, directly or indirectly, as a sharebroker in the shares of the company to which he has been elected a director.
(3.)
Nothing in the last preceding subsection shall apply to any remuneration the directors may be entitled to receive by resolution of the members at any special or general meeting.
Meetings
365 Half-yearly report and statement.
Ibid, sec. 26
(1.)
Not less than seven days before the day on which any annual general meeting of a mining company is to be held, and again at the expiration of six months thereafter, the directors shall lodge at the company’s registered office a full and true report, as far as may be up to the day of the framing thereof, of the state and prospects of the company, together with a statement of the receipts and expenditure of the company during the last preceding six months, and of its assets and liabilities at the date of the statement, and showing the amount (if any) in arrear on the part of each member.
(2.)
Not later than three days after any such report and statement has been lodged as aforesaid a copy thereof shall be sent by post to every member, addressed to his last known place of abode.
(3.)
A copy of such half-yearly report and statement shall be tiled with the Registrar, accompanied by a statutory declaration verifying the same.
Accounts
366 Books to be open to inspection.
Ibid, sec. 27
(1.)
The books of account of a mining company, and also the reports and statements of the directors hereinbefore directed to be made, shall during office hours be open to the inspection of the shareholders and creditors of the company on payment of a fee of one shilling.
Copy of statement and accounts to be furnished to creditors or shareholders.
(2.)
A copy of any such statement or of such accounts shall, within two days after service on the company of a notice in writing by any creditor or shareholder of the company requesting the same, and on payment of such reasonable fee as may be fixed by the company, be furnished by the secretary of the company to the person so requesting.
(3.)
The accounts a copy of which is to be furnished may be limited at the secretary’s discretion to three months ending with the day of the service of the notice.
(4.)
Every copy furnished under this section shall be certified by the secretary as true, and shall be signed by him.
Form of books of account.
(5.)
The Minister of Finance from time to time may prescribe the form in which the books of account and half-yearly statement of raining companies shall be kept and made, and the directors shall keep such books and prepare such statement accordingly.
367 Books of company not liable to seizure.
1904, No. 39. sec. 28
No book or document belonging to a mining company shall be liable to be seized in execution for any debt, or, except as herein provided, to be taken out of the control of such company under any judgment, decree, or order of any Court.
368 Yearly return to be published.
Ibid, sec. 29
In the month of January in each year the directors of every mining company shall cause to be made out a true statement of the affairs of the company up to the thirty-first day of December of the preceding year, in the form of the Fifth Schedule hereto, accompanied by a statutory declaration of the secretary verifying the same; and shall also in the same month in each year cause such statement to be published in the Gazette, and a copy of such statement to be sent by post to every member at his last known place of abode.
369 Fine in default of making half-yearly statements or returns.
Ibid, sec. 30
If default is made in compliance with the provisions of either sections three hundred and sixty-five or three hundred and sixty-eight hereof, or both, every director and secretary of the company who makes or knowingly and wilfully authorises or permits such default is liable to a fine not exceeding five pounds for every day during which such default continues.
Foreign Mining Companies
370 Provisions relating to foreign mining companies.
Ibid, sec. 31
With respect to every company or corporation duly registered or incorporated elsewhere than in New Zealand, and formed for mining purposes within the meaning of this Part of this Act or “The Mining Act, 1906,”
or having such purposes amongst its objects, the following provisions shall apply:—
Registration of transfers of shares.
(a.)
Such company, while carrying on in New Zealand any mining operations within the meaning of “The Mining Act, 1908,”
or any business relating to mining within the meaning of this Part of this Act, shall at all times make adequate provision for the registration in New Zealand of transfers of its shares, and for the execution and issue in New Zealand of scrip certificates or other documents of title in respect of such shares (hereinafter referred to as scrip certificates”); and for that purpose—
New Zealand Register.
(i.)
Shall duly cause to be kept at its registered office in New Zealand a branch register (to be called “the New Zealand Register”
), wherein shall be entered the name, address, and, if known, the occupation of every shareholder who makes application in writing to be entered therein, as also the numbers and other necessary particulars of the shares to which his application relates; and also
Attorney.
(ii.)
Shall duly appoint and empower an attorney in New Zealand to do or cause to be done all things necessary for the purpose of there registering transfers of shares entered in the New Zealand Register, and executing and issuing on behalf of the company the scrip certificates in respect of such shares; and also
Entries in or transfers from registers.
(iii.)
May prescribe the mode in which a shareholder shall apply to be entered in the New Zealand Register, or to be removed from the New Zealand Register to the register (if any) kept abroad (hereinafter called “the Foreign Register”
), and, generally, from one register to the other:
Provided that it shall not be lawful for any shareholder to be entered on both the New Zealand and the Foreign Register at the same time in respect of the same shares; and also
Fees.
(iv.)
May prescribe reasonable fees (not exceeding one shilling) to be paid on each application for entry in the New Zealand Register, or removal from one register to another, and a reasonable time (not exceeding four months) to elapse between the application being made and the entry or removal being effected.
Provisions applied.
(b.)
The provisions of sections one hundred, one hundred and three to one hundred and nine, and three hundred and forty-nine to three hundred and fifty-one hereof shall apply to every New Zealand Register, and to every shareholder and share entered therein, and to every transfer of any such share.
Report or balance-sheet to be filed.
(c.)
Every such company shall, within three months after any report or balance-sheet is submitted to any meeting of its shareholders held out of New Zealand,—
(i.)
File in its registered office in New Zealand a true copy of such report or balance-sheet; and
(ii.)
Permit the same to be inspected at all reasonable times by any shareholder in New Zealand without fee; and
(iii.)
Publish in the Gazette (in the form in the Sixth Schedule hereto) a statement of the affairs of the company at the date to which such report or balance-sheet is prepared, together with a statutory declaration of the company’s attorney verifying the same.
Fine on default.
(d.)
If default is made in complying with any of the provisions of this section, the defaulting company, and every director, attorney, secretary, and manager, or other person acting in the management thereof, shall be severally liable to a fine not exceeding five pounds for every day during which such default continues.
General
371 Agreements with Natives not to be affected.
1904, No. 39, sec. 32
Nothing in this Part of this Act shall be construed to alter or affect any of the provisions of the several agreements entered into between the Governor, or any other person acting on behalf of the Governor, whereby gold-mining has been authorised on any Native land, or to prejudicially affect the rights and interests of the Native owners under any such agreement.
SCHEDULES
FIRST SCHEDULE Enactments consolidated
1889, No. 14.—“The Fire and Marine Insurance Companies Act, 1889.”
1903, No. 53.—“The Companies Act, 1903.”
1904, No. 39.—“The Mining Companies Act, 1904.”
1906, No. 58.—“The Statute Law Amendment Act, 1906”
: Section 4, also section 11 so far as applicable.
SECOND SCHEDULE
Sections 22, 23, 90, 122, 269, 287, 325, 1903, No. 53, First Schedule.
TABLE A Regulations for Management of a Company limited by Shares
Shares
1.
The shares shall be under the control of the directors, who may allot or otherwise dispose of the same to such persons on such terms and conditions and at such times as the directors think fit.
2.
Upon any offer of shares to the public for subscription the company may nay a commission of not more than 5 per cent. on the nominal amount of the shares, in pursuance of the powers in that behalf expressly conferred by “The Companies Act, 1908.”
3.
If by the conditions of allotment of any share the whole or part of the amount thereof shall be payable by instalments, every such instalment shall when due be paid to the company by the person who for the time being shall be the registered holder of the share.
4.
The joint holders of a share shall be severally as well as jointly liable for the payment of all instalments and calls due in respect of such share.
5.
The company shall be entitled to treat the registered holder of any share as the absolute owner thereof, and accordingly shall not be bound to recognise any partial, equitable, or other claim to, or interest, or any interest in the nature of a trust or otherwise in any shares or stock, or any other right in respect of any shares or stock save as herein provided.
Certificates
6.
The certificates of title to shares or stock shall be issued under the seal of the company, and signed by two directors and countersigned by the secretary or some other person appointed by the directors.
7.
Every member shall be entitled, free of charge, to due certificate for all the shares or stock registered in his name, or to several certificates, each for a part of such shares or stock. Every certificate of shares shall specify the number and denoting numbers of the shares in respect of which it is issued, and the amount paid up thereon.
8.
If any certificate be worn out or defaced, then upon production thereof to the directors they may order the same to be cancelled, and may issue a new certificate in lieu thereof; and if any certificate be lost or destroyed, then upon proof thereof to the satisfaction of the directors, and upon such indemnity as the directors deem adequate being given, a new certificate in lieu thereof shall be given to the person entitled to such lost or destroyed certificate.
9.
The sum of one shilling or such smaller sum (if any) as the directors may determine shall be paid to the company for every certificate issued under Regulation 8.
10.
The certificate of shares or stock registered in the names of two or more persons may be delivered to the person first named on the register, subject to any special arrangement to the contrary being made with the consent of the directors, but the directors may, before delivering such certificate of shares or stock, require the receipt for the same of all persons registered as entitled to such shares or stock.
Calls
11.
The directors may from time to time make such calls as they think fit upon the members in respect of all moneys unpaid on the shares held by them respectively and not by the conditions of allotment thereof made payable at fixed times, and each member shall pay the amount of every call so made on him to the persons and at the times and places appointed by the directors. A call may be made payable by instalments.
12.
A call shall be deemed to have been made at the time when the resolution of the directors authorising such call was passed.
13.
Fourteen days’ notice of any call shall be given specifying the time and place of payment and to whom such call shall be paid.
14.
If the sum payable in respect of any call or instalment be not paid on or before the day appointed for payment thereof, the holder for the time being of the shave in respect of which the call shall have been made or the instalment shall be due shall pay interest for the same at the rate of six pounds per centum per annum from the day appointed for the payment thereof to the time of the actual payment.
15.
On the trial or hearing of any action for the recovery of any money due for any call it shall be sufficient to prove that the name of the member sued is entered in the register of members of the company as the holder or one of the holders of the shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute-book, and that notice of such call was duly given to the member sued in pursuance of these regulations; and it shall not be necessary to prove the appointment or qualification of the directors who made such call, nor any other matter whatsoever; and the proof of the matters aforesaid shall be conclusive evidence of the debt.
16.
The directors may, if they think fit, receive from any member willing to advance the same all or any part of the money due upon the shares hold by him beyond the sums actually called for; and upon the money so paid in advance, or so much thereof as from time to time exceeds the amount of the calls then made upon the shares in respect of which such advance has been made, the company may, if the directors think fit, pay interest at such rate as the member paying such sum in advance and the directors agree upon; but no shareholder shall be entitled as of right to any interest on any money so paid in advance, and the directors may decline to pay any interest.
Forfeiture and Lien
17.
If any member fails to pay any call or instalment on or before the day appointed for the payment of the same, the directors may at any time thereafter during such time as the call or instalment remains unpaid serve a notice on such member requiring him to pay the same, together with any interest that may have accrued and all expenses that may have been incurred by the company by reason of such non-payment.
18.
The notice shall name a day (not being less than fourteen days from the date of the notice) and a place or places on and at which such call or instalment and such interest and expenses as aforesaid are to be paid. The notice shall also state that in the event of non-payment at or before the time and at the place appointed the shares in respect of which the call was made or instalment is payable will be liable to be forfeited.
19.
If the requisitions of any such notice as aforesaid are not complied with, any shares in respect of which such notice has been given may at any time thereafter, before payment of all calls or instalments, interest, and expenses due in respect thereof, be forfeited by a resolution of the directors to that effect. Such forfeiture shall include all dividends declared in respect of the forfeited shares and not actually paid before the forfeiture.
20.
When any share shall have been so forfeited, notice of the resolution shall be given to the member in whose name it stood immediately prior to the forfeiture; and an entry of the forfeiture, with the date thereof, shall forthwith be made in the register.
21.
Any share so forfeited shall be deemed to be the property of the company, and the directors may sell, reallot, and otherwise dispose of the same in such manner as they think fit.
22.
The directors may by resolution, at any time before any share so forfeited shall have been sold, reallotted, or otherwise disposed of, annul the forfeiture thereof upon such conditions as they think fit.
23.
Any member whose shares have been forfeited shall notwithstanding be liable to pay, and shall forthwith pay, to the company all culls, instalments, interest, and expenses owing upon or in respect of such shares at the time of forfeiture, together with interest thereon, from the time of forfeiture until payment, at six per centum per annum; and the directors may enforce the payment thereof if they think fit.
24.
The company shall have a first and paramount lien upon all the shares registered in the name of each member (whether solely or jointly with others) for his debts, liabilities, and engagements solely or jointly with any other person to or with the company, whether the period for the repayment, fulfilment, or discharge thereof shall have actually arrived or not; and such lien shall extend to all dividends from time to time declared in respect of such shares. Unless otherwise agreed, the registration of a transfer of shares shall operate as a waiver of the company’s lien, if any, on such shares.
25.
For the purpose of enforcing such lien the directors may sell the shares subject thereto in such manner as they think fit; but no sale shall be made until notice in writing of the intention to sell shall have been served on such member, his executors or administrators, and default shall have been made by him or them in the payment, fulfilment, or discharge of such debts, liabilities, or engagements for seven days after such notice.
26.
The net proceeds of any such sale shall be applied in or towards satisfaction of such debts, liabilities, or engagements, and the residue, if any, paid to such member, bis executors, administrators, successors, or assigns.
27.
A certificate under the hands of two of the directors and countersigned by the secretary that the power of sale hereinbefore mentioned has arisen and is exercisable by the company under these articles shall be conclusive evidence thereof.
28.
Upon any sale after forfeiture, or for enforcing a lieu in purported exercise of the powers hereinbefore given, the directors may cause the purchaser’s name to be entered in the register in respect of the shares sold, and the purchaser shall not be bound to see to the regularity of the proceedings or to the application of the purchase-money; and after his name has been entered in the register in respect of such shares the validity of the sale shall not be impeached by any person, and the remedy of any person aggrieved by the sale shall be in damages only and against the company exclusively.
Transfer of Shares
29.
The instrument of transfer of any share shall be signed both by the transferor and transferee, and the transferor shall be deemed the holder of such share until the name of the transferee is entered in the register in respect thereof.
30.
The instrument of transfer of any share shall be in writing in the usual form, or in the following form or as near thereto as circumstances will admit:—
I, , of , in consideration of the sum of pounds paid to me by , of (hereinafter called "the said transferee"), do hereby transfer to the said transferee shares numbered in the Company (Limited), to hold unto the said transferee, his executors, administrators, and assigns, subject to the several conditions on which I held the same immediately before the execution hereof; and I, the said transferee, do hereby agree to take the said shares, subject to the conditions aforesaid.
As witness our hands the day of .
Witness to the signature of, &c.
31.
No transfer shall be made to an infant or person of unsound mind.
32.
Every instrument of transfer shall be left at the office for registration, accompanied by the certificate of the shares to be transferred and such other evidence as the company may require to prove the title of the transferor or his right to transfer the shares.
33.
All instruments of transfer which shall be registered shall be retained by the company, but any instrument of transfer which the directors may decline to register shall be returned to the person depositing the same.
34.
A fee not exceeding two shillings and sixpence may be charged for each transfer, and shall, if required by the directors, be paid before the registration thereof.
35.
The transfer-books and register of members may be closed during such time as the directors think fit, not exceeding in the whole thirty days in each year.
36.
The directors may refuse to register any transfer of a share or shares—
(a.)
Where the company has a lien on the share or shares:
(b.)
Where it is not proved to their satisfaction that the proposed transferee is a responsible person.
Transmission of Shares
37.
The executors or administrators of a deceased member (not being one of several joint holders) shall be the only persons recognised by the company as having any title to the shares registered in the name of such member, and in case of the death of any one or more of the joint holders of any registered shares the survivor or survivors shall be the only persons recognised by the company as having any title to or interest in such shares.
38.
Any committee of a lunatic member or any person becoming entitled to shares in consequence of the death or bankruptcy of any member, upon producing such evidence that he sustains the character in respect of which he proposes to act under this article or of his title as the directors think sufficient, may, with the consent of the directors, be registered as a member in respect of such shares, or may transfer such shares.
Conversion of Shares into Stock
39.
The company in general meeting may convert any paid-up shares into stock.
40.
When any shares shall have been converted into stock the several holders of such stock may thenceforth transfer their respective interests therein or any part of such interests in the same manner and subject to the same regulations as and subject to which shares in the capital of the company may be transferred, or as near thereto as circumstances admit.
41.
The stock shall confer on the holders thereof respectively the same privileges and advantages as regards participation in profits and voting at meetings of the company, and for other purposes, as would have been conferred by shares of equal amount in the capital of the company, but so that none of such privileges or advantages except the participation in profits of the company shall be conferred by any such aliquot part of consolidated stock as would not, if existing in shares, have conferred such privileges and advantages. And, save as aforesaid, all the provisions herein contained shall, as far as circumstances will admit, apply to stock as well as to shares. No such conversion shall affect or prejudice any preference or other special privilege.
Increase of Capital
42.
The company in general meeting may from time to time increase the capital by the creation of new shares of such amount as may be deemed expedient.
43.
The new shares may be issued upon such terms and conditions, and with such rights and privileges annexed thereto, as the company in general meeting shall determine, and in particular such shares may be issued with a preferential or qualified right to dividends and in the distribution of assets of the company, and with a special right of voting.
44.
The company may before the issue of new shares determine that the same or any of them shall be offered in the first instance to all the then members in proportion to the amount of the capital held by them, or make any other provision as to the issue and allotment of the new shares; but in default of any such determination, or so far as the same shall not extend, the new shares may be dealt with as if they formed part of the shares in the original ordinary capital.
45.
Except so far as otherwise provided by the conditions of issue, any capital raised by the creation of new shares shall be considered part of the original ordinary capital, and shall be subject to the provisions herein contained with reference to the payment of calls and instalments, transfer and transmission, forfeiture, lien, and otherwise.
Reduction of Capital. Consolidation and Subdivision of Shares
46.
The company may from time to time reduce the capital or subdivide and consolidate shares in the manner and with all or any of the incidents prescribed or allowed by “The Companies Act, 1908.”
General Meetings
47.
The statutory general meeting shall be held at such time within the limits of time prescribed for the statutory meeting by “The Companies Act, 1908,”
and at such place as the directors may determine.
48.
Subsequent general meetings shall be held once in every subsequent year, at such time and place as may be determined by the directors.
49.
The above-mentioned general meetings shall be called ordinary general meetings. All other meetings of the company shall be called extraordinary general meetings.
50.
The directors may whenever they think fit, and they shall upon a requisition in writing by a member or members holding not less than one-tenth of the issued capital, convene an extraordinary general meeting.
51.
Any such requisition shall specify the object of the meeting required, and shall be signed by the members making the same, and shall be deposited at the office. It may consist of several documents in like form, each signed by one or more of the requisitionists. The meeting must be convened for the purposes specified in the requisition, and, if convened otherwise than by the directors, for those purposes only.
52.
In case the directors for fourteen days after such deposit fail to convene an extraordinary general meeting to be held within twenty-one days from the time of such deposit, the requisitionists, or a majority in value of them, may themselves convene a meeting to be held not later than three calendar months after the date of such deposit.
53.
Seven clear days’ notice, specifying the place, day, and hour of any meeting, and the purpose for which it is to be held, shall be given either by advertisement or by notice sent by post, or otherwise served as hereinafter provided. Whenever any meeting is adjourned for twenty-one days or more, at least four days’ notice of the place and hour of holding such adjourned meeting shall be given in like manner.
54.
The accidental omission to give or non-receipt of any such notice to or by any of the members shall not invalidate any resolution passed at the meeting to which such notice related.
Proceedings at General Meetings
55.
The business of an ordinary general meeting (other than the statutory meeting) shall be to receive and consider the statement of income and expenditure, and the balance-sheet, the reports of the directors and of the auditor, and any matters incident thereto, to elect directors and other officers in the place of those retiring by rotation, and to decide on the recommendation of the directors as regards dividends, and to transact any other business which, by statute, ought to be transacted at an ordinary meeting. All other business transacted at an ordinary general meeting, and all business transacted at an extraordinary general meeting, shall be deemed special.
56.
Five members personally present shall be a quorum for a general meeting for the choice of a chairman, the declaration of a dividend, and the adjournment of the meeting. For all other purposes the quorum for a general meeting shall be members personally present not being less than seven in number and holding or representing by proxy, as by these regulations provided, not less than one-fifth part of the issued capital of the company. No business shall be transacted at any general meeting unless the quorum requisite be present at the commencement of the business.
57.
The chairman of directors shall be entitled to take the chair at every general meeting, or if there be no such chairman, or if at any meeting he shall not be present within fifteen minutes after the time appointed for holding such meeting, the members present shall choose another director as chairman, and if no director be present, or if all the directors present decline to take the chair, then the members present shall choose one of their number to be chairman.
58.
If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon such requisition as aforesaid, shall be dissolved; but in any other case it shall stand adjourned to the same day in the next week at the same time and place, and if at such adjourned meeting a quorum be not present those members who are present shall be a quorum, and may transact the business for which the meeting was called.
59.
Every question submitted to a meeting shall be decided in the first instance by a show of hands; and in the case of an equality of votes the chairman shall, both on show of hands and at the poll, have a casting-vote in addition to the votes or vote to which he may be entitled as a member.
60.
At any general meeting, unless a poll is demanded by the chairman, or by at least five members holding or representing by proxy or entitled to vote in respect of at least one-fifth of the capital represented at the meeting, a declaration by the chairman that a resolution has been carried, or carried by a particular majority, or lost, or not carried by a particular majority, and an entry to that effect in the book of proceedings of the company, shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution. The provision that the five members demanding a poll shall hold at least one-fifth of the capital shall not apply to a poll demanded in respect of a special resolution.
61.
If a poll be demanded as aforesaid, it shall be taken in such manner and at such time and place as the chairman of the meeting may direct, and either at once or after an interval or adjournment or otherwise, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. The demand of a poll may be withdrawn.
62.
The chairman of a general meeting may, with the consent of the meeting, adjourn the same from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
63.
Any poll duly demanded on the election of a chairman of a meeting or on any question of adjournment shall be taken at the meeting, and without adjournment.
64.
The demand of a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which a poll has been demanded.
Votes of Members
65.
On a show of bands every member present in person shall have one vote, and upon a poll every member present in person or by proxy shall have one vote for every share held by him in respect of which there is no payment in arrear.
66.
Any person who is entitled to transfer any share or stock, though not the registered holder thereof, may vote at any general meeting in respect of such share or stock as if he were the registered holder if not less than forty-eight hours before the time of holding the meeting at which he proposes to vote he has satisfied the directors of his right to transfer such share or stock, or if the directors have previously admitted his right to vote at such meeting in respect thereof.
67.
Where there are joint registered holders of any share or stock, any one of such persona may vote at any meeting either personally or by proxy in respect of such share or stock as if he were solely entitled thereto; and if more than one of such joint holders be present at any meeting personally or by proxy, that one of the said persons so present whose name stands first on the register in respect of such share or stock shall alone be entitled to vote in respect thereof. Several executors or administrators of a deceased member in whose name any share or stock stands shall, for the purposes of this clause, be deemed joint holders thereof.
68.
Votes may be given either personally or by proxy.
69.
The instrument appointing a proxy shall be in writing under the hand of the appointor or his attorney, or, if such appointor is a corporation, under the hand of the chairman of directors, or managing director, or manager or attorney of such corporation. No person shall be appointed a proxy who is not a member of the company and qualified to vote, but a corporation being a member of the company may appoint any one of its officers to be its proxy.
70.
The instrument appointing a proxy and the power of attorney, if any, under which it is signed shall be deposited at the registered office of the company not less than forty-eight hours before the time for holding the meeting or adjourned meeting, as the case may be, at which the person named in such instrument proposes to vote.
71.
A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death of the principal, or revocation of the proxy, or transfer of the share or stock in respect of which the vote is given, provided no intimation in writing of the death, revocation, or transfer shall have been received at the registered office of the company before the meeting.
72.
A proxy may be appointed generally, or for a specified period or specified meeting; and every instrument of proxy shall, as far as the circumstances will admit, be in the form or to the effect following:—
I, , of , being a member of the Company (Limited), hereby appoint , of , or, failing him, , of , or, failing him, . as ray proxy to vote for me and on my behalf at the ordinary (or extraordinary, as the case may be) general meeting of the company to be held on the day of , and at any adjournment thereof.
As witness my hand, this day of , 19 .
73.
No member shall be entitled to be present, or to vote on any question either personally or by proxy, or as proxy for another member, at any general meeting, or upon a poll, or be reckoned in a quorum whilst any call or other sum shall be due and payable to the company in respect of any of the shares of such member.
Directors
74.
The seven persons whose names are first signed to the memorandum of association shall be the directors of the company until the statutory meeting, when they shall go out of office.
75.
The statutory meeting shall elect directors of the company. The number of directors shall be determined by the statutory meeting, and shall not be less than four or more than nine.
76.
The directors shall have power to appoint any other persons to be directors at any time before the first ordinary general meeting of the company, but so that the total number of directors shall not at any time exceed the maximum number fixed as aforesaid.
77.
A director may retire from his office upon giving one month’s notice in writing to the company of his intention so to do; and such resignation, if not previously accepted by the other directors or director, as the case may be, shall take effect upon the expiration of such notice.
78.
The directors shall be paid out of the funds of the company, by way of remuneration for their services, such sum or sums as the company may from time to time fix at a general meeting, and such remuneration shall be divided amongst them in such proportions and manner as the directors may determine.
79.
The office of a director shall be vacated—
(a.)
If he becomes bankrupt or suspends payment or compounds with his creditors:
(b.)
If he be found lunatic or becomes of unsound mind:
(c.)
If he absents himself from the meetings of the directors during a period of three calendar months without special leave of absence from the directors:
(d.)
If by notice in writing be resigns his office:
(e.)
If he is concerned in or participates in the profits of any contract with the company, or in the profits of any works done for the company:
Provided that no director shall be disqualified by reason of his being a member of an incorporated company which enters into contracts with or does any work for the company of which he is a director:
Provided further that if a director shall be a member of an unincorporated firm, and shall fully disclose his interest therein to the directors, he shall not be disqualified by reason of such firm entering into contracts with or doing work for the company of which he is a director, but he shall not vote on any matter relating to such contract or work.
80.
The continuing directors may act notwithstanding any vacancy in their body, but so that if the number falls below the minimum fixed by these regulations the directors shall not, except for the purpose of filling vacancies, act so long as the number is below the minimum.
Rotation of Directors
81.
At the first ordinary general meeting to be held other than the statutory meeting, and at every succeeding ordinary general meeting, one-third of the directors, or, if their number is not a multiple of three, then the number nearest to but not exceeding one-third, shall retire from office. A retiring director shall retain office until the dissolution or adjournment of the meeting at which his successor is appointed.
82.
The one-third or other nearest number first to retire shall, unless the directors agree among themselves, be determined by lot; in every subsequent year the one-third or other nearest number who have been longest in office shall retire. As between two or more who have been in office an equal length of time, the director to retire shall, in default of agreement between them, be determined by lot. The length of time a director has been in office shall be computed from his last election or appointment where he has previously vacated office.
83.
A retiring director shall be eligible for re-election.
84.
The company at any general meeting at which any directors retire in manner aforesaid shall fill up the vacated offices by electing a like number of qualified persons to be directors, and without notice in that behalf may fill up any other vacancies.
85.
If at any general meeting at which an election of directors ought to take place the places of the retiring directors are not filled up, the retiring directors or such of them as have not had their places filled up shall, if willing, continue in office until the ordinary meeting in the next year, and so on from year to year until their places are filled up, unless it shall be determined at such meeting to reduce the number of directors.
86.
The company in general meeting may from time to time increase or reduce the number of directors, and may also determine in what rotation such increased or reduced number is to go out of office.
87.
The company may by extraordinary resolution remove any director before the expiration of his period of office and appoint another person in his stead. The person so appointed shall hold office during such time only as the director in whose place he is appointed would have held the same if he had not been removed. Any casual vacancy occurring among the directors may be filled up by the directors, but any person so chosen shall retain his office so long only as the vacating director would have retained the same if no vacancy had occurred.
88.
No person not being a retiring director shall, unless recommended by the directors for election, be eligible for election to the office of director at any general meeting unless he or some other member, or firm, or corporation intending to propose or nominate him has at least seven clear days before the meeting left at the office a notice in writing under his hand signifying his candidature for the office, or the intention of such member, or firm, or corporation to propose or nominate him.
Proceedings of Directors
89.
The directors may meet together for the despatch of business, adjourn, or otherwise regulate their meetings and proceedings as they may think fit, and may determine the quorum necessary for the transaction of business. Until otherwise determined, three directors shall be a quorum.
90.
A director may at any time, and the secretary upon the request of a director shall, summon a meeting of the directors.
91.
Questions arising at any meeting of the directors shall be determined by a majority of votes, and in case of an equality of votes the chairman shall have a second or casting vote.
92.
A resolution in writing signed by all the directors shall be as valid and effectual as if it had been passed at a meeting of the directors duly called and constituted.
93.
The directors may elect a chairman of their meetings and determine the period for which he is to hold office, but if no such chairman is elected, or if at any meeting the chairman is not present at the time appointed for holding the same, the directors present shall choose some one of their number to be the chairman of such meeting.
94.
A meeting of the directors for the time being at which a quorum is present shall be competent to exercise all or any of the authorities, powers, and discretions by or under the memorandum or articles of association of the company for the time being vested in or exercisable by the directors generally.
95.
The directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit. Any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may from time to time be imposed on it by the directors.
96.
The meetings and proceedings of any such committee consisting of two or more members shall be governed by the provisions herein contained for regulating the meetings and proceedings of the directors, so far as the same are applicable thereto.
97.
All acts done at any meeting of the directors, or by a committee of directors, or by any person acting as a director, shall, notwithstanding that it shall afterwards be discovered that there was some defect in the appointment of such directors or persons acting as aforesaid, or that they or any of them or be were disqualified, be as valid as if every person had been duly appointed and was qualified to be a director.
Minutes
98.
The directors shall cause minutes to be duly entered in the books provided for the purpose—
(a.)
Of all appointments of permanent officers:
(b.)
Of the names of the directors present at each meeting of the directors and of any committee of directors:
(c.)
Of all resolutions and proceedings of general meetings and of meetings of the directors and committees.
And any such minutes of any meeting of the directors, or of any committee, or of the company, if purporting to be signed by the chairman of such meeting or by the chairman of the next succeeding meeting, shall be receivable as prima facie evidence of the matters stated in such minutes.
Powers of Directors
99.
The management and control of the business of the company shall be vested in the directors, who, in addition to the powers and authorities by these regulations and the memorandum of association or otherwise expressly conferred upon them, may exercise all such powers and do all such acts and things as may be exercised or done by the company and are not hereby or by statute expressly directed or required to be exercised or done by the company in general meeting.
100.
In furtherance and not in limitation of, and without prejudice to, the general powers conferred or implied by or in the last preceding regulation and of the other powers conferred by these regulations and the memorandum of association, it is hereby expressly declared that the directors shall be intrusted with and may exercise and perform the following powers and duties:—
(a.)
They may pay the costs, charges, and expenses preliminary and incidental to the promotion, formation, establishment, and registration of the company.
(b.)
They may purchase or otherwise acquire for the company any property, rights, or privileges which the company is authorised to acquire, at such price and generally on such terms and conditions as they think fit.
(c.)
They may at their discretion pay for any property, rights, or privileges acquired by or services rendered to the company, either wholly or partially in cash or in shares, bonds, debentures, or other securities of the company.
(d.)
They may from time to time take all steps and proceedings and do all acts and things they may consider advisable for carrying into effect the objects of the company.
(e.)
They may purchase, construct, erect, and maintain such buildings, machinery, and other works as may from time to time be found necessary for the purposes of the company; and they may purchase, rent, or otherwise acquire such offices, easements, lands, tenements, and hereditaments, or any interest therein, and on such terms as they may from time to time think advisable, and may accept such title to property as they may think reasonably safe. They may also from time to time let or sell any such lands, tenements, hereditaments, or interests therein as aforesaid, and generally may deal therewith as they consider most conducive to the interests of the company.
(f.)
They may appoint and, at their discretion, remove or suspend such managers, secretaries, officers, clerks, agents, workmen, and servants for permanent, temporary, or special services as they may from time to time think fit, and may determine their duties and powers and fix their salaries or emoluments, and may require security in such instances and to such amount as they shall think fit, and may delegate to such managers, secretaries, officers, or servants such powers as they may from time to time deem advisable.
(g.)
They may institute, conduct, defend, compound, or abandon any legal proceedings by and against the company or its officers, or otherwise concerning the affairs of the company, and also may compound and allow time for payment or satisfaction of any debts doe, and claims and demands by or against the company.
(h.)
They may refer any claims or demands by or against the company to arbitration, and observe and perform the awards.
(i.)
They may make and give receipts, releases, and other discharges for money payable to the company, and for the claims and demands of the company.
(j.)
They may from time to time establish and, at their discretion, discontinue branches or agencies on behalf of the company at any places either in or out of New Zealand, and make such regulations for the management of such branches or agencies on behalf of the company at any places either in or out of New Zealand as they shall think fit, and may appoint agents for the transaction of the business of the company upon such terms and with such powers and authorities as the directors think expedient, and may alter, vary, or revoke from time to time any such appointment, powers, or authorities.
(k.)
They may from time to time provide for the management of the affairs of the company abroad in such manner as they think fit, and in particular appoint any persons to be the attorneys or agents of the company, with such powers (including powers to subdelegate) and upon such terms as may be thought fit, and may alter, vary, or revoke from time to time any such appointment and any such powers.
(l.)
They may out of the available cash capital or profits of the company set aside such sum or sums as they may think fit as a reserve fund; and they may invest the several sums so set aside upon such investments as they may think fit, and may from time to time deal with and vary such investments and dispose of all or any part thereof for the benefit of the company; but they shall have power to employ the assets constituting the reserve fund in the business of the company, and that without being bound to keep the same separate from the other assets.
(m.)
They may from time to time make, vary, and repeal any rules and regulations for governing the company’s officers or servants, or any section thereof.
(n.)
They may enter into all such negotiations, contracts, and agreements, and rescind and vary and execute and do all such acts, deeds, and things in the name and on behalf of the company, as they may consider expedient for or in relation to any of the matters aforesaid or otherwise for the purposes of the company.
(o.)
They may make regulations for the use and safe custody of the common seal, provided always that every instrument to which the seal be affixed shall be signed by at least two directors and the secretary.
(p.)
They may make and execute all such assurances and instruments as may be necessary, provided that the same shall be signed by two directors, or by one director and the secretary.
(q.)
They may appoint a temporary substitute for the secretary, who shall for the purposes of these regulations be deemed to be the secretary.
(r.)
They may manage and deal with or acquire the ownership of any real or personal property which may come into the possession of the company as security for any debt in such manner as they may think fit, with as full powers as an individual would have in like case.
(s.)
They may make such provision as they think fit respecting the keeping and discontinuance of branch registers.
Borrowing-powers
101.
The directors may from time to time, and without negativing any implied power to borrow, at their discretion borrow for the purposes of the company from any persons, firms, or corporations any sum or sums of money on the security of all or any of the company’s property (real or personal), assets, and effects, both present and future, inclusive or exclusive of its unpaid calls or unpaid capital, or any part thereof, either under legal mortgages or charges, with powers of sale and other usual powers, or by the issue of mortgage debentures, debentures, bonds, obligations, or any other securities of the company; and any such mortgage debentures, debentures, bonds, obligations, or securities as aforesaid may be issued on the terms that the amount to be secured may be paid up by instalments, and that the debentures may be paid off by periodical and other drawings, and generally on such other terms and conditions as to rate of interest or otherwise as the directors think fit: and the directors may also borrow money from the company’s bankers on overdraft or otherwise, with or without security.
102.
Every debenture or security for securing the payment of money issued by the company may be so framed that the moneys thereby secured shall be assignable free from any equities between the company and the person to whom the same may be issued.
103.
Any mortgage debentures, debentures, bonds, obligations, or other securities may be issued at a discount, premium, or otherwise, and with any special privileges as to redemption, surrender, drawings, and otherwise.
104.
The directors shall register in accordance with “The Companies Act, 1908,”
all mortgages and charges specifically affecting the property of the company.
Seal
105.
The directors shall forthwith provide a common seal for the company, and they shall have power from time to time to destroy the same and substitute a now seal in lieu thereof.
Dividends
106.
The directors may, with the sanction of the company in general meeting, declare a dividend, to be paid to the members in proportion to their share capital.
107.
No dividend shall be payable except out of the net profits arising from the business of the company, and no dividend shall carry interest as against the company.
108.
No larger dividend shall be declared than is recommended by the directors, but the company in general meeting may declare a smaller dividend.
109.
The directors may deduct from the dividend payable to any member all such sums of money as may be due and payable by him to the company on account of calls, instalments, or otherwise, or any debt, liability, or engagement.
110.
In case several persons are registered as the joint holders of any shares or stock, any one or more of such persons may give effectual receipts for all dividends and payments on account of dividends in respect of such shares or stock; but the directors may, if they think fit, require the receipt of all the holders of such shares or stock.
111.
A transfer of any shares or stock shall not pass the right to any dividend declared thereon before the registration of the transfer.
112.
Unless otherwise directed, dividends may be paid by cheques or warrants sent through the post to the registered address of the member or person to whom the dividend is payable, or in case of joint holders of any shares (subject to arrangement between such joint holders consented to by the directors) to that one whose name stands first in the register in respect of such shares, and every cheque or warrant so sent shall be made payable to the order of the person to whom it is sent, but the company shall not be responsible for the loss in transmission of any cheque or warrant so sent, whether sent at the request of a member or otherwise.
Accounts
113.
The directors shall cause true accounts to be kept of the sums of money received and expended by the company, and the matters in respect of which such receipts and expenditure take place, and of the assets, credits, and liabilities of the company.
114.
The books of account shall be kept at the office of the company, or at such other place or places as the directors think fit.
115.
The directors shall from time to time determine whether, and to what extent, and at what times and places, and under what conditions or regulations the accounts and books of the company, or any of them, shall be open to the inspection of members, and no member shall have any right of inspecting any book or document of the company except as conferred by statute or authorised by the directors, or by a resolution of the company in general meeting.
116.
At the ordinary general meeting in every year, except the statutory meeting, the directors shall lay before the company a statement of the income and expenditure, and a balance-sheet (in the form annexed to this table, or as near thereto as circumstances will admit) containing a summary of the property and liabilities of the company, made up to a date not more than three months before the meeting, from the time when the last preceding statement and balance-sheet were made, and, in the case of the first statement and balance-sheet, from the incorporation of the company.
117.
Every such statement shall be accompanied by a report of the directors as to the state and condition of the company, and as to the amount which they recommend to be paid out of the profits by way of dividend or bonus to the members, and the amount standing to the credit of the reserve fund, distinguishing the amount, if any, which they have added to such reserve fund out of profits; and the statement, report, and balance-sheet shall be signed by the chairman, or, in his absence, by at least one director, and countersigned by the secretary.
118.
A printed copy of such statement of account, report, and balance-sheet shall, seven days previously to the meeting, be served on each member.
Audit
119.
Once at least in every year the accounts of the company shall be examined and the correctness of the statement and balance-sheet ascertained by one or more auditor or auditors, as required by “The Companies Act, 1908,”
Notices
120.
A notice may be served by the company on any member, either personally or by sending it through the post in a prepaid envelope or wrapper addressed to such member at his registered place of address.
121.
Each holder of registered shares or stock whose registered place of address is not in New Zealand may from time to time notify in writing to the company some place in New Zealand which shall be deemed his registered place of address for the purpose of the last preceding regulation; but, in the absence of any such notification, he shall not be entitled to have any notice sent to him from the company, whose registered office shall be deemed the registered address of such member for all purposes whatever, and all proceedings taken without other notice to any such member shall be as valid as if he had due notice thereof.
122.
All notices shall, with respect to any registered shares or stock to which persons are jointly entitled, be given to whichever of such poisons is named first in the register, and such notice so given shall be sufficient notice to all the holders of such snares or stock.
123.
Any notice sent by post shall be deemed to have been served on the day following the day on which the envelope or wrapper containing the same shall have been posted, and in proving such service it shall be sufficient to prove that the envelope or wrapper containing the notice was properly addressed and put into the post-office.
124.
Every person who by operation of law, transfer, or other means whatsoever shall become entitled to any share or stock shall be bound by every notice in respect of such share or stock which previously to his name and address being entered on the register shall have been duly given to the person from whom he derives his title to such share or stock.
125.
Any notice or document delivered or sent by post to or left at the registered address or address for service of any member in pursuance of these regulations shall, notwithstanding such member be then deceased or shall be in any way incapacitated, and whether the company have notice of his decease or incapacity or not, be deemed to have been duly served in respect of bis shares or stock, whether held solely or jointly with other persons, until some other person be registered in his stead as the holder or joint holder thereof; and such service shall for all purposes be deemed a sufficient service of such notice or document on his heirs, executors, administrators, successors, assigns, or committees, and all persons (if any) jointly interested with him in any such shares or stock.
126.
The signature to any notice to be given by the company may be written typewritten, or primed.
127.
Where a given number of days’ notice, or notice extending over any period, is required to be given, the day of service shall not be, but the day upon which such notice will expire shall be, included in such number of days or other period.
Indemnity of Directors
128.
Every director of the company shall be indemnified by the company against all costs, losses, and expenses which he may incur or become liable to by reason of any contract entered into or act or thing done by him as such director in the discharge of and within the scope of his duties.
Branch Registers
129.
The company may cause to be kept in any place a branch register or branch registers, and may make such provision us it may think fit respecting the keeping or discontinuance of branch registers, subject to any law in force regulating the keeping or discontinuance of branch registers.
Interpretation
130.
In these regulations, unless there be something in the subject or context inconsistent therewith,—
“The office” means the registered office for the time being of the company:
“The register” means the register of members to be kept pursuant to “The Companies Act, 1903”
:
“Month” means calendar month:
“In writing” means written or typewritten or printed, or partly written or partly typewritten or partly printed:
“The seal” means the common seal of the company:
“Capital” means the capital for the time being of the company:
“The directors” means the directors for the time being of the company:
“Members” or “shareholders” means the holders of shares for the time being: Words importing the singular number only include the plural number, and vice versa:
Words importing the masculine gender only include the feminine gender: Words importing poisons include firms and corporations, and “firm”
includes “partnership.”
Balance-sheet of the Company, made up to , 19 .
| Dr. | Capital and Liabilities. | |||||||
|---|---|---|---|---|---|---|---|---|
| I. Capital | Showing— | £ | s. | d. | £ | s. | d. | |
| 1 | The number of shares | |||||||
| 2 | The amount paid per share | |||||||
| 3 | If any arrears of calls, the nature of the arrear, and the names of the defaulters | |||||||
| 4 | The particulars of any forfeited shares | |||||||
| II. Debts & Liabilities of the Company | Showing— | |||||||
| 5 | The amount of loans on mortgages or debenture bonds | |||||||
| 6 | The amount of debts owing by the company, distinguishing— (a.)Debts for which acceptances have been given (b.)Debts to tradesmen for supplies of stock-in-trade or other articles (c.)Debts for law expenses (d.)Debts for interest on debentures or other loans (e.)Unclaimed dividends (f.)Debts not enumerated above |
|||||||
| VI. Reserve Fund | Showing— | |||||||
| The amount set aside from profits to meet contingencies | ||||||||
| VII. Profit and Loss | Showing— | |||||||
| The disposable balance for payment of dividend, &c. | ||||||||
| Contingent Liabilities | Claims against the company not acknowledged as debts | |||||||
| Moneys for which the company is contingently liable |
| Cr. | Property and Assets. | |||||||
|---|---|---|---|---|---|---|---|---|
| III. Property held by the Company | Showing— | £ | s. | d. | £ | a. | d. | |
| 7 | Immovable property, distinguishing— (a.)Freehold land (b.)Freehold buildings (c.)Leasehold buildings |
|||||||
| 8 | Movable property, distinguishing— (d.)Stock-in-trade (e.)Plant |
|||||||
| The cost to be stated, with deductions for depreciation in value as charged to the reserve fund or to profit and loss | ||||||||
| IV. Debts owing to the Company | Showing— | |||||||
| 9 | Debts considered good for which the company holds bills or other securities | |||||||
| 10 | Debts considered good for which the company holds no security | |||||||
| 11 | Debts considered doubtful and bad | |||||||
| Any debt due from a director or other officer of the company to be separately stated. | ||||||||
| V. Cash and Investments | Showing— | |||||||
| 12 | The nature of investment and rate of interest | |||||||
| 13 | The amount of cash, where lodged, and if bearing interest | |||||||
TABLE B Statement referred to in Part IV of “The Companies Act, 1908”
Section 110.
The capital of the company is , divided into shares1 of each.
The number of shares issued is . Calls to the amount of pounds per share have been made, under which the sum of pounds has been received.
The liabilities of the company on the 1st day of January [or July] were:—
Debts owing to sundry persons by the company—
On judgment, £
On specialty, £
On notes or bills, £
On simple contracts, £
On estimated liabilities, £
The assets of the company on that day were:—
Government securities [Stating them], £
Bills of exchange and promissory notes, £
Cash at bank, £
Other securities, £
TABLE C Table of Fees to be paid to the Registrar by a Company having a Capital divided into Shares
Sections 8, 282, 324.
| £ | s. | d. | |
| For registration of a company whose nominal capital does not exceed £2,000, a fee of | 5 | 0 | 0 |
| For registration of a company whose nominal capital exceeds £2,000. The above fee of £5, with the following additional fees, regulated according to the amount of nominal capital, that is to say,— | |||
| For every £1,000 of nominal capital or part of £1,000 after the first £2,000 up to £5,000 | 1 | 0 | 0 |
| For every £1,000 of nominal capital, or part of £1,000 after the first £5,000 up to £100,000... | 0 | 5 | 0 |
| For every £1,000 of nominal capital or part of £1,000 after the first £100,000 | 0 | 1 | 0 |
| For registration of any increase of capital made after the first registration of the company: The same fees per £1,000 or part of £1,000 as would have been payable if such increased capital had formed part of the original capital at the time of registration: | |||
| Provided that no company shall be liable to pay in respect of nominal capital on registration or afterwards any greater amount of fees than £50, taking into account, in the case of fees payable on an increase of capital after registration, the fees paid on registration. | |||
| For registration of any existing company, except such companies as are by this Act exempted from payment of fees for registration under this Act: The same fee as is charged for registering a new company. |
TABLE D Table of Fees to be paid to the Registrar by a Company not having a Capital divided into Shares
Sections 8, 282, 324.
| £ | s. | d. | |
| For registration of a company whose number of members as stated in the articles of association does not exceed twenty | 5 | 0 | 0 |
| For registration of a company whose number of members as stated in the articles of association exceeds twenty, but docs not exceed a hundred | 10 | 0 | 0 |
| For registration of a company whose number of members as stated in the articles of association exceeds a hundred, but is not stated to be unlimited: The above fee of £10, with an additional 5s. for every fifty members or less number than fifty members after the first hundred. | |||
| For registration of a company in which the number of members is stated in the articles of association to be unlimited, a fee of | 20 | 0 | 0 |
| For registration of any increase in the number of members made after the registration of the company, in respect of every fifty members or less than fifty members of such increase | 0 | 5 | 0 |
| Provided that no one company shall be liable to pay on the whole a greater fee than £20 in respect of its number of members, taking into account the fee paid on the first registration of the company. | |||
| For registration of any existing company, except such companies as are by this Act exempted from payment of fees for registration under this Act: The same fee as is charged for registering a new company. |
TABLE E Miscellaneous Fees
Sections 8, 324.
| £ | s. | d. | |
| For recording any extension of the objects or purposes of a company under Part I | 1 | 0 | 0 |
| For registering any document, other than the memorandum of association, hereby required or authorised to be registered | 0 | 5 | 0 |
| For making a record of any fact hereby authorised or required to be recorded by the Registrar, and not otherwise charged | 0 | 5 | 0 |
| For any certificate of incorporation after the first | 0 | 5 | 0 |
| For a certified copy of or extract from any document | 0 | 5 | 0 |
| For a copy of or extract from any document, over and above the fee for certifying the same, for each folio of seventy-two words, not exceeding | 0 | 0 | 6 |
| For every inspection of any document | 0 | 1 | 0 |
THIRD SCHEDULE
Section 323. 1903, No. 53, Second Schedule.
FORM A Memorandum of Association of a Company limited by Shares
1st. The name of the company is “The Wellington Steamship Company (Limited).”
2nd. The objects for which the company is established are: The conveyance of passengers and goods in ships or boats between such places as the company may from time to time determine, and the doing of all other things incidental or conducive to the attainment of the above object.
3rd. The liability of the members is “limited.”
4th. The capital of the company is two hundred thousand pounds, divided into one thousand shares of two hundred pounds each.
We, the several persons whose names and addresses are subscribed hereto, are desirous of being formed into a company in pursuance of this memorandum of association, and we agree to take the number of shares in the capital of the company Bet opposite our respective names.
| Names, Addresses, and Descriptions of Subscribers. | Number of Shares taken by each Subscriber. | |
|---|---|---|
| 1. John Black, of | , merchant | 10 |
| 2. John Grey, of | , ″ | 15 |
| 3. Thomas Green, of | , ″ | 15 |
| 4. John Scarlet, of | , ″ | 10 |
| 5. Caleb White, of | , ″ | 5 |
| 6. Andrew Brown, of | , ″ | 15 |
| 7. Cæsar White, of | , ″ | 10 |
| Total shares taken | 80 | |
Dated the day of , 19 .
Witness to the above signatures:
A. C. S., Lambton Quay, Wellington.
FORM B Memorandum and Articles of Association of a Company limited by Guarantee, and not having a Capital divided into Shares
Memorandum of Association
1st. The name of the company is “The New Zealand Trade Development Society (Limited).”
2nd. The objects for which the company is established are:—
(a.)
To procure information for members as to suitable markets for all commodities produced or manufactured in New Zealand, and as to the commercial standing and responsibility of persons abroad with whom members may transact business:
(b.)
To arrange for and organize the placing of such commodities as aforesaid on such markets as may be considered suitable:
(c.)
To [as the cast may be]:
and the doing of all things incidental or conducive to the attainment of the above objects.
3rd. Every member of the company undertakes to contribute to the assets of the company, in the event of the same being wound up during the time that he is a member or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time when he ceases to be a member, and the costs, charges, and expenses of winding up the same, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceeding ten pounds.
We, the several persons whoso names and addresses are subscribed hereto, are desirous of being formed into a company in pursuance of this memorandum of association:—
Names, Addresses, and Descriptions of Subscribers
| 1. John Jones, of | merchant. |
| 2. John Smith, of | , ″ |
| 3. Thomas Green, of | , ″ |
| 4. John Thomson, of | , ″ |
| 5. Caleb White, of | , ″ |
| 6. Andrew Brown, of | , ″ |
| 7. Cæsar White, of | , ″ |
Dated the day of , 19 .
Witness to the above signatures:
A. B., No. 13 Queen Street, Auckland.
Articles of Association, to accompany preceding Memorandum of Association
1.
The company, for the purpose of registration, is declared to consist of five hundred members.
2.
The directors hereinafter mentioned may, whenever the business of the association requires it, register an increase of members.
Definition of Members
3.
Every person shall be deemed to have agreed to become a member of the company who, being directly interested in any producing or manufacturing business in New Zealand, is nominated as a member by any five members of the company, and consents in writing to such nomination.
General Meetings
4.
The first general meeting shall be held at such time, not being more than three months after the incorporation of the company, and at such place as the directors determine.
5.
Subsequent general meetings shall be held at such time and place as may be prescribed by the company in general meeting; and, if no other time or place is prescribed, a general meeting shall be held on the first Monday in February in every year, at such place as the directors determine.
6.
The above-mentioned general meetings shall be called ordinary meetings: all other general meetings shall be called extraordinary.
7.
The directors may whenever they think fit, and shall upon a requisition in writing by any five or more members, convene an extraordinary general meeting.
8.
Any requisition made by the members shall express the object of the meeting proposed to be called, and shall be left at the registered office of the company.
9.
Upon the receipt of such requisition the directors shall forthwith proceed to convene a general meeting; if they do not convene the same within twenty-one days from the date of the requisition, the requisitionists, or any other five members, may themselves convene a meeting.
Proceedings at General Meetings
10.
Seven days’ notice at the least, specifying the place, the day, and the hour of meeting, and, in case of special business, the general nature of such business, shall be given to the members in manner hereinafter mentioned, or in such other manner, if any, as may be prescribed by the company in general meeting: but the non-receipt of such notice by any member shall not invalidate the proceedings at any general meeting.
11.
All business transacted at an extraordinary meeting, and all that is transacted at an ordinary meeting, with the exception of the consideration of the accounts, balance-sheets, and the ordinary report of the directors, shall be deemed to be special business.
12.
No business shall be transacted at any meeting except the declaration of a dividend, unless a quorum of members is present at the commencement of such business: and such quorum shall be ascertained as follows—that is to say, if the members of the company at the time of the meeting do not exceed ten in number, the quorum shall be five; if they exceed ten, there shall be added to the above quorum one for every five additional members up to fifty, and one for every ten additional members after fifty, with this limitation, that the quorum shall not in any case exceed thirty.
13.
If within one hour from the time appointed for the meeting a quorum of members is not present, the meeting, if convened upon the requisition of the members, shall be dissolved; in any other case it shall stand adjourned to the same day in the following week at the same time and place; and if at such adjourned meeting a quorum of members is not present it shall be adjourned sine die.
14.
The chairman (if any) of the directors shall preside as chairman at every general meeting of the company.
15.
If there is no such chairman, or if at any meeting such chairman is not present at the time of holding the same, the members present shall choose one of their number to be chairman.
16.
The chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place; but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting at which the adjournment took place.
17.
At any general meeting, unless a poll is demanded by at least five members, a declaration by the chairman that a resolution has been carried, and an entry to that effect in the book of proceedings of the company, shall be sufficient evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.
18.
If a poll is demanded in manner aforesaid, the same shall be taken in such manner as the chairman directs, and the result of such poll shall be deemed to be the resolution of the company in general meeting.
Votes of Members
19.
Every member shall have one vote and no more.
20.
If any member is a lunatic or an idiot he may vote by his committee, and if any member is a minor he may vote by his guardian, or by any one of his guardians, if more than one.
21.
No member shall be entitled to vote at any meeting unless all moneys due from him to the company have been paid.
22.
Votes may be given either personally or by proxies. A proxy shall be appointed in writing under the hand of the appointer, or, if such appointer is a corporation, under its common seal.
23.
No person shall be appointed a proxy who is not a member, and the instrument appointing him shall be deposited at the registered office of the company not less than forty-eight hours before the time of holding the meeting at winch he proposes to vote.
24.
Any instrument appointing a proxy shall be in the following form:—
Company (Limited).
I, A, B., of , being a member of the Company (Limited), hereby appoint , of , as my proxy, to vote for me and on my behalf at the ordinary [or extraordinary, as the case may be] general meeting of the company, to be held on the day of next, and at any adjournment thereof [or at any meeting of the company that may be held in the year ].
As witness my hand, this day of , 19 .
Signed by the said A. B., in the presence of
C. D.,
[Add occupation and residence].
A. B.
Directors
25.
The number of the directors, and the names of the first directors, shall be determined by the subscribers of the memorandum of association.
26.
Until directors are appointed, the subscribers of the memorandum of association shall, for all the purposes of this Act, be deemed to be directors.
Powers of Directors
27.
The business of the company shall be managed by the directors, who may exercise all such powers of the company as are not hereby required to be exercised by the company in general meeting; but no regulation made by the company in general meeting shall invalidate any prior act of the directors that would have been valid if such regulation had not been made.
Election of Directors
28.
The directors shall be elected annually by the company in general meeting.
Business of Company
[Here insert rules as to mode in which business is to be conducted.]
Accounts
29.
The accounts of the company shall be audited by a committee of five members, to be called the Audit Committee.
30.
The first Audit Committee shall be nominated by the directors out of the body of members.
31.
Subsequent Audit Committees shall be nominated by the members at the ordinary general meeting in each year.
32.
The Audit Committee shall be supplied with a copy of the balance-sheet, and it shall be their duty to examine the same, with the accounts and vouchers relating thereto.
33.
The Audit Committee shall be supplied with a list of all books kept by the company, and they shall at all reasonable times have access to the books and accounts of the company. They may at the expense of the company employ accountants or other persons to assist them in investigating such accounts, and they may examine the directors or any other officers of the company as to such accounts.
34.
The Audit Committee shall make a report to the members upon the balance-sheet and accounts, and in every such report they shall state whether in their opinion the balance-sheet is a full and fair balance-sheet, containing the particulars required by these regulations, and properly drawn up so as to exhibit a true and correct view of the state of the company’s affairs, and, in case they have called for explanations or information from the directors, whether such explanations or information have been given by the directors, and whether they have been satisfactory; and such report shall be read, together with the report of the directors, at the ordinary meeting.
Notices
35.
A notice may be served by the company upon any member either personally or by sending it through the post in a prepaid letter addressed to such member at his registered place of abode.
36.
Any notice, if served by post, shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service it shall be sufficient to prove that the letter containing the notice was properly addressed and put into the post-office.
Winding-up
37.
The company shall be wound up voluntarily whenever an extraordinary resolution, as defined by “The Companies Act, 1908,”
is passed requiring the company to be wound up voluntarily.
Names, Addresses, and Descriptions of Subscribers
| 1. John Jones, of | merchant. |
| 2. John Smith, of | , ″ |
| 3. Thomas Green, of | , ″ |
| 4. John Thomson, of | , ″ |
| 5. Caleb White, of | , ″ |
| 6. Andrew Brown, of | , ″ |
| 7. Cæsar White, of | , ″ |
Dated the day of , 19 .
Witness to the above signatures:
A. B., No. 13 Queen Street, Auckland.
FORM C Memorandum of Association of a Company limited by Guarantee, and having a Capital divided into Shares
1.
The name of the company is “The Wakatipu Carrying Company (Limited).”
2.
The objects for which the company is established are: The encouragement of travelling in the Lake District of Otago by providing conveyances by land and water for the accommodation of travellers, and the doing of all other things incidental or conducive to the attainment of the above object.
3.
Every member of the company undertakes to contribute to the assets of the company, in the event of the same being wound up during the time that he is a member or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceases to be a member, and the costs, charges, and expenses of winding up the same, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceeding twenty pounds.
4.
The capital of the company shall consist of two hundred thousand pounds, divided into two thousand shares of one hundred pounds each.
We, the several persons whose names and addresses are subscribed hereto, are desirous of being formed into a company in pursuance of this memorandum of association, and agree to take the number of shares in the capital of the company set opposite our respective names:—
| Names, Addresses, and Descriptions of Subscribers. | Number of Shares taken by each Subscriber. | |
|---|---|---|
| 1. John Jones, of | , merchant | 200 |
| 2. John Smith, of | , ″ | 25 |
| 3. Thomas Green, of | , ″ | 30 |
| 4. John Thomson, of | , ″ | 40 |
| 5. Caleb White, of | , ″ | 15 |
| 6. Andrew Brown, of | , ″ | 5 |
| 7. Cæsar White, of | , ″ | 10 |
| Total shares taken | 325 | |
Dated the day of , 19 .
Witness to the above signatures:
A. B., Queenstown.
FORM D Memorandum and Articles of Association of an Unlimited Company having a Capital divided into Shares
Memorandum of Association
1st. The name of the company is “The Patent Stereotype Company.”
2nd. The objects for which the company is established are: The working of a patent method of founding and casting stereotype plates, of which method John Smith, of Wellington, is the sole patentee.
We, the several persons whose names are subscribed hereto, are desirous of being formed into a company in pursuance of this memorandum of association:—
Names, Addresses, and Descriptions of Subscribers
| 1. John Jones, of | , merchant. |
| 2. John Smith, of | , ″ |
| 3. Thomas Green, of | , ″ |
| 4. John Thomson, of | , ″ |
| 5. Caleb White, of | , ″ |
| 6. Andrew Brown, of | , ″ |
| 7. Abel Brown, of | , ″ |
Dated the day of , 19 .
Witness to the above signatures:
A. B,, Lambton Quay, Wellington.
Articles of Association, to accompany the preceding Memorandum of Association Capital of the Company
The capital of the company is two thousand pounds, divided into twenty shares of one hundred pounds each.
Application of Table A
All the articles of Table A in the Second Schedule of “The Companies Act, 1908,”
shall be deemed to be incorporated with these articles, and to apply to the company.
We, the several persons whose names and addresses are subscribed, agree to take the number of shares in the capital of the company set opposite our respective names:—
| Names, Addresses, and Descriptions of Subscribers. | Number of Shares taken by each Subscriber. | |
|---|---|---|
| 1. John Jones, of | , merchant | 1 |
| 2. John Smith, of | , ″ | 5 |
| 3. Thomas Green, of | , ″ | 2 |
| 4. John Thompson, of | , ″ | 2 |
| 5. Caleb White, of | , ″ | 3 |
| 6. Andrew Brown, of | , ″ | 4 |
| 7. Abel Brown, of | , ″ | 1 |
| Total shares taken | 18 | |
Dated the day of , 19 .
Witness to the above signatures:
A. B., Lambton Quay, Wellington.
FORM E Summary of Capital and Shares of the Company, made up to the day of
Nominal capital, £ , divided into shares of £ each.
Number of shares taken up to the day of , 19: .
Number of shares issued for cash: .
Number of shares issued partly for cash: .
Number of shares issued otherwise than for cash: .
Called up on each share issued for cash: £ .
Called up on each share issued partly for cash: £ .
Total amount of calls received: £ .
Total amount of calls unpaid: £ .
Total amount of shares forfeited: £ .
List of Persons holding Shares in the Company on the day of , and of Persons who have held Shares therein at any Time during the Year immediately preceding the said day of showing their Names and Addresses, and an Account of Shares so held.
| Folio in Register Lodger containing Particulars. | Names, Addresses, and Occupations of Members.2 | Account of shares. | ||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| Surname. | Christian Name. | Address. | Occupation. | Shares held by existing Members on the day of | Additional Shares held by existing Members during preceding Year. | Shares held by Persons no longer Members. | Remarks. | |||
| Number. | Date of Transfer. | Number. | Date of Transfer. | |||||||
FOURTH SCHEDULE
Sections 262, 263, 264. 1903, No 53, Third Schedule.
(1.) Affidavit on Application for Dissolution of Company
I3 [or Wet4], , of the Company (Limited), incorporated under “The Companies Act, 1908,”
do hereby make oath and say,—
That the nominal capital of the said company is £ . in shares of £ each.
That the shares have been fully paid up.
That the company has no assets, and has ceased to carry on business.
And I [or we] do hereby apply for declaration of dissolution of such company.
C. D.
E. F.
Sworn before me, this day of . 19 .
A. B.
(2.) Notice of Affidavit being lodged
I, , Registrar of Companies, do hereby give notice that an affidavit, a copy of which is hereunder given, by5 , of the Company (Limited), has been lodged with me, and that, unless notice of objection be lodged with me within sixty days of this date, I shall proceed to declare the said company to be dissolved, in manner provided by “The Companies Act, 1908.”
, Registrar.
Signed this day of , 19 .
(3.) Notice of Objection
To the Registrar of Companies.
I, , a shareholder in [or a creditor of] the Company (Limited), do hereby give notice that I object to a declaration of the dissolution of the said company upon the grounds set forth in the statutory declaration hereto attached.
Dated at , this day of , 19 .
C. D.
(4.) Notice of Objection being lodged
In the matter of “The Companies Act, 1908,”
and in the matter of the affidavit and application of6 , of the Company (Limited), requesting me to declare the said company to be dissolved.
I hereby give notice that, inasmuch as an objection to such application has been lodged with me by A. B., a shareholder [or creditor] of the said company, the above-mentioned application cannot be granted.
Dated at , this day of . 19 .
, Registrar.
(5.) Notice of Dissolution of Company
In the matter of “The Companies Act, 1908,”
and in the matter of the affidavit and application of7 , of the Company (Limited).
I hereby notify that no objection to such application having been made and lodged with me, as by the said Act required, I do now declare such company to be dissolved.
Dated at , this day of , 19 .
, Registrar.
FIFTH SCHEDULE
Section 368. 1904, No. 39, First Schedule.
Statement of Affairs of a Mining Company incorporated in New Zealand
Company:—
The name of the company:
When formed, and date of registration:
Whether in active operation or not:
Where business is conducted, and name of secretary:
Capital:—
The nominal capital:
The amount of capital subscribed:
The Amount of capital actually paid up in cash:
The paid-up value of scrip given to shareholders, and the amount of case received for the same (if any):
The paid-up value of scrip given to shareholders on which no cash has been paid:
Shares:—
The number of shares into which the capital is divided:
The number of shares allotted:
The amount paid per share:
The amount called up per share:
The number and amount of calls in arrears:
The number of shares forfeited:
The number of forfeited shares sold, and the money received for the same:
The number of shareholders at lime of registration of company:
The present number of shareholders:
Number of Men employed:—
The number of men employed by the company:
Production:—
The quantity and value of gold or silver produced since the last statement:
The total quantity and value produced since registration:
Expenditure:—
The amount expended in connection with carrying on operations since the last statement:
The total expenditure since registration:
Dividends:—
The total amount of dividends declared:
The total amount of dividends paid:
The total amount of unclaimed dividends:
Cash:—
The amount of cash in bank:
The amount of cash in hand:
Debts:—
The amount of debts directly due to the company:
The amount of debts considered good:
The amount of the contingent liabilities of the company (if any):
The amount of debts owing by the company:
I, A. B., of , the secretary of the Company (Limited) [or as the case may be], do solemnly and sincerely declare that this is a true and complete statement of the affaire of the said company at the present date. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of “The Justices of the Peace Act, 1908.”
Declared at , this day of , 19 , before me—
A. B.
C. D., Justice of the Peace.
SIXTH SCHEDULE
Section 370. Ibid, Second Schedule.
Statement of Affairs of a Foreign Mining Company
Company:—
The name of the company:
When formed, and date of registration of office of company in New Zealand: Whether in active operation or not:
Where business is conducted, and name of attorney or attorneys:
Where the mine is situate:
Capital:—
The nominal capital:
The amount of capital subscribed:
The amount of capital actually paid up in cash in New Zealand:
The price paid to the vendors of the mine —
(a.)
In fully-paid-up shares:
(b.)
In partly-paid-up shares, credited as £ paid up
(c.)
In cash:
Shares:—
The number of shares into which the capital is divided:
The number of shares on the New Zealand Register:
The amount paid per share (New Zealand Register):
The amount culled up per share (New Zealand Register):
The number and amount of calls in arrear (New Zealand Register):
The number of forfeited shares on the New Zealand Register sold, and the money received for the same:
The number of shareholders on the New Zealand Register:
Number of Men employed:—
The number of men employed by the company in New Zealand:
Production:—
The quantity and value of gold or silver produced since the last statement:
The total quantity and value produced since registration of cue office of the company in New Zealand:
Expenditure:—
The amount expended in connection with carrying on mining operations in New Zealand since the last statement:
The total expenditure since registration of the office of the company in New Zealand: Dividends:—
The total amount of dividends paid in New Zealand:
Cash:—
The amount of cash in bank in New Zealand:
The amount of cash in band in New Zealand:
Debts:—
The amount of debts directly due to the company in New Zealand:
The amount of such debts considered good:
The amount of the liabilities of the company in New Zealand:
I, A. B., of , the attorney of the Company (Limited) [or as the case may be], do solemnly and sincerely declare that this is a true and complete statement of the affairs of the said company as on the day of , 19 , being the date of the last balance-sheet. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of “The Justices of the Peace Act, 1908.”
Declared at , this day of , 19 , before me—
A. B.,
Attorney.
C. D., Justice of the Peace.
1 * If the company has no capital divided into shares, the portion of the statement relating to capital and shares must be omitted.
2 (a.) Including persons who have ceased to be members during the preceding year. Names of directors are distinguished by an asterisk, thus (*).
3 * Chairman or Manager.
4 † Two of the Board of Directors or of the shareholders of the company.
5 * Chairman, manager, or two directors, or two shareholders.
6 * Chairman, manager, or two directors, or two shareholders.
7 * Chairman, manager, or two directors, or two shareholders.
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Versions
Companies Act 1908
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