New Zealand Companies Act 1993 - Proceedings at Meetings of Shareholders

New Zealand New Zealand Companies Act 1993 New Zealand Companies Act 1993 New Zealand Companies Act 1993

Schedule 1 Proceedings at meetings of shareholders

s 124

1 Chairperson

  • (1) If the directors have elected a chairperson of the board, and the chairperson of the board is present at a meeting of shareholders, he or she must chair the meeting.

    (2) If no chairperson of the board has been elected or if, at any meeting of shareholders, the chairperson of the board is not present within 15 minutes of the time appointed for the commencement of the meeting, the shareholders present may choose one of their number to be chairperson of the meeting.

    (3) Subclauses (1) and (2) are subject to the constitution of the company.

2 Notice of meetings

  • (1) Written notice of the time and place of a meeting of shareholders must be sent to every shareholder entitled to receive notice of the meeting and to every director and an auditor of the company not less than 10 working days before the meeting.

    (2) The notice must state—

    • (a) the nature of the business to be transacted at the meeting in sufficient detail to enable a shareholder to form a reasoned judgment in relation to it; and

    • (b) the text of any special resolution to be submitted to the meeting; and

    • (c) in the case of special resolutions required by section 106(1)(a) or (b), the right of a shareholder under section 110.

    (3) An irregularity in a notice of a meeting is waived if all the shareholders entitled to attend and vote at the meeting attend the meeting without protest as to the irregularity, or if all such shareholders agree to the waiver.

    (3A) Subject to the constitution of the company, the accidental omission to give notice of a meeting to, or the failure to receive notice of a meeting by, a shareholder does not invalidate the proceedings at that meeting.

    (4) Subject to the constitution of the company, if a meeting of shareholders is adjourned for less than 30 days, it is not necessary to give notice of the time and place of the adjourned meeting other than by announcement at the meeting which is adjourned.

    Schedule 1 clause 2(2)(b): amended, on 17 September 2008, by section 10 of the Companies (Minority Buy-out Rights) Amendment Act 2008 (2008 No 69).

    Schedule 1 clause 2(2)(c): inserted, on 17 September 2008, by section 10 of the Companies (Minority Buy-out Rights) Amendment Act 2008 (2008 No 69).

    Schedule 1 clause 2(3A): inserted, on 1 July 1994, by section 49 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

3 Methods of holding meetings

  • A meeting of shareholders may be held by a quorum of the shareholders—

    • (a) being assembled together at the time and place appointed for the meeting; or

    • (b) participating in the meeting by means of audio, audio and visual, or electronic communication; or

    • (c) by a combination of both of the methods described in paragraphs (a) and (b).

    Schedule 1 clause 3: replaced, on 31 August 2012, by section 11(1) of the Companies Amendment Act (No 2) 2012 (2012 No 60).

4 Quorum

  • (1) Subject to subclause (3), no business may be transacted at a meeting of shareholders if a quorum is not present.

    (2) Subject to the constitution of the company, a quorum for a meeting of shareholders is present if shareholders or their proxies are present or have cast postal votes who are between them able to exercise a majority of the votes to be cast on the business to be transacted by the meeting.

    (3) If a quorum is not present within 30 minutes after the time appointed for the meeting,—

    • (a) in the case of a meeting called under section 121(b), the meeting is dissolved:

    • (b) in the case of any other meeting, the meeting is adjourned to the same day in the following week at the same time and place, or to such other date, time, and place as the directors may appoint, and, subject to the constitution of the company, if, at the adjourned meeting, a quorum is not present within 30 minutes after the time appointed for the meeting, the shareholders or their proxies present are a quorum.

    (4) To avoid doubt, a shareholder participating in a meeting by means of audio, audio and visual, or electronic communication is present at the meeting and part of the quorum.

    Schedule 1 clause 4(4): inserted, on 31 August 2012, by section 11(2) of the Companies Amendment Act (No 2) 2012 (2012 No 60).

5 Voting

  • (1) In the case of a meeting of shareholders held under clause 3(a), unless a poll is demanded, voting at the meeting shall be by whichever of the following methods is determined by the chairperson of the meeting:

    • (a) voting by voice; or

    • (b) voting by show of hands.

    (2) In the case of a meeting of shareholders held under clause 3(b) or (c), unless a poll is demanded, voting at the meeting shall be by any method permitted by the chairperson of the meeting.

    (3) A declaration by the chairperson of the meeting that a resolution is carried by the requisite majority is conclusive evidence of that fact unless a poll is demanded in accordance with subclause (4).

    (4) At a meeting of shareholders a poll may be demanded by—

    • (a) not less than 5 shareholders having the right to vote at the meeting; or

    • (b) a shareholder or shareholders representing not less than 10% of the total voting rights of all shareholders having the right to vote at the meeting; or

    • (c) by a shareholder or shareholders holding shares in the company that confer a right to vote at the meeting and on which the aggregate amount paid up is not less than 10% of the total amount paid up on all shares that confer that right; or

    • (d) the chairperson of the meeting.

    (5) A poll may be demanded either before or after the vote is taken on a resolution.

    (6) If a poll is taken, votes must be counted according to the votes attached to the shares of each shareholder present in person or by proxy and voting.

    (7) Subject to the constitution of the company, the chairperson of a shareholders' meeting is not entitled to a casting vote.

    (8) For the purposes of this clause, the instrument appointing a proxy to vote at a meeting of a company confers authority to demand or join in demanding a poll and a demand by a person as proxy for a shareholder has the same effect as a demand by the shareholder.

    Schedule 1 clause 5(2): amended, on 31 August 2012, by section 11(3) of the Companies Amendment Act (No 2) 2012 (2012 No 60).

    Schedule 1 clause 5(4)(c): amended, on 3 June 1998, by section 20(1) of the Companies Amendment Act 1998 (1998 No 31).

    Schedule 1 clause 5(4)(d): inserted, on 3 June 1998, by section 20(1) of the Companies Amendment Act 1998 (1998 No 31).

6 Proxies

  • (1) A shareholder may exercise the right to vote either by being present in person or by proxy.

    (2) A proxy for a shareholder is entitled to attend and be heard at a meeting of shareholders as if the proxy were the shareholder.

    (3) A proxy must be appointed by notice in writing signed by or, in the case of an electronic notice, sent by the shareholder and the notice must state whether the appointment is for a particular meeting or a specified term.

    (3A) A shareholder may appoint more than 1 proxy for a particular meeting, provided that more than 1 proxy is not appointed to exercise the rights attached to a particular share held by the shareholder.

    (4) No proxy is effective in relation to a meeting unless a copy of the notice of appointment is produced before the start of the meeting.

    (5) The constitution of a company may provide that a proxy is not effective unless it is produced by a specified time before the start of a meeting if the time specified is not earlier than 48 hours before the start of the meeting.

    Schedule 1 clause 6(3): amended, on 31 August 2012, by section 11(4) of the Companies Amendment Act (No 2) 2012 (2012 No 60).

    Schedule 1 clause 6(3): amended, on 3 June 1998, by section 20(2) of the Companies Amendment Act 1998 (1998 No 31).

    Schedule 1 clause 6(3A): inserted, on 31 August 2012, by section 11(5) of the Companies Amendment Act (No 2) 2012 (2012 No 60).

7 Postal votes

  • (1) Subject to the constitution of the company, a shareholder may exercise the right to vote at a meeting by casting a postal vote in accordance with the provisions of this clause.

    (1A) To avoid doubt, a postal vote may be cast using electronic means permitted by the board.

    (2) The notice of a meeting at which shareholders are entitled to cast a postal vote must state the name of the person authorised by the board to receive and count postal votes at that meeting.

    (3) If no person has been authorised to receive and count postal votes at a meeting, or if no person is named as being so authorised in the notice of the meeting, every director is deemed to be so authorised.

    (4) A shareholder may cast a postal vote on all or any of the matters to be voted on at the meeting by sending a notice of the manner in which his or her shares are to be voted to a person authorised to receive and count postal votes at that meeting. The notice must reach that person not less than 48 hours before the start of the meeting.

    (5) It is the duty of a person authorised to receive and count postal votes at a meeting—

    • (a) to collect together all postal votes received by him or her or by the company; and

    • (b) in relation to each resolution to be voted on at the meeting, to count—

      • (i) the number of shareholders voting in favour of the resolution and the number of votes cast by each shareholder in favour of the resolution; and

      • (ii) the number of shareholders voting against the resolution, and the number of votes cast by each shareholder against the resolution; and

    • (c) to sign a certificate that he or she has carried out the duties set out in paragraphs (a) and (b) and which sets out the results of the counts required by paragraph (b); and

    • (d) to ensure that the certificate required by paragraph (c) is presented to the chairperson of the meeting.

    (6) If a vote is taken at a meeting on a resolution on which postal votes have been cast, the chairperson of the meeting must—

    • (a) on a vote by show of hands, count each shareholder who has submitted a postal vote for or against the resolution:

    • (b) on a poll, count the votes cast by each shareholder who has submitted a postal vote for or against the resolution.

    (7) The chairperson of a meeting must call for a poll on a resolution on which he or she holds sufficient postal votes that he or she believes that if a poll is taken the result may differ from that obtained on a show of hands.

    (8) The chairperson of a meeting must ensure that a certificate of postal votes held by him or her is annexed to the minutes of the meeting.

    Schedule 1 clause 7(1A): inserted, on 31 August 2012, by section 11(6) of the Companies Amendment Act (No 2) 2012 (2012 No 60).

8 Minutes

  • (1) The board must ensure that minutes are kept of all proceedings at meetings of shareholders.

    (2) Minutes which have been signed correct by the chairperson of the meeting are prima facie evidence of the proceedings.

9 Shareholder proposals

  • (1) A shareholder may give written notice to the board of a matter the shareholder proposes to raise for discussion or resolution at the next meeting of shareholders at which the shareholder is entitled to vote.

    (2) If the notice is received by the board not less than 20 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board must, at the expense of the company, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting.

    (3) If the notice is received by the board not less than 5 working days and not more than 20 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board must, at the expense of the shareholder, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting.

    (4) If the notice is received by the board less than 5 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board must, if practicable, and at the expense of the shareholder, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting.

    (5) If the directors intend that shareholders may vote on the proposal by proxy or by postal vote, they must give the proposing shareholder the right to include in or with the notice given by the board a statement of not more than 1 000 words prepared by the proposing shareholder in support of the proposal, together with the name and address of the proposing shareholder.

    (6) The board is not required to include in or with the notice given by the board—

    • (a) any part of a statement prepared by a shareholder that the directors consider to be defamatory (within the meaning of the Defamation Act 1992), frivolous, or vexatious; or

    • (b) any part of a proposal or resolution prepared by a shareholder that the directors consider to be defamatory (within the meaning of the Defamation Act 1992).

    (7) Where the costs of giving notice of the shareholder proposal and the text of any proposed resolution are required to be met by the proposing shareholder, the proposing shareholder must, on giving notice to the board, deposit with the company or tender to the company a sum sufficient to meet those costs.

    Schedule 1 clause 9(4): amended, on 15 April 2004, by section 22(1) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Schedule 1 clause 9(6): replaced, on 15 April 2004, by section 22(2) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

10 Corporations may act by representatives

  • A body corporate which is a shareholder may appoint a representative to attend a meeting of shareholders on its behalf in the same manner as that in which it could appoint a proxy.

11 Votes of joint holders

  • Where 2 or more persons are registered as the holder of a share, the vote of the person named first in the share register and voting on a matter must be accepted to the exclusion of the votes of the other joint holders.

12 Loss of voting right if calls unpaid

  • Subject to the constitution of a company, if a sum due to a company in respect of a share has not been paid, that share may not be voted at a shareholder's meeting other than a meeting of an interest group.

13 Other proceedings

  • Except as provided in this schedule, and subject to the constitution of the company, a meeting of shareholders may regulate its own procedure.

14 Shareholder participation by electronic means

  • (1) For the purposes of this schedule, a shareholder, or the shareholder's proxy or representative, may participate in a meeting by means of audio, audio and visual, or electronic communication if—

    • (a) the board approves those means; and

    • (b) the shareholder, proxy, or representative complies with any conditions imposed by the board in relation to the use of those means (including, for example, conditions relating to the identity of the shareholder, proxy, or representative and that person's approval or authentication (including electronic authentication) of the information communicated by electronic means).

    (2) To avoid doubt, participation in a meeting includes participation in any manner specified in this schedule or permitted by the constitution of the company.

    Schedule 1 clause 14: inserted, on 31 August 2012, by section 11(7) of the Companies Amendment Act (No 2) 2012 (2012 No 60).

Schedule 2 Sections of this Act that confer powers on directors that cannot be delegated

s 130

  • (a) section 23(1)(c) (which relates to the change of company names):

  • (b) section 42 (which relates to the issue of shares):

  • (c) section 44 (which relates to shareholder approval to the issue of shares):

  • (d) section 47 (which relates to the consideration for the issue of shares):

  • (da) section 49 (which relates to the consideration for the issue of options and convertible securities):

  • (e) section 52 (which relates to distributions):

  • (f) section 54 (which relates to the issue of shares in lieu of dividends):

  • (g) section 55 (which relates to shareholder discounts):

  • (h) section 60 (which relates to offers to acquire shares):

  • (i) section 61 (which relates to special offers to acquire shares):

  • (j) section 63 (which relates to stock exchange acquisitions subject to prior notice to shareholders):

  • (k) section 65 (which relates to stock exchange acquisitions not subject to prior notice to shareholders):

  • (l) section 69 (which relates to the redemption of shares at the option of a company):

  • (m) section 71 (which relates to special redemptions of shares):

  • (n) section 76 (which relates to the provision of financial assistance):

  • (o) section 78 (which relates to special financial assistance):

  • (p) section 80 (which relates to financial assistance not exceeding 5% of shareholders' funds):

  • (q) section 84(4) (which relates to the transfer of shares):

  • (r) section 187 (which relates to a change of registered office):

  • (s) section 193 (which relates to a change of address for service):

  • (t) section 221 (which relates to the manner of approving an amalgamation proposal):

  • (u) section 222 (which relates to short form amalgamations).

  • Schedule 2 paragraph (da): inserted, on 15 April 2004, by section 23 of the Companies Amendment Act (No 2) 2004 (2004 No 24).

Schedule 3 Proceedings of the board of a company

s 160

1 Chairperson

  • (1) The directors may elect one of their number as chairperson of the board.

    (2) The director elected as chairperson holds that office until he or she dies or resigns or the directors elect a chairperson in his or her place.

    (3) If no chairperson is elected, or if at a meeting of the board the chairperson is not present within 5 minutes after the time appointed for the commencement of the meeting, the directors present may choose one of their number to be chairperson of the meeting.

2 Notice of meeting

  • (1) A director or, if requested by a director to do so, an employee of the company, may convene a meeting of the board by giving notice in accordance with this clause.

    (2) Not less than 2 days' notice of a meeting of the board must be sent to every director who is in New Zealand, and the notice must include the date, time, and place of the meeting and the matters to be discussed.

    (3) An irregularity in the notice of a meeting is waived if all directors entitled to receive notice of the meeting attend the meeting without protest as to the irregularity or if all directors entitled to receive notice of the meeting agree to the waiver.

3 Methods of holding meetings

  • A meeting of the board may be held either—

    • (a) by a number of the directors who constitute a quorum, being assembled together at the place, date, and time appointed for the meeting; or

    • (b) by means of audio, or audio and visual, communication by which all directors participating and constituting a quorum can simultaneously hear each other throughout the meeting.

4 Quorum

  • (1) A quorum for a meeting of the board is a majority of the directors.

    (2) No business may be transacted at a meeting of directors if a quorum is not present.

5 Voting

  • (1) Every director has 1 vote.

    (2) The chairperson does not have a casting vote.

    (3) A resolution of the board is passed if it is agreed to by all directors present without dissent or if a majority of the votes cast on it are in favour of it.

    (4) A director present at a meeting of the board is presumed to have agreed to, and to have voted in favour of, a resolution of the board unless he or she expressly dissents from or votes against the resolution at the meeting.

6 Minutes

  • The board must ensure that minutes are kept of all proceedings at meetings of the board.

7 Unanimous resolution

  • (1) A resolution in writing, signed or assented to by all directors then entitled to receive notice of a board meeting, is as valid and effective as if it had been passed at a meeting of the board duly convened and held.

    (2) Any such resolution may consist of several documents (including facsimile or other similar means of communication) in like form each signed or assented to by 1 or more directors.

    (3) A copy of any such resolution must be entered in the minute book of board proceedings.

8 Other proceedings

  • Except as provided in this schedule, the board may regulate its own procedure.

Schedule 4 Information to be contained in annual return

s 214

  • (a) the address of the registered office of the company:

  • (b) the address for service of the company:

  • (c) the postal address of the company:

  • (d) if the share register is divided into 2 or more registers kept in different places, the place in which each register is kept:

  • (e) if any records are not kept at the company's registered office under section 189(1), details of those records and of the place or places where they are kept:

  • (f) the following information relating to the shares in the company:

    • (i) the number of shares issued and, if there is more than 1 class of shares, the number of shares in each class:

    • (ii) the value of the consideration for each share issued:

    • (iii) where the full consideration was not payable or required to be provided in respect of the issue of the share, the value of that part of the consideration paid or provided in respect of the issue of the share:

    • (iv) the amount called up on each share:

    • (v) the total amount of calls received:

    • (vi) the total amount of calls unpaid:

    • (vii) the total number of shares forfeited and not sold or otherwise disposed of:

    • (viii) the total number of shares purchased or otherwise acquired by the company:

    • (ix) the total number of shares redeemed by the company:

  • (g) the full names and residential addresses of the directors of the company:

  • (h) if the company is a party to a listing agreement with a registered exchange (within the meaning of section 2(1) of the Securities Markets Act 1988), the names and addresses of, and the number of shares held by,—

    • (i) the persons holding the 10 largest numbers of shares; or

    • (ii) if there is more than 1 class of shares, the persons holding the 10 largest numbers of shares in each class:

  • (i) if the company is not a party to a listing agreement with a registered exchange (within the meaning of section 2(1) of the Securities Markets Act 1988), the following information relating to past and present shareholders of the company:

    • (i) the names and addresses of all the shareholders of the company:

    • (ii) the names and addresses of all persons who ceased to be shareholders of the company—

      • (A) since the date of the last annual return; or

      • (B) in the case of the first annual return of a company registered under this Act, since the date of registration:

      • (C) [Repealed]

      • (D) [Repealed]

    • (iii) the number of shares held by each shareholder:

    • (iv) the shares transferred by existing shareholders or past shareholders (including the dates of registration of the transfers)—

      • (A) since the last annual return; or

      • (B) in the case of the first annual return of a company registered under this Act, since the date of registration:

      • (C) [Repealed]

      • (D) [Repealed]

  • (j) a statement whether, at any time,—

    • (i) since the last annual return; or

    • (ii) in the case of the first annual return of a company registered under this Act, since the date of registration,—

    • (iii) [Repealed]

    • (iv) [Repealed]

  • (k) in the case of a company which has passed a resolution under section 196(2) that no auditor be appointed, the text and date of the resolution:

  • (l) the date of the last annual meeting of the company held under this Act or, if the company avoided the need for an annual meeting by doing everything required to be done at that meeting by passing a resolution under section 122, the date on which the resolution was passed.

  • (m) [Repealed]

Notes

The information required by paragraph (f)(i) must show separately the number of shares issued for cash and the number of shares issued as fully or partly paid up for a consideration other than cash.

The information required under paragraph (i) need relate only to persons who have become shareholders or who have ceased to be shareholders since the date of an annual return filed under this Act for one of the 2 preceding years if that annual return contained the information required by that paragraph.

  • Schedule 4 paragraph (h): amended, on 1 December 2002, by section 30 of the Securities Markets Amendment Act 2002 (2002 No 44).

  • Schedule 4 paragraph (i): amended, on 1 December 2002, by section 30 of the Securities Markets Amendment Act 2002 (2002 No 44).

  • Schedule 4 paragraph (i)(ii)(B): replaced, on 5 December 2013, by section 12(1) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (i)(ii)(C): repealed, on 5 December 2013, by section 12(1) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (i)(ii)(D): repealed, on 5 December 2013, by section 12(1) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (i)(iv)(B): replaced, on 5 December 2013, by section 12(2) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (i)(iv)(C): repealed, on 5 December 2013, by section 12(2) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (i)(iv)(D): repealed, on 5 December 2013, by section 12(2) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (j): amended, on 31 August 2012, by section 10(2) of the Takeovers Amendment Act 2012 (2012 No 68).

  • Schedule 4 paragraph (j): amended, on 7 July 2010, by section 20 of the Takeovers Amendment Act 2010 (2010 No 88).

  • Schedule 4 paragraph (j)(ii): replaced, on 5 December 2013, by section 12(3) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (j)(iii): repealed, on 5 December 2013, by section 12(3) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (j)(iv): repealed, on 5 December 2013, by section 12(3) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 paragraph (m): repealed, on 5 December 2013, by section 12(4) of the Companies Amendment Act 2013 (2013 No 111).

  • Schedule 4 notes: amended, on 31 August 2012, by section 10(3) of the Takeovers Amendment Act 2012 (2012 No 68).

Schedule 5 Proceedings at meetings of creditors

ss 229(2), 230(1), 243(5), 314(4), 315(4)

1 Methods of holding meetings

  • A meeting of creditors may be held—

    • (a) by assembling together those creditors entitled to take part and who choose to attend at the place, date, and time appointed for the meeting; or

    • (b) by means of audio, or audio and visual, communication by which all creditors participating can simultaneously hear each other throughout the meeting; or

    • (c) by conducting a postal ballot in accordance with clause 7 of those creditors entitled to take part.

2 Notice of meeting

  • (1) Written notice of—

    • (a) the time and place of every meeting to be held under clause 1(a); or

    • (b) the time and method of communication for every meeting to be held under clause 1(b); or

    • (c) the time and address for the return of voting papers for every meeting to be held under clause 1(a) or (b) or (c)—

    must be sent to every creditor entitled to attend the meeting, and to any liquidator not less than 5 working days before the meeting.

    (2) The notice must—

    • (a) state the nature of the business to be transacted at the meeting in sufficient detail to enable a creditor to form a reasoned judgment in relation to it; and

    • (b) set out the text of any resolution to be submitted to the meeting; and

    • (c) include a voting paper in respect of each such resolution and voting and mailing instructions; and

    • (d) state that if a creditor votes by casting a postal vote in respect of a resolution that is to be submitted to the meeting and a different resolution is submitted to the meeting,—

      • (i) the creditor's postal vote is invalid in respect of that different resolution; but

      • (ii) the creditor may vote, in respect of that different resolution, either by being present in person or by proxy.

    (3) An irregularity in or a failure to receive a notice of meeting of creditors does not invalidate anything done by a meeting of creditors if—

    • (a) the irregularity or failure is not material; or

    • (b) all the creditors entitled to attend and vote at the meeting attend the meeting without protest as to the irregularity or failure; or

    • (c) all such creditors agree to waive the irregularity or failure.

    (4) If the meeting of creditors agrees, the chairperson may adjourn the meeting from time to time and from place to place.

    (5) An adjourned meeting must be held in the same place unless another place is specified in the resolution for the adjournment.

    (6) If a meeting of creditors under clause 1(a) or (b) is adjourned for less than 30 days, it is not necessary to give notice of the time and place of the adjourned meeting other than by announcement at the meeting which is adjourned.

    Schedule 5 clause 2(2)(c): amended, on 3 June 1998, by section 21(1) of the Companies Amendment Act 1998 (1998 No 31).

    Schedule 5 clause 2(2)(d): inserted, on 3  June 1998, by section 21(1) of the Companies Amendment Act 1998 (1998 No 31).

3 Chairperson

  • (1) If a liquidator has been appointed and is present, or if the liquidator has appointed a nominee and the nominee is present, he or she must act as chairperson of a meeting held in accordance with clause 1(a) or (b).

    (2) At any meeting of creditors, not being a meeting held for the purposes of section 230, where neither the liquidator nor any nominee of the liquidator is present, the creditors participating must choose one of their number to act as chairperson of the meeting.

    (2A) At any meeting of creditors held for the purposes of section 230 where there is no liquidator or neither the liquidator nor any nominee of the liquidator is present, the proponent of the compromise or the proponent's nominee must act as chairperson of the meeting; but if neither the proponent nor any nominee of the proponent is present, the creditors participating must choose one of their number to act as chairperson of the meeting.

    (3) The person convening a meeting under clause 1(c) must do everything necessary that would otherwise be done by the person chairing a meeting.

    Schedule 5 clause 3(2): replaced, on 3 June 1998, by section 21(2) of the Companies Amendment Act 1998 (1998 No 31).

    Schedule 5 clause 3(2A): inserted, on 3 June 1998, by section 21(2) of the Companies Amendment Act 1998 (1998 No 31).

4 Quorum

  • (1) A quorum for a meeting of creditors is present if—

    • (a) 3 creditors who are entitled to vote or their proxies are present or have cast postal votes; or

    • (b) if the number of creditors entitled to vote does not exceed 3, the creditors who are entitled to vote or their proxies are present or have cast postal votes.

    (2) If a quorum is not present within 30 minutes after the time appointed for the meeting, the meeting is adjourned to the same day in the following week at the same time and place, or to such other date, time, and place as the chairperson may appoint, and if, at the adjourned meeting, a quorum is not present within 30 minutes after the time appointed for the meeting, the creditors present or their proxies are a quorum.

5 Voting

  • (1) At any meeting of creditors or a class of creditors, not being a meeting held for the purposes of section 230, a resolution is adopted if a majority in number and value of the creditors or the class of creditors voting in person or by proxy vote or by postal vote in favour of the resolution.

    (2) At any meeting of creditors or a class of creditors held for the purposes of section 230, a resolution is adopted if a majority in number representing 75% in value of the creditors or class of creditors voting in person or by proxy vote or by postal vote in favour of the resolution.

    (3) A creditor chairing the meeting does not have a casting vote.

    Schedule 5 clause 5(1): amended, on 30 June 1997, by section 23(1) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

    Schedule 5 clause 5(2): amended, on 30 June 1997, by section 23(1) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

6 Proxies

  • (1) A creditor may exercise the right to vote either by being present in person or by proxy.

    (2) A proxy for a creditor is entitled to attend and be heard at a meeting of creditors as if the proxy were the creditor.

    (3) A proxy must be appointed by notice in writing signed by the creditor and the notice must state whether the appointment is for a particular meeting or a specified term not exceeding 12 months.

    (4) No proxy is effective in relation to a meeting unless a copy of the notice of appointment is delivered to the liquidator or, if no liquidator is acting, to the person by whom the notice convening the meeting was given, not less than 2 working days before the start of the meeting.

    Schedule 5 clause 6(4): amended, on 30 June 1997, by section 23(2) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

7 Postal votes

  • (1) A creditor entitled to vote at a meeting of creditors held in accordance with clause 1(a) or (b) or (c) may exercise the right to vote by casting a postal vote in relation to a matter to be decided at that meeting.

    (1A) If a creditor votes by casting a postal vote in respect of a resolution that is to be submitted to the meeting and a different resolution is submitted to the meeting,—

    • (a) the creditor's postal vote is invalid in respect of that different resolution; but

    • (b) the creditor may vote, in respect of that different resolution, either by being present in person or by proxy.

    (2) The notice of meeting must state the name of the person authorised to receive and count postal votes in relation to that meeting.

    (3) If no person has been authorised to receive and count postal votes in relation to a meeting, or if no person is named as being so authorised in the notice of the meeting, every director, or if the company is in liquidation, the liquidator, is deemed to be so authorised.

    (4) A creditor may cast a postal vote on all or any of the matters to be voted on at the meeting by sending a marked voting paper to a person authorised to receive and count postal votes in relation to that meeting, so as to reach that person not less than 2 working days before the start of the meeting or, if the meeting is held under clause 1(c), not later than the date named for the return of the voting paper.

    (5) It is the duty of a person authorised to receive and count postal votes in relation to a meeting—

    • (a) to collect together all postal votes received by him or her; and

    • (b) in relation to each resolution to be voted on,—

      • (i) to count the number of creditors or creditors belonging to a class of creditors, as the case may be, voting in favour of the resolution and determine the total amount of the debts owed by the company to those creditors; and

      • (ii) to count the number of creditors or creditors belonging to a class of creditors, as the case may be, voting against the resolution and determine the total amount of the debts owed by the company to those creditors; and

    • (c) to sign a certificate—

      • (i) that he or she has carried out the duties set out in paragraphs (a) and (b); and

      • (ii) stating the results of the counts and determinations required by paragraph (b); and

    • (d) to ensure that the certificate required by paragraph (c) is presented to the person chairing or convening the meeting.

    (6) If a vote is taken at a meeting held under clause 1(a) or (b) on a resolution on which postal votes have been cast, the person chairing the meeting must include the results of voting by all creditors who have sent in a voting paper duly marked as for or against the resolution.

    (7) A certificate given under subclause (5) in relation to the postal votes cast in respect of a meeting of creditors must be annexed to the minutes of the meeting.

    Schedule 5 clause 7(1A): inserted, on 3 June 1998, by section 21(3) of the Companies Amendment Act 1998 (1998 No 31).

    Schedule 5 clause 7(4): amended, on 30 June 1997, by section 23(3) of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

8 Minutes

  • (1) The person chairing a meeting of creditors, or in the case of a meeting held under clause 1(c), the person convening the meeting, must ensure that minutes are kept of all proceedings.

    (2) Minutes which have been signed correct by the person chairing or convening the meeting are prima facie evidence of the proceedings.

9 Corporations may act by representatives

  • A body corporate which is a creditor may appoint a representative to attend a meeting of creditors on its behalf.

10 Other proceedings

  • Except as provided in this schedule and in any regulations made under this Act, a meeting of creditors may regulate its own procedure.

11 Effect of irregularity or defect

  • (1) An irregularity or defect in the proceedings at a meeting of creditors does not invalidate anything done by a meeting of creditors, unless the court orders otherwise.

    (2) The court may, on the application of the liquidator or a creditor of the company, make an order under subclause (1) if it is satisfied that substantial injustice would be caused if the order were not made.

    Schedule 5 clause 11: inserted, on 3 June 1998, by section 21(4) of the Companies Amendment Act 1998 (1998 No 31).

New Zealand Companies Act 1993 New Zealand Companies Act 1993 New Zealand Companies Act 1993
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