New Zealand Companies Act 1993 - Overseas Companies

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

Part 18 Overseas companies

332 Meaning of carrying on business

  • For the purposes of this Part,—

    • (a) a reference to an overseas company carrying on business in New Zealand includes a reference to the overseas company—

      • (i) establishing or using a share transfer office or a share registration office in New Zealand; or

      • (ii) administering, managing, or dealing with property in New Zealand as an agent, or personal representative, or trustee, and whether through its employees or an agent or in any other manner:

    • (b) an overseas company does not carry on business in New Zealand merely because in New Zealand it—

      • (i) is or becomes a party to a legal proceeding or settles a legal proceeding or a claim or dispute; or

      • (ii) holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or

      • (iii) maintains a bank account; or

      • (iv) effects a sale of property through an independent contractor; or

      • (v) solicits or procures an order that becomes a binding contract only if the order is accepted outside New Zealand; or

      • (vi) creates evidence of a debt or creates a charge on property; or

      • (vii) secures or collects any of its debts or enforces its rights in relation to securities relating to those debts; or

      • (viii) conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or

      • (ix) invests its funds or holds property; or

      • (x) enters into a contract of insurance as an insurer with a New Zealand policyholder (within the meaning of section 6(1) of the Insurance (Prudential Supervision) Act 2010).

    Compare: Corporations Act 1989 s 21(2), (3) (Aust)

    Section 332(b)(ix): amended, on 1 February 2011, by section 241(2) of the Insurance (Prudential Supervision) Act 2010 (2010 No 111).

    Section 332(b)(x): inserted, on 1 February 2011, by section 241(2) of the Insurance (Prudential Supervision) Act 2010 (2010 No 111).

332A Registrar may approve use of different form

  • (1) The Registrar may, on the application of any person, approve the use, by the overseas company or companies that the Registrar may specify, of a form for the purposes of this Part that is different from that prescribed.

    (2) The Registrar may at any time revoke, in whole or in part, any approval given under subsection (1).

    (3) An application, notice, or other document given to the Registrar by an overseas company must be treated as having been given in the prescribed form if the Registrar has approved the use of the form by the overseas company under this section.

    Section 332A: inserted, on 1 September 2007, by section 11 of the Companies Amendment Act (No 2) 2006 (2006 No 62).

333 Name to be reserved before carrying on business

  • (1) An overseas company must not carry on business in New Zealand on or after the commencement of this Act unless the name of the overseas company has been reserved.

    (2)[Repealed]

    (3) An overseas company registered under this Part that carries on business in New Zealand must not change its name unless the name has first been reserved.

    (4) The provisions of sections 20, 21, and 22 apply subject to any necessary modifications to the reservation of the name of an overseas company, including reservation on a change of name, in the same way as they apply to the registration of companies under this Act and to the change of names of companies registered under this Act.

    (5) If an overseas company contravenes this section,—

    • (a) the company commits an offence and is liable on conviction to the penalty set out in section 373(2); and

    • (b) every director of the company commits an offence and is liable on conviction to the penalty set out in section 374(2).

    Compare: 1955 No 63 s 396A; 1983 No 53 s 23

    Section 333(2): repealed, on 5 December 2013, by section 10 of the Companies Amendment Act 2013 (2013 No 111).

334 Overseas companies to register under this Act

  • (1) An overseas company that, on or after the commencement of this Act, commences to carry on business in New Zealand must apply for registration under this Part in accordance with section 336 within 10 working days of commencing to carry on business.

    (2) An overseas company that, immediately before the commencement of this Act, was carrying on business in New Zealand and, on the commencement of this Act, continues to carry on business in New Zealand, must apply for registration under this Part in accordance with section 336 within 10 working days of the commencement of this Act.

    (3) An overseas company registered under Part 12 of the Companies Act 1955 immediately before the date of commencement of this Act is, on and from that date, deemed to be registered under this Part instead of under Part 12 of the Companies Act 1955.

    (4) An overseas company that is deemed to be registered under this Part must, within 20 working days of the commencement of this Act, deliver to the Registrar for registration, a notice in the prescribed form stating the full address of the principal place of business in New Zealand of the overseas company.

    (5) An overseas company that changes its name must send or deliver to the Registrar a notice in the prescribed form of the change of name accompanied by the notice reserving the name within 10 working days of the change of name.

    (6) If an overseas company fails to comply with this section,—

    • (a) the overseas company commits an offence and is liable on conviction to the penalty set out in section 373(2); and

    • (b) every director of the overseas company commits an offence and is liable on conviction to the penalty set out in section 374(2).

335 Validity of transactions not affected

  • A failure by an overseas company to comply with section 333 or section 334 does not affect the validity or enforceability of any transaction entered into by the overseas company.

336 Application for registration

  • (1) An application for registration of an overseas company under this Part must be delivered to the Registrar and must—

    • (a) be in the prescribed form; and

    • (b) be signed by or on behalf of the overseas company.

    (2) Without limiting subsection (1), the application must—

    • (a) state the name of the overseas company; and

    • (b) state the full names and residential addresses of the directors of the overseas company at the date of the application; and

    • (c) state the full address of the place of business in New Zealand of the overseas company or, if the overseas company has more than 1 place of business in New Zealand, the full address of the principal place of business in New Zealand of the overseas company; and

    • (d) have attached evidence of incorporation of the overseas company and a copy of the instrument constituting or defining the constitution of the company, and, if not in English, a translation of such documents certified in accordance with regulations made under this Act; and

    • (e) have attached the notice of name approval; and

    • (f) state the full name and address of 1 or more persons resident or incorporated in New Zealand who are authorised to accept service in New Zealand of documents on behalf of the overseas company.

    Compare: 1955 No 63 s 397

337 Registration of overseas company

  • (1) Where the Registrar receives a properly completed application for registration under this Part of an overseas company, the Registrar must forthwith register the application on the overseas register.

    (2) Where an overseas company is deemed to be registered under this Part by virtue of section 334(3), the Registrar must, forthwith after the commencement of this Act, transfer the registration of the overseas company to the overseas register.

    (3) Where the Registrar receives a notice of a change of name of an overseas company in accordance with section 334(5), the Registrar must register the change of name on the overseas register.

338 Use of name by overseas company

  • (1) Every overseas company that carries on business in New Zealand must ensure that its full name, and the name of the country where it was incorporated, are clearly stated in—

    • (a) written communications sent by, or on behalf of, the company; and

    • (b) documents issued or signed by, or on behalf of, the company that evidence or create a legal obligation of the company.

    (2) For the purposes of subsection (1), a generally recognised abbreviation of a word or words may be used in the name of an overseas company if it is not misleading to do so.

    Section 338(1)(a): amended, on 1 July 1994, by section 41 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

339 Alteration of constitution

  • (1) An overseas company that carries on business in New Zealand must ensure that, within 20 working days of the change or alteration, notice in the prescribed form is given to the Registrar of—

    • (a) an alteration to the instrument constituting or defining the constitution of the overseas company; or

    • (b) a change in the directors or in the names or residential addresses of the directors of the overseas company; or

    • (c) a change in the address of the place of business or principal place of business of the overseas company; or

    • (d) a change in any person or the address of any person authorised to accept service in New Zealand of documents on behalf of the overseas company.

    (2) If an overseas company fails to comply with subsection (1),—

    • (a) the overseas company commits an offence and is liable on conviction to the penalty set out in section 373(2); and

    • (b) every director of the overseas company commits an offence and is liable on conviction to the penalty set out in section 374(2).

    Section 339(1): replaced, on 1 July 1994, by section 42 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

339A Rectification or correction of name or address of person authorised to accept service

  • (1) This section applies if the name or address of a person resident or incorporated in New Zealand who is authorised to accept service in New Zealand of documents on behalf of an overseas company is rectified or corrected under section 360A or section 360B.

    (2) The rectification or correction takes effect at the time that the rectification or correction is made to the overseas register.

    Section 339A: inserted, on 15 April 2004, by section 19 of the Companies Amendment Act (No 2) 2004 (2004 No 24).

340 Annual return of overseas company

  • (1) Every overseas company that carries on business in New Zealand must ensure that the Registrar receives each year, during the month allocated to the overseas company for the purposes of this section, an annual return in the prescribed form confirming that the information on the overseas register in respect of the overseas company referred to in the return is correct at the date of the return.

    (2) The annual return must be dated as at a day within the month during which the return is required to be received by the Registrar.

    (3) On registration of an overseas company under this Part, the Registrar must allocate a month to the company for the purposes of this section.

    (4) The Registrar may, by written notice to an overseas company, alter the month allocated to the company under subsection (3).

    (5) Notwithstanding subsection (1), an overseas company, not being an overseas company that is deemed to be registered under this Part, need not make an annual return in the calendar year of its registration under this Part.

    (6) If an overseas company fails to comply with subsection (1) or subsection (2),—

    • (a) the company commits an offence and is liable on conviction to the penalty set out in section 373(2); and

    • (b) every director of the overseas company commits an offence and is liable on conviction to the penalty set out in section 374(2).

341 Overseas company ceasing to carry on business in New Zealand

  • (1) An overseas company registered under this Part that intends to cease to carry on business in New Zealand must—

    • (a) give public notice of that intention; and

    • (b) not earlier than 3 months after giving notice in accordance with paragraph (a), give notice to the Registrar in the prescribed form stating the date on which it will cease to carry on business in New Zealand.

    (2) The Registrar must remove an overseas company from the overseas register as soon as practicable after—

    • (a) the date specified in the notice given in accordance with subsection (1)(b); or

    • (b) receipt of a notice given by a liquidator in accordance with the provisions of Schedule 9.

    Compare: 1955 No 63 s 405

    Section 341(2): replaced, on 1 July 1994, by section 43 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).

342 Liquidation of overseas company

  • (1) An application may be made to the court for the liquidation of an overseas company in accordance with Part 16, subject to the modifications and exclusions set out in Schedule 9.

    (2) An application may be made under subsection (1) whether or not the overseas company—

    • (a) is registered under this Part; or

    • (b) has given public notice of an intention to cease to carry on business in New Zealand in accordance with section 341(1)(a); or

    • (c) has given notice to the Registrar of the date on which it will cease to carry on business in New Zealand in accordance with section 341(1)(b); or

    • (d) has been dissolved, or otherwise ceased to exist as a company, under or by virtue of the laws of any other country.

    Section 342 heading: amended, on 24 July 2008, by section 13 of the Insolvency (Cross-border) Act 2006 (2006 No 57).

    Section 342(1): amended, on 24 July 2008, by section 13 of the Insolvency (Cross-border) Act 2006 (2006 No 57).

343 Attorneys of overseas companies

  • (1) Sections 19 to 21 of the Property Law Act 2007 apply, with all necessary modifications, in relation to a power of attorney executed by an overseas company registered under this Part, to the same extent as if the company was a natural person and as if the commencement of the liquidation of the company was an event revoking the power of attorney within the meaning of those sections.

    (2) A declaration endorsed on or annexed to an instrument appointing, or appearing to appoint, an attorney of an overseas company, made or appearing to be made by one of the directors before a person authorised by section 11 of the Oaths and Declarations Act 1957 to take a declaration for use in New Zealand, in the country concerned, to the effect that—

    • (a) the company is incorporated under the name stated in the instrument in accordance with the law of the country in which it is so incorporated, the name of which is stated in the declaration; and

    • (b) the instrument has been executed, and the powers appearing to be conferred on the attorney are authorised to be conferred under the constitution of the company, or under the Act or instrument under which the company is incorporated, or by any other instrument constituting or defining the constitution of the company; and

    • (c) the person making the declaration is a director of the company—

    is conclusive evidence of those facts.

    Section 343(1): replaced, on 1 January 2008, by section 364(1) of the Property Law Act 2007 (2007 No 91).

343A Overseas company not required to provide information, notice, or document in certain circumstances

  • An overseas company is not required to give information, notice of information, or a copy of a document to the Registrar under this Part if—

    • (a) the overseas company is incorporated in a prescribed country, State, or territory outside New Zealand; and

    • (b) the information or a copy of the document has been given to, or is held by, a body or person in that country, State, or territory whose functions correspond to those of the Registrar; and

    • (c) the information or document is of a class that is prescribed for the purposes of this section.

    Section 343A: inserted, on 1 September 2007, by section 12 of the Companies Amendment Act (No 2) 2006 (2006 No 62).

Part 19 Transfer of registration

Registration of overseas companies as companies under this Act

344 Overseas companies may be registered as companies under this Act

  • Subject to this Part, an overseas company may be registered as a company under this Act.

345 Application for registration

  • (1) An application by an overseas company to register as a company under this Act must be in the prescribed form and must be accompanied by—

    • (a) a certified copy of its certificate of incorporation or other similar document that evidences its incorporation; and

    • (b) a certified copy of the documents defining its constitution; and

    • (c) evidence acceptable to the Registrar that the company is not prevented from being registered as a company under this Act by either section 346 or section 347; and

    • (d) the documents and information that are required to register a company under Part 2; and

    • (e) any other documents and information the Registrar may require.

    (2) The Registrar may direct that a document that has been delivered to the Registrar or registered under Part 18 need not accompany the application.

346 Overseas companies must be authorised to register

  • An overseas company must not be registered as a company under this Act unless—

    • (a) the company is authorised to transfer its incorporation under the law of the country in which it is incorporated; and

    • (b) the company has complied with the requirements of that law in relation to the transfer of its incorporation; and

    • (c) if that law does not require its shareholders, or a specified proportion of them, to consent to the transfer of its incorporation, the transfer has been consented to by not less than 75% of its shareholders entitled to vote and voting in person or by proxy at a meeting of which not less than 21 days notice is given specifying the intention to transfer the company's incorporation.

    Compare: Corporations Act 1989 s 135 (Aust)

347 Overseas companies that cannot be registered

  • (1) An overseas company must not be registered as a company under this Act if—

    • (a) the company is in liquidation; or

    • (b) a receiver or manager has been appointed, whether by a court or not, in relation to the property of the company; or

    • (c) the company has entered into a compromise or arrangement with a creditor that is in force; or

    • (d) an application has been made to a court, whether in New Zealand or in another country,—

      • (i) to put the company into liquidation or wind it up; or

      • (ii) for the approval of a compromise or arrangement between the company and a creditor—

      and has not been dealt with.

    (2) An overseas company must not be registered as a company under this Act unless the overseas company would, immediately after becoming registered under this Act, satisfy the solvency test.

    Compare: Corporations Act 1989 s 134 (Aust)

348 Registration

  • (1) As soon as the Registrar receives a properly completed application for registration of an overseas company as a company under this Act, the Registrar must—

    • (a) enter on the New Zealand register the particulars of the company required under section 360; and

    • (b) issue a certificate of registration in the prescribed form.

    (2) A certificate of registration of a company issued under this section is conclusive evidence that—

    • (a) all the requirements of this Act as to registration have been complied with; and

    • (b) on and from the date of registration stated in the certificate, the company is registered under this Act.

349 Effect of registration

  • (1) The registration of an overseas company under this Act does not—

    • (a) create a new legal entity; or

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

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

    • (d) affect proceedings by or against the company.

    (2) Proceedings that could have been commenced or continued by or against the overseas company before registration under this Act may be commenced or continued by or against the company after registration.

Transfer of registration of companies to other jurisdictions

350 Companies may transfer incorporation

  • Subject to this Part, a company may be removed from the New Zealand register in connection with becoming incorporated under the law in force in, or in any part of, another country.

351 Application to transfer incorporation

  • An application by a company for removal from the New Zealand register in connection with becoming incorporated under the law in force in, or in any part of, another country must be in the prescribed form and must be accompanied by—

    • (a) evidence acceptable to the Registrar that sections 352 and 353 have been complied with; and

    • (b) evidence acceptable to the Registrar that the removal of the company from the New Zealand register is not prevented by section 354; and

    • (c) written notice from the Commissioner of Inland Revenue that the Commissioner has no objection to the company being removed from the New Zealand register; and

    • (d) evidence acceptable to the Registrar that the company is incorporated under that law; and

    • (e) any other documents or information the Registrar may require.

352 Approval of shareholders

  • A company must not apply to be removed from the New Zealand register under section 351 unless the making of the application has been approved by special resolution.

353 Company to give public notice

  • A company must not apply to be removed from the New Zealand register under section 351 unless—

    • (a) the company gives public notice—

      • (i) stating that it intends, after the date specified in the notice, which must not be less than 20 working days after the date of the notice, to apply under section 351 for the company to be removed from the New Zealand register in connection with the company becoming incorporated under the law in force in, or in any part of, another country; and

      • (ii) specifying the country or part of the country under the law of which it is proposed that the company will become incorporated; and

    • (b) the application is made after that date.

354 Companies that cannot transfer incorporation

  • (1) A company must not be removed from the New Zealand register under section 355 if—

    • (a) the company is in liquidation or an application has been made to the court under section 241 to put the company into liquidation; or

    • (b) a receiver or manager has been appointed, whether by a court or not, in relation to the property of the company; or

    • (c) the company has entered into a compromise with creditors or a class of creditors under Part 14 or a compromise has been proposed under that Part in relation to the company; or

    • (d) a compromise has been approved by the court under Part 15 in relation to the company or an application has been made to the court to approve a compromise under that Part.

    (2) A company must not be removed from the New Zealand register under section 355 unless the company would, immediately before it is removed from the register, satisfy the solvency test.

355 Removal from register

  • (1) As soon as the Registrar receives a properly completed application under section 351 to remove a company from the New Zealand register, the Registrar must remove the company from the register.

    (2) 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.

356 Effect of removal from register

  • (1) The removal of a company from the New Zealand register under section 355 does not—

    • (a) prejudice or affect the identity of the body corporate that was constituted under this Act or its continuity as a legal person; or

    • (b) affect the property, rights, or obligations of that body corporate; or

    • (c) affect proceedings by or against that body corporate.

    (2) Proceedings that could have been commenced or continued by or against a company before the company was removed from the New Zealand register under section 355 may be commenced or continued by or against the body corporate that continues in existence after the removal of the company from the register.

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