Securities Amendment Act 2004

1: Title
1: This Act is the Securities Amendment Act 2004.
2: In this Act, the Securities Act 1978 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Interpretation
1: Section 2(1) chattel chattel .
2: Section 2(1) company company section 2(1) of the Companies Act 1993 .
3: Section 2(1) convertible note section FZ 2 section OB 1
4: Section 2(1) date of a prospectus date of a registered prospectus section 39(a) of this Act section 39(1)(a)
5: Section 2(1) expert and includes an accountant, engineer, valuer, quantity surveyor, and geologist;
6: Section 2(1) labour share local authority
7: Section 2(1) paragraph (a) manager
a: in relation to a participatory security,—
i: means a person—
A: on whose behalf any money paid in consideration of the allotment of the security is received; or
B: with a substantial obligation to security holders to act in the continuing administration or management of the scheme to which the security relates; or
C: to whom both subsubparagraphs (A) and (B) apply; but
ii: does not include a person who is a participatory security trustee in relation to the security if the person acts in the continuing administration or management of the scheme to which the security relates solely in the person's capacity as a participatory security trustee; and .
8: Section 2(1) participatory security participatory security trustee .
4: Meaning of advertisement
Section 2A(3) paragraph (b)
5: Construction of references to offering securities to the public
1: Section 3(2)(a)(i) or of a director of the issuer
2: Section 3(2)(a) subparagraph (ii)
iia: persons who are each required to pay a minimum subscription price of at least $500,000 for the securities before the allotment of those securities: .
3: Section 3 subsection (6)
4: Section 3
8: In calculating the subscription price payable, or paid, for securities for the purposes of subsection (2)(a)(iia)
9: The Governor-General may, by Order in Council, amend the minimum subscription price that applies under subsection (2)(a)(iia)
6: Application of this Act
Section 4
5: Despite subsection (4) Illegal Contracts Act 1970 sections 37 and 37A
7: Exemptions from this Act
1: Section 5(1)(h) a labour share or
2: Section 5 subsection (2C)
2CA: Nothing in Part 2 sections 38B and 58
a: states that—
i: the issuer is considering making an offer of securities to the public; and
ii: no money is currently being sought and that no applications for securities will be accepted or money received unless the subscriber has received an investment statement; and
b: if the issuer wishes, states that the issuer is seeking preliminary indications of interest and, in this case, also states—
i: how indications of interest may be made; and
ii: that no indication of interest will involve an obligation or commitment of any kind; and
c: contains no other information, except any or all of the following:
i: the name of the issuer:
ii: a description of the securities intended to be offered, including a brief description of any rights or privileges to be attached:
iii: the rate or rates of interest (if any) that may be earned by holding the securities intended to be offered:
iv: the total number of securities intended to be offered:
v: a statement of the intended use of the subscriptions:
vi: the terms of the intended offer:
vii: a description of the class of persons to whom it is intended the offer will be made:
viii: the date at which the issuer expects that the offer will be made; and
d: is dated and is not distributed to any person later than 6 months after its date.
2CB: Nothing in Part 2 sections 38B and 58
a: the only persons who are able, under the terms of the offer of the security, to subscribe for the security are eligible persons; and
b: the subscriber is an eligible person.
2CC: For the purposes of subsection (2CB) eligible person
a: wealthy (as defined in subsection (2CD)
b: experienced in investing money (as defined in subsection (2CE)
c: experienced in the industry or business to which the security relates (as defined in subsection (2CE)
2CD: For the purposes of subsection (2CC)(a) wealthy
a: has net assets of at least $2,000,000; or
b: had an annual gross income of at least $200,000 for each of the last 2 financial years.
2CE: For the purposes of subsection (2CC)(b) and (c) experienced
a: an independent financial service provider is satisfied on reasonable grounds that the person to whom the offer is made, as a result of having experience of that kind, is able to assess—
i: the merits of the offer; and
ii: the value of the security; and
iii: the risks involved in accepting the offer; and
iv: that person's own information needs; and
v: the adequacy of the information given by the person making the offer; and
b: the financial service provider gives the person to whom the offer is made, before the security is allotted to the person, a written statement of the financial service provider's reasons for being satisfied as to those matters; and
c: the person to whom the offer is made signs a written acknowledgment, before the security is allotted to the person, that the financial service provider has given the person neither an investment statement nor a registered prospectus relating to the security.
2CF: For the purposes of subsection (2CE) financial service provider
a: the giving of investment advice:
b: the receiving of investment money:
c: the receiving of investment property investment advice section 2(1) of the Investment Advisers (Disclosure) Act 1996 investment money investment property
2CG: The Governor-General, by Order in Council, may make regulations for all or any of the following purposes:
a: amending the amounts of minimum net assets and minimum annual gross income that apply under subsection (2CD)
b: prescribing how net assets referred to in subsection (2CD)
c: prescribing how gross income referred to in subsection (2CD)
3: Section 5 subsections (2E) (2F)
4: Section 5(5) person or class of persons or any transaction or class of transactions
5: Section 5 subsection (5)
5A: The Commission's reasons for granting an exemption under subsection (5) Gazette
5B: However, the Commission may defer notifying or not notify the reasons for granting an exemption if the Commission is satisfied that it is proper to do so on the ground of commercial confidentiality.
8: New
sections 5A to 5C The principal Act is amended by inserting, after section 5
5A: Exemption for employer superannuation schemes
Nothing in sections 37, 37A(1)(c), and 39 to 44
5B: Conditions of exemption for employer superannuation schemes
The exemption in section 5A
a: each annual report prepared under section 14 of the Superannuation Schemes Act 1989
i: if any superannuation trustee, promoter, or manager of the scheme, or any director of that superannuation trustee, promoter, or manager, has, during the 5 years preceding the specified date, been adjudged bankrupt or insolvent, convicted of any crime involving dishonesty, prohibited from acting as a director of a company, or placed in statutory management or receivership, a statement to that effect including the name and any alternative or former name or names of the superannuation trustee, promoter, manager, or director concerned:
ii: if more than 10% of the value of the scheme's assets (calculated in accordance with generally accepted accounting practice) was, at any time during the year preceding the specified date, represented directly or indirectly by any securities that were issued by a superannuation trustee, manager, or custodian of the scheme (or any associated person of any of them), a description of those securities:
iii: a brief description of any legal proceedings or arbitrations that are pending at the specified date and that may have a material adverse effect on the scheme:
iv: a statement by the superannuation trustees of the scheme (or, if a superannuation trustee is a body corporate or unincorporate, by the directors of that body) as to whether, in their opinion, after due enquiry by them, either or both of the following have materially and adversely changed since the specified date:
A: the value of the scheme's assets relative to its liabilities (including contingent liabilities):
B: the ability of the scheme to pay its debts as they become due in the normal course of business; and
b: the superannuation trustees of the scheme must, within 5 working days of receiving a member's request for a description of the investment objectives and policy for the scheme or of the means by which changes can be made to those objectives and that policy, without fee, send, or cause to be sent, to that member a brief description of those matters, except to the extent that those matters have been disclosed in the investment statement.
5C: Definitions for the purposes of
sections 5A to 5C
1: For the purposes of this section and sections 5A and 5B crime involving dishonesty section 2(1) of the Crimes Act 1961 custodian de facto partner Property (Relationships) Act 1976 employer superannuation scheme section 2(1) of the Superannuation Schemes Act 1989
a: admission to the membership of which is conditional on either or both of the following:
i: being an employee of that employer or an employee of an associated person of that employer:
ii: being a relative, spouse, de facto partner, or dependant of a person who is an employee of that employer or an employee of an associated person of that employer; and
b: in respect of which that employer is required to incur in any financial year costs (by way of contributions, expense payments, or both) at least equal to the amount of the costs of administering the scheme in respect of that financial year that are not met in that year from any excess in the value of the scheme's assets over the value of the members' accrued benefits manager section 2(1) of the Superannuation Schemes Act 1989 specified date spouse Property (Relation-ships) Act 1976
2: For the purposes of the definition of employer superannuation scheme
9: Delegation of powers by Commission
1: Section 27(1) 5(5), 38B,
2: Section 27(1) 44A,
10: New
section 36A The principal Act is amended by inserting, before section 37
36A: Subscriptions must be held in trust
An issuer must ensure that subscriptions for securities offered to the public are held in trust for the subscribers until the securities are allotted or until the subscriptions are repaid to the subscribers under this Act.
11: Void irregular allotments
1: Section 37(2) if the allotment is the first allotment of such security to the public
2: Section 37 subsection (2)
2A: Subsection (2)
3: Section 37 subsection (3)
3: An allotment of a participatory security offered to the public for subscription must not be made unless, at the time of allotment, a written statement from the subscriber authorising the subscription for that particular security has been received by—
a: the statutory supervisor; or
b: a person appointed by the statutory supervisor to receive, on the statutory supervisor's behalf, that written statement or written statements of that class.
4: Section 37(5) paragraph (a)
5: Section 37
7: For the purposes of the Limitation Act 1950 subsection (5) or subsection (6)
12: New headings and
sections 37AA to 37AL The principal Act is amended by inserting, after section 37 Relief orders in respect of section 37
37AA: Applications for relief orders in respect of
section 37
1: An application to the Court for a relief order in respect of the application of section 37
a: in respect of a contravention of section 37
b: regardless of whether the contravention occurred before or after this section comes into force; and
c: in connection with 1 or more subscribers.
2: However, an application to the Court for a relief order in respect of the application of section 37 section 37(5) or (6)
3: In this section and sections 37AB to 37AL
a: security holder section 37(4)
b: the references to the security holder apply if the security holder is a person other than the subscriber.
37AB: Effect of relief order in respect of
section 37 Section 37(4) to (6) section 37AC or section 37AH or section 37AI section 37 Mandatory relief orders
37AC: Court must make relief order in certain circumstances
1: The Court must make a relief order in respect of the application of section 37
a: the subscriber; or
b: the security holder; or
c: the issuer, if the subscriber consents in writing to the making of the relief order; or
d: the issuer, if the security holder consents in writing to the making of the relief order; or
e: the issuer, if—
i: the contravention of section 37 section 5(5) section 5A
ii: the issuer has given notice of that contravention to the subscriber in accordance with sections 37AE and 37AF
iii: the subscriber has not objected to the Court making a relief order by—
A: notifying the issuer in writing within 30 working days after the day on which the notice is given that the subscriber objects to the making of the relief order; and
B: including in the subscriber's objection a description as to how the contravention has materially prejudiced the interests of the subscriber.
2: An order may be made under this section regardless of whether the contravention of section 37
3: An application under this section may be made in conjunction with an application under section 37AH or section 37AI
37AD: Consent for purposes of
section 37AC(1)(c) or (d)
1: The issuer must not obtain the consent of a person under section 37AC(1)(c) or (d)
a: the contravention in relation to the proposed application for the relief order has occurred; and
b: a notice that contains, or has attached to it, the following is sent by the issuer to the person:
i: any information that is necessary to enable a reasonable person to understand the nature and implications of the contravention that has occurred:
ii: a statement to the effect that the notice concerns the legal rights of the person and that, if there is anything about the person's legal rights that the person does not understand, then the person should seek legal advice before giving their consent to the making of a relief order:
iii: any information, documents, or copies of documents required to be sent, delivered, or provided to the person in accordance with an exemption granted under section 5(5) section 5A section 37
iv: an investment statement relating to the security, unless an exemption from section 37A(1)(a) section 5
v: a statement to the effect that there is a registered prospectus in relation to the security and that, at the request of the person and on payment of any prescribed fee, the issuer will send the registered prospectus to the person:
vi: a statement that describes the effect of section 363 of the Companies Act 1993 section 66
2: Subsection (1)(b)(v) and (vi) section 37(1) section 5 or section 5A
3: A person's consent is of no effect for the purposes of section 37AC(1)(c) or (d)
a: that consent is given before the date on which the notice referred to in subsection (1)(b)
b: that consent is given before there is a registered prospectus relating to the security if the notice referred to in subsection (1)(b) subsection (1)(b)(v) and (vi)
37AE: Notice to subscriber for purposes of
section 37AC(1)(e)
1: The issuer must, if an application is to be made under section 37AC(1)(e) section 37AF
2: The notice must contain statements or information to the following effect:
a: a description of the securities to which the notice relates; and
b: a description of the manner in which the issuer has contravened section 37
c: a summary of the effect of section 37(4) and (6)
d: a summary, if appropriate, of the effect of section 37(5)
e: that the Court has the power to make an order that grants relief from the application of section 37(4) to (6)
f: that the issuer is seeking, or may seek, a relief order; and
g: that the subscriber may object to the making of a relief order by notifying the issuer in writing within 30 working days after the day on which the notice is given that the subscriber objects to the making of the relief order; and
h: that, if the subscriber objects to the making of the relief order, then the subscriber must include in the subscriber's objection a description as to how the contravention has materially prejudiced the interests of the subscriber; and—
i: that the Court must make a relief order if the subscriber does not object to the making of the relief order in the manner referred to in paragraphs (g) and (h)
j: the address of the issuer to which objections must be sent; and
k: that the notice affects the subscriber's legal rights and that, if there is anything about the subscriber's legal rights that the subscriber does not understand, then the subscriber should seek legal advice immediately; and
l: a summary of the effect of section 37AF(1)(d) section 37AF(1)(d)
m: any further information and explanation as may be necessary to enable a reasonable person to understand the nature and implications of an application for a relief order and the notice.
3: The notice may contain statements and information in connection with 1 or more subscribers.
4: The form of the notice must be approved by the Court before the notice is given to any subscriber.
5: The Court may—
a: grant its approval subject to any terms and conditions concerning the form and content of the notice that it thinks fit; and
b: require the notice to contain any information concerning the security or the issuer that it considers may assist the subscriber to decide whether or not to object to the making of the relief order.
37AF: How notice must be given
1: The notice to be given to a subscriber under section 37AE
a: sending the notice to a current address for the subscriber; and
b: publishing the notice in each of the daily newspapers published in Whangarei, Auckland, Hamilton, Rotorua, Hawke's Bay, New Plymouth, Palmerston North, Wellington, Nelson, Christchurch, Dunedin, and Invercargill (unless a daily newspaper is not published in that place); and
c: publishing the notice on the issuer's website (if the issuer has a website) in an electronic form that is publicly accessible; and
d: sending a copy of the notice to,—
i: in the case of a participatory security, the statutory supervisor (if any); and
ii: in the case of a debt security, the trustee (if any); and
iii: in the case of a unit in a unit trust, the unit trustee (if any); and
iv: the Commission.
2: The issuer must comply with subsection (l)(a) to (d)
3: However, the issuer does not have to comply with subsection (1)(a)
4: The notice must be treated as having been given to the subscriber on the day within the consecutive period of 5 working days—
a: on which subsection (1)(a) to (d)
b: on which subsection (1)(b) to (d) subsection (3)
5: The form of the notice that is published under subsection (1)(b) and (c) Privacy Act 1993
37AG: Court may make order for compensation
1: The Court may, on the application of a subscriber, order an issuer to pay compensation to the subscriber for any loss or damage suffered by the subscriber that is caused by a contravention of section 37
2: An application may be made under subsection (1)
a: an application has been made to the Court for a relief order under section 37AC
b: the Court has made a relief order under section 37AC
3: An application under subsection (1) section 37AC
4: Subsection (1) section 37 Discretionary relief orders
37AH: When Court may make relief order in respect of
section 37
1: The Court may in the course of any proceedings, or on the application of the issuer under this section, make a relief order in respect of the application of section 37
2: An order may be made under this section regardless of whether the contravention of section 37
3: In determining whether to make a relief order under this section, the Court must have regard to—
a: all of the circumstances relating to the allotment of the security; and
b: the nature and seriousness of the contravention of section 37
c: whether the contravention has materially prejudiced the interests of the subscriber; and
d: whether the subscriber has disposed of the security to any other person; and
e: any other matters that the Court thinks fit.
4: An application under this section may be made in conjunction with an application under section 37AC or section 37AI Transitional provision for relief orders
37AI: Transitional provision for relief orders in respect of
section 37
1: This section applies to a contravention of section 37
a: any of the requirements in paragraph (d) of the definition of Australian prospectus
b: any of the requirements in paragraph (d) of the definition of Australian prospectus
c: the condition in clause 5 of the Securities Act (Australian Unit Trusts) Exemption Notice 1997 (SR 1997/216)
d: the condition in clause 5 of the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 1999 (SR 1999/119)
e: the condition in clause 6 of the Securities Act (Great Britain Collective Investment Schemes) Exemption Notice 1999 (SR 1999/420)
2: The Court must, on the application of the issuer, make a relief order in respect of the application of section 37
3: If the contravention has materially prejudiced the interests of the subscriber, the Court may make a relief order in respect of the application of section 37
a: whether the subscriber has disposed of the security to any other person; and
b: any other matters that the Court thinks fit.
4: An application under this section may be made in conjunction with an application under section 37AC or section 37AH Other orders in relation to section 37AH and section 37AI relief orders
37AJ: Other orders that Court may make in relation to relief orders under
section 37AH or section 37AI If the Court makes a relief order under section 37AH or section 37AI
a: make the relief order subject to any terms and conditions that it thinks fit if the contravention of section 37
b: in respect of a security, order the issuer to pay compensation to—
i: the subscriber for any loss or damage suffered by the subscriber that is caused by the contravention of section 37
ii: any person who has, at any time, been a security holder in relation to the security for any loss or damage suffered by the person that is caused by the contravention of section 37
c: grant any mandatory, restrictive, or prohibitory injunction that the Court thinks fit; and
d: make an order for any consequential relief that the Court thinks fit, unless the Court makes the relief order under section 37AI Service, rights to appear, and other proceedings
37AK: Service and rights to appear and adduce evidence in respect of
section 37
1: If an application for an order is made under section 37AC(1)(a) or (b)
a: the issuer:
b: any other person that the Court orders must be served with notice of the application.
2: If an application for an order is made under section 37AC(1)(c) or (d)
a: the subscriber:
b: the security holder:
c: the Commission:
d: any other person that the Court orders must be served with notice of the application.
3: If an application for an order is made under any of the provisions of sections 37AG to 37AI
a: the issuer:
b: the subscriber or a representative defendant appointed by the Court:
c: the security holder or a representative defendant appointed by the Court:
d: the Commission:
e: in the case of a participatory security, the statutory supervisor (if any):
f: in the case of a debt security, the trustee (if any):
g: in the case of a unit in a unit trust, the unit trustee (if any):
h: any other person that the Court orders must be served with notice of the application.
4: For the purposes of subsection (3)(b) sections 37AE and 37AF section 37AE(2)(g) and (h)
5: If an issuer applies, in connection with a security, to the Court for the Court's approval for the purposes of section 37AE(4)
a: the Commission:
b: in the case of a participatory security, the statutory supervisor (if any):
c: in the case of a debt security, the trustee (if any):
d: in the case of a unit in a unit trust, the unit trustee (if any):
e: any other person that the Court orders must be served with notice of the application.
6: Despite subsections (1) to (5)
7: If a person has been served, or should have been served, with notice of an application—
a: in accordance with subsections (1) to (3)
b: in accordance with subsection (5) section 37AE(5)
8: A person has the right to adduce evidence and the right to cross-examine witnesses if the person appears under this section, unless the proceedings are by way of appeal.
9: The rights referred to in this section apply whether or not the person was a party to the proceedings at any earlier stage in the proceedings.
10: This section does not limit the rights of any person, under any other enactment or rule of law, to appear and be heard or to adduce evidence.
37AL: Other proceedings for relief in respect of
section 37
1: This section applies—
a: to all proceedings commenced after this section comes into force that relate to an allotment of a security made in contravention of section 37
b: to all proceedings that have not been finally disposed of by the Court of first instance before this section comes into force that relate to an allotment of a security made in contravention of section 37
2: The Court must not, in respect of an allotment of a security made in contravention of section 37
a: any order in accordance with any of the provisions of sections 37AA to 37AK sections 37B to 37G
b: any order or direction in relation to a matter of procedure:
c: any order as to costs:
d: any order to require the repayment of any subscriptions or interest under section 37(5) or (6)
e: any order in relation to proceedings under section 59
f: any order in relation to proceedings under section 60(2)
3: This section does not limit—
a: the right of a person to discontinue any proceedings; or
b: the right of a person to commence proceedings in accordance with any of the provisions of sections 37AA to 37AK sections 37B to 37G
4: Subsection (5)
a: proceedings have been commenced to require the repayment of subscriptions or interest under section 37(5) or (6)
b: an application has been made for a relief order in relation to the security under 1 or more of the following provisions:
i: section 37AC
ii: section 37AH
iii: section 37AI
5: The Court must, on the application of the issuer, order that the proceedings to require the repayment of subscriptions or interest under section 37(5) or (6)
a: is, or are, frivolous or vexatious; or
b: is, or are, an abuse of the process of the Court.
6: Nothing in this section applies to an appeal against a final judgment given or made before this section comes into force.
13: Voidable irregular allotments
1: Section 37A subsection (2)
2: Section 37A
8: For the purposes of the Limitation Act 1950 subsection (6) or subsection (7)
14: New headings and
sections 37B to 37G The principal Act is amended by inserting, after section 37A Relief orders in respect of section 37A
37B: Relief orders in respect of
section 37A
1: The issuer of a security may make an application to the Court for a relief order under section 37C or section 37D section 37A section 37A(3)
2: However, an application to the Court for a relief order in respect of the application of section 37A section 37A(6) or (7)
3: If a relief order in respect of the application of section 37A
a: the notice given under section 37A(3)
b: section 37A(6) and (7)
4: An application to the Court may be made in connection with 1 or more subscribers. Discretionary relief orders
37C: When Court may make relief order in respect of
section 37A
1: The Court may in the course of any proceedings, or on the application of the issuer under this section, make a relief order in respect of the application of section 37A
2: An order may be made under this section regardless of whether the contravention of section 37A
3: In determining whether to make a relief order under this section, the Court must have regard to—
a: all of the circumstances relating to the allotment of the security; and
b: the nature and seriousness of the contravention of section 37A
c: whether the contravention has materially prejudiced the interests of the subscriber; and
d: whether the subscriber has disposed of the security to any other person; and
e: any other matters that the Court thinks fit.
4: An application under this section may be made in conjunction with an application under section 37D Transitional provision for relief orders
37D: Transitional provision for relief orders in respect of
section 37A
1: This section applies to a contravention of section 37A clause 6 of the Securities Act (Great Britain Collective Investment Schemes) Exemption Notice 1999 (SR 1999/420)
2: The Court must, on the application of the issuer, make a relief order in respect of the application of section 37A
3: If the contravention has materially prejudiced the interests of the subscriber, the Court may make a relief order in respect of the application of section 37A
a: whether the subscriber has disposed of the security to any other person; and
b: any other matters that the Court thinks fit.
4: An application under this section may be made in conjunction with an application under section 37C Other orders
37E: Other orders that Court may make in relation to relief orders under
section 37C or section 37D If the Court makes a relief order under section 37C or section 37D
a: make the relief order subject to any terms and conditions that it thinks fit if the contravention of section 37A
b: in respect of a security, order the issuer to pay compensation to—
i: the subscriber for any loss or damage suffered by the subscriber that is caused by the contravention of section 37A
ii: any person who has, at any time, been a security holder in relation to the security for any loss or damage suffered by the person that is caused by the contravention of section 37A
c: grant any mandatory, restrictive, or prohibitory injunction that the Court thinks fit; and
d: make an order for any consequential relief that the Court thinks fit, unless the Court makes the relief order under section 37D Service, rights to appear, and other proceedings
37F: Service and rights to appear and adduce evidence in respect of
section 37C or section 37D
1: If an application for an order is made under section 37C or section 37D
a: the subscriber or a representative defendant appointed by the Court:
b: the security holder (being the person who would be the current security holder but for the application of section 37A(3)
c: the Commission:
d: in the case of a participatory security, the statutory supervisor (if any):
e: in the case of a debt security, the trustee (if any):
f: in the case of a unit in a unit trust, the unit trustee (if any):
g: any other person that the Court orders must be served with notice of the application.
2: Despite subsection (1)
3: If a person has been served, or should have been served, with notice of an application, the person may appear and be heard on the application and on any related matter, in person or by a barrister or solicitor, in the Court.
4: A person has the right to adduce evidence and the right to cross-examine witnesses if the person appears under this section, unless the proceedings are by way of appeal.
5: The rights referred to in this section apply whether or not the person was a party to the proceedings at any earlier stage in the proceedings.
6: This section does not limit the rights of any person, under any other enactment or rule of law, to appear and be heard or to adduce evidence.
37G: Other proceedings for relief in respect of
section 37A
1: This section applies—
a: to all proceedings commenced after this section comes into force that relate to an allotment of a security made in contravention of section 37A
b: to all proceedings that have not been finally disposed of by the Court of first instance before this section comes into force that relate to an allotment of a security made in contravention of section 37A
2: The Court must not, in respect of an allotment of a security made in contravention of section 37A
a: any order in accordance with any of the provisions of sections 37AA to 37AL, sections 37B to 37F
b: any order or direction in relation to a matter of procedure:
c: any order as to costs:
d: any order to require the repayment of any subscriptions or interest under section 37A(6) or (7)
e: any order in relation to proceedings under section 59
f: any order in relation to proceedings under section 60(2)
3: This section does not limit—
a: the right of a person to discontinue any proceedings; or
b: the right of a person to commence proceedings in accordance with any of the provisions of sections 37AA to 37AL, sections 37B to 37F
4: Subsection (5)
a: proceedings have been commenced to require the repayment of subscriptions or interest under section 37A(6) or (7)
b: an application has been made for a relief order under section 37C or section 37D
5: The Court must, on the application of the issuer, order that the proceedings to require the repayment of subscriptions or interest under section 37A(6) or (7)
a: is, or are, frivolous or vexatious; or
b: is, or are, an abuse of the process of the Court.
6: Nothing in this section applies to an appeal against a final judgment given or made before this section comes into force.
15: Suspension and prohibition of investment statement
1: Section 38F subsection (4)
4: Subject to subsection (6)
2: Section 38F(9) paragraphs (b) (c)
b: all subscriptions received for securities to which the investment statement relates, not being subscriptions for securities that were allotted before any order was made under subsection (1)
16: Amendment of registered prospectus
Section 43(2)(ii) delivered in duplicate and
17: Suspension and cancellation of registration of registered prospectus
1: Section 44 subsection (3)
3: Subject to subsection (4A)
2: Section 44(6) paragraphs (b) (c)
b: all subscriptions received for securities to which the registered prospectus relates, not being subscriptions for securities that were allotted before any power was exercised under subsection (1)
18: Issuers to keep registers of securities
Section 51(11) or the Companies Act 1955
19: Rights of inspection of registers of securities and to copies of registers and deeds
Section 52(6) or the Companies Act 1955
20: Financial statements to be audited
1: Section 53E subsection (2)
2: Section 53E subsection (3)
3: Every issuer of participatory securities, units in a unit trust, or interests in a superannuation scheme offered to the public must ensure that the financial statements for the scheme to which the securities relate are audited at least once a year by a qualified auditor.
21: Application of other Acts not affected
Section 53F the Companies Act 1955
22: Issuers to issue certificates evidencing securities
Section 54(4) section 90(2) of the Companies Act 1955 section 95(2) of the Companies Act 1993 section 95(2) of the Companies Act 1993
23: New sections 61 to 61C substituted
The principal Act is amended by repealing section 61
61: General prohibition on indemnities or insurance for directors, employees, and auditors of issuer
1: Except as provided in section 61A or section 61B
a: liability for any negligence, default, breach of duty, or breach of trust in his or her capacity as a director, employee, or auditor; or
b: costs incurred by that director, employee, or auditor in defending or settling any claim or proceeding relating to that liability.
2: An indemnity given in breach of this section is void.
61A: Permitted indemnities for certain costs of directors, employees, and auditors of issuers
1: An issuer may indemnify a director, employee, or auditor of the issuer for—
a: any costs incurred by him or her in defending or settling a proceeding that relates to liability of a kind referred to in section 61(1)(a)
i: judgment is given in his or her favour or if he or she is acquitted; or
ii: the proceeding is discontinued; or
b: any costs incurred by him or her in connection with an application under section 63
2: This section does not limit section 162 of the Companies Act 1993
61B: Permitted insurance for certain liability of directors and employees of issuer
1: An issuer may effect insurance for a director or employee of the issuer in respect of—
a: liability (other than criminal liability) of a kind referred to in section 61(1)(a)
b: costs incurred by that director or employee in defending or settling any proceeding relating to that liability; or
c: costs incurred by that director, employee, or auditor in defending any criminal proceedings—
i: that have been brought against the director or employee in relation to any act or omission in his or her capacity as a director or employee; and
ii: in which he or she is acquitted.
2: The directors of the issuer who vote in favour of authorising the insurance under subsection (1)
3: The director or employee who is insured is personally liable to the issuer for the cost of effecting insurance if—
a: subsection (2)
b: reasonable grounds did not exist for the opinion set out in the certificate given under subsection (2)
4: However, subsection (3)
5: A certificate signed for the purposes of section 162(6) of the Companies Act 1993 subsection (2) section 162 of the Companies Act 1993
61C: Interpretation for
sections 61 to 61B In sections 61 to 61B director effect insurance employee indemnify
24: Registers to be kept by Registrar for purposes of this Act
1: Section 66(2) Sections 7 and 9 of the Companies Act 1955 sections 360, 361, and 363 of the Companies Act 1993 Sections 360, 361, and 363 of the Companies Act 1993
2: Section 66(2) those Acts that Act
25: Consequential amendments to
Securities Regulations 1983
1: The Securities Regulations 1983 manager regulation 2(1) manager section 2(1) of the Act .
2: The Securities Regulations 1983
a: revoking the definition of small employer superannuation scheme regulation 2(1)
b: revoking regulation 2C
c: omitting from clause 1(2) a small employer superannuation scheme (as defined in regulation 2C an employer superannuation scheme (as defined in section 5C of the Act
d: omitting from clause 1(2) However, some small superannuation schemes have been exempted from this requirement on the condition that this exemption is drawn to the attention of prospective members. However, employer superannuation schemes have been exempted from this requirement.
e: inserting in clause 1(2) important decisions about investments. However, every prospective member of this scheme has a right, under the Superannuation Schemes Act 1989


1: Title
1: This Act is the Personal Property Securities Amendment Act 2004.
2: In this Act, the Personal Property Securities Act 1999 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: How Act arranged
Section 5(1) Part 5
4: Part 5
1: The heading to section 9 goods or other collateral
2: Section 9 goods or other collateral
5: Interpretation
Section 16(1) regulations related company section 2(3) of the Companies Act 1993 .
6: New
section 17A The principal Act is amended by inserting, after section 17
17A: Subordinated trusts not security interests
For the avoidance of doubt, a beneficial interest in personal property held by a creditor (the senior creditor insolvent debtor
a: the personal property is property that has been distributed by the Official Assignee under the Insolvency Act 1967 Companies Act 1993 subordinated creditor
b: the beneficial interest was created or provided for under the terms of a security (as defined in section 2D of the Securities Act 1978
c: under those terms, the subordinated creditor must hold the personal property on trust for the senior creditor; and
d: the purpose of those terms is to postpone or subordinate the right of the subordinated creditor to the performance of all or any part of an obligation of the insolvent debtor to the right of the senior creditor to the performance of all or any part of another obligation of the insolvent debtor.
7: Meaning of knowledge
1: Section 19(1)
c: a government department knows or has knowledge of a fact in relation to a particular transaction when that fact has been brought to the attention of a senior employee of the government department with responsibility for the matters to which the fact relates, under circumstances in which a reasonable person would take cognisance of it.
2: Section 19
3: For the purposes of this section,— government department Part 1 of Schedule 1 of the Ombudsmen Act 1975 organisation
8: When Act does not apply
Section 23(c) except as provided in but without limiting the effect of
9: Rights or duties that apply to be exercised in good faith and in commercially reasonable manner
The heading to section 25 commercially reasonable manner accordance with reasonable standards of commercial practice
10: Temporary perfection of security interest in collateral moved to New Zealand in other cases
Section 28(1) by registration
11: Temporary perfection of security interest in negotiable instrument or investment security returned to debtor
Section 48(b) delivered gave possession of
12: Perfection where goods in hands of bailee
Section 50(c) bailee (being a person who is not the debtor)
13: Heading to
Part 5 The heading to Part 5 goods or other collateral
14: Secured party subrogated to rights of dealer against buyer or lessee
Section 65(1)(a) section 59 section 58
15: New
section 75A The principal Act is amended by inserting, before section 76
75A: Non-proceeds security interest in accounts receivable
1: A non-proceeds security interest in accounts receivable that is given for new value has priority over a purchase money security interest in the accounts receivable as proceeds of inventory if a financing statement relating to the security interest in the accounts receivable is registered before the purchase money security interest is perfected or a financing statement relating to it is registered.
2: In this section, non-proceeds security interest
3: Sections 73 to 75 Personal Property Security Act 1993, s 34(6), (7) (Saskatchewan) .
16: Lien has priority over perfected security interest relating to same goods
The heading to section 93 perfected
17: Priority of interests on assignment of account receivable or chattel paper
Section 102(1)(b) the assignor (including a defence by way of a right of set-off)
18: Execution creditor has priority over unperfected security interest
1: Section 103(1) who has seized in any
2: Section 103 subsection (1)
1A: In this section, time of execution
a: if the collateral is seized by an execution creditor or on an execution creditor's behalf, the time of seizure; or
b: in any other case, the time when a charging order or a garnishee order is made.
19: Contents of register
Section 140(d) or authorised
20: Data required to register financing statement
1: Section 142(e) or authorized
2: Section 142 subsection (2)
2: Subsection (1) section 149
21: When secured party to notify debtor about registration of financing statement
Section 148 financing change statement , or on whose behalf a financing statement or financing change statement has been registered,
22: New
section 169A The principal Act is amended by inserting, after section 169
169A: Restoration of registration
1: The Registrar may restore a registration if it appears to the Registrar that, due to a clerical error made by the Registrar, the registration has been incorrectly discharged or removed.
2: A registration restored under subsection (1)
23: New heading and
sections 170 170A The principal Act is amended by repealing the heading above section 170 and section 170 Removal of data from register and correction of errors or omissions
170: Removal of data from register
1: Data in a registration may be removed from the register—
a: when the registration is no longer effective; or
b: on the registration of a financing change statement discharging or partially discharging the registration; or
c: if the Registrar is satisfied that the data is frivolous or vexatious.
2: The Registrar must, before he or she makes a decision under subsection (1)(c)
3: If the secured party fails within 10 working days of the date on which the notice is given to show cause to the Registrar's satisfaction why the data is not frivolous or vexatious, the Registrar may, in the Registrar's discretion, remove the data from the register.
4: If data is removed from the register under subsection (1)(c)
5: The Court may make any other orders that it thinks proper for the purpose of giving effect to an order under subsection (4)
6: The Registrar must restore the data to the register in accordance with a court order made under subsection (4) Personal Property Security Act 1993, s 46 (New Brunswick)
170A: Correction of errors or omissions
The Registrar may, with the consent of the secured party, correct any clerical error or omission made by the Registrar in a registration.
24: Search criteria
Section 172(e) or authorised
25: Search purposes, etc
1: Section 173(c) subparagraph (ii)
iia: establishing whether to provide credit to, or to obtain a guarantee or an indemnity from, a related company of the company named in the search or of the company with an interest in the personal property described in the search: .
2: Section 173(c)
iv: establishing whether to invest in, with, or through, a related company of the company named in the search or of the company with an interest in the personal property described in the search: .
26: Secured party to provide certain information relating to security interest
Section 177(1)(c) personal property collateral
27: Certain other prior security interests deemed to be perfected during transitional period
Section 196 any other prior security interest every other prior security interest (if any)
28: Consequences of not perfecting certain security interests
Section 198 subsection (2)
2: If a prior security interest that is deemed to be an unperfected security interest under subsection (1)
29: Time of registration of certain prior security interests
Section 199(a) (b) time date


Securities Markets Amendment Act 2004

1: Title
1: This Act is the Securities Markets Amendment Act 2004.
2: In this Act, the Securities Markets Act 1988 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Interpretation
Section 2(1) company company section 2(1) of the Companies Act 1993 .
4: Meaning of relevant interest
Section 5(7) paragraphs (a) to (c)
a: the other body corporate is its holding company or subsidiary within the meaning of sections 5 and 6 of the Companies Act 1993
b: more than half of its issued shares (other than shares that carry no right to participate beyond a specified amount in a distribution of profits or capital) is held by the other body corporate and bodies corporate related to that other body corporate (whether directly or indirectly, but other than in a fiduciary capacity); or
c: more than half of the issued shares of each of them (other than shares that carry no right to participate beyond a specified amount in a distribution of profits or capital) is held by shareholders or members of the other (whether directly or indirectly, but other than in a fiduciary capacity); or .
5: Public issuers to maintain file of notices
Section 25(5) the Companies Act 1955
6: Public issuers to publish identity of substantial security holders
1: Section 26(1) shall, in a note accompanying its statement of financial position laid before the public issuer in general meeting, state— must send a note stating the following matters to each shareholder with the annual report sent under section 209 of the Companies Act 1993 section 210 of that Act
2: Section 26(1)(a) statement of financial position is laid before the public issuer in general meeting annual report is sent under section 209 of the Companies Act 1993 section 210 of that Act
7: Notice under this subpart not to affect incorporation of public issuer or constitute notice of trust
1: Section 27(1) paragraph (b)
2: Section 27(1)(c) sections limits
8: Obligations of public issuer where order made to forfeit shares
1: Section 33 subsections (1) (2)
2: Section 33(3) which is a company registered under the Companies Act 1993 that is a company
9: Exemptions granted by Commission
1: Section 48(1)(a) class of persons transaction, class of transactions, class of persons,
2: Section 48(1)(b) person or class of persons or any transaction or class of transactions


1: Title
1: This Act is the Superannuation Schemes Amendment Act 2004.
2: In this Act, the Superannuation Schemes Act 1989 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Annual reports
Section 14 subsection (3)
3: The trustees must send to the Government Actuary a copy of the completed report within 28 days after its completion, and, if only abridged accounts are contained in the report, a copy of the annual accounts.
4: New heading and
section 15A The principal Act is amended by inserting, after section 15 Prospective members' rights to information
15A: Prospective members' rights to information
1: Each person who is eligible to become a member of a registered superannuation scheme has the right, upon request,—
a: to look at, at any reasonable time, a copy of the trust deed, or a copy of any report of an actuarial examination required under section 15
b: to receive, upon payment of a reasonable fee, a copy of the trust deed or a copy of any of those reports:
c: to receive a statement of the specific interest, mortality, and other assumptions and bases of calculation applied in determining the value of the assets and liabilities of the scheme for the purposes of an actuarial examination required under section 15
d: to receive a copy of the annual accounts and any auditor' s report or, if that report is not required or produced, the certificates required by section 13(2)
2: Nothing in this section limits any provision in the Securities Act 1978
5: Members' rights to information
Section 17(1)(b)
v: to receive a copy of the annual accounts and any auditor's report or, if that report is not required or produced, the certificates required by section 13(2)
6: Receiver or liquidator to designate or appoint independent trustee if required
1: Section 20A subsection (1)
1: This section applies if a receiver has been appointed in respect of property of an employer or if a liquidator has been appointed for the employer and either—
a: the receiver or liquidator is designated or appointed as a trustee of a relevant superannuation scheme; or
b: before the appointment of the receiver or liquidator, the employer had the power to appoint a trustee of a relevant superannuation scheme.
1A: The receiver or liquidator must be satisfied that, at all times, at least 1 of the trustees of the relevant superannuation scheme is an independent person and, if the receiver or liquidator is not so satisfied, designate or appoint an independent person as trustee of the scheme.
1B: For the purposes of this section, a relevant superannuation scheme
a: to which the employer has contributed in respect of the employees of the employer who are members of the scheme; or
b: for which the employer has paid any of the administration costs in respect of the employees of the employer who are members of the scheme.
2: Section 20A(2) of subsection (1)
7: Winding up of registered schemes
1: Section 21(1)(b) shall must, within 5 months of the date on which the winding up takes effect,
2: Section 21(1)(c) shall must, within 5 months of the date on which the winding up takes effect,
3: Section 21(1)(d) shall, as soon as practicable must, within 28 days
4: Section 21 subsection (1)
1A: The Government Actuary may, by notice in writing to the trustees, extend the time period within which the trustees must comply with any of the requirements set out in subsection (1)(b) to (d)
8: Offences
1: Section 25(1) paragraph (a)
ab: to allow a person to look at a document or report or copy; or .
2: Section 25 subsection (1)
1A: For the purposes of sections 15A, 16, 17, and 21(2)
a: requests must be made to the trustees of the registered superannuation scheme to which the request relates; and
b: if a person has a right to look at a document, report, or copy, the trustees of the registered superannuation scheme to which the document, report, or copy relates have a duty to ensure that the person is allowed to look at, at any reasonable time, that document, report, or copy; and
c: if a person has a right to receive a document, statement, report, copy, certificate, or information, the trustees of the registered superannuation scheme to which the document, statement, report, copy, certificate, or information relates have a duty to ensure that the document, statement, report, copy, certificate, or information is delivered or supplied to the person; and
d: if a person has a right to be advised of certain information, the trustees of the registered superannuation scheme to which the information relates have a duty to ensure that the information is supplied to the person.
3: Section 25(2) paragraph (a)
ab: fails to designate or appoint an independent trustee, if required to do so under section 20A(1A) .
9: Schedule 2
1: Schedule 2 paragraph (a)
1: The following matters must be specified in the annual report: .
2: Schedule 2 paragraphs (b) (c)
b: the annual accounts of the scheme or, if the auditor's report in respect of the annual accounts is unqualified and the trustees so wish, abridged annual accounts of the scheme in respect of the financial year:
c: if the annual accounts are included in the annual report, the auditor's report on the annual accounts or, if an auditor's report is not required, the certificates required by section 13(2) .
3: Paragraph (f) exceeded equalled or
4: Schedule 2
l: the names of, and any changes to, the directors of any corporate trustee since the last annual report:
m: if any of the benefits payable from the scheme are based on the investment return of scheme assets, a statement of the crediting rate or rates applied during the year:
n: the registration date of the most recent prospectus for the scheme if a prospectus is required by the Securities Act 1978
5: Schedule 2
2: Abridged accounts included in the annual report must—
a: be prepared in accordance with generally accepted accounting practice, as defined in section 3 of the Financial Reporting Act 1993
b: include a report by the auditor of the scheme that the abridged annual accounts have been correctly extracted from the annual accounts and that, in the opinion of the auditor, the information reported in the financial summary is consistent in all material respects with the annual accounts:
c: if the annual accounts have not been audited because section 13(2)
d: contain a statement that they are an abridged version of the annual accounts:
e: contain a statement advising where the member can obtain, at no charge, a copy of the annual accounts.


Unit Trusts Amendment Act 2004

1: Title
1: This Act is the Unit Trusts Amendment Act 2004.
2: In this Act, the Unit Trusts Act 1960 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Restriction as to manager
Section 4
5: A bond given under subsection (2)
4: Accounts, etc, to be filed
Section 20 subsection (1)
5: Offences
1: Section 25(1)
a: by omitting the expression $1,000 $1,000,000
b: by omitting from paragraph (b) issues any form of application for an interest in a unit trust in contravention of subsection (2) of section 7 of this Act
2: Section 25(2)
a: by omitting the expression $200 $10,000
b: by omitting the expression 13,
3: Section 25(3) $200 $200,000