New Zealand Companies Act 1993 - Rights of Secured Creditor, Owner, or Lessor

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

Subpart 10—Rights of secured creditor, owner, or lessor

  • Subpart 10: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABK Meaning of terms used in this subpart

  • In this subpart, unless the context otherwise requires,—

    decision period means, in relation to a secured creditor holding a charge over property of a company in administration, the period that—

    • (a) begins—

      • (i) if notice of the appointment of the administrator must be given to the secured creditor under section 239ADW(1)(c), on the day when that notice is given; or

      • (ii) in any other case, on the day when the administration begins; and

    • (b) ends at the end of the tenth working day after the day when it begins

    enforce, in relation to a charge over property of a company in administration, includes—

    • (a) to appoint a receiver of property of the company under a power contained in an instrument relating to the charge; or

    • (b) to obtain an order for the appointment of a receiver of that property for the purpose of enforcing the charge; or

    • (c) to enter into possession, or assume control, of that property for that purpose; or

    • (d) to appoint a person to enter into possession or assume control (whether as agent for the secured creditor or for the company) for that purpose; or

    • (e) to exercise, as secured creditor or as a receiver or person so appointed, a right, power, or remedy existing because of the charge, whether arising under an instrument relating to the charge, under a written or unwritten law, or otherwise.

    Section 239ABK: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABL If secured creditor acts before or during decision period

  • (1) This section applies if—

    • (a) the whole, or substantially the whole, of the property of a company in administration is subject to a charge; and

    • (b) before or during the decision period, the secured creditor enforces the charge in relation to all property of the company subject to the charge, whether or not the charge is enforced in the same way in relation to all that property.

    (2) This section also applies if—

    • (a) a company is in administration; and

    • (b) the same person is the secured creditor in relation to each of 2 or more charges over the property of the company; and

    • (c) the property of the company (in this subsection called the charged property) subject to the respective charges together constitutes the whole, or substantially the whole, of the company's property; and

    • (d) before or during the decision period, the secured creditor enforces together the charges in relation to all the charged property—

      • (i) whether or not the charges are enforced in the same way in relation to all the charged property; and

      • (ii) whether or not any of the charges is enforced in the same way in relation to all the property of the company subject to that charge; and

      • (iii) in so far as the charges are enforced in relation to property of the company in a way referred to in paragraph (a), (b), or (d) of the definition of enforce in section 239ABK, whether or not the same person is appointed in respect of all of the last-mentioned property.

    (3) Nothing in section 239ABC or in an order under section 239ABO prevents any of the following persons from enforcing the charge:

    • (a) the secured creditor:

    • (b) a receiver or person appointed as mentioned in paragraph (a), (b), or (d) of the definition of enforce in section 239ABK as that definition applies in relation to the charge, or any of the charges (even if appointed after the decision period).

    (4) Section 239Z does not apply in relation to a transaction or dealing that affects property of the company and is entered into by the secured creditor or a receiver or person of a kind referred to in subsection (3)(b) in the performance or exercise of a function or power as that secured creditor, receiver, or person, as the case may be.

    Compare: Corporations Act 2001 s 441A (Aust)

    Section 239ABL: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABM If enforcement of charges begins before administration

  • (1) This section applies if, before the beginning of the administration of a company, a secured creditor, receiver, or other person, for the purpose of enforcing a charge over the property,—

    • (a) entered into possession, or assumed control, of the property of the company; or

    • (b) entered into an agreement to sell the property; or

    • (c) made arrangements for the property to be offered for sale by public auction; or

    • (d) publicly invited tenders for the purchase of the property; or

    • (e) exercised any other power in relation to the property.

    (2) Nothing in section 239ABC prevents the secured creditor, receiver, or other person from enforcing the charge in relation to the property.

    (3) Section 239Z does not apply in relation to a transaction or dealing that affects the property and is entered into, as the case may be,—

    • (a) in the exercise of a power of the secured creditor as secured creditor; or

    • (b) in the performance or exercise of a function or power of the receiver or other person.

    Compare: Corporations Act 2001 s 441B (Aust)

    Section 239ABM: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABN Charge over perishable property

  • (1) This section applies if perishable property of a company in administration is subject to a charge.

    (2) Nothing in section 239ABC prevents the secured creditor, a receiver, or a person appointed (at any time) as mentioned in paragraph (a), (b), or (d) of the definition of enforce in section 239ABK from enforcing the charge, so far as it is a charge over perishable property.

    (3) Section 239Z does not apply in relation to a transaction or dealing that affects perishable property of the company and is entered into, as the case may be,—

    • (a) in the exercise of a power of the secured creditor as secured creditor; or

    • (b) in the performance or exercise of a function or power of the receiver or other person.

    Compare: Corporations Act 2001 s 441C (Aust)

    Section 239ABN: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABO Court may limit powers of secured creditor, etc, in relation to property subject to charge

  • (1) This section—

    • (a) applies if,—

      • (i) for the purpose of enforcing a charge over property of a company, the secured creditor, a receiver, or other person does an act of a kind referred to in section 239ABM(1); and

      • (ii) the company is in administration when the secured creditor, receiver, or other person does that act, or an administrator is later appointed to the company:

    • (b) does not apply in a case where section 239ABL applies.

    (2) On an application by the administrator, the court may order the secured creditor, receiver, or other person not to perform specified functions or exercise specified powers, except as permitted by the order.

    (3) The court may make an order only if satisfied that what the administrator proposes to do during the administration will adequately protect the secured creditor's interests.

    (4) An order—

    • (a) may be made only, and has effect only, during the administration; and

    • (b) has effect despite section 239ABM and 239ABN.

    Compare: Corporations Act 2001 s 441D (Aust)

    Section 239ABO: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABP Giving notice under security agreement

  • Section 239ABC does not prevent a person from giving a notice under the provisions of a security agreement.

    Compare: Corporations Act 2001 s 441E (Aust)

    Section 239ABP: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABQ If recovery of property begins before administration

  • (1) This section applies if, before the beginning of the administration of a company, a receiver or other person, for the purpose of enforcing a right of the owner or lessor of the property to take possession of the property or otherwise recover it,—

    • (a) entered into possession of, or assumed control of, property used or occupied by, or in the possession of, the company; or

    • (b) exercised any other power in relation to the property.

    (2) Section 239ABD does not prevent the receiver or other person from performing a function, or exercising a power, in relation to the property.

    (3) Section 239Z does not apply in relation to a transaction or dealing that affects the property and is entered into in the performance or exercise of a function or power of the receiver or other person.

    Compare: Corporations Act 2001 s 441F (Aust)

    Section 239ABQ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABR Recovering perishable property

  • (1) Nothing in section 239ABD prevents a person from taking possession of, or otherwise recovering, perishable property.

    (2) Section 239Z does not apply in relation to a transaction or dealing that affects perishable property and is entered into for the purpose of enforcing a right of the owner or lessor of the property to take possession of the property or otherwise recover it.

    Compare: Corporations Act 2001 s 441G (Aust)

    Section 239ABR: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABS Court may limit powers of receiver, etc, in relation to property used by company

  • (1) This section applies if,—

    • (a) for the purpose of enforcing a right of the owner or lessor of property used or occupied by, or in the possession of, a company to take possession of the property or otherwise recover it, a person—

      • (i) enters into possession, or assumes control, of the property; or

      • (ii) exercises any other power in relation to the property; and

    • (b) the company is in administration when the person does so, or an administrator is later appointed to the company.

    (2) On an application by the administrator, the court may order the person not to perform specified functions, or exercise specified powers, in relation to the property, except as permitted by the order.

    (3) The court may make an order only if satisfied that what the administrator proposes to do during the administration will adequately protect the interests of the owner or lessor.

    (4) An order—

    • (a) may be made only, and has effect only, during the administration; and

    • (b) has effect despite sections 239ABQ and 239ABR.

    Compare: Corporations Act 2001 s 441H (Aust)

    Section 239ABS: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABT Giving notice under agreement about property

  • Nothing in section 239ABD prevents a person from giving a notice to a company under an agreement relating to property that is used or occupied by, or is in the possession of, the company.

    Compare: Corporations Act 2001 s 441J (Aust)

    Section 239ABT: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 11—Interface with liquidation

  • Subpart 11: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABU When liquidator may be appointed to company in administration

  • A liquidator may be appointed to a company in administration—

    • (a) by the court, on an application for the appointment of a liquidator under section 241(2)(c); or

    • (b) by resolution of the creditors at the watershed meeting or at a meeting convened under section 239ADF to consider the termination of the deed of company arrangement.

    Section 239ABU: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABV Court may adjourn application for liquidation

  • The court may adjourn an application under section 241(2)(c) for the appointment of a liquidator of a company in administration if the court is satisfied that it is in the interests of the company's creditors for the company to continue in administration rather than be placed in liquidation.

    Compare: Corporations Act 2001 s 440A(2) (Aust)

    Section 239ABV: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABW Court must not appoint interim liquidator if administration in creditors' interests

  • The court must not appoint an interim liquidator of a company in administration if the court is satisfied that it is in the interests of the company's creditors for the company to continue in administration rather than have an interim liquidator appointed.

    Compare: Corporations Act 2001 s 440A(3) (Aust)

    Section 239ABW: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABX Effect of appointment of liquidator

  • The appointment of a liquidator to a company in administration ends the administration.

    Section 239ABX: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABY Former administrator is default liquidator

  • In the case of the appointment of a liquidator to a company in administration by the creditors, the former administrator is the liquidator if—

    • (a) the creditors' resolution does not nominate a person for appointment; or

    • (b) the person nominated is disqualified from acting as the liquidator or has not consented in writing; or

    • (c) the person nominated is for any other reason unable or unwilling to act as liquidator.

    Section 239ABY: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ABZ Person in control of company must lodge revised report with Registrar

  • (1) This section applies when a liquidator is appointed to a company that is in administration or under a deed of company arrangement.

    (2) The administrator or, if the company is under a deed of company arrangement, the deed administrator must as soon as practicable lodge the following documents with the Registrar:

    • (a) a copy of the administrator's report that accompanied the notice to creditors of the watershed meeting; and

    • (b) a further report updating the administrator's report with any matters of which the administrator or deed administrator is aware that—

      • (i) are not referred to in the administrator's report, or have changed since that report; and

      • (ii) affect the financial position of the company.

    (3) If there is no administrator or deed administrator acting when the company is placed in liquidation, the director or directors of the company at the date of liquidation must take the steps described in subsection (2) as if they were the administrator or deed administrator.

    Section 239ABZ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACA Act of administrator in good faith must not be set aside in liquidation

  • A payment made, transaction entered into, or any other act or thing done, in good faith, by or with the consent of the administrator of a company in administration, must not be set aside in a liquidation of the company.

    Compare: Corporations Act 2001 s 451C(b) (Aust)

    Section 239ACA: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACB Voidable transactions

  • (1) The voidable transaction provisions do not apply to a transaction by a company in administration if the transaction is—

    • (a) carried out by or with the authority of the administrator or deed administrator; or

    • (b) specifically authorised by the deed of company arrangement and carried out by the deed administrator.

    (2) In this section, voidable transaction provisions means sections 292 to 296.

    Section 239ACB: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 12 —Deed administrator

  • Subpart 12: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACC Who is deed administrator

  • The administrator of the company is the deed administrator, unless the creditors at the watershed meeting by resolution appoint someone else to be the deed administrator.

    Compare: Corporations Act 2001 s 444A(2) (Aust)

    Section 239ACC: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACD Who may be appointed deed administrator

  • (1) A natural person who is not disqualified under subsection (2) may be appointed deed administrator.

    (2) Unless the court orders otherwise, a person is disqualified from appointment as a deed administrator if that person is—

    • (a) disqualified under section 280(1) from acting as a liquidator of the company; or

    • (b) prohibited from being a deed administrator by an order made under section 239ADV.

    Section 239ACD: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACE Deed administrator must consent in writing

  • A person must not be appointed deed administrator unless that person has consented in writing and has not withdrawn the consent at the time when the deed of company arrangement is executed.

    Compare: Corporations Act 2001 s 448A (Aust)

    Section 239ACE: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACF Appointment of deed administrator must not be revoked

  • Except in the case of removal by the court, the appointment of the deed administrator must not be revoked.

    Compare: Corporations Act 2001 s 449A (Aust)

    Section 239ACF: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACG Appointment of 2 or more deed administrators

  • (1) Two or more persons may be appointed deed administrators in any case where this Act provides for the appointment of a deed administrator.

    (2) If 2 or more persons are appointed deed administrators jointly,—

    • (a) a deed administrator's function or power may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order, instrument, or resolution appointing them provides otherwise; and

    • (b) a reference in this Act to a deed administrator or the deed administrator refers to whichever 1 or more of the deed administrators the case requires.

    Compare: Corporations Act 2001 s 451B (Aust)

    Section 239ACG: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACH When office of deed administrator vacant

  • The office of the deed administrator is vacant if the deed administrator—

    • (a) resigns; or

    • (b) becomes disqualified from appointment as a deed administrator (see section 239ACD(2)); or

    • (c) is removed by the court.

    Section 239ACH: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACI Deed administrator may resign

  • The deed administrator may resign by giving written notice to the company.

    Section 239ACI: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACJ Removal of deed administrator

  • (1) The court may—

    • (a) remove the deed administrator, and appoint a person in his or her place; or

    • (b) appoint a new deed administrator, if the deed of company arrangement has not yet terminated but for some reason no deed administrator is acting.

    (2) The court may make an order under subsection (1) on the application of a creditor of the company, a shareholder, the liquidator (if the company is in liquidation), the FMA (if the company is a financial markets participant), or the Registrar.

    Section 239ACJ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239ACJ(2): amended, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

239ACK Remuneration of deed administrator

  • (1) The deed administrator is entitled to charge reasonable remuneration for carrying out his or her duties and exercising his or her powers as deed administrator.

    (2) The court may, on the application of the deed administrator, a director or officer of the company, a creditor, or a shareholder, review or fix the deed administrator's remuneration at a level that is reasonable in the circumstances.

    (3) A creditor or shareholder may make an application under subsection (2) only with the leave of the court.

    Compare: 1993 No 105 ss 276(1), 284(1)(e)

    Section 239ACK: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACL Deed administrator may sell shares in company

  • (1) The deed administrator may sell existing shares in the company—

    • (a) with the consent of the shareholder in question; or

    • (b) if the shareholder does not consent, with the permission of the court given on an application of the deed administrator.

    (2) The shareholder concerned, a creditor, the FMA (if the company is a financial markets participant), or the Registrar may oppose an application by the administrator for the court's permission.

    Section 239ACL: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239ACL(2): amended, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

Subpart 13 —Execution and effect of deed of company arrangement

  • Subpart 13: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACM When this subpart applies

  • This subpart applies when the creditors, at the watershed meeting, have resolved that the company execute a deed of company arrangement.

    Compare: Corporations Act 2001 s 444A(1) (Aust)

    Section 239ACM: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACN Preparation and contents of deed

  • (1) The deed administrator must prepare a document that sets out the terms of the deed.

    (2) The document must also specify the following:

    • (a) who the deed administrator is:

    • (b) the property of the company (whether or not it is already owned by the company when it executes the deed) that will be available to pay creditors:

    • (c) the nature and duration of any moratorium period for which the deed provides:

    • (d) to what extent the company will be released from its debts:

    • (e) the conditions (if any) for the deed to come into operation:

    • (f) the conditions (if any) for the deed to continue in operation:

    • (g) the circumstances in which the deed terminates:

    • (h) the order in which the proceeds of realisation of the property referred to in paragraph (b) will be distributed among creditors who are bound by the deed:

    • (i) the day (which is called the cut-off day and which must not be later than the day when the administration began) on or before which creditors' claims must have arisen if they are to be admissible under the deed.

    (3) The document is treated as including any prescribed provisions, except those prescribed provisions that the document expressly excludes.

    Compare: Corporations Act 2001 s 444A(3)–(5) (Aust)

    Section 239ACN: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACO Execution of deed

  • (1) The deed is a deed of company arrangement when it is executed by both the company in administration and the deed administrator.

    (2) The deadline for the execution of the deed by the company and the deed administrator is—

    • (a) 15 working days after the watershed meeting has approved it; or

    • (b) the further time that the court allows, if the deed administrator has applied to the court for an extension before the end of the initial period of 15 working days after approval.

    (3) The company may not execute the deed unless the board of the company has, by resolution, authorised the deed to be executed by the company or on its behalf.

    (4) Subsection (3) has effect despite section 239X, but does not limit the functions and powers of the administrator of the company.

    Compare: Corporations Act 2001 s 444B (Aust)

    Section 239ACO: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACP Procedure if deed not fully approved at watershed meeting

  • (1) If, at the watershed meeting, the creditors resolve that the company execute a deed of company arrangement, but the proposed deed is not fully approved at the meeting, then—

    • (a) the administrator must draft the complete deed and circulate it to the creditors within 10 working days after the meeting (called in this section the preparation period); and

    • (b) the creditors have a period of 3 working days (called in this section the inspection period) after the end of the preparation period in which to inspect and comment on the deed; and

    • (c) the company and the deed administrator must execute the deed within 2 working days (called in this section the execution period) after the end of the inspection period.

    (2) The court may extend the preparation period by up to 10 working days, on an application by the administrator, but only if the application is made within the original preparation period.

    (3) The court may extend the execution period by up to 2 working days, on an application by the administrator, but only if the application is made within the original execution period.

    Section 239ACP: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACQ Creditor must not act inconsistently with deed, etc, before execution

  • (1) In this section, interim period means the period between a resolution passed at the watershed meeting that the company execute a deed of company arrangement and the sooner of—

    • (a) execution of the deed by the company and the deed administrator; or

    • (b) expiry of the period during which the deed may be executed.

    (2) In the interim period, in so far as a person would be bound by the deed if it had already been executed, that person—

    • (a) must not do anything inconsistent with the deed, except with the permission of the court; and

    • (b) must not take a step that is prohibited under section 239ACU.

    Compare: Corporations Act 2001 s 444C (Aust)

    Section 239ACQ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACR Company's failure to execute deed

  • If the creditors at the watershed meeting have passed a resolution that the company execute a deed of company arrangement, and the company fails to do so within the deadline for execution, then, notwithstanding section 239E(2)(e),—

    • (a) the administrator must apply for the appointment of a liquidator to the company; or

    • (b) if the company is already in liquidation, the administrator must apply for the liquidation to resume.

    Section 239ACR: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACS Who is bound by deed

  • A deed of company arrangement binds—

    • (a) the company's creditors, to the extent provided by section 239ACT; and

    • (b) the company; and

    • (c) the company's directors, officers, and shareholders; and

    • (d) the deed administrator.

    Compare: Corporations Act 2001 s 444G (Aust)

    Section 239ACS: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACT Extent to which deed binds creditors

  • (1) A deed of company arrangement binds all creditors in respect of claims that arise on or before the cut-off day (see section 239ACN(2)(i)) specified in the deed.

    (2) This section does not prevent a secured creditor from enforcing or otherwise dealing with the charge, except so far as—

    • (a) the deed provides otherwise in relation to a secured creditor who at the watershed meeting voted in favour of the resolution as a result of which the company executed the deed; or

    • (b) the court orders otherwise under section 239ACV(1)(a).

    (3) This section does not affect a right that an owner or lessor of property has in relation to that property, except so far as—

    • (a) the deed provides otherwise in relation to an owner or lessor of property who at the watershed meeting voted in favour of the resolution as a result of which the company executed the deed; or

    • (b) the court orders otherwise under section 239ACV(1)(b).

    Compare: Corporations Act 2001 s 444D (Aust)

    Section 239ACT: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACU Person bound by deed must not take steps to liquidate, etc

  • (1) A person who is bound by a deed of company arrangement must not, while the deed is in force,—

    • (a) apply, or continue with an application, to the court for the appointment of a liquidator of the company:

    • (b) except with the court's permission, begin or continue a proceeding against the company or in relation to any of its property:

    • (c) except with the court's permission, begin or continue an enforcement process against the company's property.

    (2) In this section, property includes property used or occupied by the company, or in its possession.

    Compare: Corporations Act 2001 s 444E (Aust)

    Section 239ACU: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACV Court may restrain creditors and others from enforcing charge or recovering property

  • (1) The court may, at any time after creditors have resolved at the watershed meeting that a deed of company arrangement be executed, order that, except as permitted by the order,—

    • (a) a secured creditor must not enforce or otherwise deal with the charge; or

    • (b) the owner or lessor of property that is used or occupied by the company or is in the company's possession must not take possession of the property or otherwise recover it.

    (2) The court may make the order only if—

    • (a) it is satisfied that achieving the purposes of the deed would be materially adversely affected if the order was not made; and

    • (b) having regard to the terms of the deed and the order, and any other relevant matter, it is satisfied that the interests of the person affected by the order, that is the creditor, property owner, or lessor, will be adequately protected.

    (3) An application for an order under this section may be made only,—

    • (a) if the deed has not yet been executed, by the administrator; or

    • (b) if the deed has been executed, by the deed administrator.

    (4) The court's order may be made subject to conditions.

    Compare: Corporations Act 2001 s 444F (Aust)

    Section 239ACV: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACW Effect of deed on company's debts

  • (1) A deed of company arrangement releases the company from a debt only in so far as—

    • (a) the deed provides for the release; and

    • (b) the creditor concerned is bound by the deed.

    (2) The release of the company from a debt under subsection (1) does not discharge or otherwise affect the liability of—

    • (a) a guarantor of the debt; or

    • (b) a person who has indemnified the creditor concerned against default by the company in relation to the debt.

    Compare: Corporations Act 2001 s 444H (Aust)

    Section 239ACW: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACX Court may rule on validity of deed

  • (1) The court may rule on the validity of a deed of company arrangement if there is doubt, on a specific ground, whether a deed of company arrangement—

    • (a) was entered into in accordance with this Part; or

    • (b) complies with this Part.

    (2) An application under this section may be made by—

    • (a) the deed administrator; or

    • (b) a shareholder or creditor of the company; or

    • (ba) the FMA (if the company is a financial markets participant); or

    • (c) the Registrar.

    (3) On an application under this section,—

    • (a) the court may declare the deed void or not void:

    • (b) if the deed is void for contravention of a provision of this Part, the court may validate the deed, or any part of it, provided the court is satisfied that—

      • (i) the provision was substantially complied with; and

      • (ii) no injustice will result for anyone bound by the deed if the contravention is disregarded.

    (4) The court may, if it declares that a provision of the deed is void, vary the deed, but only if the deed administrator consents.

    Compare: Corporations Act 2001 s 445G (Aust)

    Section 239ACX: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239ACX(2)(ba): inserted, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

Subpart 14—Administrator's duty to file accounts

  • Subpart 14: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACY Administrator includes deed administrator

  • In this subpart, unless the context otherwise requires, administrator includes a deed administrator.

    Section 239ACY: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ACZ Administrator must file accounts

  • (1) Every administrator must file an account with the Registrar for each of the following periods:

    • (a) the period of 6 months (or shorter, as the administrator decides) after the day on which the administrator was appointed; and

    • (b) each subsequent period of 6 months during which the administrator holds office; and

    • (c) the period between the last period of the kind referred to in paragraph (b) and the day on which the administrator vacates office.

    (2) The administrator must file the account within 20 working days after the end of the period in question.

    (3) The account must be in the prescribed form and must show,—

    • (a) for each period, the administrator's receipts and payments; and

    • (b) for each period except the first, the aggregates of the administrator's receipts and payments since the day on which the administrator was appointed.

    Compare: Corporations Act 2001 s 432(1), (1A)(a), (b) (Aust)

    Section 239ACZ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 15—Variation and termination of deed

  • Subpart 15: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADA Creditors may vary deed

  • The creditors may vary a deed of company arrangement by a resolution passed at a meeting convened under section 239ADF, but the variation must not be materially different from the proposed variation set out in the notice of the meeting.

    Compare: Corporations Act 2001 s 445A (Aust)

    Section 239ADA: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADB Court may cancel creditors' variation

  • (1) A creditor of a company in administration may apply to the court for an order cancelling the variation of the deed of company arrangement by the creditors.

    (2) On the application, the court may, if it is just and equitable to do so,—

    • (a) cancel or confirm the variation, wholly or in part, on specified conditions (if any); and

    • (b) make any other orders that the court thinks appropriate.

    Compare: Corporations Act 2001 s 445B (Aust)

    Section 239ADB: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADC Termination of deed

  • (1) A deed of company arrangement may be terminated—

    • (a) by the court under section 239ADD; or

    • (b) by a resolution of the creditors under section 239ADE; or

    • (c) automatically, if the deed specifies circumstances in which the deed will terminate, and those circumstances occur.

    (2) The deed administrator must give written notice to the Registrar of the fact that a deed has been terminated under subsection (1)(a) or (c).

    Compare: Corporations Act 2001 s 445C (Aust)

    Section 239ADC: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239ADC(2): inserted, on 31 August 2012, by section 6 of the Companies Amendment Act (No 2) 2012 (2012 No 60).

239ADD Termination by court

  • (1) The court may terminate a deed of company arrangement on the application of—

    • (a) the company; or

    • (b) a creditor; or

    • (c) the deed administrator; or

    • (d) any other interested person.

    (2) The court may terminate a deed of company arrangement if it is satisfied that—

    • (a) an information breach has occurred; or

    • (b) there has been a material contravention of the deed by a person bound by it; or

    • (c) effect cannot be given to the deed without injustice or undue delay; or

    • (d) the deed or a provision of it is, an act or omission done or made under the deed was, or an act or omission proposed to be done or made under the deed would be,—

      • (i) oppressive or unfairly prejudicial to, or unfairly discriminatory against, 1 or more of the creditors; or

      • (ii) contrary to the interests of the company as a whole; or

    • (e) the deed should be terminated for some other reason.

    (3) The court must not terminate the deed without first taking into account the rights of third parties.

    (4) In this section, an information breach has occurred if—

    • (a) false or misleading information about the company's business, property, affairs, or financial circumstances—

      • (i) was given to the administrator or the creditors; or

      • (ii) was contained in a report or statement under section 239AU(3) that accompanied a notice of the watershed meeting at which a resolution that the company execute a deed of company arrangement was passed; or

    • (b) there was an omission from the report or statement referred to in paragraph (a)(ii); and

    • (c) the information or the omission, as the case may be, can reasonably have been expected to be material to the creditors in deciding whether to vote in favour of the resolution that the company execute the deed of company arrangement.

    Compare: Corporations Act 2001 s 445D (Aust)

    Section 239ADD: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADE Termination by creditors

  • (1) The creditors, by a resolution passed at a meeting convened under section 239ADF, may terminate the deed if there has occurred a material breach of the deed that has not been rectified.

    (2) The creditors may also appoint a liquidator if the notice of the meeting sets out a proposed resolution that a liquidator be appointed to the company.

    Compare: Corporations Act 2001 s 445E (Aust)

    Section 239ADE: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADF Creditors' meeting to consider proposed variation or termination of deed

  • (1) The deed administrator—

    • (a) may at any time convene a meeting of the company's creditors to consider a variation to, or the termination of, the deed; and

    • (b) must convene a meeting if requested to do so in writing by creditors whose claims against the company are not less than 10% in value of the total value of all creditors' claims.

    (2) The deed administrator must convene the meeting by—

    • (a) giving written notice to as many of the company's creditors as reasonably practicable; and

    • (b) advertising the meeting in accordance with section 3(1)(b).

    (3) The administrator must take the steps in subsection (2) not less than 5 working days before the meeting.

    (4) The notice given to the creditors must set out any resolution for varying or terminating the deed that is to be considered by the meeting.

    (5) The deed administrator must preside at the meeting.

    (6) The meeting may be adjourned from time to time.

    Compare: Corporations Act 2001 s 445F (Aust)

    Section 239ADF: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 16—Administrator's liability and indemnity for debts of administration

  • Subpart 16: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADG Administrator not liable for company's debts except as provided in this subpart and in section 239Y

  • The administrator is not liable for the debts of the company except as provided in this subpart and in section 239Y.

    Compare: Corporations Act 2001 s 443C (Aust)

    Section 239ADG: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADH Administrator liable for general debts

  • (1) The administrator is liable for debts that he or she incurs in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for—

    • (a) the purpose of funding the company; or

    • (b) any services rendered; or

    • (c) any goods bought; or

    • (d) any property hired, leased, or occupied.

    (2) Subsection (1) has effect despite any agreement to the contrary, but without prejudice to the administrator's rights against the company or anyone else.

    Compare: Corporations Act 2001 s 443A (Aust)

    Section 239ADH: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADI Administrator's liability for rent

  • (1) The administrator is personally liable, to the extent specified in subsection (2), for rent and other payments becoming due by the company under an agreement—

    • (a) made before the administration began; and

    • (b) relating to the use, possession, or occupation of property by the company.

    (2) The administrator is liable for rent and other payments that accrue in the period—

    • (a) beginning more than 7 days after the administration begins; and

    • (b) throughout which—

      • (i) the company continues to use or occupy, or be in possession of, the property; and

      • (ii) the administration continues; and

    • (c) ending on the earliest of the following:

      • (i) the end of the administration; or

      • (ii) the administrator ceasing to hold office; or

      • (iii) the appointment of a receiver of the property; or

      • (iv) the appointment of an agent by a secured creditor of the property, under the provisions of a charge over the property, to enter into possession or to assume control of the property; or

      • (v) when a secured creditor takes possession or assumes control of the property under the provisions of a charge over the property.

    (3) The administrator is not taken, because of subsection (2),—

    • (a) to have adopted the agreement; or

    • (b) to be liable under the agreement except as set out in subsection (2).

    (4) This section does not affect the liability of the company for rent and other payments due under the agreement.

    Compare: Corporations Act 2001 s 443B(1), (2), (7), (9) (Aust)

    Section 239ADI: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADJ Administrator not liable for rental if non-use notice in force

  • (1) The administrator is not liable under section 239ADI for any period for which a non-use notice is in force.

    (2) In this section, non-use notice means, in relation to the property to which it refers, a notice that—

    • (a) is given by the administrator to the owner or the lessor of the property within 7 days after the administration begins; and

    • (b) specifies the property to which it relates; and

    • (c) states that the company does not propose to use the property or otherwise exercise any rights in relation to it.

    (3) A non-use notice ceases to have effect if—

    • (a) the administrator revokes it by written notice to the owner or lessor; or

    • (b) the company exercises, or purports to exercise, a right in relation to the property.

    (4) In subsection (3)(b), the company does not exercise, or purport to exercise, a right in relation to the property merely because the company continues to occupy, or to be in possession of, the property, unless the company—

    • (a) also uses the property; or

    • (b) asserts a right, as against the owner or the lessor, to continue to occupy or be in possession.

    (5) A non-use notice does not affect the company's liability for rent and other payments.

    Compare: Corporations Act 2001 s 443B(3)–(6) (Aust)

    Section 239ADJ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADK Court may exempt administrator from liability for rent

  • The court may exempt an administrator from liability for rent and other payments under section 239ADI, but the court's order does not affect the company's liability.

    Compare: Corporations Act 2001 s 443B(8) (Aust)

    Section 239ADK: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADL Administrator's indemnity

  • The administrator is indemnified out of the company's property for—

    • (a) a personal liability incurred in the due performance of his or her duties, but not a personal liability incurred in bad faith or negligently; and

    • (b) the remuneration to which the administrator is entitled under section 239O.

    Compare: Corporations Act 2001 s 443D (Aust)

    Section 239ADL: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADM Administrator's right of indemnity has priority over other debts

  • Subject to section 312, the administrator's right of indemnity under this subpart has priority over—

    • (a) all the company's unsecured debts; and

    • (b) debts of the company secured by a charge of the kind described in clause 2(1)(b) of Schedule 7.

    Compare: Corporations Act 2001 s 443E (Aust)

    Section 239ADM: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADN Lien to secure indemnity

  • (1) The administrator has a lien on the company's property to secure a right of indemnity under this subpart.

    (2) A lien under subsection (1) has priority over a charge to the same extent as the right of indemnity has priority over debts secured by the relevant charge.

    Compare: Corporations Act 2001 s 443F (Aust)

    Section 239ADN: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 17—Powers of court

  • Subpart 17: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADO Court's general power

  • (1) The court may make any order that it thinks appropriate about how this Part is to operate in relation to a particular company.

    (2) For example, the court may terminate the administration under subsection (1) if the court is satisfied that the administration should end—

    • (a) because the company is solvent; or

    • (b) because the provisions of this Part are being abused; or

    • (c) for some other reason.

    (3) The court's order may be made subject to conditions.

    (4) The court may make an order under this section on the application of—

    • (a) the company or a shareholder of the company; or

    • (b) a creditor of the company; or

    • (c) the administrator; or

    • (d) the deed administrator; or

    • (da) the FMA (if the company is a financial markets participant); or

    • (e) the Registrar; or

    • (f) any other interested person.

    Compare: Corporations Act 2001 s 447A (Aust)

    Section 239ADO: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239ADO(4)(da): inserted, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

239ADP Orders to protect creditors during administration

  • (1) On the application of the Registrar or, if the company is a financial markets participant, the FMA, the court may make any order that it thinks necessary to protect the interests of the company's creditors while the company is in administration.

    (2) On the application of a creditor of a company, the court may make any order that it thinks necessary to protect the interests of that creditor while the company is in administration.

    (3) An order may be made subject to conditions.

    Compare: Corporations Act 2001 s 447B (Aust)

    Section 239ADP: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239ADP(1): replaced, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

239ADQ Court may rule on validity of administrator's appointment

  • (1) If there is doubt, on a specific ground, as to the validity of the appointment of a person as administrator or deed administrator, any of the following persons may apply to the court for a ruling on the validity of the appointment:

    • (a) the person appointed; or

    • (b) the company in question; or

    • (c) any of the company's creditors.

    (2) In ruling that the appointment is invalid, the court is not limited to the grounds specified in the application.

    Compare: Corporations Act 2001 s 447C (Aust)

    Section 239ADQ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADR Administrator may seek directions

  • (1) The administrator or the deed administrator may apply to the court for directions in relation to the performance or exercise of any of the administrator's functions and powers.

    (2) The deed administrator may apply to the court for directions in relation to the operation of, or giving effect to, the deed.

    Compare: Corporations Act 2001 s 447D (Aust)

    Section 239ADR: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADS Court may supervise administrator or deed administrator

  • (1) The court may make any order it thinks just if it is satisfied that—

    • (a) the administrator's or the deed administrator's management of the company's business, property, or affairs is prejudicial to the interests of some or all of the company's creditors or shareholders; or

    • (b) the administrator's or deed administrator's conduct or proposed conduct has been or is or will be prejudicial to those interests.

    (2) An application for an order under this section may be made by—

    • (a) a creditor or shareholder of the company in question; or

    • (b) the Registrar.

    Compare: Corporations Act 2001 s 447E(1) (Aust)

    Section 239ADS: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADT Court may order administrator or deed administrator to remedy default

  • (1) The court may order an administrator or deed administrator to remedy his or her default.

    (2) Examples of default include the following:

    • (a) the administrator or deed administrator has failed, as required by this Act or otherwise by law, to make or file any return, account, or other document or to give a notice, and has not remedied the default within 10 working days after service on him or her of a notice by a shareholder or creditor of the company in administration requiring that the default be remedied:

    • (b) the administrator or deed administrator has failed, after being required at any time by the liquidator of the company to do so,—

      • (i) to render proper accounts of, and to vouch, his or her receipts and payments as administrator or deed administrator:

      • (ii) to pay to the liquidator the amount properly payable to the liquidator.

    (3) An application for an order under this section may be made by—

    • (a) a shareholder or creditor of the company, in the case of a default referred to in subsection (2)(a):

    • (b) the liquidator, in the case of a default referred to in subsection (2)(b):

    • (c) in any case, by the Registrar.

    Section 239ADT: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADU Court's power when office of administrator or deed administrator vacant, etc

  • (1) The court may make any order it thinks just if it is satisfied that,—

    • (a) in the case of a company in administration, the office of the administrator is vacant or no administrator is acting; or

    • (b) in the case of a deed of company arrangement that is still in force, the office of the deed administrator is vacant or no deed administrator is acting.

    (2) An application for an order under this section may be made by—

    • (a) a creditor or shareholder of the company; or

    • (b) if the company is in liquidation, the liquidator; or

    • (ba) if the company is a financial markets participant, the FMA; or

    • (c) the Registrar.

    Compare: Corporations Act 2001 s 447E(2) (Aust)

    Section 239ADU: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239ADU(2)(ba): inserted, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

239ADV Prohibition order

  • (1) The court must make a prohibition order in relation to a person if it is shown to the satisfaction of the court that that person is unfit to act as administrator or deed administrator by reason of persistent failures to comply or the seriousness of a failure to comply.

    (2) The period of the order is a matter for the discretion of the court and the court may make a prohibition period for an indefinite period.

    (3) A person to whom a prohibition order applies must not act as an administrator or deed administrator in a current or other administration.

    (4) The court may make an order under this section in relation to a past or current administrator or deed administrator of a company in administration on the application of—

    • (a) the company or a shareholder of the company; or

    • (b) a creditor of the company; or

    • (c) the administrator or deed administrator of the company; or

    • (d) the Registrar; or

    • (e) any other interested person.

    (5) In this section, failure to comply means a failure of an administrator or deed administrator to comply with a relevant duty arising—

    • (a) under this or any other enactment or law or rules of court; or

    • (b) under any order or direction of the court made under this subpart.

    (6) In subsection (5), relevant duty includes the duty of a person in his or her capacity as liquidator of a company.

    (7) A copy of every order made under subsection (1) must, within 10 working days of the order being made, be delivered by the applicant to the Official Assignee for New Zealand who must keep it on a file indexed by reference to the name of the administrator or deed administrator concerned.

    Section 239ADV: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 18—Notices about steps taken under this Part

  • Subpart 18: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADW Administrator must give notice of appointment

  • (1) An administrator appointed by the company under section 239I, by the liquidator or interim liquidator under section 239J, by a secured creditor under section 239K, by the court under section 239L, or by the creditors under section 239R(2)(a) must,—

    • (a) before the end of the next working day after appointment, lodge a notice of the appointment with the Registrar; and

    • (b) not later than 3 working days after appointment, advertise the appointment in accordance with section 3(1)(b); and

    • (c) as soon as practicable, and in any event not later than the end of the next working day after appointment, give written notice of the appointment to—

      • (i) each person who holds a charge over the whole, or substantially the whole, of the company's property; or

      • (ii) each person who holds 2 or more charges in the property of the company if the property of the company subject to those charges together is the whole, or substantially the whole, of the company's property; and

    • (d) in the notice referred to in paragraph (c), set out the rights of the creditor to enforce the charge under section 239ABL.

    (2) The administrator need not give notice under subsection (1) to the person who appointed him or her.

    Compare: Corporations Act 2001 s 450A(1), (3), (4) (Aust)

    Section 239ADW: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADX Secured creditor who appoints administrator must give notice to company

  • A secured creditor who appoints an administrator under section 239K must give written notice of the appointment to the company as soon as practicable and in any event before the end of the next working day.

    Compare: Corporations Act 2001 s 450A(2) (Aust)

    Section 239ADX: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADY Deed administrator must give notice of execution of deed of company arrangement

  • As soon as practicable after a deed of company arrangement is executed, the deed administrator must—

    • (a) send to each creditor a written notice of the execution of the deed; and

    • (b) advertise the execution of the deed in accordance with section 3(1)(b); and

    • (c) file a copy of the deed with the Registrar.

    Compare: Corporations Act 2001 s 450B (Aust)

    Section 239ADY: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239ADZ Deed administrator must give notice of failure to execute deed of company arrangement

  • If a company does not meet the deadline under section 239ACO or 239ACP(1)(c) for the execution of a deed of company arrangement, the deed administrator must as soon as practicable—

    • (a) cause a notice of the failure to execute the deed to be advertised in accordance with section 3(1)(b); and

    • (b) file a copy of the notice with the Registrar.

    Compare: Corporations Act 2001 s 450C (Aust)

    Section 239ADZ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEA Deed administrator must give notice of termination by creditors of deed of company arrangement

  • If the creditors terminate the deed of company arrangement, the deed administrator must as soon as practicable—

    • (a) send a notice of the termination to each of the creditors; and

    • (b) advertise the termination in accordance with section 3(1)(b); and

    • (c) file a copy of the notice with the Registrar.

    Compare: Corporations Act 2001 s 450D (Aust)

    Section 239AEA: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEB Company must disclose fact of administration

  • (1) A company must set out, in every document issued or signed by, or on behalf of, the company that evidences or creates a legal obligation of the company, after the company's name where it first appears,—

    • (a) for as long as the company is in administration, the words “administrator appointed”; and

    • (b) for as a long as a deed of company arrangement is in force, the words “subject to deed of company arrangement.

    (2) The court may, on an application by the company, exempt the company from the requirement in subsection (1)(b).

    (3) A company that fails to comply with subsection (1) commits an offence and is liable on conviction to the penalty set out in section 373(1).

    Compare: Corporations Act 2001 s 450E (Aust)

    Section 239AEB: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEC Notice of change of name

  • (1) A company in administration that changed its name less than 6 months before the appointment of the administrator must, in any document of the company where its name appears, include also its former name.

    (2) If a company to which subsection (1) applies is, in the course of the administration, placed in liquidation, the liquidator must, in any document of the company where its name appears, include also its former name.

    Section 239AEC: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AED Effect of contravention of this subpart

  • A contravention of this subpart does not affect the validity of anything done or omitted under this Part, except so far as the court orders otherwise.

    Compare: Corporations Act 2001 s 450F (Aust)

    Section 239AED: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 19—Miscellaneous

  • Subpart 19: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEE Effect of things done during administration of company

  • A payment made, transaction entered into, or any other act or thing done, in good faith, by or with the consent of the administrator of a company in administration is valid and effective for the purposes of this Act.

    Compare: Corporations Act 2001 s 451C(a) (Aust)

    Section 239AEE: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEF Interruption of time for doing act

  • If there is a time before which, or a period during which, an act for any purpose may or must be done, and this Act prevents the act from being done in time, then the time or period in question is extended by the period during which this Act prevents the act from being done in time.

    Compare: Corporations Act 2001 s  451D (Aust)

    Section 239AEF: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 20—Set-off and netting agreements

  • Subpart 20: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEG Mutual credit and set-off

  • Where there have been mutual credits, mutual debts, or other mutual dealings between a company and a person who seeks or, but for the operation of this section, would seek to have a claim admitted under a deed of company arrangement,—

    • (a) an account must be taken of what is due from the one party to the other in respect of those credits, debts, or dealings; and

    • (b) an amount due from one party must be set off against an amount due from the other party; and

    • (c) only the balance of the account may be admitted under the deed of company arrangement, or is payable to the company, as the case may be.

    Section 239AEG: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEH Application of set-off under netting agreement

  • (1) Sections 239AEI to 239AEP apply—

    • (a) to a netting agreement—

      • (i) made in or evidenced by writing; and

      • (ii) in which the application of sections 239AEI to 239AEP has not been expressly excluded; and

      • (iii) whether made before or after the commencement of this section; and

    • (b) to all obligations under a netting agreement (whether those obligations are payable in New Zealand currency or in some other currency).

    (2) Sections 239AEI to 239AEP apply despite—

    • (a) any disposal of rights under a transaction that is subject to a netting agreement, in contravention of a prohibition in the netting agreement; or

    • (b) the creation of a charge or other interest in respect of the rights referred to in paragraph (a) in contravention of a prohibition in the netting agreement.

    (3) Nothing in sections 239AEI to 239AEP applies to an amount paid or payable by a shareholder—

    • (a) as the consideration, or part of the consideration, for the issue of a share; or

    • (b) in satisfaction of a call in respect of an outstanding liability of the shareholder made by the board of the company or by the administrator.

    Section 239AEH: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEI Calculation of netted balance

  • If a company in administration is a party to a netting agreement,—

    • (a) any netted balance payable by or to the company must be calculated in accordance with the netting agreement; and

    • (b) that netted balance constitutes, in respect of the transactions that are included in the calculation,—

      • (i) the debt that is owed to the creditor and that may be admitted under the deed of company arrangement; or

      • (ii) the amount that is payable to the company,—

    as the case may be.

    Section 239AEI: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEJ Mutuality required for transactions under bilateral netting agreements

  • Sections 239AEI to 239AEP apply to transactions that are subject to a bilateral netting agreement only if those transactions constitute mutual credits, mutual debts, or other mutual dealings.

    Section 239AEJ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEK When mutuality required for transactions under recognised multilateral netting agreements

  • (1) Sections 239AEI to 239AEP apply to transactions that are subject to a recognised multilateral netting agreement, whether or not those transactions constitute mutual credits, mutual debts, or other mutual dealings.

    (2) Despite subsection (1), sections 239AEI to 239AEP do not apply to transactions that are subject to a recognised multilateral netting agreement if—

    • (a) those transactions do not constitute mutual credits, mutual debts, or other mutual dealings; and

    • (b) a party to any of those transactions is acting as a trustee for another person; and

    • (c) the party acting as trustee is not authorised by the terms of the trust of which the party is a trustee to enter into the transaction.

    Section 239AEK: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEL Application of set-off under section 239AEG to transactions subject to netting agreements

  • (1) Section 239AEG does not apply to transactions that are subject to a netting agreement to which sections 239AEI to 239AEP apply.

    (2) However, a netted balance is to be treated as an amount to which section 239AEG applies if the company in administration and the other party to the netting agreement also have mutual credits, mutual debts, or other mutual dealings between them that are not subject to the netting agreement.

    Section 239AEL: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEM Transactions under netting agreement and effect on certain sections

  • (1) Nothing in sections 239AEH to 239AEP prevents the operation of section 56 or, subject to section 239ACB, section 292, 297 or 298 in respect of a transaction that is subject to a netting agreement.

    (2) However, nothing in section 292(4A) applies to a transaction that is subject to a netting agreement.

    (3) For the purposes of sections 292 and 297, the term transaction, in relation to a company, does not include a netting agreement entered into by the company, except to the extent that the effect of entering into the netting agreement is to reduce any amount that was owing by or to the company at the time the company entered into the agreement.

    Section 239AEM: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

    Section 239AEM(2): amended, on 7 July 2010, by section 5 of the Companies Amendment Act (No 2) 2010 (2010 No 53).

239AEN Rights under netting agreement not affected by commencement of administration

  • Nothing in section 239Z affects, in respect of a company in administration, the exercise of any of the following rights under a netting agreement:

    • (a) the termination, in accordance with the netting agreement, of all or any transactions that are subject to the netting agreement by reason of the occurrence of an event specified in the netting agreement, being an event (including the appointment of an administrator) occurring not later than the commencement of the administration; or

    • (b) the taking of an account, in accordance with the netting agreement, of all money due between the parties to the netting agreement in respect of transactions affected by the termination.

    Section 239AEN: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEO Effect of declaration of person as recognised clearing house under section 310K

  • A person who is declared a recognised clearing house under section 310K is deemed to be a recognised clearing house for the purposes of sections 239AEI to 239AEP also.

    Section 239AEO: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEP Transactions under recognised multilateral netting agreement not affected by variation or revocation of declaration under section 310K

  • The variation or revocation of a declaration under section 310K does not affect the application of sections 239AEI to 239AEP to any transaction—

    • (a) that is or was subject to a recognised multilateral netting agreement; and

    • (b) that was entered into before the variation or revocation of the declaration.

    Section 239AEP: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

Subpart 21—Single administration of related companies in administration

  • Subpart 21: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEQ Interpretation of terms for purposes of this subpart

  • (1) In this subpart,—

    pool means a pool of related companies in a single administration under a single administration order made under section 239AER

    pool administrator means the administrator of a pool

    pool company means a company in respect of which a single administration order has been made under section 239AER.

    (2) For the purposes of the single administration of a pool, in this Part, unless the context indicates otherwise,—

    administrator includes a pool administrator

    company includes a pool

    deed administrator includes the deed administrator of a deed of company administration executed by a pool

    deed of company administration includes a deed of company administration executed under section 239AEW.

    Section 239AEQ: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AER Court may order single administration for related companies in administration

  • (1) If 2 or more related companies are in administration, the court may, if it is satisfied that it is just and equitable, order that the administration in respect of each company must proceed together as if they were 1 company to the extent that the court orders and subject to the terms and conditions that the court imposes.

    (2) An application under subsection (1) may be made by the administrator or a creditor of any of the companies in administration.

    (3) Notwithstanding anything in this Part, the court may, on first making the order and otherwise from time to time, make any other order, or give any direction to facilitate giving effect to an order, under subsection (1) as it sees fit.

    (4) The fact that creditors of the company in administration relied on the fact that another company was, or is, related to it is not a ground for making an order under this section.

    Compare: 1993 No 105 s 271(b)

    Section 239AER: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AES Notice that application filed must be given to administrators and creditors

  • (1) Unless the court orders otherwise, an applicant for an order under section 239AER must give notice that the application has been filed to—

    • (a) the administrator of each company in administration; and

    • (b) each creditor of each company in administration.

    (2) The notice must—

    • (a) identify each company to which the proposed order relates; and

    • (b) summarise all information known to the applicant that is material to whether the order should be made; and

    • (c) state that a person to whom the notice must be given may oppose the application by filing a statement of defence in accordance with the High Court Rules.

    (3) The notice requirement in this section is in addition to anything required by the High Court Rules to be done.

    Section 239AES: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AET Guidelines for single administration order

  • In deciding whether it is just and equitable to make an order under section 239AER, the court must have regard to the following criteria:

    • (a) the extent to which any of the companies took part in the management of any of the other companies in the proposed pool:

    • (b) the conduct of any of the companies towards the creditors of any of the other companies in the proposed pool:

    • (c) the extent to which the circumstances that gave rise to any of the companies in the proposed pool being placed in administration are attributable to the actions of any of the other companies:

    • (d) the extent to which the businesses of the companies in the proposed pool have been combined:

    • (e) any other matters that the court thinks fit.

    Compare: 1993 No 105 s 272(2)

    Section 239AET: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEU Court may order that related company in administration be added to existing pool

  • (1) The court may order that a company in administration that is related to the companies in an existing pool be added to the pool for the purposes of administration.

    (2) An application under subsection (1) may be made by—

    • (a) the administrator or any creditor of the company; or

    • (b) the administrator or any creditors of the pool.

    (3) The court may make the order if it is satisfied that it is just and equitable to do so having regard to any 1 or more of the criteria in section 239AET.

    (4) Sections 239AER and 239AES apply with all necessary modifications to an application under this section.

    (5) The court must not make the order unless the pool administrator consents.

    Section 239AEU: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEV Creditors' meetings in single administration of pool companies

  • (1) The provisions of this Part in relation to creditors' meetings apply except that, subject to subsection (2), a creditor of a pool company may only vote on a matter related to the pool company of which that person is a creditor.

    (2) If separate voting by creditors is impracticable (because, for example, the affairs of the pool companies are intermingled), the court may, on the application of the pool administrator, give directions as to how voting at a creditors' meeting must proceed.

    Section 239AEV: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

239AEW Pool companies may execute single deed of company administration

  • For the purposes of the single administration of a pool, the pool companies may execute a single deed of company arrangement.

    Section 239AEW: inserted, on 1 November 2007, by section 6 of the Companies Amendment Act 2006 (2006 No 56).

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