Insolvency Practitioners Regulation (Amendments) Act 2019

1: Title
This Act is the Insolvency Practitioners Regulation (Amendments) Act 2019.
2: Commencement
1: Section 56
2: The rest of this Act comes into force on a date appointed by the Governor-General by Order in Council, and 1 or more Orders in Council may be made bringing different provisions into force on different dates.
3: Any provision that is not earlier brought into force under subsection (2) comes into force on 1 June 2021 Section 2(2) brought into force 1 September 2020 clause 2 Insolvency Practitioners Regulation (Amendments) Act Commencement Order 2020 Section 2(3) amended 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
1: Amendments to Companies Act 1993
3: Principal Act amended
This Part amends the Companies Act 1993 2019-06-18 Companies Act 1993 Section 56 (see section 2(1)) OIC LI 2020/145 2020-09-01 Companies Act 1993 The remainder of this Act. (If not brought into force earlier by OIC — see section 2(2) and (3)).
1: Amendments to principal Act
Amendment to Part 1 (Preliminary)
4: Interpretation
Section 2(1) insolvency practitioner section 5(1) of the Insolvency Practitioners Regulation Act 2019 licensed insolvency practitioner section 5(1) of the Insolvency Practitioners Regulation Act 2019 prohibition order Amendments to Part 15A (Voluntary administration)
5: New sections 239F and 239G substituted
Sections 239F 239G
239F: Who may be appointed as administrator
1: A person may be appointed as an administrator of a company if the person—
a: is a licensed insolvency practitioner who is permitted to act as an administrator of the company under the Insolvency Practitioners Regulation Act 2019
b: is not disqualified under subsection (2).
2: Unless the court orders otherwise, a person is disqualified from appointment as an administrator of a company if the person would be disqualified from appointment as a liquidator of that company under section 280(2)
3: For the purpose of subsection (2),—
a: in section 280
i: a reference to the commencement of the liquidation must be read as if it were a reference to the commencement of the administration:
ii: a reference to a company must be read as if it were a reference to the company in administration; and
b: section 280(4)﻿(c)
4: A person commits an offence, and is liable on conviction to the penalty set out in section 373(2), if—
a: the person knows or ought reasonably to know that they are disqualified under subsection (2); and
b: the person,—
i: with their consent, is appointed as an administrator; or
ii: acts as an administrator.
5: See also section 8(2) of the Insolvency Practitioners Regulation Act 2019
239G: What administrator must do before appointment
1: A person must not be appointed as the administrator of a company unless the person has—
a: consented in writing and has not withdrawn the consent at the time of appointment; and
b: certified in writing that the person—
i: is a licensed insolvency practitioner; and
ii: is permitted to act as an administrator of the company under the Insolvency Practitioners Regulation Act 2019
iii: is not disqualified from appointment under section 239F(2)
2: A person who, with their consent, is appointed as an administrator despite failing to certify the matters set out in subsection (1)﻿(b) commits an offence and is liable on conviction to the penalty set out in section 373(2).
3: The acts of a person as an administrator are valid even if the person does not meet the requirements of section 239F(1)
6: Who may appoint administrator
1: Section 239H(2)﻿(c) disqualified disqualified from appointment under section 239F(2)
2: Section 239H is amended by adding the following subsection:
3: The appointment of a replacement administrator by a company must be made by a resolution of the board of the company.
7: When office of administrator is vacant
1: Section 239P
a: resigns in accordance with section 239Q; or
2: Section 239P ; or
e: ceases to be a licensed insolvency practitioner who is permitted to act as an administrator of the company in accordance with the Insolvency Practitioners Regulation Act 2019
8: Removal of administrator
1: Section 239R(2)﻿(a) another person who is not disqualified a person who is permitted to act as an administrator of the company in accordance with section 239F(1)
2: Section 239R(2)
b: the person named in the resolution as the new administrator has, before the resolution is considered, tabled at the meeting—
i: the written consent and certificate required under section 239G; and
ii: an interests statement that complies with section 239APA.
3: Section 239R
3: A person who, with the person’s consent, is appointed as a replacement administrator under subsection (2) but who has not tabled an interests statement that complies with section 239APA
9: Section 239S repealed
Section 239S
10: New section 239TA inserted
The following section is inserted after section 239T
239TA: Provision of information and assistance to replacement administrator
1: This section applies if a replacement administrator is appointed.
2: The previous administrator must, where practicable, provide to the replacement administrator the information that the previous administrator has in their possession or under their control and that the replacement administrator reasonably requires to carry out the functions and duties of administrator.
3: The information referred to in subsection (2) includes—
a: the records and other documents of the company:
b: any information necessary to provide the replacement administrator with control over the property of the company:
c: any information relating to claims:
d: accounting records and other documents of the administration.
4: The previous administrator must, where practicable, provide to the replacement administrator any assistance that the replacement administrator reasonably requires to carry out the functions and duties of administrator.
5: A person who fails to comply with subsection (2) or (4) commits an offence and is liable on conviction to the penalty set out in section 373(2).
11: Section 239AI repealed
Section 239AI
12: Power of court where outcome of voting at creditors’ meeting determined by related entity
1: Section 239AM Related creditor’s vote disregarded unless court orders otherwise
2: Section 239AM
1: The administrator must disregard a related creditor’s vote on a resolution at the creditors’ meeting unless the court orders otherwise.
2: A related creditor may apply to the court for an order that its vote be taken into account.
2A: A related creditor that intends to apply for an order must,—
a: before a vote is taken on the resolution, give notice in writing to the administrator that the creditor—
i: is a related creditor; and
ii: intends to apply to the court for an order that its vote be taken into account; and
b: within 10 working days of the creditors’ meeting, make an application to the court.
2B: The court may order that a related creditor’s vote be taken into account only if satisfied that ordering that the applicant’s vote (or the applicants’ votes) be taken into account—
a: is not contrary to the interests of the creditors, or a class of creditors, as a whole; and
b: will not prejudice, and is not reasonably likely to prejudice, the interests of the creditors who voted against the resolution or for it, as the case may be, to an extent that is unreasonable having regard to—
i: the benefits accruing to the applicant (or the applicants), or to some or all of the related creditors, from the resolution or from the failure to pass the resolution; and
ii: the nature of the relationship between the applicant (or the applicants) and the company, or between the related creditors and the company; and
iii: any other relevant matter.
3: Section 239AM(3) and sections 239AMA to 239AMC this section
13: New sections 239AMA to 239AMC inserted
The following sections are inserted after section 239AM
239AMA: Creditor’s vote disregarded if administrator considers creditor is related creditor
1: If the administrator considers that a creditor that votes on a resolution at a creditors’ meeting is a related creditor, and the creditor has not given notice under section 239AM(2A)
a: disregard the creditor’s vote; and
b: give notice in writing to the creditor stating the reasons for the administrator’s view.
2: The court may, on the application of the creditor, order that the creditor’s vote be taken into account if satisfied that the creditor is not a related creditor.
3: The creditor must make any application under this section to the court within 10 working days of receiving the notice.
239AMB: Further powers where court orders creditor’s vote be taken into account
1: If the court orders, under section 239AM or 239AMA
a: order that the resolution be set aside or treated as having passed:
b: order that a new meeting be held to consider and vote on the resolution:
c: order that the creditor’s vote on a resolution to vary or amend the resolution be taken into account:
d: make any other orders that the court thinks necessary.
2: Despite any application under section 239AM or 239AMA
239AMC: Power of court where outcome of voting at creditors’ meeting determined by related creditor
1: This section applies in relation to a resolution at a creditors’ meeting if,—
a: after the meeting, the administrator becomes aware that a creditor that voted on the resolution is a related creditor; and
b: the administrator is satisfied that,—
i: in accordance with section 239AM or 239AMA
ii: the resolution would not have been passed, defeated, or required to be decided by a casting vote (as the case may be) if the vote cast by the related creditor (or, if there is more than 1 related creditor, the votes cast by the related creditors) had been disregarded.
2: Despite sections 239AM(1) and 239AMA(1)
3: The administrator must, as soon as practicable after becoming aware that this section applies to the resolution, give notice of that fact to every known creditor.
4: The court may, on the application of the administrator or a creditor,—
a: order that the resolution be set aside or treated as having passed:
b: order that a new meeting be held to consider and vote on the resolution:
c: order that a specified related creditor or creditors must not vote on the resolution or on a resolution to vary or amend it:
d: make any other orders that the court thinks necessary.
5: An administrator who fails to comply with subsection (3) commits an offence and is liable on conviction to the penalty set out in section 373(2).
14: New sections 239AP and 239APA substituted
Section 239AP
239AP: Administrator must table documents at first creditors' meeting
1: The administrator must table at the first creditors' meeting—
a: the written consent and certificate required under section 239G
b: an interests statement that complies with section 239APA
c: a notice stating that administrators are required to be licensed, and that more information about the regulation of insolvency practitioners is available from the Registrar.
2: A person who fails to comply with subsection (1)﻿(a), (b), or (c) commits an offence and is liable on conviction to the penalty set out in section 373(2).
239APA: Requirements for interests statement
1: This section sets out the requirements for the interests statement referred to in sections 239R(2)﻿(b)﻿(ii) 239AP(1)﻿(b) 239AU(3)﻿(aa) 239ACZA(1)
2: The interests statement must disclose—
a: any circumstance, relationship, or other fact that creates, or could reasonably be perceived as creating, a conflict of interest for the insolvency practitioner in relation to the independence of the insolvency practitioner’s role as the administrator, including anything that would, but for a court order to the contrary, have disqualified the person—
i: from being appointed as or acting as the administrator ( see section 239F(2)
ii: from being a licensed insolvency practitioner; and
b: the nature of any actual or perceived conflict of interest created by that circumstance, relationship, or other fact; and
c: how the insolvency practitioner intends to manage any actual or perceived conflict of interest.
3: In preparing an interests statement for the purposes of section 239R(2)﻿(b)﻿(ii) 239AP(1)﻿(b)
4: In preparing an interests statement for the purposes of section 239AU(3)﻿(aa) 239ACZA(1) subsection (2)
5: The interests statement must be in writing and be dated and signed by the insolvency practitioner.
15: Notice of watershed meeting
1: Section 239AU(1)﻿(b) section 3(1)﻿(b) section 3(1)﻿(a)
2: Section 239AU(3)
aa: an updated interests statement that complies with section 239APA
3: Section 239AU
4: The updated interests statement may be in the form of a statement to be read in conjunction with previous interests statements and updates.
16: Former administrator is default liquidator
1: Section 239ABY
b: the person nominated—
i: is disqualified from acting as a liquidator under section 280(2)
ii: has not satisfied the requirements of section 282
iii: is not a licensed insolvency practitioner who is permitted to act as a liquidator of the company in accordance with the Insolvency Practitioners Regulation Act 2019
2: Section 239ABY
2: However, the former administrator must appoint another person as the liquidator if the former administrator is disqualified from acting as a liquidator or is not a licensed insolvency practitioner who is permitted to act as a liquidator of the company in accordance with the Insolvency Practitioners Regulation Act 2019
17: New section 239ABYA inserted
The following section is inserted after section 239ABY
239ABYA: Provision of information and assistance to liquidator
1: This section applies if a person was acting as an administrator of a company before the appointment of a liquidator to the company.
2: The administrator must, where practicable, provide to the liquidator the information that the administrator has in their possession or under their control and that the liquidator reasonably requires to carry out the functions and duties of liquidator.
3: The information referred to in subsection (2) includes—
a: the records and other documents of the company:
b: any information necessary to provide the liquidator with control over the property of the company:
c: any information relating to claims:
d: accounting records and other documents of the administration.
4: The administrator must, where practicable, provide to the liquidator any assistance that the liquidator reasonably requires to carry out the functions and duties of liquidator.
5: A person who fails to comply with subsection (2) or (4) commits an offence and is liable on conviction to the penalty set out in section 373(2).
18: Voidable transactions
1: The heading to section 239ACB and voidable dispositions
2: Section 239ACB(1) The voidable transaction provisions do not apply to a transaction by a company in administration if the transaction is The voidable transaction and voidable disposition provisions do not apply to a transaction or disposition by a company in administration if the transaction or disposition is
3: Section 239ACB
2: In this section, voidable transaction and voidable disposition provisions 296D
19: New sections 239ACD to 239ACEA substituted
Sections 239ACD 239ACE
239ACD: Who may be appointed as deed administrator
1: A person may be appointed as a deed administrator of a company if the person—
a: is a licensed insolvency practitioner who is permitted to act as a deed administrator of the company under the Insolvency Practitioners Regulation Act 2019
b: is not disqualified under subsection (2).
2: Unless the court orders otherwise, a person is disqualified from appointment as a deed administrator of a company if the person would be disqualified from appointment as a liquidator of that company under section 280(2)
3: For the purpose of subsection (2),—
a: in section 280
i: a reference to the commencement of the liquidation must be read as if it were a reference to the execution of the deed of company arrangement:
ii: a reference to a company must be read as if it were a reference to the company under a deed of company arrangement; and
b: section 280(4)﻿(c)
4: A person commits an offence, and is liable on conviction to the penalty set out in section 373(2), if—
a: the person knows or ought reasonably to know that they are disqualified under subsection (2); and
b: the person,—
i: with their consent, is appointed as a deed administrator; or
ii: acts as a deed administrator.
5: See also section 8(2) of the Insolvency Practitioners Regulation Act 2019
239ACE: What deed administrator must do before appointment
1: A person must not be appointed as a deed administrator of a company unless the person has—
a: consented in writing and has not withdrawn the consent at the time when the deed of company arrangement is executed; and
b: certified in writing that the person—
i: is a licensed insolvency practitioner; and
ii: is permitted to act as a deed administrator of the company under the Insolvency Practitioners Regulation Act 2019
iii: is not disqualified from appointment under section 239ACD(2)
c: tabled at the watershed meeting (or, if section 239ACP applies, circulated to creditors with the draft deed under that section)—
i: the written consent and certificate required under paragraphs (a) and (b); and
ii: an interests statement that complies with section 239ACEA
2: A person commits an offence, and is liable on conviction to the penalty set out in section 373(2), if—
a: the person, with their consent, is appointed as a deed administrator despite failing to certify the matters set out in subsection (1)﻿(b); or
b: the person fails to comply with subsection (1)﻿(c).
3: The acts of a person as a deed administrator are valid even if the person does not meet the requirements of section 239ACD(1)
239ACEA: Requirements for interests statement
1: This section sets out the requirements for the interests statement referred to in section 239ACE(1)﻿(c)﻿(ii)
2: The interests statement must disclose—
a: any circumstance, relationship, or other fact that creates, or could reasonably be perceived as creating, a conflict of interest for the insolvency practitioner in relation to the independence of the insolvency practitioner’s role as a deed administrator, including anything that would, but for a court order to the contrary, have disqualified the person—
i: from being appointed as or acting as a deed administrator ( see section 239ACD(2)
ii: from being a licensed insolvency practitioner; and
b: the nature of any actual or perceived conflict of interest created by a circumstance, relationship, or other fact; and
c: how the insolvency practitioner intends to manage any actual or perceived conflict of interest.
3: In preparing the interests statement, the insolvency practitioner must make any inquiries that are reasonably necessary for ensuring that the interests statement is complete.
4: The interests statement must be in writing and be dated and signed by the insolvency practitioner.
20: When office of deed administrator vacant
1: Section 239ACH
a: resigns in accordance with section 239ACI; or
ab: dies; or
2: Section 239ACH ; or
d: ceases to be a licensed insolvency practitioner who is permitted to act as a deed administrator of the company in accordance with the Insolvency Practitioners Regulation Act 2019
21: New section 239ACJA inserted
The following section is inserted after section 239ACJ
239ACJA: Provision of information and assistance to replacement deed administrator
1: This section applies if a replacement deed administrator is appointed.
2: The previous deed administrator must, where practicable, provide to the replacement deed administrator the information that the previous deed administrator has in their possession or under their control and that the replacement deed administrator reasonably requires to carry out the functions and duties of deed administrator.
3: The information referred to in subsection (2) includes—
a: the records and other documents of the company:
b: any information necessary to provide the replacement deed administrator with control over the property of the company (to the extent permitted by the deed):
c: any information relating to claims:
d: accounting records and other documents of the administration of the deed of company arrangement.
4: The previous deed administrator must, where practicable, provide to the replacement deed administrator any assistance that the replacement deed administrator reasonably requires to carry out the functions and duties of deed administrator.
5: A person who fails to comply with subsection (2) or (4) commits an offence and is liable on conviction to the penalty set out in section 373(2).
22: Heading to subpart 14 of Part 15A amended
The heading to subpart 14 and summary reports
23: Administrator must file accounts
Section 239ACZ
4: A person who fails to comply with this section commits an offence and is liable on conviction to the penalty set out in section 373(2).
24: New sections 239ACZA and 239ACZB inserted
The following sections are inserted after section 239ACZ
239ACZA: Administrator must file updates to interests statement
1: An administrator must, within 20 working days after the end of each period of 6 months following the date on which the administrator was appointed, prepare and send to every known creditor an updated interests statement that complies with section 239APA
2: The updated interests statement may be in the form of a statement to be read in conjunction with previous interests statements and updates.
3: A person who fails to comply with this section commits an offence and is liable on conviction to the penalty set out in section 373(2).
239ACZB: Administrator must file summary report
1: This section applies to—
a: a person who is the administrator at the end of an administration; and
b: a person who is the deed administrator on the termination of a deed of company arrangement.
2: As soon as practicable after completing his or her duties in relation to the administration or deed of company arrangement (as the case may be), the person must provide to the Registrar, in the manner specified by the Registrar, a summary report.
3: The summary report must contain the prescribed information.
4: A person who fails to comply with this section commits an offence and is liable on conviction to the penalty set out in section 373(2).
25: New section 239ADUA inserted
The following section is inserted after section 239ADU
239ADUA: Meaning of failure to comply
1: In section 239ADV, failure to comply
2: In proceedings under section 239ADV,—
a: a finding of any fact made in proceedings before the District Court or High Court for an offence under this Act or any other enactment that there was a failure to comply is prima facie evidence of that fact:
b: a finding described in paragraph (a) may be proved by production of a document under the seal of the court in which the finding was made. 1986 No 121 s 46
26: Prohibition order
1: Section 239ADV
3: A person to whom a prohibition order applies—
a: must not act (or continue to act) as an insolvency practitioner; and
b: must be treated as if they are not a licensed insolvency practitioner ( see section 8 of the Insolvency Practitioners Regulation Act 2019
2: Section 239ADV(4) or deed administrator of a company in administration of a company in administration, or a past or current deed administrator of a company under a deed of company arrangement,
3: Section 239ADV
5: A copy of every order made under subsection (1) must be delivered by the applicant to the Registrar before the end of the working day after the day on which the order was made.
6: The Registrar must provide a copy of the order to each accredited body (within the meaning of the Insolvency Practitioners Regulation Act 2019
27: Administrator must give notice of appointment
Section 239ADW
3: A notice of appointment must identify who made the appointment and, if the administrator was appointed by the court, who applied to the court for the appointment.
28: New section 239ADWA inserted
The following section is inserted after section 239ADW
239ADWA: Deed administrator must give notice of appointment
1: This section applies if the creditors at the watershed meeting, by resolution, appoint a person other than the administrator of the company to be the deed administrator.
2: The deed administrator must,—
a: before the end of the next working day after appointment, lodge a notice of appointment with the Registrar; and
b: not later than 5 working days after appointment, advertise the appointment in accordance with section 3(1)﻿(a).
3: A notice of appointment must state that the appointment was made by the creditors at the watershed meeting. Amendments to Part 16 (Liquidations)
29: Interpretation
1: Section 240(1) liquidator
2: Paragraph (a) of the definition of creditor section 240(1) and 289 280
30: Liquidation of associations
Section 240B
2: The Insolvency Practitioners Regulation Act 2019
31: New section 241AA substituted
Section 241AA
241AA: Restriction on appointment of liquidator by shareholders or board after application for court appointment served on company
1: This section applies if an application for the appointment of a liquidator under section 241(2)﻿(c) has been filed and served on the company.
2: A liquidator may be appointed under section 241(2)﻿(a) or (b) only if—
a: the liquidator is appointed within 10 working days after the application is served on the company; or
b: if the application is made under section 241(2)﻿(c)﻿(iv), the creditor who filed the application consents to the appointment under section 241(2)﻿(a) or (b).
3: This section ceases to apply from the time that the court disposes of the application.
32: Liquidator to summon meeting of creditors
1: Section 243(2)﻿(a) report and notice report, interests statement, and notices
2: Section 243
8: Nothing in this section applies if section 243A
33: New section 243A inserted
The following section is inserted after section 243
243A: Directors’ declaration that debts will be paid within 12 months
1: This section applies to a company if—
a: a liquidator is appointed under section 241(2)﻿(a) or (b); and
b: before the appointment of the liquidator, a copy of a declaration described in this section is made by a majority of the company’s directors and delivered to the Registrar for registration.
2: The declaration must—
a: be to the effect that the directors have made an inquiry into the affairs of the company and have formed the opinion, on reasonable grounds, that the company will be able to pay its debts in full within a period of not more than 12 months after the appointment of the liquidator; and
b: be in writing; and
c: be made within 20 working days before the appointment of the liquidator; and
d: include a statement of the affairs of the company that contains the prescribed information and shows, as at the latest practicable date before the making of the declaration,—
i: the property of the company, and the total amount expected to be realised from that property; and
ii: the liabilities of the company; and
iii: the estimated expenses of the liquidation.
3: A director who makes a declaration under this section without having reasonable grounds for their opinion that the company will be able to pay or otherwise provide for its debts within the period stated in the declaration commits an offence and is liable on conviction to the penalty set out in section 373(2).
4: If, at any time, the liquidator considers, or has reasonable grounds to consider, that the company will not be able to pay or otherwise provide for its debts in full within the period stated in the declaration,—
a: this section ceases to apply to the company; and
b: the liquidator must, as soon as practicable, notify the Registrar that this section no longer applies to the company.
5: A liquidator who fails to comply with subsection (4)﻿(b) commits an offence and is liable on conviction to the penalty set out in section 373(2).
6: The fact that this section ceases to apply to a company does not limit or affect subsection (3).
34: New section 244 substituted
Section 244
244: Liquidator to summon meeting of creditors in other cases
1: Despite section 243(8) section 243A
a: the liquidator is satisfied that the directors who made the declaration described in section 243A
b: section 243A
2: If, as a consequence of section 243A
3: The provisions of section 243 apply, with any necessary modifications, in relation to the meeting of creditors.
4: This section is subject to section 245.
35: Liquidator may dispense with meetings of creditors
Section 245(2) report and notice report, interests statement, and notices
36: Power of court where outcome of voting at meeting of creditors determined by related entity
1: Section 245A Related creditor’s vote at meeting of creditors to be disregarded unless court orders otherwise
2: Section 245A
1: The liquidator must disregard a related creditor’s vote on a resolution at the meeting of creditors unless the court orders otherwise.
2: A related creditor may apply to the court for an order that its vote be taken into account.
2A: A related creditor that intends to apply for an order must,—
a: before a vote is taken on the resolution, give notice in writing to the liquidator that the creditor—
i: is a related creditor; and
ii: intends to apply to the court for an order that its vote be taken into account; and
b: within 10 working days of the meeting of creditors, make an application to the court.
2B: The court may make an order that a related creditor’s vote be taken into account only if satisfied that ordering that the applicant’s vote (or the applicants’ votes) be taken into account—
a: is not contrary to the interests of the creditors, or a class of creditors, as a whole; and
b: will not prejudice, and is not reasonably likely to prejudice, the interests of the creditors who voted against the resolution or for it, as the case may be, to an extent that is unreasonable having regard to—
i: the benefits accruing to the applicant (or the applicants), or to some or all of the related creditors, from the resolution or from the failure to pass the resolution; and
ii: the nature of the relationship between the applicant (or the applicants) and the company, or between the related creditors and the company; and
iii: any other relevant matter.
3: Section 245A(3) and sections 245B to 245D this section
37: New sections 245B to 245D inserted
The following sections are inserted after section 245A
245B: Creditor’s vote disregarded if liquidator considers creditor is related creditor
1: If the liquidator considers that a creditor that votes on a resolution at a meeting of creditors is a related creditor, and the creditor has not given notice under section 245A(2A)
a: disregard the creditor’s vote; and
b: give notice in writing to the creditor stating the reasons for the liquidator’s view.
2: The court may, on the application of the creditor, order that the creditor’s vote be taken into account if satisfied that the creditor is not a related creditor.
3: The creditor must make any application under this section to the court within 10 working days of receiving the notice.
245C: Further powers where court orders creditor’s vote be taken into account
1: If the court orders, under section 245A or 245B
a: order that the resolution be set aside or treated as having passed:
b: order that a new meeting be held to consider and vote on the resolution:
c: order that the creditor’s vote on a resolution to vary or amend the resolution be taken into account:
d: make any other orders that the court thinks necessary.
2: Despite any application under section 245A or 245B
245D: Power of court where outcome of voting at meeting of creditors determined by related creditor
1: This section applies in relation to a resolution at a meeting of creditors if,—
a: after the meeting, the liquidator becomes aware that a creditor that voted on the resolution is a related creditor; and
b: the liquidator is satisfied that,—
i: in accordance with section 245A or 245B
ii: the resolution would not have been passed, defeated, or required to be decided by a casting vote (as the case may be) if the vote cast by the related creditor (or, if there is more than 1 related creditor, the votes cast by the related creditors) had been disregarded.
2: Despite sections 245A(1) and 245B(1)
3: The liquidator must, as soon as practicable after becoming aware that this section applies to the resolution, give notice of that fact to every known creditor.
4: The court may, on the application of the liquidator or a creditor,—
a: order that the resolution be set aside or treated as having passed:
b: order that a new meeting be held to consider and vote on the resolution:
c: order that a specified related creditor or creditors must not vote on the resolution or on a resolution to vary or amend it:
d: make any other orders that the court thinks necessary.
5: A liquidator who fails to comply with subsection (3) commits an offence and is liable on conviction to the penalty set out in section 373(2).
38: Other duties of liquidator
1: Section 255(2)﻿(a)﻿(i) , specifying who made the appointment ( see liquidator's appointment
2: Section 255(2)
b: before the end of the next working day after appointment, deliver to the Registrar for registration a notice of the liquidator’s appointment; and
3: Section 255(2)﻿(c)
i: prepare a list of every known creditor of the company and, if known, each creditor's address for communications (which may be an electronic address); and
4: Section 255(2)﻿(c)﻿(ii)
A: an initial report containing the prescribed information; and
5: Section 255(2)﻿(c)﻿(ii)
C: an interests statement that complies with section 255A
D: a notice stating that liquidators of insolvent companies are required to be licensed insolvency practitioners, and that more information about the regulation of insolvency practitioners is available from the Registrar; and
6: Section 255(2)
d: within 20 working days after the end of each period of 6 months following the date of commencement of the liquidation, prepare and send to every known creditor and every shareholder, and to the Registrar for registration,—
i: a report on the liquidation containing the prescribed information; and
ii: an updated interests statement that complies with section 255A
7: Section 255
3A: A person who fails to comply with subsection (2)﻿(c) or (d) commits an offence and is liable on conviction to the penalty set out in section 373(2).
3B: Subsection (2)﻿(c)﻿(ii)﻿(C) and (D) does not apply to an Official Assignee.
8: Section 255(4)
a: exempt the liquidator from compliance with subsection (2)﻿(c) or (d); or
39: New section 255A inserted
The following section is inserted after section 255
255A: Requirements for interests statement
1: This section sets out the requirements for the interests statement referred to in section 255(2)﻿(c)﻿(ii)﻿(C) and (d)﻿(ii)
2: The interests statement must disclose—
a: any circumstance, relationship, or other fact that creates, or could reasonably be perceived as creating, a conflict of interest for the insolvency practitioner in relation to the independence of the insolvency practitioner’s role as the liquidator, including anything that would, but for a court order to the contrary, have disqualified the person—
i: from being appointed as or acting as the liquidator ( see section 280(2)
ii: from being a licensed insolvency practitioner; and
b: the nature of any actual or perceived conflict of interest created by that circumstance, relationship, or other fact; and
c: how the insolvency practitioner intends to manage any actual or perceived conflict of interest.
3: In preparing an interests statement for the purposes of section 255(2)﻿(c)﻿(ii)﻿(C)
4: In preparing an interests statement for the purposes of section 255(2)﻿(d)﻿(ii) subsection (2)
5: The interests statement must be in writing and be dated and signed by the insolvency practitioner.
40: New section 256 substituted
Section 256
256: Duties in relation to records
1: The liquidator of a company must—
a: keep accounting records and other documents of the liquidation and permit those records, and the records and other documents of the company, to be inspected by—
i: any liquidation committee appointed under section 314, unless the liquidator believes on reasonable grounds that inspection would be prejudicial to the liquidation; and
ii: if the court so orders, a creditor or shareholder; and
b: keep the accounting records and other documents of the liquidation, and the records and other documents of the company, for not less than 6 years after completion of the liquidation (or any longer period specified in a notice referred to in subsection (3)).
2: The Registrar may, before or after the completion of the liquidation, require any records and documents to be retained for longer than 6 years after the completion of the liquidation.
3: The Registrar must give notice of a requirement under subsection (2) on an Internet site maintained by or on behalf of the Registrar.
4: A person who fails to comply with subsection (1) commits an offence and is liable on conviction to the penalty set out in section 373(2).
41: New section 256A inserted
The following section is inserted after section 256
256A: Duties in relation to company money
1: A liquidator must deposit the money of a company under his or her administration at a registered bank and in—
a: a bank account to the credit of the company; or
b: a general or separate trust account.
2: However, the liquidator may invest, in financial products issued by a registered bank, in a public security, or in any other financial products as authorised by the court, any amount of the company’s money that is—
a: in the bank account or trust account; and
b: not required for the time being to meet claims made against the company.
3: All dividends, interest, and other profits from an investment described in subsection (2) must, as soon as practicable after they are received, be paid into the bank account or trust account.
4: Money that is deposited in a trust account under subsection (1)﻿(b) must be held by the liquidator on trust for the benefit of the persons legally entitled to that money.
5: A person who fails to comply with this section commits an offence and is liable on conviction to the penalty set out in section 373(3).
6: In this section, public security
7: This section does not limit section 260.
42: Duties in relation to final report and accounts
1: Section 257(1)﻿(a)
i: a final report containing the prescribed information; and
2: Section 257(1)
c: provide to the Registrar, in the manner specified by the Registrar, a summary report that contains the prescribed information.
3: Section 257
3: A person who fails to comply with subsection (1) commits an offence and is liable on conviction to the penalty set out in section 373(2).
43: Sections 258A and 258B repealed
Sections 258A 258B
44: Restriction on enforcement of lien over documents
Section 263(3)﻿(a)
a: section 243A
45: Heading above section 280 amended
The heading above section 280 Qualifications Appointment
46: New section 280 substituted
Section 280
280: Who may be appointed as liquidator
1: A person may be appointed as a liquidator of a company if the person is—
a: a licensed insolvency practitioner (or, if section 243A section 68(1) of the Insolvency Practitioners Regulation Act 2019
b: permitted to act as a liquidator of the company under the Insolvency Practitioners Regulation Act 2019
c: not disqualified under subsection (2).
2: Unless the court orders otherwise, the following persons are disqualified from being appointed or acting as a liquidator of a company:
a: a creditor of the company:
b: a person who has, within the 2 years immediately before the commencement of the liquidation, been a director, an auditor, or a receiver of the company or of a related company:
c: a person who has, within the 2 years immediately before the commencement of the liquidation, been a director of a creditor of the company:
d: a person who has, or who has had, within the 2 years immediately before the commencement of the liquidation,—
i: a direct interest in a share issued by the company; or
ii: an interest, direct or indirect, in 5% or more of any class of shares issued by a creditor of the company (but only if the person is aware that they have the interest):
e: a person who has—
i: a direct interest in a share issued by a related company of the company; or
ii: an indirect interest in 5% or more of any class of shares issued by a related company of the company:
f: if an instrument confers a power to appoint a receiver of any assets of the company, a person who is disqualified by the instrument from acting as the receiver of any assets of the company:
g: a person who is a relative of a person described in any of paragraphs (a) to (f):
h: a person who has, or whose firm has, within the 2 years immediately before the commencement of the liquidation,—
i: provided professional services to the company; or
ii: had a continuing business relationship with the company, its majority shareholder, or any of its directors, or with any of the company’s shareholders that (under its constitution or any other agreement) have a power to appoint or remove a director of the company:
i: a person to whom a prohibition order applies.
3: For the purpose of subsection (2)﻿(c), each of the following is a director of a creditor of a company
a: if the creditor is a company, a person occupying the position of a director of the company, by whatever name called:
b: if the creditor is a limited partnership, a general partner (within the meaning of the Limited Partnerships Act 2008):
c: if the creditor is a partnership other than a limited partnership, a partner:
d: if the creditor is any other body corporate or unincorporated body, a person occupying a position in the body that is comparable with that of a director of a company.
4: A person is not disqualified under subsection (2)﻿(h)—
a: if the professional services are provided, or the relationship arises, by reason only of the appointment of the person, or of the person’s firm,—
i: by, or at the instigation of, the company or a creditor or other party that has an actual or potential financial interest in the company; and
ii: to investigate or to advise on the solvency of the company or to monitor the affairs of the company; or
b: if all the creditors consent to the appointment of the person; or
c: if section 243A
5: If subsection (4)﻿(a) applies, subsection (2)﻿(a) or (c) does not disqualify a person merely because the person is (or was) a creditor, or a director of a creditor, of the company as a consequence of the appointment referred to in subsection (4)﻿(a).
6: A person commits an offence, and is liable on conviction to the penalty set out in section 373(2), if—
a: the person knows or ought reasonably to know that they are disqualified under subsection (2); and
b: the person,—
i: with their consent, is appointed as a liquidator; or
ii: acts as a liquidator.
7: See also section 8(2) of the Insolvency Practitioners Regulation Act 2019
8: This section does not apply to an Official Assignee.
47: Validity of acts of liquidators
Section 281 is not qualified to act as a liquidator does not meet the requirements of section 280(1) section 282(1)﻿(b)
48: New section 282 substituted
Section 282
282: What liquidator must do before appointment
1: A person must not be appointed as a liquidator of a company unless the person has—
a: consented in writing and has not withdrawn that consent at the time of appointment; and
b: certified in writing that they—
i: are a licensed insolvency practitioner (or, if section 243A section 68(1) of the Insolvency Practitioners Regulation Act 2019
ii: are permitted to act as a liquidator of the company under the Insolvency Practitioners Regulation Act 2019
iii: are not disqualified from appointment under section 280(2)
2: A person who, with their consent, is appointed as a liquidator despite failing to certify the matters set out in subsection (1)﻿(b) commits an offence and is liable on conviction to the penalty set out in section 373(2).
3: This section does not apply to an Official Assignee.
49: Vacancies in office of liquidator
1: Section 283
1: The office of liquidator becomes vacant if the liquidator—
a: resigns; or
b: dies; or
c: becomes disqualified under section 280(2)
d: ceases to be a licensed insolvency practitioner (unless section 243A Insolvency Practitioners Regulation Act 2019
e: is not a licensed insolvency practitioner and section 243A see section 243A(4)
2: Section 283(2) and sending or delivering notice in writing of the appointment of his or her successor to the Registrar for registration
3: Section 283
3A: A liquidator of a company to which section 243A section 243A see section 243A(4)
4: Section 283(4) any person who could be appointed as liquidator under paragraph (a) or paragraph (b) or paragraph (c), as the case may be, of subsection (2) of section 241 to be the liquidator of the company any person who is permitted to act as a liquidator of the company in accordance with section 280
5: Section 283
5: If a vacancy occurs in the office of liquidator, the person vacating office must, as soon as practicable, give written notice of the vacancy to the Registrar.
6: If, as the result of the vacation of office by a liquidator, no person is acting as liquidator, the Registrar may appoint an Official Assignee or a licensed insolvency practitioner as liquidator.
6: Section 283(7) , or the Official Assignee for New Zealand, appoint any person who could be appointed as liquidator under paragraph (a) or paragraph (b) or paragraph (c), as the case may be, of subsection (2) of section 241 appoint any person who is permitted to act as a liquidator of the company in accordance with section 280
7: Section 283(8) within 10 working days of being appointed or being notified of his or her appointment before the end of the next working day after appointment
8: Section 283
9: A person who fails to comply with subsection (5) or (8) commits an offence and is liable on conviction to the penalty set out in section 373(2).
50: New section 283A inserted
The following section is inserted after section 283
283A: Provision of information and assistance to replacement liquidator
1: This section applies if a replacement liquidator is appointed.
2: The previous liquidator must, where practicable, provide to the replacement liquidator the information that the previous liquidator has in their possession or under their control and that the replacement liquidator reasonably requires to carry out the functions and duties of a liquidator.
3: The information referred to in subsection (2) includes—
a: the records and other documents of the company:
b: any information necessary to provide the replacement liquidator with control over the property of the company:
c: any information relating to claims:
d: accounting records and other documents of the liquidation.
4: The previous liquidator must, where practicable, provide to the replacement liquidator any assistance that the replacement liquidator reasonably requires to carry out the functions and duties of a liquidator.
5: A person who fails to comply with subsection (2) or (4) commits an offence and is liable on conviction to the penalty set out in section 373(2).
51: New section 285 substituted
Section 285
285: Meaning of failure to comply
1: In section 286, failure to comply
2: In proceedings under section 286,—
a: a finding of any fact made in proceedings before the District Court or High Court for an offence under this Act or any other enactment that there was a failure to comply is prima facie evidence of that fact:
b: a finding described in paragraph (a) may be proved by production of a document under the seal of the court in which the finding was made. 1986 No 121 s 46
52: Orders to enforce liquidator's duties
1: Section 286(1)
i: the Registrar.
2: Section 286
3: If the court is satisfied that there is, or has been, a failure to comply, the court may—
a: relieve the liquidator of the duty to comply wholly or in part; or
b: order the liquidator to comply to the extent specified in the order; or
c: remove the liquidator from office; or
d: make a prohibition order.
4: A court may, in relation to a person who is or becomes disqualified under section 280(2)
a: remove the person from office; or
b: order that the person may be appointed and act, or may continue to act, as a liquidator, despite section 280(2)
5: If the court is satisfied that a person is unfit to act as a liquidator by reason of persistent failures to comply or the seriousness of a failure to comply, the court must make a prohibition order.
5A: The period of a prohibition order under this section is a matter for the discretion of the court, and the court may make a prohibition order permanent.
5B: However, the court may make a prohibition order permanent, or for a period longer than 10 years, only in the most serious of cases for which an order may be made.
3: Section 286
6: A person to whom a prohibition order applies—
a: must not act (or continue to act) as an insolvency practitioner; and
b: must be treated as if they are not a licensed insolvency practitioner ( see section 8 of the Insolvency Practitioners Regulation Act 2019
4: Section 286
9: A copy of every order made under this section must be delivered by the applicant to the Registrar before the end of the working day after the day on which the order was made.
10: The Registrar must provide a copy of the order to each accredited body (within the meaning of the Insolvency Practitioners Regulation Act 2019
53: New heading and sections 296A to 296D inserted
The following heading and sections are inserted after section 296 Voidable dispositions
296A: Dispositions of property after application but before appointment of liquidator
1: A disposition of a company’s property is voidable if it is made during the specified period.
2: However, the disposition is not voidable if it is made—
a: in the ordinary course of business of the company; or
b: by an administrator, a deed administrator, or a receiver, on the company’s behalf; or
c: under an order of the court.
3: In this section,— disposition property specified period
296B: Procedure for setting aside dispositions
1: A liquidator who wishes to set aside a disposition that is voidable under section 296A
a: file a notice with the court; and
b: serve the notice as soon as practicable on—
i: the party to which the disposition was made; and
ii: any other party from whom the liquidator intends to recover.
2: The notice must—
a: be in writing; and
b: state the liquidator's postal, email, and street addresses; and
c: specify the disposition to be set aside; and
d: describe the property or state the amount that the liquidator wishes to recover; and
e: state that the person named in the notice may object to the disposition being set aside by sending to the liquidator a written notice of objection that is received by the liquidator at an address stated in the liquidator’s notice within 20 working days after the notice has been served on that person; and
f: state that the written notice of objection must contain full particulars of the reasons for objecting and must identify any documents that evidence or substantiate the reasons for objecting; and
g: state that the disposition will be set aside as against the person named in the notice if that person does not object; and
h: state that if the person named in the notice does object, the liquidator may apply to the court for the disposition to be set aside.
3: The disposition is automatically set aside as against the person on whom the liquidator has served the notice unless that person has sent to the liquidator a written notice of objection that is received by the liquidator at an address stated in the liquidator’s notice within 20 working days after the liquidator's notice has been served on that person.
4: The notice of objection must contain full particulars of the reasons for objecting and must identify any documents that evidence or substantiate the reasons for objecting.
5: A disposition that is not automatically set aside may still be set aside by the court on the liquidator's application.
296C: Other orders
If a disposition is set aside under section 296B
a: an order that a person transfer to the company—
i: property that the company disposed of:
ii: any proceeds of property referred to in subparagraph (i):
iii: property that, in the court’s opinion, fairly represents the application of proceeds referred to in subparagraph (ii):
b: an order that a person pay to the company an amount that, in the court's opinion, fairly represents some or all of the benefits that the person has received because of the disposition:
c: an order releasing, in whole or in part, a charge given by the company:
d: an order requiring security to be given for the discharge of an order made under this section:
e: an order specifying the extent to which a person affected by the setting aside of a disposition by an order made under this section is entitled to claim as a creditor in the liquidation.
296D: Additional provisions relating to setting aside dispositions
1: The setting aside of a disposition or an order made under section 296C
a: from a person other than the company; and
b: for valuable consideration; and
c: without knowing the circumstances in which the property was acquired from the company.
2: The setting aside of a charge or an order made under section 296C
a: as the result of the exercise of a power of sale by the mortgagee of the charge; and
b: for valuable consideration; and
c: without knowing the circumstances relating to the giving of the charge.
3: A court must not order the recovery of property of a company (or its equivalent value) by a liquidator, whether under this Act, any other enactment, or in law or in equity, if the person from whom recovery is sought ( A
a: A acted in good faith; and
b: a reasonable person in A's position would not have suspected, and A did not have reasonable grounds to suspect, that the company was, or would become, insolvent; and
c: A gave value for the property or altered A's position in the reasonably held belief that the transfer of the property to A was valid and would not be set aside.
4: Nothing in the Land Transfer Act 2017 restricts the operation of this section or sections 296A to 296C Amendments to Part 20 (Registrar of Companies)
54: Registrar and Deputy Registrars of Companies
1: Section 357(1)﻿(b) , the Insolvency Practitioners Regulation Act 2019 purposes of this Act
2: Section 357(2) the Insolvency Practitioners Regulation Act 2019 under this Act, Amendments to Part 21 (Offences and penalties)
55: Penalty for failure to comply with Act
1: Section 373(2)
la: section 239F(4)
lb: section 239G(2)
lc: section 239R(3)
ld: section 239TA(5)
le: section 239AMC(5)
lf: section 239AP(2)
lg: section 239ABYA(5)
lh: section 239ACD(4)
li: section 239ACE(2)
lj: section 239ACJA(5)
lk: section 239ACZ(4)
ll: section 239ACZA(3)
lm: section 239ACZB(4)
ln: section 243A(3)
lo: section 245D(5)
2: Section 373(2)
ma: section 255(3A)
mb: section 256(4)
mc: section 257(3)
3: Section 373(2)
n: section 280(6)
na: section 282(2)
nb: section 283(9)
nc: section 283A(5)
4: Section 373(3)
aa: section 256A(5) Amendment to Part 22 (Miscellaneous)
56: Regulations
1: Section 395(1)
cba: prescribing information that must be contained in a report or statement for the purpose of—
i: section 239ACZB(3), 243A(2), 255(2)﻿(d), 257(1)﻿(a), or 257(1)﻿(c)
ii: section 24(3) or 24A(2)
2: Section 395
3: Regulations made under this section may provide for different regulations to apply in respect of different kinds or classes of persons or circumstances.
2: Consequential amendments and transitional provisions
57: New Part added to Schedule 1AA
In Schedule 1AA
a: insert the Part set out in Schedule 1 Schedule 1AA
b: make all necessary consequential amendments. Section 57 replaced 31 August 2019 section 12(2) Financial Markets (Derivatives Margin and Benchmarking) Reform Amendment Act 2019
58: Consequential amendments
The enactments specified in Schedule 2 OIC LI 2020/145 2020-09-01 Companies Act 1993 Insurance (Prudential Supervision) Act 2010 Companies Act 1993 Liquidation Regulations 1994 If not brought into force earlier by OIC (see section 2(2) and (3)).
2: Amendments to Receiverships Act 1993
59: Principal Act amended
This Part amends the Receiverships Act 1993 OIC LI 2020/145 2020-09-01 Receiverships Act 1993 If not brought into force earlier by OIC (see section 2(2) and (3)).
60: Interpretation
1: Section 2(1) insolvency practitioner section 5(1) of the Insolvency Practitioners Regulation Act 2019 licensed insolvency practitioner section 5(1) of the Insolvency Practitioners Regulation Act 2019 prohibition order related company
2: Section 2
3: A requirement in this Act for a person to provide a notice or other document may be satisfied by the person providing the notice or other document by electronic means in accordance with Part 4 of the Contract and Commercial Law Act 2017.
61: New
section The following section is inserted after section 3A
3A: Transitional, savings, and related provisions
3B: Act binds the Crown
This Act binds the Crown. Section 61 heading amended 31 August 2019 section 31(2) Financial Markets (Derivatives Margin and Benchmarking) Reform Amendment Act 2019 Section 61 amended 31 August 2019 section 31(3) Financial Markets (Derivatives Margin and Benchmarking) Reform Amendment Act 2019 Section 61 amended 31 August 2019 section 31(4) Financial Markets (Derivatives Margin and Benchmarking) Reform Amendment Act 2019
62: New section 5 substituted
Section 5
5: Who may be appointed as receiver
1: A person may be appointed as a receiver if the person—
a: is a licensed insolvency practitioner who is permitted to act as a receiver in accordance with the Insolvency Practitioners Regulation Act 2019
b: is not disqualified under subsection (2).
2: Unless the court orders otherwise, the following persons are disqualified from being appointed or acting as a receiver:
a: a mortgagee of the property in receivership:
b: a person who is, or who has, within the 2 years immediately before the commencement of the receivership, been—
i: a director or an auditor of the grantor or of a related company of the grantor; or
ii: a director of the mortgagee of the property in receivership:
c: a person who has, or who has had, within the 2 years immediately before the commencement of the receivership,—
i: a direct interest in a share issued by the grantor; or
ii: an indirect interest in 5% or more of any class of shares issued by the grantor:
d: if the grantor is a company, a person who has—
i: a direct interest in a share issued by a related company of the grantor; or
ii: an indirect interest in 5% or more of any class of shares issued by a related company of the grantor:
e: a person who is a relative (as defined in section 2(1) of the Companies Act 1993) of a person specified in any of paragraphs (b) to (d):
f: a person who is disqualified from acting as a receiver by the instrument that confers the power to appoint a receiver:
g: a person to whom a prohibition order applies:
h: if the property in receivership includes a company, a person who is, or who has been, in the 2 years immediately before the commencement of the receivership, an administrator, a deed administrator, or a liquidator of the company.
3: A person commits an offence if—
a: the person knows or ought reasonably to know that they are disqualified under subsection (2); and
b: the person,—
i: with their consent, is appointed as a receiver; or
ii: acts as a receiver.
4: A person who commits an offence under subsection (3) is liable on conviction to a fine not exceeding $75,000.
5: See also section 8(2) of the Insolvency Practitioners Regulation Act 2019
63: New section 6A inserted
The following section is inserted after section 6
6A: What receiver must do before appointment
1: A person must not be appointed as a receiver unless the person has—
a: consented in writing to the appointment and has not withdrawn the consent at the time of the appointment; and
b: certified in writing that the person is a licensed insolvency practitioner who is not disqualified from appointment under section 5(2)
c: provided to the mortgagee the written consent and certificate required under paragraphs (a) and (b).
2: A person commits an offence if—
a: the person, with their consent, is appointed as a receiver despite failing to certify the matters set out in subsection (1)﻿(b); or
b: the person fails to comply with subsection (1)﻿(c).
3: A person who commits an offence under this section is liable on conviction to a fine not exceeding $10,000.
64: Notice of appointment
1: Section 8
1: A receiver must, before the end of the next working day after the receiver’s appointment,—
a: give to the grantor written notice of the appointment; and
b: give to the Registrar written notice of the appointment, including—
i: the receiver’s full name:
ii: the date of the appointment:
iii: the receiver’s business address:
iv: a brief description of the property in receivership:
v: the name of the person who appointed the receiver or, if the receiver was appointed by the court, the name of the person who applied for the receiver to be appointed:
vi: a description of the deed, agreement, or instrument by or under which the receiver was appointed:
vii: a copy of the notice referred to in paragraph (a).
2: Section 8
1A: Within 5 working days after the receiver’s appointment, the receiver must give notice of the appointment, including the matters described in subsection (1)﻿(b)﻿(i) to (vi), in accordance with section 3(1)﻿(a).
3: Section 8
3: A notice given under this section must include a statement that receivers are required to be licensed insolvency practitioners, and that more information about the regulation of insolvency practitioners is available from the Registrar.
65: Vacancy in office of receiver
1: Section 11
1: The office of receiver becomes vacant if the person holding office—
a: resigns in accordance with subsection (2); or
b: dies; or
c: becomes disqualified under section 5(2)
d: ceases to be a licensed insolvency practitioner who is permitted to act as a receiver for the property in receivership in accordance with the Insolvency Practitioners Regulation Act 2019
2: Section 11
3: If a vacancy occurs in the office of receiver, the person vacating office must,—
a: as soon as practicable,—
i: give public notice of the vacancy; and
ii: give written notice of the vacancy to the person who appointed the receiver (unless the vacancy arose under subsection (1)﻿(a)); and
b: if the receiver held office in relation to the property of a company, give written notice of the vacancy, before the end of the next working day after the vacancy arose, to the Registrar (unless the vacancy arose under subsection (1)﻿(d)).
3: Section 11(6)
4: Section 11(8) or subsection (4)
5: Section 11(8) $5,000 $10,000
66: New section 11A inserted
The following section is inserted after section 11
11A: Provision of information and assistance to replacement receiver
1: This section applies if a replacement receiver is appointed.
2: The previous receiver must, where practicable, provide to the replacement receiver the information that the previous receiver has in their possession or under their control and that the replacement receiver reasonably requires to carry out the functions and duties of receiver, including any accounting records and other documents relating to the property in receivership.
3: The previous receiver must, where practicable, provide to the replacement receiver any assistance that the replacement receiver reasonably requires to carry out the functions and duties of receiver.
4: A person who fails to comply with subsection (2) or (3) commits an offence and is liable on conviction to a fine not exceeding $10,000.
67: Duty in relation to money
Section 21
2: A person who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine not exceeding $75,000.
68: Accounting records
Section 22
3: A person who fails to comply with this section commits an offence and is liable on conviction to a fine not exceeding $10,000.
69: New sections 24 and 24A substituted
Section 24
24: Further reports by receiver
1: The receiver must, not later than 2 months after the end of each period of 6 months after the receiver’s appointment, prepare a further report on the receivership.
2: A person who was a receiver at the end of the receivership must, not later than 2 months after the end of the receivership, prepare a further report on the receivership.
3: Each report prepared under this section must contain the information prescribed for the purpose of this section by regulations made under section 395(1)﻿(cba)
4: A receiver preparing a report under subsection (1) may exclude from the report details of any proposals for disposal of property in receivership if the receiver considers that their inclusion would materially prejudice the exercise of the receiver’s functions.
5: A person who fails to comply with this section commits an offence and is liable on conviction to a fine not exceeding $10,000.
24A: Summary report by receiver
1: The person who was a receiver at the end of a receivership must, as soon as practicable after completing the person’s duties in relation to the receivership, provide to the Registrar, in the manner specified by the Registrar, a summary report on the receivership.
2: The summary report must contain the information prescribed for the purpose of this section by regulations made under section 395(1)﻿(cba)
3: A person who fails to comply with this section commits an offence and is liable on conviction to a fine not exceeding $10,000.
70: Persons entitled to receive reports
Section 26(4) that is a body corporate
71: Section 28 repealed
Section 28
72: Notice of end of receivership
Section 29(1) the receivership of a grantor that is a body corporate a receivership
73: New section 36 substituted
Section 36
36: Meaning of failure to comply
1: In section 37, failure to comply
a: the deed, agreement, or order of the court by or under which the receiver was appointed:
b: an enactment:
c: a rule of law:
d: a court order.
2: In proceedings under section 37,—
a: a finding of any fact made in proceedings before the District Court or High Court for an offence under this Act or any other enactment that there was a failure to comply is prima facie evidence of that fact:
b: a finding described in paragraph (a) may be proved by production of a document under the seal of the court in which the finding was made. 1986 No 121 s 46
74: Orders to enforce receiver's duties
1: Section 37
4: If the court is satisfied that there is, or has been, a failure to comply, the court may—
a: relieve the receiver of the duty to comply wholly or in part; or
b: order the receiver to comply to the extent specified in the order; or
c: remove the receiver from office; or
d: make a prohibition order.
5: The court may, in respect of a person who is or becomes disqualified under section 5(2)
a: remove the person from office; or
b: order that the person may be appointed and act or may continue to act as a receiver, despite section 5(2)
6: If the court is satisfied that a person is unfit to act as a receiver because of persistent failures to comply or the seriousness of a failure to comply, the court must make a prohibition order.
6A: The period of a prohibition order under this section is a matter for the discretion of the court, and the court may make a prohibition order permanent.
6B: However, the court may make a prohibition order permanent, or for a period longer than 10 years, only in the most serious of cases for which an order may be made.
2: Section 37
7: A person to whom a prohibition order applies—
a: must not act (or continue to act) as an insolvency practitioner; and
b: must be treated as if they are not a licensed insolvency practitioner ( see section 8 of the Insolvency Practitioners Regulation Act 2019
3: Section 37
9: A copy of every order made under this section must be delivered by the applicant to the Registrar before the end of the working day after the day on which the order was made.
10: The Registrar must provide a copy of the order to each accredited body (within the meaning of the Insolvency Practitioners Regulation Act 2019
75: Powers and duties of receivers
Section 40C(2) the Schedule Schedule 1
76: New Part inserted in Schedule 1AA
In Schedule 1AA
a: insert the Part set out in Schedule 3 Schedule 1AA
b: make all necessary consequential amendments. Section 76 replaced 31 August 2019 section 31(5) Financial Markets (Derivatives Margin and Benchmarking) Reform Amendment Act 2019
77: Schedule amended
1: The heading to the Schedule is amended by omitting Schedule Schedule 1
2: Clause 6
6: Persons disqualified from appointment
1: In addition to the persons specified in section 5(2)
2: The reference in section 5(3) section 5(2)