New Zealand Companies Act 1993 - Removal

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

Part 17 Removal from the New Zealand register

317 Removal from register

  • A company is removed from the New Zealand register when a notice signed by the Registrar stating that the company is removed from the New Zealand register is registered under this Act.

318 Grounds for removal from register

  • (1) Subject to this section, the Registrar must remove a company from the New Zealand register if—

    • (a) the company is an amalgamating company, other than an amalgamated company, on the day on which the Registrar issues a certificate of amalgamation under section 224; or

    • (b) the Registrar is satisfied that—

      • (i) the company has ceased to carry on business; and

      • (ii) there is no other reason for the company to continue in existence; or

    • (c) the company has been put into liquidation, and—

      • (i) no liquidator is acting; or

      • (ii) the documents referred to in section 257(1)(a) have not been sent or delivered to the Registrar within 6 months after the liquidation of the company is completed; or

    • (d) there is sent or delivered to the Registrar a request in the prescribed form made by—

      • (i) a shareholder authorised to make the request by a special resolution of shareholders entitled to vote and voting on the question; or

      • (ii) the board of directors or any other person, if the constitution of the company so requires or permits—

      that the company be removed from the New Zealand register on either of the grounds specified in subsection (2); or

    • (e) a liquidator sends or delivers to the Registrar—

      • (i) the documents referred to in section 257(1)(a); and

      • (ii) a copy of the notice referred to in section 320(4); or

    • (f) the company has failed to pay the fee prescribed by regulations for the application for registration of the company under section 12.

    (2) A request that a company be removed from the New Zealand register under subsection (1)(d) may be made on the grounds—

    • (a) that the company has ceased to carry on business, has discharged in full its liabilities to all its known creditors, and has distributed its surplus assets in accordance with its constitution and this Act; or

    • (b) that the company has no surplus assets after paying its debts in full or in part, and no creditor has applied to the court under section 241 for an order putting the company into liquidation.

    (3) A request that a company be removed from the New Zealand register under subsection (1)(d) must be accompanied by a written notice from the Commissioner of Inland Revenue stating that the Commissioner has no objection to the company being removed from the New Zealand register.

    (3A) The Registrar must remove a company from the New Zealand register under subsection (1)(f) if—

    • (a) the Registrar has complied with section 319; and

    • (b) the fee prescribed by regulations for the application for registration of the company under section 12 has not been paid in full to the Registrar within 20 working days after the date of the notice given under section 319.

    (4) The Registrar must remove a company from the New Zealand register under subsection (1)(b) only if—

    • (a) the Registrar has complied with section 319; and

    • (b) the company has not satisfied the Registrar that it is carrying on business or that reason exists for the company to continue in existence; and

    • (c) the Registrar—

      • (i) is satisfied that no person has objected to the removal under section 321; or

      • (ii) if an objection to the removal has been received, has complied with section 322.

    (5) The Registrar must remove a company from the New Zealand register under paragraphs (c), (d), or (e) of subsection (1) only if—

    • (a) the Registrar is satisfied that notice has been given in accordance with section 320; and

    • (b) the Registrar—

      • (i) is satisfied that no person has objected to the removal under section 321; or

      • (ii) if an objection to the removal has been received, has complied with section 322.

    Section 318(1)(d)(i): replaced, on 1 July 1994, by section 39 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

    Section 318(1)(e): replaced, on 3 June 1998, by section 18 of the Companies Amendment Act 1998 (1998 No 31).

    Section 318(1)(e)(ii): amended, on 15 April 2004, by section 15(1) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 318(1)(f): inserted, on 15 April 2004, by section 15(1) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 318(3A): inserted, on 15 April 2004, by section 15(2) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

319 Notice of intention to remove where company has ceased to carry on business or application fee not paid

  • (1) Before a company can be removed from the New Zealand register under section 318(1)(b) or (f), the Registrar must—

    • (a) give notice to the company in accordance with subsection (2); and

    • (b) give notice of the matters set out in subsection (3) to any person who is entitled to a security interest in respect of which a financing statement has been registered under the Personal Property Securities Act 1999; and

    • (c) give public notice of the matters set out in subsection (3).

    (2) The notice to be given under subsection (1)(a) must—

    • (a) state the section under, and the grounds on which, it is intended to remove the company from the New Zealand register; and

    • (ab) if section 318(1)(f) applies, state that, unless the fee prescribed by regulations for the application for registration of the company under section 12 is paid in full to the Registrar within 20 working days after the date of the notice, the company will be removed from the New Zealand register; and

    • (b) if section 318(1)(b) applies, state that, unless—

      • (i) by the date specified in the notice, which shall not be less than 20 working days after the date of the notice, the company satisfies the Registrar by notice in writing that it is still carrying on business or there is other reason for it to continue in existence; or

      • (ii) the Registrar does not, in accordance with section 322, proceed to remove the company from the register,—

      the company will be removed from the New Zealand register.

    (3) The notice to be given under paragraph (b) and paragraph (c) of subsection (1) must specify—

    • (a) the name of the company; and

    • (b) the section under, and the grounds on which, it is intended to remove the company from the New Zealand register; and

    • (c) if section 318(1)(b) applies, the date by which an objection to the removal under section 321 must be delivered to the Registrar, which shall not be less than 20 working days after the date of the notice.

    Section 319 heading: amended, on 15 April 2004, by section 16(1) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 319(1): amended, on 15 April 2004, by section 16(2) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 319(1)(b): replaced, on 1 May 2002, by section 191(1) of the Personal Property Securities Act 1999 (1999 No 126).

    Section 319(2)(ab): inserted, on 15 April 2004, by section 16(3) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 319(2)(b): amended, on 15 April 2004, by section 16(4) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 319(3)(a): amended, on 30 June 1997, by section 19 of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

    Section 319(3)(c): amended, on 15 April 2004, by section 16(5) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

320 Notice of intention to remove in other cases

  • (1) If a company is to be removed from the register under section 318(1)(c) or (d), the Registrar must give public notice of the matters set out in subsection (4).

    (2) If a company is to be removed from the register under section 318(1)(e), the liquidator must give public notice of the matters set out in subsection (4).

    (3) If a company is to be removed from the register under section 318(1)(c), the Registrar, or, if it is to be removed from the register under section 318(1)(d), the applicant, as the case may be, must also give notice of the matters set out in subsection (4) to—

    • (a) the company; and

    • (b) a person who is entitled to a security interest in respect of which a financing statement has been registered under the Personal Property Securities Act 1999.

    (4) The notice to be given under this section must specify—

    • (a) the name of the company; and

    • (b) the section under, and the grounds on which, it is intended to remove the company from the New Zealand register; and

    • (c) the date by which an objection to the removal under section 321 must be delivered to the Registrar, which shall be not less than 20 working days after the date of the notice.

    Section 320(1): amended, on 15 April 2004, by section 17(1) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 320(2): replaced, on 15 April 2004, by section 17(2) of the Companies Amendment Act (No 2) 2004 (2004 No 24).

    Section 320(3)(b): replaced, on 1 May 2002, by section 191(1) of the Personal Property Securities Act 1999 (1999 No 126).

    Section 320(4)(a): amended, on 30 June 1997, by section 20 of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

321 Objection to removal from register

  • (1) Where a notice is given of an intention to remove a company from the New Zealand register, any person may deliver to the Registrar, not later than the date specified in the notice, an objection to the removal on any 1 or more of the following grounds:

    • (a) that the company is still carrying on business or there is other reason for it to continue in existence; or

    • (b) that the company is a party to legal proceedings; or

    • (c) that the company is in receivership, or liquidation, or both; or

    • (d) that the person is a creditor, or a shareholder, or a person who has an undischarged claim against the company; or

    • (e) that the person believes that there exists, and intends to pursue, a right of action on behalf of the company under Part 9; or

    • (f) that, for any other reason, it would not be just and equitable to remove the company from the New Zealand register.

    (2) For the purposes of subsection (1)(d),—

    • (a) a claim by a creditor against a company is not an undischarged claim if—

      • (i) the claim has been paid in full; or

      • (ii) the claim has been paid in part under a compromise entered into under Part 14 or by being otherwise compounded to the reasonable satisfaction of the creditor; or

      • (iii) the claim has been paid in full or in part by a receiver or a liquidator in the course of a completed receivership or liquidation; or

      • (iv) a receiver or a liquidator has notified the creditor that the assets of the company are not sufficient to enable any payment to be made to the creditor; and

    • (b) a claim by a shareholder or any other person against a company is not an undischarged claim if—

      • (i) payment has been made to the shareholder or that person in accordance with a right under the company's constitution or this Act to receive or share in the company's surplus assets; or

      • (ii) a receiver or liquidator has notified the shareholder or that person that the company has no surplus assets.

    (3) An objection to the removal of a company from the New Zealand register cannot be made under this section if the ground for removal is that specified in section 318(1)(f).

    Section 321(3): inserted, on 15 April 2004, by section 18 of the Companies Amendment Act (No 2) 2004 (2004 No 24).

322 Duties of Registrar if objection received

  • (1) If an objection to the removal of a company from the New Zealand register is made on a ground specified in section 321(1)(a), (b), or (c), the Registrar must not proceed with the removal unless the Registrar is satisfied that—

    • (a) the objection has been withdrawn; or

    • (b) any facts on which the objection is based are not, or are no longer, correct; or

    • (c) the objection is frivolous or vexatious.

    (2) If an objection to the removal of a company from the New Zealand register is made on a ground specified in section 321(1)(d), (e), or (f), the Registrar must give notice to the person objecting that, unless notice of an application to the court by that person for an order—

    • (a) under section 241(2)(c), that the company be put into liquidation; or

    • (b) under section 323, that, on any ground specified in section 321, the company not be removed from the New Zealand register—

    is served on the Registrar not later than 20 working days after the date of the notice, the Registrar intends to proceed with the removal.

    (3) If—

    • (a) notice of such an application to the court is not served on the Registrar; or

    • (b) the application is withdrawn; or

    • (c) on the hearing of such an application, the court refuses to grant either an order putting the company into liquidation or an order that the company not be removed from the New Zealand register,—

    the Registrar must proceed with the removal.

    (4) Every person who makes such an application must give the Registrar notice in writing of the decision of the court within 5 working days of the decision being given.

    (5) The Registrar must send—

    • (a) a copy of an objection under section 321; and

    • (b) a copy of a notice given by or served on the Registrar under this section; and

    • (c) if the company is removed from the New Zealand register, notice of the removal—

    to a person who sent or delivered to the Registrar a request that the company be removed from the New Zealand register under section 318(1)(d) or, while acting as liquidator, sent or delivered to the Registrar the documents referred to in section 318(1)(e).

323 Powers of court

  • (1) A person who gives a notice objecting to the removal of a company from the New Zealand register on a ground specified in section 321(1)(d), (e), or (f) may apply to the court for an order that the company not be removed from the register on any ground set out in that subsection.

    (2) On an application for an order under subsection (1), the court may, if it is satisfied that the company should not be removed from the register on any of those grounds, make an order that the company is not to be removed from the register.

324 Property of company removed from register

  • (1) Property that, immediately before the removal of a company from the New Zealand register, had not been distributed or disclaimed, vests in the Crown with effect from the removal of the company from the register.

    (2) For the purposes of this section, property of the former company includes leasehold property and all other rights vested in or held on trust for the former company, but does not include property held by the former company on trust for any other person.

    (3) The Secretary to the Treasury must, forthwith on becoming aware of the vesting of the property, give public notice of the vesting, setting out the name of the former company and particulars of the property.

    (4) Where property is vested in the Crown under this section, a person who would have been entitled to receive all or part of the property, or payment from the proceeds of its realisation, if it had been in the hands of the company immediately before the removal of the company from the New Zealand register, or any other person claiming through that person, may apply to the court for an order—

    • (a) vesting all or part of the property in that person; or

    • (b) for payment to that person by the Crown of compensation of an amount not greater than the value of the property.

    (5) On an application made under subsection (4), the court may—

    • (a) decide any question concerning the value of the property, the entitlement of any applicant to the property or to compensation, and the apportionment of the property or compensation among 2 or more applicants; or

    • (b) order that the hearing of 2 or more applications be consolidated; or

    • (c) order that an application be treated as an application on behalf of all persons, or all members of a class of persons, with an interest in the property; or

    • (d) make an ancillary order.

    (6) Compensation ordered to be paid under subsection (4) shall be paid out of a Crown Bank Account without further appropriation than this section.

    Section 324(6): amended, on 25 January 2005, pursuant to section 65R(3) of the Public Finance Act 1989 (1989 No 44).

325 Disclaimer of property by the Crown

  • (1) The Secretary to the Treasury may, by notice in writing, disclaim the Crown's title to property vesting in the Crown under section 324 if the property is onerous property within the meaning of section 269.

    (2) The Secretary must forthwith give public notice of the disclaimer.

    (3) Property that is disclaimed under this section shall be deemed not to have vested in the Crown under section 324.

    (4) Subsections (3), (5), and (6) of section 269 apply to any property that is disclaimed under this section as if the property had been disclaimed under that section immediately before the company was removed from the New Zealand register.

    (5) Subject to any order of the court, the Secretary to the Treasury is not entitled to disclaim property unless—

    • (a) the property is disclaimed within 12 months after the vesting of the property in the Crown first comes to the notice of the Secretary; or

    • (b) if any person gives notice in writing to the Secretary requiring the Secretary to elect, before the close of such date as is stated in the notice, not being a date that is less than 60 working days after the date on which the notice is received by the Secretary, whether to disclaim the property, the property is disclaimed before the close of that date,—

    whichever occurs first.

    (6) A statement in a notice disclaiming property under this section that the vesting of the property in the Crown first came to the notice of the Secretary to the Treasury on a specified date shall, in the absence of proof to the contrary, be evidence of the fact stated.

    Compare: 1955 No 63 s 338

    Section 325(5)(b): amended, on 1 July 1994, by section 40 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

326 Liability of directors, shareholders, and others to continue

  • The removal of a company from the New Zealand register does not affect the liability of any former director or shareholder of the company or any other person in respect of any act or omission that took place before the company was removed from the register and that liability continues and may be enforced as if the company had not been removed from the register.

327 Liquidation of company removed from New Zealand register

  • [Repealed]

    Section 327: repealed, on 20 September 2007, by section 4 of the Companies Amendment Act 2007 (2007 No 48).

328 Registrar may restore company to New Zealand register

  • (1) Subject to this section, the Registrar must, on the application of a person referred to in subsection (2), and may, on his or her own motion, restore a company that has been removed from the New Zealand register to the register if he or she is satisfied that, at the time the company was removed from the register,—

    • (a) the company was still carrying on business or other reason existed for the company to continue in existence; or

    • (b) the company was a party to legal proceedings; or

    • (c) the company was in receivership, or liquidation, or both.

    (2) Any person who, at the time the company was removed from the New Zealand register, was—

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

    • (b) a creditor of the company; or

    • (c) a liquidator, or a receiver of the property, of the company—

    may make an application under subsection (1).

    (3) Before the Registrar restores a company to the New Zealand register under this section,—

    • (a) in the case of a company that was removed from the New Zealand register under paragraph (b) or paragraph (c) of section 318(1), the Registrar must give public notice setting out—

      • (i) the name of the company; and

      • (ii) the name and address of the applicant; and

      • (iii) the section under, and the grounds on which, the application is made or the Registrar proposes to act, as the case may be; and

      • (iv) the date by which an objection to restoring the company to the register must be delivered to the Registrar, not being less than 20 working days after the date of the notice:

    • (b) in the case of a company that was removed from the New Zealand register under paragraph (d) or paragraph (e) of section 318(1), the person who made the application under subsection (1) must give public notice setting out—

      • (i) the name of the company; and

      • (ii) the person's name and address; and

      • (iii) the section under, and the grounds on which, the application is made; and

      • (iv) the date by which an objection to restoring the company to the register must be delivered to the Registrar, not being less than 20 working days after the date of the notice.

    (4) The Registrar must not restore a company to the New Zealand register if the Registrar receives an objection to the restoration within the period stated in the notice.

    (5) Before the Registrar restores a company to the New Zealand register under this section, the Registrar may require any of the provisions of this Act or any regulations made under this Act, being provisions with which the company had failed to comply before it was removed from the register, to be complied with.

    (6) The court may, on the application of the Registrar or the applicant, give such directions or make such orders as may be necessary or desirable for the purpose of placing a company that is restored to the New Zealand register under this section and any other persons as nearly as possible in the same position as if the company had not been removed from the register.

    (7) Nothing in this section limits or affects section 329.

    Section 328(3): replaced, on 30 June 1997, by section 21 of the Companies Act 1993 Amendment Act 1997 (1997 No 27).

329 Court may restore company to New Zealand register

  • (1) The court may, on the application of a person referred to in subsection (2), order that a company that has been removed from the New Zealand register be restored to the register if it is satisfied that,—

    • (a) at the time the company was removed from the register,—

      • (i) the company was still carrying on business or other reason existed for the company to continue in existence; or

      • (ii) the company was a party to legal proceedings; or

      • (iii) the company was in receivership, or liquidation, or both; or

      • (iv) the applicant was a creditor, or a shareholder, or a person who had an undischarged claim against the company; or

      • (v) the applicant believed that a right of action existed, or intended to pursue a right of action, on behalf of the company under Part 9; or

    • (b) for any other reason it is just and equitable to restore the company to the New Zealand register.

    (2) The following persons may make an application under subsection (1):

    • (a) any person who, at the time the company was removed from the New Zealand register,—

      • (i) was a shareholder or director of the company; or

      • (ii) was a creditor of the company; or

      • (iii) was a party to any legal proceedings against the company; or

      • (iv) had an undischarged claim against the company; or

      • (v) was the liquidator, or a receiver of the property of, the company:

    • (b) the Registrar:

    • (c) with the leave of the court, any other person.

    (3) Before the court makes an order restoring a company to the New Zealand register under this section, it may require any provisions of this Act or any regulations made under this Act, being provisions with which the company had failed to comply before it was removed from the register, to be complied with.

    (4) The court may give such directions or make such orders as may be necessary or desirable for the purpose of placing the company and any other persons as nearly as possible in the same position as if the company had not been removed from the New Zealand register.

330 Restoration to register

  • (1) A company is restored to the New Zealand register when a notice signed by the Registrar stating that the company is restored to the New Zealand register is registered under this Act.

    (2) A company that is restored to the New Zealand register shall be deemed to have continued in existence as if it had not been removed from the register.

331 Vesting of property in company on restoration to register

  • (1) Subject to this section, property of a company that is, at the time the company is restored to the New Zealand register, vested in the Crown pursuant to section 324, shall, on the restoration of the company to the New Zealand register, vest in the company as if the company had not been removed from the register.

    (2) Nothing in subsection (1) applies to any property vested in the Crown pursuant to section 324 if the court has made an order for the payment of compensation to any person pursuant to section 324(4)(b) in respect of that property.

    (3) Nothing in subsection (1) applies to land or any estate or interest in land that has vested in the Crown pursuant to section 324 if transmission to the Crown of the land or that estate or interest in land has been registered under the Land Transfer Act 1952.

    (4) Where transmission to the Crown of land or any estate or interest in land that has vested in the Crown pursuant to section 324 has been registered under the Land Transfer Act 1952, the court may, on the application of the company, make an order—

    • (a) for the transfer of the land or the estate or interest to the company; or

    • (b) for the payment by the Crown to the company of compensation—

      • (i) of an amount not greater than the value of the land or the estate or interest as at the date of registration of the transmission; or

      • (ii) if the land or the estate or interest has been sold or contracted to be sold, of an amount equal to the net amount received or receivable from the sale.

    (5) On an application under subsection (4), the court may decide any question concerning the value of the land or the estate or interest.

    (6) Compensation ordered to be paid under subsection (4) shall be paid out of a Crown Bank Account without further appropriation than this section.

    Compare: 1955 No 63 s 337

    Section 331(6): amended, on 25 January 2005, pursuant to section 65R(3) of the Public Finance Act 1989 (1989 No 44).

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