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Companies Act 1985 (NI)

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Act No. 15, 1986
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Amendment Ordinance 2015 (No. 2, 2015)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Transport, Cities and Regional Development
Registered 27 Oct 2015
Start Date 18 Jun 2015

 

NORFOLK                            ISLAND

 

Companies Act 1985

No. 15, 1986

Compilation No. 1

Compilation date:                              18 June 2015

Includes amendments up to:             Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)

Prepared Date:                                  1 September 2015

 

 

 

 

 

 

 

 

 

 


 

NORFOLK                            ISLAND

 

COMPANIES ACT 1985

 

TABLE OF PROVISIONS

 

      Page i              Table of Provisions

 

      Page 1             Companies Act 1985

 

      Page 419         Commencement information

 

      Page 403   Comparative Table of provisions of Companies Act 1985 and Companies Act 1981 of the Commonwealth

 


 

NORFOLK                            ISLAND

 

 

COMPANIES ACT 1985

 

TABLE OF PROVISIONS

PART 1  —   PRELIMINARY

      1.         Short title

      2.         Commencement

      3.         Administration bound

      4.         Repeal

PART 2  —  DEFINITIONS AND INTERPRETATION

      5.         Effect of Part

      6.         Definitions

      7.         Businesses

      8.         Professional or business advisers

      9.         Invitations

      10.       Offer or invitation to the public

      11.       Receivers also managers

      12.       Persons subject to restrictions

      13.       Meaning of “director”

      14.       Meaning of “insolvent under administration”

      15.       Meaning of “officer”

      16.       Meaning of “financial year”

      17.       Meaning of “prospectus”

      18.       References to companies and corporations

      19.       Matters not shown fairly

      20.       References to affairs of a corporation

      21.       Subsidiaries

      22.       Nature of shareholdings

      23.       Holding companies

      24.       Related corporations

      25.       Ultimate holding companies

      26.       Wholly-owned subsidiaries

      27.       Relevant interests in shares

      28.       Associated persons

      29.       Deemed ownership of shares in proprietary company


 

PART 3  —  ADMINISTRATION

Division 1  —  Registrar and other Officers

      30.       Registrar of Companies

      31.       Seal of Registrar

Division 2  —  Powers of Inspection

      32.       Interpretation

      33.       Registrar may inspect books without charge

      34.       Power of Registrar to require production of books

      35.       Power of Magistrate to issue warrant to seize books

      36.       Offences

      37.       Copies or extracts of books to be admitted in evidence

      38.       Privilege

      39.       Investigation of certain matters

Division 3  —  Registration of Auditors and Liquidators

      40.       Interpretation

      41.       Companies Auditors Authority

      42.       Application for registration as auditor or liquidator

      43.       Registration of auditors

      44.       Auditor-General deemed to be registered as auditor

      44A.    Government Auditor taken to be registered as auditor

      45.       Registration of liquidators

      46.       Registration of official liquidators

      47.       Security to be given by liquidators

      48.       Register of Auditors

      49.       Registers of Liquidators and Official Liquidators

      50.       Removal from Register

      51.       Inspection of Register

      52.       Notification of certain matters

      53.       Triennial statements by registered auditors and liquidators

      54.       Certain persons deemed to be registered

      55.       Qualified privilege of auditors and other persons

      56.       Cancellation of registration by request

      57.       Suspension or cancellation of registration for cause

      58.       Appeals to Supreme Court

Division 4  —  Registers and Registration of Documents

      59.       Registers

      60.       Inspection of documents

      61.       Admissibility of copies

      62.       Certificates of Registrar

      63.       Refusal of registration in certain cases

      64.       Information from lodging party


 

      65.       Disposal of documents

      66.       Court may order lodgment or amendment of documents

      67.       Relodging of lost registered documents

 

PART 4  —  CONSTITUTION OF COMPANIES

Division 1  —  Incorporation

      68.       Formation of companies

      69.       Proprietary companies

      70.       Registration and incorporation

      71.       Effect of incorporation

      72.       Membership of holding company

      73.       Requirements as to memorandum

      74.       Requirements as to subscribers

      75.       Signatures of bodies corporate

      76.       Limited liability

Division 2  —  Names

      77.       Names of particular classes of companies

      78.       Availability of names

      79.       Reservation and registration of name of intended company

      80.       Reservation and registration of proposed new name

      81.       Reservation and registration of name of intended foreign company or foreign company

      82.       Reservation and registration of proposed new name of registered foreign company

      83.       Extension of registration

      84.       Cancellation of registration

      85.       Change of name

      86.       Omission of “Limited” from names of charitable and other companies

      87.       Revocation of licence

      88.       Alteration of memorandum or articles

Division 3  —  Powers and Status

      89.       Powers

      90.       Restrictions on companies

      91.       Acts not invalid because prohibited

      92.       Reliance on invalid acts

      93.       Persons having dealings with companies, etc

      94.       Certain assumptions not to be made

      95.       Lodgment of documents not to constitute constructive notice

      96.       Effect of fraud

      97.       Change of status

      98.       Change from public to proprietary company or from proprietary to public company

      99.       Default in complying with requirements as to proprietary companies

      100.     General provisions as to alteration of memorandum

      101.     Alterations of memorandum

      102.     Cancellation of alterations

      103.     Lodgment of copies

      104.     Interpretation

      105.     Articles of association

      106.     Adoption of Table A

      107.     Alteration of articles

      108.     Memorandum and articles of companies limited by guarantee

      109.     Operation of memorandum and articles

      110.     Copies of memorandum and articles

      111.     Confirmation of contracts and authentication and execution of documents

      112.     Signatures of officers

      113.     Appointment of agent or attorney

      114      Business outside Norfolk Island

      115.     Ratification of contracts made before formation of company

      116.     Promoter’s liability

      117.     Promoter’s liability where contract ratified

      118.     Consent to exemption from liability

      119.     Discharge of promoter’s liabilities

      120.     Rights and liabilities to be in substitution for other rights and liabilities

      121.     Trustees

      122.     Prohibition of carrying on business with fewer than statutory minimum number of members

PART 5  —  PROSPECTUSES

      123.     Interpretation

      124.     Prohibition of issue of certain documents in relation to proposed corporations

      125.     Forms of application for shares or debentures to be attached to prospectus

      126.     Invitations or offers in relation to borrowing corporation

      127.     Description as mortgage debenture or mortgage debenture stock

      128.     Description as debenture or debenture stock

      129.     Matters to be included in summary

      130.     Part not to apply to certain corporations

      131.     Offences

      132.     Application of certain provisions

      133.     Documents evidencing indebtedness

      134.     Registrar may specify manner of description

      135.     Contents of prospectuses

      136.     Offences

      137.     Effect of Part - other liabilities

      138.     Certain notices, etc, not to be published

      139.     Certain reports not to be published

      140.     Evidentiary provisions, etc

      141.     Retention of over-subscriptions

      142.     Registration of prospectuses

      143.     Document containing offer of securities for sale deemed to be prospectus

      144.     Allotment or issue of securities where prospectus indicates application for quotation on stock market

      145.     Expert’s consent to issue of prospectus

      146.     Civil liability for untrue statement or non-disclosure

      147.     Defences to liability

      148.     Defence available to experts

      149.     Indemnification of persons incorrectly named

      150.     Criminal liability for untrue statement or non-disclosure

PART 6  —  RESTRICTIONS ON ALLOTMENT OF SHARES AND VARIATION OF CONTRACTS

      151.     Prohibition of allotment unless minimum subscription received

      152.     Repayment of subscriptions

      153.     Allotment voidable at applicant’s option

      154.     Certain conditions void

      155.     Securities not to issue after 6 months

      156.     Validity of allotment

      157.     Liability of directors for contravention

      158.     Application moneys to be held in trust until allotment

      159.     Restriction on varying contracts referred to in prospectus

PART 7  —  SHARES AND SHARE CAPITAL

Division 1  —  General Provisions with Respect to Shares

      160.     Returns as to allotments

      161.     Differences in calls and payments, reserve liability, etc

      162.     Share warrants

      163.     Restrictions on application of capital

      164.     Power to pay brokerage or commission

      165.     Issue of shares at a discount

      166.     Issue of shares at a premium

      167.     Issue of redeemable preference shares

      168.     Alteration of share capital

      169.     Validation of improper issue of shares

      170.     Special resolution for reduction of share capital

      171.     Objections by creditors

      172.     Confirmation of reduction

      173.     Retrospective effect

      174.     Certificate of Registrar

      175.     Deemed alteration of memorandum

      176.     Liability of members where creditor unaware of proceedings

      177.     Offences

      178.     Certain benefits not reduction of capital

      179.     Unlimited companies

      180.     Registrar to be informed of special rights

      181.     Rights of holders of classes of shares

      182.     Rights of holders of shares

      183.     Rights of classes of members

      184.     Rights of holders of preference shares to be set out in memorandum or articles

      185.     Register of options

      186.     Options over unissued shares

      187.     Payment of interest out of capital in certain cases

Division 2  —  Company Dealing in its Shares

      188.     References to acquisition

      189.     Company financing dealings in its shares

      190.     Order for compensation

      191.     Exclusions from operation of subsection 189(1)

      192.     Further exclusions from operation of subsection 189(1)

      193.     Authorisation by special resolution

      194.     Substantial compliance

      195.     Application to Court opposing assistance

      196.     Directors’ duties not affected

      197.     Existing contracts

      198.     Consequences of company financing dealings in its shares, etc

      199.     Certificates of compliance

      200.     Persons with knowledge

      201.     Effect of certificates

      202.     Offence in relation to certificates

      203.     Power to grant relief

      204.     Certain contracts, etc, to be deemed to be related

      205.     Effect on other rights and liabilities

PART 8  —  NOTIFICATION OF SHAREHOLDINGS IN COMPANIES

      206.     Transfers to be notified

      207.     Notification of interests in shares

      208.     Notification of change in interests

      209.     Notification by person who ceases to be shareholder

      210.     References to operation of section 27

      211.     Registrar may extend period for giving notice

      212.     Company not to be taken to have notice

      213.     Offences

      214.     Powers of Court with respect to defaulting shareholders

PART 9  —  DEBENTURES

      215.     Definitions

      216.     Register of debenture holders and copies of trust deed

      217.     Branch registers

      218.     Specific performance of contracts

      219.     Perpetual debentures

      220.     Re-issue of redeemed debentures

      221.     Qualifications of trustee for debenture holders

      222.     Retirement of trustees

      223.     Contents of trust deed

      224.     Power of Court in relation to certain irredeemable debentures

      225.     Duties of trustees

      226.     Power of trustees to apply to the Court for directions, etc

      227.     Obligations of borrowing company

      228.     Further charges

      229.     Profit and loss accounts

      230.     Consolidated accounts

      231.     Notice to comply

      232.     Application of certain sections

      233.     Registrar to be notified of failure to lodge accounts

      234.     Audit may be dispensed with or limited

      235.     Value of trading stock

      236.     Obligation of guarantor corporation to furnish information

      237.     Loans to be immediately repayable in certain events

      238.     Invitations or offers by certain corporations

      239.     Liability of trustees for debenture holders

PART 10  —  TITLE TO AND TRANSFER OF SECURITIES

      240.     Nature of shares

      241.     Numbering of shares

      242.     Certificate to be evidence of title

      243.     Duplicate common seal

      244.     Loss or destruction of certificates

      245.     Instruments of transfer

      246.     Registration of transfer at request of transferor

      247.     Notice of refusal to register transfer

      248.     Remedy for refusal to register transfer or transmission

      249.     Certification of transfers

      250.     Duties of company with respect to issue of certificates

PART 11  —  REGISTRATION OF CHARGES

      251.     Interpretation and application of Part

      252.     Charges required to be registered

      253.     Lodgment of notice of charge and copy of instrument

      254.     Acquisition of property subject to charge

      255.     Registration of documents relating to charges

      256.     Priorities of charges

      257.     Certain charges void against liquidator or official manager

      258.     Court may extend period

      259.     Avoidance of certain later charges

      260.     Rights of third parties without notice

      261.     Assignment and variation of charges

      262.     Satisfaction of, and release of property from, charges

      263.     Lodgment of notices, offences, etc

      264.     Company to keep documents relating to charges and register of charges

      265.     Certificates

      266.     Power of Court to rectify Register

      267.     Exemption from compliance with certain requirements

      268.     Charges created before commencement of this Act

PART 12  —  MODIFICATION OF CERTAIN PROVISIONS

      269.     Banking business

      270.     Powers of Registrar

PART 13  —  MANAGEMENT AND ADMINISTRATION

Division 1  —  Office and Name

      271.     Registered office of company

      272.     Notice of address of registered office and office hours

      273.     Publication of name

Division 2  —  Directors and other Officers

      274.     Directors

      275.     Restrictions on appointment or advertisement of director

      276.     Qualifications of directors

      277.     Vacation of office

      278.     Appointment of directors to be voted on individually

      279.     Validity of acts of directors and secretaries

      280.     Removal of directors

      281.     Age of directors

      282.     Certain persons not to manage corporations

      283.     Court may order persons not to manage corporations

      284.     Disclosure of interests in contracts, property, offices, etc

      285.     Duty and liability of officers

      286.     Loans to directors

      287.     Exceptions

      288.     Liability of directors and officers

      289.     Enforcement of guarantee or security

      290.     Sections not exclusive

      291.     Register of directors’ shareholdings, etc

      292.     General duty to make disclosure

      293.     Payment for loss of or retirement from, office

      294.     Provisions as to assignment of office

      295.     Disclosure of directors’ emoluments

      296.     Company secretaries

      297.     Indemnification of officers and auditors

      298.     Register of directors, principal executive officers and secretaries

      299.     Returns by companies

      300.     Offences

      301.     Registrar may require certain notices

      302.     Registrar’s certificates

      303.     Registrar of disqualified company directors and other officers

Division 3  —  Meetings and Proceedings

      304.     Statutory meeting and statutory report

      305.     Annual general meeting

      306.     Convening of general meeting on requisition

      307.     Convening of meetings

      308.     Articles as to right to demand a poll

      309.     Quorum, chairman, voting, etc, at meetings

      310.     Proxies

      311.     Power of Court to order meeting

      312.     Circulation of members’ resolutions, etc

      313.     Special resolutions

      314.     Resolutions requiring special notice

      315.     Resolutions of exempt proprietary companies

      316.     Lodgment with the Registrar of copies of certain resolutions and agreements

      317.     Resolutions at adjourned meetings

      318.     Minutes of proceedings

      319.     Inspection of minute books

Division 4  —  Register of Members

      320.     Register and index of members

      321.     Closing and inspection of register

      323.     Consequences of default by agent

      323.     Power of Court to rectify register

      324.     Personal representative may be registered as owner of shares

      325.     Power of company to obtain information as to beneficial ownership of its shares

      326.     Powers of Court

      327.     Branch registers

PART 14  —  ANNUAL RETURNS

      328.     Annual return

      329.     Auditor’s statement

330.          Exemption of certain companies

PART 15  —  INSPECTION OF RECORDS

      331.     Inspection of records

      332.     Disclosure of information

PART 16  —  ACCOUNTS AND AUDIT

Division 1  —  Preliminary

      333.     Interpretation

      334.     Dormant corporations

      335.     Application of approved accounting standards

      336.     Interpretation of accounting standards

      337.     Power of Registrar to require copy of accounts or group accounts

Division 2  —  Accounts

      338.     Accounts to be kept

      339.     Financial years of grouped companies

      340.     Profit and loss account, balance-sheet and group accounts

      341.     Directors’ reports

      342.     Directors of holding company to obtain all necessary information

      343.     Relief from requirements as to accounts and reports

      344.     Members of company entitled to balance-sheet, etc

      345.     Accounts and reports to be laid before annual general meeting

      346.     Registrar may require lodgment of accounts, etc

      347.     Failure to comply

Division 3  —  Audit

      348.     Qualifications of auditors

      349.     Registrar may approve person as auditor

      350.     Auditors not to disqualify themselves

      351.     Exempt proprietary company need not appoint auditor in certain circumstances

      352.     Appointment of auditors

      353.     Nomination of auditors

      354.     Removal and resignation of auditors

      355.     Effect of winding up on office of auditor

      356.     Fees and expenses of auditors

      357.     Powers and duties of auditors as to reports on accounts

      358.     Obstruction of auditor

      359.     Special provisions relating to borrowing and guarantor corporations

PART 17  —  SPECIAL INVESTIGATIONS

      360.     Interpretation and application

      361.     Application for carrying out of investigation

      362.     Investigations

      363.     Conduct of investigations

      364.     Investigation of affairs of related corporations

      365.     Powers of inspectors

      366.     Examination of officers

      367.     Officer failing to comply with requirement of this Part

      368.     Record of examination

      369.     Admissibility of record of examination in evidence in proceedings against person examined

      370.     Admissibility in other proceedings

      371.     Weight of evidence

      372.     Credibility of person who answered questions

      373.     Determination of objection to admissibility of question and answer

      374.     Admissibility of certain evidence

      375.     Delegation by inspector

      376.     Reports of investigations

      377.     Provisions relating to reports

      378.     Registrar’s powers in respect of books

      379.     Privileged communications

      380.     Expenses of investigation

      381.     Registrar may order payment

      382.     Forfeiture of security

      383.     Concealing, etc, of books

      384.     Power of Registrar to make certain orders

      385.     Offences in relation to orders

      386.     Application for winding up

PART 18  —  ARRANGEMENTS AND RECONSTRUCTIONS

      387.     Interpretation

      388.     Power to compromise with creditors and members

      389.     Compromise or arrangement binding in certain circumstances

      390.     Two or more meetings

      391.     Approval of compromise or arrangement

      392.     Disqualification of certain persons

      393.     Appointment under repealed laws

      394.     Application of other provisions

      395.     Operation of Court order

      396.     Annexure of order to constituent documents

      397.     Directors to arrange for reports

      398.     Court may restrain proceedings

      399.     Information as to compromise with creditors or members

      400.     Provisions for facilitating reconstruction and amalgamation of corporations

      401.     Acquisition of shares of dissenting shareholders

      402.     Consideration to be held in trust

      403.     Notification of appointment of scheme manager

      404.     Court may require report


 

PART 19  —  OPPRESSIVE OR UNJUST CONDUCT

      405.     Remedy in cases of oppression or injustice

PART 20  —  RECEIVERS AND MANAGERS

      406.     Application of Part

      407.     Interpretation

      408.     Power to appoint receiver void in certain circumstances

      409.     Disqualification for appointment as receiver

      410.     Liability of receiver

      411.     Powers of receiver

      412.     Duties of receiver with respect to bank accounts and accounting records

      413.     Reports by receiver

      414.     Court may direct Receiver to make report

      415.     Prosecution of delinquent officers and members

      416.     Supervision of receivers

      417.     Application for directions

      418.     Power of Court to fix remuneration of receivers

      419.     Receiver to enjoy qualified privilege in certain circumstances

      420.     Notification of appointment of receiver

      421.     Statement that receiver appointed

      422.     Provisions as to information where receiver appointed

      423.     Receiver may require reports

      424.     Receiver may inspect books

      425.     Accounts of receivers

      426.     Payments of certain debts in priority to claims under a floating charge

      427.     Enforcement of duty of receiver to make returns

PART 21  —  OFFICIAL MANAGEMENT

      428.     Interpretation

      429.     Power of company to call meeting of creditors to appoint official manager

      430.     Requirements as to meeting

      431.     Offences

      432.     Statement of affairs to be submitted to meeting of creditors

      433.     Power to adjourn meeting

      434.     Power of creditors to place company under official management

      435.     Appointment of committee of management

      436.     Notice of appointment and address of official manager

      437.     Effect of resolution

      438.     Six-monthly meetings of creditors and members

      439.     Stay of proceedings

      440.     Power to extend period of official management

      441.     Extension of period of official management

      442.     Appointment of official manager not to affect appointment and duties of auditor

      443.     Duties of the official manager

      444.     Undue preferences in the case of official management

      445.     Application and disposal of property during official management

      446.     Official manager may apply to Court for direction

      447.     Certain provisions applicable to official management

      448.     Power of Court to terminate official management and give directions

      449.     Resolution to place company under official management effective, subject to appeal

      450.     Lodgment of office copy of Court order

      451.     Termination of appointment and release of official manager

      452.     Vacancy in office of official manager

      453.     Transitional period

      454.     Meeting to determine appointment of official manager

      455.     Residual duties of official manager

      456.     Expenses of official manager

      457.     Discharge from liability

      458.     Order of release

      459.     Powers of Court

      460.     Notification that corporation is under official management

      461.     Functions of committee of management and appointment of deputy official manager

PART 22  —  WINDING UP

Division 1  —  Preliminary

      462.     Powers of Court cumulative

      463.     Modes of winding up

      464.     Liability as contributories of present and past members

      465.     Nature of liability of contributory

      466.     Contributories in case of death or insolvency

Division 2  —  Winding Up by the Court

Subdivision A  —  General

      467.     Application for winding up

      468.     Circumstances in which company may be wound up by Court

      469.     Commencement of winding up by the Court

      470.     Payment of preliminary costs, etc

      471.     Powers of Court on hearing of application

      472.     Avoidance of dispositions of property, attachment, etc

      473.     Application to be lis pendens

      474.     Certain notices to be lodged

      475.     Effect of winding up order

Subdivision B  —  Liquidators

      476.     Power of Court to appoint official liquidator

      477.     General provisions as to liquidators

      478.     Custody and vesting of property

      479.     Statement of affairs to be submitted to liquidator

      480.     Preliminary report by liquidator

      481.     Powers of liquidator

      482.     Settlement of list of contributories and application of property

      483.     Exercise and control of liquidator's powers

      484.     Release of liquidator and dissolution of company

      485.     Orders for release or dissolution

Subdivision C  —  General Powers of Court

      486.     Power to stay or terminate winding up

      487.     Delivery of property to liquidator

      488.     Appointment of special manager

      489.     Claims of creditors and distribution of property

      490.     Inspection of books by creditors and contributories

      491.     Power to arrest absconding contributory

      492.     Delegation to liquidator of certain powers of Court

Division 3  —  Voluntary Winding Up

Subdivision A  —  General

      493.     Limitation on right to wind up voluntarily

      494.     Circumstances in which company may be wound up voluntarily

      495.     Commencement of winding up

      496.     Effect of voluntary winding up

      497.     Declaration of solvency

Subdivision B  —  Provisions applicable only to Members' Voluntary Winding Up

      498.     Liquidators

      499.     Duty of liquidator to call creditors' meeting in case of insolvency

      500.     Proceedings at meeting

Subdivision C   —  Provisions applicable only to Creditors’ Voluntary Winding Up

      501.     Meeting of creditors

      502.     Proceedings at meeting

      503.     Adjournment of meeting

      504.     Liquidators

      505.     Execution and civil proceedings

Subdivision D  —  Provisions applicable to every Voluntary Winding Up

      506.     Distribution of property of company

      507.     Appointment of liquidator

      508.     Removal of liquidator

      509.     Review of liquidator's remuneration

      510.     Validity of transactions, etc

      511.     Powers and duties of liquidator

      512.     Power of liquidator to accept shares, etc, as consideration for sale

      513.     Annual meeting of creditors

      514.     Final meeting and dissolution

      515.     Binding of arrangement on creditors

      516.     Application to Court to have questions determined or powers exercised

      517.     Costs

Division 4 —  Provisions applicable to every Mode of Winding Up

Subdivision A  —  General

      518.     Interpretation

      519.     Books to be kept by liquidator

      520.     Disqualification of liquidators

      521.     Reports by liquidator

      522.     Liquidators to enjoy qualified privilege in certain circumstances

      523.     Supervision of liquidators

      524.     Notice of appointment and address of liquidator

      525.     Regulations relating to money, etc, received by liquidator

      526.     Liquidator’s accounts

      527.     Liquidator to make good defaults

      528.     Notification that a corporation is in liquidation

      529.     Books of company

      530.     Investment of surplus funds on general account

      531.     Unclaimed moneys to be paid to Administration

      532.     Expenses of winding up where property insufficient

      533.     Resolutions passed at adjourned meetings

      534.     Meetings to ascertain wishes of creditors or contributories

Subdivision B  —  Committees of Inspection

      535.     Convening of meeting for appointment of committee of inspection

      536.     Proceedings of committee of inspection

      537.     Vacancies in committee of inspection

      538.     Member of committee not to accept extra benefit

      539.     Powers of Court where no committee of inspection

Subdivision C  —  Proof and Ranking of Claims

      540.     Interpretation

      541.     Provable debts

      542.     Insolvent companies

      543.     Computation of debts

      544.     Debts proved to rank equally except as otherwise provided

      545.     Priority payments

      546.     Debts due to employees

      547.     Debts of a class to rank equally

      548.     Advances in respect of wages and leave of absence

      549.     Priority of employees’ claims over floating charges

      550.     Insurance against liabilities to third parties

      551.     Provisions relating to injury compensation

      552.     Power of Court to make orders in favour of certain creditors

Subdivision D  —  Effect on other Transactions

      553.     Undue preference

      554.     Effect of floating charge

      555.     Liquidator’s right to recover in respect of certain transactions

      556.     Disclaimer of onerous property

      557.     Executions, attachments, etc, before winding up

      558.     Duties after receiving notice of application

Subdivision E  —  Offences

      559.     Prosecution of delinquent officers and members

Subdivision F  —  Dissolution

      560.     Power of Court to declare dissolution of company void

      561.     Power of Registrar to deregister defunct company

      562.     Registrar to act as representative of defunct company in certain events

      563.     Outstanding property of defunct company to vest in Administration

      564.     Disposal of outstanding interests in property

      565.     Liability of Administration as to property vested in Administration

      566.     Accounts

Division 5  —  Foreign Companies

      567.     Powers and functions in Norfolk Island of liquidators of foreign companies

Division 6  —  Winding Up of Bodies other than Companies

      568.     Application

      569.     Winding up of bodies to which this Division applies

      570.     Contributories in winding up

      571.     Power of Court to stay or restrain proceedings

Division 7  —   Miscellaneous

      572.     Outstanding property of defunct body formed outside Norfolk Island

PART 23  —  INVESTMENT COMPANIES

      573.     Interpretation

      574.     Restriction on borrowing by investment companies

      575.     Restriction on investments of investment companies

      576.     Restriction on underwriting by investment companies

      577.     Special requirements as to articles and prospectus

      578.     Investment company not to hold shares in other investment companies

      579.     Investment company not to speculate in commodities

      580.     Balance-sheets and accounts

      581.     Investment fluctuation reserve

      582.     Offences


PART 24  —  CORPORATIONS ACTING AS TRUSTEE

      583.     Notification that corporation is acting as trustee

      584.     No constructive notice of terms of trust

      585.     Liability of directors for debts

PART 25  —  FOREIGN COMPANIES

      586.     Interpretation

      587.     Power to hold land

      588.     Unregistered foreign company not to establish place of business or carry on business in Norfolk Island

      589.     Registered office of registered foreign company

      590.     Agents

      591.     Notice to be filed where documents, etc, altered

      592.     Balance-sheets and other documents

      593.     Publication of name, etc, of foreign company

      594.     Cessation of business, etc

      595.     Registrar may question company as to carrying on business

      596.     Obligation to lodge documents

      597.     Winding up or dissolution

      598.     Official management

      599.     Duties of liquidator appointed by Court

      600.     Disposal of proceeds of liquidation

      601.     Restriction on use of certain names

      602.     Branch register of shares

      603.     Registration of shares in branch register

      604.     Removal of shares from branch register

      605.     Index of members and inspection and closing of branch registers

      606.     Branch register to be evidence

607.          Certificate as to shareholding

608.     Offences

PART 25A  —  ADMINISTRATION COMPANIES

Division 1 ¾ Preliminary

      608A.  Interpretation

      608B.  Role of Government Auditor

Division 2 ¾ Annual report and related obligations

      608C.  Annual Report

      608D.  Audit of relevant subsidiary’s financial statements


Division 3  -  Other reporting obligations

      608E.   Interim reports

      608F.   Minister to be notified of significant events

      608G.  Keeping Minister informed

      608H.  Corporate plan

Division 4  -  Miscellaneous

      608I.    Compliance with general policies of the government

      608J.    Notices to Assembly

      608K.  Interaction with other provisions

PART 26  —  MISCELLANEOUS

      609.     Service of documents on company

      610.     Service of documents on registered foreign company

      611.     Other modes of service

      612.     Address of registered office, principal office, etc

      613.     Vesting of property

      614.     Parts of dollar to be disregarded in determining majority in value of creditors, etc

      615.     Rounding off

      616.     Irregularities

      617.     Costs

      618.     Disposal of securities if whereabouts of holder unknown

      619.     Power to grant relief

      620.     Directions with respect to meetings ordered by the Court

      621.     Appeals from decisions of Registrar, receivers and liquidators

      622.     Power of Registrar to intervene in proceedings

      623.     Examination of persons concerned with corporations

      624.     Orders against persons concerned with corporations

      625.     Civil proceedings not to be stayed

      626.     Form and evidentiary value of books

      627.     Inspection of books

      628.     Location of books kept on computers, etc

      629.     Location of registers

      630.     Translations of documents

      631.     Certificate of incorporation conclusive evidence

      632.     Admissibility of books in evidence

      633.     Admissibility of documents as evidence

      634.     Court may compel inspection

      635.     Non-application of rule against perpetuities to certain schemes

      636.     Fees

      637.     Application of fees and other moneys

      638.     Local companies

      639.     False information

PART 27  —  OFFENCES

      640.     Time for institution of criminal proceedings

      641.     Restriction on offering shares, securities for subscription or purchase

      642.     Application and interpretation of sections 643 and 646

      643.     Offences by officers of certain companies

      644.     Offences where proper accounts not kept

      645.     Offences relating to incurring of debts or fraudulent conduct

      646.     Powers of Court in respect of offences

      647.     Certain rights not affected

      648.     Inducement to be appointed liquidator or official manager

      649.     Falsification of books

      650.     Frauds by officers

      651.     Court may disqualify person from acting as director, etc, in certain circumstances

      652.     Registrar may order persons not to manage corporations

      653.     False or misleading statements

      654.     False information, etc

      655.     Dividends payable from profits only

      656.     Restriction on use of word “Limited”

      657.     Restriction on use of word “Proprietary”

      658.     Reciprocity in relation to offences

      659.     Offences committed partly in and partly out of Norfolk Island

      660.     General penalty provisions

      661.     Penalty notices

      662.     Continuing offences

      663.     Officers and other persons in default

      664.     Imprisonment

      665.     Power of Court to prohibit payment or transfer of moneys, securities or other property

      666.     Injunctions

      667.     Power of Court to punish for contempt

PART 28  —  RULES AND REGULATIONS

      668.     Rules

      669.     Regulations

PART 29  —   TRANSITIONAL PROVISIONS

      670.     Application

      671.     General provision

      672.     Particular provisions

      673.     Resolution of difficulties in application of transitional provisions

 

                  SCHEDULE 1  —  Enactments repealed

                  SCHEDULE 2  —  Order of priority of registrable charges

 


 

 

NORFOLK                            ISLAND

 

 

 

Companies Act 1985

_______________________________________________________________________

 

An Act relating to companies.

PART 1 — PRELIMINARY

Short title

      1.         This Act may be cited as the Companies Act 1985.

Commencement

      2.         This Act shall come into operation on a date fixed by the Administrator by notice published in the Gazette.

Administration bound

      3.         This Act binds the Administration and, so far as possible, this Act also binds the Crown in each of its capacities.

Repeal

      4.         The enactments specified in Schedule 1 are repealed.

PART 2 — DEFINITIONS AND INTERPRETATION

Effect of Part

      5.         A provision of this Part has effect except in so far as a contrary intention appears in this Act in relation to that provision or a contrary intention arises in relation to that provision by necessary intendment.

Definitions

      6.         In this Act —

      “accounting records” includes —

                  (a)        invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry; and

 

                  (b)        such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up;

      “annual general meeting”, in relation to a company, means a meeting of the company required to be held by section 305;

      “annual return” means the return required to be made by Part XIV and includes a document accompanying the return;

      “articles” means articles of association;

      “bankers books” means —

                  (a)        books of a banking corporation, including documents used in the ordinary business of a banking corporation;

                  (b)        orders for the payment of money, bills of exchange, cheques and promissory notes in the possession or under the control of a banking corporation;  and

                  (c)        securities or documents of title to securities in the possession or under the control of a banking corporation, whether by way of pledge or otherwise;

      “banking corporation” means —

                  (a)        a bank as defined in section 5 of the Banking Act 1959 of the Commonwealth; or

                  (b)        a bank constituted by or under a law of the Commonwealth or of a State or of a Territory other than Norfolk Island;

      “books” includes a register or other record of information, accounts or accounting records, however compiled, recorded or stored, and also includes a document;

      “borrowing company” means a company (not being a banking corporation) that is or will be under a liability to repay money received or to be received by it in response to an invitation to the public to subscribe for or purchase debentures of the company or to an offer to the public of debentures of the company for subscription or purchase;

      “branch register” means —

                  (a)        in relation to a company - a branch register of members of the company kept pursuant to section 327; or

                  (b)        in relation to a foreign company - a branch register of members of the company kept pursuant to section 602;

      “business day” means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in Norfolk Island;

      “certified” means —

                  (a)        in relation to a copy of or extract from a document - certified by a statement in writing to be a true copy of or extract from the document; or

                  (b)        in relation to a translation of a document - certified by a statement in writing to be a correct translation of the document into the English language;

      “charge” means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether upon demand or otherwise;

      “chargee” means the holder of a charge and includes a person in whose favour a charge is to be given or executed pursuant to an agreement, whether upon demand or otherwise;

      “company” means a company that is incorporated or is to be deemed to be incorporated under this Act or under the repealed laws;

      “company limited by guarantee” means a company formed on the principle of having the liability of its members limited by the memorandum to the respective amounts that the members undertake to contribute to the property of the company in the event of its being wound up;

      “company limited by shares” means a company formed on the principle of having the liability of its members limited by the memorandum to the amount (if any) unpaid on the shares respectively held by them;

      “contributory” means —

                  (a)        in relation to a company —

                              (i)   a person liable as a member or past member to contribute to the property of the company in the event of its being wound up;

                              (ii)  being a company having a share capital - a holder of fully paid shares in the company; and

                              (iii) before the final determination of the persons who are contributories by virtue of subparagraphs (i) and (ii) - a person alleged to be such a contributory; and

                  (b)        in relation to a body corporate to which Division 6 of Part XXII applies —

                              (i)   a person who is a contributory by virtue of section 570; and

                              (ii)  before the final determination of the persons who are contributories by virtue of subparagraph (i) - a person alleged to be such a contributory;

      “corporation” means a body corporate, whether formed or incorporated in or outside Norfolk Island, and includes a company and a foreign company but does not include —

                  (a)        a body corporate that is incorporated in Australia or in an external Territory (other than Norfolk Island) and is a public authority or an instrumentality or agency of the Crown in any of its capacities; or

                  (b)        a corporation sole;

      “the Court” means the Supreme Court;

      “creditors’ voluntary winding up” means a winding up under Division 3 of Part 22, other than a members’ voluntary winding up;

      “debenture” includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a corporation in respect of money that is or may be deposited with or lent to the corporation, whether constituting a charge on property of the corporation or not, but does not include —

                  (a)        a document that merely acknowledges the receipt of money where, in respect of the money, the corporation issues, in compliance with section 126, a document as mentioned in by subsection (2) of that section and complies with the other requirements of that section;

                  (b)        a document issued or executed by a banking corporation in the ordinary course of its banking business, being a document that evidences or acknowledges indebtedness of the corporation arising in the ordinary course of that business;

                  (c)        an order for the payment of money, bill of exchange or cheque;

                  (d)       a promissory note having a face value of not less than $50,000; or

                  (e)        for the purposes of the application of this definition to a provision of this Act in respect of which the regulations provide that the word “debenture” does not include a prescribed document or a document included in a prescribed class of documents - that document or a document included in that class of documents, respectively;

      “deed” includes an instrument having the effect of a deed;


 

      “document” includes —

                  (a)        a paper or other material on which there is writing or printing or on which there are marks, symbols or perforations that have a meaning for a person who is qualified to interpret them; and

                  (b)        a disc, tape or other article from which sounds, images or messages are capable of being reproduced,

and, without limiting the generality of the foregoing, also includes —

                  (c)        a summons, order of a court or other legal process; and

                  (d)       a notice, memorandum or report;

      “emoluments” means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a corporation in connection with the management of affairs of the corporation or of a holding company or subsidiary of the corporation, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred or paid in connection with the business of the corporation;

      “executive officer”, in relation to a corporation, means a person, by whatever name called and whether or not he is a director of the corporation, who is concerned, or takes part, in the management of the corporation;

      “exempt proprietary company” means a proprietary company —

                  (a)        no share in which is to be deemed to be owned by a public company; and

                  (b)        no member of which is a public company;

      “expert”, in relation to a matter, means a person whose professional or other qualifications give authority to a statement made by him in relation to that matter;

      “filed” means filed under this Act or under the repealed laws;

      “floating charge” includes a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge;

      “foreign company” means —

                  (a)        a body (including a society or association) formed or incorporated outside Norfolk Island, not being —

                              (i)   a corporation sole; or

                              (ii)  a body corporate that is a public authority or an instrumentality or agency of the Crown in any of its capacities; or

                  (b)        an unincorporated society, association or other body formed outside Norfolk Island that does not have its head office or principal place of business in Norfolk Island;

      “guarantor corporation”, in relation to a borrowing company, means a corporation that has guaranteed or has agreed to guarantee the repayment of money received or to be received by the borrowing company in response to an invitation to the public to subscribe for or purchase debentures of the borrowing company or an offer to the public of debentures of the borrowing company for subscription or purchase;

      “industrial instrument” means —

                  (a)        a contract of employment; or

                  (b)        a law, award, order, determination or agreement relating to terms or conditions of employment;

      “injury compensation” means compensation payable under a law relating to workers' compensation;

      “issue” includes circulate, distribute and disseminate;

      “leave of absence” means long service leave, extended leave, recreation leave, annual leave, sick leave or any other form of leave of absence from employment;

      “legal practitioner” means a barrister or solicitor;

      “limited company” means a company limited by shares or by guarantee or both by shares and by guarantee;

      “listed corporation” means a corporation that has been admitted to the official list of a stock exchange and has not been removed from that official list;

      “lodged” means lodged under this Act or under the repealed laws;

      “machine-copy”, in relation to a document, means a copy of the document made by a machine in which, or by a process by which, an image of the contents of the document is reproduced from surface contact with the document or by the use of photo-sensitive material other than transparent photographic film;

      “marketable securities” means debentures, stocks, shares or bonds of a Government, of a local government authority or of a corporation, association or society, and includes a right or option in respect of shares in a corporation;

      “members’ voluntary winding up” means a winding up under Division 3 of Part 22 where a declaration has been made and lodged pursuant to section 497;

      “memorandum” means memorandum of association;

      “minerals” means minerals in any form, whether solid, liquified or gaseous and whether organic or inorganic;

      “minimum subscription”, in relation to shares offered to the public for subscription or for which the public are invited to subscribe, means the amount stated in the prospectus relating to the offer or invitation pursuant to subsection 135 (3) as the minimum amount that, in the opinion of the directors, must be raised by the issue of the shares;

      “negative”, in relation to a document, means a transparent negative photograph used or intended to be used as a medium for reproducing the contents of the document, and includes a transparent photograph made from surface contact with the original negative photograph;

      “nominee corporation” means a corporation whose principal business is the business of holding marketable securities as a trustee or nominee;

      “notice” means a notice in writing;

      “official liquidator” means a person registered as an official liquidator under Division 3 of Part 3;

      “official manager” means a person appointed as an official manager under Part 21;

      “prescribed” means prescribed by this Act, by the regulations or by the rules;

      “principal executive officer”, in relation to a company, means the principal executive officer of the company for the time being, by whatever name called, and whether or not he is a director;

      “principal register”, in relation to a company, means the register of members of the company kept pursuant to section 320;


 

      “profit and loss account” includes income and expenditure account, revenue account or other account that shows the results of the business of a corporation for a period and, if the corporation concerned is engaged in the development or exploration of natural resources, also includes an operations account or a like account and a development account or a like account;

      “promoter”, in relation to a prospectus issued by or in connection with a corporation, means a promoter of the corporation who was a party to the preparation of the prospectus or of a relevant portion of the prospectus but does not include a person by reason only of his acting in the proper performance of the functions attaching to his professional capacity or to his business relationship with a promoter of the corporation;

      “proprietary company” means —

                  (a)        a company that, immediately before the commencement of this Act, was a proprietary company under the repealed laws;

                  (b)        a company incorporated as a proprietary company pursuant to this Act; or

                  (c)        a company converted into a proprietary company pursuant to this Act,

but does not include a company that has ceased to be a proprietary company;

      “public company” means a company other than a proprietary company;

      “registered” means registered under this Act or under the repealed laws;

      “registered company auditor” means a person who is registered as an auditor, or is to be deemed to be registered as an auditor, under this Act and, in relation to a corporation that is not a company, includes a person qualified to act as the auditor of the corporation under the law of the place in which the corporation was formed;

      “registered foreign company” means a foreign company that is registered under Part 25;

      “registered liquidator” means a person who is registered as a liquidator, or is to be deemed to be registered as a liquidator, under this Act;

      “Registrar” means the person holding office as Registrar of Companies under this Act;

      “related corporation”, in relation to a corporation, means a corporation that is to be deemed to be related to the first-mentioned corporation by virtue of section 24;

      “relative”, in relation to a person, means the spouse or a parent or remoter lineal ancestor, son, daughter or remoter issue, or brother or sister of the person;

      “the repealed laws” means the enactments repealed by this Act;

      “reproduction”, in relation to a document, means a machine-copy of the document or a print made from a negative of the document;

      “resolution” means a resolution other than a special resolution;

      “resolution for voluntary winding up” means a special resolution as mentioned in section 494;

      “rules” means rules of the Court;

      “securities”, in relation to a corporation or proposed corporation, means —

                  (a)        shares in, or debentures of, the corporation; and

                  (b)        a unit in such a share or debenture;

      “share” means share in the share capital of a corporation and includes stock except where a distinction between stock and shares is expressed or implied and "shareholder" has a corresponding meaning;

      “sheriff” includes a person charged with the execution of a writ or other process of a court;

      “special resolution” has the meaning given to that expression by section 313;

      “statutory meeting” means the meeting referred to in section 304;

      “statutory report” means the report referred to in section 304;

      “stock exchange” has the same meaning as in the Companies Act 1981 of the Commonwealth;

      “transparency”, in relation to a document, means —

                  (a)        a developed negative or positive photograph of the document (in this definition referred to as an original photograph) made, on a transparent base, by means of light reflected from, or transmitted through, the document;

                  (b)        a copy of an original photograph made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

                  (c)        one of a series of copies of an original photograph where —

                              (i)   the first of the series was made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b); and

                              (ii)  each succeeding copy in the series was made, in the same manner, from a preceding copy in the series;

      “unit”, in relation to a share, debenture or other interest, means a right or interest, whether legal or equitable, in the share, debenture or other interest, by whatever name called, and includes an option to acquire such a right or interest in the share, debenture or other interest;

      “voting share”, in relation to a body corporate, means an issued share in the body corporate that confers a right to vote, not being a right to vote that is exercisable only in one or more of the following circumstances:

                  (a)        during a period during which a dividend (or part of a dividend) in respect of the share is in arrears;

                  (b)        upon a proposal to reduce the share capital of the body corporate;

                  (c)        upon a proposal that affects rights attached to the share;

                  (d)       upon a proposal to wind up the body corporate;

                  (e)        upon a proposal for the disposal of the whole of the property, business and undertaking of the body corporate;

                  (f)        during the winding up of the body corporate;

      “wages”, in relation to a company, means amounts payable to or in respect of an employee of the company (whether the employee is remunerated by salary, wages, commission or otherwise) under an industrial instrument, including amounts payable by way of allowance or reimbursement but not including amounts payable in respect of leave of absence.


 

Businesses

      7.         A reference in this Act to a person carrying on business, or carrying on a business, includes a reference to a person carrying on business, or carrying on a business, respectively —

                  (a)        in any case - otherwise than for profit; or

                  (b)        in the case of a body corporate - otherwise than for the profit of the members or corporators of the body corporate.

Professional or business advisers

      8.         For the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a body corporate are accustomed to act by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his professional capacity or to his business relationship with the directors or the body corporate.

Invitations

      9.         For the purposes of this Act —

                  (a)        a reference to an invitation to do an act or thing includes a reference to an invitation to make an offer to do that act or thing;

                  (b)        a reference to an invitation to the public to subscribe for or purchase debentures of a corporation includes a reference to an invitation to the public to deposit money with or lend money to a corporation; and

                  (c)        a reference to an offer to the public of debentures of a corporation for subscription or purchase includes a reference to an offer to the public by a corporation to accept money that is deposited with, or money that is lent to, the corporation.

Offer or invitation to the public

      10.       (1)        A reference in this Act to, or to the making of, an offer to the public or to, or to the issuing of, an invitation to the public includes a reference to, or to the making of, an offer to a section of the public or to, or to the issuing of, an invitation to a section of the public, respectively, whether selected as clients of the person making the offer or issuing the invitation or in some other manner and notwithstanding that the offer is capable of acceptance only by each person to whom it is made or that an offer or application may be made pursuant to the invitation only by a person to whom the invitation is issued.

      (2)        For the purposes of subsection (1), if an offer or invitation is made in good faith and —

                  (a)        is an offer or invitation to enter into an underwriting agreement;

                  (b)        is made or issued to a person whose ordinary business is to buy or sell shares or debentures, whether as principal or agent;

                  (c)        is made or issued to existing members or debenture holders of a corporation and relates to shares in, or debentures of, that corporation;  or

                  (d)       is made or issued to existing members of a company in connection with a proposal referred to in section 512 and relates to shares in that company,

the offer or invitation shall not be taken to be an offer or invitation to the public.


 

Receivers also managers

      11.       (1)        For the purposes of this Act, a receiver of a corporation or of property of a corporation shall be deemed to be also a manager if the receiver manages affairs of the corporation or has power under the terms of his appointment to manage affairs of the corporation.

                  (2)        A reference in this Act to a receiver of a corporation or of property of a corporation includes a reference to a person who is both a receiver and a manager of the corporation or of property of the corporation.

Persons subject to restrictions

      12.       For the purposes of this Act, a person is subject to a restriction if —

                  (a)        the person is or becomes prohibited, without leave of the Court, or without leave of a court of a State or of a Territory other than Norfolk Island, from being a director or promoter of a corporation or from being concerned in or taking part in the management of a corporation;

                  (b)        the person is or becomes prohibited as mentioned in section 282, 283 or 651 or in a law of a State or of a Territory other than Norfolk Island that corresponds with any of those sections; or

                  (c)        there is in force in respect of the person a notice under section 652 or under a provision of a law of a State or Territory other than Norfolk Island that corresponds with that section.

Meaning of “director”

      13.       In this Act, “director”, in relation to a corporation, includes —

                  (a)        a person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position;

                  (b)        a person in accordance with whose directions or instructions the directors of the corporation are accustomed to act;

                  (c)        in the case of a foreign company —

                              (i)   a member of the committee of management, council or other governing body of the company;

                              (ii)  a person occupying or acting in the position of member of the committee of management, council or other governing body of the company, by whatever name called and whether or not validity appointed to occupy, or duly authorised to act in, the position; and

                              (iii) a person in accordance with whose instructions the members of the committee of management, council or other governing body of the company are accustomed to act.

Meaning of “insolvent under administration”

      14.       In this Act, “insolvent under administration” means a person who —

                  (a)        under the Bankruptcy Act 1966 of the Commonwealth, is a bankrupt in respect of a bankruptcy from which he has not been discharged; or

                  (b)        under the law of a country other than Australia has the status of an undischarged bankrupt;


 

and includes — 

                  (c)        a person who has executed a deed of arrangement under Part 10 of the Bankruptcy Act 1966 of the Commonwealth or the corresponding provisions of a country other than Australia where the terms of the deed have not been fully complied with; and

                  (d)       a person whose creditors have accepted a composition under Part 10 of the Bankruptcy Act 1966 of the Commonwealth or the corresponding provisions of the law of a country other than Australia where a final payment has not been made under that composition.

Meaning of “officer”

      15.       In this Act, “officer”, in relation to a corporation, includes —

                  (a)        a director, secretary, executive officer or employee of the corporation;

                  (b)        a person who is both a receiver and manager of property of the corporation appointed under a power contained in an instrument;

                  (c)        an official manager or deputy official manager of the corporation;

                  (d)       a liquidator of the corporation appointed in a voluntary winding up of the corporation; and

                  (e)        a trustee or other person administering a compromise or arrangement made between the corporation and another person or persons,

but does not include —

                  (f)        a receiver who is not also a manager; or

                  (g)        a receiver, manager or liquidator appointed by the Court.

Meaning of “financial year”

      16.       In this Act, “financial year” means —

                  (a)        in relation to a company incorporated under the repealed laws —

                              (i)   a period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of section 305 as to the holding of annual general meetings of the company) resolve, commencing at the expiration of the period in respect of which the last profit and loss account laid before the company at an annual general meeting before the commencement of this Act was made out or, if no profit and loss account was so made out, on the date of incorporation of the company; and

                              (ii)  each period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of section 305 as to the holding of annual general meetings of the company) resolve, commencing at the expiration of the previous financial year of the company;

                  (b)        in relation to a company incorporated under this Act —

                              (i)   a period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of section 305 as to the holding of annual general meetings of the company) resolve, commencing on the date of incorporation of the company; and

                              (ii)  each period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the directors (subject to the requirements of section 305 as to the holding of annual general meetings of the company) resolve, commencing at the expiration of the previous financial year of the company; and

                  (c)        in relation to a corporation incorporated outside Norfolk Island —

                              (i)   if a profit and loss account of the corporation is required, under the law of the place where the corporation is incorporated, to be made out in respect of a particular period - that period; or

                              (ii)  in a case to which subparagraph (i) does not apply - a period in respect of which a profit and loss account of the corporation is made out.

Meaning of “prospectus”

      17.       In this Act, “prospectus” means —

                  (a)        where the expression is used in relation to subscribing for shares in or debentures of, or units of shares in or units of debentures of, a corporation - a written notice, circular or other instrument inviting applications or offers from the public to subscribe for, or offering to the public for subscription, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, the corporation;

                  (b)        where the expression is used in relation to the purchase of shares in or debentures of, or units of shares in or units of debentures of, a corporation - a written notice, circular or other instrument inviting applications or offers from the public to purchase, or offering to the public for purchase, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, the corporation;

                  (c)        where the expression is used in relation to shares in or debentures of, or units of shares in or units of debentures of, a corporation otherwise than as mentioned in paragraphs (a) and (b) - a written notice, circular or other instrument inviting applications or offers from the public to subscribe for a purchase, or offering to the public for subscription or purchase, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, the corporation;

                  (d)       where the expression is used in relation to a corporation otherwise than as mentioned in paragraphs (a), (b) and (c) - a written notice, circular or other instrument inviting applications or offers from the public to subscribe for or purchase, or offering to the public for subscription or purchase, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, the corporation; or

                  (e)        in any other case where the expression is used - a written notice, circular or other instrument inviting applications or offers from the public to subscribe for or purchase, or offering to the public for subscription or purchase, shares in or debentures of, or units of shares in or units of debentures of, as the case may be, a corporation.

References to companies and corporations

      18.       The express references in this Act to companies, corporations or bodies corporate do not imply that references to persons do not include references to companies, corporations or bodies corporate.

Matters not shown fairly

      19.       (1)        Where, by this Act, accounts, a balance sheet, a profit and loss account or other statement or document is required to show certain matter fairly and that matter, as shown, is, in a material particular, false or, in the form and context in which it appears, misleading, then the accounts, balance sheet, profit and loss account, other statement or document shall be taken not to show that matter fairly.

                  (2)        Subsection (1) does not affect the generality of the expression “show fairly” or similar expressions.

References to affairs of a corporation

      20.       A reference in this Act to affairs of a corporation includes a reference to —

                  (a)        the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with another person or other persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with another person or other persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with another person or other persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the corporation;

                  (b)        in the case of a corporation that is a trustee (but without limiting the generality of paragraph (a)) - matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust;

                  (c)        the internal management and proceedings of the corporation;

                  (d)       an act or thing done (including a contract made and transaction entered into) by or on behalf of the corporation, or to or in relation to the corporation or its business or property, at a time when —

                              (i)   a receiver or manager was in possession of, or had control over, the whole or part of the property of the corporation;

                              (ii)  the corporation was under official management;

                              (iii) a compromise or arrangement made between the corporation and another person or other persons was being administered; or

                              (iv) the corporation was being wound up, and, without limiting the generality of the preceding provisions of this paragraph, any conduct of such a receiver or manager, of an official manager or deputy official manager of the corporation, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the corporation;

                  (e)        the ownership of shares in, or debentures of, the corporation;


 

                  (f)        the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the corporation or to dispose of, or to exercise control over the disposal of, such shares;

                  (g)        matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the corporation or are or have been able to control or to influence materially the policy of the corporation;

                  (h)        the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in or debentures of the corporation; and

                  (i)         matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, a matter referred to in any of the preceding paragraphs.

Subsidiaries

      21.       (1)        For the purposes of this Act, a corporation is, subject to section 22, a subsidiary of another corporation if —

                  (a)        that other corporation —

                              (i)   controls the composition of the board of directors of the first-mentioned corporation;

                              (ii)  is in a position to cast, or to control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned corporation; or

                              (iii) holds more than one-half of the issued share capital of the first-mentioned corporation (excluding any part of that capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

                  (b)        the first-mentioned corporation is a subsidiary of a corporation that is that other corporation's subsidiary (including a corporation that is that other corporation's subsidiary by another application or other applications of this paragraph).

                  (2)        Without limiting by implication the circumstances in which the composition of a corporation's board of directors is to be taken to be controlled by another corporation, the composition of a corporation's board of directors shall be taken to be controlled by another corporation where that other corporation, by the exercise of some power exercisable, whether with or without the consent or concurrence of any other person, by that other corporation, can appoint or remove all or a majority of the directors.

                  (3)        For the purposes of subsection (2), if —

                  (a)        a person cannot be appointed as a director without the exercise in his favour by the other corporation of such a power; or

                  (b)        a person's appointment as a director is a necessary consequence of his being a director or other officer of the other corporation,

the other corporation shall be deemed to have power to make such an appointment.


 

Nature of shareholdings

      22.       For the purposes of section 21, in determining whether one corporation is a subsidiary of another corporation —

                  (a)        a share held or power exercisable by the other corporation in a fiduciary capacity shall be treated as not held or exercisable by it;

                  (b)        subject to paragraphs (c) and (d), a share held or power exercisable —

                              (i)   by a person as a nominee for the other corporation (except where that other corporation is concerned only in a fiduciary capacity); or

                              (ii)  by, or by a nominee for, a subsidiary of the other corporation, not being a subsidiary that is concerned only in a fiduciary capacity,

                              shall be treated as held or exercisable by that other corporation;

                  (c)        a share held or power exercisable by a person by virtue of the provisions of a debenture of the corporation first-mentioned in section 21, or of a trust deed for securing an issue of such debentures, shall be disregarded; and

                  (d)       a share held or power exercisable by, or by a nominee for, the other corporation or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by the other corporation if the ordinary business of the other corporation or its subsidiary, as the case may be, includes the lending of money and the share is held or the power is exercisable only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the other corporation or its subsidiary.

Holding companies

      23.       A reference in this Act to the holding company of another company or corporation is a reference to a corporation of which that company or corporation is a subsidiary.

Related corporations

      24.       Where a corporation —

                  (a)        is the holding company of another corporation;

                  (b)        is a subsidiary of another corporation; or

                  (c)        is a subsidiary of the holding company of another corporation,

the first-mentioned corporation and the other corporation shall, for the purposes of this Act, be deemed to be related to each other.

Ultimate holding companies

      25.       For the purposes of this Act, a corporation is the ultimate holding company of another corporation if —

                  (a)        the other corporation is a subsidiary of the first-mentioned corporation; and

                  (b)        the first-mentioned corporation is not itself a subsidiary of a corporation.


 

Wholly-owned subsidiaries

      26.       For the purposes of this Act, a corporation is a wholly-owned subsidiary of another corporation if none of the members of the first-mentioned corporation is a person other than —

                  (a)        that other corporation;

                  (b)        a nominee of that other corporation;

                  (c)        a subsidiary of that other corporation, being a subsidiary none of the members of which is a person other than that other corporation or a nominee of that other corporation; or

                  (d)       a nominee of such a subsidiary.

Relevant interests in shares

      27.       (1)        Subject to this section, a person has a relevant interest in a share in a body corporate —

                  (a)        for the purposes of section 325, if that share is a voting share and that person has power —

                              (i)   to exercise, or to control the exercise of, the right to vote attached to that share; or

                              (ii)  to dispose of, or to exercise control over the disposal of, that share; and

                  (b)        for the purposes of sections 286 to 292 (inclusive), if that person has power to dispose of, or to exercise control over the disposal of, that share.

                  (2)        For the purposes of paragraph (1)(b), it is immaterial that the power of a person to exercise, control the exercise of, or influence the exercise of, voting power is in any way qualified.

                  (3)        It is immaterial for the purposes of this section whether the power of a person —

                  (a)        to exercise, or to control the exercise of, the right to vote attached to a voting share; or

                  (b)        to dispose of, or exercise control over the disposal of, a share,

is express or implied or formal or informal, is exercisable alone or jointly with another person or other persons, cannot be related to a particular share, or is, or is capable of being made, subject to a restraint or restriction, and such a power exercisable jointly with another person or other persons shall, for those purposes, be deemed to be exercisable by either or any of those persons.

                  (4)        A reference in this section to power or control includes a reference to power or control that is direct or indirect or is, or is capable of being, exercised as a result of, by means of, in breach of, or by revocation of trusts, agreements, arrangements, understandings and practices or any of them, whether or not they are enforceable, and a reference in this section to a controlling interest includes a reference to such an interest as gives control.

                  (5)        Without limiting the generality of subsections (1), (3) and (4), where a body corporate has, or is to be deemed by this section to have, power —

                  (a)        to exercise, or to control the exercise of, the right to vote attached to a voting share; or

                  (b)        to dispose of, or to exercise control over the disposal of, a share,

and —


 

                  (c)        the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of the power; or

                  (d)       a person has a controlling interest in the body corporate,

that person shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has or is to be deemed to have.

                  (6)        Where a body corporate has, or is to be deemed by this section (otherwise than by this subsection) to have, power —

                  (a)        to exercise, or to control the exercise of, the right to vote attached to a voting share; or

                  (b)        to dispose of, or to exercise control over the disposal of, a share,

a person (in this subsection referred to as the “relevant person”) shall, for the purposes of this section, be deemed to have the same power in relation to that share as the body corporate has or is to be deemed to have if —

                  (c)        the relevant person has;

                  (d)       a person associated with the relevant person has;

                  (e)        persons associated with the relevant person together have; or

                  (f)        the relevant person and a person or persons associated with the relevant person together have,

the power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate.

                  (7)        Where a person —

                  (a)        has entered into an agreement with respect to an issued share;

                  (b)        has a right relating to an issued share, whether the right is enforceable presently or in the future and whether on the fulfilment of a condition or not;  or

                  (c)        has an option with respect to an issued share,

and, on performance of the agreement, enforcement of the right or exercise of the option, that person would have a relevant interest in the share, he shall, for the purposes of this section, be deemed to have that relevant interest in the share.

                  (8)        For the purposes of this section, where, by reason of the operation of subsection (7), a body corporate is to be deemed to have a relevant interest in a share and —

                  (a)        the body corporate or its directors are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to the exercise of, or the control of the exercise of, a right to vote attached to that share, or in relation to the disposal of, or the exercise of control over the disposal of, that share;

                  (b)        a person has a controlling interest in the body corporate; or

                  (c)        a person has power to exercise, or to control the exercise of, the voting power attached to not less than the prescribed percentage of the voting shares in the body corporate,

that person shall be deemed to have a relevant interest in that share.


 

                  (9)        A relevant interest in a share shall be disregarded for the purposes of sections 286 to 292 (inclusive) and 325 —

                  (a)        if the ordinary business of the person who has the relevant interest includes the lending of money and he has authority to exercise his powers as the holder of the relevant interest  only by reason of a security given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the first-mentioned person;

                  (b)        if the relevant interest is that of a person who has it by reason of his holding a prescribed office;

                  (c)        if the share is subject to a trust and the relevant interest is that of a trustee and —

                              (i)   a beneficiary is to be deemed, by subsection (7), to have a relevant interest in the share by virtue of a presently enforceable and unconditional right referred to in paragraph (b) of that subsection; or

                              (ii)  the trustee is a bare trustee; or

                  (d)       if the ordinary business of the person who has the relevant interest includes dealing in securities and he has authority to exercise his powers as the holder of the relevant interest only by reason of instructions given to him by or on behalf of another person to dispose of that share on behalf of the other person in the ordinary course of business.

                  (10)      For the purposes of subsection 9(c), a trustee shall not be taken to be a bare trustee by reason only that he is entitled in his capacity as a trustee to be remunerated out of the income or property of the trust.

                  (11)      A relevant interest in a share shall be disregarded for the purposes of Part 8, if the relevant interest is that of a person who has it by reason only of his having been appointed as a proxy or representative to vote at a particular meeting of members, or of a class of members, of a corporation, not being an appointment in return for the making of which the person or person associated with the person provided valuable consideration.

                  (12)      A relevant interest in a share shall not be disregarded by reason only of —

                  (a)        its remoteness;  or

                  (b)        the manner in which it arose.

                  (13)      The Regulations may provide that relevant interests, or the interests included in particular classes of relevant interests, in shares in bodies corporate, or in bodies included in particular classes of bodies corporate, shall, in such circumstances and subject to such conditions (if any) as are specified in the Regulations, be disregarded for the purposes of such of the provisions of this section as are specified in the Regulations.

                  (14)      A reference in this section to the prescribed percentage is a reference to 20% or, where a lesser percentage is prescribed, is a reference to that lesser percentage.


 

Associated persons

      28.       (1)        A reference in this Act to a person associated with another person is a reference —

                  (a)        if the other person is a corporation - to —

                              (i)   a director or secretary of the corporation;

                              (ii)  a corporation that is related to the other person; or

                              (iii) a director or secretary of such a related corporation;

                  (b)        where the matter to which the reference relates is the extent of a power to exercise, or to control the exercise of, the voting power attached to voting shares in a corporation - to a person with whom the other person has, or proposes to enter into, an agreement, arrangement, understanding or undertaking, whether formal or informal and whether express or implied —

                              (i)   by reason of which either of those persons may exercise, directly or indirectly control the exercise of, or substantially influence the exercise of, the voting power attached to a share in the corporation;

                              (ii)  with a view to controlling or influencing the composition of the board of directors, or the conduct of affairs, of the corporation;  or

                              (iii) under which either of those persons may acquire from the other of them shares in the corporation or may be required to dispose of shares in the corporation in accordance with the directions of the other of them;

                  (c)        to a person in concert with whom the other person is acting, or proposes to act, in respect of the matter to which the reference relates;

                  (d)       to a person with whom the other person is, or proposes to become, associated, whether formally or informally, in some other way in respect of the matter to which the reference relates; or

                  (e)        if the other person has entered into, or proposes to enter into, a transaction, or has done, or proposes to do, some other act or thing, with a view to becoming associated with a person as mentioned in paragraph (b), (c) or (d) - to the last-mentioned person.

                  (2)        A person shall not be taken to be associated with another person by virtue of paragraph (1)(b), (c), (d) or (e) by reason only that —

                  (a)        either of those persons furnishes advice to, or acts on behalf of, the other person in the proper performance of the functions attaching to his professional capacity or to his business relationship with the other person;

                  (b)        without limiting the generality of paragraph (a), where the ordinary business of either of those persons includes dealing in securities - specific instructions are given to the person by or on behalf of the other person to acquire shares on behalf of the other person in the ordinary course of that business; or

                  (c)        the person has appointed the other person as a proxy or representative to exercise, at a meeting of members or of a class of members of a company, votes attached to shares of which the person is the holder and the relevant interest of the other person in those shares that arises by reason of his appointment as a proxy or representative would be disregarded under subsection 27(9) by reason of subsection 27(11).

Deemed ownership of shares in proprietary company

      29.       (1)        For the purposes of the definition of “exempt proprietary company” in section 6, a share in a proprietary company shall be deemed to be owned by a public company if a beneficial interest in the share is held, directly or indirectly, by —

                  (a)        a public company;

                  (b)        a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by a public company; or

                  (c)        a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by —

                              (i)   a public company; or

                              (ii)  another proprietary company a beneficial interest in a share in which is held, directly or indirectly, otherwise than by a natural person.

                  (2)        For the purposes of subsection (1) but without limiting the generality of that subsection —

                  (a)        a reference in that subsection to a public company  includes a reference to a foreign company other than a foreign company that (whether or not Part 25 applies to it) is a foreign company of a kind referred to in subsection 592(7);

                  (b)        a reference in that subsection to a public company or to a proprietary company does not include a reference to a company in respect of which a licence under section 86 is in force; and

                  (c)        a person (including a corporation) shall be deemed to hold a beneficial interest in a share —

                              (i)   if that person, either alone or together with some other person or other persons, is entitled (otherwise than as trustee for, on behalf of, or on account of, another person) to receive, directly or indirectly, a dividend in respect of the share or to exercise, or to control the exercise of, a right attaching to the share; or

                              (ii)  if that person, being a corporation holds a beneficial interest in a share in some other corporation that holds, or a subsidiary of which holds, a beneficial interest in the first-mentioned share.

PART 3  —  ADMINISTRATION

Division 1 — Registrar and other Officers

Registrar of Companies

      30.       (1)        For the purposes of this Act, the Administrator shall appoint a Registrar of Companies and an Assistant Registrar of Companies.

                  (2)        The Administrator may appoint an Acting Assistant Registrar of Companies.

                  (3)        The Registrar, the Assistant Registrar and an Acting Assistant Registrar hold office during the pleasure of the Administrator.


 

                  (4)        The Assistant Registrar has all the powers and shall perform all the duties and exercise all the powers of the Registrar under this Act during the absence of the Registrar from duty or from Norfolk Island or during a vacancy in the office of Registrar.

                  (5)        Without limiting the operation of subsection (4), the Assistant Registrar may, subject to any directions of the Registrar, at any time exercise a power or perform a function of the Registrar.

                  (6)        An Acting Assistant Registrar may, subject to any directions of the Registrar or of the Assistant Registrar, exercise a power or perform a function of the Registrar —

                  (a)        the official seal of the Registrar under this Act or under the repealed laws; and

                  (b)        during a vacancy in the office of Assistant Registrar; or

                  (c)        while the Assistant Registrar is absent from duty or from Norfolk Island.

                  (7)        Where, under this Act, the exercise of a power or the performance of a function is dependent upon the opinion, belief or state of mind of the Registrar in relation to a matter, the power may be exercised or the function performed by the Assistant Registrar or Acting Assistant Registrar upon his opinion, belief or state of mind in relation to the matter.

Seal of Registrar

      31.       (1)        The Registrar shall have an official seal in accordance with a design determined by the Administrator and published in the Gazette.

                  (2)        All Courts, judges and persons acting judicially shall take judicial notice of  —

                  (a)        the official seal of the Registrar under this Act or under the repealed laws; and

                  (b)        the signature of a person who holds or has held the office of Registrar of Companies, Assistant Registrar of Companies or Acting Assistant Registrar of Companies, whether under this Act or under the repealed laws, and of the fact that that person held the office concerned at a relevant time.

Division 2 — Powers of Inspection

Interpretation

      32.       In this Division —

      “books” includes bankers books;

      “premises” includes a structure, building, aircraft, vehicle, vessel or place (whether built upon or not) and a part of such a structure, building, aircraft, vehicle, vessel or place.

Registrar may inspect books without charge

      33.       (1)        A book that is required by this Act to be kept by a company or by a registered foreign company shall be open for inspection without charge by the Registrar or by a person authorised by the Registrar for the purposes of this section.

                  (2)        An authorisation under subsection (1) may be of general application or may be limited as specified in the instrument of authorisation.


 

Power of Registrar to require production of books

      34.       (1)        The Registrar may, at any time, by notice in writing, give a direction —

                  (a)        to —

                              (i)   a corporation; or

                              (ii)  a person who is or has been an officer or employee of, or an agent, banker, solicitor, auditor or other person acting in any capacity for or on behalf of, a corporation (including a corporation that is in the course of being wound up or has been dissolved), requiring the production, at a time and place specified in the direction, of such books relating to affairs of the corporation as are specified in the direction; or

                  (b)        to a person requiring the production, at a time and place specified in the direction, of books relating to affairs of a corporation (including a corporation that is in the course of being wound up or has been dissolved) that are in the custody or under the control of the person.

                  (2)        The Registrar may authorise a person, on producing (if required to do so) evidence of his authority —

                  (a)        to require by notice in writing a corporation to produce to the authorised person forthwith or, if a time and place at which the books are to be produced are specified in the notice, at that time and place, such books relating to affairs of the corporation as are specified by the authorised person;

                  (b)        to require by notice in writing a person who is or has been an officer or employee of, or an agent, banker, solicitor, auditor or other person acting in any capacity for or on behalf of, a corporation (including a corporation that is in the course of being wound up or has been dissolved) to produce to the authorised person forthwith such books relating to affairs of the corporation as are specified by the authorised person; or

                  (c)        to require by notice in writing a person to produce to the authorised person forthwith books relating to affairs of a corporation (including a corporation that is in the course of being wound up or has been dissolved) that are in the custody or under the control of the person.

                  (3)        An authorisation under subsection (2) may be of general application or may be limited as specified in the instrument of authorisation.

                  (4)        Where the Registrar, or a person authorised by the Registrar, requires the production of a book under this section and a person has a lien on the book, the production of the book does not affect the lien.

                  (5)        Where a person exercises a power under this section to require another person to produce a book —

                  (a)        if the book is produced, the first-mentioned person —

                              (i)   may take possession of the book and may make copies of, or take extracts from, the book;

                              (ii)  may require the other person, or a person who was party to the compilation of the book, to make a statement providing an explanation that the person concerned is able to provide as to a matter relating to the compilation of the book or as to a matter to which the book relates;

                              (iii) may retain possession of the book for such period as is necessary to enable the book to be inspected, and copies of, or extracts from, the book to be made or taken, by or on behalf of the Registrar; and

                              (iv) during that period shall permit a person who would be entitled to inspect the book if it were not in the possession of the first-mentioned person to inspect the book at all reasonable times; or

                  (b)        if the book is not produced, the first-mentioned person may require the other person —

                              (i)   to state, to the best of his knowledge and belief, where the book may be found; and

                              (ii)  to identify the person who, to the best of his knowledge and belief, last had custody of the book and to state, to the best of his knowledge and belief, where that person may be found.

                  (6)        Where this section confers a power on a person to require another person to produce a book relating to affairs of a corporation, the first-mentioned person also has power to require the other person (whether or not he requires the other person to produce a book and whether or not a book is produced pursuant to such a requirement), so far as the other person is able to do so, to identify property of the corporation and explain the manner in which the corporation has kept account of that property.

                  (7)        A person is not subject to any liability by reason that the person complies with a direction given, or purporting to have been given, under subsection (1) or with a requirement made, or purporting to have been made, under subsection (2).

                  (8)        A power conferred by this section to make a requirement of a person extends, if the person is a body corporate, including a body corporate that is in the course of being wound up or was a body corporate that has been dissolved, to making that requirement of a person who is or has been an officer of the body corporate.

                  (9)        For the purposes of this section, “officer”, in relation to a body corporate, includes —

                  (a)        a director, secretary, executive officer or employee of the body corporate;

                  (b)        a receiver, or a manager, of the property or of a part of the property of the body corporate;

                  (c)        an official manager or a deputy official manager of the body corporate;

                  (d)       a liquidator or provisional liquidator of the body corporate; and

                  (e)        a trustee or other person administering a compromise or arrangement made between the body corporate and another person or other persons.

Power of Magistrate to issue warrant to seize books

      35.       (1)        If a Magistrate is satisfied, on information on oath or affirmation laid by the Registrar or by a person authorised in writing by the Registrar, that there are reasonable grounds for suspecting that there is on particular premises in Norfolk Island a book the production of which has been required under section 34 and which has not been produced in compliance with that requirement, the Magistrate may issue a warrant authorising any member of the Police Force of Norfolk Island together with any other person named or described in the warrant —

                  (a)        to enter those premises , with the use  of such force as is necessary for the purpose);

                  (b)        to search the premises and to break open and search any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in the premises;

                  (c)        to take possession of, or secure against interference, a book that appears to be the book the production of which was so required; and

                  (d)       to deliver a book possession of which is so taken into the possession of a person authorised by the Registrar to receive it.

                  (2)        An information laid for the purposes of subsection (1) shall state that the person laying the information suspects that there is on particular premises in Norfolk Island a book the production of which has been required under section 34 and which has not been produced in compliance with that requirement and shall specify the grounds on which the person so suspects.

                  (3)        Where a Magistrate issues a warrant under subsection (1), he shall state on the information laid under that subsection —

                  (a)        which of the grounds set out in the information he has relied on to justify the issue of the warrant; and

                  (b)        particulars of any other grounds relied on by him to justify the issue of the warrant.

                  (4)        There shall be stated in a warrant issued under this section —

                  (a)        whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

                  (b)        a date, being a date not later than 7 days after the date of issue of the warrant, upon which the warrant ceases to have effect.

                  (5)        Nothing done under this section affects a lien that a person has on a book.

                  (6)        Where, under this section, a person takes possession of a book, or secures a book against interference, that person or a person to whose possession the book was delivered under paragraph (1)(d) —

                  (a)        may make copies of, or take extracts from, the book;

                  (b)        may require a person who was party to the compilation of the book to make a statement providing any explanation that that person is able to provide as to any matter relating to the compilation of the book or as to any matter to which the book relates;

                  (c)        may retain possession of the book for such period as is necessary to enable the book to be inspected, and copies of, or extracts from, the book to be made or taken, by or on behalf of the Registrar; and

                  (d)       during that period shall permit a person who would be entitled to inspect the book if it were not in the possession of the first-mentioned person to inspect the book at all reasonable times.

                  (7)        The powers conferred by this section are in addition to, and are not affected by, any other power conferred by law.


Offences

      36.       (1)        A person shall not, without reasonable excuse, refuse or fail to comply with a requirement made under section 34 or 35.

      Penalty:           100 penalty units or imprisonment or both.

                  (2)        A person shall not, in purported compliance with a requirement made under section 34 or 35, furnish information or make a statement that is false or misleading in a material particular.

      Penalty:           100 penalty units or imprisonment or both.

                  (3)        It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that he believed on reasonable grounds that the information or statement was true and was not misleading.

                  (4)        A person shall not, without reasonable excuse, obstruct or hinder —

                  (a)        the Registrar or another person in the exercise of a power under section 34; or

                  (b)        a person executing a warrant issued under section 35.

      Penalty:           100 penalty units or imprisonment or both.

                  (5)        The occupier or person in charge of premises that a person enters pursuant to a warrant issued under section 35 shall provide the last-mentioned person with all reasonable facilities and assistance for the effective exercise of his powers under the warrant.

      Penalty:           25 penalty units or imprisonment or both.

                  (6)        A person is not excused from making a statement providing an explanation as to a matter relating to the compilation of a book or as to a matter to which a book relates pursuant to a requirement made of him in accordance with section 34 or 35 on the ground that the statement might tend to incriminate him but, where the person claims before making a statement that the statement might tend to incriminate him, the statement is not admissible in evidence against him in criminal proceedings other than proceedings under this section.

                  (7)        Subject to subsection (6), a statement made by a person in compliance with a requirement made under section 34 or 35 may be used in evidence in a criminal or civil proceeding against the person.

Copies or extracts of books to be admitted in evidence

      37.       (1)        Subject to this section, in a legal proceeding (whether under this Act or otherwise), a copy of or extract from a book relating to affairs of a corporation is admissible in evidence as if it were the original book or the relevant part of the original book.

                  (2)        A copy of or extract from a book is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book or of the relevant part of the book.

                  (3)        For the purposes of subsection (2), evidence that a copy of or extract from a book is a true copy of the book or of a part of the book may be given by a person who has compared the copy or extract with the book or the relevant part of the book and may be given either orally or by an affidavit sworn, or by a declaration made, before a person authorised to take affidavits or statutory declarations.


 

Privilege

      38.       (1)        Where —

                  (a)        the Registrar, or a person authorised by the Registrar, makes a requirement under section 34 or 35 of a legal practitioner in respect of a book; and

                  (b)        the book contains a privileged communication made by or on behalf of or to the practitioner in his capacity as a legal practitioner,

the practitioner is entitled to refuse to comply with a requirement unless the person to whom or by or on behalf of whom the communication was made or, if the person is a body corporate that is under official management or in the course of being wound up, the official manager or the liquidator agrees to the practitioner complying with the requirement.

                  (2)        Where the practitioner so refuses to comply with a requirement, he shall forthwith furnish, in writing, to the Registrar or authorised person —

                  (a)        if he knows the name and address of the person to whom or by or on behalf of whom the communication was made - that name and address; and

                  (b)        sufficient particulars to identify the book, or the part of the book, containing the communication.

      Penalty:           10 penalty units or imprisonment or both.

                  (3)        Where —

                  (a)        under section 34 or 35, the Registrar, or a person authorised by the Registrar, requires a legal practitioner to make a statement providing an explanation as to a matter relating to the compilation of a book or as to a matter to which a book relates; and

                  (b)        the practitioner is not able to make that statement without disclosing a privileged communication made by or on behalf of or to the practitioner in his capacity as a legal practitioner,

the practitioner is entitled to refuse to comply with the requirement, except to the extent that he is able to comply with the requirement without disclosing a privileged communication referred to in paragraph (b), unless the person to whom or by or on behalf of whom the communication was made or, if the person is a body corporate that is under official management or in the course of being wound up, the official manager or the liquidator agrees to the legal practitioner complying with the requirement.

                  (4)        Where the practitioner so refuses to comply with the requirement, he shall forthwith furnish, in writing, to the Registrar or authorised person —

                  (a)        if he knows the name and address of the person to whom or by or on behalf of whom the communication was made - that name and address; and

                  (b)        if the communication was made in writing - sufficient particulars to identify the document containing the communication.

      Penalty:           10 penalty units or imprisonment or both.

Investigation of certain matters

      39.       Where the Registrar believes on reasonable grounds that a person has committed an offence under this Act, the Registrar may make such investigation as he thinks expedient for the due administration of this Act.

 

Division 3 — Registration of Auditors and Liquidators

Interpretation

      40.       In this Division, “the Authority” means the Companies Auditors Authority.

Companies Auditors Authority

      41.       (1)        For the purpose of this Act there shall be a Companies Auditors Authority, who shall be a natural person appointed by the Minister.

                  (2)        The functions of the Authority are to effect and control the registration of company auditors and liquidators.

                  (3)        The Authority holds office for such period, not exceeding 3 years, as is specified in the instrument of his appointment and on such terms and conditions (including terms and conditions as to remuneration and allowances) as the Minister determines.

                  (4)        An Authority whose term of appointment has expired is eligible for re-appointment.

                  (5)        If an Authority —

                  (a)        becomes an insolvent under administration or makes an assignment of his remuneration for the benefit of his creditors;

                  (b)        is convicted of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more; or

                  (c)        becomes of unsound mind,

the Minister shall, by notice published in the Gazette, declare that the office of the Authority is vacant and, upon the publication of the notice, the office becomes vacant.

                  (6)        An Authority may resign his office by writing under his hand delivered to the Minister.

                  (7)        Where —

                  (a)        an Authority is about to become absent from Norfolk Island or unavailable to perform the functions of his office; or

                  (b)        there is a vacancy in the office,

the Minister may appoint a person to act in the office while the occupant of the office is so absent or unavailable or while there is a vacancy in the office.

                  (8)        The Minister may at any time terminate an appointment under subsection (7).

                  (9)        A person appointed under subsection (7) —

                  (a)        has all the powers and functions of the Authority; and

                  (b)        holds office on such terms and conditions (including terms and conditions as to remuneration and allowance) as the Minister determines.

                  (10)      Subsections (5) and (6) apply to a person who is acting in the office of the Authority as they apply to the Authority.

                  (11)      Notice of an appointment, or of the termination of an appointment, under this section shall be published in the Gazette.

                  (12)      A notice may be given to or served on the Authority and an application may be made to the Authority —

                  (a)        by posting it to him in care of the Registrar; or

                  (b)        by delivering it at the office of the Registrar.

Application for registration as auditor or liquidator

      42.       (1)        A natural person may make an application to the Authority for registration as —

                  (a)        an auditor;

                  (b)        a liquidator; or

                  (c)        a liquidator of a specified corporation, being a corporation that is being or is to be wound up under this Act.

                  (2)        The application shall be made in writing, shall contain the prescribed information and shall be lodged with the Registrar.

Registration of auditors

      43.       (1)        Subject to this section, where an application for registration as an auditor is made under section 42 before the expiration of 6 months after the date of commencement of this Act by a person who was, immediately before that date, registered as a company auditor under the repealed laws, the Authority shall grant the application and register the applicant as an auditor unless the Authority is satisfied that the applicant is not a fit and proper person to be registered as an auditor.

                  (2)        If the Authority is so satisfied, the Authority shall refuse the application.

                  (3)        Subject to this section, where an application for registration as an auditor (not being an application to which subsection (1) applies) is made under section 42, the Authority shall grant the application and register the applicant as an auditor if —

                  (a)        the applicant  —

                              (i)   is a member of The Institute of Chartered Accountants in Australia, of the Australian Society of Accountants or of some other prescribed body;

                              (ii)  holds a degree, diploma or certificate from a prescribed university or other prescribed institution in Australia or New Zealand and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the Authority to represent a course of study in accountancy (including auditing) of not less than 3 years' duration and in commercial law (including company law) of not less than 2 years' duration; or

                              (iii) has other qualifications and experience that, in the opinion of the Authority, are equivalent to the qualifications mentioned in subparagraph (i) or (ii); and

                  (b)        the Authority is satisfied that the applicant has had sufficient practical experience in auditing, is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor,

but otherwise the Authority shall refuse the application.

                  (4)        The Authority shall not register as an auditor a person who is subject to a restriction.

                  (5)        Where the Authority grants an application by a person for registration as an auditor, the Authority shall cause to be issued to the person a certificate by the Authority stating that the person has been so registered and specifying the date on which the application was granted.

                  (6)        Where —

                  (a)        in a certificate issued to a person under subsection (5) (including a certificate issued pursuant to this subsection) a date is specified for the purposes of subsection 53(2); and

                  (b)        the person requests the Authority to alter the date so specified and surrenders the certificate to the Authority,

the Authority may cancel the certificate and issue to the person under subsection (5), in place of the cancelled certificate, a new certificate that specifies a different date for the purposes of subsection 53(2).

                  (7)        Registration under this section shall be deemed to have taken effect at the commencement of the day specified in the certificate as the date on which the application for registration was granted and remains in force for a period of 3 years or until it is sooner cancelled.

                  (8)        The Authority shall not refuse to register a person as an auditor unless the Authority has afforded the person an opportunity to appear before the Authority and to make submissions and give evidence to the Authority in relation to the matter.

                  (9)        Where the Authority refuses an application by a person for registration as an auditor, the Authority shall, not later than 14 days after the decision, give to the person notice in writing setting out the decision and setting out the findings on material questions of fact, the evidence or other material on which those findings were based and the reasons for the decision.

Auditor-General deemed to be registered as auditor

      44.       A person who holds office as, or is for the time being exercising the powers and performing the duties of, the Auditor-General for the Commonwealth, shall be deemed to be registered as an auditor under this Division.

Government Auditor taken to be registered as auditor

      44A.    A person or firm holding office under section 51 of the Norfolk Island Act 1979 as the Norfolk Island Government Auditor is taken to be registered as an auditor under this Division.

Registration of liquidators

      45.       (1)        Subject to this section, where an application for registration as a liquidator is made under section 42 and before the expiration of 6 months after the date of commencement of this Act by a person who was, immediately before that date, registered as a liquidator under the repealed laws the Authority shall grant the application and register the applicant as a liquidator unless the Authority is satisfied that the person is not a fit and proper person to be registered as a liquidator.

                  (2)        If the Authority is so satisfied, the Authority shall refuse the application.

                  (3)        Subject to this section, where an application for registration as a liquidator (not being an application to which subsection (1) applies) is made under section 42, the Authority shall grant the application if —

                  (a)        the applicant —

                              (i)   is a member of The Institute of Chartered Accountants in Australia, of the Australian Society of Accountants or of some other prescribed body;

                              (ii)  holds a degree, diploma or certificate from a prescribed university or other prescribed institution in Australia or New Zealand and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the Authority to represent a course of study in accountancy of not less than 3 years’ duration and in commercial law (including company law) of not less than 2 years’ duration; or

                  (iii) has other qualifications and experience that, in the opinion of the Authority, are equivalent to the qualifications mentioned in subparagraph (i) or (ii);

                  (b)        the Authority is satisfied that the applicant has sufficient experience in connection with the winding up of corporations is capable of performing the duties of a liquidator and is otherwise a fit and proper person to be registered as a liquidator,

but otherwise the Authority shall refuse the application.

                  (4)        Where an application for registration as a liquidator of a specified corporation is made under section 42, the Authority shall grant the application and register the applicant as a liquidator of that corporation if the Authority is satisfied that the applicant has sufficient experience and ability, and is a fit and proper person, to act as liquidator of the corporation, having regard to the nature of the property or business of the corporation and the interests of its creditors and contributories, but otherwise the Authority shall refuse the application.

                  (5)        The Authority shall not register as a liquidator, or as a liquidator of a specified corporation, a person who is subject to a restriction.

                  (6)        Where —

                  (a)        the Authority grants an application by a person for registration as a liquidator or as a liquidator of a specified corporation; and

                  (b)        the person has complied with the requirements of section 47,

the Authority shall cause to be issued to the person a certificate by the Authority —

                  (c)        stating that the person has been so registered;

                  (d)       specifying a date as the date of commencement of the registration, being —

                              (i)   the date on which the Authority granted the application;  or

                              (ii)  the date on which the person complied with the requirements of section 47,

                              whichever was the later; and

                  (e)        in the case of a person who is registered under subsection (4) as a liquidator of a specified corporation - setting out the name of that corporation.

                  (7)        Where —

                  (a)        in a certificate issued to a person under subsection (6) (including a certificate issued pursuant to this subsection) a date is specified for the purposes of subsection 53(2);  and

                  (b)        the person requests the Authority to alter the date so specified and surrenders the certificate to the Authority,

the Authority may cancel the certificate and issue to the person under subsection (6), in place of the cancelled certificate, a new certificate that specifies a different date for the purposes of subsection (6).


 

                  (8)        The registration of a person as a liquidator under subsection (1) comes into force at the commencement of the day specified in the certificate as the date of commencement of the registration and remains in force for a period of 3 years unless it is sooner cancelled.

                  (9)        The registration of a person as a liquidator of a specified corporation under subsection (4) comes into force at the commencement of the day specified in the certificate as the date of commencement of the registration and remains in force —

                  (a)        until the expiration of a period of 3 years unless it is sooner cancelled; or

                  (b)        until the dissolution of the corporation takes effect, whichever is the earlier.

                  (10)      The Authority shall not refuse to register a person as a liquidator, or as a liquidator of a specified corporation, unless the Authority has afforded the person an opportunity to appear before the Authority and to make submissions and give evidence to the Authority in relation to the matter.

                  (12)      Where the Authority refuses an application by a person for registration as a liquidator, or as a liquidator of a specified corporation, the Authority shall, not later than 14 days after the decision, give to the person notice in writing setting out the decision, and the findings on material questions of fact, the evidence or other material on which those findings were based and the reasons for the decision.

Registration of official liquidators

      46.       (1)        The Authority may register as an official liquidator a person who is a registered liquidator.

                  (2)        A person so registered is entitled, upon request, to be issued with a certificate of his registration.

                  (3)        The Authority may register as many official liquidators as he thinks fit.

Security to be given by liquidators

      47.       (1)        Where the Authority grants an application by a person for registration as a liquidator or as a liquidator of a specified corporation, the person shall lodge and maintain with the Registrar a security for the due performance of his duties as liquidator in such form and for such amount as are, from time to time, determined by the Authority in relation to that liquidator and with such surety or sureties (if any) as the Authority, from time to time, requires.

                  (2)        Where a security is lodged with the Registrar in accordance with subsection (1), the security may be applied by the Registrar in such circumstances, for such purposes and in such manner as are prescribed.

                  (3)        The regulations may make provision for or in relation to —

                  (a)        the discharge in whole or in part by the Authority of securities lodged pursuant to this section; and

                  (b)        the release by the Authority of sureties referred to in subsection (1) from all or any of their obligations as sureties.

Register of Auditors

      48.       (1)        The Authority shall cause a Register of Auditors to be kept for the purposes of this Act and shall cause to be entered in the Register in relation to a person who is registered as an auditor —

                  (a)        the name of the person;

                  (b)        the date of commencement of the registration of that person as an auditor;

                  (c)        the address of the principal place where the person practises as an auditor and the address of the other places (if any) at which he so practises;

                  (d)       if the person practises as an auditor as a member of a firm or under a name or style other than his own - the name of that firm or the name or style under which he so practises;

                  (e)        particulars of any suspension of the registration of the person as an auditor and of any action taken in respect of the person under this Act; and

                  (f)        such other particulars as the Authority considers appropriate.

                  (3)        Where a person ceases to be registered as an auditor, the Authority shall cause to be removed from the Register of Auditors the name of the person and the other particulars entered in the Register in relation to that person.

                  (4)        A person may inspect and make copies of, or take extracts from, the Register of Auditors.

Registers of Liquidators and Official Liquidators

      49.       (1)        The Authority shall cause a Register of Liquidators to be kept for the purposes of this Act and shall cause to be entered in the Register —

                  (a)        in relation to a person who is registered as a liquidator —

                              (i)   the name of the person;

                              (ii)  the date of commencement of the registration of that person as a liquidator;

                              (iii) the address of the principal place where the person practises as a liquidator and the addresses of the other places (if any) at which he so practises;

                              iv)  if the person practises as a liquidator as a member of a firm or under a name or style other than his own name - the name of that firm or the name or style under which he so practises; and

                              (v)  particulars of any suspension of the registration of the person as liquidator and of any action taken in respect of the person under this Act; and

                  (b)        in relation to a person who is registered as a liquidator of a specified corporation —

                              (i)   the name of the person;

                              (ii)  the name of the corporation;

                              (iii) the date of commencement of the registration of the person as a liquidator of the corporation;

                              (iv) the address of the principal place where the person proposes to perform his functions as the liquidator of the corporation;

                              (v)  if the person practises a profession as a member of a firm or under a name or style other than his own name, being a profession by virtue of which he is qualified to be appointed as a liquidator of the corporation - the name and address of that firm or the name or style under which he so practises; and


 

                              (vi) particulars of any suspension of the registration of the person as a liquidator of that corporation and of any action taken in respect of the person under this Act.

                  (2)        The Authority may cause to be entered in the Register in relation to a person who is registered as a liquidator, or as a liquidator of a specified corporation, such other particulars as the Authority considers appropriate.

                  (3)        The Authority shall cause a Register of Official Liquidators to be kept for the purposes of this Act and shall cause to be entered in the Register the name, and such other particulars as the Authority considers appropriate, of each person registered as an official liquidator.

Removal from Register

      50.       Where a person ceases to be registered under this Part as a liquidator, as a liquidator of a specified corporation or as an official liquidator, the Authority shall cause to be removed from the relevant Register the name of the person and the other particulars entered in the Register in relation to that person.

Inspection of Register

      51.       A person may inspect and make copies of, or take extracts from, the Register of Liquidators or the Register of Official Liquidators.

Notification of certain matters

      52.       (1)        Where —

                  (a)        a person who is a registered company auditor ceases to practise as an auditor; or

                  (b)        a change occurs in any matter particulars of which are entered in the Register of Auditors in relation to a person who is a registered company auditor,

the person shall, not later than 21 days after the occurrence of the event concerned, lodge with the Authority particulars in writing of that event.

                  (2)        Where —

                  (a)        a person who is a registered liquidator ceases to practise as a liquidator; or

                  (b)        a change occurs in any matter particulars of which are entered in the Register of Liquidators in relation to a person who is a registered liquidator,

the person shall, not later than 21 days after the occurrence of the event concerned, lodge with the Authority particulars in writing of that event.

                  (3)        Where —

                  (a)        a person who is registered as a liquidator of a specified corporation ceases to act as a liquidator in the winding up of that corporation; or

                  (b)        a change occurs in any matter particulars of which are entered in the Register of Liquidators in relation to a person who is registered as a liquidator of a specified corporation,

the person shall, not later than 21 days after the occurrence of the event concerned, lodge with the Authority particulars in writing of that event.

                  (4)        A person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation shall, not later than 3 days after he becomes subject to a restriction, lodge with the Register particulars in writing of the circumstances by reason of which he became so subject.

Triennial statements by registered auditors and liquidators

      53.       (1)        Where a person applies to the Authority for registration as an auditor or as a liquidator and his application is granted within one year after the commencement of this Act, the Authority may, in the certificate issued under subsection 43(5) or 45(6) (in this section referred to as “the relevant certificate”), specify a date for the purposes of subsection (2) of this section, being a date that is not more than 3 years after the date (in this section referred to as “the commencement date”) that is, in the relevant certificate, specified pursuant to subsection 43(5) or 45(6), as the case may be.

                  (2)        Where, in a certificate issued to a registered company auditor or a registered liquidator under subsection 43(5) or 45(6), as the case may be, a date is specified for the purposes of this subsection, the registered company auditor or registered liquidator shall lodge with the Authority, within one month after that date, a statement setting out the prescribed information in respect of the period commencing on the commencement date and ending on the first-mentioned date.

                  (3)        A person who is a registered company auditor or a registered liquidator shall, within one month after the expiration of the period of 3 years commencing —

                  (a)        in the case of a person to whom subsection (2) applies - on the date specified in the relevant certificate for the purposes of subsection (2); or

                  (b)        in the case of a person to whom subsection (2) does not apply - on the commencement date,

and of each subsequent period of 3 years, lodge with the Authority a statement in respect of that period of 3 years setting out the prescribed information.

                  (4)        The Authority may, on the application of a registered company auditor or a registered liquidator made before the expiration of the period for lodging a statement under subsection (2) or (3), in his discretion extend, or further extend, that period.

                  (5)        The Authority may, by notice in writing served on the person, require a person who is registered as a liquidator of a specified corporation to lodge with the Authority, within a period specified in the notice, a statement in respect of a period specified in the notice setting out the prescribed information and, where such a notice is served on a person, the person shall lodge the statement as required by the notice.

Certain persons deemed to be registered

      54.       A person who is, or is to be deemed to be, registered as an auditor, liquidator or official liquidator under the provisions of a law of a State or of a Territory other than Norfolk Island relating to companies shall be deemed to be registered as an auditor, liquidator or official liquidator, as the case may be, under this Act.

Qualified privilege of auditors and other persons

      55.       (1)        An auditor is not, in the absence of malice on his part, liable to an action for defamation at the suit of a person in respect of —

                  (a)        a statement that he makes, orally or in writing, in the course of his duties as auditor;


 

                  (b)        a statement that he makes, orally or in writing, on a report of the directors under section 341 or on a statement, report or other document that is to be deemed, for any purpose, to be part of the first-mentioned report;  or

                  (c)        the giving of a notice, or the sending of a copy of accounts, group accounts or a report, to the Registrar under subsection 357(10) or (11).

                  (2)        A person is not, in the absence of malice on his part, liable to an action for defamation at the suit of a person —

                  (a)        in respect of the publishing of a document prepared by an auditor in the course of his duties and required by or under this Act to be lodged with the Registrar, whether or not the document has been so lodged;  or

                  (b)        in respect of the publishing of a statement made by an auditor as mentioned in subsection (1).

                  (3)        This section does not affect a right, privilege or immunity that an auditor or other person has apart from this section as defendant in an action for defamation.

Cancellation of registration by request

      56.       The Authority may, at the request of the person, cancel the registration of a person as an auditor, liquidator, liquidator of a particular corporation or official liquidator.

Suspension or cancellation of registration for cause

      57.       (1)        Where a person registered as an auditor, liquidator, liquidator of a particular corporation or official liquidator has ceased to have the qualifications required for registration or has become subject to a disqualification for registration, the Authority may suspend or cancel the registration.

                  (2)        The Authority shall not suspend or cancel the registration of a person under subsection (1) unless the Authority has afforded the person an opportunity to appear before the Authority and to make submissions and give evidence to the Authority in relation to the matter.

Appeals to the Supreme Court

      58.       (1)        The Registrar may appeal to the Court against a decision of the Authority to register a person under this Division.

                  (2)        A person whose application for registration under this Division has been refused by a decision of the Authority may appeal to the Court against the decision.

                  (3)        A person whose registration under this Division has been suspended or cancelled by a decision of the Authority may appeal to the Court against the decision.

                  (4)        The Court shall hear and determine an appeal under this section and shall affirm, reverse or modify the decision appealed against.

                  (5)        The Registrar shall give notice, as prescribed, of an appeal by him under this section to the Authority and to the person concerned and a person who has appealed under this section shall give notice, as prescribed, to the Authority and to the Registrar.

                  (6)        The Registrar shall cause notice of the decision on an appeal under this section to be published in the Gazette and the Authority shall take such steps (if any) as are necessary to give effect to the decision.

Division 4 — Registers and Registration of Documents

Registers

      59.       The Registrar shall, subject to this Act, keep such registers as he considers necessary and in such form as he considers to be appropriate.

Inspection of documents

      60.       (1)        A person may —

                  (a)        inspect a document lodged with the Registrar, not being —

                              (i)   an application under section 42;

                              (ii)  a document lodged under section 52 or 53; or

                              (iii) a document that has been destroyed or otherwise disposed of;

                  (b)        require a certificate of the incorporation of a company or some other certificate authorised by this Act to be given by the Registrar; or

                  (c)        require a copy of or extract from a document that he is entitled to inspect pursuant to paragraph (a) or a certificate referred to in paragraph (b) to be given, or given and certified, by the Registrar.

                  (2)        If a reproduction or transparency of a document or certificate is produced for inspection, a person is not entitled pursuant to paragraph (1)(a) to inspect the original of that document or certificate.

                  (3)        The reference in paragraph (1)(c) to a document or certificate includes, where a reproduction or transparency of that document or certificate has been incorporated with a register kept by the Registrar, a reference to that reproduction or transparency and, where such a reproduction or transparency has been so incorporated, a person is not entitled pursuant to that paragraph to a copy of or extract from the original of that document or certificate.

Admissibility of copies

      61.       (1)        A copy of or extract from a document lodged with the Registrar and certified by the Registrar is, in any proceedings, admissible in evidence as of equal validity with the original document.

                  (2)        The reference in subsection (1) to a document includes, where a reproduction or transparency of the document has been incorporated with a register kept by the Registrar, a reference to that reproduction or transparency.

Certificates of Registrar

      62.       In any proceedings —

                  (a)        a certificate by the Registrar that, as at a date or during a period specified in the certificate, no company was registered under this Act or under the repealed laws by a name specified in the certificate is evidence that as at that date or during that period, as the case may be, no company was so registered; and

                  (b)        a certificate by the Registrar that a requirement of this Act specified in the certificate —

                              (i)   had or had not been complied with as at the date or within a period specified in the certificate; or

                              (ii)  had been complied with as at a date specified in the certificate but not before that date,

is evidence of the matters specified in the certificate.

Refusal of registration in certain cases

      63.       (1)        If the Registrar is satisfied on reasonable grounds that a document submitted for lodgment with him —

                  (a)        contains matter contrary to law;

                  (b)        contains matter that, in a material particular, is false or is misleading, in the form or context in which it is included;

                  (c)        by reason of an omission or misdescription, has not been duly completed;

                  (d)       does not comply with the requirements of this Act; or

                  (e)        contains an error, alteration or erasure,

the Registrar may refuse to receive or register the document.

                  (2)        In such a case, the Registrar may request —

                  (a)        that the document be appropriately amended or completed and re-submitted;

                  (b)        that a fresh document be submitted in its place; or

                  (c)        where the document has not been duly completed, that a supplementary document be lodged.

Information from lodging party

      64.       The Registrar may require a person who submits a document for lodgment with the Registrar to produce to the Registrar such other document, or to furnish to the Registrar such information, as the Registrar thinks necessary in order to decide whether he may refuse to receive or register the document.

Disposal of documents

      65.       The Registrar may, if it appears to him that it is no longer necessary or desirable to retain it, destroy or dispose of —

                  (a)        a document that, by reason of lapse of time, need no longer be retained; or

                  (b)        a document a transparency of which has been incorporated with a register kept by the Registrar.

Court may order lodgment or amendment of documents

      66.       (1)        If a corporation or other person has made default in complying with —

                  (a)        a provision of this Act or of some other law that requires the lodging with the Registrar of a return, account or other document or the giving of notice of a matter to the Registrar; or

                  (b)        a request of the Registrar to amend or complete and resubmit a document or to submit a fresh document,

and fails to make good the default within 14 days after the service on the corporation or person of a notice requiring it to be done, the Court or the Court of Petty Sessions may, on an application by a member or creditor of the corporation or by the Registrar, make an order directing the corporation or an officer of the corporation or the person to make good the default within a time specified in the order.

                  (2)        The order may provide that all costs of and incidental to the application shall be borne by the corporation or by an officer of the corporation responsible for the default or by the person.


 

                  (3)        A corporation, an officer of a corporation or other person shall not contravene or fail to comply with an order under subsection (1) that is applicable to it or him.

      Penalty:           50 penalty units or imprisonment or both.

                  (4)        This section does not affect the operation of some other law imposing penalties on a corporation or its officers or on another person in respect of a default mentioned in subsection (1).

Relodging of lost registered documents

      67.       (1)        If, in the case of a corporation incorporated or registered in Norfolk Island, whether under this Act or under the repealed laws, any of the constituent documents of, or any other document relating to, the corporation lodged with the Registrar has been lost or destroyed, a person may apply to the Registrar for leave to lodge with the Registrar a copy of the document as originally lodged.

                  (2)        The Registrar may direct that notice of the application be given to such persons and in such manner as he considers to be appropriate.

                  (3)        Whether or not an application has been made to the Registrar under subsection (1), the Registrar may, upon being satisfied —

                  (a)        that an original document mentioned in that subsection has been lost or destroyed;

                  (b)        as to the date of the lodging of that document; and

                  (c)        that a copy of that document produced to the Registrar is a correct copy,

certify upon the copy that he is so satisfied and grant leave for the copy to be lodged in the manner required by law in respect of the original.

                  (4)        Upon the lodgment the copy has, and shall be deemed to have had from the date mentioned in the certificate as the date of the lodging of the original, the same force and effect for all purposes as the original.

                  (5)        The Court may, by order made upon application by a person aggrieved and after notice to any other person as directed by the Court, confirm, vary or rescind the certificate.

                  (6)        An office copy of the order may be lodged with the Registrar and shall be registered by him but no payment, contract, dealing, act or thing made, had or done in good faith before the registration of the order and upon the faith of and in reliance upon the certificate is invalidated or affected by the variation or rescission.

                  (7)        Where a transparency of a document referred to in subsection (1) has been incorporated with a register kept by the Registrar and is lost or destroyed as referred to in that subsection, the foregoing provisions of this section have effect as if the document of which it is a transparency had been so lost or destroyed.

PART 4 — CONSTITUTION OF COMPANIES

Division 1 — Incorporation

Formation of companies

      68.       (1)        Subject to this Act, any 5 or more persons, or, where the company to be formed will be a proprietary company, any 2 or more persons, associated for a lawful purpose may, by subscribing their names to a memorandum and complying with the requirements of this Act as to registration, form an incorporated company.

                  (2)        A company may be —

                  (a)        a company limited by shares;

                  (b)        a company limited by guarantee;

                  (c)        a company limited both by shares and by guarantee; or

                  (d)       an unlimited company.

                  (3)        Subject to subsection (4) —

                  (a)        an association or partnership consisting of more than 20 persons that has for its object the acquisition of gain by the association or partnership or by individual members of the association or partnership shall not be formed unless it is incorporated under this Act; and

                  (b)        a person who participates in the purported formation of an association or partnership in contravention of paragraph (a) is guilty of an offence.

                  (4)        Where a profession or calling is declared by the Minister by notice published in the Gazette to be a profession or calling that may be carried on by an unincorporated association or partnership consisting of not more than the number of persons specified in the notice, an association or partnership formed for the purpose of carrying on that profession or calling and consisting of not more than that number of persons may carry on that profession or calling notwithstanding that it is not incorporated under this Act.

Proprietary companies

      69.       (1)        A company having a share capital may be incorporated as a proprietary company if a provision of its memorandum or articles —

                  (a)        restricts the right to transfer its shares;

                  (b)        limits to not more than 50 the number of its members (joint holders of shares being counted as one person but without counting a person in the employment of the company or of its subsidiary or a person who, while previously in the employment of the company or of its subsidiary was, and thereafter has continued to be, a member of the company);

                  (c)        prohibits an invitation to the public to subscribe for, and an offer to the public to accept subscriptions for, shares in, or debentures of, the company; and

                  (d)       prohibits an invitation to the public to deposit money with, and an offer to the public to accept deposits of money with, the company for a fixed period or repayable at call, whether bearing or not bearing interest.

                  (2)        Where, upon the commencement of this Act, neither the memorandum nor the articles of a company that was a proprietary company under the repealed laws contains or contain the restrictions, limitations and prohibitions required by subsection (1) to be included in the memorandum or articles of a company that may be incorporated as a proprietary company, the articles of the company shall be deemed to include each such restriction, limitation or prohibition as is not so included and a restriction on the right to transfer its shares that is to be so deemed to be included in its articles shall be deemed to be a restriction that prohibits the transfer of shares except to a person approved by the directors of the company.

                  (3)        Where a restriction, limitation or prohibition that is to be deemed to be included in the articles of a company under subsection (2) is inconsistent with a provision already included in the memorandum or articles of the company, that restriction, limitation or prohibition, to the extent of the inconsistency, prevails.

                  (4)        A proprietary company may, by special resolution, alter a restriction on the right to transfer its shares that is included, or is to be deemed to be included, in its memorandum or articles or a limitation on the number of its members that is included, or is to be deemed to be included, in its memorandum or articles but not so that the memorandum and articles of the company cease to include the limitation required by paragraph (1)(b) to be included in the memorandum or articles of the company.

Registration and incorporation

      70.       (1)        Persons who desire the incorporation of a company shall lodge the memorandum and the articles (if any) of the proposed company with the Registrar together with the other documents required to be lodged by or under this Act and the Registrar shall, subject to this Act, register the company by registering the memorandum and articles (if any).

                  (2)        On the registration of the memorandum, the Registrar shall certify under his seal that the company is, from and including the date specified in the certificate, incorporated and that the company is —

                  (a)        a company limited by shares;

                  (b)        a company limited by guarantee;

                  (c)        a company limited both by shares and by guarantee; or

                  (d)       an unlimited company,

as the case may be, and, where applicable, that it is a proprietary company.

                  (3)        The Registrar shall keep a copy of a certificate under subsection (2) and sections 60 and 61 apply to that copy as if it were a document lodged with the Registrar.

                  (4)        A company shall not be registered under subsection (1) unless the name under which the company is proposed to be registered is reserved under section 79 in respect of the company.

Effect of incorporation

      71.       (1)        From and including the date of incorporation specified in the certificate of incorporation, but subject to this Act, the subscribers to the memorandum, together with such other persons as are for the time being members of the company, are an incorporated company by the name set out in the memorandum.

                  (2)        The company —

                  (a)        is capable forthwith of performing all the functions of a body                                        corporate;

                  (b)        is capable of suing and being sued;

                  (c)        has perpetual succession and shall have a common seal;  and

                  (d)       has power to acquire, hold and dispose of property.

                  (3)        The members of the company are liable as members of the company to contribute to the property of the company in a winding up of the company as provided by this Act.

                  (4)        The subscribers to the memorandum shall be deemed to have agreed to become members of the company and, on the incorporation of the company, each subscriber becomes such a member and his name shall be entered in the register of members of the company.

                  (5)        Each other person who agrees to become a member of the company and whose name is entered in the register of members of the company becomes a member of the company.

Membership of holding company

      72.       (1)        A corporation cannot be a member of a company that is its holding company and an allotment or transfer of shares in the capital of a company to its subsidiary is void.

                  (2)        A purported acquisition of units of shares in a company that is a holding company by its subsidiary is void.

                  (3)        Subsection (1) or (2) does not apply where —

                  (a)        the subsidiary is concerned as a personal representative; or

                  (b)        the subsidiary is concerned as a trustee and —

                              (i)   the holding company or a subsidiary of the holding company is not beneficially interested under the trust;  or

                              (ii)  the holding company or a subsidiary of the holding company is beneficially interested under the trust only by way of a security given for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money, not being a transaction entered into with a person associated with the holding company or a subsidiary of the holding company.

                  (4)        This section does not prevent a subsidiary that was, at the commencement of this Act, a member of its holding company from continuing to be a member but, subject to subsection (3), the subsidiary does not have a right to vote at meetings of the holding company or of the members included in a class of members of the holding company.

                  (5)        This section does not prevent a subsidiary from continuing to be a member of its holding company if, at the time when it becomes a subsidiary of the holding company, it already holds shares in the holding company, but, subject to subsection (3) —

                  (a)        the subsidiary does not have a right to vote at meetings of the holding company or of the members included in a class of members of the holding company;  and

                  (b)        the subsidiary shall, within the period of 12 months, or within such longer period as the Court allows, after becoming the subsidiary of its holding company, dispose of all of its shares in the holding company.

                  (6)        Subject to subsection (3), subsections (1), (2), (4) and (5) apply in relation to a nominee for a corporation that is a subsidiary as if references in those subsections to such a corporation included references to the nominee.

                  (7)        In relation to a holding company that is either a company limited by guarantee or an unlimited company, the reference in this section to shares shall, whether or not the holding company has a share capital, be construed as including a reference to the interest of its members as such, whatever the form of that interest.

Requirements as to memorandum

      73.       (1)        The memorandum of a company shall be printed, divided into numbered paragraphs, dated and signed by the persons desiring the formation of the company.

                  (2)        The memorandum shall state, in addition to other requirements, such of the following as are relevant to the company:

                  (a)        the name of the company;

                  (b)        unless the company is an unlimited company - the amount of share capital (if any) with which the company proposes to be registered and the division of that share capital into shares of a specified amount;

                  (c)        if the company is a company limited by shares - that the liability of the members is limited;

                  (d)       if the company is a company limited by guarantee or both by shares and by guarantee - that the liability of the members is limited and that each member undertakes to contribute to the property of the company, in the event of its being wound up while he is a member or within one year after he ceases to be a member, for payment of the debts and liabilities of the company contracted before he ceases to be a member and of the costs, charges and expenses of winding up and for adjustment of the rights of the contributories among themselves, such amount as may be required not exceeding a specified amount in addition to any amount unpaid on any shares held by him;

                  (e)        if the company is an unlimited company - that the liability of the members is unlimited;

                  (f)        the full names, addresses and occupations of the subscribers to the memorandum being natural persons, and the corporate names, and the addresses of the registered or principal offices, of the subscribers to the memorandum being corporations; 

                  (g)        that those subscribers desire to be formed into a company pursuant to the memorandum;

                  (h)        where the company is to have a share capital - that each subscriber agrees to take the number of shares in the capital of the company set out opposite his name.

                  (3)        The memorandum may state the objects of the company.

Requirements as to subscribers

      74.       (1)        Each subscriber to the memorandum —

                  (a)        if the company is to have a share capital - shall state in words —

                              (i)   the number of shares that he agrees to take;  and

                              (ii)  if the shares in the company are divided into classes, the class or the respective classes in which the shares that he agrees to take are included;  and

                  (b)        whether or not the company is to have a share capital - shall sign the memorandum in the presence of at least one witness, not being another subscriber.

                  (2)        A witness to the signature of a subscriber shall attest the signature and add his address.

Signatures of bodies corporate

      75.       (1)        A reference to the signing of the memorandum of a company shall, in the case of the signing by a person being a body corporate, includes a reference to the affixing in accordance with the constituent documents of the body corporate of the common or official seal of the body corporate to the memorandum.

                  (2)        Where a body corporate signs the memorandum by so affixing its common or official seal, subsection 74 (1) does not require a witness to the affixing of the seal.

Limited liability

      76.       A statement in the memorandum of a company limited by shares that the liability of members is limited means that the liability of each member is limited to the amount (if any) unpaid on the shares held by him.

Division 2 — Names

Names of particular classes of companies

      77.       (1)        A limited company shall have the word “Limited” or the abbreviation “Ltd.” as part of and at the end of its name.

                  (2)        A proprietary company shall have the word “Proprietary” or the abbreviation “Pty.” as part of its name, inserted immediately before the word “Limited” or before the abbreviation “Ltd.” or, in the case of an unlimited company, at the end of its name.

                  (3)        A description of a company shall not be taken to be inadequate or incorrect by reason of the use of —

                  (a)        the abbreviation “Co.” or “Coy.” in lieu of the word “Company” contained in the name of the company;

                  (b)        the abbreviation “Pty.” in lieu of the word “Proprietary” contained in the name of the company;

                  (c)        the abbreviation “Ltd.” in lieu of the word “Limited” contained in the name of the company;

                  (d)       the symbol “&” in lieu of the word “and” contained in the name of the company; or

                  (e)        any of those words in lieu of the corresponding abbreviation or symbol contained in the name of the company.

Availability of names

      78.       (1)        For the purposes of this Division, a name shall be taken to be available for reservation in Norfolk Island unless the name —

                  (a)        is a name that is already reserved or registered under this Division or under the corresponding provision of the repealed laws or, in the opinion of the Registrar, so closely resembles such a name as to be likely to be mistaken for it;

                  (ab)      contains the words ‘Duty free’ or ‘Tax free’ or words of similar connotation;

                  (b)        is, in the opinion of the Registrar, undesirable; or

(c)                is a prescribed name.

                  (2)        Where the name of a company is (whether through inadvertence or otherwise, whether originally or by change of name or as a result of an enactment) a name that is not available to the company —

                  (a)        the company may, by special resolution, change its name to a name that is reserved in respect of the company under section 79; and

                  (b)        if the Registrar so directs, the company shall so change its name within 90 days after the date of the direction or within such longer period as the Registrar allows.

                  (3)        A change of name by a company under this section does not —

                  (a)        create a new legal entity;

                  (b)        prejudice or affect the identity if the body corporate constituted by the company or its continuity as a body corporate;

                  (c)        affect the property, or the rights or obligations, of the company; or

                  (d)       render defective any legal proceedings by or against the company,

and any legal proceedings that could have been continued or begun by or against the company by its former name may be continued or begun by or against it by its new name.

Reservation and registration of name of intended company

      79.       (1)        A person may apply to the Registrar for the reservation of a name as the name of an intended company.

                  (2)        If —

                  (a)        the Registrar is satisfied that the application is made in good faith;  and

                  (b)        the name is available for reservation,

the Registrar shall reserve the name for a period of 3 months from the date of lodgment of the application, and, where the Registrar so reserves the name, the name shall be deemed to have been reserved as from that date.

                  (3)        Where —

                  (a)        a name is reserved under this section in respect of an intended company; and

                  (b)        the Registrar registers the company by that name,

the Registrar shall register the name of the company and, where the Registrar so registers the name, the name ceases to be reserved under this section.

                  (4)        Where a name has been reserved under this section in respect of an intended company and the person who applied for the reservation of the name notifies the Registrar in writing that he no longer desires the name to be reserved, the Registrar shall cancel the reservation of the name.

                  (5)        The reservation of a name under this section in respect of an intended company does not of itself authorise the registration of the intended company by that name.

                  (6)        The registration of a name under this section remains in force until the Registrar cancels the registration.

Reservation and registration of proposed new name

      80.       (1)        A company may apply to the Registrar for the reservation of a name as the name to which the company proposes to change its name.

                  (2)        If —

                  (a)        the Registrar is satisfied that the application is made in good faith;  and

                  (b)        the name is available for reservation,

the Registrar shall reserve the name for a period of 3 months from the date of lodgment of the application, and, where the Registrar so reserves the name, the name shall be deemed to have been reserved as from that date.

                  (3)        Where —

                  (a)        a name is reserved under this section in respect of a company; and

                  (b)        the company changes its name to that reserved name (in this subsection referred to as "the new name") under section 85,

the Registrar shall register the new name of the company and, where the Registrar so registers the new name —

                  (c)        the new name ceases to be reserved under this section; and


 

                  (d)       the Registrar shall cancel the registration under this Division of the name by which the company was registered before it changed its name to the new name.

                  (4)        Where a name has been reserved under subsection (2) in respect of a company and the company notifies the Registrar in writing that it no longer desires the name to be reserved, the Registrar shall cancel the reservation of the name.

                  (5)        The reservation of a name under this section does not of itself entitle the company to change its name to that name.

                  (6)        The registration of a name under this section remains in force until the Registrar cancels the registration.

Reservation and registration of name of intended foreign company or foreign company

      81.       (1)        A person may apply to the Registrar for the reservation of a name as the name of an intended foreign company that is proposed to become registered as a foreign company under this Act.

                  (2)        A foreign company that proposes to become registered under this Act may apply to the Registrar for the reservation of a name as the name by which the foreign company proposes to become so registered.

                  (3)        If —

                  (a)        the Registrar is satisfied that an application under subsection (1) or (2) is made in good faith; and

                  (b)        the name is available for reservation in Norfolk Island,

the Registrar shall reserve the name for a period of 3 months from the date of lodgment of the application, and, where the Registrar so reserves the name, the name shall be deemed to have been reserved as from that date.

                  (4)        Where —

                  (a)        a name is reserved under this section in respect of an intended foreign company or a foreign company; and

                  (b)        the intended foreign company is formed and is registered, or the foreign company is registered, by that name as a foreign company under this Act,

the Registrar shall register the name of the foreign company and, where the Registrar so registers the name, the name ceases to be reserved under this section.

                  (5)        Where a name has been reserved under this section in respect of an intended foreign company or a foreign company and the person who applied for the reservation of the name or the foreign company notifies the Registrar in writing that he or it, as the case may be, no longer desires the name to be reserved, the Registrar shall cancel the reservation of the name.

                  (6)        The reservation of a name under this section in respect of an intended foreign company or a foreign company does not of itself entitle the intended foreign company or the foreign company to be registered by that name.

                  (7)        The registration of a name under this section remains in force until the Registrar cancels the registration.

                  (8)        Notwithstanding paragraph 78(a), a name shall not be taken, for the purposes of this section, not to be available for reservation by reason only that the name is already reserved or registered under this Division in respect of the foreign company that has applied for the reservation of the name under this section.


 

Reservation and registration of proposed new name of registered foreign company

      82.       (1)        A registered foreign company may apply to the Registrar for the reservation of a name as the name to which the registered foreign company has changed its name or to which the registered foreign company proposes to change its name.

                  (2)        If —

                  (a)        the Registrar is satisfied that the application is made in good faith; and

                  (b)        the name is available for reservation,

the Registrar shall reserve the name for a period of 3 months from the date of lodgment of the application, and, where the Registrar so reserves the name, the name shall be deemed to have been reserved as from that date.

                  (3)        Where —

                  (a)        a name is reserved under this section in respect of a registered foreign company; and

                  (b)        whether before or after the name is so reserved, the company changed or changes its name to the reserved name (in this subsection referred to as “the new name”),

the Registrar shall register the new name of the company and, where the Registrar so registers the new name —

                  (c)        the new name ceases to be reserved under this section; and

                  (d)       the Registrar shall cancel the registration under this Division of the name by which the company was registered before it changed its name to the new name.

                  (4)        The registration of a name under this section remains in force until the Registrar cancels the registration.

Extension of registration

      83.       Where —

                  (a)        at any time during a period for which a name is reserved under this Division (whether or not pursuant to the exercise on a previous occasion or previous occasions of a power under this section) an application is made to the Registrar for an extension of that period; and

                  (b)        the Registrar is satisfied that the application is made in good faith,

the Registrar may extend that period for a further period of 3 months.

Cancellation of registration

      84.       (1)        Where a name has been registered under this Division in respect of a company and the company is dissolved, the Registrar shall cancel the registration of the name.

                  (2)        Where a name has been registered under this Division in respect of a registered foreign company and the company in dissolved, the Registrar shall cancel the registration of the name.

                  (3)        Where a name has been registered under this Division in respect of a registered foreign company and the company ceases to be registered, the Registrar shall cancel the registration of the name.


 

Change of name

      85.       (1)        A company may, by special resolution and with the approval of the Registrar, change its name.

                  (2)        The Registrar shall not approve the change unless the proposed new name is reserved in respect of the company under section 80.

                  (3)        If the name of a company is (whether through inadvertence or otherwise and whether originally or by change of name) a name that is not available for reservation the company may, by special resolution, change its name to a name that is reserved in respect of that company under section 80 and, if the Registrar so directs, shall so change it within 2 months after the date of the direction or within such longer period as the Registrar allows, unless the Minister, by instrument in writing, annuls the direction.

                  (4)        If the company fails to comply with the direction it is guilty of an offence.

                  (5)        A company incorporated under the repealed laws shall not be directed to change its name except with the approval of the Minister.

                  (6)        A change of name of a company pursuant to this Act does not operate so as to —

                  (a)        create a new legal entity;

                  (b)        affect the identity of the body corporate constituted by the company or its continuity as a body corporate;

                  (c)        affect the property, or the rights or obligations, of the company; or

                  (d)       render defective a legal proceeding by or against the company.

                  (7)        A legal proceeding that could have been continued or commenced by or against the company by its former name may be continued or commenced by or against it by its new name.

                  (8)        Notwithstanding anything in paragraph 78(a), a name of a company shall not be taken, for the purposes of subsection (3), not to be available for reservation by reason only that the name is registered under this Division in respect of that company.

Omission of “Limited” from names of charitable and other companies

      86.       (1)        Where the Registrar is satisfied that a proposed limited company —

                  (a)        is being formed for the purpose of providing recreation or amusement or of promoting commerce, industry, art, science, religion, charity, patriotism, a pension or superannuation scheme or some other object useful to the community;

                  (b)        will apply its moneys (including profits) in promoting its objects; and

                  (c)        will prohibit the payment of a dividend to its members,

the Registrar may (after requiring, if he thinks fit, the proposal to be advertised in such manner as he directs either generally or in a particular case), by licence, authorise the proposed company to be registered as a company with limited liability without the addition of the word “Limited” to its name and the company may be registered accordingly.

                  (2)        Where the Registrar is satisfied —

                  (a)        that the objects of a limited company are restricted to those specified in subsection (1) and to objects incidental or conductive to those so specified; and

                  (b)        that by its memorandum or articles the company is required to apply its moneys (including profits) in promoting its objects and is prohibited from paying a dividend to its members,

the Registrar may, by licence, authorise the company to change its name to a name that does not contain the word “Limited”, being a name approved by the Registrar.

                  (3)        A licence under this section may be issued subject to such conditions as the Registrar considers to be appropriate.

                  (4)        Conditions subject to which a licence is so issued are binding on the company and shall, if the Registrar so directs, be inserted in the memorandum or articles of the company and the memorandum or articles may, by special resolution, be altered to give effect to the direction.

                  (5)        A company in respect of which a licence under this section is in force is exempt from complying with the provisions of this Act relating to the use of the word “Limited” as part of its name.

                  (6)        The Registrar may, in a licence issued to a company under this section or by notice in writing served on a company in respect of which a licence under this section is in force, exempt the company from complying with the provisions of this Act specified in the licence or notice relating to the lodging of annual returns or other returns.

                  (7)        The Registrar may, by notice in writing served on a company, revoke an exemption of the company from the provisions of this Act relating to the lodging of annual returns or other returns.

Revocation of licence

      87.       (1)        Subject to subsection (2), the Registrar may, at any time, revoke a licence issued under section 86 and, where a licence is so revoked —

                  (a)        the name of the company shall be deemed to be altered by the addition of the word “Limited” at the end of the name; and

                  (b)        the company ceases to have the exemptions and privileges granted, by reason of the licence, by or under this Act.

                  (2)        Before the licence is revoked, the Registrar shall give to the company notice in writing of intention to revoke the licence and shall give to the company an opportunity to make submissions and give evidence to the Registrar in relation to the matter.

                  (3)        Before the licence is revoked, a provision of the memorandum of the company that was inserted in compliance with a condition subject to which the licence was issued may be altered in the same manner as a provision of the memorandum with respect to the objects of the company may be altered and section 101 applies to a proposal for the alteration accordingly.

Alteration of memorandum or articles

      88.       (1)        Where a licence issued under section 86 is in force in respect of a company, an alteration of the memorandum or articles of the company, not being an alteration consisting only of a change of the name of the company, does not have effect unless —

                  (a)        a statement setting out the text of the alteration or proposed alteration has been lodged with the Registrar and the alteration or proposed alteration has been approved by the Registrar; and

                  (b)        the alteration is made in accordance with the articles of the company and the provisions of this Act.


 

                  (2)        Where an alteration or proposed alteration of the memorandum or articles of a company, not being an alteration consisting only of a change of the name of the company, is approved as mentioned in paragraph (1)(a) and the alteration is made as mentioned in paragraph (1)(b), the alteration has effect notwithstanding a failure to obtain any consent or approval required to be obtained by virtue of a provision contained in the licence referred to in subsection (1) or a provision inserted in the memorandum or articles of the company for the purposes of subsection 86(4) or the corresponding provision of the repealed laws.

Division 3 —  Powers and Status

Powers

      89.       (1)        Subject to this Act, a company has the rights, the powers and the privileges of a natural person. 

                  (2)        Without limiting the generality of subsection (1), a company, has power —

                  (a)        to issue and allot fully or partly paid shares in the company;

                  (b)        to issue debentures of the company;

                  (c)        to distribute the property of the company among the members, in kind or otherwise;

                  (d)       to give security by charging uncalled capital;

                  (e)        to grant a floating charge on property of the company;

                  (f)        to procure the company to be registered or recognised as a body corporate in a place outside Norfolk Island; and

                  (g)        to do any other act that it is authorised by law to do.

                  (3)        The memorandum or articles of a company may restrict or prohibit the exercise by the company of any of the powers referred to in subsection (2).

                  (4)        A company has the capacity to exercise its powers in a place outside Norfolk Island.

                  (5)        This section does not affect the operation of a restriction on, or prohibition of, the exercise by a company of its powers, being a restriction or prohibition included in the memorandum or articles of the company before the commencement of this Act.

Restrictions on companies

      90.       (1)        Subject to this Act, a company shall not —

                  (a)        exercise a power that the company is prohibited by the memorandum or articles of the company from exercising;

                  (b)        exercise a power contrary to a restriction on the exercise of that power contained in the memorandum or articles of the company; or

                  (c)        where the memorandum of the company contains a provision stating the objects of the company - do an act otherwise than in pursuance of those objects.

                  (2)        An officer of a company shall not be in any way, by act or omission and whether directly or indirectly, knowingly concerned in or party to a contravention by the company of subsection (1).

                  (3)        Notwithstanding section 660 —

                  (a)        a company that contravenes subsection (1); or

                  (b)        an officer of a company who contravenes subsection (2),

is not guilty of an offence against this section.

Acts not invalid because prohibited

      91.       (1)        An act of a company, including the making of an agreement by a company or a transfer of property to or by a company, is not invalid by reason only that the doing of the act is prohibited by section 90(1) or by the memorandum or articles of the company.

                  (2)        An act of an officer of a company is not invalid by reason only that the doing of the act is prohibited by subsection 90(2).

Reliance on invalid acts

      92.       The fact that —

                  (a)        the doing of an act by a company was or would be prohibited by subsection 90(1) or by the memorandum or articles of the company; or

                  (b)        the doing of an act by an officer of a company was or would be prohibited by subsection 90(2),

may be asserted or relied on only in —

                  (c)        a prosecution of a person for an offence against this Act;

                  (d)       an application for an order under section 283;

                  (e)        an application for an order under section 405;

                  (f)        an application for an injunction under section 666;

                  (g)        proceedings by the company, or by a member of the company, against a present or former officer of the company; or

                  (h)        an application by the Registrar or by a member of the company for the winding up of the company.

Persons having dealings with companies, etc

      93.       (1)        A person who has dealings with a company is, subject to subsection (4), entitled to make, in relation to those dealings, the assumptions referred to in subsection (3) and, in a proceeding in relation to such a dealing, an assertion by the company that the matters that the person is so entitled to assume were not correct shall be disregarded.

                  (2)        A person who has dealings with a person who has acquired or purports to have acquired title to property from a company (whether directly or indirectly) is, subject to subsection (5), entitled to make, in relation to the acquisition or purported acquisition of title from the company, the assumptions referred to in subsection (3) and, in a proceeding in relation to such a dealing, an assertion by the company or by the second-mentioned person that the matters that the first-mentioned person is so entitled to assume were not correct shall be disregarded.

                  (3)        The assumptions that a person is, by virtue of subsection (1) or (2), entitled to make in relation to dealings with a company, or in relation to an acquisition or purported acquisition from a company of title to property, as the case may be, are —

                  (a)        that, at all relevant times, the memorandum and articles of the company have been complied with;

                  (b)        that a person who appears, from returns lodged with the Registrar under this Act or with the Registrar of Companies under the repealed laws, to be a director, the principal executive officer or a secretary of the company was duly appointed and had authority to exercise the powers and perform the duties customarily exercised or performed by a director, by the principal executive officer or by a secretary, as the case may be, of a company carrying on a business of the kind carried on by the company;

                  (c)        that a person who is held out by the company to be an officer or agent of the company was duly appointed and had authority to exercise the powers and perform the duties customarily exercised or performed by an officer or agent of the kind concerned;

                  (d)       that an officer or agent of the company who had authority to issue a document on behalf of the company had authority to warrant that the document was genuine and that an officer or agent of the company who had authority to issue a certified copy of a document on behalf of the company had authority to warrant that the copy was a true copy;

                  (e)        that a document of the company, if —

                              (i)   it bears what appears to be an impression of the seal of the company; and

                              (ii)  the sealing of the document appears to be attested by 2 persons, being persons one of whom, by virtue of paragraph (b) or (c), may be assumed to be a director of the company and the other of whom, by virtue of paragraph (b) or (c), may be assumed to be a director or to be a secretary of the company;

                              was duly sealed by the company; and

                  (f)        that the directors, the principal executive officer, the secretaries, the employees and the agents of the company have properly performed their duties.

                  (4)        Notwithstanding subsection (1), if —

                  (a)        a person has actual knowledge that a matter that, but for this subsection, he would be entitled to assume is not correct; or

                  (b)        a person's connection or relationship with a company is such that he ought to know that a matter that, but for this subsection, he would be entitled to assume is not correct,

he is not entitled to make an assumption referred to in subsection (3) in respect of the matter in relation to dealings with the company.

                  (5)        Where, by virtue of subsection (4), a person is not entitled to make a particular assumption in relation to dealings with a company, subsection (1) does not have effect in relation to an assertion by the company in relation to the assumption.

                  (6)        Notwithstanding subsection (2), if, in relation to an acquisition or purported acquisition from a company of title to property —

                  (a)        a person has actual knowledge that a matter that, but for this subsection, he would be entitled to assume is not correct; or

                  (b)        a person’s connection or relationship with a company is such that he ought to know that a matter that, but for this subsection, he would be entitled to assume is not correct,

he is not entitled to make an assumption referred to in subsection (3) in respect of the matter.

                  (7)        Where, by virtue of subsection (6), a person is not entitled to make a particular assumption in relation to a company, subsection (2) does not have effect in relation to an assertion by the company or by some other person in relation to the assumption.

Certain assumptions not to be made

      94.       A person is not entitled to make an assumption, in relation to a particular matter —

                  (a)        that any one or more of the directors of a company were appointed to act in that matter as a committee of the board of directors of the company, by reason only that the memorandum or articles of the company provides or provide that authority to act in matters of that kind may be delegated to a committee of the board of directors; or

                  (b)        that an officer or agent of a company had the authority of the company to act in that matter, by reason only that the memorandum or articles of the company provides or provide that authority to act in matters of that kind may be delegated to such an officer or agent.

Lodgment of documents not to constitute constructive notice

      95.       (1)        A person shall not be taken to have knowledge of —

                  (a)        the memorandum or articles of a company or of any of the contents of the memorandum or articles of a company;

                  (b)        a document or the contents of a document; or

                  (c)        any particulars,

by reason only that the memorandum, articles, document or particulars —

                  (d)       has or have been lodged with the Registrar under this Act or with the Registrar of Companies under the repealed laws; or

                  (e)        is or are referred to in some other document that has been so lodged.

                  (2)        Subsection (1) does not apply in relation to a document, or in relation to the contents of a document, that has been lodged with the Registrar under Part 11 or with the Registrar of Companies under the corresponding provisions of the repealed laws, to the extent that the document relates to a charge that is registrable under that Part or was registered under the repealed laws.

Effect of fraud

      96.       (1)        Section 93 operates —

                  (a)        to entitle a person to make the assumptions referred to in subsection (3) of that section in relation to dealings with a company;  or

                  (b)        to entitle a person to make the assumptions referred to in subsection (3) of that section in relation to an acquisition or purported acquisition (whether direct or indirect) of title to property from a company,

notwithstanding that a person referred to in paragraph 93(3)(b), (c), (d), (e) or (f) —

                  (c)        has acted or is acting fraudulently in relation to the dealings, or in relation to the acquisition or purported acquisition of title to property from the company, as the case may be; or

                  (d)       has forged a document that appears to have been sealed on behalf of the company.

                  (2)        Subsection (1) does not have effect where the person referred to in paragraph (a) or (b) of that subsection has actual knowledge that a person concerned has acted or is acting fraudulently, or has forged a document, as mentioned in paragraph (c) or (d) of that subsection.

 

Change of status

      97.       (1)        Subject to this section —

                  (a)        an unlimited company may convert to a limited company if it was not, within the previous 3 years, a limited company that became an unlimited company pursuant to paragraph (d) or to a corresponding provision of the repealed laws;

                  (b)        a company limited by shares may convert to a company limited both by shares and by guarantee;

                  (c)        a company limited by guarantee may convert to a company limited both by shares and by guarantee;  and

                  (d)       a limited company may convert to an unlimited company.

                  (2)        Where a company has applied in writing to the Registrar for a change of status as provided by subsection (1) and, subject to the provisions as applied by subsection (7), has lodged with the application the prescribed documents relating to the application, the Registrar shall issue to the company a certificate of incorporation —

                  (a)        appropriate to the change of status applied for; and

                  (b)        specifying, in addition to the particulars prescribed in respect of a certificate of incorporation of a company of that status, that the certificate is issued pursuant to this section

and, upon the issue of the certificate, the company is a company having the status specified in the certificate.

                  (3)        Where the status of a company is changed pursuant to this section, notice of the change shall be published by the company in such manner (if any) as the Registrar directs.

                  (4)        In subsection (2), “the prescribed documents”, in relation to an application referred to in that subsection, means —

                  (a)        a printed copy of a special resolution of the company —

                              (i)   resolving to change the status of the company and specifying the status sought;

                              (ii)  making such alterations of the memorandum of the company as are necessary to bring the memorandum into conformity with the requirements of this Act relating to the memorandum of a company of the status sought;

                              (iii) in the case of a company that has registered articles - making such alterations of and additions to the articles as are necessary to bring the articles into conformity with the requirements of this Act relating to the articles of a company of the status sought;

                              (iv) in the case of a company that does not have registered articles - adopting any articles that are required by this Act to be registered in respect of a company of the status sought or are proposed by the company as the registered articles of the company upon the change of its status; and

                              (v)  changing the name of the company to a name by which it could be registered if it were a company of the status sought;

                  (b)        where, by a special resolution referred to in paragraph (a), the memorandum of the company is altered, the articles of the company are altered or added to or articles are adopted by the company - a printed copy of the memorandum as altered, the articles as altered or added to or the articles adopted, as the case may be;  and

                  (c)        in the case of an application by a limited company to convert to an unlimited company —

                              (i)   an instrument of assent to the application subscribed by or on behalf of all the members of the company; and

                              (ii)  a certificate in writing by a director or secretary of the company that the persons by whom or on whose behalf the instrument of assent is subscribed constitute the whole membership of the company and, if a member has not subscribed the instrument himself, that the director or secretary making the certificate has taken all reasonable steps to satisfy himself that each person who subscribed the instrument was lawfully empowered so to do.

                  (5)        Subsections 100 (2) (10) (inclusive) do not apply to or in relation to an application under this section or to a prescribed document in relation to the application.

                  (6)        A special resolution passed for the purposes of an application under this section takes effect only upon the issue under this section of a certificate of incorporation of the company.

                  (7)        With such modifications as are necessary, the provisions of subsection 101(7) and sections 102 and 103 apply to and in respect of the proposal, passing and lodging, and the cancellation or confirmation by the Court, of a special resolution relating to a change of status as if it were a special resolution under section 101.

                  (8)        A change the status of a company pursuant to this section does not operate —

                  (a)        to create a new legal entity;

                  (b)        to affect the identity of the body corporate constituted by the company or its continuity as a body corporate;

                  (c)        to affect the property, rights or obligations, of the company; or

                  (d)       to render defective any legal proceeding by or against the company,

                  (9)        Legal proceeding that could have been continued or commenced by or against the company before the change its status may, notwithstanding the change, be continued or commenced by or against it after the change.

Change from public to proprietary company or from proprietary to public company

      98.       (1)        A public company that has a share capital may convert to a proprietary company by lodging with the Registrar a copy of a special resolution —

                  (a)        resolving to convert to a proprietary company and specifying an appropriate alteration of its name; and

                  (b)        altering the provisions of its memorandum or articles so far as is necessary to impose the restrictions, limitations and prohibitions referred to in subsection 69(1).


 

                  (2)        A proprietary company may, subject to its memorandum or articles, convert to a public company by lodging with the Registrar a copy of a special resolution resolving to convert to a public company and specifying an appropriate alteration of its name, and thereupon the restrictions, limitations and prohibitions referred to in subsection 69(1) as included in, or as to be deemed to be included in, the memorandum or articles cease to form part of the memorandum or articles.

                  (3)        On compliance by a company with the provisions of subsection (1) or (2) and on the issue of a certificate of incorporation of the company altered accordingly, the company is a proprietary company or a public company, as the case requires.

                  (4)        With such modifications as are necessary, subsection 101(7) and sections 102 and 103 in respect of the proposal, passing and lodging, and the cancellation or confirmation by the Court, of a special resolution relating to the conversion of a company pursuant to subsection (1) or (2) as if it were a special resolution under section 101.

                  (5)        The conversion of a company pursuant to subsection (1) or (2) does not operate —

                  (a)        to create a new legal entity;

                  (b)        to affect the identity of the body corporate constituted by the company or its continuity as a body corporate;

                  (c)        to affect the property, rights or obligations, of the company;  or

                  (d)       to render defective a legal proceeding by or against the company,

                  (6)        A legal proceeding that could have been continued or commenced by or against the company before the conversion may, notwithstanding the conversion, be continued or commenced by or against it after the conversion.

Default in complying with requirements as to proprietary companies

      99.       (1)        Where, on the application of the Registrar with respect to a proprietary company or of a member or creditor of a proprietary company, the Court is satisfied that default has been made in relation to the company in complying with a prohibition of a kind specified in paragraph 69(1)(c) or (d) that is included, or is to be deemed to be included, in the memorandum or articles of the company, the Court may, by order, determine that, on such date as the Court specifies, the company ceased to be a proprietary company.

                  (2)        Where —

                  (a)        default has been made in relation to a proprietary company in complying with a limitation of a kind specified in paragraph 69(1)(b) that is included, or is to be deemed to be included, in the memorandum or articles of the company;

                  (b)        a proprietary company has been convicted of an offence under subsection (7);

                  (c)        the memorandum or articles of a proprietary company have been so altered that they no longer include restrictions, limitations or prohibitions of the kinds specified in subsection 69(1); or

                  (d)       a proprietary company has ceased to have a share capital,

the Registrar may, by notice in writing served on the company, determine that, on such date as is specified in the notice, the company ceased to be a proprietary company.


 

                  (3)        Where, under this section, the Court or the Registrar determines that a company has ceased to be a proprietary company —

                  (a)        the company is a public company and shall be deemed to have been a public company from  and including the date specified in the order or notice;

                  (b)        the company shall, on the date so specified, be deemed to have changed its name by the omission from the name of the word “Proprietary” or the abbreviation “Pty.”, as the case requires; and

                  (c)        where an order has been made under subsection (1), the company  shall, within 14 days after the date of the order, lodge with the Registrar an office copy of the order.

                  (4)        Where the Court is satisfied that a default or alteration referred to in subsection (1) or (2) has occurred but that it was accidental, inadvertent or arose from some other sufficient cause or that on other grounds it is just to grant relief, the Court may, on such terms and conditions as are just, determine that the company has not ceased to be a proprietary company.

                  (5)        A company that, by virtue of a determination made under this section, has become a public company shall not convert to a proprietary company without the leave of the Court.

                  (6)        If a company fails to comply with paragraph (3)(c), the company and any officer of the company who is in default are each guilty of an offence.

                  (7)        Where a subscription for shares in or debentures of, or deposit of money with, a proprietary company was arranged by or through a solicitor, broker, agent or other person (whether an officer of the company or not) who invites the public to make use of his services in arranging investments or holds himself out to the public as being in a position to arrange investments, the company and any person, including any officer of the company, who is a party to the arrangement are each guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

                  (8)        Where default is made in relation to a proprietary company in complying with a restriction, limitation or prohibition of a kind specified in sub-section 69(1) that is included, or is to be deemed to be included, in the memorandum or articles of the company, the company and any officer of the company who is in default are each guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

                  (9)        An act or transaction is not invalid by reason of the commission of an offence against subsection (7) or (8).

General provisions as to alteration of memorandum

      100.     (1)        The memorandum of a company may be altered to the extent and in the manner provided by this Act but not otherwise.

                  (2)        Subject to any provision of this Act requiring the lodging with the Registrar of a resolution of a company, an order of the Court or other document that affects the memorandum of a company, the company shall, within 14 days after the passing of such a resolution, the making of such an order or the execution of such a document, lodge with the Registrar a copy of the resolution, an office copy of the order or a copy of the document, as the case may be.


 

                  (3)        Where an alteration of the memorandum of a company has been made (whether before or after the commencement of this Act), the company shall, on being required by the Registrar to do so, lodge with the Registrar a printed copy of the memorandum as so altered.

                  (4)        If a company contravenes or fails to comply with subsection (2) or (3), the company and any officer of the company who is in default are each guilty of an offence.

                  (5)        The Registrar shall register each resolution, order or other document lodged with him under this Act that affects the memorandum of a company, and, except in the case of a resolution under section 168 or an order or resolution under section 170, the alteration of the memorandum to which the resolution, order or document relates takes effect on, and not before, the registration of the resolution, order or document.

                  (6)        Where a resolution, order or other document has been registered under subsection (5) —

                  (a)        in the case of an order - the Registrar shall certify the registration of the order; and

                  (b)        in the case of a resolution or other document - the Registrar shall, if the company so requests, certify the registration of the resolution or document.

                  (7)        A certificate of the Registrar as to the registration of an order is conclusive evidence that all the requirements of this Act with respect to the alteration to which the order relates have been complied with.

                  (8)        Notice of the registration shall be published in such manner (if any) as the Court or the Registrar directs.

                  (9)        The Registrar shall, where appropriate, issue a certificate of incorporation in accordance with the memorandum as altered.

                  (10)      The Registrar shall keep a copy of a certificate issued under subsection (9) and sections 60 and 61 apply to that copy as if it were a document lodged with the Registrar.

Alterations of memorandum

      101.     (1)        Subject to this section, a company may, by special resolution, alter the memorandum of the company —

                  (a)        where the memorandum contains a provision stating the objects of the company - by altering or omitting that provision;

                  (b)        where the memorandum does not contain a provision stating the objects of the company - by inserting in the memorandum a provision stating the objects of the company; or

                  (c)        in any case - by altering, omitting or inserting some other provision with respect to the objects of the company or a provision with respect to the powers of the company.

                  (2)        Subject to this section, subsection 109(3) and section 405, if a provision of the memorandum of a company could lawfully have been contained in the articles of the company, the company may, by special resolution, alter the memorandum —

                  (a)        unless the memorandum prohibits the alteration of that provision - by altering that provision; or

                  (b)        unless the memorandum prohibits the omission of that provision - by omitting that provision.

                  (3)        The memorandum of a company may provide that a special resolution altering or adding to a provision contained in the memorandum, being a provision that could lawfully have been contained in the articles of the company, does not have effect unless and until a further requirement specified in the memorandum has been complied with.

                  (4)        Without limiting the generality of subsection (3), the further requirement referred to in that subsection may be a requirement that —

                  (a)        the resolution be passed by a majority consisting of a greater number of members than is required to constitute the resolution as a special resolution;

                  (b)        the consent or approval of a particular person be obtained; or

                  (c)        a particular condition be fulfilled.

                  (5)        A memorandum of a company that, immediately before the commencement of this Act prohibited the alteration of a provision of the memorandum, being a provision that could lawfully have been contained in the articles of the company, shall be deemed also to prohibit the omission of that provision and a memorandum of a company that makes provision as mentioned in subsection (3) in respect of a special resolution altering or adding to a relevant provision of the memorandum shall be deemed also to contain a provision to the same effect in respect of a special resolution omitting that provision.

                  (6)        Subsection (2) does not permit the alteration or omission of a provision of a memorandum of a company that relates to rights to which members included in a particular class of members are entitled.

                  (7)        Notice of a general meeting specifying the intention to propose, as a special resolution, a resolution for the alteration of the memorandum of a company as mentioned in subsection (1) shall be given —

                  (a)        to all members;

                  (b)        to all trustees for debenture holders; or

                  (c)        if there are no trustees for, or for a particular class of, debenture holders - to all debenture holders, or all debenture holders of that class, as the case may be, whose names are, at the time of the posting of the notice, known to the company.

                  (8)        The Court may, in the case of a person or the persons included in a class of persons, dispense with the notice referred to in subsection (7).

Cancellation of alteration

      102.     (1)        If an application for the cancellation of an alteration of the memorandum of a company is made to the Court in accordance with section 101 —

                  (a)        in the case of an alteration as mentioned in subsection 101(1) - by the holders of not less than 10% in nominal value of the debentures of the company; or

                  (b)        in the case of any alteration - by the holders of not less, in the aggregate, than 10% in nominal value of the company's issued share capital or of a class of that capital or, if the company is not limited by shares, not less than 10% of the company's members,

the alteration does not have any effect except in so far as it is confirmed by the Court.

                  (2)        The application shall be made within 21 days after the date on which the resolution was passed and may be made, on behalf of the persons entitled to make the application, by such one or more of them as they appoint in writing for the purpose.

                  (3)        On the application, the Court shall have regard to the rights and interests of the members of the company or of a class of them as well as to the rights and interests of the creditors and may do all or any of the following:

                  (a)        adjourn the proceedings in order that an arrangement may be made to the satisfaction of the Court for the purchase (otherwise than by the company or by subsidiary of the company) of the interests of dissentient members;

                  (b)        give such directions and make such orders as are expedient for facilitating or carrying into effect such an arrangement;

                  (c)        make an order cancelling the alteration or confirming the alteration either wholly or in part and on such terms and conditions as are just.

Lodgment of copies

      103.     (1)        Notwithstanding any other provision of this Act, a copy of a resolution altering a provision of the memorandum of a company as provided by subsection 100(1) or (2) shall not be lodged with the Registrar before the expiration of 21 days after the passing of the resolution or, if an application to the Court has been made, before the application has been determined by the Court, whichever is the later.

                  (2)        If an application has not been made to the Court in accordance with section 102, a copy of the resolution shall be lodged with the Registrar within 14 days after the expiration of the 21 days referred to in subsection (1).

                  (3)        If an application has been made to the Court in accordance with section 101, the company shall lodge a copy of the resolution, together with an office copy of the order of the Court, with the Registrar within 14 days after the application has been determined by the Court.

Interpretation

      104.     In sections 101, 102 and 103 — 

                  (a)        a reference to a memorandum includes a reference to a memorandum registered under the repealed laws; and

                  (b)        a reference to a provision of the memorandum of a company that could lawfully have been contained in the articles of the company is, in the case of a memorandum of a company registered under the repealed laws, a reference to a provision of the memorandum of the company that could lawfully have been contained in the articles of the company if the memorandum and articles of the company had been registered under this Act.

Articles of association

      105.     (1)        There may, in the case of a company limited by shares, and there shall, in the case of a company limited by guarantee or limited both by shares and by guarantee or in the case of an unlimited company, be registered with the memorandum articles signed by the subscribers to the memorandum prescribing regulations for the company.

                  (2)        Articles shall be —

                  (a)        printed;

                  (b)        divided into numbered paragraphs; and

                  (c)        signed by each subscriber to the memorandum in the presence of at least one witness not being another subscriber.

                  (3)        The witness shall attest the signature and add his address.

                  (4)        A reference in subsection (1) to the signing of the articles of a company shall, in the case of the signing by a person being a body corporate, be construed as including a reference to the affixing in accordance with the constituent documents of the body corporate of the common or official seal of the body corporate to the articles and, where a body corporate signs the articles by so affixing its common or official seal, subsection (2) does not require a witness to the affixing of the seal.

                  (5)        In the case of an unlimited company that has a share capital, the articles shall state the amount of share capital with which the company proposes to be registered and the division of that share capital into shares of a fixed amount.

Adoption of Table A

      106.     (1)        In this section, “Table A” means Table A in Schedule 3 to the Companies Act 1981 of the Commonwealth as amended and in force for the time being.

                  (2)        The articles of a company may adopt all or any of the regulations as contained in Table A with such alterations, additions and omissions as are appropriate to the circumstances of Norfolk Island and of the company.

                  (3)        In the case of a company limited by shares and incorporated after the commencement of this Act, if articles are not registered, or if articles are registered adopting regulations as mentioned in subsection (2), those regulations shall, so far as applicable, be the articles of the company in the same manner and to the same extent as if they were contained in registered articles.

Alteration of articles

      107.     (1)        Subject to this Act, a company may by special resolution make an alteration of its articles.

                  (2)        The memorandum of a company may provide that such a special resolution does not have effect unless and until a further requirement specified in the memorandum has been complied with.

                  (3)        Without limiting the generality of subsection (2), the further requirement referred to in that subsection may be a requirement, that —

                  (a)        the resolution be passed by a majority consisting of a greater number of members than is required to constitute the resolution as a special resolution;

                  (b)        the consent or approval of a particular person be obtained; or

                  (c)        a particular condition be fulfilled.

                  (4)        Subject to this Act, an alteration of the articles of a company is, from and including the date of the special resolution or such later date as is specified in the resolution, as valid as if originally contained in the articles and is subject to further alteration by special resolution in like manner.

                  (5)        Subject to this section, a company has power to make an alteration of its articles by the adoption of all or any of the regulations contained in Table A by reference only to the regulations in the Table or to the numbers of particular regulations contained in the Table, without being required to set out in the special resolution the text of the Regulations so adopted.

                  (6)        For the purposes of this section an addition to or omission from the articles is an alteration of the articles.


 

Memorandum and articles of companies limited by guarantee

      108.     (1)        Where a company is limited by guarantee and does not have a share capital, a provision in the memorandum or articles or in a resolution of the company purporting to give a person a right to participate in the divisible profits of the company otherwise than as a member is void.

                  (2)        For the purposes of the provisions of this Act relating to the memorandum of a company limited by guarantee (including this section), a provision in the memorandum or articles or in a resolution of the company purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital notwithstanding that the nominal amount or number of the shares or interests is not specified by the memorandum or articles or in the resolution, as the case may be.

Operation of memorandum and articles

      109.     (1)        Subject to this Act, the memorandum and articles of a company have the effect of a contract under seal dash

                  (a)        between the company and each member;

                  (b)        between the company and each officer;

                  (c)        between a member and each other member;

                  (d)       between an officer and each other officer; and

                  (e)        between each member and each officer,

under which each of those persons agrees to observe and perform the provisions of the memorandum and articles as in force for the time being so far as those provisions are applicable to or in relation to that person.

                  (2)        Money payable by a member of a company to the company under the memorandum or articles is a debt from him to the company and is of the nature of a specialty debt.

                  (3)        A member of a company, unless either before or after the alteration is made he agrees in writing to be bound by it, is not bound by an alteration of the memorandum or articles made after the date on which he became a member so far as the alteration —

                  (a)        requires him to take or subscribe for more shares than the number held by him at the date of the alteration;

                  (b)        increases in any way his liability as at the date of the alteration to contribute to the share capital of, or otherwise to pay money to, the company; or

                  (c)        increases, or imposes, restrictions on the right to transfer the shares held by him at the date of the alteration.

                  (4)        In this section, “officer”, in relation to a company, means a director, the principal executive officer or a secretary of the company.

Copies of memorandum and articles

      110.     (1)        A company shall, on being so required by a member, send to him a copy of the memorandum and of the articles (if any) of the company —

                  (a)        if the company requires the payment of an amount not exceeding the prescribed amount - within 21 days after the payment is received by the company or within such longer period as the Registrar allows; or


 

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the request was made or within such longer period as the Registrar allows.

                  (2)        Where an alteration has been made to the memorandum or articles of a company, a copy of the memorandum or articles shall not be issued or supplied by the company after the date of alteration unless —

                  (a)        the copy is in accordance with the memorandum or articles as altered; or

                  (b)        a printed copy of the order or resolution making the alteration is annexed to the copy of the memorandum or articles and the particular clauses or articles affected are indicated in ink.

                  (3)        Where an alteration of the articles of a company has been made (whether before or after the commencement of this Act), the company shall, on being required by the Registrar to do so, lodge with the Registrar a printed copy of the articles as altered.

                  (4)        Where an agreement a copy of which is required to be lodged with the Registrar under section 316 affects the memorandum or articles of a company, a copy of the memorandum or articles shall not be issued or supplied, and a copy of the articles shall not be lodged with the Registrar, by the company after the agreement is entered into unless a copy of the agreement is annexed to the copy of the memorandum or articles.

                  (5)        If a company contravenes or fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

Confirmation of contracts and authentication and execution of documents

      111.     (1)        In so far as the formalities of making, varying or discharging a contract are concerned, a person acting under the express or implied authority of a company may make, vary or discharge a contract in the name of or on behalf of the company in the same manner as that in which that contract might be made, varied or discharged by a natural person.

                  (2)        he making, variation or discharging of a contract in accordance with subsection (1) is effectual in law and binds the company and the other parties to the contract.

                  (3)        A contract or other document executed, or purporting to have been executed, whether before or after the commencement of this Act, under the common seal of a company is not invalid by reason only that a person attesting the affixing of the common seal was in any way, whether directly or indirectly, interested in that contract or other document or in the matter to which that contract or other document relates.

                  (4)        This section does not prevent a company from making, varying or discharging a contract under its common seal.

                  (5)        This section does not apply to the making, variation or discharging of a contract before the commencement of this Act but applies whether the company gives its authority before or after the commencement of this Act.

                  (6)        This section does not affect the operation of a law that requires some consent or sanction to be obtained, or some procedure to be complied with, in relation to the making, variation or discharge of a contract.


 

Signatures of officers

      112.     A document or proceeding that requires authentication by a company may be authenticated by the signature of an officer of the company and need not be authenticated under the common seal of the company.

Appointment of agent or attorney

      113.     (1)        A company may, by writing under its common seal, empower a person, either generally or in respect of a specified matter or specified matters, as its agent or attorney to execute deeds on its behalf.

                  (2)        A deed signed by such an agent or attorney on behalf of the company and under his seal or, subject to section 114, under the appropriate official seal of the company, binds the company and has the same effect as if it were under the common seal of the company.

                  (3)        The authority of an agent or attorney empowered pursuant to subsection (1), as between the company and a person dealing with him, continues during the period (if any) mentioned in the instrument conferring the authority or, if no period is so mentioned, until notice of the revocation or termination of his authority has been given to the person dealing with him.

Business outside Norfolk Island

      114.     (1)        A company may, if so authorised by its articles, have for use outside Norfolk Island in place of its common seal one or more official seals, each of which shall be a facsimile of the common seal of the company with the addition on its face of the name of each place where it is to be used.

                  (2)        The person who affixes such an official seal shall, by writing under his hand, certify on the instrument to which it is affixed the date on which and the place at which it was affixed.

                  (3)        A document sealed with such an official seal shall be deemed to be sealed with the common seal of the company.

Ratification of contracts made before formation of company

      115.     (1)        In this section —

                  (a)        a reference to a non-existent company purporting to enter into a contract is a reference to —

                              (i)   a person executing a contract in the name of a company where no such company exists; or

                              (ii)  a person purporting to enter into a contract as agent or trustee for a proposed company;

                  (b)        a reference to a person who purports to execute a contract on behalf of a non-existent company is a reference to a person who executes a contract or purports to enter into a contract as mentioned in paragraph (a); and

                  (c)        a reference, in relation to the purported entry into a contract by a non-existent company, to the formation of the company is a reference —

                              (i)   where a person has executed a contract in the name of a company and no such company exists - to the formation of a company that, in the circumstances, is reasonably identifiable with the company in the name of which the person executed the contract; or


 

                              (ii)  where a person has purported to enter into a contract as agent or trustee for a proposed company - to the formation of a company that, in the circumstances, is reasonably identifiable with the proposed company.

                  (2)        Where —

                  (a)        a non-existent company purports to enter into a contract; and

                  (b)        the company is formed within a reasonable time after the contract is purported to be entered into,

the company may, within a reasonable time after it is formed, ratify the contract.

                  (3)        Where a company ratifies a contract as provided by subsection (2), the company is bound by, and entitled to the benefit of, the contract as if the company had been formed before the contract was entered into and had been a party to the contract.

                  (4)        For the purposes of this section, a contract may be ratified by a company in the same manner as a contract may be made by a company under section 111 and the provisions of that section have effect as if —

                  (a)        the references in that section to making a contract were references to ratifying a contract; and

                  (b)        the reference in subsection (3) of that section to a contract executed, or purporting to have been executed, under the common seal of a company were a reference to a contract ratified, or purporting to have been ratified, under the common seal of a company.

Promoter’s liability

      116.     (1)        Where a non-existent company purports to enter into a contract and —

                  (a)        the company is not formed within a reasonable time; or

                  (b)        the company is formed within a reasonable time but does not ratify the contract within a reasonable time after the company was formed,

the other party or each of the parties to the contract may, subject to subsection (3) of this section and to subsection 118 (2), recover from the person or any one or more of the persons who purported to execute the contract on behalf of the non-existent company an amount of damages equivalent to the amount of damages for which that party could have obtained a judgment against the company —

                  (c)        where the company has not been formed as mentioned in paragraph (a) - if the company had been formed and had ratified the contract as provided by subsection (2); or

                  (d)       where the company has been formed as mentioned in paragraph (b) - if the company had ratified the contract as provided by subsection (2),

and the contract had been discharged by reason of a breach of the contract constituted by the refusal or failure of the company to perform an obligation under the contract.

                  (2)        Where —

                  (a)        proceedings are brought to recover damages under subsection (1) in relation to a contract purporting to have been entered into by a non-existent company; and


 

                  (b)        the company has been formed,

the court in which the proceedings are brought may, if it thinks it just to do so, make either or both of the following orders:

                  (c)        an order directing the company to transfer or pay to a party to the contract who is named in the order property, or an amount not exceeding the value of a benefit, received by the company as a result of the contract;

                  (d)       an order that the company pay the whole or a specified portion of damages that, in those proceedings, the defendant has been, or is, found liable to pay.

                  (3)        Where, in proceeding to recover damages under subsection (1) in relation to a contract purporting to have been entered into by a non-existent company, the court in which the proceedings are brought makes an order under paragraph (2)(c), the court may refuse to award damages in the proceedings or may award an amount of damages that is less than the amount that the court would have awarded if the order had not been made.

Promoter’s liability where contract ratified

      117.     Where —

                  (a)        a non-existent company purports to enter into a contract;

                  (b)        the company is formed and ratifies the contract as provided by subsection 115(2);

                  (c)        the contract is discharged by a breach of the contract constituted by a refusal or failure of the company to perform all or any of its obligations under the contract; and

                  (d)       the other party or any one or more of the other parties to the contract brings or bring proceedings against the company for damages for breach of the contract,

the court in which the proceedings are brought may, subject to subsection 118(2), if it thinks it just to do so, order the person or any one or more of the persons who purported to execute the contract on behalf of the company to pay to the person or persons by whom the proceedings are brought the whole or a specified portion of damages that the company has been, or is, found liable to pay to the person or persons by whom the proceedings are brought.

Consent to exemption from liability

      118.     (1)        Where a person purports, whether alone or together with another person or other persons, to execute a contract on behalf of a non-existent company, the other party to the contract, or any of the other parties to the contract, may, by writing signed by that party, consent to the first-mentioned person being exempted from any liability in relation to the contract.

                  (2)        Where a person has, as provided by subsection (1), consented to another person being exempted from liability —

            (a)        notwithstanding subsection 116(1), the first-mentioned person is not entitled to recover damages from the other person in relation to the contract; and

                  (b)        a court shall not, in proceedings under subsection 117(1), order that other person to pay to the first-mentioned person any damages, or a proportion of the damages, that the company has been or may be, found liable to pay to the first-mentioned person.

Discharge of promoter's liabilities

      119.     If —

                  (a)        a non-existent company purports to enter into a contract;

                  (b)        the company if formed; and

                  (c)        the company and the other party or other parties to the contract enter into a contract in substitution for the first-mentioned contract,

any liabilities to which the person who purported to execute the first-mentioned contract on behalf of the company is subject under section 115, 116, 117 or 118 in relation to the first-mentioned contract (including liabilities under an order made by a court under any of those sections) are, by force of this section, to be deemed to be discharged.

Rights and liabilities to be in substitution for other rights and liabilities

      120.     Any rights or liabilities of a person under section 115, 116, 117 or 118 (including rights or liabilities under an order made by a court under any of those sections) in relation to a contract are in substitution for any rights that the person would have, or any liabilities to which the person would be subject, as the case may be, apart from whichever of those sections is applicable, in relation to the contract.

Trustees

      121.     Where —

                  (a)        a person purports to enter into a contract as trustee for a proposed company; and

                  (b)        the company is formed within a reasonable time but does not ratify the contract within a reasonable time after the company is formed,

then notwithstanding any rule or principle of law or equity, the trustee does not have any right of indemnity against the company in respect of the contract.

Prohibition of carrying on business with fewer than statutory minimum number of members

      122.     (1)        If, at any time, the number of members of a company (joint holders of shares being counted as one person) is reduced —

                  (a)        in the case of a proprietary company - below 2; or

                  (b)        in the case of any other company - below 5,

and the company carries on business for more than 6 months while the number is so reduced, each person who, at a time when the company so carried on business after those 6 months, was a member of the company and was aware that the company was carrying on business with fewer than 2 or 5 members, as the case may be —

                  (c)        is severally liable for the payment of each debt of the company contracted at a time when —

                              (i)   the company so carried on business after those 6 months; and

                              (ii)  he was a member,

                              and may be severally sued for payment of that debt; and

                  (d)       is guilty of an offence.

(2)               Subsection (1) does not apply in relation to a company the whole of the issued shares of which are held by a company that is the holding company of the company.


 

Certificate authorising application for transfer for incorporation

      122A.  (1)        A company may apply to the Registrar for a certificate authorising it to apply for registration as a company under the Corporations Law of any of the Australian States or the Australian Capital Territory.

                  (2)        An application under subsection (1) must be in the prescribed form and must be accompanied by:

                  (a)        a declaration in writing signed by the directors of the company or, if the company has more than 2 directors, a majority of the directors, to the effect that they have made an inquiry into the affairs of the company and that at a meeting of directors have formed an opinion that the company will be able to pay its debts as they fall due; and

                  (b)        a report in the prescribed form as to affairs of the company, made up to the latest practicable date before the making of the application, showing the assets and liabilities of the company.

                  (3)        On application under subsection (1), the Registrar must issue a certificate if, and only if ¾

                  (a)        the company has passed a special resolution approving the application for the certificate; and

                  (b)        the company has given to its creditors, in a manner approved by the Registrar, notice of its intention to apply for such a certificate; and

                  (c)        the Registrar is not aware of any failure of the company to comply with any applicable requirement of this Act; and

                  (d)       the Registrar is not aware of any other reason why the certificate should not be granted; and

                  (e)        the Minister has consented to the issuing of the certificate.

                  (4)        A certificate may be issued under subsection (3) subject to such conditions as are specified in the certificate.

                  (5)        With such modifications as are necessary, sections 101, 102, 103 and 104 apply to and in respect of the proposal, passing and lodging, and the cancellation or confirmation by the Court, of a special resolution relating to an application for a certificate under this section as if it were a special resolution under section 101.

Effect of registration of company under Corporations Law of one of the Australian States or the Australian Capital Territory

      122B.  Where under the provisions of the Corporations Law of one of the Australian States or the Australian Capital Territory, a company is registered as a company under the Corporations Law, the company ceases to be incorporated under this Act from the time at which it is taken, under the provisions of that Corporations Law, to be a company duly incorporated under that Corporations Law.

PART 5 — PROSPECTUSES

Interpretation

      123.     (1)        For the purposes of this Act, if a statement included in a prospectus is misleading in the form or context in which it is included it shall be deemed to be untrue.

                  (2)        For the purposes of the application of section 124 or 125, if forms referred to in the section concerned that are the same or substantially the same are issued to the public or are issued to a section of the public, whether selected as clients of the person issuing the forms or in some other manner, each of the forms shall be deemed to be issued to the public notwithstanding that each form may be used only by the person to whom it is issued.

                  (3)        For the purposes of subsection (2), forms shall not be taken to be issued to the public by reason only that —

                  (a)        they are issued to persons whose ordinary business is to buy or sell shares or debentures, whether as principal or agent;

                  (b)        they are issued to existing members or debenture holders of a corporation and relate to shares in, or debentures of, that corporation; or

                  (c)        they are issued to existing members of a company in connection with a proposal referred to in section 512 and relate to shares in that company.

                  (4)        A reference in this Part to a statement includes a reference to matter that is not written but, by reason of the form or context in which it appears, conveys a message.

Prohibition of issue of certain documents in relation to proposed corporations

      124.     (1)        It is unlawful to issue —

                  (a)        a form of application for securities of a corporation that is to be formed; or

                  (b)        a form to accompany a deposit of money with, or a loan of money to, a corporation that is to be formed.

                  (2)        Subsection (1) does not apply if —

                  (a)        the form is not issued to the public; and

                  (b)        the invitation or offer to which the form relates is not issued or made to the public.

                  (3)        A corporation that, or other person who, contravenes this section and any officer of such a corporation who is in default are each guilty of an offence.

      Penalty:           200 penalty units or imprisonment or both.

Forms of application for shares or debentures to be attached to prospectus

      125.     (1)        A form of application for securities of a corporation or a form to accompany a deposit of money with, or a loan of money to, a corporation shall not be issued by the corporation or by some other person unless the form is attached to a prospectus and a copy of the form and a copy of the prospectus have been registered by the Registrar under this Act or under the repealed laws.

                  (2)        Subsection (1) does not apply if —

                  (a)        the form is not issued to the public; and

                  (b)        the invitation or offer to which the form relates is not issued or made to the public.

                  (3)        A corporation that, or another person who, contravenes this section and any officer of such a corporation who is in default are each guilty of an offence.

      Penalty:           200 penalty units or imprisonment or both.


 

Invitations or offers in relation to borrowing corporation

      126.     (1)        An invitation to the public to subscribe for or purchase debentures of a corporation or an offer to the public of debentures of a corporation for subscription or purchase shall not be made by the corporation or by some other person unless —

                  (a)        a copy of a prospectus in relation to the invitation or offer has been registered by the Registrar under this Act or under the repealed laws;

                  (b)        the prospectus contains an undertaking by the corporation that it will, within 2 months after the acceptance of money as a deposit or loan from a person in response to the invitation or offer, issue to that person a document that acknowledges, evidences or constitutes an acknowledgement of the indebtedness of the corporation in respect of that deposit or loan; and

                  (c)        the document is, in accordance with this section, described or referred to in the prospectus and in any other document constituting or relating to the invitation or offer as —

                              (i)   an unsecured note or an unsecured deposit note;

                              (ii)  a debenture or certificate of debenture stock.

                  (2)        Where, pursuant to an invitation or offer referred to in subsection (1), a corporation has accepted from a person money as a deposit or loan, the corporation shall, within 2 months after the acceptance of the money, issue to that person a document that —

                  (a)        acknowledges, evidences or constitutes an acknowledgement of the indebtedness of the corporation in respect of that deposit or loan; and

                  (b)        complies with the other requirements of this section.

                  (3)        The document shall be described or referred to in the prospectus, in any other document constituting or relating to the invitation or offer and in the document itself as an unsecured note or an unsecured deposit note, unless, pursuant to section 127 or 128, it may be and is, otherwise described.

Description as mortgage debenture or mortgage debenture stock

      127.     A document referred to in subsection 126(2) may be described or referred to in the prospectus, in any other document constituting or relating to the invitation or offer or in the document itself as a mortgage debenture or certificate of mortgage debenture stock if there is included in the prospectus —

                  (a)        a statement to the effect that —

                              (i)   the repayment of all moneys that have been or may be deposited with or lent to the corporation in response to the invitation or offer is secured by a first mortgage given to the trustee for the holders of the debentures to be issued in relation to the deposit or loan over land vested in the corporation or in any of its guarantor corporations;

                              (ii)  the mortgage has been duly registered, or is a registrable mortgage that has been lodged for registration, in accordance with the law relating to the registration of mortgages of land in Norfolk Island; and


 

                              (iii) the aggregate amount of those moneys and of all other liabilities (if any) secured by the mortgage of that land ranking pari passu with the liability to repay those moneys does not exceed 60% of the value of the corporation's interest in that land as shown in the valuation included in the prospectus;  and

                  (b)        a copy of a written valuation of the corporation’s interest in the land so mortgaged that shows the nature and extent of the corporation’s interest and was made not more than 6 months before the date of the prospectus by a person who is competent and qualified to make a valuation of land in Norfolk Island and is not an officer of the corporation, of any of its guarantor corporations or of any corporation that is related to either the first-mentioned corporation or any of its guarantor corporations.

Description as debenture or debenture stock

      128.     A document referred to in subsection 126(2) may be described or referred to in the prospectus, in any other document constituting or relating to the invitation or offer or in the document itself as a debenture or certificate of debenture stock if, pursuant to section 127 it may be, but is not, described or referred to in the prospectus or document as a mortgage debenture or certificate of mortgage debenture stock or there is included in the prospectus a statement to the effect that —

                  (a)        the repayment of all moneys that have been or may be deposited with or lent to the corporation in response to the invitation or offer has been secured by a charge in favour of the trustee for the holders of the debentures over the whole or a part of the tangible property of the corporation and of its guarantor corporations or any of them;  and

                  (b)        having regard to the particulars in the summary made as mentioned in section 129, the tangible property that constitutes the security for the charge is sufficient and is reasonably likely to be sufficient to meet the liability for the repayment of all such moneys and all other liabilities ranking in priority to, or pari passu with, that liability that have been or may be incurred.

Matters to be included in summary

      129.     The summary referred to in paragraph 128(b) is a summary  —

                  (a)        that is made by the registered company auditor who made the report required to be included in the prospectus by paragraph 135(3)(b) and shows in tabular form the aggregate values (calculated as prescribed) of the tangible property of the borrowing corporation and of its guarantor corporations that has been charged to secure the repayment of all moneys and other liabilities referred to in paragraph 128(a), after making such adjustments as are proper to show fairly the tangible property available as security for the charge and, in particular, after making adjustments  —

                              (i)   to exclude from those aggregate values such part of the value of shares in or advances to a corporation as is reflected in or depends upon the tangible property of that corporation that is otherwise included in the summary;

                              (ii)  to exclude from those aggregate values such part of the value of shares in a corporation that is related to the borrowing corporation or the guarantor corporation, as the case requires, as is properly attributable to intangible property of first-mentioned corporation; and

                              (iii) to add to those aggregate values the amount to be raised under the prospectus including the maximum amount of over-subscriptions that the prospectus in accordance with section 141 specifies may be retained; and

                  (b)        shows the amounts outstanding of the aggregate amounts borrowed respectively by the borrowing corporation and by its guarantor corporations and distinguishes between the amounts that will rank for repayment in priority to the proposed issue and the amounts that will rank pari passu with that issue;

            (c)        states by way of note or otherwise the total amount of the values of intangible property excluded in making the adjustments required under paragraph (a);

                  (d)       where the corporation has given a charge over its assets to secure a liability the amount of which may vary from time to time, takes into account the amount of the liability at the date as at which the summary is made up but shows by way of note the further amount that may be advanced under that charge;

                  (e)        where necessary, explains or qualifies by way of note or otherwise any of the matters set out in the summary;

                  (f)        discloses by way of note or otherwise the amount of advances (distinguishing between advances that are secured and advances that are unsecured) by the borrowing corporation to any corporation that is related to the borrowing corporation other than a corporation that is a guarantor corporation in relation to that borrowing corporation that has secured the guarantee by a charge over its property in favour of the trustee for the holders of the debentures of the borrowing corporation; and

                  (g)        discloses by way of note or otherwise the amount of advances (distinguishing between advances that are secured and advances that are unsecured) by a corporation that is a guarantor corporation, or each corporation that is a guarantor corporation, in relation to the borrowing corporation to any corporation that is related to the borrowing corporation, other than the amount of advances to any other corporation that is also a guarantor corporation in relation to the borrowing corporation.

Part not to apply to certain corporations

      130.     (1)        This Part does not apply to a prescribed corporation and this Act does not require a prospectus to be issued in connection with —

                  (a)        an invitation issued by a prescribed corporation to the public to subscribe for or purchase debentures of the corporation;  or

                  (b)        an offer made by a prescribed corporation to the public of debentures of the corporation for subscription or purchase.

                  (2)        A reference in subsection (1) to a prescribed corporation is a reference to —

                  (a)        a corporation that is declared by the Registrar, by notice published in the Gazette, to be an authorised dealer in the short term money market; or

                  (b)        a corporation that —

                              (i)   is a pastoral company in respect of which an exemption granted under section 11 of the Banking Act 1959 of the Commonwealth is in force;

                              (ii)  is registered under the Life Insurance Act 1945 of the Commonwealth or is a corporation the whole of the issued shares in which are held beneficially by a corporation so registered; or

                              (iii) is a subsidiary of a banking corporation or of a company referred to in subparagraph (i), if the repayment of all existing and future deposits with and loans to the subsidiary are guaranteed by the banking corporation or company,

and is declared by the Registrar, by notice published in the Gazette, to be a prescribed corporation for the purposes of this section.

                  (3)        The Registrar may, by notice published in the Gazette, specify terms and conditions subject to which subsection (1) has effect in relation to a corporation specified in paragraph (2)(b).

Offences

      131.     A corporation that, or another person who, contravenes or fails to comply with any of the provisions of section 126 and any officer of such a corporation who is in default are each guilty of an offence.

Penalty:           (a)  in the case of an offence against subsection 126(1) arising out of the issuing of an invitation or the making of an offer without a copy of a prospectus in relation to the invitation or offer having been registered as required by paragraph 126(1)(a) - 200 penalty units or imprisonment or both;

                              (b)  in any other case - 25 penalty units or imprisonment or both.

Application of certain provisions

      132.     The provisions of this Part relating to the description of a document acknowledging or evidencing, or intended to acknowledge or evidence, the indebtedness of a corporation apply to and in relation to each such document issued after the date of commencement of this Act, notwithstanding anything in a debenture or trust deed issued or executed before that date and in force for the time being and such a document issued after that date shall be described in accordance with the requirements of this Part.

Documents evidencing indebtedness

      133.     For the purposes of this Part, a document issued by a borrowing corporation certifying that a person specified in the document is, in respect of a deposit with or loan to the corporation, the registered holder of a specified number or value —

                  (a)        of unsecured notes or unsecured deposit notes;

                  (b)        of mortgage debentures or certificates of mortgage debenture stock; or

                  (c)        of debentures or certificates of debenture stock,

issued by the corporation upon or subject to the terms and conditions contained in a trust deed referred to or identified in the certificate shall be deemed to be a document evidencing the indebtedness of that corporation in respect of that deposit or loan.

Registrar may specify manner of description

      134.     The prospectus and a document issued in connection with or in relation to the prospectus shall describe or refer to the document mentioned in section 133 in the manner required or authorised by the Registrar and shall so describe or refer to the document without any addition to or qualification of the description or reference other than an addition that the Registrar approves or requires in order to indicate the priority of the indebtedness that the document is to evidence.

Contents of prospectuses

      135.     (1)        To comply with the requirements of this Part, a prospectus shall comply with the subsequent provisions of this section.

                  (2)        The prospectus —

                  (a)        shall be printed in type of a size not less than 8 point unless the Registrar, before the issuing or advertising of the prospectus in Norfolk Island, certifies in writing that the type and size of letter are legible and satisfactory;

                  (b)        shall be dated; and

                  (c)        shall, as to one copy, be lodged with the Registrar as required by this Act, shall state that a copy of the prospectus has been so lodged and shall also state, immediately after the statement that a copy has been so lodged, that the Registrar takes no responsibility for the contents of the prospectus.

                  (3)        Where the prospectus relates to shares —

                  (a)        it shall set out particulars as to the minimum amount that, in the opinion of the directors, must be raised by the issue of those shares in order to provide the sums, or, if any part of the sums is to be defrayed in some other manner, the balance of the sums, required to be provided in respect of each of —

                              (i)   the purchase price of property purchased or to be purchased that is to be defrayed in whole or in part out of the proceeds of the issue;

                              (ii)  preliminary expenses payable by the corporation;

                              (iii) brokerage or commission so payable by the corporation to a person in consideration of his agreeing to subscribe for, or of his procuring or agreeing to procure subscriptions for, shares in the corporation;

                              (iv) the repayment of money borrowed by the corporation in respect of any of the foregoing matters; and

                              (v)  working capital;

                  (b)        it shall contain a report by a registered company auditor (to be headed “Investigating Accountant’s Report”) containing the prescribed matters and such other matters as the Registrar requires;

                  (c)        it shall set out the prescribed matters and contain the prescribed reports; and

                  (d)       it shall set out such other matters as the Registrar requires and contain such other reports as the Registrar requires.

                  (4)        Where the prospectus is a prospectus pursuant to which the public is to be invited to deposit money with or lend money to a corporation that is a subsidiary of another corporation or a prospectus pursuant to which a corporation that is a subsidiary of another corporation is to make offers to the public to accept moneys deposited with, or moneys lent to, the corporation —

                  (a)        it shall contain a statement whether that other corporation is under a liability to repay those moneys or to pay interest on those moneys;  and

                  (b)        where that other corporation is so stated to be under such a liability - it shall also set out full particulars of the nature and extent of the liability, of the circumstances under which the liability arose and of the manner in which the liability is to be discharged.

                  (5)        The prospectus shall contain a statement that no shares or debentures, as the case requires, will be allotted or issued on the basis of the prospectus later than 6 months after the date of the issue of the prospectus.

                  (6)        If the prospectus contains a statement that is made by an expert or is contained in what purports to be a copy of, or extract from, a report, memorandum or valuation of an expert, the prospectus shall state the date on which the statement, report, memorandum or valuation was made and whether it was prepared by the expert for incorporation in the prospectus.

                  (7)        The prospectus shall not contain the name of a person as — 

                  (a)        a trustee for holders of debentures of the corporation;

                  (b)        an auditor, banker, solicitor, stockbroker or share broker of the corporation or for or in relation to the issue or proposed issue of shares or debentures; or

                  (c)        a person performing a function in a professional, advisory or other capacity not mentioned in paragraph (a) or (b) for the corporation or for or in relation to the issue or proposed issue of shares or debentures,

unless that person has consented in writing before the issue of the prospectus to act in that capacity in relation to the prospectus and, in the case of a company, a copy, verified by a statement in writing of the consent, has been lodged with the Registrar.

                  (8)        The prospectus shall set out the dates of, the parties to and the general nature of, each material contract, not being a contract entered into in the ordinary course of the business carried on or intended to be carried on by the corporation or a contract entered into more than 2 years before the date of issue of the prospectus.

                  (9)        The prospectus shall state whether application has been, or is proposed to be, made for permission for the shares or debentures to which the prospectus relates to be listed for quotation on the stock market of a stock exchange, and if such an application has been or is proposed to be made, shall specify the stock exchange or stock exchanges to which application has been or is proposed to be made.

                  (10)      The prospectus shall set out —

                  (a)        full particulars of the nature and extent of the interest (if any) of each director or proposed director and of each expert in the promotion of, or in the property proposed to be acquired by, the corporation; or

                  (b)        where the interest of a director, proposed director or expert consists of being a partner in a firm, the nature and extent of the interest of the firm,

with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares or otherwise by any persons —

                  (c)        in the case of a director or proposed director - either to induce him to become, or to qualify him as, a director, or otherwise for services rendered by him or by the firm in connection with the promotion or formation of the corporation; or

                  (d)       in the case of an expert - for services rendered by him or the firm in connection with the promotion or formation of the corporation.

                  (11)      Where the prospectus offers shares in or debentures of a foreign company, the prospectus shall contain particulars with respect to —

                  (a)        the constituent documents of the foreign company;

                  (b)        the laws, or provisions having the force of law, by or under which the incorporation of the foreign company was effected;

                  (c)        an address in Norfolk Island where the constituent documents, and the laws or provisions, or certified copies of the constituent documents, laws or provisions, may be inspected;

                  (d)       the date on which and the place where the foreign company was or is to be incorporated or formed;

                  (e)        the address of the registered office of the foreign company in Norfolk Island.

                  (12)      The date inserted in a prospectus pursuant to paragraph (2)(b) shall, unless the contrary is proved, be taken to be the date of issue of the prospectus.

                  (13)      Regulations made for the purposes of this section may make different provision in relation to different classes of prospectuses or in relation to prospectuses to be issued in respect of different classes of shares or debentures or different classes of corporations.

                  (14)      A report contained in a prospectus shall either —

                  (a)        show by way of a note any adjustments of the figures of profit and loss or assets and liabilities contained in the report as appear to the person making the report to be necessary; or

                  (b)        make those adjustments and show by way of a note that adjustments have been made and the nature of the adjustments.

                  (15)      Without limiting the generality of any of the provisions of this section, the Registrar may require that a report that is required, pursuant to a provision of this section or to a requirement made under a provision of this section, to be contained in a prospectus shall contain accounts that comply with the requirements set out in the Regulations in force for the time being under subsection 340(11) or with such of those requirements as the Registrar specifies.

                  (16)      Subsection (10) and paragraphs (11)(a), (b) and (c) do not apply in the case of a prospectus issued more than 2 years after the day on which —

                  (a)        in the case of a company - it is incorporated; or

                  (b)        in the case of a foreign company - it is registered as a foreign company in Norfolk Island.

                  (17)      A condition requiring or binding an applicant for shares in or debentures of a corporation to waive compliance with any requirement of this section, or purporting to affect him with notice of a contract, document or matter not specifically referred to in the prospectus is void.

Offences

      136.     (1)        Where a prospectus relating to shares in or debentures of a corporation is issued and the prospectus does not comply with the requirements of this Part, the directors of the corporation and any other person responsible for the prospectus are each guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

                  (2)        In the event of non-compliance with, or contravention of, any of the provisions of this Part, a director or other person responsible for the prospectus does not incur any liability by reason of the non-compliance or contravention if —

                  (a)        as regards matter not disclosed, he proves that he had no knowledge of that matter;

                  (b)        he proves that the non-compliance or contravention arose from an honest mistake on his part concerning the facts; or

                  (c)        the non-compliance or contravention was —

                              (i)   in respect of matter that, in the opinion of the court dealing with the case, was immaterial; or

                              (ii)  such as, in the opinion of that court, having regard to the circumstances of the case, ought reasonably to be excused.

                  (3)        In the event of failure to include in a prospectus a statement with respect to the matters specified in subsection 135(10), a director or other person is not liable in respect of the failure unless it is proved that he had knowledge of the matters not disclosed.

Effect of Part — other liabilities

      137.     This Part does not limit or diminish a liability that a person has under any rule of law or enactment or under this Act apart from section 136.

Certain notices, etc, not to be published

      138.     (1)        In this section —

      “notice” includes a circular and an advertisement but does not include a registered prospectus or a report, statement, notice, circular or advertisement the publication of which is permitted under section 139;

      “publish” includes issue.

                  (2)        A reference in this section to the publishing of a notice is a reference to the publishing of the notice by any means, including the publishing in a newspaper or periodical, by broadcasting or televising or in a film.

                  (3)        A person shall not publish a notice that —

                  (a)        offers securities to the public for subscription or purchase;

                  (b)        invites the public to subscribe for or purchase securities; or

                  (c)        refers or calls attention, whether directly or indirectly, to —

                              (i)   a prospectus;

                              (ii)  an offer or intended offer to the public for subscription or purchase of securities;

                              (iii) an invitation or intended invitation to the public to subscribe for or purchase securities; or

                              (iv) another notice that refers or calls attention, whether directly or indirectly, to a prospectus or such an offer, intended offer, invitation or intended invitation, not being a notice referred to in subsection (4).


 

                  (4)        Subsection (3) does not apply to or with respect to the publishing of a notice that refers to a registered prospectus and —

                  (a)        states that allotments or issues of, or contracts for the subscription for or purchase of, securities to which the prospectus relates will be made only on receipt of a form of application referred to in and attached to a copy of the prospectus but contains no other statements other than statements as to any or all of the following:

                              (i)   particulars of the securities to which the prospectus relates;

                              (ii)  the name of the corporation, the date of its incorporation and the amount of its paid-up capital;

                              (iii) the general nature of the principal business of the corporation;

                              (iv) the names, addresses and occupations of the directors of the corporation;

                              (v)  the name and address of each broker and underwriter to the issue and the name of the stock exchange of which each broker or underwriter is a member;

                              (vi) where the prospectus relates to debentures, the name and address of the trustee for the debenture holders;

                              (vii) the time and place at which copies of the prospectus and forms  of application for the securities to which it relates may be obtained;

                              (viii) the period during which the offer or invitation contained in the prospectus is open;

                  (b)        is published by the holder of a dealer's licence or an investment adviser’s licence, by a recognised dealer or recognised investment adviser or by an exempt dealer within the meaning of the Securities Industry Act 1980 of the Commonwealth but contains no other statements other than statements as to any or all of the matters referred to in paragraph (a) and a statement as to —

                              (i)   whether the person publishing the notice recommends acceptance of the offer or invitation to which the prospectus relates; and

                              (ii)  the interest (if any) that the person publishing the notice has in the success of the offer or invitation to which the prospectus relates, being an interest that the person has as underwriter or sub-underwriter to the issue of the securities to which the prospectus relates or a relevant interest, within the meaning of the Securities Industry Act 1980 of the Commonwealth, in those securities; or

                  (c)        is published by the holder of a dealer’s licence or an investment adviser’s licence, by a recognised dealer or recognised investment adviser or by an exempt dealer within the meaning of the Securities Industry Act 1980 of the Commonwealth and is accompanied by a copy of the prospectus.

                  (5)        The inclusion in a notice of a statement required by this or some other enactment to be included in the notice does not affect the operation of subsection (4).

                  (6)        A person shall not contravene, or authorise or permit an act that constitutes a contravention of, this section.

                  (7)        Where a notice relating to a corporation is published in contravention of this section by or with the authority or permission of an officer of the corporation, the corporation is guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

Certain reports not to be published

      139.     (1)        In this section, unless the contrary intention appears —

      “publish” includes issue;

      “report” includes a statement, notice, circular and an advertisement, whether or not in writing, but does not include a notice, circular or advertisement the publication of which is permitted under section 138.

                  (2)        A reference in this section to the publishing of a report is a reference to the publishing of the report by any means, including the publishing in a newspaper or periodical, by broadcasting or television or in a film.

                  (3)        A person who is aware that a prospectus relating to an issue of securities —

                  (a)        is in course of preparation by or on behalf of a corporation, or in respect of a proposed corporation, for registration under this Act; or

                  (b)        has been issued by or on behalf of a corporation,

shall not publish a report that is reasonably likely to induce persons to apply for those securities.

                  (4)        Subsection (3) does not apply to or with respect to the publishing of —

                  (a)        a report that relates to affairs of a corporation the name of which is included in the official list of a stock exchange and —

                              (i)   is published only to that stock exchange or to an officer of that stock exchange on behalf of the corporation or by or on behalf of one or more of the directors of the corporation; or

                              (ii)  has been so published;

                  (b)        a report of the whole or part of the proceedings at a general meeting of a corporation the name of which is included in the official list of a stock exchange, being a report that does not contain matter other than matter laid before that meeting;

                  (c)        a report that relates to a corporation and is published by or on behalf of a corporation or by or on behalf of one or more of the directors of the corporation and —

                              (i)   does not contain matter that materially affects affairs of the corporation other than matter previously made available in a registered prospectus, an annual report or a report referred to in paragraph (a) or (b);

                              (ii)  does not contain a reference, whether directly or indirectly, to an offer to the public of securities for subscription or purchase or to an invitation to the public to subscribe for or purchase securities, being an offer or invitation that, when the report is published, is open or is intended to be made or issued, not being a reference to the principal business of the corporation in a case where the principal business of the corporation is the borrowing of money and the provision of finance; and

                  (iii) is not accompanied by a registered prospectus or a notice described in subsection 138(3) and is a report that the corporation and its directors have taken all reasonable steps to ensure is not published in a form or manner in which it might be associated with a notice as mentioned in subsection 138(3);

                  (d)       a report published on behalf of a corporation by or on behalf of the directors of a corporation with the consent of the Registrar;

                  (e)        a report that is a news report (whether or not with other comment), or is comment made in good faith and is published by a person in a newspaper or periodical or by broadcasting or televising relating to —

                              (i)   a registered prospectus or information contained in a registered prospectus; or

                              (ii)  a report referred to in paragraph (a), (b), (c) or (d),

                                    if none of the following:

                              (iii) that person;

                              (iv) an agent or employee of that person;

                              (v)  where the report or comment is published in a newspaper or periodical - the publisher of the newspaper or periodical;

                              (vi) where the report or comment is published by broadcasting or televising - the operator of the broadcasting or television station by which it is published,

receives or is entitled to receive any consideration or other benefit from a person who has an interest in the success of the issue of securities or debentures to which the report or comment relates as an inducement to publish, or as the result of the publication of, the report or comment;

                  (f)        a report where the report is not published —

                              (i)   by or on behalf of a corporation to which the report relates or, whether directly or indirectly, at the instigation of, or by arrangement with, the corporation or the directors of the corporation;

                              (ii)  by or on behalf of the directors or promoters of a proposed corporation to which the report relates; or

                              (iii) by or on behalf of a person who has an interest in the success of the issue of securities to which the report relates,

and the person publishing the report does not receive and is not entitled to receive any consideration or other benefit from the corporation or from any of the directors of the corporation or any of the directors or promoters of the proposed corporation, or from a person mentioned in subparagraph (iii), as an inducement to publish, or as the result of the publication of, the report; or

                  (g)        a report containing only matter that is prescribed matter for the purposes of this subsection or relates only to a corporation that is, or is included in a class of corporations that is, prescribed for the purposes of this subsection.

                  (5)        A person shall not contravene this section or authorise or permit an act that constitutes a contravention of this section.

                  (6)        Where a report relating to a corporation is published in contravention of this section by or with the authority or permission of an officer of the corporation, the corporation is guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

Evidentiary provisions, etc

      140.     (1)        In this section —

      “notice” means a notice within the meaning of section 138 or a report within the meaning of section 139;

      “publish includes issue.

                  (2)        A person who publishes a notice relating to a corporation or proposed corporation after he has received a certificate that —

                  (a)        specifies the names of 2 directors of the corporation or 2 proposed directors of the proposed corporation and is signed by those directors or proposed directors; and

                  (b)        is to the effect that, by reason of subsection 138(4) or 139(4), section 138 or 139, as the case may be, does not apply to the notice,

is not guilty of an offence under section 138 or 139, as the case may be.

                  (3)        Where a notice to which a certificate under subsection (2) relates is published, each director or proposed director who signed that certificate shall, for the purposes of sections 138 and 139, be deemed to have published the notice.

                  (4)        A person who publishes a notice to which a certificate under subsection (2) relates shall, if the Registrar requires him to do so, forthwith deliver the certificate to the Registrar.

      Penalty:           10 penalty units or imprisonment or both.

                  (5)        In proceedings for an offence under section 138 or 139, a certificate that purports to be a certificate under this section is evidence that —

                  (a)        when the certificate was issued, the persons named in the certificate as directors of the corporation or proposed directors of the proposed corporation, as the case may be, were the directors or proposed directors;

                  (b)        the signatures in the certificate purporting to be the signatures of the directors or proposed directors, as the case may be, are those signatures; and

                  (c)        the publication of the notice was authorised by those directors or proposed directors, as the case may be.

                  (6)        Section 138 or 139 or this section does not affect any liability that a person has apart from those sections.

Retention of over-subscriptions

      141.     (1)        A corporation shall not accept or retain subscriptions to an issue of debentures in excess of the amount of the issue as disclosed in the prospectus unless the corporation has expressly specified in the prospectus —

                  (a)        that it reserves the right to accept or retain over-subscriptions; and

                  (b)        a limit on the amount of over-subscriptions that may be accepted or retained.


 

                  (2)        Subject to section 135 and to any regulations made for the purposes of paragraph 135(3)(c), where a corporation specifies in a prospectus relating to an issue of debentures that it reserves the right to accept or retain over-subscriptions —

                  (a)        the corporation shall not make, authorise or permit a statement or reference as to the asset-backing for the issue to be made or contained in a prospectus relating to the issue, other than a statement or reference to the total assets and the total liabilities of the corporation; and

                  (b)        the corporation shall set out in the prospectus a statement or reference as to the amount that the total assets and total liabilities of the corporation would be if over-subscriptions to the limit specified in the prospectus were accepted or retained.

      Penalty:           25 penalty units.

Registration of prospectuses

      142.     (1)        A person shall not issue a prospectus unless a copy of the prospectus has first been registered by the Registrar under this Act or by the Registrar of Companies under the repealed laws.

                  (2)        The Registrar shall not register a copy of a prospectus under this Act unless —

                  (a)        the prospectus relates to a company or a registered foreign company;

                  (b)        the copy is signed by each director and by each person who is named in the prospectus as a proposed director of the company or foreign company or by his agent authorised in writing and is lodged with the Registrar on or before the date of issue of the prospectus;

                  (c)        the prospectus appears to comply with the requirements of this Act;

                  (d)       there are also lodged with the Registrar copies, verified by statements in writing, of any consents required by section 145 to the issue of the prospectus and of all material contracts referred to in the prospectus or, in the case of such a contract not reduced to writing, a memorandum that gives full particulars of the contract and is verified by a statement in writing; and

                  (e)        the Registrar is satisfied on reasonable grounds that the prospectus does not contain a statement or matter that, in a material particular, is untrue or, in the form or context in which it appears, misleading.

                  (3)        If a prospectus is issued without a copy of the prospectus having been registered as required by this section, the corporation and any person who is knowingly a party to the issue of the prospectus are each guilty of an offence.

      Penalty:           200 penalty units or imprisonment or both.

                  (4)        A company in respect of which a copy of a prospectus has been registered under this section shall —

                  (a)        cause a true copy of each document referred to in paragraph (2)(d) to be deposited, within 7 days after registration of the copy of the prospectus, at the registered office of the company in Norfolk Island;

                  (b)        shall keep each such copy for a period of at least 6 months after the registration of the copy of the prospectus for the inspection of any person without charge; and

                  (c)        shall make the copy available for inspection by a person who, within that period, asks to inspect it.

Document containing offer of securities for sale deemed to be prospectus

      143.     (1)        Where a corporation allots or issues, or agrees to allot or issue, to a person securities of the corporation with a view to all or any of them being offered for sale to the public, a document by which the offer for sale is made shall, for all purposes, be deemed to be a prospectus issued by the corporation and all laws —

                  (a)        relating to the contents of prospectuses and liability in respect of statements and non-disclosures in prospectuses, or otherwise relating to prospectuses; and

                  (b)        relating to the offering or to an intended offering to the public of securities for subscription or purchase,

apply and have effect accordingly as if —

                  (c)        the securities had been offered to the public; and (d)persons accepting the offer in respect of any of the securities were subscribers for the securities,

but without prejudice to the liability (if any) of the persons by whom the offer was made in respect of statements or non-disclosures in the document or otherwise.

                  (2)        For the purposes of this Act, unless the contrary is proved, if it is shown that —

                  (a)        an offer of securities for sale to the public was made within 6 months after the allotment or issue or agreement to allot or issue; or

                  (b)        an offer of securities for sale to the public was made, and that, at the date when the offer was made, the corporation had not received the whole of the consideration to be received in respect of the securities,

it is evidence that an allotment or issue of, or an agreement to allot or issue, the securities was made with a view to the securities being offered for sale to the public.

                  (3)        The requirements of this Part as to prospectuses have effect as though the persons making an offer to which this section relates were persons named in a prospectus as directors of a corporation.

                  (4)        In addition to complying with the other requirements of this Part, the document making the offer shall state —

                  (a)        the net amount of the consideration received or to be received by the corporation in respect of securities to which the offer relates; and

                  (b)        the place and time at which the contract under which the securities have been or are to be allotted or issued may be inspected.

                  (5)        Where an offer to which this section relates is made by a corporation or a firm, it is sufficient for the purposes of paragraph 142(2)(b) if the document referred to in subsection (1) is signed on behalf of the corporation or firm by 2 directors of the corporation or by members of the firm who constitute not less than one-half of the number of members of the firm, as the case may be,

                  (6)        A director or member may sign by his agent authorised in writing.


 

                  (7)        For the purposes of this section, an invitation to the public to make offers to purchase securities shall be deemed to constitute an offer of the securities for sale to the public and a person who makes an offer pursuant to such an invitation shall be deemed to be a person who accepted an offer of the securities for sale to the public that is to be so deemed to be constituted by the invitation.

 

Allotment or issue of securities where prospectus indicates application for quotation on stock market

      144.     (1)        Subject to this section, where a prospectus in relation to securities states that application has been or will be made to a stock exchange for permission for the securities to be listed for quotation on the stock market of that stock exchange and —

                  (a)        the permission is not applied for in the form for the time being required by that stock exchange before the third day on which that stock exchange is open for business after the date of issue of the prospectus; or

                  (b)        the permission is not granted before the expiration of a period of 8 weeks after the date of issue of the prospectus or such longer period, not exceeding 12 weeks, from the date of issue as is, within that period of 8 weeks, notified to the applicant by or on behalf of the stock exchange,

an allotment or issue, whenever made, on an application pursuant to the prospectus is void and the corporation shall repay, in accordance with the succeeding provisions of this section, any money received by it pursuant to the prospectus.

                  (2)        Where a corporation is liable under subsection (1) to repay money, the money shall be repaid forthwith without interest.

                  (3)        If the money is not so repaid —

                  (a)        where the liability to repay the money arose by reason of paragraph (1)(a) - within 14 days after the third day referred to in that paragraph; or

                  (b)        where the liability to repay the money arose by reason of paragraph (1)(b), within 14 days after —

                              (i)   the period of 8 weeks first referred to in that paragraph; or

                              (ii)  if a longer period has been notified under that paragraph - that longer period,

then, in addition to the liability of the corporation to repay the money, the directors of the corporation are jointly and severally liable to repay the money with interest at the rate of 8% per annum (or, if another rate is prescribed, at that other rate) calculated from the expiration of the 14 days referred to in paragraph (a) or (b), as the case requires.

                  (4)        Where, in relation to securities —

                  (a)        permission is not applied for as specified in paragraph (1)(a); or

                  (b)        permission is not granted as specified in paragraph (1)(b),

the Registrar may, by notice published in the Gazette, on the application of the corporation made before any of the securities are purported to be allotted or issued, exempt the allotment or issue of the securities from the operation of this section.


 

                  (5)        A director is not liable under this section by reason of default in the repayment of the money if he proves that the default was not due to misconduct or negligence on his part.

 

                  (6)        Without limiting the application of any of the provisions of this section, this section has effect —

                  (a)        in relation to securities agreed to be taken by a person underwriting an offer of, or an invitation in relation to, those securities contained in a prospectus as if he had applied for those securities pursuant to the prospectus; and

                  (b)        in relation to a prospectus offering shares for sale or inviting offers to purchase shares, as if —

                              (i)   a reference to sale or purchase, as the case may be, were substituted for a reference to allotment;

                              (ii)  the persons by whom the offer is made or the invitation is issued, and not the corporation, were liable under this section to repay money received from applicants, and references to the corporation’s liability under this section were construed accordingly; and

                              (iii) for the reference in subsection (7) to the corporation and any officer of the corporation who is in default there were substituted a reference to any person by or through whom the offer was made or the invitation was issued who knowingly authorised or permitted the default.

                  (7)        All money received by a corporation pursuant to a prospectus as mentioned in the preceding provisions of this section shall be kept in a separate bank account so long as the corporation may become liable to repay it under this section and, if default is made in complying with this subsection, the corporation and any officer of the corporation who is in default are each guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

                  (8)        Where a stock exchange has, within the period applicable under paragraph (1)(b), granted permission subject to compliance with requirements specified by the stock exchange, permission shall be deemed to have been granted by the stock exchange if the directors have given to the stock exchange an undertaking in writing to comply with the requirements of the stock exchange, but if such an undertaking is not complied with, each director who is in default is guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

                  (9)        A person shall not issue a prospectus inviting persons to subscribe for, or offering to accept subscriptions for, securities, being a prospectus that includes —

                  (a)        an untrue statement that permission has been granted for those securities to be dealt in or quoted or listed for quotation on a stock market of a stock exchange; or

                  (b)        a statement in any way referring to any such permission or to any application or intended application for any such permission, or to dealing in or quoting or listing the securities on, or on a stock market of, a stock exchange, or to any requirements of a stock exchange, unless that statement is or is to the effect that permission has been granted or that application has been or will be made to the stock exchange within 3 days after the issue of the prospectus.

                  (10)      A condition requiring or binding an applicant for securities to waive compliance with any requirement of this section, or purporting to do so, is void.

Expert’s consent to issue of prospectus

      145.     (1)        A prospectus in relation to a corporation that includes a statement purporting to be made by an expert or to be based on a statement made by an expert shall not be issued unless —

                  (a)        the expert has given, and has not, before delivery of a copy of the prospectus for registration, withdrawn, his written consent to the issue of the prospectus with the statement included in the form and context in which it is included; and

                  (b)        there appears in the prospectus a statement that the expert has given, and has not withdrawn, his consent.

                  (2)        If a prospectus is issued in contravention of this section, the corporation and any person who is knowingly a party to the issue of the prospectus are each guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

Civil liability for untrue statement or non-disclosure

      146.     (1)        Subject to this section, where a prospectus is issued in relation to a corporation, a person who —

                  (a)        is a director of the corporation at the time of the issue of the prospectus;

                  (b)        authorised or caused himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time;

                  (c)        is a promoter of the corporation; or

                  (d)       authorised or caused the issue of the prospectus,

is liable to pay compensation to a person who subscribed for or purchased a securities on the faith of the prospectus for any loss or damage sustained by reason of an untrue statement in the prospectus or by reason of the non-disclosure in the prospectus of a matter of which he had knowledge and that he knew to be material.

                  (2)        Notwithstanding anything in subsection (1), where the consent of an expert to the issue of a prospectus is required and the expert has given that consent, the expert is not, by reason only of having given that consent, liable under subsection (1) as a person who has authorised or caused the issue of the prospectus except in respect of —

                  (a)        an untrue statement in the prospectus made by him and purporting to have been made by him as an expert; and

                  (b)        a non-disclosure in the prospectus of material matter for which he is responsible in his capacity or purported capacity as an expert.

                  (3)        For the purposes of subsection (1), a person who is named in a prospectus as —

                  (a)        a trustee for holders of debentures of the corporation;

                  (b)        an auditor, banker, solicitor, stockbroker or share broker of the corporation or for or in relation to the issue or proposed issue of securities; or

                  (c)        a person performing a function in a professional, advisory or other capacity not mentioned in paragraph (a) or (b) for the corporation or for or in relation to the issue or proposed issue of securities,

shall not, for that reason alone, be taken to have authorised the issue of the prospectus.

                  (4)        For the purposes of subsection (1), if a statement is contained in a report or memorandum that appears on the face of, or is issued with, a prospectus, or is incorporated by reference in a prospectus, whether the reference occurs in the prospectus or in some other document, the statement shall be deemed to be in the prospectus.

Defences to liability

      147.     (1)        Subject to subsection (2), a person other than a person to whom section 148 applies is not liable under subsection 146 (1) if he proves —

                  (a)        that, having consented to become a director of the corporation, he withdrew his consent before the issue of the prospectus and that it was issued without his authority or consent;

                  (b)        that the prospectus was issued without his knowledge or consent and —

                              (i)   when he became aware of the issue of the prospectus, he forthwith gave reasonable public notice that it was issued without his knowledge; or

                              (ii)  he gave reasonable public notice that the prospectus was issued without his consent forthwith after it was issued,

                              as the case may be;

                  (c)        that, after the issue of the prospectus and before an allotment, issue or sale under the prospectus, he, on becoming aware of an untrue statement in the prospectus, withdrew his consent to the issue of the prospectus and gave reasonable public notice of the withdrawal and of the reason for the withdrawal; or

                  (d)       that —

                              (i)   as regards each untrue statement not purporting to be made as mentioned in paragraph (c), he had reasonable grounds to believe, and did until the time of the allotment, issue or sale of the securities believe, that the statement was true;

                              (ii)  as regards  each untrue statement purporting to be a statement made by an expert or to be based on a statement made by an expert or contained in what purports to be a copy of, or extract from, a report or valuation of an expert, it fairly represented the statement, or was a correct copy of, or a fair extract from, the report or valuation, and he had reasonable grounds to believe, and did until the time of the issue of the prospectus believe, that the person making the statement was competent to make it and that that person had given the consent required by section 145 to the issue of the prospectus and had not withdrawn that consent before delivery of a copy of the prospectus for registration, or, to the defendant’s knowledge, before any allotment, issue or sale under the prospectus; and

                              (iii) as regards each 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, it was a fair representation of the statement or a correct copy of, or a fair extract from, the document.

                  (2)        Subsection (1) does not apply in respect of a person who is liable, by reason of his having given a consent required of him by section 145, as a person who has authorised or caused the issue of the prospectus in respect of an untrue statement purporting to have been made by him as an expert.

Defence available to experts

      148.     A person who, apart from this subsection, would under subsection 146(1) be liable, by reason of his having given a consent required of him by section 145, as a person who has authorised the issue of a prospectus, in respect of an untrue statement purporting to be made by him as an expert is not so liable if he proves that —

                  (a)        having given his consent under section 145 to the issue of the prospectus, he withdrew it in writing before a copy of the prospectus was lodged with the Registrar;

                  (b)        after a copy of the prospectus was lodged with the Registrar and before any allotment, issue or sale of securities under the prospectus, he, on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal and of the reasons for the withdrawal; or

                  (c)        he was competent to make the statement and that he had reasonable grounds to believe, and did until the time of the allotment, issue or sale of the securities under the prospectus believe, that the statement was true.

Indemnification of persons incorrectly named

      149.     Where —

                  (a)        a prospectus in relation to a corporation contains the name of a person as a director of the corporation, or as having agreed to become a director, and that person has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorised or consented to the issue of the prospectus; or

                  (b)        the consent of a person is required under section 145 to the issue of a prospectus and he has not given that consent or has withdrawn it before the issue of the prospectus,

the directors of the corporation (except any of them without whose knowledge or consent the prospectus was issued) and any other person who authorised or caused the issue of the prospectus are jointly and severally liable to indemnify the person so named or whose consent was so required against all damages, costs and expenses to which he is liable —

                  (c)        by reason of his name having been so inserted in the prospectus;

                  (d)       by reason of the inclusion in the prospectus of a statement purporting to be made by him as an expert; or

                  (e)        in defending an action or other legal proceeding brought against him by reason of his name having been so inserted in the prospectus or the inclusion in the prospectus of such a statement.


 

Criminal liability for untrue statement or non-disclosure

      150.     (1)        Where in a prospectus there is an untrue statement or non-disclosure, each person who authorised or caused the issue of the prospectus is guilty of an offence unless he proves —

                  (a)        that the statement or non-disclosure was immaterial:

                  (b)        that he had reasonable grounds to believe, and did until the time of the issue of the prospectus believe, that that the statement was true or that the non-disclosure was immaterial; or

                  (c)        where there was in the prospectus a non-disclosure - that the non-disclosure was inadvertent.

      Penalty:           200 penalty units or imprisonment or both.

                  (2)        For the purposes of subsection (1), if a statement is contained in a report or memorandum that appears on the face of, or is issued with, a prospectus, or is incorporated by reference in a prospectus, whether the reference occurs in the prospectus or in some other document, the statement shall be deemed to be in the prospectus.

                  (3)        A person shall not be taken for the purposes of this section to have authorised or caused the issue of a prospectus by reason only of his having given the consent required by this Part to the inclusion in the prospectus of a statement purporting to be made by him as an expert.

PART 6  —  RESTRICTIONS ON ALLOTMENT OF SHARES AND VARIATION OF CONTRACTS

Prohibition of allotment unless minimum subscription received

      151.     (1)        A company shall not make an allotment of shares in the company that have been offered to the public or in respect of which an invitation has been issued to the public unless —

                  (a)        the minimum subscription has been subscribed; and

                  (b)        the company has received the sum payable on application for the shares so subscribed.

                  (2)        For the purposes of subsection (1), where a company has, whether before or after the commencement of this Act, received a cheque for the sum payable on application for an allotment of shares in the company, the sum shall be deemed not to have been received by the company until the cheque has been paid by the bank on which it is drawn.

                  (3)        In ascertaining for the purposes of subsection (1) whether the minimum subscription has been subscribed in relation to an allotment of shares, there shall, in respect of each share for the allotment of which an application has been made, be deemed to have been subscribed an amount equal to —

                  (a)        the nominal value of that share; or

            (b)        if the share is, or is to be, issued at a premium - the sum of the nominal value of the share and  the amount of the premium payable on the share,

less any amount payable otherwise than in cash.

                  (4)        The amount payable on application for each share that has been offered to the public or in respect of which an invitation has been issued to the public shall be not less than 5% of the nominal amount of the share.

Repayment of subscriptions

      152.     (1)        If the conditions referred to in paragraphs 151(1)(a) and (b) have not been satisfied on the expiration of 4 months after the issue of the prospectus, the company is liable to repay, as provided by this section, all money received from applicants for shares.

                  (2)        Where a company is liable under subsection (1) to repay money received from applicants for shares —

                  (a)        the money shall be repaid without interest within 7 days after the company becomes so liable; and

                  (b)        if the money is not repaid within 7 days after the company becomes so liable —

                              (i)   the directors of the company are, subject to subsection (3), jointly and severally liable to repay the money with interest at the rate of 8% per annum (or if another rate is prescribed, at that other rate) calculated from the expiration of the period of 7 days; and

                              (ii)  each director of the company is guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

                  (3)        A director is not liable under subparagraph (2)(b)(i), and is not guilty of an offence under subparagraph (2)(b)(ii), if he proves that the default in the repayment of the money was not due to misconduct or negligence on his part.

Allotment voidable at applicant’s option

      153.     (1)        An allotment made by a company to an applicant in contravention of section 151 is voidable at the option of the applicant and is so voidable notwithstanding that the company is in the course of being wound up.

                  (2)        An option referred to in subsection (1) is exercisable by notice in writing served on the company —

                  (a)        in the case of an allotment made by a company that is not required to hold a statutory meeting - within one month after the date of the allotment; and

                  (b)        in the case  an allotment made by a company that is required to hold a statutory meeting —

                              (i)   if the company holds the statutory meeting within the period required by this Act - within one month after the date of the allotment or of the holding of the statutory meeting, whichever is the later; or

                              (ii)  if the company fails to hold the statutory meeting within that period - within one month after the expiration of that period or the date of the allotment, whichever is the later.

Certain conditions void

      154.     A condition requiring or binding an applicant for shares to waive compliance with any requirement of this Part, or purporting to do so, is void.

Securities not to issue after 6 months

      155.     A company shall not allot or issue, and an officer or promoter of a company or a proposed company shall not authorise or permit to be allotted or issued, securities on the basis of a prospectus after the expiration of 6 months from the issue of the prospectus.

      Penalty:           25 penalty units or imprisonment or both.

Validity of allotment

      156.     Where an allotment or issue of securities is made on the basis of a prospectus after the expiration of 6 months from the issue of the prospectus, the allotment is not, by reason only of that fact, voidable or void.

Liability of directors for contravention

      157.     (1)        A director of a company who knowingly contravenes, or permits or authorises a contravention of, any of the provisions of this Part is guilty of an offence and is liable, in addition to the penalty or punishment for the offence, to compensate the company and any person to whom an allotment has been made in contravention of this Part for any loss, damages or costs that the company or the person has sustained or incurred by reason of the allotment.

                  (2)        Proceedings for the recovery of any such compensation shall not be commenced after the expiration of 2 years from the date of the allotment.

Application moneys to be held in trust until allotment

      158.     (1)        Where, whether before or after the commencement of this Act, securities have been offered to the public or invitations have been issued to the public in respect of securities, all application moneys and other moneys paid, whether before or after the commencement of this Act, by an applicant on account of the securities before their allotment or issue shall, until the allotment or issue is made, be held by the company in trust for the applicant in a bank account established and kept by the company solely for the purpose of depositing application moneys and other moneys paid by applicants for those securities.

                  (2)        A bank is not under an obligation or duty to inquire into or see to the proper application of moneys deposited with it as mentioned in subsection (1) so long as the bank acts in good faith.

                  (3)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

Restriction on varying contracts referred to in prospectus

      159.     A company shall not, before the statutory meeting, vary the terms of a contract referred to in the prospectus unless the variation is made subject to the approval of the statutory meeting.

PART 7 — SHARES AND SHARE CAPITAL

Division 1 — General Provisions with Respect to Shares

Returns as to allotments

      160.     (1)        Where a company makes an allotment of its shares, or shares in a company are to be deemed under subsection (4) to have been allotted, the company shall, within one month after the allotment is made or is to be deemed to have been made, lodge with the Registrar a return stating —

                  (a)        the number and nominal amounts of the shares comprised in the allotment;

                  (b)        the amount (if any) that has been paid or is to be deemed to have been paid or is due and payable on the allotment of each share;

                  (c)        where the capital of the company is divided into shares of different classes - the class of shares in which each share comprised in the allotment is included; and

                  (d)       subject to subsection (2), the full name, or the surname and at least one Christian or given name and other initials, and the address of each allottee and the number and class of shares allotted to him.

                  (2)        The particulars mentioned in paragraph 1(a) need not be included in a return where a company to which subsection 330(1) applies —

                  (a)        has allotted shares for cash; or

                  (b)        has allotted shares for a consideration other than cash and the number of persons to whom the shares have been allotted exceeds 500.

                  (3)        Where shares in a company are alloted, or are to be deemed to have been allotted, as fully or partly paid up otherwise than in cash and the allotment is made pursuant to a contract in writing, the company shall lodge with the return a certified copy of the contract and shall, at the same time, produce the original contract to the Registrar.

                  (4)        Where shares in a company are allotted, or are to be deemed to have been allotted, as fully or partly paid up otherwise than in cash and the allotment is made —

                  (a)        pursuant to a contract not reduced to writing;

                  (b)        pursuant to a provision in the memorandum or articles of the company;

                  (c)        in satisfaction of a dividend declared in favour of, but not payable in cash to, the shareholders; or

                  (d)       pursuant to the application of moneys held by the company in an account or reserve in paying up or partly paying up unissued shares to which the shareholders have become entitled,

the company shall lodge with the return a statement containing particulars of the allotment.

                  (5)        For the purposes of this section, shares in a company that the subscribers to the memorandum have agreed in the memorandum to take shall be deemed to have been allotted to those subscribers on the date of the incorporation of the company.

                  (6)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

Differences in calls and payments, reserve liability, etc

      161.     (1)        A company, if so authorised by its articles, may —

                  (a)        on the issue of shares - make arrangements for varying the amounts and times of payment of calls as between shareholders;

                  (b)        accept from a member the whole or part of the amount remaining unpaid on shares although no part of that amount has been called up; and

                  (c)        where different amounts are paid up on different shares - pay dividends in proportion to the amount paid up on each share.

                  (2)        A limited company may, by special resolution, determine that a portion of its share capital that has not already been called up is not capable of being called up except in the event and for the purposes of the company being wound up.

                  (3)        Where such a resolution is passed, the portion of the company’s share capital to which the resolution relates is not capable of being called up except in the event and for the purposes of the company being wound up.

                  (4)        The resolution does not affect rights acquired by a person before the passing of the resolution.

Share warrants

      162.     (1)        A company shall not issue a share warrant but share warrants issued under the repealed laws remain in force as though this Act had not been enacted.

                  (2)        The bearer of a share warrant may surrender it to the company in exchange for a corresponding share certificate and the company shall enter his name in the register of members of the company.

                  (3)        If the bearer of a share warrant issued on or after 1 September 1985 has not, on or before 31 August 1986, surrendered it for a share certificate, the share warrant ceases to have effect and the bearer of it ceases to be a shareholder of the company.

Restrictions on application of capital

      163.     (1)        Except as provided by section 164, a company shall not apply any of its shares or capital money, either directly or indirectly, in making a payment to a person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for shares in the company, whether the shares are or the money is so applied by being added to the purchase price of property acquired by the company or to the contract price of work to be executed for the company or the money is paid out of the nominal purchase price or contract price or otherwise.

                  (2)        Without limiting the generality of subsection (1), except as provided by section 165, a company shall not issue shares at a discount.

                  (3)        If a company contravenes this section, the company is, notwithstanding section 660, not guilty of an offence against this Act but each officer of the company who is in default is guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

                  (4)        Where —

                  (a)        a person is convicted of an offence under this section in relation to a company; and

                  (b)        the court by which he was convicted is satisfied that the company has suffered loss or damage as a result of the act that constituted the offence,

that court may, in addition to imposing a penalty, order the convicted person to pay compensation to the company of such amount as that court specifies and the order may be enforced as if it were a judgment of that court.

                  (5)        Where a contravention of this section has taken place —

                  (a)        if a person other than the company concerned, being a person who was, at the time of the contravention, aware of the matters constituting the contravention, has made a profit as a result of the contravention, the company may, whether or not that person or some other person has been convicted of an offence under subsection (3) in relation to the contravention, recover from the person as a debt due to the company by action in a court of competent jurisdiction an amount equal to the profit; and

                  (b)        where the company concerned has suffered loss or damage as a result of the contravention - the company may recover an amount equal to the loss or damage from a person who is in default, whether or not that person or some other person has been convicted of an offence under subsection (3) in relation to the contravention, as a debt due to the company by action in a court of competent jurisdiction.

Power to pay brokerage or commission

      164.     (1)        Subject to subsection (2), a company may make a payment by way of brokerage or commission to a person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for shares in the company or procuring or agreeing to procure subscriptions, whether absolute or conditional, for shares in the company if —

                  (a)        the payment is not prohibited by the memorandum or articles;

                  (b)        the amount of the proposed payment, or the rate at which the payment is proposed to be made, is disclosed in the prospectus in respect of the shares or, if there is no such prospectus, in a statement lodged with the Registrar before the company becomes liable to make the payment; and

                  (c)        the number of shares for which persons have agreed, for a payment by way of brokerage or commission, to subscribe absolutely is set out in that prospectus or statement.

                  (2)        Subsection (1) does not permit a company to make a payment by way of brokerage or commission in respect of shares in the company if —

                  (a)        the amount of the payment; or

                  (b)        some other payment or other payments by way of brokerage or commission has or have been made by the company in respect of those shares, the sum of the amount of the first-mentioned payment and of the other payment or payments,

exceeds —

                  (c)        10% of the total of the amount payable in respect of the shares upon their allotment; or

                  (d)       such amount (if any), or an amount calculated at such rate (if any), as is authorised by the articles,

whichever is the less.

                  (3)        A vendor to or promoter of a company or person who receives payment in money or shares from a company may apply a part of the money or shares so received in making a payment that would, if it were made directly by the company, be lawful under this section.

Issue of shares at a discount

      165.     (1)        Subject to this section, a company may issue at a discount shares included in a class of shares already issued if —

                  (a)        the issue of the shares at a discount —

                              (i)   is authorised by a resolution passed in general meeting of the company; and

                              (ii)  is confirmed by an order of the Court;

                  (b)        the resolution specifies the maximum rate of discount at which the shares are to be issued;

                  (c)        the shares are issued within one month after the date on which the issue is confirmed by order of the Court or within such extended time as the Court allows; and

                  (d)       the shares are first offered to each holder of shares in the company of that class in proportion to the number of shares of that class held by him.

                  (2)        The Court may make an order confirming the issue on such terms and conditions as are just.

                  (3)        A prospectus relating to the issue of the shares shall contain particulars of the discount allowed or of so much of that discount as has not been written off at the date of the issue of the prospectus.

                  (4)        If default is made in complying with subsection (3), the company and any officer of the company who is in default are each guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

                  (5)        An offer made for the purposes of paragraph (1)(d) shall be made by notice specifying the number of shares to which the member is entitled and specifying a period, being not less than 28 days from the date of the notice, within which the offer may be accepted.

                  (6)        If an offer in respect of shares made in accordance with subsection (5) is not accepted within the period specified in the notice, the shares may be issued on terms not more favourable than those offered to the shareholders.

Issue of shares at a premium

      166.     (1)        Where a company issues shares for which a premium is received by the company, whether in cash or in the form of other valuable consideration, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account to be called the “Share Premium Account”, and the provisions of this Act relating to the reduction of the share capital of a company, other than subsection 172(2), apply, subject to this section, as if the amount to the credit of the Share Premium Account were paid-up share capital of the company.

                  (2)        An amount to the credit of the Share Premium Account may be applied —

                  (a)        in paying up unissued shares to be issued to members of the company as fully paid shares;

                  (b)        in paying up in whole or in part the balance unpaid on shares previously issued to members of the company;

                  (c)        in the payment of dividends that are to be satisfied by the issue of shares;

                  (d)       in writing off —

                              (i)   the preliminary expenses of the company; or

                              (ii)  the expenses of, or the payment made in respect of or discount allowed on, an issue of securities of the company; or

                  (e)        in providing for the premium payable on redemption of debentures or redeemable preference shares.

                  (3)        Where an amount is applied as mentioned in subsection (2), the amount to the credit of the account shall be reduced accordingly.

Issue of redeemable preference shares

      167.     (1)        Subject to this section, a company having a share capital may, if so authorised by its articles, issue preference shares that are, or at the option of the company are to be, liable to be redeemed.

                  (2)        The redemption of shares so issued shall not be taken to reduce the authorised share capital of the company.

                  (3)        Shares so issued shall not be redeemed —

                  (a)        unless they are fully paid-up;

                  (b)        except on such terms and in such a manner as are provided by the articles; and

                  (c)        except out of profits that would otherwise be available for dividends or out of the proceeds of a fresh issue of shares made for the purposes of the redemption.

                  (4)        The premium (if any) payable on redemption shall be provided for out of profits or out of the Share Premium Account.

                  (5)        Where redeemable preference shares are redeemed otherwise than out of the proceeds of a fresh issue of shares, there shall, out of profits that would otherwise have been available for dividends, be transferred to a an account to be called the “Capital Redemption Reserve” a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company, other than subsection 172(2), apply, except as provided by this section, as if the amount to the credit of the Capital Redemption Reserve were paid-up share capital of the company.

                  (6)        Where, pursuant to this section, a company has redeemed or is about to redeem preference shares, it may issue shares up to the aggregate of the nominal values of the shares redeemed or to be redeemed as if those preference shares had never been issued.

                  (7)        The Capital Redemption Reserve may be applied in paying up unissued shares of the company to be issued to members of the company as fully-paid shares.

                  (8)        Where a company redeems redeemable preference shares, it shall, within 14 days after so doing, lodge with the Registrar a notice relating to the shares redeemed.

                  (9)        Shares shall be taken to have been redeemed notwithstanding that a cheque given in payment of the amount payable upon redemption of the shares has not been presented for payment.

                  (10)      If a company fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

Alteration of share capital

      168.     (1)        A company may, if so authorised by its articles, by resolution passed in general meeting, alter the provisions of its memorandum in any one or more of the following ways:

                  (a)        by increasing its share capital by the creation of new shares of such amount as is specified in the resolution;

            (b)        by consolidating and dividing all or any of its share capital into shares of larger amount than its existing shares;

                  (c)        by converting, or providing for the conversion of, all or any of its paid-up shares into stock or re-converting, or providing for the reconversion of, that stock into paid-up shares of any denomination;

                  (d)       by subdividing its shares or any of them into shares of smaller amount than is fixed by the memorandum, but so that, in the subdivision, the proportion between the amount paid and the amount (if any) unpaid on each share of a smaller amount is the same as it was in the case of the share from which the share of smaller amount is derived;

                  (e)        by cancelling shares that, at the date of the passing of the resolution to that effect, have not been taken or agreed to be taken by a person or have been forfeited and by reducing the amount of the company's share capital by the amount of the shares so cancelled.

                  (2)        An alteration made as mentioned in subsection (1) takes effect on the date of the resolution or on such later date as is specified in the resolution.

                  (3)        A cancellation of shares under this section shall be deemed not to be a reduction of share capital.

                  (4)        An unlimited company having a share capital may, by a resolution passed for the purposes of subsection 97(1), do either or both of the following:

                  (a)        increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital may be called up except in the event and for the purposes of the company being wound up;

                  (b)        provide that a specified portion of its uncalled share capital may not be called up except in the event and for the purposes of the company being wound up.

Validation of improper issue of shares

      169.     (1)        Where a company has purported to issue or allot shares and —

                  (a)        the creation, issue or allotment of those shares is invalid by reason of a provision of this Act or of the memorandum or articles of the company or for other reason; or

                  (b)        the terms of the purported issue or allotment are inconsistent with or are not authorised by such a provision,

the Court may, upon application made by the company, by a holder or mortgagee of any of those shares or by a creditor of the company and upon being satisfied that in all the circumstances it is just to do so, make an order —

                  (c)        validating the purported issue or allottment of those shares; or

                  (d)       confirming the terms of the purported issue or allotment of the shares,

or both.

                  (2)        The company shall lodge an office copy of an order made under subsection (1) with the Registrar, and, when the order is lodged, the shares to which the order relates shall be deemed to have been validly issued or allotted upon the terms of the issue or allotment of the shares.

Special resolution for reduction of share capital

      170.     (1)        Subject to confirmation by the Court, a company may, if so authorised by its articles, by special resolution reduce its share capital in any way.

                  (2)        In particular, the company may do all or any of the following:

                  (a)        extinguish or reduce the liability on any of its shares in respect of share capital not paid up;

                  (b)        cancel any paid-up share capital that has been lost or is not represented by available assets;

                  (c)        pay off any paid-up share capital that is in excess of the needs of the company,

and may, so far as necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.

                  (3)        A reduction in the paid-up share capital of a company does not of itself operate to reduce the nominal share capital of the company.

Objections by creditors

      171.     (1)        Where a proposed reduction of share capital involves either diminution of liability in respect of unpaid share capital or the payment to a shareholder of paid-up share capital, and in any other case if the Court so directs —

                  (a)        each creditor of the company who, at the date fixed by the Court, is entitled to a debt or claim that, if that date were the date of commencement of the winding up of the company, would be admissible in proof against the company, is entitled to object to the reduction;

                  (b)        the Court shall, unless it is satisfied on affidavit that there are no such creditors, settle a list of the names of creditors entitled to object and, for that purpose shall ascertain as far as possible, without requiring an application from any creditor, the names of those creditors and the nature and amount of their debts or claims and may publish notices fixing a final day on or before which creditors whose names are not entered on the list may claim to be so entered; and

                  (c)        where a creditor whose name is entered on the list, and whose debt has not been discharged or whose claim has not determined, does not consent to the reduction, the Court may dispense with the consent of that creditor subject to the company securing payment of his debt or claim by appropriating as the Court directs —

                              (i)   if the company admits the full amount of the debt or claim or, though not admitting it, is willing to provide for it - the full amount of the debt or claim; or

                              (ii)  if the company does not so admit and is not so willing or if the amount is contingent or not ascertained - an amount fixed by the Court after the like inquiry and adjudication as if the company were being wound up by the Court.

                  (2)        The Court may, having regard to any special circumstances, direct that all or any of the provisions of subsection (1) shall not apply in respect of creditors included in a particular class of creditors.

Confirmation of reduction

      172.     (1)        The Court may, if satisfied with respect to each creditor who under subsection 171(1) is entitled to object, that —

                  (a)        his consent to the reduction has been obtained;

                  (b)        his debt has been discharged or secured; or

                  (c)        his claim has determined or has been secured,

make an order confirming the reduction on such terms and conditions as are just.

                  (2)        The order shall show —

                  (a)        the amount of the share capital of the company as altered by the order;

                  (b)        the number of shares into which the share capital is to be divided;

                  (c)        the amount of each share; and

                  (d)       any amount that at the date of the order is to be deemed to be paid up on each share.

Retrospective effect

      173.     A company shall not act upon a resolution for the reduction of share capital before the date on which a certified copy of the resolution and an office copy of the order of the Court have been lodged with the Registrar but such a resolution may specify a date, earlier than the first-mentioned date but not earlier than the date of the resolution, as the date from which the reduction of capital is to have effect.

Certificate of Registrar

      174.     A certificate of the Registrar stating that a certified copy of the resolution and an office copy of the order made under subsection 172(1) have been registered by the Registrar is conclusive evidence that all the requirements of this Act with respect to reduction of share capital have been complied with in respect of the company and that the matters referred to in subsection 172(1) are as stated in the order.

Deemed alteration of memorandum

      175.     Upon lodgement of a copy of an order as mentioned in section 173, the particulars shown in the order pursuant to section 172 shall be deemed to be substituted for the corresponding particulars in the memorandum and the substitution shall be deemed to be an alteration of the memorandum for the purposes of this Act.

Liability of members where creditor unaware of proceedings

      176.     (1)        A member of a company, past or present, is not liable in respect of a share in the company to a call or contribution that exceeds the amount by which the amount of the share as fixed by an order made under section 172 exceeds the amount paid, or the reduced amount (if any) that is to be deemed to have been paid, on the share, as the case may be.

                  (2)        Subject to subsection (3), where the name of a creditor who is entitled under subsection 171(1) to object to a reduction is, by reason of his not being aware of the proceedings for reduction or of their nature and effect with respect to his claim, not entered on the lists of creditors, and after the reduction the company is unable, in accordance with of the provisions of this Act with respect to winding up by the Court, to pay the amount of his debt or claim —

                  (a)        each person who was a member of the company at the date of the registration of the office copy of the order for reduction is liable to contribute for the payment of that debt or claim an amount not exceeding the amount that he would have been liable to contribute if the company had commenced to be wound up on the day before that date; and

                  (b)        if the company is wound up, the Court, on the application of such a creditor and on proof of his not being aware of the proceedings for reduction or of their nature and effect with respect to his claim, may, settle accordingly a list of the names of persons liable to contribute by reason of paragraph (a) and make and enforce calls and orders on the contributories whose names are included in the list as if they were ordinary contributories in a winding up.

                  (3)        Subsection (1) does not affect the rights of the contributories among themselves.


 

Offences

      177.     An officer of a company who —

                  (a)        knowingly conceals the name of a creditor entitled to object to a reduction in the share capital of the company; or

                  (b)        knowingly misrepresents the nature or amount of the debt or claim of a creditor of the company,

is guilty of an offence.

      Penalty:           100 penalty units or imprisonment, or both.

Certain benefits not reduction of capital

      178.     (1)        The granting by a company to a member of the company of a right to occupy or use land, or a building or part of a building, owned or held under lease by the company, whether for consideration or not, shall not be taken to be a reduction of the share capital of the company if it is made pursuant to a provision of the memorandum or articles of the company, whether the provision provides for consideration to be given for it or not.

                  (2)        Subsection (1) applies whether the grant is by way of lease, under-lease, licence or otherwise, and whether or not, in the case of a grant in respect of a building or part of a building, the grant also entitles the member to a right of use of a garage, outbuilding or other structure or of a passage, stairway or convenience of a building or of land appurtenant to the building or part of the building.

Unlimited companies

      179.     Sections 170 to 178 (inclusive) do not apply to an unlimited company but this Act does not prevent an unlimited company from reducing in any way its share capital, including an amount at the credit of its Share Premium Account.

Registrar to be informed of special rights

      180.     (1)        Where a company allots shares to which are attached rights that are not provided for in the memorandum or articles of the company or in a resolution or document to which section 316 applies, the company shall, unless the rights attached to the shares are in all respects the same as the rights attached to shares previously allotted, lodge with the Registrar, within one month after the allotment of the shares, a statement relating to those rights.

                  (2)        Where —

                  (a)        shares in a company that were not previously divided into classes are so divided; or

                  (b)        shares in a company that are of one class are converted into shares of another class,

the company shall, within one month after the division or conversion, lodge with the Registrar a statement showing particulars of the division or conversion.

                  (3)        If a company contravenes this section, the company and any officer of the company who is in default are each guilty of an offence.

Rights of holders of classes of shares

      181.     (1)        This section applies to a company that has a share capital that is divided into classes of shares.

                  (2)        Where —

                  (a)        rights are attached to shares included in a class of shares;

                  (b)        provision is not made by the memorandum or articles for the variation or abrogation of those rights; and

                  (c)        those rights are not declared by the memorandum or articles to be unalterable,

the company may, with the consent in writing of the holders of three-quarters of the issued shares included in that class or with the sanction of a special resolution passed at a meeting of the holders of those shares, vary or abrogate those rights or alter the memorandum or articles so as to authorise the variation or abrogation of those rights.

                  (3)        Where —

                  (a)        rights are attached to shares included in a class of shares; and

                  (b)        provision is made by the memorandum or articles authorising the variation or abrogation of those rights with the consent of a particular proportion of the holders of the issued shares included in that class or with the sanction of a resolution of a kind specified in the memorandum or articles passed at a meeting of the holders of those shares,

the memorandum or articles shall not be altered so as to vary or abrogate, or authorise the variation or abrogation, of those rights except with the consent of that proportion of the holders of those shares or with the sanction of such a resolution passed at a meeting of the holders of those shares.

                  (4)        Where rights are attached to shares included in a class of shares and —

                  (a)        those rights are at any time varied or abrogated; or

                  (b)        the memorandum is, or the articles are, altered so as to authorise the variation or abrogation of those rights,

the holders of not less than 10% in the aggregate of the issued shares included in that class may apply to the Court to have the variation or abrogation of the rights, or the alteration of the memorandum or articles, as the case may be, set aside and, if such an application is made, the variation or abrogation, or the alteration, does not have effect until confirmed by the Court.

                  (5)        An application under subsection (4) shall be made within 28 days after the variation, abrogation or alteration referred to in that subsection was made and may be made, on behalf of the shareholders entitled to make the application, by such one or more of their number as they appoint in writing.

                  (6)        On the application, the Court may, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested, if it is satisfied that the variation, abrogation or alteration would unfairly prejudice the members of the class represented by the applicant, set aside the variation, abrogation or alteration and shall, if not so satisfied, confirm it.

                  (7)        A company shall, within 14 days after the making of an order by the Court on an application under this section, lodge an office copy of the order with the Registrar and, if the company fails to comply with this provision, the company and any officer of the company who is in default are each guilty of an offence.

                  (8)        For the purposes of this section, the allotment by a company of preference shares ranking equally with existing preference shares shall be deemed to be a variation of the rights attached to those existing preference shares unless the allotment of the first-mentioned shares was authorised by the terms of allotment of the existing preference shares or by the memorandum or articles in force at the time when the existing preference shares were allotted.

                  (9)        Section 101 or 107 does not affect the operation of this section.

Rights of holders of shares

      182.     (1)        This section applies to a company that has a share capital that is not divided into classes of shares.

                  (2)        Where —

                  (a)        rights are attached to shares in a company;

                  (b)        no provision is made by the memorandum or articles for the variation or abrogation of those rights; and

                  (c)        those rights are not declared by the memorandum or articles to be unalterable,

the company may, with the consent in writing of the holders of three-quarters of the issued shares in the company or with the sanction of a special resolution passed at a meeting of the holders of those shares, vary or abrogate those rights or alter the memorandum or articles so as to authorise the variation or abrogation of those rights.

                  (3)        Where —

                  (a)        rights are attached to shares in a company; and

                  (b)        provision is made by the memorandum or articles authorising the variation or abrogation of those rights with the consent of a particular proportion of the holders of the issued shares in the company or with the sanction of a resolution of a kind specified in the memorandum or articles passed at a meeting of the holders of those shares,

the memorandum or articles shall not be altered so as to vary or abrogate, or to authorise the variation or abrogation of, those rights, except with the consent of that proportion of the holders of those share or with the sanction of such a resolution passed at a meeting of the holders of those shares.

                  (4)        Where rights are attached to shares in a company and —

                  (a)        those rights are at any time varied or abrogated; or

                  (b)        the memorandum is or the articles are altered so as to authorise the variation or abrogation of those rights,

the holders of not less than 10% of the issued shares in the company may apply to the Court to have the variation or abrogation of the rights, or the alteration of the memorandum or articles, as the case may be, set aside and, if such an application is made, the variation or abrogation, or the alteration, does not have effect until confirmed by the Court.

                  (5)        An application under subsection (4) shall be made within 28 days after the variation, abrogation or alteration was made and may be made, on behalf of the shareholders entitled to make the application, by such one or more of their numbers as they appoint in writing.

                  (6)        On the application, the Court may, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested, if it is satisfied that the variation, abrogation or alteration would unfairly prejudice the shareholders of the company, set aside the variation, abrogation or alteration and shall, if not so satisfied, confirm it.

                  (7)        A company shall, within 14 days after the making of an order by the Court on an application under this section, lodge an office copy of the order with the Registrar and, if the company fails to comply with this provision, the company and any officer of the company who is in default are each guilty of an offence.


 

                  (8)        For the purposes of this section —

                  (a)        the allotment by a company of shares to which are attached rights that are not provided for in the memorandum or articles of the company or in a resolution or document to which section 316 applies shall be deemed to be a variation of the rights attached to shares previously issued unless the rights attached to the first-mentioned shares are in all respects the same as the rights attached to shares previously issued; and

                  (b)        the division of shares in a company into classes of shares shall be deemed to be a variation of the rights attached to those shares unless, in relation to each share in the company, the rights attached to that share are in all respects the same after the division as they were before the division.

                  (9)        Section 101 or 107 does not affect the operation of this section.

Rights of classes of members

      183.     (1)        This section applies to a company that does not have a share capital.

                  (2)        Where —

                  (a)        members of a company included in a class of members have special rights;

                  (b)        provision is not made by the memorandum or articles for the variation or abrogation of those rights; and

                  (c)        those rights are not declared by the memorandum or articles to be unalterable,

the company may, with the consent in writing of three-quarters of the members included in that class or with the sanction of a special resolution passed at a meeting of members included in that class, vary or abrogate those rights or alter the memorandum or articles so as to authorise the variation or abrogation of those rights.

                  (3)        Where —

                  (a)        members of the company included in a class of members have special rights;  and

                  (b)        provision is made by the memorandum or articles authorising the variation or abrogation of those rights with the consent of a particular proportion of the members included in that class or with the sanction of a resolution of a kind specified in the memorandum or articles passed at a meeting of the members included in that class,

the memorandum or articles shall not be altered so as to vary or abrogate, or to authorise the variation or abrogation of, those rights, except with the consent of that proportion of the members included in that class or with the sanction of such a resolution passed at a meeting of those members.

                  (4)        Where members of the company included in a class of members have special rights and —

                  (a)        those rights are varied or abrogated;  or

                  (b)        the memorandum is or the articles are altered so as to authorise the variation or abrogation of those rights,

members included in that class who constitute not less than 10% in the aggregate of the members included in that class may apply to the Court to have the variation or abrogation of the rights, or the alteration of the memorandum or articles, as the case may be, set aside and, if such an application is made, the variation, abrogation or alteration does not have effect until confirmed by the Court.

                  (5)        An application under subsection (4) shall be made within 28 days after the variation, abrogation or alteration was made and may be made, on behalf of the members entitled to make the application, by such one or more of their number as they appoint in writing.

                  (6)        On the application, the Court may, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested, if it is satisfied that the variation, abrogation or alteration would unfairly prejudice the members of the class represented by the applicant, set aside the variation, abrogation or alteration, and shall, if not so satisfied, confirm it.

                  (7)        A company shall, within 14 days after the making of an order by the Court on an application under this section, lodge an office copy of the order with the Registrar and, if the company fails to comply with this provision, the company and any officer of the company who is in default are each guilty of an offence.

                  (8)        Section 101 or 107 does not affect the operation of this section.

Rights of holders of preference shares to be set out in memorandum or articles

      184.     (1)        A company shall not allot preference shares or convert issued shares into preference shares unless there are set out in the memorandum or articles the rights of the holders of those preference shares with respect to repayment of capital, participation in surplus assets and profits, cumulative or non-cumulative dividends, voting and priority of payment of capital and dividend in relation to other shares or other classes of preference shares.

                  (2)        If a company contravenes this section, the company and any officer of the company who is in default are each guilty of an offence.

Register of options

      185.     (1)        A company shall keep a register of options granted to persons to take unissued shares in the company.

                  (2)        The company shall, within 14 days after the grant of such an option, enter in the register the following particulars:

                  (a)        the name and address of the holder of the option;

                  (b)        the date on which the option was granted;

                  (c)        the number and description of the shares in respect of which the option was granted;

                  (d)       the period during which, the time at which or the occurrence upon the happening of which the option may be exercised;

                  (e)        the consideration (if any) for the grant of the option;

                  (f)        the consideration (if any) for the exercise of the option or the manner in which that consideration is to be ascertained or determined;

                  (g)        such other particulars are prescribed.

                  (3)        The register is evidence of a matter inserted in the register as required or authorised by this Act.

                  (4)        The register shall be open for inspection —

                  (a)        by a member of the company - without charge; and

                  (b)        by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

                  (5)        A person may request a company to furnish him with a copy of the register or of part of the register and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar  approves; or

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Registrar approves.

                  (6)        A company shall keep, at the place where the register is kept, a copy of each instrument by which an option to take up unissued shares in the company is granted and, for the purposes of subsections (4) and (5), those copies shall be deemed to be part of the register.

                  (7)        Notwithstanding subsection (6), a company is not required to keep a copy of an instrument by which an option has been granted if the option has been granted official quotation by a stock exchange.

                  (8)        Failure by a company to comply with any of the provisions of this section in relation to an option does not affect any rights in respect of the option.

                  (9)        If default is made by complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

Options over unissued shares

      186.     (1)        An option granted by a public company that enables a person to take up unissued shares in the company after a period of 5 years has elapsed from the date on which the option was granted is void.

                  (2)        Subsection (1) does not apply where the holders of debentures of a company have an option to take up shares in the company by way of redemption of the debentures.

Payment of interest out of capital in certain cases

      187.     (1)        Where shares in a company are issued for the purpose of raising money to defray the expenses of the construction of works or buildings or the provision of plant that cannot be made profitable for a long period, the company may pay interest on so much of that share capital as is for the time being paid up and charge the interest so paid to capital as part of the cost of the construction or provision.

                  (2)        Such a payment shall not be made unless it is —

                  (a)        authorised by the articles or by special resolution; and

                  (b)        approved by the Court.

                  (3)        Before approving the payment, the Court may, at the expense of the company, appoint a person to inquire into and report as to the circumstances and may require the company to give security for the payment of the costs of the inquiry.

                  (4)        The payment shall be made for such period only as the Court determines but that period shall not in any case extend beyond a period of 12 months after the works or buildings have been completed or the plant has been provided.

                  (5)        The rate of interest shall not exceed 8% per annum or, if another rate is prescribed, that other rate.

                  (6)        The payment of the interest does not operate as a reduction of the amount paid up on the shares in respect of which it is paid.

Division 2 —  Company Dealing in its Shares

References to acquisition

      188.     A reference in this Division to an acquisition or proposed acquisition of shares or units of shares is a reference to an acquisition or proposed acquisition by way of purchase, subscription or otherwise.

Company financing dealings in its shares

      189.     (1)        Except as otherwise provided by this Act, a company shall not —

                  (a)        whether directly or indirectly, in any way, give financial assistance for the purpose of, or in connection with —

                              (i)   the acquisition by a person, whether before, or at the same time as, the giving of the financial assistance, of shares or units of shares in the company or in a holding company of the company;  or

                              (ii)  the proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company;

                  (b)        whether directly or indirectly, in any way —

                              (i)   acquire shares or units of shares in the company; or

                              (ii)  purport to acquire shares or units of shares in a holding company of the company; or

                  (c)        whether directly or indirectly, in any way, lend money on the security of —

                              (i)   shares or units of shares in the company;  or

                              (ii)  shares or units of shares in a holding company of the company.

                  (2)        A reference in this section to the giving of financial assistance includes a reference to the giving of financial assistance by means of the making of a loan, the giving of a guarantee, the provision of security, the release of an obligation or the forgiving of a debt.

                  (3)        For the purposes of this section, if —

                  (a)        a company has given financial assistance for purposes that included a purpose referred to in paragraph(1)(a); and

                  (b)        the purpose so referred to was a substantial purpose of the giving of the financial assistance,

the company shall be taken to have given the financial assistance for the purpose so referred to.

                  (4)        For the purposes of this section, if, when financial assistance was given to a person, the company was aware that the financial assistance would financially assist —

                  (a)        the acquisition by a person of shares or units of shares in the company or in its holding company; or

                  (b)        where shares in the company had already been acquired - the payment by a person of any unpaid amount of the subscription payable for the shares or of any premium payable in respect of the shares, or the payment of any calls on the shares,

the company shall be deemed to have given financial assistance in connection with an acquisition or proposed acquisition referred to in paragraph (1)(a).

                  (5)        If a company contravenes subsection (1), the company is, notwithstanding section 660, not guilty of an offence but each officer of the company who is in default is guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

Order for compensation

      190.     (1)        Where —

                  (a)        a person is convicted of an offence under subsection 189(5);

                  (b)        the court by which he is convicted is satisfied that the company or some other person has suffered loss or damage as a result of the contravention that constituted the offence,

that court may, in addition to imposing a penalty under that subsection, order the convicted person to pay compensation to the company or other person of such amount as the court specifies, and the order may be enforced as if it were a judgment of the court.

                  (2)        The power of a court under section 617 to relieve a person to whom that section applies, wholly or partly and on such terms as the court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection (2) from the liability to have such an order made against him.

Exclusions from operation of subsection 189(1)

      191.     (1)        Subsection 189(1) does not prohibit —

                  (a)        the payment of a dividend by a company in good faith and in the ordinary course of its affairs;

                  (b)        a payment made by a company pursuant to a reduction of capital in accordance with section 170;

                  (c)        the discharge by a company of a liability of the company that was incurred in good faith as a result of a transaction entered into on ordinary commercial terms;

                  (d)       where a corporation is a borrowing corporation by reason that it is or will be under a liability to repay moneys received or to be received by it —

                              (i)   the giving, in good faith and in the ordinary course of commercial dealing, by a company that is a subsidiary of the borrowing corporation, of a guarantee in relation to the repayment of those moneys, whether or not the guarantee is secured by charge over property of that company;  or

                              (ii)  the provision, in good faith and in the ordinary course of commercial dealing, by a company that is a subsidiary of the borrowing corporation, of security in relation to the repayment of those moneys;

                  (e)        an acquisition by a company of an interest (other than a legal interest) in fully-paid shares in the company where no consideration is provided by the company, or by a corporation that is related to the company, for the acquisition;

                  (f)        the purchase by a company of shares in the company pursuant to an order of a court;

                  (g)        the creation or acquisition, in good faith and in the ordinary course of commercial dealing, by a company of a lien on shares in the company (other than fully-paid shares) for an amount payable to the company in respect of the shares;  or

                  (h)        the entering into, in good faith and in the ordinary course of commercial dealing, of an agreement by a company with a subscriber for shares in the company that permits the subscriber to make payments for the shares (including payments in respect of a premium) by instalments.

                  (2)        Subsection (1) —

                  (a)        does not imply that a particular act of a company would, but for that subsection, be prohibited by subsection 189(1); or

                  (b)        does not limit the operation of a rule of law that permits the giving of financial assistance by a company, the acquisition of shares or units of shares by a company or the lending of money by a company on the security of shares.

Further exclusions from operation of subsection 189(1)

      192.     Subsection 189(1) does not prohibit —

                  (a)        the making of a loan, the giving of a guarantee or the provision of security by a company in the ordinary course of its ordinary business where —

                              (i)   that business includes the lending of money, or the giving of guarantees or the provision of security in connection with loans made by other persons;  and

                              (ii)  the loan that is made by the company, or, where the guarantee is given or the security is provided in respect of a loan, that loan, is made on ordinary commercial terms as to the rate of interest, the terms of repayment of principal and payment of interest, the security to be provided and otherwise;  or

                  (b)        the giving by a company of financial assistance for the purpose of, or in connection with, the acquisition or proposed acquisition of fully-paid shares or units of fully-paid shares in the company or in a holding company of the company to be held by or for the benefit of employees of the company or of a corporation that is related to the company, including a director holding a salaried employment or office in the company or in the corporation, as the case may be, where —

                              (i)   neither subparagraph (ii) nor subparagraph (iii) applies - the company has at a general meeting;

                              (ii)  the company is a subsidiary of a listed corporation or listed corporations - the company and the listed corporation or listed corporations have at general meetings;  or

                              (iii) the company is not a subsidiary of a listed corporation but is a subsidiary whose ultimate holding company is incorporated in a State or Territory, including Norfolk Island - the company and the ultimate holding company have at general meetings,

approved a scheme for the provision of money for such acquisitions and the financial assistance is given in accordance with the scheme.


 

Authorisation by special resolution

      193.     Subsection 189(1) does not prohibit the giving by a company of financial assistance for the purpose of, or in connection with, an acquisition or proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company if —

                  (a)        the company, by special resolution, resolves to give financial assistance for the purpose of, or in connection with, that acquisition;

                  (b)        where —

                              (i)   the company is a subsidiary of a listed corporation;  or

                              (ii)  the company is not a subsidiary of a listed corporation but is a subsidiary whose ultimate holding company is incorporated in Australia or in Norfolk Island,

the listed corporation or the ultimate holding company, as the case may be, has, by special resolution, approved the giving of the financial assistance;

                  (c)        the notice specifying the intention to propose the resolution referred to in paragraph (a) as a special resolution set out —

                              (i)   particulars of the financial assistance proposed to be given and the reasons for the proposal to give that assistance; and

                              (ii)  the effect that the giving of the financial assistance would have on the financial position of the company and, where the company is included in a group of corporations consisting of a holding company and a subsidiary or subsidiaries, the effect that the giving of the financial assistance would have on the financial position of the group of corporations,

and was accompanied by a copy of a statement made in accordance with a resolution of the directors, setting out the names of any directors who voted against the resolution and the reasons why they so voted, and signed by not less than 2 directors, stating whether, in the opinion of the directors who voted in favour of the resolution, after taking into account the financial position of the company (including future liabilities and contingent liabilities of the company), the giving of the financial assistance would be likely to prejudice materially the interests of the creditors or members of the company or the persons included in a class of those creditors or members;

                  (d)       the notice specifying the intention to propose the resolution referred to in paragraph (b) as a special resolution was accompanied by a copy of the notice and by a copy of the statement referred to in paragraph (c);

                  (e)        not later than the day next following the day when the notice referred to in paragraph (c) was dispatched to members of the company there was lodged with the Registrar a copy of that notice and a copy of the statement that accompanied that notice;

                  (f)        the notice referred to in paragraph (c) and a copy of the statement referred to in that paragraph were given to —

                              (i)   all members of the company;

                              (ii)  all trustees for debenture holders of the company;  and

                              (iii) if there are no trustees for, or for a particular class of, debenture holders of the company - all debenture holders, or all debenture holders included in that class, as the case may be, of the company whose names were, at the time when the notice was dispatched, known to the company;

                  (g)        the notice referred to in paragraph (d) and the accompanying documents were given to —

                              (i)   all members of the listed corporation or of the ultimate holding company;

                              (ii)  all trustees for debenture holders of the listed corporation or of the ultimate holding company;  and

                  (iii) if there are no trustees for, or for a particular class of, debenture holders of the listed corporation or of the ultimate holding company - all debenture holders or debenture holders included in that class, as the case may be, of the listed corporation or of the ultimate holding company whose names were, at the time when the notice was dispatched, known to the listed corporation or the ultimate holding company;

                  (h)        within 21 days after the general meeting of the company at which the resolution referred to in paragraph (a) was passed or, in a case to which paragraph (b) applies, the general meeting of the listed corporation or ultimate holding company at which the resolution referred to in that paragraph was passed, whichever is the later, a notice —

                              (i)   setting out the terms of the resolution referred to in paragraph (a); and

                              (ii)  stating that any of the persons referred to in section 195 may, within the period referred to in that subsection, make an application to the Court opposing the giving of the financial assistance,

                              was published as the Registrar directs;

                  (i)         no application opposing the giving of the financial assistance was made within the period referred to in section 195 or, if such an application or applications has or have been made, the application or each of the applications has been withdrawn or the Court has approved the giving of the financial assistance;  and

                  (j)         the financial assistance is given in accordance with the terms of the resolution referred to in paragraph (a) and not earlier than —

                              (i)   in a case to which subparagraph (ii) or (iii) does not apply - the expiration of the period referred to in section 195;

                              (ii)  if an application or applications has or have been made to the Court within that period and the application or each of the applications has been withdrawn - the withdrawal of the application or of the last of the applications to be withdrawn;  or

                              (iii) the application or each of the applications has not been withdrawn - the decision of the Court on the application or applications.

Substantial compliance

      194.     Where, on application to the Court by a company, the Court is satisfied that the provisions of section 193 have been substantially complied with in relation to a proposal by the company to give financial assistance of a kind mentioned in that section, the Court may, by order, declare that the provisions of that section have been complied with in relation to the proposal.

Application to Court opposing assistance

      195.     (1)        Where a special resolution referred to in paragraph 193(a) is passed by a company, an application to the Court opposing the giving of the financial assistance to which the special resolution relates may be made, within the period of 21 days after the publication of the notice referred to in paragraph 193(h), by —

                  (a)        a member of the company;

                  (b)        a trustee for debenture holders of the company;

                  (c)        a debenture holder of the company;

                  (d)       a creditor of the company;

                  (e)        if the company is included in a group of corporations consisting of a holding company and a subsidiary or subsidiaries —

                              (i)   a member of that subsidiary or of any of those subsidiaries; 

                              (ii)  a trustee for debenture holders of that subsidiary or of any of those subsidiaries;

                              (iii) a debenture holder of that subsidiary or of any of those subsidiaries; or

                              (iv) a creditor of that subsidiary or of any of those subsidiaries;

                  (f)        if paragraph 193(b) applies —

                              (i)   a member of the listed corporation or ultimate holding company that passed a special resolution referred to in that paragraph;

                              (ii)  a trustee for debenture holders of that listed corporation or ultimate holding company;

                              (iii) a debenture holder of that listed corporation or ultimate holding company;  or

                              (iv) a creditor of that listed corporation or ultimate holding company; or

                  (g)        the Registrar.

                  (2)        The Court —

                  (a)        shall, in determining what order or orders to make in relation to an application or applications under subsection (1), have regard to the rights and interests of the members of the company or of the members included in a class of members as well as to the rights and interests of the creditors of the company or of the creditors included in a class of creditors; and

                  (b)        shall not make an order approving the giving of the financial assistance unless the Court is satisfied that —

                              (i)   the company has disclosed to the members of the company all material matters relating to the proposed financial assistance; and

                              (ii)  the proposed financial assistance would not, after taking into account the financial position of the company (including any future or contingent liabilities) be likely to prejudice materially the interests of the creditors or members of the company or of the persons included in a class of those creditors or members,

and may do all or any of the following:

                  (c)        make an order for the purchase by the company of the interests of dissentient members of the company and for the reduction accordingly of the capital of the company;

                  (d)       adjourn the proceedings in order that an arrangement may be made to the satisfaction of the Court for the purchase (otherwise than by the company or by a subsidiary of the company) of the interests of dissentient members;

                  (e)        give ancillary or consequential directions and make ancillary or consequential orders;

                  (f)        make an order disapproving the giving of the financial assistance or, subject to paragraph (b), an order approving the giving of the financial assistance.

                  (3)        Where the Court makes an order under this section, the company shall, within 14 days after the order is made, lodge with the Registrar an office copy of the order.

Directors’ duties not affected

196.           The passing of a special resolution by a company for the giving of financial assistance by the company for the purpose of, or in connection with, an acquisition or proposed acquisition of shares or units of shares in the company or in the holding company of the company, and the approval by the Court of the giving of the financial assistance, does not relieve a director of the company of a duty to the company under this Act or otherwise, whether of a fiduciary nature or not, in connection with the giving of the financial assistance.

Existing contracts

      197.     If the doing of an act or thing pursuant to a contract entered into before the commencement of this Act would have been lawful if this Act had not been enacted, this Division does not apply in relation to the doing of that act or thing.

Consequences of company financing dealings in its shares, etc

      198.     (1)        Except as provided by this section —

                  (a)        the validity of a contract or transaction is not affected by a contravention of paragraph 189(1)(a);

                  (b)        the validity of a contract or transaction is not affected by a contravention of paragraph 189(1)(b) unless the contract or transaction affects the acquisition that constitutes the contravention; and

                  (c)        the validity of a contract or transaction is not affected by a contravention of paragraph 189(1)(c) unless the contract or transaction affects the loan the making of which constitutes the contravention.

                  (2)        Where a company makes or performs a contract, or engages in a transaction, that would, but for subsection (1), be invalid by reason that —

                  (a)        the contract was made or performed, or the transaction was engaged in, in contravention of section 189; or

                  (b)        the contract or transaction is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of that section,

the first-mentioned contract or transaction is, subject to the following provisions of this section, voidable at the option of the company by notice in writing given to the other party, or by notices in writing given to each of the other parties, to that contract or transaction.

                  (3)        The Court may, on the application of a member of a company, a holder of debentures of a company, a trustee for the holders of debentures of a company or a director of a company, by order, authorise the member, holder of debentures, trustee or director to give a notice or notices under subsection (2) in the name of the company.

                  (4)        Where —

                  (a)        a company makes or performs a contract or engages in a transaction;

                  (b)        the contract is made or performed, or the transaction is engaged in, in contravention of section 189 or the contract or transaction is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of that section;  and

                  (c)        the Court is satisfied, on the application of the company or of some other person, that the company or that other person has suffered, or is likely to suffer, loss or damage as a result of —

                              (i)   the making or performance of the contract or the engaging in of the transaction;

                              (ii)  the making or performance of a related contract or the engaging in of a related transaction;

                              (iii) the contract or transaction being void by reason of section 189 or having become void, or becoming void, under this section;  or

                              (iv) a related contract or transaction being void by reason of section 189 or having become void, or becoming void, under this section,

the Court may make such order or orders as are just (including all or any of the orders mentioned in subsection (5) against a party to the contract or transaction or to the related contract or transaction, or against the company or against a person who aided, abetted, counselled or procured, or was, by act or omission, in any way, directly or indirectly, knowingly concerned in or party to the contravention.

                  (5)        The orders that may be made under subsection (4) include —

                  (a)        an order directing a person to refund money or return property to the company or to some other person;

                  (b)        an order directing a person to pay to the company or to some other person a specified amount not exceeding the amount of the loss or damage suffered by the company or person; and

                  (c)        an order directing a person to indemnify the company or some other person against loss or damage that the company or person may suffer as a result of the contract or transaction or as a result of the contract or transaction being or having become void.

Certificates of compliance

      199.     If a certificate signed by not less than 2 directors, or by a director and a secretary, of a company stating that the requirements of paragraphs 193(1)(a) to (i), inclusive, have been complied with in relation to the proposed giving by the company of financial assistance for the purposes of an acquisition or proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company is given to a person —

                  (a)        that person is not under any liability to have an order made against him under subsection 198(4) by reason of a contract made or performed, or a transaction engaged in, by him in reliance on the certificate; and

                  (b)        such a contract or transaction is not valid, and is not voidable under subsection 198(2), by reason that the contract was made or performed, or the transaction was engaged in, in contravention of this Division or is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of this Division.

Persons with knowledge

      200.     (1)        If the Court, on application by the company concerned or by some other person who has suffered, or is likely to suffer, loss or damage as a result of the making or performance of the contract or the engaging in of the transaction, or the making or performance of a related contract or the engaging in of a related transaction, by order, declares that it is satisfied that a person to whom a certificate was given under section 199 became aware before the contract was made or the transaction was engaged in that the requirements of section 193 had not been complied with in relation to the financial assistance to which the certificate related, then that section does not apply in relation to the person.

                  (2)        For the purposes of subsection (1), a person shall, in the absence of proof to the contrary, be deemed to have been aware at a particular time of a matter of which a servant or agent of the person having duties or acting on behalf of the person in relation to the relevant contract or transactions was aware at the time.

Effect of certificates

      201.     In a proceeding —

                  (a)        a document purporting to be a certificate given under section 199 shall, in the absence of proof to the contrary, be deemed to be such a certificate and to have been duly given; and

                  (b)        a person who has possession of a certificate given under section 199 shall, in the absence of proof to the contrary, be deemed to be the person to whom the certificate was given.

 

Offence in relation to certificates

      202.     (1)        If a person signs a certificate stating that the requirements of section 193 have been complied with in relation to the proposed giving by a company of financial assistance and any of those requirements had not been complied with in respect of the proposed giving of that assistance at the time when the certificate was signed by that person, the person is guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

                  (2)        It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that at the time when he signed the certificate he believed on reasonable grounds that all the requirements of section 193 had been complied with in respect of the proposed giving of financial assistance to which the certificate related.

Power to grant relief

      203.     The power of a court under section 617 to relieve a person to whom that section applies, wholly or partly and on such terms as the court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection 198(4) from the liability to have such an order made against him.

Certain contracts, etc to be deemed to be related

      204.     If a company makes a contract or engages in a transaction under which it gives financial assistance as mentioned in paragraph 189(1)(a) or lends money as mentioned in paragraph 189(1)(c), a contract or transaction made or engaged in as a result of or by means of, or in relation to, that financial assistance or money shall be deemed for the purposes of this Division to be related to the first-mentioned contract or transaction.

Effect on other rights and liabilities

      205.     (1)        Any rights or liabilities of a person under a section to which this subsection applies (including rights or liabilities under an order made by the Court under such a section) are in addition to and not in derogation of any rights or liabilities of that person apart from this section but, where there would be any inconsistency between the rights and liabilities of a person under a section to which this subsection applies or under an order made by the Court under such a section and the rights and liabilities of that person apart from this subsection, the provisions of this subsection or of the order made by the Court prevail.

                  (2)        The sections to which subsection (1) applies are sections 199 to 204 (inclusive).

PART 8 — NOTIFICATION OF SHAREHOLDINGS IN COMPANIES

Transfers to be notified

      206      (1)        Where a company registers a transfer of shares in the company, the company shall lodge with the Registrar a statement giving particulars of the transfer, including —

                  (a)        the names and addresses of the transferor and of the transferee;

                  (b)        the number and class of shares transferred; and

                  (c)        the date of registration of the transfer.

                  (2)        The statement shall be lodged within 28 days after the date on which the transfer was registered.

                  (3)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

                  (4)        In this section, “transfer” includes an instrument of transmission and “transferor” and “transferee” have corresponding meanings.

Notification of interests in shares

      207.     (1)        A person who is a shareholder in a company shall give to the company a notice that states —

                  (a)        his name and address;

                  (b)        the prescribed particulars of the shares in the company in which the person or an associate of the person has a relevant interest or relevant interests, including, unless the interest or interests cannot be related to a particular share or shares, the name of the person who is registered as the holder;

                  (c)        the prescribed particulars of each such interest; and

                  (d)       the prescribed particulars of any contract, scheme or arrangement, or any other circumstances, by reason of which the person or the associate acquired that interest or has that interest.

                  (2)        The person shall furnish the prescribed documents to the company with the notice.

                  (3)        A person required to give a notice under subsection (1) shall give the notice within 7 business days after that person becomes a shareholder in the company.

                  (4)        The notice shall be so given notwithstanding that the person has ceased to be a shareholder before the expiration of the period referred to in subsection (3).

Notification of change in interests

      208.     (1)        Where there is a change (not being a prescribed change) in the relevant interest or relevant interests of a shareholder in a company, or in the relevant interest or relevant interests of a person who is associated with a shareholder in a company, in shares in the company, the shareholder shall give to the company a notice that states —

                  (a)        his name;

                  (b)        whether the change is a change in a relevant interest of a person who is associated with the shareholder, and if so, the name of the person;

                  (c)        the date of the change and the prescribed particulars of the change; and

                  (d)       the prescribed particulars of any contract, scheme or arrangement, or any other circumstances, by reason of which the change has occurred.

                  (2)        The person shall furnish the prescribed documents to the company with the notice.

                  (3)        A person required to give a notice under subsection (1) shall give the notice within 7 business days after that person becomes aware of the change.

                  (4)        For the purposes of subsection (1), where a person acquires or disposes of shares in a company, there shall be deemed to be a change in the relevant interest or relevant interests of the person in shares in that company.

Notification by person who ceases to be shareholder

      209.     (1)        A person who ceases to be a shareholder in a company shall give to the company a notice that states —

                  (a)        his name;

                  (b)        the date on which he ceased to be a shareholder; and

                  (c)        the prescribed particulars of any contract, scheme or arrangement, or any other circumstances, by reason of which the person ceased to be a shareholder.

                  (2)        The person shall furnish the prescribed documents to the company with the notice.

                  (3)        A person required to give a notice under subsection (1) shall give the notice within 7 business days after he ceases to be a shareholder in the company.

References to operation of section 27

      210.     The circumstances required to be stated in a notice under this Part include circumstances by reason of which, having regard to the provisions of section 27 —

                  (a)        a person has a relevant interest in shares;

                  (b)        a change has occurred in a relevant interest in shares; or

                  (c)        a person has ceased to be a shareholder in a company.

Registrar may extend period for giving notice

      211.     (1)        The Registrar may, on the application of a person who is required to give a notice under this Part, in his discretion, extend, or further extend, the period for giving the notice.

                  (2)        An application for an extension under subsection (1) may be made, and the power of the Registrar under that subsection may be exercised, notwithstanding that the period concerned has expired.

Company not to be taken to have notice

      212.     A company is not, by reason of anything done under this Part —

                  (a)        to be taken for any purpose to have notice of; or

                  (b)        put upon inquiry as to,

a right of a person to or in relation to a share in the company.

Offences

      213.     A person who fails to comply with section 207, 208 or 209 is guilty of an offence.

      Penalty:           110 penalty units or imprisonment or both.

Powers of Court with respect to defaulting shareholders

      214.     (1)        Where a person (in this section referred to as “the shareholder”) is, or at some time after the commencement of this Act has been, a shareholder in a company and has failed to comply with a provision of this Part, the Court may, on the application of the Registrar or of the company, whether or not that failure still continues, make such orders as are just, including one or more of the following orders:

                  (a)        an order restraining the shareholder, or a person who is associated with the shareholder, from disposing of, or of an interest in, shares in the company, being shares to which the shareholder is entitled;

                  (b)        an order restraining a person who is, or is entitled to be registered as, the holder of shares in the company to which the shareholder is or has been entitled from disposing of, or of an interest in, those shares;

                  (c)        an order restraining the exercise of voting or other rights attached to shares in the company to which the shareholder is or has been entitled;

                  (d)       an order vesting in the Registrar shares in the company to which the shareholder is or has been entitled or an interest in any such shares;

                  (e)        an order directing the company not to make payment, or to defer making payment, of any sum or sums due from the company in respect of shares to which the shareholder is or has been entitled;

                  (f)        an order directing the disposal of, or of an interest in, shares in the company to which the shareholder is or has been entitled;

                  (g)        an order directing the company not to register the transfer or transmission of specified shares;

                  (h)        an order that an exercise of the voting or other rights attached to specified shares in the company to which the shareholder is or has been entitled be disregarded;

                  (j)         for the purposes of securing compliance with some other order made under this section, an order directing the company or some other person to do or refrain from doing a specified act.

                  (2)        Where, at the hearing of an application under this section, the Court is satisfied that —

                  (a)        a person is entitled to shares in a company by reason that another person who is an associated with the first-mentioned person has a relevant interest in those shares; and

                  (b)        that other person became entitled to that relevant interest within the period of 6 months immediately before the filing of the application with the Court,

then, in determining for the purposes of the application whether the first-mentioned person failed to comply with a provision of this Part, the proof to the satisfaction of the Court of the matters mentioned in paragraphs (a) and (b) of this subsection constitutes evidence that the other person was, for the purposes of section 208, associated with the first-mentioned person from the time when that other person became entitled to that relevant interest until the date of the hearing.

                  (3)        An order under this section may include such ancillary or consequential provisions as the Court thinks just.

                  (4)        An order under this section directing the disposal of, or of an interest in, a share may provide that the disposal shall be made within such time and subject to such conditions as the Court orders, including, if the Court thinks fit, a condition that the disposal shall not be made to a person who is, or, as a result of the disposal, would become, a shareholder in the company.

                  (5)        The Court may direct that, where a share or interest in a share is not disposed of in accordance with an order of the Court under this section, the share or interest shall vest in the Registrar.

                  (6)        The Court shall not make an order under subsection (1) unless it is satisfied that the order would not unfairly prejudice any person.

                  (7)        The Court shall not make an order under this section, other than an order referred to in paragraph (1)(c) or (g), if it is satisfied —

                  (a)        that the failure of the shareholder to comply as mentioned in subsection (1) was due to his inadvertence or mistake or to his not being aware of a relevant fact or occurrence; and

                  (b)        that, in the circumstances, the failure ought to be excused.

                  (8)        The Court may, before making an order under this section, direct that notice of the application be given to such persons as the Court specifies or direct that notice of the application be published in such manner as the Court specifies, or both.

                  (9)        The Court may rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

                  (10)      A person who contravenes or fails to comply with an order under this section that is applicable to him is guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

                  (11)      Where an offence under subsection (10) is committed by a corporation, each officer of the corporation who is in default is guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

                  (12)      Where a share or an interest in a share vests in the Registrar by virtue of an order under subsection (1) or of a direction under subsection (5) —

                  (a)        the Registrar may, subject to any directions of the Court, get in, sell or otherwise dispose of, or deal with, the share or interest as he sees fit;

                  (b)        the provisions of section 564 (other than subsection 564(1)) apply in relation to the share or interest as if —

                              (i)   a reference in those provisions to the power of the Administration under subsection 564(1), or to the power conferred upon the Administration by subsection 564(1), were a reference to the power conferred on the Registrar by paragraph (a) of this subsection;

                              (ii)  a reference in those provisions to property, or to an estate or interest in property, were a reference to the share or interest; and

                              (iii) the reference in subsection 564(4) to a power conferred on the Administration by Subdivision F of Division 4 of Part 22 included a reference to the power conferred on the Registrar by paragraph (a) of this subsection; and

                  (c)        sections 565 and 566 apply in relation to the share or interest in like manner as they apply in relation to property vested in the Registrar.

PART 9 — DEBENTURES

Definition

      215.     In this Part —

      “debenture” means a debenture, debenture stock, bonds, notes and any other security given by a corporation, whether constituting a charge on property of the corporation or not, but does not include —

                  (a)        an order for the payment of money;

                  (b)        a bill of exchange or a cheque: or

                  (c)        a promissory note that has a face value of not less than $150,000;

      “guarantor corporation”, in relation to a borrowing company, means —

                  (a)        a guarantor corporation that is not a subsidiary  of that borrowing corporation; and

                  (b)        a guarantor corporation the directors of which have been given notice under section 231 by the trustee for debenture holders of the borrowing corporation of which the guarantor corporation is a subsidiary.

Register of debenture holders and copies of trust deed

      216.     (1)        A company that issues debentures shall keep a register of holders of debentures.


                  (2)        A company that is registered as a foreign company under Part 25 shall, if it issues debentures, keep a register of holders of debentures that have been —

                  (a)        issued pursuant to an application in which an address in Norfolk Island was specified as the address of the applicant for debentures; or

                  (b)        issued pursuant to an application made on a form of application attached to a prospectus a copy of which was registered under this Act.

                  (3)        A register kept by a company (including a foreign company) pursuant to this section shall contain particulars of the names and addresses of debenture holders and the respective amounts of debentures held by them.

                  (4)        A register kept by a company (including a foreign company) pursuant to this section shall be open for inspection —

                  (a)        by the registered holder of a debenture of the company or by a member of the company - without charge; and

                  (b)        by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

                  (5)        For the purposes of this section, a register shall be deemed to be duly closed if closed in accordance with provisions contained in the articles, in the debentures or debenture stock certificates, or in the trust deed or other document relating to or securing the debentures, during such periods (not exceeding in the aggregate 30 days in a calendar year) as are specified in those provisions.

                  (6)        A registered holder of debentures of, or a holder of shares in, a company (including a foreign company) may request the company or foreign company to furnish him with a copy of its register of the holders of debentures kept pursuant to this section or a part of that register.

                  (7)        A registered holder of debentures of a company (including a foreign company) may request the company to furnish him with a copy of any trust deed relating to or securing the issue of those debentures.

                  (8)        A person may request a company (including a foreign company) to furnish him with a copy of the register or of a part of the register and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar allows; or

                  (b)        in any other case, within 21 days after the request was made or within such longer period as the Registrar allows.

                  (9)        The Registrar may at any time, by notice in writing require a company (including a foreign company) to furnish to the Registrar a copy of any trust deed relating to the issue or securing the issue of debentures of the company and, in that case, the company shall furnish the copy within 21 days after the day on which it receives the notice.

                  (10)      If default is made in complying with this section, the company concerned and any officer of the company who is in default are each guilty of an offence.

Branch registers

      217.     (1)        A company incorporated in Norfolk Island may cause to be kept in a place outside Norfolk Island a branch register of holders of debentures.

                  (2)        A branch register so kept shall be deemed to be part of the register of holders of debentures kept by the company.

                  (3)        A branch register shall be kept in the same manner as that in which the principal register is by this Act required to be kept.

                  (4)        A company shall transmit to the place at which its principal register is kept a copy of each entry in its branch register within 28 days after the entry is made, and shall cause to be kept at that place, duly entered up from time to time, a duplicate of its branch register, and the duplicate branch register shall, for the purposes of this Act, be deemed to be part of the principal register.

                  (5)        Subject to the provisions of this section with respect to the duplicate branch register, the debentures registered in a branch register shall be distinguished from the debenture registered in the principal register and a transaction with respect to debentures registered in a branch register shall not, during the continuance of that registration, be registered in any other register.

                  (6)        A company may discontinue a branch register and thereupon the company shall transfer all entries in that register to some other branch register kept by the company or to the principal register.

                  (7)        A branch register is evidence of matters that are by this section directed or authorised to be inserted in that register.

                  (8)        If default is made in complying with this section, the company or any officer of the company who is in default, and any person who has arranged with the company to make up a branch register on behalf of the company and is in default, are each guilty of an offence.

                  (9)        In this section —

      “branch register”, in relation to a company, means a branch register of holders of debentures issued by the company that is kept pursuant to this section;

      “principal register”, in relation to a company, means the register of holders of debentures issued by the company that is kept pursuant to section 216.

Specific performance of contracts

      218      A contract with a company to take up and pay for debentures of the company may be enforced by an order for specific performance.

Perpetual debentures

      219.     (1)        A condition contained in a debenture or in a deed for securing debentures, whether the debenture or deed is issued or made before or after the commencement of this Act, is not invalid by reason only that the debenture, by the condition, is made irredeemable or redeemable only on the happening of a contingency however remote or on the expiration of a period however long.

                  (2)        Subsection (1) has effect notwithstanding any rule or principle of law or of equity to the contrary.

Re-issue of redeemed debentures

      220.     (1)        Where a company has redeemed debentures, whether before or after the commencement of this Act —

                  (a)        unless a provision to the contrary, whether express or implied, is contained in the articles or in a contract entered into by the company; or

                  (b)        unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled, the company has, and shall be deemed always to have had, power to re-issue the debentures, either by re-issuing the same debentures or by issuing other debentures in their place.

                  (2)        The re-issue of a debenture or the issue of one debenture in place of another under subsection (1), whether the re-issue or issue was made before or after the commencement of this Act, shall not be taken to be as the issue of a new debenture for the purpose of any provision limiting the amount or number of debentures that may be issued by the company.

                  (3)        After the re-issue of debentures, the person entitled to the debentures has, and shall be deemed always to have had, the same priorities as if the debentures had not been redeemed.

                  (4)        Where a company has, whether before or after the commencement of this Act, deposited any of its debentures to secure advances on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit while the debentures remained so deposited.

Qualifications of trustee for debenture holders

      221.     (1)        Subject to this section, a company that —

                  (a)        invites the public to subscribe for or purchase debentures or offers debentures to the public for subscription or purchase; or

                  (b)        offers debentures as consideration for the acquisition of shares in a company,

shall make provision in a trust deed relating to those debentures for the appointment as a trustee for the holders of those debentures of a corporation (in this section referred to as a “trustee corporation”), being —

                  (c)        a person constituted as the Public Trustee in a State or in a Territory other than Norfolk Island;

                  (d)       a corporation authorised by a law of a State or of a Territory other than Norfolk Island to take in its own name a grant of probate of the will, or of letters of administration of the estate, of a deceased person;

                  (e)        a corporation registered under the Life Insurance Act 1945 of the Commonwealth;

                  (f)        a banking corporation;

                  (g)        a corporation (in this paragraph referred to as “the subsidiary”) the whole of the issued shares of which are held beneficially by a corporation or corporations of a kind referred to in paragraph (d), (e) or (f) (in this paragraph referred to as “the holding company”) if —

                              (i)   the holding company is liable for all liabilities incurred or to be incurred by the subsidiary as trustee for the holders of the debentures; or

                              (ii)  the holding company has subscribed for and beneficially holds shares in the subsidiary, being shares in respect of which there is a liability of not less than $500,000 that has not been called up and that, by reason of a special resolution of the members of the subsidiary, is not capable of being called up except in the event, and for the purposes, of the winding up of the subsidiary; or

            (h)        a corporation approved by the Registrar for the purposes of this subsection.

                  (2)        The approval of a corporation by the Registrar pursuant to paragraph (1)(h) —

                  (a)        may be given generally or in relation to a particular borrowing corporation, a particular class of borrowing corporations or a particular trust deed;

                  (b)        may be given subject to such terms and conditions as the Registrar specifies; and

                  (c)        may be varied or revoked by the Registrar.

                  (3)        Where the approval of a corporation has been revoked under subsection (2), the borrowing company shall appoint a trustee corporation qualified pursuant to this section in place of the trustee corporation that by reason of the revocation has ceased to be qualified.

                  (4)        Where a borrowing company is required by subsection (1) to make provision in a trust deed for the appointment of a trustee corporation as trustee for the holders of debentures, the borrowing company shall not issue any of those debentures until the trustee corporation has consented to act as trustee and the appointment has been made.

                  (5)        Except by leave of the Court, a trustee corporation shall not be appointed, hold office or act as trustee for the holders of debentures of a borrowing company if that trustee corporation is —

                  (a)        a director of the borrowing company;

                  (b)        a shareholder that beneficially holds shares in the borrowing company;

                  (c)        beneficially entitled to moneys owed to it by the borrowing company;

                  (d)       indebted (otherwise than in its capacity as a trustee) to the borrowing company in an amount exceeding $5,000;

                  (e)        a corporation that has entered into a guarantee in respect of the principal debt secured by the debentures or in respect of interest on that debt; or

                  (f)        a corporation that is related to —

                              (i)   a corporation of a kind referred to in any of the preceding paragraphs; or

                              (ii)  the borrowing company.

                  (6)        Subsection (5) does not prevent a trustee corporation from being appointed, holding office or acting as trustee by reason only that the borrowing company owes to the trustee corporation or to a corporation that is related to the trustee corporation —

                  (a)        moneys that (not taking into account any moneys referred to in paragraphs (b) or (c)) do not —

                              (i)   at the time of the appointment or at any time within a period of 3 months after the debentures were first offered to the public - exceed 10% of the amount of the debentures in respect of which invitations or offers to the public are proposed to be issued or made within that period; and

                              (ii)  at any time after the expiration of that period - exceed 10% of the amount owed by the borrowing company to the holders of the debentures;

                  (b)        moneys that are secured by, and only by —

                              (i)   a first mortgage over land of the borrowing company;

                              (ii)  debentures issued by the borrowing company to the public;

                              (iii) debentures not issued to the public that are issued pursuant to the same trust deed as that creating other debentures issued at any time by the borrowing company to the public; or

                              (iv) debentures to which the trustee corporation, or a corporation that is related to the trustee corporation, is not beneficially entitled; or

                  (c)        moneys to which the trustee corporation, or a corporation that is related to the trustee corporation, is entitled as trustee for the holder of debentures of the borrowing company in accordance with the terms of the debentures or of the relevant trust deed.

                  (7)        Subsection (5) does not prevent a trustee corporation from being appointed, holding office or acting as a trustee by reason only that the trustee corporation, or a corporation that is related to the trustee corporation, is a shareholder of the borrowing company in respect of shares that it beneficially holds, if the voting shares in the borrowing company beneficially held by the trustee corporation, and by all other corporations that are related to it, do not exceed 10% of the voting shares in the borrowing company.

                  (8)        The reference in subsection (1) to a company that offers debentures as consideration for the acquisition of shares in a company includes a reference to a company that offers a cash sum as consideration for the acquisition of shares where it is to be a term of the contract for the acquisition of those shares that the offeree make, or that the sum be applied in whole or in part in making, a payment by way of deposit with, or loan to, the company.

            (9)        If default is made in complying with any provision of this section, the borrowing company and any officer of the borrowing company who is in default are each guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

                  (10)      Notice of an approval, variation of an approval or revocation of an approval under this section shall be published in the Gazette.

Retirement of trustees

      222.     (1)        Notwithstanding anything contained in any law in force in Norfolk Island or in the relevant debentures or trust deed, a trustee for the holders of debentures does not cease to be the trustee until a corporation qualified as mentioned in section 221 for appointment as trustee for the holders of the debentures has been appointed for the holders of the debentures and has taken office as trustee.

                  (2)        Where provision has been made in the relevant trust deed for the appointment of a successor to a trustee for the holders of the debentures upon retirement or otherwise, the successor may, subject to section 221, be appointed in accordance with that provision.

                  (3)        Where no provision has been made in the relevant trust deed for the appointment of a successor to a retiring trustee, the borrowing company may appoint a successor qualified for appointment as mentioned in section 221.

                  (4)        Notwithstanding anything in this Act or in any debentures or trust deed, a borrowing corporation may, with the consent of an existing trustee for the holders of the debentures, appoint as successor to the existing trustee a corporation that is qualified for appointment as mentioned in section 221 and is related to the existing trustee.

                  (5)        Where —

                  (a)        the trustee for the holders of debentures has ceased to exist or to be qualified under section 221; and

                  (b)        a trustee for the holders of the debentures has not been appointed pursuant to subsection 221(3) or the trustee for the holders of debentures fails or refuses to act or is disqualified under section 221,

the Court may, on the application of the borrowing company, the trustee (if any) for the holders of the debentures, the holder of any of the debentures or the Registrar, appoint a corporation qualified as mentioned in section 221 to be the trustee for the holders of the debentures and, where appropriate, to be that trustee in place of the trustee that so ceased to exist or to be qualified, failed or refused to act as trustee or is disqualified.

                  (6)        Where a successor is appointed to be a trustee in place of a trustee, the successor shall, within one month after the appointment, lodge with the Registrar notice of the appointment.

Contents of trust deed

      223.     (1)        Where a company invites the public to subscribe for or purchase debentures or offers debentures to the public for subscription or purchase, the relevant trust deed shall contain a limitation on the amount that the company may borrow pursuant to that deed or those debentures and shall contain covenants by the company or, if the trust deed does not expressly contain those covenants, the trust deed shall be deemed to contain covenants by the company, to the effect —

                  (a)  that the company will use its best endeavours to carry on and conduct its business in a proper and efficient manner;

                  (b)        that the borrowing company will —

                              (i)   make available for inspection by the trustee for the holders of the debentures or registered company auditor appointed by that trustee the whole of the accounting or other records of the company; and

                              (ii)  give to it or him such information as it or he requires with respect to all matters relating to the accounting or other records of the company; and

                  (c)        that the company will, on the delivery to its registered office of an application by persons holding not less than 10% in nominal value of the issued debentures to which the covenant relates, by giving notice to each of the holders of the debentures to which the covenant relates (other than debentures payable to bearer) at his address as specified in the register of the holders of debentures, convene a meeting of the holders of those debentures to consider the accounts and balance-sheet that were laid before the last preceding annual general meeting of the company and to give to the trustee directions in relation to the exercise of the trustee’s powers, being a meeting to be held at a time and place specified in the notice under the chairmanship of a person nominated by the trustee or, if the trustee does not nominate a person to be the chairman, under the chairmanship of some other person appointed for the purpose by the holders of those debentures at the meeting.

                  (2)        A trust deed to which subsection (1) applies that is executed after the commencement of this Act shall contain covenants by each corporation that is a guarantor corporation in relation to the borrowing company, or, if the trust deed does not, or debentures do not, expressly contain those covenants, the trust deed or debentures shall be deemed to contain covenants by each guarantor corporation, to the effect —

                  (a)        that the guarantor corporation will use its best endeavours to carry on and conduct its business in a proper and efficient manner; and

                  (b)        that the guarantor corporation will —

                              (i)   make available for inspection by the trustee for the holders of the debentures or by a registered company auditor appointed by that trustee, the whole of the accounting or other records of the guarantor corporation; and

                              (ii)  give to it or him such information as it or he requires with respect to all matters relating to the accounting or other records of the guarantor corporation.

                  (3)        For the purposes of subsection (2), each guarantor corporation shall be deemed to be a party to the trust deed.

                  (4)        The reference in subsection (1) to a company that offers debentures as consideration for the acquisition of shares in a company includes a reference to a company that offers a cash sum as consideration for the acquisition of shares where it is to be a term of the contract for the acquisition of those shares that the offeree make, or that the sum be applied in whole or in part in making, a payment by way of deposit with, or loan to, the company.

                  (5)        Where a debenture is issued and the trust deed relating to the issue of the debenture does not expressly contain the limitation on the amount that the borrowing company may borrow and the covenants referred to in subsection (1), the company that issued the debenture and any officer of the corporation who is in default are each guilty of an offence.

                  (6)        Where a debenture is issued after the commencement of this Act and the trust deed relating to the issue of the debenture does not expressly contain the covenants referred to in subsection (2), the company that issued the debenture and any officer of the company who is in default are each guilty of an offence.

      Penalty:           25 penalty units or imprisonment or both.

                  (7)        Subsection (6) does not apply to a debenture lawfully issued pursuant to a trust deed executed before the commencement of this Act.

Power of Court in relation to certain irredeemable debentures

      224.     (1)        Notwithstanding anything in a debenture or trust deed, where, on the application of the trustee for the holders of debentures that are irredeemable or redeemable only on the happening of a contingency or, if there is no trustee, on the application of the holder of any such debentures, the Court is satisfied that —

                  (a)        at the time of the issue of the debentures, the property of the borrowing company that constituted or was intended to constitute the security for the debentures was sufficient or likely to become sufficient to discharge the principal debt and any interest on that debt;

                  (b)        the security, if realised under the circumstances existing at the time of the application, would be likely to bring not more than 60% of the principal sum of moneys outstanding (regard being had to any prior charges and charges ranking pari passu); and

                  (c)        the property subject to the security, on a fair valuation on the basis of a going concern after allowing a reasonable amount for depreciation, is worth less than the principal sum and the borrowing company is not making sufficient profit to pay the interest on the principal sum or, where no definite rate of interest is payable, interest on that sum at such rate as the Court considers would be a fair rate to expect from a similar investment,

the Court may order that the security may be enforced forthwith or at such time as the Court orders.

                  (2)        Subsection (1) does not affect a power to vary rights or to accept a compromise or arrangement created by the terms of the debentures or the relevant trust deed or under a compromise or arrangement between the borrowing company and its creditors.

Duties of trustees

      225.     (1)        A trustee for the holders of debentures —

                  (a)        shall exercise reasonable diligence to ascertain whether the property of the borrowing company and of each of its guarantor corporations that is or may be available, whether by way of security or otherwise, is sufficient, or is likely to be or become sufficient, to discharge the principal debt as and when it becomes due;

                  (b)        shall satisfy itself that each prospectus relating to the debentures does not contain matter that is inconsistent with the terms of the debentures or with the relevant trust deed;

                  (c)        shall ensure that the borrowing company and each of its guarantor corporations comply with the provisions of this Act relating to the registration of charges so far as they relate to the debentures and are applicable;

                  (d)       shall exercise reasonable diligence to ascertain whether the borrowing company or any of its guarantor corporations has committed a breach of the covenants, terms and provisions of the debentures or of the trust deed;

            (e)        except where it is satisfied that the breach will not materially prejudice the security (if any) for the debentures or the interests of the holders of the debentures - shall take all steps and do all such things as it is empowered to do to cause the borrowing company and any of its guarantor corporations to remedy a breach of those covenants, terms and provisions;

                  (f)        where the borrowing company or any of its guarantor corporations fails, when so required by the trustee, to remedy a breach of the covenants, terms and provisions of the debentures or the trust deed - may place the matter of the failure before a meeting of holders of the debentures, submit such proposals for the protection as the trustee considers necessary or appropriate and obtain the directions of the holders in relation to the matter; and

                  (g)        where the borrowing company submits to those holders a compromise or arrangement - shall give to them a statement explaining the effect of the compromise or arrangement and shall, if it thinks fit, recommend to them an appropriate course of action to be taken by them in relation to the compromise or arrangement.

                  (2)        Where, after due inquiry, the trustee for the holders of debentures at any time is of the opinion that the property of the borrowing company and of any of its guarantor corporations that is or should be available, whether by way of security or otherwise, is insufficient, or likely to become insufficient, to discharge the principal debt as and when it becomes due, the trustee may apply to the Registrar for an order under subsection (3).

                  (3)        The Registrar may, after giving the borrowing company an opportunity of making representations in relation to the application, by order in writing served on the company at its registered office, impose such restrictions on the activities of the company, including restrictions on advertising for deposits or loans and on borrowing by the company, as the Registrar thinks necessary for the protection of the interests of the holders of the debentures.

                  (4)        The Registrar may, and, if the borrowing company so requires, shall, direct the trustee to apply to the Court for an order under subsection (6) and the trustee shall apply accordingly.

                  (5)        Where —

                  (a)        after due inquiry, the trustee at any time is of the opinion that the property of the borrowing company and of any of its guarantor corporations that is or should be available, whether by way of security or otherwise, is insufficient or likely to become insufficient, to discharge the principal debt as and when it becomes due; or

                  (b)        the borrowing company has contravened or failed to comply with an order made by the Registrar under subsection (3),

the trustee may, and where the borrowing corporation has requested the trustee to do so, the trustee shall, apply to the Court for an order under subsection (6).

                  (6)        Where an application is made to the Court under subsection (4) or (5), the Court may, after giving the borrowing company an opportunity of being heard, by order, do all or any of the following:

                  (a)        direct the trustee to convene a meeting of the holders of the debentures for the purpose of placing before them such information relating to their interests and such proposals for the protection of their interests as the trustee considers necessary or appropriate and of obtaining their directions in relation to the protection of their interests and give such directions in relation to the conduct of the meeting as the Court specifies;

                  (b)        stay any action or other civil proceeding before the Court or the Court of Petty Sessions by or against the borrowing company;

                  (c)        restrain the payment of moneys by the borrowing company to the holders of debentures of the company or to the persons included in a class of such holders;

                  (d)       appoint a receiver of property that constitutes security for the debentures;

                  (e)        give such further directions from time to time as are appropriate or necessary to protect the interests of the holders of the debentures, of the members of the borrowing company or of any of its guarantor corporations or the public.

                  (7)        In making such an order the Court shall have regard to the rights of all creditors of the borrowing company.

                  (8)        The Court may vary or rescind any order made under subsection (6).

                  (9)        In making an application to the Registrar or to the Court, a trustee shall have regard to the nature and kind of any security given when the debentures were offered to the public and, if no security was given, shall have regard to the position of the holders of the debentures as unsecured creditors of the borrowing company.

Power of trustees to apply to the Court for directions, etc

      226.     (1)        The trustee for the holders of debentures may apply to the Court -

                  (a)        for direction in relation to a matter arising in connection with the performance of the functions of the trustee; or

                  (b)        to determine a question in relation to the interests of the holders of the debentures.

                  (2)        On the application, the Court may —

                  (a)        give such directions to the trustee as the Court thinks just; and

                  (b)        if satisfied that the determination of the question will be beneficial - accede wholly or partially to the application on such terms and conditions as the Court thinks just or make such other order on the application as the Court thinks just.

                  (3)        The Court may order a meeting of all or any of the holders of the debentures to be convened to consider any matters in which they are concerned and to advise the trustee on those matters and may give such ancillary or consequential directions as are just.

                  (4)        The meeting shall be held and conducted in such manner as the Court directs, under the chairmanship of a person nominated by the trustee or, if the trustee does not nominate a person to be the chairman, under the chairmanship of such other person as is appointed for that purpose by the holders of debentures present at the meeting.

Obligations of borrowing company

      227.     (1)Where there is a trustee for the holders of debentures of a borrowing company, the trustee shall, by notice in writing to the borrowing company, specify for the purposes of this section a day, being not later than 6 months after the date of the relevant prospectus.

                  (2)        The directors of the borrowing company shall —

                  (a)        at the end of a period not exceeding 3 months ending on the day so specified; and

                  (b)        at the end of each succeeding period, being a period of 3 months or such shorter period as the trustee, in special circumstances, allows,

prepare a report that relates to that period and complies with the requirements of subsections (3) and (4), within one month after the end of each such period, lodge the report relating to that period with the trustee and a copy of the report with the Registrar.

                  (3)        The report referred to in subsection (1) shall be signed by not less than 2 of the directors on behalf of all of them and shall set out all matters that adversely affect the security or the interests of the holders of the debentures.

                  (4)        The report shall include a statement as to each of the following:

                  (a)        whether the limitations on the amount that the company may borrow have been exceeded and, if so, particulars of borrowings exceeding those limitations;

                  (b)        whether the company and each of its guarantor corporations have observed and performed all the covenants and provisions binding upon them respectively by or pursuant to the debentures or a trust deed;

                  (c)        whether an event has happened that has caused or could cause the debentures or any provision of the relevant trust deed to become enforceable and, if so, particulars of that event;

                  (d)       whether circumstances affecting the company, its subsidiaries or its guarantor corporations or any of them have occurred that materially affect a security or charge included in or created by the debentures or a trust deed and, if so, particulars of those circumstances;

                  (e)        whether there has been a substantial change in the nature of the business of the company, of any of its subsidiaries or of any of its guarantor corporations since the debentures were first issued to the public that has not previously been reported upon as required by this section and, if so, particulars of that change; and

                  (f)        where the company has deposited money with, lent money to, or assumed a liability of, a corporation that is related to the company, particulars, with respect to each corporation that is so related, of —

                              (i)   the total amounts so deposited or lent and the extent of any liability so assumed during the period covered by the report; and

                              (ii)  the total amounts owing to the company in respect of money so deposited or lent and the extent of any liability so assumed as at the end of the period covered by the report.

                  (5)        Particulars as mentioned in paragraph (4)(f) shall distinguish between deposits, loans and assumptions of liability that are secured and those that are unsecured, but not including a deposit with, loan to, or liability assumed on behalf of, a corporation if that corporation has guaranteed the repayment of the debentures of the company and has secured the guarantee by a charge over its property in favour of the trustee for the holders of the debentures of the company.

                  (6)        Where, during the period to which a report referred to in subsection (1) relates —

                  (a)        a corporation has become a guarantor corporation;

                  (b)        a guarantor corporation has ceased to be liable for the payment of the whole or part of the moneys for which it was liable under the guarantee; or

                  (c)        a guarantor corporation has changed its name,

the report shall so state and shall give particulars of the matter so stated.

Further charges

      228.     Where there is a trustee for the holders of debentures issued by a borrowing company and the company or any of its guarantor corporations that has guaranteed the repayment of the moneys raised by the issue of those debentures creates a charge, the company or the guarantor corporation, as the case requires, shall, whether or not a demand for the particulars has been made —

                  (a)        furnish in writing to the trustee, within 21 days after the creation of the charge, particulars of the charge; and

                  (b)        if the total amount to be advanced on the security of the charge is indeterminate —

                              (i)   furnish in writing to the trustee, within 7 days after an advance is made, particulars of the amount of the advance; or

                              (ii)  where the advances are merged in a current account with bankers or trade creditors - furnish in writing to the trustee, at the end of every 3 months, particulars of the net amount outstanding in respect of the advances.

Profit and loss accounts

      229.     The directors of a borrowing company that has issued debentures (other than debentures of a kind that could be lawfully described pursuant to section 127 as mortgage debentures or certificates of mortgage debenture stock) and of each relevant guarantor corporation that has guaranteed the repayment of the moneys raised by the issue of those debentures shall —

                  (a)        at a date —

                              (i)   not later than 6 months; or,

                              (ii)  in the case of a particular company, not later than the expiration of such other period as is for the time being fixed by the Registrar with the consent of the trustee for the debenture holders,

after the expiration of each financial year of the company, cause to be made out and lodged with the Registrar and with the trustee for the holders of the debentures a profit and loss account for that financial year and a balance-sheet as at the end of that financial year; and

                  (b)        at a date —

                              (i)   not later than 10 months; or

                              (ii)  in the case of a particular company, not later than the expiration of such other period as is for the time being fixed by the Registrar with the consent of the trustee for the debenture holders,

after the expiration of each financial year of the company, cause to be made out and lodged with the Registrar and with the trustee for the holders of the debentures a profit and loss account for the period from the end of that financial year until the expiration of 6 months after the end of that financial year and a balance-sheet as at the end of the period to which the profit and loss account relates.


Consolidated accounts

      230.     The directors of a borrowing company that is a holding company shall —

                  (a)        at a date —

                              (i)   not later than 6 months; or

                              (ii)  in the case of a particular company, not later than the expiration of such other period as is for the time being fixed by the Registrar with the consent of the trustee for the debenture holders,

after the expiration of each financial year of the company, cause to be made out and lodged with the Registrar and with the trustee for the holders of the debentures (if any) a set of consolidated accounts for the company and each guarantor corporation that is a subsidiary of the company for that financial year; and

                  (b)        at a date —

                              (i)   not later than 10 months; or

                              (ii)  in the case of a particular company, not later than the expiration of such other period as is for the time being fixed by the Registrar with the consent of the trustee for the debenture holders of that company,

after the expiration of each financial year of the company, cause to be made out and lodged with the Registrar and with the trustee for the holders of the debentures (if any) a set of consolidated accounts for the company and each guarantor corporation that is a subsidiary of the company for the period from the end of that financial year until the expiration of 6 months after the end of that financial year.

Notice to comply

      231.     (1)        A trustee for debenture holders of a borrowing company may give to the directors of a guarantor corporation that is a subsidiary of the company a notice requiring them to comply with the requirements of section 229.

                  (2)        Where a notice is so given —

                  (a)        the directors of the guarantor corporation shall comply with the requirements of section 229 in relation to the next financial year of that corporation that ends after the notice was so given and in relation to each subsequent financial year of that corporation; and

                  (b)        where the notice is given within the period of 6 months after the end of a financial year of the corporation - the directors of the corporation shall comply with the requirements of paragraph 229(b) in relation to the period commencing at the end of that financial year and ending at the expiration of that period of 6 months.

                  (3)        A trustee for debenture holders shall, within 7 days after he gives a notice under subsection (1), lodge a copy of the notice with the Registrar.

Application of certain sections

      232.     (1)        Sections 227 to 231 (inclusive) do not apply in respect of a borrowing company or a guarantor corporation if —

                  (a)        the company or the guarantor corporation is being wound up; or

                  (b)        a receiver or a manager of property of the company or of the guarantor corporation has been appointed and has not ceased to act under the appointment.

                  (2)        The provisions of section 340 (other than subsection (9)), subsections 341(1), (2) and (3), section 343 and section 357 (other than subsection (9)) are, with such adaptations as are necessary, applicable to a profit and loss account and balance-sheet made out and lodged pursuant to section 229 by the directors of a borrowing company as if that profit and loss account and balance-sheet were a profit and loss account and balance-sheet referred to in those sections or subsections.

                  (3)        Notwithstanding anything in the preceding provisions of this section, the directors of a borrowing company are not required to comply, in relation to profit and loss accounts and balance-sheets required to be made out and lodged under section 229, with subsection 340(3) or 341(2) or with section 357 (as it relates to group accounts) if the trustee for the debenture holders consents in writing to the directors being exempt from those requirements.

                  (4)        The provisions of section 340 (other than subsection (9)), subsections 341(1), (2) and (3), section 343, and section 357 (other than subsection (9)) are, with such adaptations as are necessary, applicable to a profit and loss account and balance-sheet made out and lodged pursuant to section 230 by the directors of the borrowing company as if —

                  (a)        that profit and loss account and balance-sheet were a profit and loss account and balance-sheet referred to in those sections or subsections; and

                  (b)        references in those sections and subsections to group accounts were references to the consolidated accounts referred to in section 230.

                  (5)        The provisions of section 340 (other than subsection (3)), subsections 341(1) and (3), section 343 and section 357 (other than the provisions of that section relating to group accounts) are, with such adaptation as are necessary, applicable to a profit and loss account and balance-sheet made out and lodged pursuant to section 229 by the directors of a guarantor corporation as if that profit and loss account and balance-sheet were a profit and loss account and balance-sheet referred to in those sections or subsections.

Registrar to be notified of failure to lodge accounts

      233.     Where the directors of a borrowing company do not, within the required time, lodge with the trustee for the holders of debentures a report as required by this Part or where the directors of a borrowing company or the directors of a guarantor corporation do not lodge with the trustee the balance-sheets, profit and loss accounts and reports as required by this Part, the trustee shall forthwith lodge notice of that fact with the Registrar.

Audit may be dispensed with or limited

      234.     (1)        Notwithstanding anything contained in this Part, the audit of a profit and loss account and balance-sheet of a borrowing company or of its guarantor corporation relating to a period of 6 months immediately following a financial year required to be made out and lodged in accordance with this Part may be dispensed with or may be of a limited nature or extent if the trustee for the holders of the debentures of the borrowing company has consented in writing to the audit being dispensed with or being of a limited nature or extent, as the case may be.

                  (2)        Where the trustee has so consented, the directors of the borrowing company or guarantor corporation shall lodge with the Registrar a copy of the instrument of consent at the time when the profit and loss account and balance-sheet are so lodged.

                  (3)        Where the trustee for debenture holders of a borrowing company has consented to the directors of the company being exempt from complying with the requirements of the Part relating to profit and loss accounts, the directors shall lodge with the Registrar a copy of the instrument of consent at the time when the profit and loss account and balance-sheet are so lodged.

Value of trading stock

      235.     Notwithstanding anything contained in this Part, a profit and loss account and balance-sheet of a borrowing company or of its guarantor corporation relating to a period of 6 months immediately following a financial year required to be made out and lodged in accordance with this Part may, unless the trustee for the holders of the debentures of the borrowing company otherwise require in writing, be based upon the value of the trading stock of the borrowing company or of the guarantor corporation, as the case may be, as —

                  (a)        reasonably estimated by the directors of the company or corporation on the basis of the value of the trading stock as adopted for the purpose of the profit and loss account and balance-sheet of the company or corporation laid before the company or corporation at its last preceding annual general meeting; and

                  (b)        certified in writing as such by those directors.

Obligation of guarantor corporation to furnish information

      236      (1)        For the purpose of the preparation of a report that is required by this Act to be signed by or on behalf of the directors of a borrowing company or any of them, the company may, by notice in writing, require any of its guarantor corporations to furnish it with information relating to that guarantor corporation that is required by this Act to be contained in that report and that guarantor corporation shall furnish the borrowing company with that information before such date, being a date not earlier than 14 days after the notice is given, as is specified for that purpose in the notice.

                  (2)        If a corporation fails to comply with a requirement contained in a notice given pursuant to subsection (1), that corporation and any officer of that corporation who is in default are each guilty of an offence.

Loans to be immediately repayable in certain events

      237.     (1)        Where, in a prospectus issued in connection with an invitation to the public to subscribe for or to purchase, or in connection with an offer to the public for subscription or purchase of, debentures of a company, there is a statement as to a particular purpose or project for which the moneys received by the company in response to the invitation or offer are to be applied, the company shall from time to time make reports to the trustee for the holders of those debentures as to the progress that has been made towards achieving that purpose or completing that project.

                  (2)        Such a report shall be included in the report required to be furnished to the trustee for the holders of the debentures under subsection 227(1).

                  (3)        Where it appears to the trustee for the holders of the debentures that the purpose or project has not been achieved or completed within the time stated in the prospectus within which the purpose or project is to be achieved or completed or, where such a time was not stated, within a reasonable time, the trustee may, and, if in his opinion it is necessary for the protection of the interest of the holders of the debentures, shall, give notice in writing to the company requiring it to repay the moneys so received by the company.

                  (4)        The trustee shall, within one month after such a notice is given, lodge with the Registrar a copy of the notice.

                  (5)        The trustee shall not give a notice pursuant to subsection (3) if it is satisfied —

                  (a)        that the purpose or project has been substantially achieved or completed;

                  (b)        that the interests of the holders of debentures have not been materially prejudiced by the failure to achieve or complete the purpose or project within the time stated in the prospectus or within a reasonable time; or

                  (c)        that the failure to achieve or complete the purpose or project was due to circumstances beyond the control of the company that could not reasonably have been foreseen by the company at the time when the prospectus was issued.

                  (6)        Upon receipt by the company of a notice referred to in subsection (3), the company is liable to repay any money owing to a person (in this subsection and in subsection (7) referred to as “the relevant person”) as the result of a loan or deposit made in response to the invitation or offer, and, on demand in writing by the relevant person, shall immediately repay the money to the relevant person.

                  (7)        Subsection (3) does not apply where —

                  (a)        before the moneys received by the company in response to the invitation or offer were accepted by the company, the company, by notice in writing served on the persons from whom moneys were received —

                              (i)   specified the purpose or project for which the moneys would in fact be applied by the company; and

                              (ii)  offered to repay the moneys to those persons,

and the relevant person had not, within 14 days after the receipt of the notice or within such longer time as was specified in the notice, demanded in writing from the corporation repayment of the money owing to him; or

                  (b)        the company, by notice in writing served on the holders of the debentures —

                              (i)   specified the purpose or project for which the moneys would in fact be applied by the company; and

                              (ii)  offered to repay the moneys to the holders of the debentures,

and the relevant person had not, within 14 days after the receipt of the notice or within such longer time as was specified in the notice, demanded in writing from the company repayment of the money owing to him.

                  (8)        Where the company has given notice as provided by subsection (7) specifying the purpose or project for which the moneys received by the company in response to the invitation or offer will in fact be applied by the company, the provisions of this section apply and have effect as if the purpose or project so specified in the notice was the particular purpose or project specified in the prospectus as the purpose or project for which the moneys were to be applied.

Invitations or offers by certain corporations

      238.     (1)        Notwithstanding any other provision of this Act, an invitation to the public made by a prescribed corporation to lend money to, or to deposit money with, that corporation or an offer to the public made by a prescribed corporation to accept moneys that are lent to, or deposited with, that corporation shall, for the purposes of this Part, be deemed not to be an invitation to the public to subscribe for or purchase debentures of the corporation or an offer to the public of debentures of the corporation for subscription or purchase.

                  (2)        In this section, “prescribed corporation” has the same meaning as in subsection 130(2).

Liability of trustees for debenture holders

      239.     (1)        Subject to this section, a provision contained in a trust deed relating to or securing an issue of debentures, or in a contract with the holders of debentures secured by a trust deed, is void in so far as it would have the effect of exempting a trustee from, or indemnifying it against, liability for breach of trust where it has not shown the degree of care and diligence required of it as trustee having regard to its powers, authorities or discretions under the trust deed or contract.

                  (2)        Subsection (1) does not —

                  (a)        invalidate a release otherwise validly given in respect of anything done or omitted to be done by a trustee before giving of the release;

                  (b)        invalidate a provision enabling such a release to be given —

                              (i)   on the consent to the giving of the release of a majority of not less than three-quarters in nominal value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting convened for the purpose; and

                              (ii)  either with respect to specific acts or omissions or on the dissolution of the trustee or on its ceasing to act;

                  (c)        invalidate a provision in force at the commencement of this Act so long as a trustee then entitled to the benefit of that provision remains a trustee of the deed concerned; or

                  (d)       deprive a trustee of an exemption or right to be indemnified in respect of something done or omitted by the trustee to be done by the trustee while such a provision was in force.

PART 10 — TITLE TO AND TRANSFER OF SECURITIES

Nature of shares

      240.     (1)        A share or other interest of a member in a company —

                  (a)        is personal property;

                  (b)        is transferable or transmissible, or may be otherwise dealt with, as provided by law or by the articles; and

                  (c)        subject to the articles, is capable of devolution by will.

                  (2)        Subject to subsection (1) —

                  (a)        the laws applicable to ownership of and dealing with personal property apply to a share or other interest of a member in a company as they apply to other property; and

                  (b)        equitable interests in respect of a share or other interest of member in a company may be created, dealt with and enforced as in the case of other personal property.

Numbering of shares

      241.     (1)        Each share in a company shall be distinguished by an appropriate number.

                  (2)        If at any time all the issued shares in a company, or all the issued shares in a company included in a particular class, are fully paid up and rank equally for all purposes, none of those shares is required to have a distinguishing number so long as each of then remains fully paid up and ranks equally for all purposes with all shares included in the same class for the time being issued and fully paid up.

                  (3)        If all the issued shares in a company are evidenced by certificates in accordance with section 242, each certificate is distinguished by an appropriate number and that number is recorded in the register of members, none of those shares is required to have a distinguishing number.

Certificate to be evidence of title

      242.     (1)        A certificate issued in accordance with subsection (2) specifying shares held by a member of a company is evidence of the title of the member to the shares.

                  (2)        A certificate referred to in subsection (1) shall be under the common seal of the company or, in the case of a share certificate relating to shares on a branch register, the common seal or official seal of the company and shall state —

                  (a)        the name of the company and the authority under which the company is constituted;

                  (b)        the class of the shares; and

                  (c)        the nominal value of the shares and the extent to which the shares are paid up.

                  (3)        Failure to comply with this section does not affect the rights of a holder of shares.

                  (4)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

Duplicate common seal

      243.     (1)        A company may, if authorised by its articles, have a duplicate common seal, which shall be a facsimile of the common seal of the company with the addition on its face of the words “Share Seal” or “Certificate Seal”.

                  (2)        A certificate referring to or relating to securities of a company sealed with such a duplicate seal shall, for the purposes of this Act, be deemed to be sealed with the common seal of the company.

Loss or destruction of certificates

      244.     (1)        Subject to subsection (2), where a certificate or other document of title to securities is lost or destroyed, the company shall, on application by the owner of the securities issue a duplicate certificate or document to the owner —

                  (a)        if the company requires the payment of an amount not exceeding the prescribed amount - within 21 days after the payment is received by the company or within such longer period as the Registrar allows; or

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the application is made or within such longer period as the Registrar allows.

                  (2)        The application shall be accompanied by —

                  (a)        a statement in writing that the certificate or document has been lost or destroyed and has not been pledged, sold or otherwise disposed of, and, if lost, that proper searches have been made; and

                  (b)        an undertaking in writing that if it is found or received by the owner it will be returned to the company.

                  (3)        A company may, before accepting an application for the issue of a duplicate certificate or document, require the applicant to do either or both of the following:

                  (a)        cause an advertisement to be inserted in the Gazette stating that the certificate or document has been lost or destroyed and that the owner intends, after the expiration of 14 days after the publication of the advertisement, to apply to the company for a duplicate;

                  (b)        furnish a bond for an amount equal to at least the current market value of the securities concerned indemnifying the company against loss following the production of the original certificate or document.

Instruments of transfer

      245.     (1)        Notwithstanding anything in its articles or in a deed relating to debentures, a company shall not register a transfer of securities unless a proper instrument of transfer has been delivered to the company.

                  (2)        Subsection (1) does not affect the power of the company to register as a shareholder or debenture holder a person to whom the right to the securities concerned has devolved by will or by operation of law.

                  (3)        A transfer of securities of a deceased holder made by his personal representative is, although the personal representative is not himself registered as the holder of those securities, as valid as if he had been so registered at the time of the execution of the instrument of transfer.

                  (4)        Where the personal representative of a deceased holder duly constituted as such under the law of a State or of a Territory other than Norfolk Island —

                  (a)        executes an instrument of transfer of securities of the deceased holder to himself or to some other person; and

                  (b)        delivers the instrument to the company, together with a statement in writing made by him to the effect that, to the best of his knowledge, information and belief, no grant of representation of the estate of the deceased holder has been applied for or made in Norfolk Island and no application for such a grant will be made, being a statement made within the period of 3 months immediately preceding the date of delivery of the statement to the company,

the company shall register the transfer and pay to the personal representative any dividends or other moneys accrued in respect of the securities up to the time of the execution of the instrument.

                  (5)        Subsection (4) does not require the company to do an act or thing that it would not have been required to do if the personal representative were the personal representative of the deceased holder duly constituted under the law of Norfolk Island.

                  (6)        A transfer or payment made pursuant to subsection (4) and a receipt or acknowledgement of such a payment is, for all purposes, as valid and effectual as if the personal representative were the personal representative of the deceased holder duly constituted under the law of Norfolk Island.

                  (7)        For the purposes of this section, an application by the personal representative of a deceased person for registration as the holder of securities in place of the deceased person shall be deemed to be an instrument of transfer effecting a transfer of the securities to the personal representative.

                  (8)        The production to a company of a document that is, under the law of Norfolk Island or under the law of a State or of a Territory other than Norfolk Island, sufficient evidence of probate of the will, or letters of administration of the estate, of a deceased person having been granted to a person shall be accepted by the company, notwithstanding anything in its articles or in a deed relating to debentures, as sufficient evidence of the grant.

Registration of transfer at request of transferor

      246.     (1)        On the request in writing of the transferor of securities of a company, the company shall enter in the appropriate register the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee.

                  (2)        On the request in writing of the transferor of securities of a company, the company shall, by notice in writing, require the person having the possession, custody or control of the share certificate or debenture concerned and the instrument of transfer of the share or debenture to bring it into the office of the company within a specified period, being not less than 7 and not more than 28 days after the date of the notice, to have the share certificate or debenture cancelled or rectified and the transfer registered or otherwise dealt with.

                  (3)        If a person refuses or neglects to comply with a notice given under subsection (2), the transferor may apply to the Court to issue a summons for that person to appear before the Court and to show cause why the documents mentioned in the notice should not be delivered up or produced as required by the notice.

                  (4)        Upon appearance of a person so summoned, the Court may examine him upon oath or affirmation and receive other evidence or, if he does not appear after being duly served with the summons, the Court may receive evidence in his absence.

                  (5)        In either case, the Court may order the person summoned to deliver up such documents to the company upon such terms or conditions as the Court orders.

                  (6)        The costs of the summons and of proceedings on the summons are in the discretion of the Court.

                  (7)        Lists of share certificates or debentures called in under this section and not brought in shall be exhibited in the office of the company and shall be advertised by the company in the Gazette.

Notice of refusal to register transfer

      247      (1)        If a company refuses to register a transfer of securities of the company, it shall, within one month after the date on which the transfer was lodged with it, send to the transferee notice of the refusal.

                  (2)        If a company fails to comply with this section, the company and each officer of the company who is in default are each guilty of an offence.

Remedy for refusal to register transfer or transmission

      248.     (1)        Where a relevant authority in relation to a company refuses or fails to register, or refuses or fails to give consent or approval to the registration of, a transfer or transmission of securities of the company, the transferee or transmittee may apply to the Court for an order under this section.

                  (2)        Where the Court is satisfied that the refusal or failure was without just cause, the Court may —

                  (a)        order that the transfer or transmission be registered; or

                  (b)        make such other order as it thinks just, including, in the case of a transfer or transmission of shares, an order providing for the purchase of the shares by a specified member of the company or by the company and, in the case of a purchase by the company, providing for the reduction accordingly of the capital of the company.

                  (3)        In this section, “relevant authority”, in relation to a company, means —

                  (a)        a person who has, 2 or more persons who together have, or a body that has, authority to register a transfer or transmission of securities of the company; or

                  (b)        a person, 2 or more persons, or a body, whose consent or approval is required before a transfer or transmission of securities of the company is registered.

Certification of transfers

      249.     (1)        The certification by a company of an instrument of transfer of securities of the company shall be taken as a representation by the company to a person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show title to the securities in the transferor named in the instrument of transfer but not as a representation that the transferor has a title to the shares or debentures.

                  (2)        Where a person acts on the faith of a false certification by a company made negligently, the company is under the same liability to him as if the certification had been made fraudulently.

                  (3)        Where a certification is expressed to be limited to 42 days or to some longer period from the date of certification, the company and its officers are not, in the absence of fraud, liable in respect of the registration of a transfer of securities to which the certification relates after the expiration of the period so limited or any extension of that period given by the company if the instrument of transfer has not, within that period, been lodged with the company for registration.

                  (4)        For the purpose of this section —

                  (a)        a certification shall be deemed to have been made in respect of an instrument of transfer if the instrument bears the words “Certificate lodged” or words to that effect;

                  (b)        the certification of an instrument of transfer shall be deemed to be made by a company if —

                              (i)   the person issuing the instrument is a person authorised to make certifications of instruments of transfer on the company’s behalf; and

                              (ii)  the certification is signed by a person so authorised or by an officer of the company or of a corporation so authorised; and

                  (c)        a certification that purports to be authenticated by a person’s signature (whether handwritten or not) shall be deemed to be signed by him unless it is shown that the signature was not placed there by him and was not placed there by some other person authorised to use the signature for the purpose of making certifications of transfers on the company’s behalf.

                  (5)        In subsection (4), “signature” includes initials.

Duties of company with respect to issue of certificates

      250.     (1)        Within 2 months after the allotment of shares in or the issue of debentures of a company, the company shall —

                  (a)        complete and have ready for delivery to the allottee or debenture holder (in this subsection referred to as “the relevant person”), all the appropriate certificates, debentures or other documents in connection with the allotment of the shares or the issue of debentures unless, in the case of shares, the conditions of the allotment otherwise provide; and

                  (b)        unless otherwise instructed by the relevant person, send or deliver the completed certificates, debentures or other documents to the relevant person or, where the relevant person has instructed the company in writing to send them to some other person, to that person.

                  (2)        Within one month after the date on which a transfer of securities is lodged with a company (other than a transfer that the company is for some reason entitled to refuse to register and does not register), the company shall —

                  (a)        complete and have ready for delivery to the transferee all the appropriate certificates, debentures or other documents in connection with the transfer; and

                  (b)        unless otherwise instructed by the transferee, send or deliver the completed certificates, debentures or other documents to the transferee or, where the transferee has instructed the company in writing to send them to some other person, to that person.

                  (3)        A company is not required to comply —

                  (a)        with subsection (1) in relation to the allotment of shares in or the issue of debentures of the company; or

                  (b)        with subsection (2) in relation to a transfer of shares or debentures,

if the allottee or debenture holder  or the transferee, as the case may be, is a person who has applied to the Registrar for the making of a declaration under this subsection and has been declared by the Registrar, by instrument in writing published in the Gazette, to be a person in relation to whom this section does not apply.

                  (4)        If a company fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

                  (5)        If a company on which a notice has been served requiring the company to make good a default in complying with the provisions of this section fails to make good the default within 10 days after the service of the notice, the Court may, on the application of the person entitled to have the certificates, debentures or other documents delivered to him, make an order directing the company and a specified officer of the company to make good the default within such time as the Court specifies.

                  (6)        The order may provide that all costs of and incidental to the application shall be borne by the company or by an officer of the company in default in such proportions as the Court thinks fit.


 

PART 11 — REGISTRATION OF CHARGES

Interpretation and application of Part

      251.     (1)        In this Part and in Schedule 2, unless the contrary intention appears —

      “document of title” means a document —

                  (a)        used in the ordinary course of business as proof of possession or control, or of the right to possession or control, of property other than land; or

                  (b)        authorising or purporting to authorise, whether by endorsement or delivery, the possessor of the document to transfer or receive property other than land,

                  and includes —

                  (c)        a bill of lading;

                  (d)       a warehouse keeper’s certificate;

                  (e)        a wharfinger’s certificate; and

                  (f)        a warrant or order for the delivery of goods;

      “present liability”, in relation to a charge, means a liability that has arisen and is —

            (a)        a liability the extent or amount of which is ascertained or ascertainable; or

                  (b)        a liability to pay interest in respect of an amount the payment or repayment of which is a liability of the kind referred to in paragraph (a),

whether or not the liability is immediately due to be met;

      “prospective liability”, in relation to a charge, means a liability that may arise in the future or any other liability, not being a present liability;

      “Register” means the Register of Company Charges referred to in section 255;

      “registrable charge” means a charge to and in relation to which, by virtue of section 252, the provisions of this Part mentioned in subsection 252(1) apply.

                  (2)        In this Part and in Schedule 2, unless the contrary intention appears, a reference to property of a company includes a reference to property held by the company as trustee.

                  (3)        A charge referred to in subsection 253(3) or (4) or section 254, shall, until the charge is registered, be treated for the purposes of this Part and Schedule 2 as if it were not a registrable charge but, when the charge is registered, it has the priority accorded to a registered charge as from the time of registration.

                  (4)        The registration of a charge referred to in subsection 253(3) or (4) or section 254 does not affect a priority that would have been accorded to the charge under some other law if the charge had not been registered.

                  (5)        For the purposes of this Part and of Schedule 2, a notice or other document shall be taken to be lodged with the Registrar when it is received at the office of the Registrar by him or by an officer authorised to receive it.

                  (6)        A reference in this Part and Schedule 2 to a company includes a reference to a registered foreign company.

                  (7)        A reference in this Part and in Schedule 2 to a charge on property of a company shall —

                  (a)        in the case of a company other than a foreign company, be construed as a reference to a charge on property of the company, whether within or outside Norfolk Island; and

                  (b)        in the case of a registered foreign company, be construed as a reference to a charge on property of the company within Norfolk Island.

Charges required to be registered

      252.     (1)        Subject to this section, the provisions of this Part relating to the giving of notice in relation to, the registration of, and the priorities of charges apply to and in relation to the following charges (whether legal or equitable) on property of a company and do not apply to or in relation to any other charge:

                  (a)        a floating charge on the whole or a part of the property, business or undertaking of the company;

                  (b)        a charge on uncalled share capital or uncalled share premiums;

                  (c)        a charge on a call, whether in respect of share capital or share premiums, made but not paid;

                  (d)       a charge on a personal chattel, including a personal chattel that is unascertained or is to be acquired in the future, but not including a ship registered in an official register kept under a law in force in Australia or in Norfolk Island relating to title to ships;

                  (e)        a charge on goodwill, on a patent or licence under a patent, on a trade mark or service mark or a licence to use a trade mark or service mark, on a copyright or a licence under a copyright or on a registered design or a licence to use a registered design;

                  (f)        a charge on a book debt;

                  (g)        a charge on a marketable security, not being —

                              (i)   a charge created in whole or in part by the deposit of a document of title to the marketable security; or

                              (ii)  a mortgage under which the marketable security is registered in the name of the chargee or a person nominated by him;

                  (h)        a lien or charge on a crop or on wool or a stock mortgage, being a lien, charge or mortgage that is registrable under an enactment;

                              (i)   a charge on a negotiable instrument.

                  (2)        The provisions of this Part mentioned in subsection (1) do not apply to or in relation to —

                  (a)        a charge on, or a lien over, property of arising by operation of law;

                  (b)        a pledge of a personal chattel or of a marketable security;

                  (c)        a charge created in relation to a negotiable instrument or a document of title to goods, being a charge by way of pledge, deposit, letter of hypothecation or trust receipt;

                  (d)       a transfer of goods in the ordinary course of the practice of a profession or the carrying on of a trade or business; or

                  (e)        a dealing, in the ordinary course of the practice of a profession or the carrying on of a trade or business, in respect of goods outside Norfolk Island.

                  (3)        The reference in paragraph (1)(d) to a charge on a personal chattel is a reference to a charge on an article capable of complete transfer by delivery, whether at the time of the creation of the charge or at some later time, and includes a reference to a charge on a fixture or a growing crop that is charged separately from the land to which it is affixed or on which it is growing, but does not include a reference to a charge on —

                  (a)        a document evidencing title to land;

                  (b)        a chattel interest in land;

                  (c)        a marketable security;

                  (d)       a document evidencing a chose in action; or

                  (e)        stock or produce on a farm or land that by virtue of a covenant or agreement ought not to be removed from the farm or land where the stock or produce is at the time of the creation of the charge.

                  (4)        The reference in paragraph (1)(f) to a charge on a book debt is a reference to a charge on a debt due or to become due to the company at some future time on account of or in connection with a profession, trade or business carried on by the company, whether entered in a book or not, and includes a reference to a charge on a future debt of the same nature although not incurred or owing at the time of the creation of the charge, but does not include a reference to a charge on a marketable security, on a negotiable instrument or on a debt owing in respect of a mortgage, charge or lease of land.

                  (5)        For the purposes of this section, a company shall be deemed to have deposited a document of title to property with another person (in this subsection referred to as “the chargee”) where the document of title is not in the possession of the company if —

                  (a)        the person who holds the document of title acknowledges in writing that he holds the document of title on behalf of the chargee; or

                  (b)        a government, an authority or a corporation that proposes to issue a document of title in relation to the property agrees, in writing, to deliver the document of title, when issued, to the chargee.

                  (6)        For the purposes of this section, a charge shall be taken to be a charge on property of a kind to which a particular paragraph of subsection (1) applies notwithstanding that the instrument of charge also charges other property of the company, including other property that is of a kind to which none of the paragraphs of that subsection applies.

                  (7)        The provisions of this Part mentioned in subsection (1) do not apply to or in relation to —

                  (a)        a charge on land or to or in relation to a charge on fixtures given by a charge on the land to which they are affixed; or

                  (b)        a charge created by a company in its capacity as legal personal representative of a deceased person or as trustee of the estate of a deceased person.

                  (8)        A charge on property of a company is not invalid by reason only of the failure to lodge with the Registrar or give to the company or to some other person a notice or other document that is required by this Part to be so lodged or given.

Lodgment of notice of charge and copy of instrument

      253.     (1)        Where a company creates a charge, the company shall ensure that the following are lodged with the Registrar within 45 days after the creation of the charge:

                  (a)        a notice setting out the following particulars:

                              (i)   the name of the company and the date of the creation of the charge;

                              (ii)  whether the charge is a fixed charge, a floating charge or both a fixed and floating charge;

                  (iii) if the charge is a floating charge - whether there is a provision in the resolution or instrument creating or evidencing the charge that prohibits or restricts the creation of subsequent charges;

                              (iv) a short description of the liability (whether present or prospective) secured by the charge;

                              (v)  a short description of the property charged;

                              (vi) whether the charge is created or evidenced by a resolution, by an instrument or by a deposit or other conduct;

                              (vii)   if the charge is constituted by the issue of debentures in respect of which there is a trustee for debenture holders - the name of the trustee;

                              (viii)  if the charge is not constituted by the issue of debentures or there is no trustee for debenture holders - the name of the chargee;

                              (ix) such other information as is prescribed;

                  (b)        if, pursuant to a resolution or resolutions passed by the company, the company issues a series of debentures constituting a charge to the benefit of which all the holders of debentures in the series are entitled in equal priority and the charge is evidenced only by the resolution or resolutions and by the debentures - a copy of the resolution or of each of the resolutions verified by a statement in writing to be a true copy, and a copy of the first debenture in the series and a statement in writing verifying the execution of that debenture; and

                  (c)        if, in a case to which paragraph (b) does not apply, the charge was created or evidenced by an instrument —

                              (i)   the instrument; or

                              (ii)  a copy of the instrument verified by a statement in writing to be a true copy and a statement in writing verifying the execution of the instrument.

                  (2)        In a case to which paragraph (1)(b) applies —

                  (a)        the charge shall, for the purposes of subsection (1), be deemed to be created when the first debenture in the series is issued; and

                  (b)        if, after the issue of the first debenture in the series, the company passes a further resolution authorising the issue of debentures in the series, the company shall lodge a copy of that resolution, verified by a statement in writing to be a true copy of that resolution, with the Registrar within 45 days after the passing of that resolution.

                  (3)        A foreign company that applies for registration under this Act shall lodge with the application for registration the documents specified in subsection (4) in relation to a charge on property of the foreign company that would be registrable under this Part if the foreign company were a company incorporated in Norfolk Island.

                  (4)        The documents required to be lodged under subsection (3) are the following:

                  (a)        a notice —

                              (i)   setting out the name of the company;

                              (ii)  if the charge was created by the company - specifying the date of the creation of the charge;

                              (iii) if the charge was a charge existing on property acquired by the company - setting out the date on which the property was acquired; and

                              (iv) otherwise complying with the requirements of paragraph (1)(a);

                  (b)        if the charge was created or evidenced as mentioned in paragraph (1)(b) —

                              (i)   in the case of a charge created by the company - a copy of the resolution or of each of the resolutions referred to in that paragraph verified by a statement in writing to be a true copy and a copy of the first debenture issued in the series referred to in that paragraph and a statement in writing  verifying the execution of that debenture; or

                              (ii)  in the case of a charge that existed on property acquired by the company - the copies referred to in subparagraph (i) verified by statements in writing to be true copies;

                  (c)        if the charge was created or evidenced by an instrument otherwise than as mentioned in paragraph (1)(b) —

                              (i)   in the case of a charge created by the company - a copy of the instrument verified by a statement in writing to be a true copy and a statement in writing verifying the execution of the instrument; or

                              (ii)  in the case of a charge that existed on property acquired by the company - a copy of the instrument or of each of the instruments verified by a statement in writing to be a true copy; and

                  (d)       if the charge was created or evidenced as mentioned in paragraph (1)(b) and, after the issue of the first debenture in the series, the company passed a further resolution authorising the issue of debentures in the series - a copy of that resolution  verified by a statement in writing to be a true copy.

                  (5)        A notice in relation to a charge, being a charge in relation to which paragraph (1)(b) or (c) or (4)(b) or (c) applies, shall not be taken to have been lodged with the Registrar under subsection (1) or (3) unless the notice is accompanied by the documents specified in that paragraph.

                  (6)        Where a notice with respect to an instrument creating a charge has been lodged under subsection (1) or (3), being a charge in respect of an issue of several debentures the holders of which are entitled under the instrument in equal priority to the benefit of the charge, section 256 and Schedule 2 have effect as if charges constituted by those debentures were registered at the time when the charge to which the notice relates was registered.

                  (7)        Where a payment or discount has been made or allowed, either directly or indirectly, by a company to a person in consideration of his subscribing or agreeing to subscribe, whether conditionally or unconditionally, for debentures or procuring or agreeing to procure subscriptions, whether conditional or unconditional, for debentures, the notice required to be lodged under subsection (1) or (3) shall include particulars as to the amount or rate of the payment or discount.

                  (8)        Where a company issues debentures as security for a debt of the company, the company shall not thereby be regarded as having allowed a discount in respect of the debentures.

Acquisition of property subject to charge

      254.     (1)        Where a company acquires property that is subject to a charge, being a charge that would have been registrable when it was created if it had been created by a company, the company shall, within 45 days after the acquisition of the property —

                  (a)        lodge with the Registrar —

                              (i)   a notice in relation to the charge, setting out the name of the company and the date on which the property was so acquired and otherwise complying with the requirements of paragraph 253(1)(a);

                              (ii)  if the charge was created or evidenced as mentioned in paragraph 253(1)(b) - a copy of the resolution referred to in that paragraph verified by a statement in writing to be a true copy and a copy of the first debenture issued in the series referred to in that paragraph verified by a statement in writing to be a true copy; and

                              (iii) if the charge was created or evidenced by an instrument otherwise than as mentioned in paragraph 253(1)(b) - the instrument or each of the instruments or a copy of the instrument verified by a statement in writing to be a true copy; and

                  (b)        give to the chargee notice that it has acquired the property and the date on which it was so acquired.

                  (2)        A notice in relation to a charge, being a charge in relation to which subparagraph (1)(a)(ii) or (iii) applies, shall not be taken to have been lodged with the Registrar under subsection (1) unless it is accompanied by the documents specified in that subparagraph.

Registration of documents relating to charges

      255.     (1)        The Registrar shall keep a register to be known as the Register of Company Charges.

                  (2)        Where a notice in respect of a charge on property of a company that is required by this Part to be lodged with the Registrar is lodged with the Registrar (whether during or after the period within which the notice was required to be lodged) and the notice contains all the particulars required to be included in the notice, the Registrar shall forthwith cause to be entered in the Register the time and date when the notice was so lodged and the following particulars in relation to the charge:

                  (a)        if the charge is a charge created by the company, the date of its creation or, if the charge was a charge existing on property acquired by the company, the date on which the property was acquired;

                  (b)        a short description of the liability (whether present or prospective) secured by the charge;

                  (c)        a short description of the property charged;

                  (d)       the name of the trustee for debenture holders, or if there is no such trustee, the na        me of the chargee.

                  (3)        Subject to subsection (8), where particulars in respect of a charge are entered in the Register in accordance with subsection (2), the charge shall be deemed to be registered and to have been registered from and including the time and date entered in the Register under that subsection.

                  (4)        Where a document that purports to be a notice in respect of a charge on property of a company is lodged with the Registrar (whether during or after the period within which the notice was required to be lodged) and the document contains the name of the company concerned and the particulars referred to in subparagraph 253(1)(a)(vii) or (viii), as the case requires, but does not contain some or all of the other particulars that are required by this Part to be included in the notice or is otherwise defective —

                  (a)        the Registrar shall cause to be entered in the Register the time and date when the document was so lodged and such of the particulars referred to in paragraphs (2)(a), (b), (c) and (d) as are ascertainable from the document but shall cause the word “Provisional” to be entered in the Register next to the entry; and

                  (b)        the Registrar shall, by notice in writing to the person who lodged the document, direct the person to lodge with the Registrar, on or before a date specified in the notice, a notice in relation to the charge that complies with the requirements of this Part.

                  (5)        The giving by the Registrar of a direction to a person under paragraph (4)(b) does not affect a liability that the company may have incurred or may incur by reason of a contravention of this Part.

                  (6)        Where the Registrar gives a direction to a person under paragraph (4)(b) in relation to a charge —

                  (a)        if the direction is complied with on or before the date specified in                                 the notice containing the direction, the Registrar shall —

                              (i)   delete from the Register the word “Provisional”; and

                              (ii)  cause to be entered in the Register in relation to the charge any particulars referred to in subsection (2) that have not previously been entered;

                  (b)        if the direction is not complied with on or before that date - the Registrar shall delete from the Register all the particulars that were entered in relation to the charge; and

                  (c)        if the direction is complied with after that date - the Registrar shall cause to be entered in the Register in relation to the charge the time at which and date on which the direction was complied with and the particulars referred to in paragraphs (2)(a), (b), (c) and (d).

                  (7)        The Registrar may enter in the Register, in relation to a charge, in addition to the particulars required by this section to be entered, such other particulars as the Registrar thinks fit.

                  (8)        If the word “Provisional” is entered in the Register next to an entry, the charge shall be deemed not to have been registered but —

                  (a)        where the word “Provisional” is deleted from the Register pursuant to paragraph (6)(a) - the charge shall be deemed to be registered and to have been registered from and including the time and date specified in the Register pursuant to paragraph (4)(a); or

                  (b)        where the particulars in relation to the charge are deleted from the Register pursuant to paragraph (6)(b) and those particulars and a time and date are subsequently entered in the Register in relation to the charge pursuant to paragraph (6)(c) - the charge shall be deemed to be registered from and including that last-mentioned time and date.

                  (9)        Where, pursuant to subsection 253(3), a foreign company lodges with the Registrar notices relating to 2 or more charges on the same property of the foreign company, the time and date that shall be entered in the Register in relation to each of those charges are the time and date when the first notice was lodged with the Registrar.

                  (10)      Where, in accordance with subsection (9), the time and date that are entered in the Register are the same in relation to 2 or more charges on property of a company, those charges shall, as between themselves, have the respective priorities that they would have had if they had not been registered under this Part

                  (11)      Where, pursuant to section 254, a company lodges with the Registrar notices relating to 2 or more charges on the same property acquired by the company (being charges that are not already registered under this Part), the time and date that shall be entered in the Register in relation to each of those charges are the time and date when the first notice was lodged with the Registrar.

                  (12)      Where, in accordance with subsection (11), the time and date that are entered in the Register are the same in relation to 2 or more charges on property acquired by a company, those charges shall, as between themselves, have the respective priorities that they would have had if they had not been registered under this Part.

                  (13)      Where a notice is lodged with the Registrar under section 261 (whether during or after the period within which it was required to be lodged), the Registrar shall forthwith cause to be entered in the Register the time and date when the notice was lodged with the Registrar and the particulars set out in the notice.

Priorities of charges

      256.     (1)        Subject to this section, the provisions of Schedule 2 have effect with respect to the priorities, in relation to each other, of registrable charges on the property of a company.

                  (2)        The application, in relation to particular registrable charges, of the order of priorities of charges set out in Schedule 2 is subject to —

                  (a)        any consent (express or implied) that varies the priorities in relation to each other of those charges, being a consent given by the holder of one of those charges; and

                  (b)        any agreement between the chargees that affects the priorities in relation to each other of the charges in relation to which those persons are the chargees.

                  (3)        The holder of a registered charge, being a floating charge, on property of a company shall be deemed, for the purposes of subsection (2), to have consented to that charge being postponed to a subsequent registered charge, being a fixed charge created before the floating charge became fixed, on any of that property unless —

                  (a)        the creation of the subsequent registered charge contravened a provision of the instrument or resolution creating or evidencing the floating charge; and

                  (b)        a notice in respect of the floating charge indicating the existence of the provision referred to in paragraph (a) was lodged with the Register under section 253, 254 or 261 before the creation of the subsequent registered charge.

                  (4)        Where a charge relates to property of a kind or kinds to which a particular paragraph or paragraphs of subsection 252(1) applies or apply and also relates to other property, the provisions of Schedule 2 apply to the charge only in so far as it relates to the first-mentioned property and do not affect the priority of the charge in so far as it relates to the other property.

                  (5)        The provisions of Schedule 2 do not apply so as to affect the operation of a Commonwealth Act that extends to Norfolk Island.

Certain charges void against liquidator or official manager

      257.     (1)        Where —

                  (a)        an order is made, or a resolution is passed, for the winding up of a company; or

                  (b)        an official manager is appointed in respect of a company,

a registrable charge on property of the company is void as a security on that property as against the liquidator or official manager, as the case may be.

                  (2)        Subsection (1) does not apply if —

                  (a)        a notice in respect of the charge was lodged with the Registrar under section 253 or 254, as the case requires —

                              (i)   within the relevant period; or

                              (ii)  not later than 6 months before the commencement of the winding up or the appointment of the official manager, as the case may be;

                  (b)        in relation to a charge other than a charge to which subsection 253(3) applies - the period within which a notice in respect of the charge (other than a notice under section 261) is required to be lodged with the Registrar, being the period specified in the relevant section or that period as extended by the Court under section 258, has not expired at the commencement of the winding up or at the time of the appointment referred to in paragraph (1)(b) and the notice is lodged before the expiration of that period;

                  (c)        in relation to a charge to which subsection 253(3) applies - the period of 45 days after the chargee becomes aware that the foreign company has been registered as a foreign company under this Act has not expired at the commencement of the winding up or at the time of the appointment referred to in paragraph (1)(b) and the notice is lodged before the expiration of that period; or

                  (d)       in relation to a charge to which section 254 applies - the period of 45 days after the chargee becomes aware that the property charged has been acquired by the company has not expired at the commencement of the winding up or at the time of the appointment referred to in paragraph (1)(b) and the notice is lodged before the expiration of that period.

                  (3)        The reference in paragraph (2)(a) to the relevant period is a reference —

                  (a)        in relation to a charge to which subsection 253(1) applies - to the period of 45 days specified in that subsection or that period as extended by the Court under section 258; or

                  (b)        in relation to a charge to which subsection 253(3) applies - to the period of 45 days after the chargee becomes aware that the foreign company has been registered as a company under this Act.

                  (4)        Where, after there has been a variation in the terms of a registrable charge on property of a company having the effect of increasing the amount of the debt or increasing the liability (whether present or prospective) secured by the charge —

                  (a)        an order is made, or a resolution is passed, for the winding up of the company; or

                  (b)        an official manager is appointed in respect of the company,

that registrable charge is voidable as a security on that property to the extent that it secures the amount of the increase in that debt or liability unless —

                  (c)        a notice in respect of the variation was lodged under section 261 —

                              (i)   within the period of 45 days specified in subsection 261(2) or that period as extended by the Court under section 258; or

                              (ii)  not later than 6 months before the commencement of the winding up or the appointment of the official manager, as the case may be; or

                  (d)       the period referred to in subparagraph (c)(i) has not expired at the commencement of the winding up or at the time of appointment of the official manager and the notice is lodged before the expiration of that period.

Court may extend period

      258.     If the Court is satisfied that the failure to lodge a notice in respect of a charge or in respect of a variation in the terms of a charge as required by any provision of this Part —

            (a)        was accidental or due to inadvertence or to some other sufficient cause; or

                  (b)        is not of a nature to prejudice the position of creditors or shareholders,

or that on other grounds it is just to grant relief, the Court may, on the application of the company or of a person interested and on such terms and conditions as are just, by order, extend the period for lodgment for a further period specified in the order.

Avoidance of certain later charges

      259.     (1)        Where —

                  (a)        a registrable charge (in this section referred to as “the later charge”) is created before the expiration of 45 days after the creation of an unregistered registrable charge (in this section referred to as “the earlier charge”);

                  (b)        the later charge relates to all or any of the property to which the earlier charge related; and

                  (c)        the later charge is given as a security for the same liability as is secured by the earlier charge or a part of that liability,

the later charge, to the extent to which it is a security for the same liability or part, and so far as it relates to the property comprised in the earlier charge, is void as a security on that property as against a liquidator or official manager of the company.

                  (2)        Subsection (1) has effect notwithstanding that a notice in respect of the later charge was lodged with the Registrar under section 253 within a period mentioned in paragraph 257(2)(a) or (b) unless the Court is satisfied that the later charge was given in good faith for the purpose of correcting some material error in the earlier charge or under other proper circumstances and not for the purposes of avoiding or evading the operation of this Part.

Rights of third parties without notice

      260.     (1)        Subsection 257(1) or (4) does not operate to affect the title of a person to property purchased for value from a chargee or from a receiver appointed by a chargee in the exercise of powers conferred by the charge or implied by law if that person purchased the property in good faith and without notice of —

            (a)        the filing of an application for an order for the winding up of the company;

                  (b)        the passing of a resolution for the voluntary winding up of the company; or

                  (c)        the passing of a resolution that the company be placed under official management.

                  (2)        The burden of proving that a person purchased property as mentioned in subsection (1) is on the person asserting that the property was so purchased.

Assignment and variation of charges

      261.     (1)        Where, after a registrable charge on property of a company has been created, a person other than the original chargee becomes the holder of the charge, that person shall, within 45 days after he becomes the holder of the charge —

                  (a)        lodge with the Registrar a notice stating that he has become the holder of the charge; and

                  (b)        give to the company a copy of the notice.

                  (2)        Where, after a registrable charge on property of a company has been created, there is a variation in the terms of the charge having the effect of —

increasing the amount of the debt or increasing the liabilities (whether present or prospective) secured by the charge; or

prohibiting or restricting the creation of subsequent charges on the property,

the company shall, within 45 days after the variation occurs, ensure that there is lodged with the Registrar a notice setting out particulars of the variation and accompanied by the instrument (if any) effecting the variation or a certified copy of that instrument.

                  (3)        Where a charge created by a company secures a debt of an unspecified amount or secures a debt of a specified amount and further advances, a payment or advance made by the chargee to the company in accordance with the terms of the charge shall not be taken, for the purposes of subsection (2), to be a variation in the terms of the charge having the effect of increasing the amount of the charge or the liabilities (whether present or prospective) secured by the charge.

                  (4)        A reference in this section to the chargee in relation to a charge is, if the charge is constituted by debentures and there is a trustee for debenture holders, a reference to the trustee for debenture holders.

                  (5)        Section 253 does not require the lodgment of a notice under that section in relation to a charge by reason only that the terms of the charge are varied in a manner mentioned in this section and not otherwise.

Satisfaction of, and release of property from, charges

      262.     (1)        Where, with respect to a charge registered under this Part —

                  (a)        the debt or other liability the payment or discharge of which was secured by the charge has been paid or discharged in whole or in part; or

                  (b)        the property charged or part of that property has been released from the charge,

the person who was the holder of the charge at the time when the debt or other liability was so paid or discharged or the property or part of the property was released shall, within 14 days after receipt of a request in writing made by the company on whose property the charge exists, give to the company a memorandum acknowledging that the debt or other liability has been paid or discharged in whole or in part or that the property or that part of it is no longer subject to the charge, as the case may be.

                  (2)        The company may lodge the memorandum with the Registrar and, upon the memorandum being so lodged, the Registrar shall enter in the Register particulars of the matters stated in the memorandum.

                  (3)        The reference in subsection (1) to the person who was the holder of a charge at the time when the debt or other liability was paid or discharged or the property or part of the property was released is, if the charge was constituted by debentures and there was a trustee for the debenture holders, a reference to the person who was, at that time, the trustee for the debenture holders.

Lodgment of notices, offences, etc

      263.     (1)        Where a notice in respect of a charge on property of a company is required to be lodged with the Registrar under section 253 or 254 or subsection 261 (2), the notice may be lodged by the company or by some interested person.

                  (2)        Where default is made in complying with section 253 or 254 or subsection 261(2) in relation to a registrable charge on property of a company, the company and any officer of the company who is in default are each guilty of an offence.

                  (3)        Where a person who becomes the holder of a registrable charge fails to comply with subsection 261(1), the person and, if the person is a corporation, any officer of the corporation who is in default, are each guilty of an offence.

                  (4)        Where a document required by this Part other than subsection 261(1) to be lodged with the Registrar is so lodged by a person other than the company concerned, that person —

                  (a)        shall, within 7 days after the lodgment of the document, give to the company a copy of the document;  and

                  (b)        is entitled to recover from the company the amount of any fees properly paid by him on lodgment of the document.

Company to keep documents relating to charges and register of charges

      264.     (1)        A company shall keep, at the place where the register referred to in subsection (2) is kept, a copy of each document relating to a charge on property of the company that is lodged with the Registrar under this Part or was lodged with the Registrar of Companies under the repealed laws and a copy of each document that is given to the company under this Part.

                  (2)        A company shall keep a register and shall, upon the creation of a charge (whether registrable or not) on property of the company, or upon the acquisition of property subject to a charge (whether registrable or not), forthwith enter in the register particulars of the charge, including —

                  (a)        if the charge is a charge created by the company, the date of its creation or, if the charge was a charge existing on property acquired by the company, the date on which the property was acquired;

                  (b)        a short description of the liability (whether contingent or otherwise) secured by the charge;

                  (c)        a short description of the property charged;

                  (d)       the name of the trustee for debenture holders or, if there is no such trustee, the name of the chargee; and

                  (e)        the name of the person whom the company believes to be the holder of the charge.

                  (3)        A register kept by a company pursuant to subsection (2) shall be open for inspection —

                  (a)        by a creditor or member of the company - without charge; and

                  (b)        by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

                  (4)        A person may request a company to furnish him with a copy of the register or of a part of the register and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar allows; or

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Registrar allows.

                  (5)        If default is made in complying with a provision of this section, the company and any officer of the company who is in default are each guilty of an offence.

Certificates

      265.     (1)        Where particulars of a charge are entered in the Register in accordance with this Part, the Registrar shall, on request by a person, give to that person a certificate under the seal of the Registrar setting out those particulars and stating the time and date when a notice in respect of the charge containing those particulars was lodged with the Registrar and, if the word “Provisional” appears in the Register next to the entry, stating that fact.

                  (2)        A certificate under subsection (1) is evidence of matters stated in the certificate.

                  (3)        Where particulars of a charge are entered in the Register in accordance with this Part and the word “Provisional” does not appear in the Register next to the entry, the Registrar shall, on request by any person, give to that person a certificate under the seal of the Registrar stating that particulars of the charge are entered in the Register in accordance with this Part.

                  (4)        A certificate under subsection (3) is conclusive evidence that the requirements of this Part as to registration (other than the requirements relating to the period after the creation of the charge within which notice in respect of the charge is required to be lodged with the Registrar) have been complied with.

Power of Court to rectify Register,

      266.     Where the Court is satisfied that —

                  (a)        a particular with respect to a registrable charge on property of a company has been omitted from, or mis-stated in, the Register or a memorandum referred to in section 262; and

                  (b)        the omission or mis-statement —

                              (i)   was accidental or due to inadvertence or to some other sufficient cause; or

                              (ii)  is not of a nature to prejudice creditors or shareholders,

                                    or that on other grounds it is just to grant relief,

the Court may, on the application of the company or of a person interested and on such terms and conditions as are just, order that the omission or mis-statement be rectified.

Exemption from compliance with certain requirements

      267.     (1)              The Registrar may, by instrument in writing, exempt a person, as specified in the instrument and subject to any conditions specified in the instrument, from compliance with such of the requirements of section 253, 254 or 261 relating to —

                  (a)        the particulars to be contained in a notice under the relevant section;

                  (b)        the documents (other than the notice) to be lodged under the relevant section; or

                  (c)        the verification of a document required to be lodged under the relevant section,

as are specified in the instrument.

                  (2)        A person who is so exempted by the Registrar subject to a condition shall not contravene or fail to comply with the condition.

                  (3)        Where a person has contravened or failed to comply with a condition to which an exemption under this section is subject, the Court may, on the application of the Registrar, order the person to comply with the condition.

Charges created before commencement of this Act

      268.     Notwithstanding the repeals effected by section 4, the provisions of the repealed laws as to the registration of charges created by companies and any other provisions of those laws that are necessary for the effectual operation of those provisions, continue in force as if this Act had not been enacted, in relation to —

                  (a)        a charge created by a company before the commencement of this Act; and

                  (b)        a charge to which property acquired by a company before the commencement of this Act was subject when the property was so acquired,

and the provisions of this Part do not apply in relation to the charge.

PART 12  —  MODIFICATION OF CERTAIN PROVISIONS

Banking business

      269.     (1)        Subject to subsection (3) —

                  (a)        nothing in a prescribed provision applies to or in relation to anything done or to be done by a banking corporation in the ordinary course of its banking business;

                  (b)        a banking corporation is not required to comply with a prescribed provision in respect of anything done or to be done by the corporation in the ordinary course of its banking business; and

                  (c)        a banking corporation shall not be taken, by reason of anything done or to be done by the corporation in the ordinary course of its banking business, to be a borrowing company for the purposes of a prescribed provision.

                  (2)        In subsection (1), “prescribed provision” means a provision of Part 5 or 9 or of section 641.

                  (3)        Where —

                  (a)        a borrowing company is required by subsection 221(1) to make provision in a trust deed for the appointment of a corporation as a trustee for the holders of debentures; and

                  (b)        a banking corporation is appointed as a trustee for the holders of those debentures,

subsection (1) does not affect the application of a provision of this Act to or in relation to the banking corporation in its capacity as trustee for the holders of those debentures.

Powers of Registrar

      270.     (1)        This section applies to the provisions contained in Parts 5, 6, and 9.

                  (2)        The Registrar may, by instrument in writing, exempt a person, as specified in the instrument and subject to any conditions specified in the instrument, from compliance with all or any of the following:

                  (a)        the provisions to which this section applies;

                  (b)        the regulations made for the purposes of any of those provisions;

                  (c)        section 641.

                  (3)        Without limiting the generality of subsection (2), an exemption under that subsection may relate to particular securities or to securities included in a class of securities.

                  (4)        A person shall not contravene or fail to comply with a condition to which an exemption under subsection (2) is subject.

                  (5)        Where a person has contravened or failed to comply with such a condition, the Court may, on the application of the Registrar, order the person to comply with the condition.

                  (6)        The Registrar may, by instrument in writing, declare that a provision to which this section applies and regulations made for the purposes of such a provision shall have effect in their application to or in relation to a particular person or particular persons —

                  (a)        in a particular case; or

                  (b)        in relation to particular securities or to the securities included in a particular class of securities,

as if the provision or regulation specified in the instrument was omitted, modified or varied in a manner specified in the instrument and, where such a declaration is made, that provision and regulation have effect accordingly.

                  (7)        The Registrar may, by instrument in writing, declare that section 641 shall have effect in its application to or in relation to a particular person or particular persons —

                  (a)        in a particular case; or

                  (b)        in relation to particular securities or to the securities included in a particular class of securities,

as if a provision of that section specified in the instrument were omitted, modified or varied in a manner specified in the instrument and, where such a declaration is made, the section has effect accordingly.

                  (8)        The Registrar shall cause a copy of an instrument executed under this section to be published in the Gazette but failure of the Registrar to do so does not affect the validity of the instrument.

PART 13 — MANAGEMENT AND ADMINISTRATION

Division 1 — Office and Name

Registered office of company

      271.     (1)        A company shall, from and including the day of its incorporation under this Act, have a registered office in Norfolk Island.

                  (2)        The office shall be situated in a building and shall be open and accessible to the public —

                  (a)        where a notice has been lodged by the company with the Registrar under subsection 272(2) or under the corresponding provision of the repealed laws - for such hours (being not less than 3) between the hours of 9 a.m. and 5 p.m. of each day (Saturdays, Sundays and holidays excepted) as are specified in that notice or in a notice lodged by the company with the Registrar under subsection 272(4) or under the corresponding provision of the repealed laws; or

                  (b)        where a notice has not been lodged by the company with the Registrar under subsection 272(2) or under the corresponding provision of the repealed laws - for not less than 5 hours between the hours of 10 a.m. and 5 p.m. of each day (Saturdays, Sundays and holidays excepted).

                  (3)        If default is made in complying with subsection (1) or (2), the company and any officer of the company who is in default are each guilty of an offence.

                  (4)        In this section, a reference to 5 p.m. is, in respect of a Wednesday, a reference to 1 p.m.

Notice of address of registered office and office hours

      272.     (1)        On the lodging of the memorandum of a proposed company for registration, there shall be lodged with it a notice of the address of the proposed registered office of the company.

                  (2)        On the lodging of the memorandum of a proposed company for registration or at some later time, notice of the hours during which the registered office of the company is to be open and accessible to the public may be lodged with the memorandum.

                  (3)        Notice of a change in the situation of the registered office of a company shall be lodged by the company with the Registrar not later than 7 days after the day on which the change occurs.

                  (4)        Where a notice has been lodged by a company under subsection (2) or under the corresponding provision of the repealed laws, notice of a change of the hours during which the registered office of the company is open and accessible to the public shall be lodged by the company with the Registrar not later than 7 days after the day on which the change occurs.

                  (5)        If default is made in complying with subsection (3) or (4), the company and any officer of the company who is in default are each guilty of an offence.

Publication of name

      273.     (1)        The name of a company shall appear in legible characters on —

                  (a)        the common seal and every other seal of the company; and

                  (b)        each business letter, statement of account, invoice, order for goods, order for services, official notice, publication, bill of exchange, promissory note, cheque or other negotiable instrument, endorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument, receipt and letter of credit of, or purporting to be issued or signed by or on behalf of, the company, whether or not the company is carrying on a business under a business name.

                  (2)        If an officer of a company or a person on behalf of a company —

                  (a)        uses or authorises the use of a seal that purports to be a seal of the company but on which the name of the company does not appear as required by subsection (1);

                  (b)        issues or authorises the issue of a business letter, statement of account, invoice, order for goods, order for services or official notice or publication of the company on which the name of the company does not appear as required by subsection (1); or

                  (c)        signs, issues or authorises to be signed or issued on behalf of the company a bill of exchange, promissory note, cheque or other negotiable instrument, an endorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument or a receipt or letter of credit, on which the name of the company does not appear as required by subsection (1),

he is guilty of an offence.

      Penalty:           10 penalty units.

                  (3)        If an officer of a company or a person on behalf of a company contravenes paragraph 2(b) or (c), he is liable to the holder of the instrument or letter of credit concerned for the amount due on it unless that amount is paid by the company.

                  (4)        A company shall paint or affix, and keep painted or affixed, on the outside of each office or place in which its business is carried on, in a conspicuous position and in letters easily legible, its name, and also, in the case of the registered office, the words “Registered Office”.

                  (5)        If default is made in complying with subsection (1) or (4), the company is guilty of an offence.

      Penalty:           10 penalty units.

Division 2 — Directors and other Officers

Directors

      274.     (1)        A public company shall have at least 3 directors and a proprietary company shall have at least 2 directors.

                  (2)        At least 2 directors of a public company shall be natural persons and at least one director of a proprietary company shall be a natural person.

                  (3)        Where the articles of a company incorporated before the date of commencement of this Act provide for the appointment of one director only, the articles shall, from and including that date, be deemed to provide for the appointment of 2 directors, being natural persons.

                  (4)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

Restrictions on appointment or advertisement of director

      275.     (1)        a person shall not be named as a director or proposed director in the memorandum or articles of a company, or in a prospectus, unless, before the registration of the memorandum or articles or the issue of the prospectus, as the case may be, by himself or by his agent authorised in writing for the purpose, he has signed and lodged with the Registrar a consent in writing to act as a director and has —

                  (a)        signed the memorandum for a number of shares not less than his qualification (if any);

                  (b)        signed and lodged with the Registrar an undertaking in writing to take from the company and pay for his qualification shares (if any);

                  (c)        made and lodged with the Registrar a statement in writing to the effect that a number of shares, not less than his qualification (if any), are registered in his name; or

                  (d)       in the case of a company formed, or intended to be formed, by way of reconstruction of another corporation or group of corporations or to acquire the shares in another corporation or in the corporations included in a group of corporations - made and lodged with the Registrar a statement in writing that he was a shareholder in that other corporation or in one or more of the corporations included in that group and that, as a shareholder, he will be entitled to receive and have registered in his name a number of shares not less than his qualification by virtue of the terms of an agreement relating to the reconstruction.

                  (2)        Where a person has signed and lodged an undertaking to take and pay for his qualification shares, he is, as regards those shares, in the same position as if he had signed the memorandum for that number of shares.

                  (3)        The foregoing provisions of this section (other than the provisions relating to the signing of a consent to act as director) do not apply to —

                  (a)        a company that does not have a share capital;

                  (b)        a proprietary company; or

                  (c)        a prospectus issued by or on behalf of a company or the articles adopted by a company after the expiration of one year from the date of incorporation of the company.

                  (4)        On the lodging of the memorandum of a company for registration, the persons desiring the incorporation of the company shall lodge with it a list, certified by one of those persons to be correct, of the persons who have consented to be directors of the company.

                  (5)        If the list contains the name of a person who has not so consented, the person who certified the list to be correct is guilty of an offence.

Qualifications of directors

      276.     (1)        A director who is by the articles required to hold a specified share qualification and is not already qualified shall obtain his qualification within 2 months after his appointment or within such shorter period as is fixed by the articles.

                  (2)        Unless otherwise provided by the articles, the qualification of a director of a company must be held by him solely and not as one of several joint holders.

                  (3)        Subsection (1) does not affect the operation of any of the preceding provisions of this Division.

Vacation of office

      277.     (1)        The office of a director of a company is, by force of this section, vacated if the director —

                  (a)        has not within the period referred to in subsection 276(1) obtained his qualification;

                  (b)        after so obtaining his qualification, ceases to hold his qualification;

                  (c)        becomes an insolvent under administration;

                  (d)       is convicted of an offence referred to in subsection 282(2); or

                  (e)        becomes a person subject to a restriction.

                  (2)        A person whose office is vacated by reason of paragraph (1)(a) or (b) is incapable of being re-appointed as a director until he has obtained his qualification.

                  (3)        A person whose office is vacated by reason of paragraph (1)(c) is incapable, without the leave of the Court, of being re-appointed as a director of a company until he ceases to be an insolvent under administration.

                  (4)        A person whose office is vacated by reason of paragraph (1)(d) is incapable, except with the leave of the Court, of being appointed as a director of a company until the expiration of the period of 5 years referred to in subsection 282(2).

                  (5)        A person whose office is vacated by reason of his being a person referred to in paragraph 12(a) or (b) is incapable of being appointed as a director of a company until the expiration of the period specified in the relevant order of the Court.

                  (6)        A person whose office is vacated by reason of his being a person referred to in paragraph (12)(c) is incapable, except with the leave of the Court, of being appointed as a director of a company until the expiration of the period specified in the notice referred to in that paragraph.

                  (7)        A person whose office is vacated by reason of paragraph (1)(a) or (b) shall not purport to act as a director of the company unless he is validly reappointed as a director.

      Penalty:           10 penalty units or imprisonment or both.

Appointment of directors to be voted on individually

      278.     (1)        At a general meeting of a public company, a motion for the appointment of 2 or more persons as directors by a single resolution shall not be moved unless a resolution that it be so moved has first been agreed to by the meeting without a vote being cast against it.

                  (2)        A resolution passed pursuant to a motion moved in contravention of this section is void, whether objection was made at the time or not.

                  (3)        Where a resolution pursuant to a motion moved in contravention of this section is passed, a provision for the automatic re-appointment of retiring directors in default of another appointment does not apply.

                  (4)        For the purposes of this section, a motion for approving the appointment of a person or for nominating a person for appointment shall be treated as a motion for his appointment.

                  (5)This section does not —

                  (a)        apply to a resolution altering the company’s articles;  or

                  (b)        to prevent the election of 2 or more directors by ballot or poll.

Validity of acts of directors and secretaries

      279.     (1)        The acts of a director or secretary of a corporation are valid notwithstanding a defect that is afterwards discovered in his appointment or qualification.

                  (2)        Where a person whose office as director of a corporation is vacated pursuant to subsection 277(1) purports to do an act as director of the corporation, that act is valid, in relation to a person dealing with the corporation in good faith and for value and without actual knowledge of the matter by reason of which the office of the first-mentioned person was vacated, as if that office had not been vacated.

Removal of directors

      280.     (1)        A public company may, by resolution, remove a director before the expiration of his period of office, notwithstanding anything in its articles or in an agreement between it and him but, where a director so removed was appointed to represent the interests of a particular class of shareholders or debenture holders, the resolution to remove him does not take effect until his successor has been appointed.

                  (2)        Special notice is required of a resolution to remove a director under this section or to appoint a person in place of a director so removed at the meeting at which he is removed.

                  (3)        On receipt of notice of an intended resolution to remove a director under this section, the company shall forthwith send a copy of the notice to the director concerned and the director (whether or not he is a member of the company) is entitled to be heard on the matter at the meeting.

                  (4)        Where notice is given pursuant to subsection (2) and the director concerned makes with respect to the notice representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so —

                  (a)        in any notice of the intended resolution given to members of the company - state the fact of the representations having been made;  and

                  (b)        send a copy of the representations to each member of the company to whom notice of the meeting has been or is sent.

                  (5)        If a copy of the representations is not so sent because they were received too late or because of the company's default, the director may, without prejudice to his right to be heard orally, require that the representations be read out at the meeting.

                  (6)        Notwithstanding the foregoing provisions of this section, copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of some other person who claims to be aggrieved, the Court is satisfied that the rights conferred by this section are not being exercised in good faith.

                  (7)        The Court may order the costs of the company or of the other person on an application under subsection (6) to be paid in whole or in part by the director, notwithstanding that he is not a party to the application.

                  (8)        A vacancy created by the removal of a director under this section that is not filled at the meeting at which he is removed may be filled as a casual vacancy.

                  (9)        A person appointed as director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become a director on the day on which the person in whose place he was appointed was last appointed a director.

                  (10)      The preceding provisions of this section do not deprive a person removed under those provisions of compensation or damages payable to him in respect of the termination of his appointment as director or of an appointment terminating with that as director or as affecting a power to remove a director that exists apart from this section.

                  (11)      Notwithstanding anything in the articles or in an agreement, a director of a public company shall not be removed by, or be required to vacate his office by reason of, a resolution, request or notice of the directors or of any of them.

Age of directors

      281.     (1)        Subject to this section, a person who has attained the age of 72 years shall not be appointed or act as a director of a public company or of the subsidiary of a public company.

                  (2)        Subsection (1) does not prevent a person from acting as a director of a company during the period commencing on the day on which he attains the age of 72 years and ending at the conclusion of the next annual general meeting commencing after that day.

                  (3)        The office of a director of a company or of a subsidiary of a public company becomes vacant at the conclusion of the next annual general meeting of the company that commences after the director attains the age of 72 years.

                  (4)        An act done by a person as director is valid notwithstanding that it is afterwards discovered that he had attained the age of 72 years at the time of his appointment or that his appointment had terminated by virtue of subsection (2).

                  (5)        Where the office of a director has become vacant by virtue of subsection (3), a provision for the automatic re-appointment of retiring directors in default of another appointment does not apply in relation to that director.

                  (6)        If a vacancy created by virtue of subsection (3) is not filled at the meeting at which the office became vacant, the office may be filled as a casual vacancy.

                  (7)        Subject to subsection (8), a person who has attained the age of 72 years may, by a resolution stating the age of that person, being a resolution —

                  (a)        of which not less than 14 days’ written notice has been given to the members of the company entitled to vote stating that the person is a candidate for election who has attained the age of 72 years and stating his age; and

                  (b)        that is passed by a majority of not less than three-quarters of such members of the company as, being entitled so to do, vote in person or, where proxies are allowed, by proxy, at a general meeting of the company,

be appointed or re-appointed as a director of that company to hold office until the conclusion of the next annual general meeting of the company.

                  (8)        Where the company is a subsidiary of a public company, the appointment or re-appointment referred to in subsection (7) does not have effect unless —

                  (a)        the person appointed or re-appointed is a director of the holding company; or

                  (b)        the appointment or re-appointment of the person as a director of the company has been approved by a resolution of the holding company —

                              (i)   of which not less than 14 days' written notice was given to the members of the holding company entitled to vote stating that the person was a candidate for election as a director of the company who has attained the age of 72 years and stating his age; and

                              (ii)  which was passed by a majority of not less than three-quarters of such members of the holding company as, being entitled so to do, voted in person or, where proxies were allowed, by proxy at a general meeting of the holding company.

                  (9)        Where the articles of a company limited by guarantee provide for the holding of a postal ballot for the election of a director or directors and such a postal ballot is held, being a postal ballot —

                  (a)        of which the members entitled to vote have been given notice in writing by the company stating that a candidate for election has attained the age of 72 years and stating the age of the candidate; and

                  (b)        in which that candidate is elected by a majority of not less than three-quarters of the members who, being entitled to vote, vote in the ballot,

that candidate may be appointed or re-appointed as a director to hold office until the conclusion of the next annual general meeting of the company.

                  (10)      Where the articles of a company limited by guarantee provide for the election or appointment of a director or directors otherwise than by members at a general meeting or by a postal ballot of members and the Registrar, by instrument in writing, declares that this section does not apply to the company or its directors, then, subject to such conditions (if any) as the Registrar specifies in the instrument, this section does not so apply.

                  (11)      A vacancy in the office of a director occurring by virtue of subsection (3) shall not be taken into account in determining when other directors are to retire.

                  (12)      This section does not affect the operation of a provision of the memorandum or articles of a company preventing a person from being appointed a director or requiring a director to vacate his office at any age less than 72 years.

                  (13)      A person who has not attained the age of 18 years is incapable of being appointed as a director of a company.

Certain persons not to manage corporations

      282.     (1)        A person who is an insolvent under administration shall not be a director or promoter of, or be in any way (whether directly or indirectly) concerned in or take part in the management of, a corporation except with the leave of the Court.

      Penalty:           50 penalty units or imprisonment or both.

                  (2)        A person who has, whether before or after the commencement of this Act, been convicted, whether in Norfolk Island or elsewhere —

                  (a)        on indictment of an offence in connection with the promotion, formation or management of a corporation; or

                  (b)        of an offence involving fraud or dishonesty punishable on conviction by imprisonment for a period of not less than 3 months,

shall not, within a period of 5 years after his conviction or, if he was sentenced to imprisonment, after his release from prison, except with the leave of the Court, be a director or promoter of, or be in any way (whether directly or indirectly) concerned in or take part in the management of, a corporation.

      Penalty:           50 penalty units or imprisonment or both.

                  (3)        In a proceeding for an offence against subsection (2), a certificate by a prescribed authority stating that a person was released from prison on a specified date is evidence that that person was released from prison on that date.

                  (4)        When granting leave under this section, the Court may impose such conditions or limitations as it thinks just and a person who contravenes or fails to comply with such a condition or limitation that is applicable to him is guilty of an offence.

      Penalty:           50 penalty units or imprisonment or both.

                  (5)        A person intending to apply for leave of the Court under this section shall give to the Registrar not less than 21 days’ notice of his intention so to apply.

                  (6)        The Court may at any time, on the application of the Registrar, revoke leave granted by the Court under this section or vary any conditions or limitations to which the leave is subject.

Court may order persons not to manage corporations

      283.     (1)        Where, on application by the Registrar, the Court is satisfied —

                  (a)        that —

                              (i)   a corporation has, during a period in which a person (in this subsection referred to as “the relevant person”) was a relevant officer of the corporation, repeatedly breached relevant legislation; and

                              (ii)  the relevant person failed to take reasonable steps to prevent the corporation so breaching relevant legislation;

                  (b)        that —

                              (i)   each of 2 or more corporations has at a time when a person (in this subsection also referred to as “the relevant person”) was a relevant officer of the corporation, breached relevant legislation; and

                              (ii)  in each case the relevant person failed to take reasonable steps to prevent the corporation breaching relevant legislation;

                  (c)        that —

                              (i)   a person (in this subsection also referred to as “the relevant person”) has repeatedly breached relevant legislation; and

                              (ii)  on 2 or more of the occasions when the relevant person breached relevant legislation, he was a relevant officer of a corporation (whether or not he was a relevant officer of the same corporation on each of those occasions); or

                  (d)       that, at a time during a period in which a person (in this subsection also referred to as “the relevant person”) has been or was a relevant officer of a corporation, the relevant person acted dishonestly, or failed to exercise a reasonable degree of care and diligence, in the performance of his duties as an officer of the corporation,

the Court may, in its discretion, by order prohibit the relevant person, for such period as is specified in the order, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation.

                  (2)        A person shall not contravene an order made under subsection (1) that is applicable to him.

      Penalty:           50 penalty units or imprisonment or both.

                  (3)        A person shall not contravene an order made under a provision of a law of a State or of a Territory other than Norfolk Island that corresponds with subsection (1), being an order that is applicable to him.

      Penalty:           50 penalty units or imprisonment or both.

                  (4)        In this section —

                  (a)        a reference to a contravention of, or a failure to comply with, a provision of a relevant Act includes a reference to such a contravention or failure to comply that occurred before the date of commencement of this Act; and

                  (b)        a reference to a period in which a person has been or was a relevant officer of a corporation includes a reference to such a period that elapsed, or part of which elapsed, before that date.

                  (5)        For the purposes of this section —

                  (a)        a corporation or other person shall be taken to have breached relevant legislation if the corporation or other person has contravened or failed to comply with a provision of a relevant Act; and

                  (b)        a corporation or other person may be taken to have breached relevant legislation repeatedly if the corporation or the other person has —

                              (i)   on 2 or more occasions, contravened or failed to comply with a particular provision of a relevant Act;

                              (ii)  contravened or failed to comply with 2 or more provisions of a relevant Act; or

                              (iii) contravened or failed to comply with the provisions of 2 or more relevant Acts.

                  (6)        For the purposes of this section —

                  (a)        each of the following persons is a prescribed person in relation to a corporation:

                              (i)   an official manager, liquidator or provisional liquidator of the corporation;

                              (ii)  a member of the corporation;

                              (iii) a creditor of the corporation;

                  (b)        each of the following laws is a relevant Act:

                              (i)   this Act;

                              (ii)  the repealed laws;

                              (iii) a law of a State or of a Territory other than Norfolk Island relating to companies;

                              (iv) a previous law of a State or of a Territory other than Norfolk Island relating to companies; and

                  (c)        “relevant officer”, in relation to a corporation, means a director, secretary or executive officer of the corporation.

Disclosure of interests in contracts, property, offices, etc

      284.     (1)        Subject to this section, a director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to his knowledge, declare the nature of his interest at a meeting of the directors of the company.

      Penalty:           10 penalty units or imprisonment or both.

                  (2)        Subsection (1) does not apply where the interest of a director consists only of being a member or creditor of a corporation that is interested in a contract or proposed contract with the company if the interest of the director may properly be regarded as not being a material interest.

                  (3)        A director of a company shall not be taken to be interested or to have been at any time interested in a contract or proposed contract by reason only —

                  (a)        where the contract or proposed contract relates to a loan to the company - that he guaranteed or joined in guaranteeing the repayment of the loan or some part of the loan; or

                  (b)        where the contract or proposed contract has been or will be made with or for the benefit of or on behalf of a corporation that is related to the company - that he is a director of that corporation.

                  (4)        Subsection (3) has effect not only for the purposes of this Act but also for the purposes of any rule of law but does not affect the operation of a provision in the articles of the company.

                  (5)        For the purposes of subsection (1), a general notice given to the directors of a company by a director to the effect that he is an officer or member of a specified corporation or a member of a specified firm and is to be regarded as interested in any contract that may, after the date of the notice, be made with that corporation or firm shall be deemed to be a sufficient declaration of interest in relation to a contract so made or proposed to be made if —

                  (a)        the notice states the nature and extent of the interest of the director in the corporation or firm;

                  (b)        when the question of confirming or entering into the contract is first taken into consideration, the extent of his interest in the corporation or firm is not greater than as stated in the notice; and

                  (c)        the notice is given at a meeting of the directors or the director takes reasonable steps to ensure that it is read at the next meeting of the directors after it is given.

                  (6)        A director of a company who holds an office or possesses property in consequence of which, whether directly or indirectly, duties or interests  might be created in conflict with  his duties or interests as director shall, in accordance with subsection (7), declare at a meeting of the directors of the company the fact and the nature, character and extent of the conflict.

      Penalty:           10 penalty units or imprisonment or both.

                  (7)        A declaration required by subsection (6) in relation to the holding of an office or the possession of property shall be made —

                  (a)        where the person holds the office or possesses the property as mentioned in subsection (6) when he becomes a director - at the first meeting of directors held after —

                              (i)   he becomes a director; or

                              (ii)  the relevant facts as to the holding of the office or the possession of the property come to his knowledge,

                              which ever is the later; or

                  (b)        where the person commences to hold the office or comes into possession of the property as mentioned in subsection (6) after he becomes a director - at the first meeting of directors held after the relevant facts as to the holding of the office or the possession of the property come to his knowledge.

                  (8)        A secretary of a company shall record each declaration under this section in the minutes of the meeting at which it was made.

                  (9)        Except as provided by subsection (3), this section is in addition to, and does not affect the operation of, any rule of law or any provision in the articles restricting a director from having an interest in contracts with the company or from holding an office or possessing property involving duties or interests in conflict with his duties or interests as a director.

Duty and liability of officers

      285.     (1)        An officer of a corporation shall at all times act honestly in the exercise of his powers and the discharge of the duties of his office.

Penalty:           (a)  in a case to which paragraph (b) does not apply - 50 penalty units; or

                              (b)  where the offence was committed with intent to deceive or defraud the company, members or creditors of the company or creditors of some other person or for some other fraudulent purpose - 200 penalty units or imprisonment or both.

                  (2)        An officer of a corporation shall at all times exercise reasonable care and diligence in the exercise of his powers and the discharge of his duties.

      Penalty:           50 penalty units.

                  (3)        An officer or employee of a corporation, or a former officer or employee of a corporation, shall not make improper use of information acquired by virtue of his position as such an officer or employee to gain, directly or indirectly, an advantage for himself or for some other person or to cause detriment to the corporation.

      Penalty:           20 penalty units or imprisonment or both.

                  (4)        An officer or employee of a corporation shall not make improper use of his position as such an officer or employee to gain, directly or indirectly, an advantage for himself or for some other person or to cause detriment to the corporation.

      Penalty:           20 penalty units or imprisonment or both.

                  (5)        For the purposes of this section, "officer", in relation to a corporation, means —

                  (a)        a director, secretary or executive officer of the corporation;

                  (b)        a receiver or manager of the corporation or other authorised person who assumes control of property of the corporation for the purpose of enforcing a charge;

                  (c)        an official manager or a deputy official manager of the corporation;

                  (d)       a liquidator of the corporation; and

                  (e)        a trustee or other person administering a compromise or arrangement made between the corporation and some other person.

                  (6)        Where —

                  (a)        a person is convicted of an offence under this section; and

                  (b)        the Court by or before which he is convicted is satisfied that the corporation has suffered loss or damage as a result of the act or omission that constituted the offence,

the Court may, in addition to imposing a penalty, order the convicted person to pay compensation to the corporation of such amount as is just and the order may be enforced as if it were a judgment of that Court.

                  (7)        Where a person contravenes or fails to comply with a provision of this section in relation to a corporation, the corporation may, whether or not the person has been convicted of an offence under this section in relation to that contravention or failure, recover from the person as a debt due to the corporation by action in a court of competent jurisdiction —

                  (a)        if that person or some other person made a profit as a result of the contravention or failure - an amount equal to the amount of that profit; and

            (b)        if the corporation has suffered loss or damage as a result of the contravention or failure - an amount equal to the amount of that loss or damage.

                  (8)        This section has effect in addition to, and does not affect the operation of, any rule of law relating to the duty or liability of a person by reason of his office or employment in relation to a corporation and does not prevent the institution of a civil proceeding in respect of a breach of such a duty or in respect of such a liability.

Loans to directors

      286.     (1)        A company shall not, whether directly or indirectly —

                  (a)        make a loan to —

                              (i)   a director of the company, a spouse of such a director or a relative of such a director or spouse;

                              (ii)  a director of a corporation that is related to the company, a spouse of such a director or a relative of such a director or spouse;

                              (iii) a trustee of a trust under which a person referred to in subparagraph (i) or (ii) has a beneficial interest, where the loan is made to the trustee in his capacity as trustee;

                              (iv) a trustee of a trust under which a corporation has a beneficial interest, where a person referred to in subparagraph (i) or (ii) has, or 2 or more such persons together have, a direct or indirect beneficial interest in shares in the corporation the nominal value of which is not less than 10% of the nominal value of the issued share capital of the corporation, where the loan is made to the trustee in his capacity as trustee; or

                              (v)  a corporation where a person referred to in subparagraph (i) or (ii) has, or 2 or more such persons together have, a direct or indirect beneficial interest in shares in the corporation the nominal value of which is not less than 10% of the nominal value of the issued share capital of the corporation; or

                  (b)        give a guarantee or provide security in connection with a loan made or to be made by another person to a natural person or corporation referred to in paragraph (a).

                  (2)        Where a company —

                  (a)        makes a loan to a corporation, or gives a guarantee or provides security in connection with a loan made to a corporation; or

                  (b)        makes a loan to a trustee of a trust under which a corporation has a beneficial interest, or gives a guarantee or provides security in connection with a loan made to a trustee of a trust under which a corporation has a beneficial interest,

a person or persons shall not be taken for the purposes of subsection (1) to have a beneficial interest in shares in the corporation by reason only that the company has a relevant interest or relevant interests in shares in the corporation and the person has or the persons have a relevant interest or relevant interests in shares in the company.

                  (3)        This section does not prevent a company from recovering the amount of, or of interest on, a loan made, or an amount for which it becomes liable under a guarantee given or in respect of a security provided, contrary to the provisions of this section.

Exceptions

      287.     (1)        Section 286 does not apply —

                  (a)        to anything done by an exempt proprietary company;

                  (b)        to a loan made by a company to, or a guarantee given or security provided by a company in relation to, a corporation that is related to the company if the making of the loan, the giving of the guarantee or the provision of the security has been authorised by a resolution of the directors;

                  (c)        subject to subsection (2), to anything done by a company to provide a person with moneys to meet expenditure incurred or to be incurred by him for the purposes of the company or for the purpose of enabling him to perform properly his duties as an officer of the company;

                  (d)       subject to subsection (2), to anything done by a company to provide a person who is engaged in the full-time employment of the company or of a corporation that is related to the company with moneys to meet expenditure incurred or to be incurred by him in purchasing or otherwise acquiring premises to be used by him as his principal place of residence;

                  (e)        to a loan made by a company to a person who is engaged in the full-time employment of the company or of a corporation that is related to the company, if —

                              (i)   where neither subparagraph (ii) nor (iii) applies - the company has at a general meeting;

                              (ii)  where the company is a subsidiary of a listed corporation or listed corporations - the company and the listed corporation or listed corporations have at general meetings; or

                              (iii) where the company is not a subsidiary of a listed corporation but is a subsidiary whose ultimate holding company is incorporated in a State or in a Territory other than Norfolk Island - the company and the ultimate holding company have at general meetings,

approved a scheme for the making of such loans and the loan is made in accordance with the scheme; or

                  (f)        to a loan made, guarantee given or security provided by a company in the ordinary course of its ordinary business where —

                              (i)   that business includes the lending of money, the giving of guarantees or the provision of security in connection with loans made by other persons; and

                              (ii)  the loan that is made by the company or in respect of which the company gives the guarantee or provides the security is made on ordinary commercial terms as to the rate of interest, the terms of repayment of principal and payment of interest, the security to be provided and otherwise.

                  (2)        Paragraph (1)(c) or (d) does not authorise the making of a loan, the giving of a guarantee or the provision of a security except —

                  (a)        with the prior approval —

                              (i)   where both subparagraphs (ii) and (iii) do not apply - of the company;

                              (ii)  where the company is a subsidiary of a listed corporation or listed corporations - of the company and the listed corporation or listed corporations; or

                              (iii) where the company is not a subsidiary of a listed corporation but is a subsidiary where the ultimate holding company is incorporated in Australia or in a Territory other than Norfolk Island - of the company and the ultimate holding company,

given at a general meeting of the company or at general meetings of the company and the listed corporation or listed corporations, as the case may be, at which the purposes of the expenditure and the amount of the loan or the extent of the guarantee or security, as the case may be, are disclosed; or

                  (b)        on condition that if the making of the loan, the giving of the guarantee or the provision of the security is not approved —

                              (i)   where both subparagraphs (ii) and (iii) do not apply - by the company at or before the next annual general meeting of the company; or

                              (ii)  where the company is a subsidiary of a listed corporation or listed corporations - by the company at or before the next annual general meeting of the company or by the listed corporation at or before the next annual general meeting of the listed corporation concerned,

the loan be repaid or the liability under the guarantee or security be discharged, as the case may be, within 6 months after the conclusion of that meeting.

Liability of directors and officers

      288.     (1)        Where a company makes a loan, gives a guarantee or provides security in contravention of section 286, the company is, notwithstanding section 660, not guilty of an offence but —

                  (a)        in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a director of the company or of a corporation that is related to the company, to a spouse of such a director or to a relative of such a director or spouse - the director and any officers of the company who are in default are each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against loss arising from the making of the loan, the giving of the guarantee or the provision of the security, as the case may be; or

                  (b)        in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a trustee of a trust referred to in subparagraph 286(1)(a)(iii) - a director of the company, or of a corporation that is related to the company, by virtue of whose beneficial interest under the trust the making of the loan, the giving of the guarantee or the provision of the security contravened section 286, and any other officers of that company who are in default, are each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against loss arising from the making of the loan, the giving of the guarantee or the provision of the security, as the case may be;

                  (c)        in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a trustee of a trust under which a corporation (in this paragraph referred to as “the relevant corporation”) has a beneficial interest in circumstances referred to in subparagraph 286(1)(a)(iv) - a director of the company, or of a corporation that is related to the company, by virtue of whose beneficial interest in shares in the relevant corporation the making of the loan, the giving of the guarantee or the provision of the security contravened section 286, and any other officers of that company or of the relevant corporation  who are in default, are  each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against any loss arising from the making of the loan, the giving of the guarantee or the providing of the security, as the case may be; or

                  (d)       in the case of a loan made to, or a guarantee given or security provided in relation to a loan made to, a corporation referred to in subparagraph 286(1)(a)(v) (in this paragraph referred to as “the relevant corporation”) - a director of the company, or of a corporation that is related to the company, by virtue of whose beneficial interest in shares in the relevant corporation the making of the loan, the giving of the guarantee or the provision of the security contravened section 286, and any other officers of that company or of the relevant corporation who are in default, are each guilty of an offence and, in addition, are jointly and severally liable to indemnify the company against loss arising from the making of the loan, the giving of the guarantee or the providing of the security, as the case may be.

Penalty —

                  (e)        where the offence was committed with intent to deceive or defraud the company, members or creditors of the company or creditors of some other person or for some other fraudulent purpose - 200 penalty units or imprisonment or both; or

                  (f)        in a case to which paragraph (e) does not apply - 50 penalty units.

                  (2)        It is a defence to a prosecution for an offence against subsection (1) or to a proceeding instituted in respect of a liability under that subsection if the defendant proves that he had no knowledge of the making of the loan, the giving of the guarantee or the provision of the security.

Enforcement of guarantee or security

      289.     (1)        If a person has made a loan in relation to which a company has given a guarantee or provided security in contravention of section 286, the person may enforce the guarantee or security against the company if —

                  (a)        where the company is a proprietary company - a certificate signed by a director and a secretary of the company certifying that the company was an exempt proprietary company was furnished to the person before the guarantee was given or the security provided; or

                  (b)        in any other case - a certificate signed by a director and a secretary of the company certifying that the company was not prohibited by section 286 from giving the guarantee or providing the security was furnished to the person before the guarantee was given or the security provided and the person did not know, and had no reason to believe, that the certificate was incorrect.

                  (2)        A director or secretary of a company who furnishes a person with a certificate referred to in subsection (1) that is false is guilty of an offence.

      Penalty:           50 penalty units or imprisonment or both.

Sections not exclusive

      290.     Sections 286 to 289 (inclusive) have effect in addition to, and do not affect the operation of, any other law.

Register of directors’ shareholdings etc

      291.     (1)        A company shall keep a register showing with respect to each director of the company particulars of —

                  (a)        shares in the company or in a corporation that is related to the company, being shares in which the director has a relevant interest, and the nature and extent of that interest;

                  (b)        debentures of the company or of a corporation that is related to the company, being debentures in which the director has a relevant interest, and the nature and extent of that interest;

                  (c)        rights or options of the director or of the director and some other person or other persons in respect of the acquisition or disposal of shares in or debentures of the company or of a corporation that is related to the company; and

                  (d)       contracts to which the director is a party or under which he is entitled to a benefit, being contracts under which a person has a right to call for or to make delivery of shares in, or debentures of, the company or of a corporation that is related to the company.

                  (2)        A company need not show in its register the particulars of shares in a corporation that is related to the company and is a wholly-owned subsidiary of the company or of some other corporation.

                  (3)        A company that is a wholly-owned subsidiary of some other company shall be deemed to have complied with this section in relation to a director who is a director of that other company if the particulars required by this section to be shown in the register of the first-mentioned company with respect to the director are shown in the register of the second-mentioned company.

                  (4)        A company shall, within 7 days after receiving notice from a director under paragraph 292(1) (a), enter in its register in relation to the director the particulars referred to in subsection (1), including the number and description of shares, debentures, rights, options and contracts to which the notice relates and, in respect of shares, debentures, rights or options acquired or contracts entered into after he became a director —

                  (a)        the price or other consideration for the transaction (if any) by reason of which an entry is required to be made under this section; and

                  (b)        the date of —

                              (i)   the agreement for the transaction or, if it is later, the completion of the transaction; or

                              (ii)  where there was no transaction, the occurrence of the event by reason of which an entry is required to be made under this section.

                  (5)        A company shall, within 3 days after receiving a notice from a director under paragraph 292(1) (b), enter in its register the particulars of the change referred to in the notice.

                  (6)        A company is not, by reason of anything done under this section, to be taken for any purpose to have notice of, or to be upon inquiry as to, the right of a person to or in relation to a share in or debenture of the company.

                  (7)        A register kept by a company pursuant to this section shall be open for inspection —

                  (a)        by a member of the company - without charge; and

                  (b)        by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

                  (8)        A person may request a company to furnish him with a copy of the register or of a part of the register and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar approves; or

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Registrar approves.

                  (9)        A company shall produce its register kept pursuant to this section at the commencement of each annual general meeting of the company and keep it open and accessible during the meeting to all persons attending the meeting.

                  (10)      It is a defence to a prosecution for failing to comply with subsection (1) or (4) in respect of particulars relating to a director if the defendant proves that the failure was due to the failure of the director to comply with section 292 with respect to those particulars.

                  (11)      In determining for the purposes of this section whether a person has a relevant interest in a debenture, the provisions of section 27 that apply for the purposes of this section have effect as if a reference in those provisions to a share were a reference to a debenture.

                  (12)      If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

General duty to make disclosure

      292.     (1)        A director of a company shall give notice in writing to the company —

                  (a)        of such particulars relating to shares, debentures, rights, options and contracts as are necessary for the purposes of compliance by the company with the provisions of this Division;

                  (b)        of particulars of a change in respect of the particulars referred to in paragraph (a), including the consideration (if any) received as a result of the event giving rise to the change;

                  (c)        of such matters and events affecting or relating to himself as are necessary for the purposes of compliance by the company with any of the provisions of section 298 that are applicable in relation to him; and

                  (d)       of his date and place of birth.

                  (2)        A director required to give a notice under subsection (1) shall give the notice —

                  (a)        in the case of a notice under paragraph (1)(a), within 14 days after —

                              (i)   the date on which he became a director; or

                              (ii)  as the case requires, the date on which he became aware that he had a relevant interest in the shares or debentures, the date on which he became aware that he had acquired the rights or options or the date on which he entered into the contracts,

                              whichever is the later date;

                  (b)        in the case of a notice under paragraph (1)(b), within 14 days after the date on which he became aware of the occurrence of the event giving rise to the change referred to in that paragraph;

                  (c)        in the case of a notice under paragraph (1)(c), within 14 days after the date on which he became aware of the matter or the occurrence of the event; and

                  (d)       in the case of a notice under paragraph (1)(d), within 14 days after the date on which he became a director.

                  (3)        This section does not require a director to give notice of a matter or event of which he has given notice to the company before the commencement of this Act under the repealed laws.

                  (4)        A company shall, within 7 days after the receipt by it of a notice given under subsection (1), send a copy of the notice to each of the other directors of the company.

                  (5)        A person who is the principal executive officer, or a secretary, of a company shall give notice in writing to the company —

                  (a)        of such matters and events affecting or relating to himself as are necessary for the purposes of compliance by the company with any of the provisions of section 298 that are applicable in relation to him; and

                  (b)        of his date and place of birth.

                  (6)        A person required to give a notice under subsection (5) shall give the notice —

                  (a)        in the case of a notice under paragraph (5)(a) - within 14 days after the date on which he became aware of the matter or the occurrence of the event; and

                  (b)        in the case of a notice under paragraph (5)(b) - within 14 days after the date on which he became the principal executive officer, or a secretary, as the case may be, of the company.

                  (7)        In a proceeding under this section, a person shall, in the absence of proof to the contrary, be presumed to have been aware at a particular time of a fact or occurrence of which a servant or agent of the person, being an employee or agent having duties or acting in relation to his employer’s or principal's interest or interests in a share in, or a debenture of, the company concerned, was aware at that time.

                  (8)        In determining for the purposes of this section whether a person has a relevant interest in a debenture, the provisions of section 27 that apply for the purposes of this section have effect as if a reference in those provisions to a share were a reference to a debenture.

      Penalty:           10 penalty units or imprisonment or both.

Payments for loss of, or retirement from, office

      293.     (1)        It is unlawful —

                  (a)        for a company, or for a prescribed superannuation fund in relation to a company, to give a prescribed benefit to a person in connection with the retirement of a person from a prescribed office in relation to the company;

                  (b)        for an associate of a company to give a prescribed benefit to a person in connection with the retirement of a person (other than the associate) from a prescribed office in relation to the company; or

                  (c)        for a person to give a prescribed benefit to a prescribed person in connection with the transfer of the whole or part of the undertaking or property of a company,

unless —

                  (d)       particulars with respect to the proposed benefit, including —

                              (i)   in the case of a proposed benefit that is a payment - the amount of the payment; or

                              (ii)  in any other case - the money value of the proposed benefit; and

                  (e)        in a case where paragraph (a) or (b) applies - particulars of all other relevant benefits given or proposed to be given,

have been disclosed to the members of the company and the giving of the proposed benefit has been approved by the company in general meeting.

                  (2)        Paragraph (1)(a) or (b) does not apply in relation to —

                  (a)        the giving of  an exempt benefit; or

                  (b)        the giving of a benefit in prescribed circumstances.

                  (3)        Paragraph (1)(a) or (b) does not apply in relation to the giving of a benefit in connection with the retirement of a person (in this subsection referred to as “the relevant person” from a prescribed office (in this subsection referred to as "the relevant office” in relation to a company, if —

                  (a)        the benefit is a payment made in good faith by way of pension or lump sum payment in respect of past services rendered by the relevant person to the company or to a related corporation, including a superannuation, retiring allowance, superannuation gratuity or similar payment; and

                  (b)        the value of the pension or lump sum payment (excluding any part of the pension or lump sum payment that is attributable to contributions made by the relevant person or by a person other than the company or an associate of the company) when added to the value of all other pensions (if any) and lump sum payments (if any) already paid or payable in connection with the retirement of the relevant person from a prescribed office in relation to the company (excluding any part of those other pensions or lump sum payments that is so attributable) does not exceed —

                              (i)   in a case where, at the time when the relevant person retired from the relevant office, the relevant person was, and had been throughout a period (in this subsection referred to as “the relevant period”), or throughout periods totalling a period (in this subsection also referred to as “the relevant period”), of not less than 3 years, an executive officer of the company or of a related corporation - the amount ascertained in accordance with the formula —

AB

3

                                    where —

A is the total emoluments of the relevant person during the period of 3 years ending when the relevant person retired from the relevant office and B is 7 or the number of years in the relevant period, whichever is the less; or

                              (ii)  in any other case - the total emoluments of the relevant person during the period of 3 years ending when the relevant person retired from the relevant office.

                  (4)        Paragraph (1)(a) or (b) does not apply in relation to the giving of a benefit by a person to another person if failure by the first-mentioned person to give the benefit to the other person would constitute, otherwise than by reason of breach of contract or breach of trust, a failure to comply with a law in force in Norfolk Island or elsewhere.

                  (5)        Where the giving of a prescribed benefit by a person to another person is unlawful by virtue of subsection (1), the receipt of the benefit by the other person is also unlawful.

                  (6)        A person (other than a superannuation fund) who does an act that is unlawful by virtue of subsection (1) or (5) is guilty of an offence.

                  (7)        Where a superannuation fund does an act that is unlawful by virtue of subsection (1) or (5), a person who is in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the doing of the act, is guilty of an offence.

                  (8)        Where the giving of a benefit to a person is unlawful by virtue of subsection (1), then —

                  (a)        where the benefit is a payment - the amount of the payment; or

                  (b)        in any other case - the money value of the benefit, shall be deemed to be received by the person in trust for the company concerned.

                  (9)        This section is in addition to, and does not affect the operation of, any other law that requires disclosure to be made with respect to the giving or receipt of a prescribed benefit.

                  (10)      In this section —

                  (a)        a reference to a prescribed office, in relation to a company, is a reference to —

                              (i)   an office of director of the company or of a related corporation;

                              (ii)  an office of principal executive officer of the company or of a related corporation; and

                              (iii) any other office in connection with the management of affairs of the company or of a related corporation that is held by a person who also holds, or has, at any time within the period of 12 months immediately preceding the loss of, or retirement from, that office, held, an office mentioned in subparagraph (i) or (ii);

                  (b)        a reference to a prescribed person, in relation to a company, is a reference to —

                              (i)   a person who holds, or has at some previous time held, a prescribed office in relation to the company;

                              (ii)  the spouse of a person referred to in subparagraph (i);

                              (iii) a person who is a relative of a person referred to in subparagraph (i) or of the spouse of such a person; or

                              (iv) a person associated with a person referred to in subparagraph (i) or the spouse of a person associated with a person referred to in subparagraph (i);

                  (c)        a reference to the making of a payment or the giving of other valuable consideration or benefit by a company or person includes a reference to the making of a payment or the giving of other valuable consideration or benefit that the company or person is obliged under a contract to make or give;

                  (d)       a reference to the giving of a prescribed benefit by a person includes a reference to the giving of a prescribed benefit that the person is obliged under a contract to give;

                  (e)        a reference to the giving of a prescribed benefit, or to a pension or lump sum payment paid or payable in connection with the retirement of a person from an office, is a reference to the giving of a prescribed benefit, or to a pension or lump sum paid or payable, as the case may be;

                  (f)        a reference to a payment includes a reference to a payment by way of damages for breach of contract; and

                  (g)        a reference to the retirement of a person from an office includes a reference to the loss by the person of the office.

                  (11)      Without limiting the generality of paragraph (10)(e), where a person gives a prescribed benefit to some other person for the purpose, or for purposes including the purpose, of enabling or assisting a person to give to a person a prescribed benefit in connection with the retirement of a person (in this subsection referred to as “the relevant person”) from an office, the first-mentioned person shall be taken, for the purposes of this section, to give the first-mentioned prescribed benefit in connection with the retirement of the relevant person from that office.

                  (12)      Where a company, or an associate of a company, gives a prescribed benefit to a superannuation fund in prescribed circumstances, the superannuation fund shall be taken to be, for the purposes of this section, a prescribed superannuation fund in relation to the company.

                  (13)      Where a prescribed superannuation fund in relation to a company gives a prescribed benefit to some other superannuation fund in prescribed circumstances, the other superannuation fund shall be taken to be, for the purposes of this section, a prescribed superannuation fund in relation to the company.

                  (14)      For the purposes of this section, where —

                  (a)        a company, or an associate of a company, gives a prescribed benefit to a superannuation fund solely for the purpose of enabling or assisting the superannuation fund to give to a person a prescribed benefit in connection with the retirement of a person from a prescribed office in relation to the company; or

                  (b)        a superannuation fund gives a prescribed benefit to some other superannuation fund solely for the purpose of enabling or assisting the other superannuation fund to give to a person a prescribed benefit in connection with the retirement of a person from a prescribed office in relation to a company,

the prescribed benefit first referred to in paragraph (a) or (b) shall be taken to be given in prescribed circumstances.

                  (15)      In this section —

“emoluments”, in relation to a person who is a director or other office of a corporation, means the amount or value of any money, consideration or benefit given, directly or indirectly, to that person in connection with the management of affairs of the corporation or of a holding company or subsidiary of the corporation, whether as a director or officer or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the corporation;

      “executive officer” in relation to a corporation, means —

                  (a)        a person, by whatever name called, who is concerned, or takes part, in the management of the corporation otherwise than in a capacity as director of the corporation; or

                  (b)        a person who is a secretary of the corporation,

                              whether or not the person is a director of the corporation;

      “exempt benefit” means a prescribed benefit given in connection with the retirement of a person from a prescribed office in relation to a company, being a benefit —

                  (a)        given under an agreement entered into after the commencement of this Act, where the giving of the prescribed benefit would have been lawful if this Act had not been enacted;

                  (b)        given under an agreement where particulars of the terms of that agreement have been disclosed to the members of the company and approved by the company in general meeting;

                  (c)        that is a payment made in good faith by way of damages for breach of contract;

                  (d)       given to the person pursuant to an agreement made between the company and the person before the person became the holder of the prescribed office as the consideration or part of the consideration for the person agreeing to hold the prescribed office; or

                  (e)        that is a payment made in respect of leave of absence to which the person is entitled by virtue of an industrial instrument;

      “give”, in relation to a prescribed benefit, includes —

                  (a)        in the case of a prescribed benefit that is a payment - make; and

                  (b)        in the case of a prescribed benefit that is an interest in property - transfer;

      “person” includes a superannuation fund;

      “prescribed benefit” means a payment or other valuable consideration or other benefit and includes, without limiting the generality of the foregoing, an interest in property;

      “relevant benefit” in relation to a proposal to give a prescribed benefit in connection with the retirement of a person from a prescribed office in relation to a company, being a benefit in relation to which paragraph (1)(a) or (b) would apply, means any other prescribed benefit (including an exempt benefit) given, or proposed to be given in connection with the retirement of the person from the prescribed office;

      “superannuation fund” means a provident, benefit, superannuation or retirement fund.

                  (16)      The giving of approval by a company for the giving of a prescribed benefit as mentioned in paragraph (1)(c) does not relieve a director of the company of any duty to the company under this Act or otherwise, whether of a fiduciary nature or not, in connection with the giving of the prescribed benefit.

      Penalty:           25 penalty units or imprisonment or both.

Provisions as to assignment of office

      294.     (1)        If, in the case of a public company, provision is made by the articles or by an agreement entered into between a person and the company for empowering a director of the company to assign his office as director to some other person, such an assignment of office, notwithstanding anything in the provision of the articles or agreement, does not have effect until approved by a special resolution of the company.

                  (2)        This section does not prevent the appointment by a director (if authorised by the articles and subject to the articles) of a person to act for or on behalf of the director during his inability for any time to act as director.

Disclosure of directors’ emoluments

      295.     (1)        If a company is served with a notice sent by or on behalf of —

                  (a)        at least 10% of the number of members of the company; or

                  (b)        the holders in aggregate of not less than 5% in the nominal value of the company's issued share capital,

requiring the emoluments and other benefits received by the directors of the company or of a subsidiary to be disclosed, the company shall —

                  (c)        forthwith prepare or cause to be prepared and cause to be audited a statement showing the amount of emoluments and other benefits paid to or received by each of the directors of the company and each director of a subsidiary, including any amount paid by way of salary, during the financial year immediately preceding the service of the notice;

                  (d)       when the statement has been audited, forthwith send a copy of the statement to all persons entitled to receive notice of general meetings of the company; and

                  (e)        lay the statement before the next general meeting of the company held after the statement is audited.

                  (2)        If a company fails to comply with any provision of this section, the company and the directors of the company are each guilty of an offence.

Company secretaries

      296.     (1)        A company shall have at least one secretary.

                  (2)        A secretary of a company shall be appointed by the directors.

                  (3)        A person is not capable of being a secretary of a company unless the person is a natural person who has attained the age of 18 years.

                  (4)        The secretary, or one of the secretaries, shall be a person who ordinarily resides in Norfolk Island.

                  (5)        A secretary who ordinarily resides in Norfolk Island shall be present at the registered office of the company in person or by his agent on the days and during the  hours when the registered office is required to be open and accessible to the public.

                  (6)        If there is no secretary of a company, or no secretary of the company is capable of acting, an act or thing required or authorised to be done by or in relation to the secretary may be done by or in relation to an officer of the company authorised by the directors to act as secretary, either generally or in relation to the doing of that act or thing.

                  (7)        A provision of this Act or of the memorandum or articles requiring or authorising an act or thing to be done by or in relation to a director and a secretary is not satisfied by its being done by or in relation to the same person acting both as director and as, or in place of, a secretary.

                  (8)        If default is made in complying with a provision of this section, the company and any officer of the company who is in default are each guilty of an offence.

Indemnification of officers and auditors

      297.     (1)        A provision, whether contained in the articles or in a contract with a company or otherwise, for exempting an officer or auditor of the company from, or indemnifying him against, a liability that by law would otherwise attach to him in respect of negligence, default, breach of duty or breach of trust of which he is guilty in relation to the company is void.

                  (2)        Notwithstanding anything in this section, a company may, pursuant to its articles or otherwise, indemnify an officer or auditor against liability incurred by him in defending proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or in connection with an application in relation to any such proceedings in which relief is under this Act granted to him by the Court.

                  (3)        Subsection (1) does not apply in relation to a contract of insurance, not being a contract of insurance the premiums in respect of which are paid by the company or by a related corporation.

                  (4)        In this section, “officer”, in relation to a company means —

            (a)        a director, secretary, executive officer or employee of the company;

                  (b)        a receiver or a manager of the property or of part of the property of the company;

                  (c)        an official manager or deputy official manager of the company;

                  (d)       a liquidator of the company; or

                  (e)        a trustee or other person administering a compromise or arrangement made between the company and some other person or persons.

Register of directors, principal executive officers and secretaries

      298.     (1)        A company shall keep a register of its directors, principal executive officers and secretaries.

                  (2)        The register shall contain with respect to each director his consent in writing to appointment as director and shall specify —

                  (a)        his present Christian or given name and surname, his date and place of birth,  any former Christian or given name or surname, his usual residential address and his occupation (if any); and

                  (b)        particulars of directorships held by the director in any other corporation that under the law of Norfolk Island or of the place where the corporation was formed is a public company or a subsidiary of a public company.

                  (3)        It is not necessary for the register to contain particulars of directorships held by a director of a corporation in a related corporation.

                  (4)        Where a person is a director of one or more subsidiaries of the same holding company, it is sufficient compliance with subsection (2) if it is shown that the person is the holder of one or more directorships in that group of companies and the group is described by the name of the holding company with the addition of the word “Group”.

                  (5)        The register shall specify with respect to each principal executive officer and secretary his full name, date and place of birth, address and other occupation (if any) and shall contain his consent in writing to his appointment as principal executive officer or secretary, as the case may be.

                  (6)        The register shall be open for inspection —

                  (a)        by a member of the company - without charge; and

                  (b)        by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires, or where the company does not require the payment of an amount, without charge.

                  (7)        A person may request a company to furnish him with a copy of the register or any part of the register and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar approves; or

                  (b)        in a case to which paragraph (a) does not apply within 21 days after the request is made or within such longer period as the Registrar approves.

Returns by companies

      299.     A company shall lodge with the Registrar —

                  (a)        within one month after incorporation - a return containing the particulars required to be specified in the register- kept under section 298;

                  (b)        within one month after a person ceases to be, or becomes, a director of the company - a return notifying the Registrar of the change and containing, with respect to each person who is, at the time of lodgement of the return, a director of the company, the particulars required to be specified in the register kept under section 298;

                  (c)        within one month after a person becomes a principal executive officer or secretary of the company - a return notifying the Registrar of that fact and specifying the full name, address, date and place of birth and other occupation (if any) of that person; and

                  (d)       within one month after a person ceases to be a principal executive officer or secretary of the company - a return notifying the Registrar of that fact.

Offences

      300.     If default is made in complying with any of the provisions of sections 298 or 299, the company and any officer of the company who is in default are each guilty of an offence.

Registrar may require certain notices

      301.     (1)        The Registrar may at any time, by notice in writing given to a person who appears to the Registrar from a return lodged with the Registrar under this Division or with the Registrar of Companies under a corresponding provision of the repealed laws, to be a director, principal executive officer or secretary of a company, require the person to lodge with the Registrar, within a period specified in the notice, a notice stating whether the person is such a director, principal executive officer or secretary and, if the person has ceased to be such a director, principal executive officer or secretary, specifying the date on which he so ceased.

                  (2)        Where a person receives such a notice the person shall comply with the notice.

Registrar’s certificates

      302.     (1)        A certificate of the Registrar stating that, from a return or notice lodged with the Registrar under this Division or lodged with the Registrar of Companies under a corresponding provision of the repealed laws, it appears that, at a time specified in the certificate, or throughout a period specified in the certificate, a person was a director, principal executive officer or secretary of a specified company shall, in all courts and by all persons having power to take evidence for the purposes of this Act, be received as evidence of the facts stated in the certificate.

                  (2)        For the purposes of subsection (1), a person who appears from a return or notice lodged as mentioned in that subsection to be a director, principal executive officer or secretary of a company shall be deemed to continue as such until, from a return or notice subsequently lodged, it appears that he ceased to be such a director, principal executive officer or secretary.

Register of disqualified company directors and other officers

      303.     (1)        The Registrar shall cause to be kept a Register of persons subject to a restriction, consisting of the instrument by virtue of which each such person became a person subject to a restriction.

                  (2)        A person may inspect and take copies of the Register.

Division 3 — Meetings and Proceedings

Statutory meeting and statutory report

      304.     (1)        Where a public company that is a limited company and has a share capital —

                  (a)        issues a prospectus inviting applications or offers from the public to subscribe for, or offering to the public for subscription, shares in the company; and

                  (b)        the company has not previously issued such a prospectus,

                              the company shall, within a period of not less than one month and not more that 3 months after the date on which the company allots shares pursuant to the prospectus, hold a general meeting of the members of the company, called “the statutory meeting”.

                  (2)        The directors shall at least 7 days before the day on which the statutory meeting is to be held send a copy of a report, called “the statutory report”, to each member of the company.

                  (3)        The statutory report shall be certified by not less than 2 directors of the company and shall state, as at the date of the report —

                  (a)        the total number of shares allotted, distinguishing —

                              (i)   shares allotted as fully paid up in cash;

                              (ii)  shares allotted as partly paid up in cash;

                              (iii) shares allotted as fully paid up otherwise than in cash; and

                              (iv) shares allotted as partly paid up otherwise than in cash,

and stating —

                              (v)  in respect of shares partly paid up - the extent to which they are so paid up; and

                              (vi) in respect of shares allotted as fully or partly paid up otherwise than in cash - the consideration for which they have been allotted;

                  (b)        the amount of cash received by the company in respect of all the shares allotted and so distinguished;

                  (c)        an abstract of the receipts of the company and of the payments made out of those receipts up to a date within 10 days before the date of the report showing under distinctive headings the receipts from shares and debentures and other sources, the payments made out of those receipts and particulars concerning the balance remaining in hand, and an account or estimate of the preliminary expenses;

                  (d)       the names, addresses and descriptions of the directors, trustees for the holders of debentures (if any), auditors (if any), principal executive officers and secretaries of the company; and

                  (e)        the particulars of a contract the modification of which is to be submitted to the meeting for its approval together with the particulars of the modification or proposed modification.

                  (4)        The statutory report, shall, so far as it relates to the shares allotted and to the cash received in respect of those shares and to the receipts and payments on capital account, be examined and reported upon by the auditors (if any).

                  (5)        The directors shall cause a copy of the statutory report and the auditor’s report (if any) to be lodged with the Registrar at least 5 days before the date of the statutory meeting.

                  (6)        The directors shall cause a list showing the names and addresses of the members, and the numbers of shares held by them respectively, to be produced at the commencement of the meeting and to remain open and accessible to any member during the continuance of the meeting.

                  (7)        The members present at the meeting may discuss any matter relating to the formation of the company or arising out of the statutory report, whether previous notice has been given or not, but a resolution shall not be passed unless notice of the resolution has been given in accordance with the articles.

                  (8)        The meeting may adjourn from time to time and, at an adjourned meeting, a resolution of which notice has been given in accordance with the articles either before or after the former meeting may be passed.

                  (9)        An adjourned meeting has the same powers as an original meeting.

                  (10)      The meeting may by resolution appoint a committee or committees of inquiry.

                  (11)      At an adjourned meeting a special resolution may be passed that the company be wound up if, notwithstanding any other provision of this Act, at least 7 days notice of intention to propose the resolution has been given to each member of the company.

                  (12)      In the event of default in complying with the provisions of this section, an officer of the company who is in default and any director of the company who fails to take all reasonable steps to secure compliance with the provisions of this section are each guilty of an offence.

Annual general meeting

      305.     (1)        Subject to subsection (2), a company shall, in addition to any other meeting held by the company, hold a general meeting, called the “annual general meeting”, at least once in every calendar year and, in relation to a financial year of the company that ends after the commencement of this Act, within the period of 5 months after the end of that financial year.

                  (2)        A company may hold its first annual general meeting at any time within the period of 18 months after its incorporation but, where the first financial year of the company ends after the commencement of this Act, the company shall hold the meeting not more than 5 months after the end of that financial year.

                  (3)        A company shall be deemed to have held an annual general meeting if that company has held a general meeting at which resolutions have been passed dealing with all matters required to be dealt with at an annual general meeting, but this subsection does not affect an obligation under this Act to hold an annual general meeting at a particular time or within a particular period.

                  (4)        An exempt proprietary company shall be deemed to have held an annual general meeting if that company is to be deemed to have held a general meeting and the resolution that is to be deemed to have been passed at that general meeting deals with all matters that are required to be dealt with at an annual general meeting.

                  (5)        The Registrar may, on application made by a company in accordance with a resolution of the directors and signed by a director or secretary, subject to such conditions as the Registrar thinks fit —

                  (a)        extend the period of 5 months referred to in subsection (1) or the period of 18 months referred to in subsection (2); or

                  (b)        permit an annual general meeting to be held in a calendar year other than the calendar year in which it would otherwise be required by subsection (1) to be held.

                  (6)        A company is not in default in holding an annual general meeting under subsection (1) or (2) if, pursuant to an extension or permission under subsection (5), an annual general meeting is not held within the period or in the calendar year in which it would otherwise be required by subsection (1) or (2), as the case may be, to be held, but is held within the extended period or in the calendar year in which under subsection (5) it is permitted to be held.

                  (7)        An application by a company for an extension of a period or for permission under subsection (5) shall be made before the expiration of that period or of the calendar year in which the annual general meeting would otherwise be required to be held.

                  (8)        Subject to notice being given to each person entitled to receive notice of the meeting, a general meeting may be held at any time and the company may resolve that a meeting held or convened to be held shall be the annual general meeting of the company.

                  (9)        If default is made in holding an annual meeting under this section or in complying with any condition imposed by the Registrar under subsection (5) —

                  (a)        the company and any officer of the company who is in default are each guilty of an offence; and

                  (b)        the Court may, on the application of any member, order a general meeting to be convened.

      Penalty:           10 penalty units or imprisonment or both.

Convening of general meeting on requisition

      306.     (1)        The directors of a company shall, notwithstanding anything in it articles, on the requisition in writing —

                  (a)        in the case of a company having a share capital - of not less than 100 members holding shares in the company on which there has been paid up an average sum, per member, of not less than $200;

                  (b)        in the case of a company not having a share capital - of not less than 200 members; or

                  (c)        in either case - of a member who is entitled, or members who are together entitled, to not less than 5% of the total voting rights of all the members having at the date of the deposit of the requisition a right to vote at general meetings,

forthwith convene a general meeting of the company to be held as soon as practicable but, in any case, not later than 2 months after the date of the deposit and the requisition.

                  (2)        The requisition —

                  (a)        shall state the objects of the meeting,

                  (b)        shall be signed by the requisitioning member or members;

                  (c)        shall be deposited at the registered office of the company; and,

                  (d)       where there are 2 or more requisitioning members, may consist of several documents in like form each signed by one or more of the requisitioning members.

                  (3)        If the directors do not, within 21 days after the date of the deposit of the requisition, proceed to convene a meeting, the requisitioning member, or, where there are 2 or more requisitioning members, those members or any of them representing more than 50% of the total voting rights of all of them —

                  (a)        may, in the same manner as nearly as possible as that in which meetings are to be convened by directors, convene a meeting; and

                  (b)        for the purposes of convening a meeting as provided by paragraph (a), may request the company to supply a written statement setting out the names and addresses (so far as they are known to the company) of the persons who, at the date of the deposit of the requisition, were entitled, under subsection 307(4) or a provision of the articles of the company, to receive notice of general meetings of the company.

                  (4)        Where a request for a statement is made to a company under paragraph (3)(b), the directors of the company shall send the statement to the person or persons who requested the statement within 7 days after the date on which the request is made.

                  (5)        A meeting convened by a requisitioning member or requisitioning members in accordance with subsection (3) shall not be held more than 3 months after the date of the deposit of the requisition.

                  (6)        The reasonable expenses incurred by the requisitioning member or members by reason of the failure of the directors to convene a meeting shall be paid to those members of the company.

                  (7)        A sum so paid shall be retained by that member or by the company out of any sums due or to become due from the company by way of fees or other remuneration in respect of their services to such of the directors as were in default.

                  (8)        A meeting at which a special resolution is to be proposed shall be deemed not to be duly convened by the directors if they do not give such notice of the meeting as is required by this Act in the case of a meeting at which a special resolution is to be proposed.

Convening of meetings

      307.     (1)        In so far as the articles do not make other provision, 2 or more members holding not less than 5% of the issued share capital, or, if the company does not have a share capital, not less than 5% in number of the members of the company, may convene a meeting of the company.

                  (2)        A meeting of a company or of the members included in a class of members, other than a meeting for the passing of a special resolution, shall be convened by notice in writing given at least 14 days before the meeting, or, if a longer period is provided by the articles, in accordance with the articles.

                  (3)        A meeting shall, notwithstanding that it is convened by notice shorter than is required by subsection (2), be deemed to be duly convened if it is so agreed —

                  (a)        in the case of a meeting convened as the annual general meeting - by all the members entitled to attend and vote at the meeting;  or

                  (b)        in any other case - by a majority in number of the members having a right to attend and vote at the meeting, being a majority that together hold not less than 95% in nominal value of the shares giving a right to attend and vote or, in the case of a company not having a share capital, are together entitled to not less than 95% of the total voting rights of all the members having the right to attend and vote at the meeting.

                  (4)        So far as the articles do not make other provision, notice of a meeting shall be served on each member having a right to attend and vote at the meeting in the manner in which notices are required to be served by the articles.

Articles as to right to demand a poll

      308.     (1)        A provision contained in a company's articles is void in so far as it would have the effect —

                  (a)        of excluding the right to demand a poll at a general meeting on a question or matter not being the election of the chairman of the meeting or the adjournment of the meeting;

                  (b)        of making ineffective a demand for a poll on a question or matter, not being the election of the chairman of the meeting or the adjournment of the meeting, that is made —

                              (i)   by not less than 5 members having the right to vote at the meeting;

                              (ii)  by a member or members who are together entitled to not less than 10% of the total voting rights of all the members having the right to vote at the meeting; or

                              (iii) by a member or members holding shares in the company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than 10% of the total sum paid up on all the shares conferring that right; or

                  (c)        of requiring the instrument appointing a proxy, or any other document necessary to show the validity of or otherwise relating to the appointment of a proxy, to be received by the company or by some other person more than 48 hours before a meeting or adjourned meeting in order that the appointment may be effective at the meeting.

                  (2)        The instrument appointing a proxy to vote at a meeting of a company confers authority to demand or join in demanding a poll, and, for the purposes of subsection (l), a demand by a person as proxy for a member of the company has the same effect as has a demand by the member.

Quorum, chairman, voting etc, at meetings

      309.     (1)        This section has effect subject to the rules.

                  (2)        In the case of a proprietary company, 2 members of the company, and in the case of any other company, 3 members, personally present constitute a quorum.

                  (3)        A member elected by the members present at a meeting may be chairman of the meeting.

                  (4)        In the case of a company having a share capital, each member has one vote in respect of each share or each $20 of stock held by him, and, in any other case, each member has one vote.

                  (5)        On a poll taken at a meeting, a person (including a proxy) entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.

                  (6)        A body corporate may, by resolution of its directors or other governing body —

                  (a)        if it is a member of a company - authorise such person as it thinks fit to act as its representative either at a particular meeting or at all meetings of the company or of the members included in a class of members; or

                  (b)        if it is a creditor (including a holder of debentures) of a company - authorise such person as it thinks fit to act as its representative either at a particular meeting or at all meetings of creditors of the company,

                  (7)        A person so authorised is, in accordance with his authority and until his authority is revoked by the body corporate, entitled to exercise the same powers on behalf of the body corporate as the body corporate could exercise if it were a natural person who was a member, creditor or holder of debentures of the company.

                  (8)        Where —

                  (a)        a person present at a meeting is authorised to act as the representative of a body corporate at the meeting by virtue of an authority given by the body corporate under subsection (6); and

                  (b)        the person is not otherwise entitled to be present at the meeting,

the body corporate shall, for the purposes of subsection (2), be deemed to be personally present at the meeting.

                  (9)        A certificate under the seal of the body corporate is evidence of the appointment or of the revocation of the appointment, as the case may be, of a representative pursuant to subsection (6).

                  (10)      Where a holding company holds the whole of the issued shares in a subsidiary and a minute is signed by a representative of the holding company authorised pursuant to subsection (6) stating that an act, matter or thing, or an ordinary or special resolution, required by this Act or by the memorandum or articles of the subsidiary to be made, performed, or passed by or at a general meeting of the subsidiary has been made, performed, or passed, that act, matter, thing or resolution shall, for all purposes, be deemed to have been duly made, performed or passed by or at a general meeting of the subsidiary.

                  (11)      Where —

                  (a)        by or under any provision of this Act a notice, copy of a resolution or other document relating to a matter is required to be lodged by the company with the Registrar;

                  (b)        a minute referred to in subsection (10) is signed by the representative pursuant to that subsection; and

                  (c)        the minute relates to such a matter,

the company shall, within one month after the signing of the minute, lodge a copy of the minute with the Registrar.

Proxies

      310.     (1)        A member of a company who is entitled to attend and vote at a meeting of the company, or at a meeting of the members included in a class of members of the company, is entitled to appoint —

                  (a)        in the case of a company not having a share capital - a member or, where the articles so provide, a person who is not a member; or

                  (b)        in any other case - not more than 2 other persons (whether members or not),

as his proxy or proxies to attend and vote instead of the member at the meeting.

                  (2)        A proxy so appointed has the same right as has the member to speak at the meeting but, unless the articles otherwise provide, a proxy is not entitled to vote except on a poll.

                  (3)        Where a member appoints 2 proxies, the appointment is of no effect unless each proxy is appointed to represent a specified proportion of the member's voting rights.

                  (4)        A member of a proprietary company is not entitled to appoint another person as his proxy except —

                  (a)        in accordance with the articles; or

                  (b)        with the leave of the Court.

                  (5)        In each notice convening a meeting of a public company or of the members included in a class of members of a public company, there shall appear with reasonable prominence —

                  (a)        in the case of a public company having a share capital, a statement —

                              (i)   that a member entitled to attend and vote is entitled to appoint one or 2 proxies;

                              (ii)  that where 2 proxies are appointed, each proxy must be appointed to represent a specified proportion of the member's voting rights; and

                              (iii) that a proxy need not be a member; or

                  (b)        in the case of a public company not having a share capital, a statement —

                              (i)   that a member entitled to attend and vote is entitled to appoint a proxy to attend and vote instead of the member; and

                              (ii)  that a proxy must, or need not, be a member, as the case requires.

                  (6)        If default is made in complying with subsection (5), each officer of the company who is in default is guilty of an offence.

                  (7)        A person who authorises or permits an invitation to appoint as proxy a person or one of a number of persons specified in the invitation to be issued at the company's expense to some only of the members entitled to be sent a notice of the meeting and to vote at the meeting by proxy is guilty of an offence.

                  (8)        A person is not guilty of an offence under subsection (7) by reason only of the issue to a member at his request of a form of appointment naming the proxy or a list of persons willing to act as proxies if the form or list is available on request in writing to each member entitled to vote at the meeting by proxy.

Power of Court to order meeting

      311.     (1)        If for any reason it is impracticable to convene a meeting in a manner in which meetings may be convened or to conduct the meeting in the manner prescribed by the articles or by this Act, the Court may, either of its own motion or on the application of a director or member who would be entitled to vote at the meeting, order a meeting to be convened, held and conducted in such manner as the Court orders, and may give such ancillary or consequential directions as it orders, including a direction that one member present in person or by proxy shall be deemed to constitute a meeting.

                  (2)        A meeting convened, held and conducted in accordance with an order made pursuant to this section shall, for all purposes, be deemed to be a meeting duly convened, held and conducted.

                  (3)        For the purposes of an application to the Court or of a meeting held by order of the Court under this section, the personal representative of a deceased member of a company shall be deemed to be a member of the company and, notwithstanding anything to the contrary in this Act or in the memorandum or articles of the company, to have the same voting rights as the deceased member had immediately before his death by reason of his holding shares that on his death were transmitted to his personal representative by operation of law.

Circulation of members’ resolutions, etc

      312.     (1)        Subject to this section, a company shall, on the requisition in writing —

                  (a)        in the case of a company having a share capital - of not less than 100 members holding shares in the company on which there has been paid up an average sum, per member, of not less than $200;

                  (b)        in the case of a company not having a share capital - of not less than 200 members; or

                  (c)        in either case - of a member who is entitled, or members who are together entitled, to not less than 5% of the total voting rights of all the members having at the date of the deposit of the requisition a right to vote at general meetings,

and, unless the company otherwise resolves, at the expense of the requisitioning member or members —

                  (d)       give to members of the company entitled to have notice of the next annual general meeting sent to them notice of a resolution that may properly be moved and is intended to be moved at that meeting; and

                  (e)        circulate to members of the company entitled to have notice of a general meeting sent to them a statement of not more than l,000 words with respect to the matter referred to in any proposed resolution or business to be dealt with at that meeting.


                  (2)        Notice of a resolution referred to in subsection (1) shall be given, and a statement so referred to shall be circulated, to members of the company entitled to have notice of the meeting sent to them by serving a copy of the resolution or statement on each member.

                  (3)        Notice of the resolution shall be given to any other member of the company by giving notice of the general effect of the resolution.

                  (4)        The copy shall be served, or notice of the effect of the resolution shall be given, as the case may be, in the same manner and, so far as practicable, at the same time as notice of the meeting but, where it is not practicable for it to be served or given at that time, it shall be served or given as soon as practicable after that time.

                  (5)        A company is not required by this section to give notice of a resolution or to circulate a statement unless —

                  (a)        a copy of the requisition signed by the requisitionist or requisitionists is (or, where there are 2 or more requisitionists, 2 or more copies that between them contain the signatures of all the requisitionists are) deposited at the registered office of the company —

                              (i)   in the case of a requisition requiring notice of a resolution - not less than 6 weeks before the meeting; and

                              (ii)  in any other case - not less than one week before the meeting; and

                  (b)        there is deposited or tendered with the requisition a sum reasonably sufficient to meet the company's expenses in giving effect to the requisition.

                  (6)        If, after a copy of a requisition requiring notice of a resolution has been deposited at the registered office of the company, an annual general meeting is called for a date 6 weeks or less after the copy has been deposited, the copy, although not deposited within the time required by subsection (5), shall be deemed to have been properly deposited.

                  (7)        A company is not required by this section to circulate a statement if, on the application either of the company or of some person who claims to be aggrieved, the Court is satisfied that the rights conferred by this section are not being exercised in good faith.

                  (8)        The Court may order costs of the company or of another person on an application under this section to be paid by the requisitionist or requisitionists notwithstanding that he is not a party, or they are not parties, to the application.

                  (9)        Notwithstanding anything in the company's articles, the business that may be dealt with at an annual general meeting includes a resolution of which notice has been given in accordance with this section, and, for the purposes of this subsection, notice shall be deemed to have been so given notwithstanding the accidental omission to give notice to a member or members.

                  (10)      If default is made in complying with the provisions of this section, the company and any officer of the company who is in default are each guilty of an offence.

Special resolutions

      313.     (1)        A resolution is a special resolution of a company if —

                  (a)        it is passed at a meeting of the company, being a meeting of which not less than 21 days' written notice specifying the intention to propose the resolution as a special resolution has been duly given; and

                  (b)        it is passed at a meeting referred to in paragraph (a) by a majority of not less than three-quarters of the members of the company who, being entitled to do so, vote in person or, where proxies are allowed, by proxy, at that meeting.

                  (2)        A resolution is a special resolution of the holders of shares in a company included in a class of shares if —

                  (a)        it is passed at a meeting of the holders of shares included in that class of shares, being a meeting of which not less than 21 days’ written notice specifying the intention to propose the resolution as a special resolution has been duly given; and

                  (b)        it is passed at a meeting referred to in paragraph (a) by a majority of not less than three-quarters of the holders of shares included in that class of shares who, being entitled to do so, vote in person or, where proxies are allowed, by proxy, at the meeting.

                  (3)        A resolution is a special resolution of the members of a company included in a class of members if —

                  (a)        it is passed at a meeting of members included in that class of members, being a meeting of which not less than 21 days’ written notice specifying the intention to propose the resolution as a special resolution has been duly given; and

                  (b)        it is passed at a meeting referred to in paragraph (a) by a majority of not less than three-quarters of the members included in that class of members who, being entitled to do so, vote in person or, where proxies are allowed, by proxy, at that meeting.

                  (4)        If it is so agreed by a majority in number of the members having the right to attend and vote at a meeting of which less than 21 days’ notice has been given, being a majority that together hold not less than 95% in nominal value of the shares giving that right or, in the case of a company not having a share capital, together represent not less than 95% of the total voting rights of all members having the right to attend and vote at the meeting, a resolution may be proposed and passed as a special resolution at the meeting.

                  (5)        At a meeting at which a special resolution is submitted, a declaration by the chairman that the resolution is carried is, unless a poll is demanded, conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.

                  (6)        At a meeting which a special resolution is submitted, a poll shall be deemed to be effectively demanded if demanded —

                  (a)        if the articles make provision permitting a specified number of members for the time being entitled under the articles to vote at the meeting to demand a poll —

                              (i)   where the number specified does not exceed 5 - by that number of members so entitled; or

                              (ii)  in any other case - by 5 members so entitled; or

                  (b)        if no such provision is made by the articles —

                              (i)   where the company has a share capital - by 3 members entitled to vote at the meeting, or by one member or 2 members so entitled if that member holds or those 2 members together hold not less than 10% in nominal value of the shares giving the right to attend and vote at the meeting; or

                              (ii)  where the company does not have a share capital - if that member is entitled, or those 2 members together are entitled, to not less than 10% of the total voting rights of all members having the right to attend and vote at the meeting.

                  (7)        In calculating the majority on a poll demanded on the question that a special resolution be passed, reference shall be made to the number of votes cast for and against the resolution and to the number of votes to which each member is entitled by this Act or the articles of the company.

                  (8)        For the purposes of this section, notice of a meeting shall be deemed to have been duly given and the meeting shall be deemed to have been duly held when the notice is given and the meeting held in the manner provided by this Act or by the articles.

                  (9)        Where, in the case of a company incorporated under the repealed laws, a matter is required or permitted to be done by extraordinary resolution, that matter may be done by special resolution.

Resolutions requiring special notice

      314.     (1)        Where by this Act special notice is required of a resolution, the resolution is not effective unless notice of the intention to move the resolution has been given to the company not less than 28 days before the meeting at which it is moved.

                  (2)        If, after notice of the intention to move such a resolution has been given to the company, a meeting is convened for a date 28 days or less after the notice was given, the notice, although not given to the company within the time required by this section, shall be deemed to have been properly given.

                  (3)        The company shall give persons entitled to be given notice of a meeting of the company notice of such a resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice of the resolution in any manner allowed by the articles, not less than 14 days before the meeting.

Resolutions of exempt proprietary companies

      315.     (1)        If all the members of an exempt proprietary company have signed a document containing a statement that they are in favour of a prescribed resolution in terms set out in the document, a resolution in those terms shall be deemed to have been passed at a general meeting of the company held on the day on which the document was signed and at the time at which the document was last signed by a member or, if the members signed the document on different days, on the day on which, and at the time at which, the document was last signed by a member.

                  (2)        Where a document is so signed —

                  (a)        the company shall be deemed to have held a general meeting at that time on that day; and

                  (b)        the document shall be deemed to constitute a minute of that meeting.

                  (3)        Subsection (1) does not apply in relation to a document unless the document was signed by each person who was a member of the company at the time when the document was last signed.

                  (4)        For the purposes of this section —

                  (a)        2 or more separate documents containing statements in identical terms each of which is signed by one or more members shall together be deemed to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents; and

                  (b)        a prescribed resolution is a resolution that is required or permitted by this Act or the memorandum or articles to be passed at a general meeting of a company and includes a resolution appointing an officer or auditor or approving or agreeing to an act, matter or thing but does not include a resolution of which special notice is required or that is required to be passed by a majority other than a simple majority.

                  (5)        A document that is attached to a document signed as mentioned in subsection (1) and is signed by the member or members who signed the last-mentioned document shall, for the purposes of this Act, be deemed to have been laid before the company at the general meeting referred to in that subsection.

                  (6)        This section does not affect the operation of a law relating to the effectiveness of the assent of members of a company given to a document or to an act, matter or thing, otherwise than at a general meeting of the company.

Lodgment with the Registrar of copies of certain resolutions and agreements

      316.     (1)        A printed copy of —

                  (a)        a special resolution;

                  (b)        a resolution or agreement that binds shareholders included in a class of shareholders, whether agreed to by all the members of that class or not; and

                  (c)        a document or resolution that attaches rights to shares (whether or not in substitution for other rights) and is not otherwise required to be lodged with the Registrar under this Act,

shall, except as otherwise provided by this Act, within one month after the passing of the resolution or the making of the agreement or document, be lodged by the company with the Registrar.

                  (2)        Where articles have not been registered, a member may request the company to furnish him with a printed copy of a resolution, document or agreement to which this section applies and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar allows; or

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Registrar allows.

                  (3)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

Resolutions at adjourned meetings

      317.     Where a resolution is passed at an adjourned meeting of a company or of holders of shares included in a class of shares or of directors, the resolution shall for all purposes be treated as having been passed on the day on which it was in fact passed and not on an earlier day.

Minutes of proceedings

      318.     (1)        A company shall —

                  (a)        cause minutes of all proceedings of a general meeting and of a meeting of its directors to be entered, within one month after the relevant meeting is held, in a book kept for that purpose; and

                  (b)        except in the case of documents that are to be deemed to constitute minutes by virtue of section 315, cause those minutes to be signed by the chairman of the meeting or by the chairman of the next succeeding meeting.

                  (2)        A minute that is so entered or, in a case to which paragraph (1)(b) applies, purports to be signed as provided by that paragraph is evidence of the proceedings to which it relates.

                  (3)        Where minutes have been so entered or, in a case to which paragraph (l)(b) applies, signed, then, unless the contrary is proved —

                  (a)        the meeting shall be deemed to have been duly held and convened;

                  (b)        all proceedings that are recorded in the minutes as having taken place at the meeting shall be deemed to have duly taken place; and

                  (c)        all appointments that are recorded in the minutes as having been made at the meeting shall be deemed to have been duly made.

                  (4)        If a company fails to comply with this section, the company and any officer of the company who is in default are each guilty of an offence.

      Penalty:           10 penalty units or imprisonment or both.

Inspection of minute books

      319.     (1)        The book containing the minutes of the proceedings of a general meeting or of a meeting of the directors of the company shall be kept by the company at the registered office or principal place of business in Norfolk Island of the company or at such other place as the Registrar allows.

                  (2)        The book containing the minutes of proceedings of a general meeting shall be open for inspection by a member without charge.

                  (3)        A member of a company may request the company in writing to furnish him with a copy of the minutes of a general meeting and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar allows; or

                  (b)        in a case to which paragraph (a) does not apply, - within 21 days after the request is made or within such longer period as the Registrar allows.

                  (4)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

 

Division 4 — Register of Members

Register and index of members

      320.     (1)        A company shall keep a register of its members and enter in that register —

                  (a)        the names and addresses of the members and, in the case of a company having a share capital, a statement of the shares held by each member (distinguishing each share by its number (if any) or by the number (if any) of the certificate evidencing the member's holding) and of the amount paid or agreed to be considered as paid on the shares of each member;

                  (b)        the date on which the name of a person was entered in the register as a member;

                  (c)        the date on which a person who ceased to be a member during the previous 7 years so ceased to be a member; and

                  (d)       in the case of a company having a share capital - the date of each allotment of shares and the number of shares comprised in the allotment.

                  (2)        Where the company has converted any of its shares into stock and has given notice of the conversion to the Registrar, the company shall alter the register to show the amount of stock or number of stock units held by each member instead of the number of shares and the particulars relating to shares specified in paragraph (1)(a).

                  (3)        A company may keep the names and particulars relating to persons who have ceased to be members of the company separately, and the names and particulars relating to them need not be supplied to a person who applies for a copy of the register unless he specifically requests the names and particulars of former members.

                  (4)        The register of members is evidence of matters entered in the register as required or authorised by this Act.

                  (5)        A company having more than 50 members shall, unless the register of members is in such a form as to constitute in itself an index, keep an index in convenient form of the names of the members and shall, within 14 days after the date on which an alteration is made in the register, make any necessary alteration of the index.

                  (6)        The index shall, in respect of each member, contain a sufficient indication to enable the particulars with respect to the member in the register to be readily found.

                  (7)        If default is made in complying with this section, the company and any officer of the company who is in default are each guilty of an offence.

Closing and inspection of register

      321.     (1)        A company may close the register of members or part of that register for a time or times but so that no part of the register is closed for more than 30 days in the aggregate in a calendar year.

                  (2)        The register of members of a company and the index of members shall be open for inspection —

                  (a)        by a member of the company - without charge;  and

                  (b)        by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

                  (3)        A person may request a company to furnish him with a copy of the register or of a part of the register (but only so far as it relates to names, addresses, number of shares held and amounts paid on shares) and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar allows; or

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Registrar allows.

                  (4)        If default is made in complying with subsection (1) or (2), the company and any officer of the company who is in default are each guilty of an offence.

                  (5)        This section has effect subject to section 325.

Consequences of default by agent

      322.     Where, by virtue of paragraph 629(1)(b), the register of members is kept at the office of a person other than the company and by reason of a default of that other person, the company fails to comply with section 321 or subsection 629(1) or (4) or with any requirement of this Act as to the production of the register, that other person is liable to the same penalties as those to which he would be liable if he were an officer of the company who was in default, and the power of the Court under section 633 extends to the making of orders against that other person and his officers and servants.

Power of Court to rectify register

      323.     (1)        If —

                  (a)        an entry is omitted from the register;

                  (b)        an entry is made in the register without sufficient cause;

                  (c)        an entry wrongly exists in the register;

                  (d)       there is an error or defect in an entry in the register; or

                  (e)        default is made or unnecessary delay takes place in entering in the register the fact of a person having ceased to be a member,

a person aggrieved, a member of the company or the company may apply to the Court for rectification of the register.

                  (2)        The Court may refuse the application or may order rectification of the register and payment by the company of damages sustained by a party to the application.

                  (3)        On an application under subsection (1), the Court may decide —

                  (a)        a question relating to the right of a person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between —

                              (i)   a member or alleged member on the one hand and another member or alleged member on the other hand; or

                              (ii)  a member or alleged member on the one hand and the company on the other hand; and

                  (b)        generally any question necessary or expedient to be decided with respect to the rectification of the register.

                  (4)        Where a company is required by this Act to lodge with the Registrar a return containing a list of its members, the Court shall, when making an order for rectification of the register, by its order direct a notice of the rectification to be so lodged.

Personal representative may be registered as owner of shares

      324.     (1)        A personal representative of a deceased person who was registered in a register or branch register kept in Norfolk Island as the holder of a share in a corporation may be registered as the holder of that share as personal representative and is, in respect of that share, subject to the same liabilities as those to which he would have been subject if the share had remained registered in the name of the deceased person but is not subject to any other liabilities in respect of that share.

                  (2)        A personal representative of a deceased person who was entitled in equity to a share in a corporation, being a share registered in a register or branch register kept in Norfolk Island, may, with the consent of the corporation and of the registered holder of that share, be registered as the holder of the share as personal representative and is, in respect of that share, subject to the same liabilities as those to which he would have been subject if that share had been registered in the name of the deceased person but is not subject to any other liabilities in respect of that share.

                  (3)        Where —

                  (a)        a person is appointed under a law relating to the administration of the estates of persons who, through mental or physical infirmity, are incapable of managing their affairs, to administer the estate of a person who is so incapable (in this subsection referred to as “the incapable person”); and

                  (b)        the incapable person is registered in a register or branch register kept in Norfolk island as the holder of a share in a corporation,

the first-mentioned person may be registered as the holder of that share as administrator of that estate and is, in respect of that share, subject to the same liabilities as those to which he would have been subject if that share had remained registered in the name of the incapable person but is not subject to any other liabilities in respect of that share.

                  (4)        Where —

                  (a)        a person is appointed, under a law relating to the administration of the estates of persons who, through mental or physical infirmity, are incapable of managing their affairs, to administer the estate of a person who is so incapable (in this subsection referred to as “the incapable person”); and

                  (b)        the incapable person is entitled in equity to a share in a corporation, being a share registered in a register or branch register kept in Norfolk Island,

the first-mentioned person may, with the consent of the corporation and of the registered holder of that share, be registered as the holder of the share as administrator of that estate and is, in respect of that share, subject to the same liabilities as those to which he would have been subject if that share had been registered in the name of the incapable person but is not subject to any other liabilities in respect of that share.

                  (5)        Shares in a corporation registered in a register or branch register kept in Norfolk Island and held by a trustee in respect of a particular trust may, with the consent of the corporation, be marked in the register or branch register in such a way as to identify them as being held in respect of the trust.

                  (6)        Except as provided by this section or by section 325, notice of a trust, whether express, implied or constructive, shall not be entered on the register or branch register kept in Norfolk Island or be receivable by the Registrar and no liabilities are affected by anything done pursuant to any of the preceding provisions of this section or pursuant to section 325 and the corporation concerned is not affected with notice of any trust by anything so done.

                  (7)        A person who commences to hold shares in a proprietary company as trustee for, or otherwise on behalf of or on account of, a corporation shall, within one month after commencing so to hold the shares, serve on the company notice in writing that he so holds the shares.

                  (8)        In this section, a reference to the personal representative of a deceased person includes a reference to the trustee of the estate of a deceased person.

Power of company to obtain information as to beneficial ownership of its shares

      325.     (1)        In this section —

      “company” means a public company;

      “relevant instructions”, in relation to shares, means instructions or directions —

                  (a)        in relation to the acquisition or disposal of the shares;

                  (b)        in relation to the exercise of a voting or other right attached to the shares; or

                  (c)        in connection with some other matter relating to the shares;

      “subsection (2) notice”, in relation to shares in a company, means a notice in writing addressed to the holder of the shares requiring him to furnish to the company a statement in writing setting out —

                  (a)        full particulars of his relevant interest in the shares and of the circumstances by reason of which he has that interest; and

                  (b)        so far as it lies within his knowledge —

                              (i)   full particulars of the name and address of each other person (if any) who has a relevant interest in any of the shares;

                              (ii)  full particulars of each such interest and of the circumstances by reason of which the other person has that interest; and

                              (iii) full particulars of the name and address of each person (if any) who has given to the holder of the shares relevant instructions in relation to any of the shares and of those relevant instructions, and the date or dates on which those relevant instructions were given;

      “subsection (3) notice”, in relation to shares in a company, means a notice in writing addressed to a person requiring him to furnish to the company a statement in writing setting out —

                  (a)        full particulars of a relevant interest that the person has in any of the shares and of the circumstances by reason of which he has that interest; and

                  (b)        so far as it lies within his knowledge —

                              (i)   full particulars of the name and address of each other person (if any) who has a relevant interest in any of the shares;

                              (ii)  full particulars of each such interest, and of the circumstances by reason of which the other person has that interest;  and

                              (iii) full particulars of the name and address of each person (if any) who has given to the person to whom the notice is addressed relevant instructions in relation to any of the shares and of those relevant instructions, and the date or dates on which those relevant instructions were given.

                  (2)        A subsection (2) notice in relation to particular voting shares in a company —

                  (a)        may be given to the holder of the shares by the company at any time; and

                  (b)        shall be given to the holder of the shares by the company within 7 days after receiving a notice from —

                              (i)   the Registrar; or

                              (ii)  a member of the company who is entitled, or members of the company who are together entitled, to not less than 5% of the total voting rights of all the members having at the date of the last-mentioned notice a right to vote at general meetings of the company,

requiring the company to give a subsection (2) notice to the holder of the shares.

                  (3)        Where a company receives, pursuant to a subsection (2) notice or a subsection (3) notice given to a person in relation to particular shares in the company, information that —

                  (a)        some other person has a relevant interest in any of the shares; or

                  (b)        some other person has given relevant instructions in relation to any of the shares,

a subsection (3) notice in relation to the first-mentioned shares —

                  (c)        may be given to the other person by the company at any time; and

                  (d)       subject to subsection (4), shall be given to the other person by the company within 7 days after receiving the information, if the information was received pursuant to a notice that was required by paragraph (2)(b) or by this paragraph to be given.

                  (4)        Where —

                  (a)        a company has received a notice from the Registrar or a member or members of the company requiring the company to give a subsection (2) notice to a holder of shares in the company; and

                  (b)        the company receives a notice in writing from the Registrar or from that member or those members, as the case may be, to the effect that the company is no longer required to comply with subsection (3) in relation to those shares,

the company is not required to give a subsection (3) notice or a further subsection (3) notice, as the case requires, in relation to those shares pursuant to the first-mentioned notice.

                  (5)        A person who —

                  (a)        receives a subsection (2) notice or subsection (3) notice in relation to shares in a company; and

                  (b)        believes that there are special reasons why particular information that the notice requires him to furnish to the company should not be so furnished or should be so furnished only in a particular form,

may, within 2 business days after he receives the notice, apply to the Registrar for a certificate under subsection (6).

                  (6)        Where the Registrar is satisfied that there are special reasons why particular information should not be furnished to the company or should be so furnished only in a particular form, the Registrar may give the person a certificate either —

                  (a)        referring to the information and stating that the information need not be furnished to the company; or

                  (b)        referring to the information and stating that the information need only be furnished to the company in a form specified in the certificate,

as the case may be.

                  (7)        A person who receives a subsection (2) notice or a subsection (3) notice shall, unless within 2 business days after the day on which he receives the notice he applies to the Registrar under subsection (5) in relation to particular information that the notice requires him to furnish to the company, comply with the notice within 5 business days after that day.

                  (8)        A person who —

                  (a)        receives a subsection (2) notice or a subsection (3) notice; and

                  (b)        applies to the Registrar under subsection (5) for a certificate in relation to particular information that the notice requires him to furnish,

shall, forthwith after so applying, notify the company that he has so applied, and shall, within 5 business days after receiving notice of the decision of the Registrar in relation to his application —

                  (c)        except in a case to which paragraph (d) applies - comply with the subsection (2) notice or subsection (3) notice, as the case may be; or

                  (d)       if the Registrar has given him a certificate under subsection (6) in relation to some or all of that information, furnish to the company a copy of the certificate together with a statement in writing —

                              (i)   setting out so much of the information required by the subsection (2) notice or subsection (3) notice, as the case may be, as is not referred to in the certificate; and

                              (ii)  if the certificate states that particular information need only be furnished to the company in a specified form - setting out that information in that form.

                  (9)        A company shall keep a register of the information received by it under this section in such form as the Registrar requires.

                  (10)      The register shall be open for inspection —

                  (a)        by a member of the company - without charge;  and

                  (b)        by any other person - on payment for each inspection of such amount, not exceeding the prescribed amount, as the company requires or, where the company does not require the payment of an amount, without charge.

                  (11)      A person may request a company to furnish him with a copy of the register or of a part of the register and, where such a request is made, the company shall send the copy to that person —

                  (a)        if the company requires payment of an amount not exceeding the prescribed amount - within 21 days after payment of the amount is received by the company or within such longer period as the Registrar allows; or

                  (b)        in a case to which paragraph (a) does not apply - within 21 days after the request is made or within such longer period as the Registrar allows.

                  (12)      Information that is required by subsection (10) to be entered in a register shall be so entered by the company within 5 business days after the company receives the information.

                  (13)      If a company fails to comply with subsection (2) or (3) the company and any officer of the company who is in default are each guilty of an offence.