Securities Act 1978

1: Short Title and commencement
1: This Act may be cited as the Securities Act 1978.
2: The provisions of this Act shall come into force on a date to be fixed by the Governor-General by Order in Council. For the purposes of this subsection, 1 or more Orders in Council may be made bringing different provisions of this Act into force on different dates. Section 1(2) brought into force 1 May 1979 Securities Act Commencement Order 1979 (SR 1979/94) Section 1(2) brought into force 1 September 1983 Securities Act Commencement Order 1983 (SR 1983/119)
2: Interpretation
1: In this Act, unless the context otherwise requires,— advertisement section 2A allot allotment associated persons persons associated with each other
a: persons who are relatives within the meaning of the Income Tax Act 2007
b: persons who are partners to whom the Partnership Act 1908
c: bodies corporate that consist substantially of the same members or shareholders or that are under the control of the same persons; or
d: a body corporate and a person who has the power, directly or indirectly, to exercise, or control the exercise of, the rights to vote attached to 25% or more of the voting securities of the body corporate; or
e: a body corporate and a person who is a director of the body corporate authorised advertisement section 38 or section 38AA bonus bond section 3(1) building society section 2(1) chattel and emissions units civil liability event section 55B company section 2(1) contributory mortgage
a: secures money owing to 2 or more persons or to a nominee on behalf of 2 or more persons, whether or not the mortgage originally secured money owing to only 1 person; or
b: has the same priority in respect of the land as another mortgage or mortgages of that land;— and, for the purposes of this definition, money owing to not more than 5 persons as joint tenants shall be deemed to be owed to 1 person contributory mortgage broker
a: offers an interest in a contributory mortgage to the public for subscription; or
b: manages interests in a contributory mortgage, being interests that have been offered to the public for subscription, whether or not that person holds beneficially any interest in that mortgage contributory scheme
a: the investor acquires or may acquire an interest in or right in respect of property; and
b: pursuant to the terms of investment that interest or right will or may be used or exercised in conjunction with any other interest in or right in respect of property acquired in like circumstances, whether at the same time or not;— but does not include such a scheme or arrangement if the number of investors therein does not exceed 5, and neither a manager of the scheme nor any associated person is a manager of any other such scheme or arrangement convertible note section YA 1 co-operative company
a: a company registered as a co-operative company under the Co-operative Companies Act 1956 or the Co-operative Companies Act 1996
b: a company registered as a co-operative dairy company under the Co-operative Dairy Companies Act 1949 or Part 3
c: a company registered as a co-operative freezing company under the Co-operative Freezing Companies Act 1960; or
d: a company registered as a co-operative forestry company under the Co-operative Forestry Companies Act 1978 court the Crown date of a prospectus section 39(1)(a) date of a registered prospectus section 39(1)(a) date of a statement of financial position date of an interim statement of financial position debt security
a: a debenture, debenture stock, bond, note, certificate of deposit, and convertible note; and
b: an interest or right that is declared by regulations to be a debt security for the purposes of this Act; and
c: a renewal or variation of the terms or conditions of any such interest or right or of a security referred to in paragraph (a) or paragraph (b);— but does not include—
d: an interest in a contributory mortgage where the interest is offered by a contributory mortgage broker; or
e: any such interest or right or a security referred to in paragraph (a) or paragraph (c) that is declared by regulations not to be a debt security for the purposes of this Act delayed allotment order FMA section 44A(2) or (3) director
a: in relation to a company, any person occupying the position of a director of the company by whatever name called:
b: in relation to a partnership (other than a special partnership or limited partnership
c: in relation to a special partnership or limited partnership
d: in relation to a body corporate or unincorporate, other than a company, partnership, or special partnership or limited partnership
e: in relation to any other person, that person disclosure obligation
a: the requirements of the continuous disclosure provisions as defined in section 19D
b: any obligation that—
i: requires ongoing disclosure of information to the public or to a person who has a role in monitoring the person who disclosed the information; and
ii: is imposed by an enactment; and
iii: is specified in the regulations distribute
a: make available, publish, and circulate; and
b: communicate by letter, newspaper, broadcasting, sound recording, television, cinematographic film, video, or any form of electronic or other means of communication document
a: anything on which there is writing or any image; and
b: information recorded by means of any article or device (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device; and
c: material subsequently derived from information recorded by that means emissions units
a: units as defined in section 4(1)
b: personal property that—
i: is created by, or in accordance with, any enactment (whether of New Zealand, another country, or any jurisdiction of any country), rule of law, contractual provision, or international treaty or protocol as—
A: one of a fixed number of units issued by reference to a specified amount of greenhouse gas; or
B: evidence of a specified amount of reductions, removals, avoidance, storage, sequestration, or any other form of mitigation of greenhouse gas emissions; and
ii: can be surrendered, retired, cancelled, or otherwise used to—
A: offset greenhouse gas emissions under, or otherwise comply with, any enactment (whether of New Zealand, another country, or any jurisdiction of any country), rule of law, contractual provision, or international treaty or protocol; or
B: enable a person who surrenders, retires, cancels, or otherwise uses it to claim an environmental benefit equity security
a: a preference share, and company stock; and
b: a security that is declared by regulations to be an equity security for the purposes of this Act; and
c: a renewal or variation of the terms or conditions of any such interest or right or a security referred to in paragraph (a) or paragraph (b);— but does not include any such interest or right or a security referred to in paragraph (a) or paragraph (c) that is declared by regulations not to be an equity security for the purposes of this Act expert or herself or her or her FMA Part 2 Financial Markets Authority Act 2011 government department
a: the Māori Trustee; and
b: Public Trust, but in relation only to money constituted in the common fund of Public Trust that is entitled to the protection against deficiency afforded by section 52 greenhouse gas section 31 interest in a superannuation scheme
a: any interest or right that is declared by regulations to be an interest in a superannuation scheme for the purposes of this Act; and
b: any renewal or variation of the terms or conditions of any such interest or right or a security referred to in paragraph (a);— but does not include any such interest or right, or a security referred to in paragraph (b), that is declared by regulations not to be an interest in a superannuation scheme for the purposes of this Act investment statement section 38C issuer
a: in relation to an equity security or a debt security, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to an equity security or a debt security, or to a trust deed that relates to a debt security, the person on whose behalf any money paid in consideration of the allotment of the security is received:
b: in relation to a participatory security, or to an advertisement, investment statement, prospectus, or registered prospectus, or to a deed of participation that relates to a participatory security, the manager:
c: in relation to an interest in a contributory mortgage offered by a contributory mortgage broker, or to an advertisement that relates to such an interest, the contributory mortgage broker:
d: in relation to a unit in a unit trust, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to such a unit, the manager:
e: in relation to a life insurance policy, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to a life insurance policy, the life insurance company that is liable under the policy:
f: in relation to an interest in a superannuation scheme (including a restricted KiwiSaver scheme but not any other KiwiSaver scheme)
g: in relation to an interest in a KiwiSaver scheme other than a restricted KiwiSaver scheme, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to such an interest, the manager of the scheme KiwiSaver scheme section 4(1) KiwiSaver trustee life insurance company life insurance policy
a: a policy of insurance that is declared by regulations to be a life insurance policy for the purposes of this Act; and
b: a renewal or variation of the terms or conditions of any such policy or a security referred to in paragraph (a);— but does not include any such policy, or a security referred to in paragraph (b), or a term life insurance policy (within the meaning of regulations) that is declared by regulations not to be a life insurance policy for the purposes of this Act local authority section 5(1) 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
b: in relation to a unit in a unit trust, has the same meaning as in section 2(1)
c: in relation to an interest in a KiwiSaver scheme other than a restricted KiwiSaver scheme, has the same meaning as in section 4(1) Minister money offer to offer offered in a simplified disclosure prospectus
a: by or on behalf of an issuer; and
b: in, or accompanied by, a simplified disclosure prospectus participatory security
a: an equity security; or
b: a debt security; or
c: a unit in a unit trust; or
d: an interest in a superannuation scheme; or
e: a life insurance policy participatory security trustee person portfolio investment entity Income Tax Act 2004 portfolio investment interest Income Tax Act 2004 prescribed principal officer
a: a director of the body; or
b: a person in accordance with whose directions or instructions any or all of the directors of the body are accustomed to act; or
c: in relation to any particular requirement of this Act, any person whose function it is, or who has undertaken, to ensure that that requirement is complied with by the body: provided that for the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions any or all of the directors of a body are accustomed to act by reason only that the directors act on advice given by him or her prohibition order FMA section 44AE(1) promoter
a: means a person who is instrumental in the formulation of a plan or programme pursuant to which the securities are offered to the public; and
b: where a body corporate is a promoter, includes every person who is a director thereof; but
c: does not include a director or officer of the issuer of the securities or a person acting solely in his or her prospective investor prospectus section 42 qualified auditor section 2C receive register section 51 sections 43N to 43S registered bank section 2(1) registered prospectus
a: except if paragraph (b) applies,—
i: a prospectus that has been registered under section 42 section 43G(2)(b)
ii: a document that, except in the matters specified in section 41(1)
b: if an instrument that amends a prospectus of the kind specified in paragraph (a)(i) has been registered under section 43 section 43G(2)(b)
i: that prospectus as so amended; or
ii: a document that, except for the matters specified in section 41(1) Registrar Financial Service Providers (Registration and Dispute Resolution) Act 2008 regulations section 70 relative Income Tax Act 2007 restricted KiwiSaver scheme restricted scheme section 4(1) scheme
a: in relation to a participatory security, the arrangement or scheme to which the security relates; and
b: in relation to an interest in a superannuation scheme, that superannuation scheme; and
c: in relation to a unit in a unit trust, that unit trust security section 2D security holder
a: in the case of a bearer security or a security to which section 51
b: in the case of any other security, the person who is registered as the holder of the security in a register kept pursuant to section 51 send simplified disclosure prospectus
a: the issuer is subject to a disclosure obligation; and
b: the regulations provide for the use of a simplified disclosure prospectus by a person who is subject to that type of disclosure obligation statutory supervisor subscribe subscription subscriber superannuation scheme section 2(1) superannuation trustee Superannuation Schemes Act 1989 trust deed section 33(2)(a) trustee trustee corporation Public Trust Parliament of New Zealand unit
a: any interest or right that is declared by regulations to be a unit for the purposes of this Act; and
b: any renewal or variation of the terms or conditions of any such interest or right;— but does not include any such interest or right or a security referred to in paragraph (b) that is declared by regulations not to be a unit for the purposes of this Act unit trust section 2(1) unit trustee section 2(1) working day
a: Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign's birthday, Labour Day, and Waitangi Day; and
ab: if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
b: a day in the period commencing with 25 December in any year and ending with 2 January in the following year; and
c: if 1 January in any year falls on a Friday, the following Monday; and
d: if 1 January in any year falls on a Saturday or a Sunday, the following Monday and Tuesday writing
a: the recording of words in a permanent and legible form; and
b: the display of words by any form of electronic or other means of communication in a manner that enables the words to be readily stored in a permanent form and, with or without the aid of any equipment, to be retrieved and read;— and written
2: Section 2(1) advertisement replaced 1 October 1997 section 3(1) Securities Amendment Act 1996 Section 2(1) approved superannuation scheme repealed 22 March 1989 section 31 Superannuation Schemes Act 1989 Section 2(1) associated persons persons associated with each other replaced 1 October 1997 section 3(2) Securities Amendment Act 1996 Section 2(1) associated persons persons associated with each other amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 2(1) authorised advertisement amended 1 October 1997 section 3(3) Securities Amendment Act 1996 Section 2(1) authorised life insurance company repealed 1 October 1997 section 3(4) Securities Amendment Act 1996 Section 2(1) bonus bond inserted 1 October 1997 section 3(5) Securities Amendment Act 1996 Section 2(1) books and papers books or papers repealed 1 October 1997 section 3(4) Securities Amendment Act 1996 Section 2(1) chattel replaced 15 April 2004 section 3(1) Securities Amendment Act 2004 Section 2(1) chattel amended 24 November 2009 section 4(1) Securities Amendment Act 2009 Section 2(1) civil liability event inserted 25 October 2006 section 6(2) Securities Amendment Act 2006 Section 2(1) Commission repealed 1 May 2011 section 5(1) Securities Amendment Act 2011 Section 2(1) company replaced 15 April 2004 section 3(2) Securities Amendment Act 2004 Section 2(1) contributory mortgage broker inserted 16 December 1982 Securities Amendment Act 1982 Section 2(1) convertible note amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 2(1) co-operative company replaced 1 September 1996 section 51 Co-operative Companies Act 1996 Section 2(1) co-operative company replaced 1 September 1996 section 51 Co-operative Companies Act 1996 Section 2(1) co-operative company replaced 16 December 1982 Securities Amendment Act 1982 Section 2(1) co-operative company inserted 16 December 1982 Securities Amendment Act 1982 Section 2(1) court replaced 1 December 2002 section 3(1) Securities Amendment Act 2002 Section 2(1) date of a balance sheet date of an interim balance sheet repealed 1 October 1997 section 2 Securities Amendment Act 1997 Section 2(1) date of a prospectus amended 15 April 2004 section 3(4) Securities Amendment Act 2004 Section 2(1) date of a registered prospectus inserted 16 December 1982 Securities Amendment Act 1982 Section 2(1) date of a registered prospectus amended 15 April 2004 section 3(4) Securities Amendment Act 2004 Section 2(1) date of a statement of financial position date of an interim statement of financial position inserted 1 October 1997 section 2 Securities Amendment Act 1997 Section 2(1) debt security replaced 1 October 1997 section 3(6) Securities Amendment Act 1996 Section 2(1) delayed allotment order inserted 28 July 2009 section 4 Securities (Disclosure) Amendment Act 2009 Section 2(1) delayed allotment order amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 2(1) director replaced 16 December 1982 Securities Amendment Act 1982 Section 2(1) director amended 2 May 2008 section 121(3) Limited Partnerships Act 2008 Section 2(1) director amended 2 May 2008 section 121(3) Limited Partnerships Act 2008 Section 2(1) director amended 2 May 2008 section 121(3) Limited Partnerships Act 2008 Section 2(1) disclosure obligation inserted 28 July 2009 section 4 Securities (Disclosure) Amendment Act 2009 Section 2(1) distribute replaced 1 October 1997 section 3(7) Securities Amendment Act 1996 Section 2(1) document replaced 1 December 2002 section 3(2) Securities Amendment Act 2002 Section 2(1) emissions units inserted 24 November 2009 section 4(2) Securities Amendment Act 2009 Section 2(1) equity security replaced 1 October 1997 section 3(8) Securities Amendment Act 1996 Section 2(1) expert amended 15 April 2004 section 3(5) Securities Amendment Act 2004 Section 2(1) expert amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 2(1) expert amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 2(1) expert amended 3 May 2001 section 5(f) Securities Amendment Act 2001 Section 2(1) FMA inserted 1 May 2011 section 5(2) Securities Amendment Act 2011 Section 2(1) government department replaced 1 March 2002 section 170(1) Public Trust Act 2001 Section 2(1) government department amended 1 July 2009 section 30(2)(a) Māori Trustee Amendment Act 2009 Section 2(1) greenhouse gas inserted 24 November 2009 section 4(2) Securities Amendment Act 2009 Section 2(1) interest in a superannuation scheme inserted 1 October 1997 section 3(9) Securities Amendment Act 1996 Section 2(1) investment statement inserted 1 October 1997 section 3(9) Securities Amendment Act 1996 Section 2(1) issuer replaced 1 October 1997 section 3(10) Securities Amendment Act 1996 Section 2(1) issuer amended 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 2(1) issuer inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 2(1) KiwiSaver scheme inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 2(1) KiwiSaver trustee inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 2(1) labour share repealed 15 April 2004 section 3(6) Securities Amendment Act 2004 Section 2(1) life insurance company inserted 1 July 1989 section 42(2) Securities Markets Act 1988 Section 2(1) life insurance policy replaced 1 October 1997 section 3(11) Securities Amendment Act 1996 Section 2(1) local authority replaced 9 April 2008 section 4 Securities (Local Authority Exemption) Amendment Act 2008 Section 2(1) manager replaced 1 October 1997 section 3(12) Securities Amendment Act 1996 Section 2(1) manager replaced 15 April 2004 section 3(7) Securities Amendment Act 2004 Section 2(1) manager inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 2(1) Minister replaced 1 October 1995 section 10(3) Department of Justice (Restructuring) Act 1995 Section 2(1) offered in a simplified disclosure prospectus inserted 28 July 2009 section 4 Securities (Disclosure) Amendment Act 2009 Section 2(1) overseas regulator repealed 1 May 2011 section 5(1) Securities Amendment Act 2011 Section 2(1) participatory security replaced 1 October 1997 section 3(13) Securities Amendment Act 1996 Section 2(1) participatory security trustee inserted 15 April 2004 section 3(8) Securities Amendment Act 2004 Section 2(1) portfolio investment entity inserted 1 October 2007 section 232 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 Section 2(1) portfolio investment interest inserted 1 October 2007 section 232 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 Section 2(1) principal officer amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 2(1) prohibition order inserted 28 July 2009 section 4 Securities (Disclosure) Amendment Act 2009 Section 2(1) prohibition order amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 2(1) promoter replaced 16 December 1982 Securities Amendment Act 1982 Section 2(1) promoter amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 2(1) prospective investor inserted 1 October 1997 section 3(14) Securities Amendment Act 1996 Section 2(1) prospectus replaced 16 December 1982 Securities Amendment Act 1982 Section 2(1) qualified auditor replaced 1 October 1997 section 3(15) Securities Amendment Act 1996 Section 2(1) receive inserted 1 October 1997 section 3(15) Securities Amendment Act 1996 Section 2(1) register inserted 1 July 2013 section 5(3) Securities Amendment Act 2011 Section 2(1) registered bank inserted 24 March 1995 Reserve Bank of New Zealand Amendment Act 1995 Section 2(1) registered prospectus replaced 1 May 2011 section 5(2) Securities Amendment Act 2011 Section 2(1) Registrar replaced 1 May 2011 section 5(2) Securities Amendment Act 2011 Section 2(1) regulations inserted 1 October 1997 section 3(16) Securities Amendment Act 1996 Section 2(1) relative amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 2(1) restricted KiwiSaver scheme restricted scheme inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 2(1) scheme inserted 1 October 1997 section 3(17) Securities Amendment Act 1996 Section 2(1) security replaced 1 October 1997 section 3(18) Securities Amendment Act 1996 Section 2(1) send inserted 1 October 1997 section 3(19) Securities Amendment Act 1996 Section 2(1) simplified disclosure prospectus inserted 28 July 2009 section 4 Securities (Disclosure) Amendment Act 2009 Section 2(1) superannuation scheme inserted 1 October 1997 section 3(20) Securities Amendment Act 1996 Section 2(1) superannuation trustee inserted 1 October 1997 section 3(20) Securities Amendment Act 1996 Section 2(1) Takeovers Panel repealed 1 May 2011 section 5(1) Securities Amendment Act 2011 Section 2(1) trust deed inserted 1 October 1997 section 3(20) Securities Amendment Act 1996 Section 2(1) trustee corporation amended 1 July 2009 section 30(2)(a) Māori Trustee Amendment Act 2009 Section 2(1) trustee corporation amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 2(1) trustee corporation amended 1 January 1987 section 29(2) Constitution Act 1986 Section 2(1) unit inserted 1 October 1997 section 3(21) Securities Amendment Act 1996 Section 2(1) unit trust inserted 1 October 1997 section 3(21) Securities Amendment Act 1996 Section 2(1) unit trustee inserted 1 October 1997 section 3(21) Securities Amendment Act 1996 Section 2(1) working day inserted 1 October 1997 section 3(21) Securities Amendment Act 1996 Section 2(1) working day inserted 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 Section 2(1) writing inserted 1 October 1997 section 3(21) Securities Amendment Act 1996 Section 2(2) repealed 1 October 1997 section 3(22) Securities Amendment Act 1996
2A: Meaning of advertisement
1: In this Act, unless the context otherwise requires, advertisement
a: that—
i: contains or refers to an offer of securities to the public for subscription; or
ii: is reasonably likely to induce persons to subscribe for securities of an issuer, being securities to which the communication relates and that have been, or are to be, offered to the public for subscription; and
b: that is authorised or instigated by, or on behalf of, the issuer of the securities or prepared with the co-operation of, or by arrangement with, the issuer of the securities; and
c: that is to be, or has been, distributed to a person.
2: The following are also advertisements:
a: a statement relating to an interest in a contributory mortgage required to be distributed to a person by regulations:
b: an investment statement:
c: documents, information, and other matters required to be made publicly available under section 54C
3: None of the following is an advertisement:
a: a registered prospectus:
b:
c: a statement or report made in accordance with section 3(7)
d: a disclosure statement published by a registered bank under section 81
4: A communication is an advertisement whether or not consideration is to be, or has been, paid for the distribution of the communication.
5: The definition of the term advertisement in this section does not apply to the term advertisement in section 3(1)(c)
6: Where—
a: an advertisement within the meaning of this section appears in association with another advertisement that is not an advertisement within the meaning of this section; and
b: both advertisements are authorised or instigated by, or on behalf of, the same person or prepared with the co-operation of, or by arrangement with, the same person,— those advertisements are deemed to be a single advertisement within the meaning of this section.
7: Unless this Act or regulations provide otherwise, nothing in this Act or regulations limits the information, statements, and other matters that may be contained in an advertisement. Section 2A inserted 1 October 1997 section 4 Securities Amendment Act 1996 Section 2A(2)(c) inserted 1 May 2011 section 6 Securities Amendment Act 2011 Section 2A(3)(b) repealed 15 April 2004 section 4 Securities Amendment Act 2004
2B: Meaning of due enquiry
1: For the purposes of this Act, a person who is required to make due enquiry
a: he or she receives information or advice about the matter from another person whom he or she believes on reasonable grounds is reliable and competent; and
b: the information or advice received—
i: is of the same kind and standard as that which it would be reasonable to expect to be supplied in the ordinary course of management of businesses of the same kind to persons in the same kind of position; and
ii: does not state or indicate that further information, advice, or investigation is or may be required; and
c: he or she has no reason to believe that the information or advice is or may be incorrect.
2: Nothing in subsection (1) limits the ways in which a person may make due enquiry about a matter. Section 2B inserted 1 October 1997 section 4 Securities Amendment Act 1996
2C: Meaning of qualified auditor
1: For the purposes of this Act, qualified auditor
a: a licensed auditor; or
b: a registered audit firm; or
c: in the case of an issuer that is a public entity under the Public Audit Act 2001
1A: In this section, licensed auditor registered audit firm section 6
1B: The appointment of a registered audit firm by the firm name to be the qualified auditor for the purposes of this Act is deemed to be the appointment of all the partners in the firm, from time to time, who are licensed auditors.
2: None of the following persons is qualified for appointment as an auditor of the accounting or other records of an issuer of securities:
a: the issuer, or a principal officer, officer, or employee of the issuer:
b: a person who is a partner of or in the employment of a person specified in paragraph (a):
c: a body corporate.
3: A person is not qualified for appointment as auditor of an issuer of securities if the person is, by virtue of subsection (2), disqualified for appointment as auditor of a person that is the issuer's subsidiary or holding company or a subsidiary of the issuer's holding company, or would be so disqualified if that person were a company. Section 2C inserted 1 October 1997 section 4 Securities Amendment Act 1996 Section 2C(1) replaced 1 July 2012 section 82 Auditor Regulation Act 2011 Section 2C(1A) inserted 1 July 2012 section 82 Auditor Regulation Act 2011 Section 2C(1B) inserted 1 July 2012 section 82 Auditor Regulation Act 2011
2D: Meaning of security
1: In this Act, unless the context otherwise requires, the term security
a: an equity security; and
b: a debt security; and
c: a unit in a unit trust; and
d: an interest in a superannuation scheme; and
e: a life insurance policy; and
f: any interest or right that is declared by regulations to be a security for the purposes of this Act; and
g: any renewal or variation of the terms or conditions of any such interest or right;— but does not include any such interest or right (other than a security referred to in paragraph (f)) that is declared by regulations not to be a security for the purposes of this Act.
2: Where the terms of a security require or allow the subscriber to pay separate amounts of money at different times, each such payment shall, for the purposes of this Act, be treated as payment for the same security as each other payment. Section 2D inserted 1 October 1997 section 4 Securities Amendment Act 1996
3: Construction of references to offering securities to the public
1: Any reference in this Act to an offer of securities to the public
a: a reference to offering the securities to any section of the public, however selected; and
b: a reference to offering the securities to individual members of the public selected at random; and
c: a reference to offering the securities to a person if the person became known to the offeror as a result of any advertisement made by or on behalf of the offeror and that was intended or likely to result in the public seeking further information or advice about any investment opportunity or services,— whether or not any such offer is calculated to result in the securities becoming available for subscription by persons other than those receiving the offer.
2: None of the following offers shall constitute an offer of securities to the public:
a: an offer of securities made to any or all of the following persons only:
i: relatives or close business associates of the issuer or of a director of the issuer
ii: persons whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invest money:
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:
iib: persons who have each previously paid a minimum subscription price of at least $500,000 for securities (the initial securities
A: the offer of the securities is made by the issuer of the initial securities; and
B: the offer of the securities is made within 18 months of the date of the first allotment of the initial securities:
iii: any other person who in all the circumstances can properly be regarded as having been selected otherwise than as a member of the public:
b: an invitation to a person to enter into a bona fide underwriting or sub-underwriting agreement with respect to an offer of securities.
c:
d:
3: A person shall not be precluded from being regarded as a member of the public in regard to any offer of securities by reason only that he or she
4: Any reference in this Act to an offer of securities to the public
5: Proof of an offer of securities to 1 person selected as a member of the public shall be prima facie evidence of an offer of securities to the public.
6:
7: A statement or report—
a: made to or for the purposes of a general meeting of the members of the issuer, or a report of the proceedings of such a meeting; or
b: relating to the affairs of the issuer made to any stock exchange for the purposes of compliance with the listing requirements relating to that stock exchange, by or on behalf of that issuer, or any report of such statement or report— shall not constitute an offer of securities to the public.
8: In calculating the subscription price payable, or paid, for securities for the purposes of subsection (2)(a)(iia) or (iib)
9: The Governor-General may, by Order in Council, amend the minimum subscription price that applies under subsection (2)(a)(iia) or (iib) Section 3(2)(a)(i) amended 15 April 2004 section 5(1) Securities Amendment Act 2004 Section 3(2)(a)(iia) inserted 15 April 2004 section 5(2) Securities Amendment Act 2004 Section 3(2)(a)(iib) inserted 28 July 2009 section 5(1) Securities (Disclosure) Amendment Act 2009 Section 3(2)(c) repealed 1 July 2001 section 12(2) Takeovers Amendment Act 2001 Section 3(2)(d) repealed 1 July 2001 section 12(2) Takeovers Amendment Act 2001 Section 3(3) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 3(4) replaced 1 September 1983 Securities Amendment Act 1982 Section 3(6) repealed 15 April 2004 section 5(3) Securities Amendment Act 2004 Section 3(7) inserted 1 September 1983 Securities Amendment Act 1982 Section 3(8) inserted 15 April 2004 section 5(4) Securities Amendment Act 2004 Section 3(8) amended 28 July 2009 section 5(2) Securities (Disclosure) Amendment Act 2009 Section 3(9) inserted 15 April 2004 section 5(4) Securities Amendment Act 2004 Section 3(9) amended 28 July 2009 section 5(3) Securities (Disclosure) Amendment Act 2009
3A: Status of examples
1: An example used in this Act is only illustrative of the provisions to which it relates. It does not limit those provisions.
2: If an example and a provision to which it relates are inconsistent, the provision prevails. Section 3A inserted 28 July 2009 section 6 Securities (Disclosure) Amendment Act 2009
4: Application of this Act
1: The provisions of this Act shall have effect notwithstanding anything to the contrary in any other enactment or in any deed, agreement, application, prospectus, registered prospectus,
2: A condition of any agreement requiring or binding an applicant for securities to waive compliance with any requirement of this Act, or purporting to affect him or her or registered prospectus
3: Nothing in this Act shall limit any powers a trustee , superannuation trustee, unit trustee,
4: Nothing in this section or in any other provision of this Act limits the Illegal Contracts Act 1970
5: Despite subsection (4), nothing in the Illegal Contracts Act 1970 sections 37 37A Section 4(1) amended 1 September 1983 Securities Amendment Act 1982 Section 4(2) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 4(2) amended 1 September 1983 Securities Amendment Act 1982 Section 4(3) amended 1 October 1997 section 5(1) Securities Amendment Act 1996 Section 4(4) inserted 1 October 1997 section 5(2) Securities Amendment Act 1996 Section 4(5) inserted 15 April 2004 section 6 Securities Amendment Act 2004
5: Exemptions from this Act
1: Nothing in Part 2
a:
b: any estate or interest in land for which a separate certificate of title can be issued under the Land Transfer Act 1952 Unit Titles Act 2010
i: forms part of a contributory scheme; and
ii: does not entitle the holder to a right in respect of a specified part of the land for which a separate certificate of title can be so issued; or
c: any proprietary right to chattels (other than any such right that forms part of a contributory scheme); or
d: any share in the share capital of a flat or office owning company (as defined in section 121A(1) 1952 ); or
e: any interest or right to participate in the capital, assets, earnings, royalties, or other property of any company, partnership, or other person whose sole undertaking is the practice, conduct, or operation of any 1 or more of the professions, occupations, or businesses that may in law be practised, conducted, or operated only by persons having or possessing qualifications specified in Schedule 2
f: a mortgage of land other than a contributory mortgage; or
g:
h: a share purchase scheme as defined in section YA 1
i: an interest in the Government Superannuation Fund; or
j:
k: an interest in a retirement village that is an interest exempted from this Act by section 107(1)
2: An exemption under subsection (1) does not apply—
a: in the circumstances prescribed by regulations made under section 70AAA
b: if any additional requirements prescribed by regulations made under section 70AAA
2A:
2B:
2C: Nothing in sections 33(2) 37 37A(1)(c) and (d) 39 to 43B 45 to 52 54 54B(3)
2CA: Nothing in Part 2 sections 38B 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 or, if the securities are to be offered in a simplified disclosure prospectus, a copy of that prospectus
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 58
a: the only persons in New Zealand
b: the subscriber is an eligible person.
2CBA: Nothing in Part 2 sections 38B 58
a: the only persons in New Zealand who are able, under the terms of the offer of the security, to subscribe for the security are—
i: eligible persons; and
ii: persons who fall within 1 or more of the categories set out in subparagraphs (i) to (iii) of section 3(2)(a)
b: the subscriber is either—
i: an eligible person; or
ii: a person who falls within 1 or more of the categories set out in subparagraphs (i) to (iii) of section 3(2)(a)
2CC: For the purposes of subsections (2CB) and (2CBA) 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), a person is wealthy 12 months
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.
2CDA: To avoid doubt, for the purposes of subsections (2CC)(a) and (2CD), person
a: the trustees of a trust acting jointly in their capacity as trustees of that trust; and
b: the sole trustee of a trust acting in his, her, or its capacity as trustee of that trust.
2CE: For the purposes of subsection (2CC)(b) and (c), a person is 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—
i: the financial service provider has given the person neither an investment statement nor a registered prospectus relating to the security; and
ii: the person understands that he, she, or it will not receive information usually provided by an issuer in respect of an offer of securities to the public including (in particular) an investment statement and a registered prospectus.
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) Securities Markets Act 1988 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) are to be determined and valued, either generally or in specified circumstances:
c: prescribing how gross income referred to in subsection (2CD) is to be calculated, either generally or in specified circumstances.
2D: Nothing in sections 37A(1)(a) 38C to 38E and 43F
a: an interest in a call debt security as defined in regulations made under this Act; or
b: an interest in a call building society share as defined in regulations made under this Act; or
c: an interest in a bonus bond.
2E:
2F:
3: Nothing in sections 33(2) 34 to 37 37A(1)(c) and (d) and (2) 39 to 43B 44B to 54 57A to 65F
a: the Crown; or
b:
c: the National Provident Fund Board established by the National Provident Fund Act 1950; or
d: the Reserve Bank of New Zealand constituted under the Reserve Bank of New Zealand Act 1964; or
e: Housing New Zealand Corporation Housing Corporation Act 1974
f:
3A: Nothing in sections 37 37A(1)(c) and (d) and (1A) 39 to 43B
3B: The exemption in subsection (3A) is subject to the conditions that—
a: the investment statement relating to the debt securities refers to the most recent audited financial statements, and audited consolidated financial statements, for the local authority; and
b: if the date of allotment of the debt securities would be more than 9 months after the balance date of the financial statements referred to in paragraph (a), the investment statement relating to the debt securities refers to interim financial statements, and interim consolidated financial statements, for the local authority that have been prepared in accordance with generally accepted accounting practice (within the meaning of section 5(1)
c: it is a term of the offer of the debt securities to the public that the local authority will, upon the request of a security holder or a prospective investor for a copy of any financial statements referred to in paragraph (a) or (b), without fee, send, or cause to be sent, to that security holder or prospective investor, a copy of those statements; and
d: the investment statement relating to the debt securities contains, unless the debt securities are expressly guaranteed by the Crown under the Public Finance Act 1989
3C: The conditions in subsection (3B) apply despite anything to the contrary in any regulations made under this Act.
3D: The financial statements referred to in subsection (3B)(a) and (b) must, for the purposes of this Act, be treated as forming part of the investment statement relating to the debt securities.
4: Nothing in sections 6 33(3) 37 37A 38C to 38E 39 to 43B 45 to 53
4A: Nothing in sections 33 37 37A(1)(a) section HL 7(3)
4B: The exemption in subsection (4A) does not apply if the portfolio investment entity has under section HL 7(4)
5:
5A:
5B:
6: Section 5(1)(a) repealed 1 July 1989 section 43(1) Securities Markets Act 1988 Section 5(1)(b) amended 20 June 2011 section 233(1) Unit Titles Act 2010 Section 5(1)(d) replaced 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 5(1)(d) amended 28 July 2009 section 7(1) Securities (Disclosure) Amendment Act 2009 Section 5(1)(g) repealed 1 September 1983 Securities Amendment Act 1982 Section 5(1)(h) amended 1 April 2008 Income Tax Act 2007 Section 5(1)(h) amended 1 April 2005 section YA 2 Income Tax Act 2004 Section 5(1)(h) amended 15 April 2004 section 7(1) Securities Amendment Act 2004 Section 5(1)(j) repealed 1 September 1983 Securities Amendment Act 1982 Section 5(1)(k) inserted 1 May 2007 section 110 Retirement Villages Act 2003 Section 5(2) replaced 1 May 2011 section 7(1) Securities Amendment Act 2011 Section 5(2A) repealed 1 October 1997 section 6(1) Securities Amendment Act 1996 Section 5(2B) repealed 1 October 1997 section 6(2) Securities Amendment Act 1996 Section 5(2C) replaced 1 October 1997 section 6(3) Securities Amendment Act 1996 Section 5(2C) amended 1 May 2011 section 7(2) Securities Amendment Act 2011 Section 5(2CA) inserted 15 April 2004 section 7(2) Securities Amendment Act 2004 Section 5(2CA)(a)(ii) amended 28 July 2009 section 7(2) Securities (Disclosure) Amendment Act 2009 Section 5(2CB) inserted 15 April 2004 section 7(2) Securities Amendment Act 2004 Section 5(2CB)(a) amended 28 July 2009 section 7(3) Securities (Disclosure) Amendment Act 2009 Section 5(2CBA) inserted 28 July 2009 section 7(4) Securities (Disclosure) Amendment Act 2009 Section 5(2CC) inserted 15 April 2004 section 7(2) Securities Amendment Act 2004 Section 5(2CC) amended 28 July 2009 section 7(5) Securities (Disclosure) Amendment Act 2009 Section 5(2CD) inserted 15 April 2004 section 7(2) Securities Amendment Act 2004 Section 5(2CD) amended 28 July 2009 section 7(6) Securities (Disclosure) Amendment Act 2009 Section 5(2CDA) inserted 28 July 2009 section 7(7) Securities (Disclosure) Amendment Act 2009 Section 5(2CE) inserted 15 April 2004 section 7(2) Securities Amendment Act 2004 Section 5(2CE)(c) replaced 28 July 2009 section 7(8) Securities (Disclosure) Amendment Act 2009 Section 5(2CF) inserted 15 April 2004 section 7(2) Securities Amendment Act 2004 Section 5(2CF) investment advice amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 5(2CG) inserted 15 April 2004 section 7(2) Securities Amendment Act 2004 Section 5(2D) inserted 1 October 1997 section 6(3) Securities Amendment Act 1996 Section 5(2D) amended 1 May 2011 section 7(3) Securities Amendment Act 2011 Section 5(2E) repealed 15 April 2004 section 7(3) Securities Amendment Act 2004 Section 5(2F) repealed 15 April 2004 section 7(3) Securities Amendment Act 2004 Section 5(3) amended 1 May 2011 section 7(2) Securities Amendment Act 2011 Section 5(3) amended 1 May 2011 section 7(4) Securities Amendment Act 2011 Section 5(3) amended 1 October 1997 section 6(4) Securities Amendment Act 1996 Section 5(3) amended 1 September 1983 Securities Amendment Act 1982 Section 5(3)(b) repealed 1 July 1998 section 13(1) Local Government Amendment Act (No 3) 1996 Section 5(3)(e) amended 1 July 2001 section 24(1) Housing Corporation Amendment Act 2001 Section 5(3)(f) repealed 1 May 1990 section 20 Rural Banking and Finance Corporation of New Zealand Act 1989 Section 5(3A) inserted 9 April 2008 section 5(1) Securities (Local Authority Exemption) Amendment Act 2008 Section 5(3A) amended 1 May 2011 section 7(2) Securities Amendment Act 2011 Section 5(3B) inserted 9 April 2008 section 5(1) Securities (Local Authority Exemption) Amendment Act 2008 Section 5(3C) inserted 9 April 2008 section 5(1) Securities (Local Authority Exemption) Amendment Act 2008 Section 5(3D) inserted 9 April 2008 section 5(1) Securities (Local Authority Exemption) Amendment Act 2008 Section 5(4) replaced 1 September 1983 Securities Amendment Act 1982 Section 5(4) amended 1 May 2011 section 7(2) Securities Amendment Act 2011 Section 5(4) amended 1 May 2011 section 7(5) Securities Amendment Act 2011 Section 5(4) amended 1 October 1997 section 6(5) Securities Amendment Act 1996 Section 5(4A) inserted 1 October 2007 section 233 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 Section 5(4B) inserted 1 October 2007 section 233 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 Section 5(5) repealed 1 May 2011 section 7(6) Securities Amendment Act 2011 Section 5(5A) repealed 1 May 2011 section 7(6) Securities Amendment Act 2011 Section 5(5B) repealed 1 May 2011 section 7(6) Securities Amendment Act 2011 Section 5(6) repealed 1 May 2011 section 7(6) Securities Amendment Act 2011
5A: Exemption for employer superannuation schemes
Nothing in sections 37 37A(1)(c) 39 to 43B Section 5A inserted 15 April 2004 section 8 Securities Amendment Act 2004 Section 5A amended 1 May 2011 section 8 Securities Amendment Act 2011
5B: Conditions of exemption for employer superannuation schemes
The exemption in section 5A
a: each annual report prepared under section 14
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. Section 5B inserted 15 April 2004 section 8 Securities Amendment Act 2004
5C: Definitions for the purposes of sections 5A to 5C
1: For the purposes of this section and sections 5A 5B crime involving dishonesty section 2(1) custodian de facto partner Property (Relationships) Act 1976 employer superannuation scheme section 2(1)
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,
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
a: in relation to a KiwiSaver scheme other than a restricted scheme, has the same meaning as in section 4(1)
b: in relation to any other scheme, means an administration manager or an investment manager (as those terms are defined in section 2(1) partner specified date spouse Property (Relationships) Act 1976
2: For the purposes of the definition of employer superannuation scheme, the costs of administering a scheme do not include costs that are directly attributable to the management of the investments of the scheme. Section 5C inserted 15 April 2004 section 8 Securities Amendment Act 2004 Section 5C(1) employer superannuation scheme amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 5C(1) manager replaced 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 5C(1) partner inserted 26 April 2005 section 7 Relationships (Statutory References) Act 2005
6: Previously allotted securities
1: Subject to this section, nothing in sections 33 34 37 to 38A 38C to 43B 44B to 59
2: All the provisions of this Act shall apply in respect of a security that has previously been allotted (whether in New Zealand or elsewhere) if the security was originally allotted with a view to its being offered for sale to the public in New Zealand and the security has not previously been offered for sale to the public in New Zealand or to the public outside New Zealand under an application regime under Part 5
2AA: A provision of Part 2
a: the provision applies to the security under section 77
b: the security was originally allotted with a view to its being offered for sale to the public outside New Zealand in circumstances in which an application regime under Part 5
c: the security has not previously been offered for sale to the public in New Zealand or to the public outside New Zealand under an application regime under Part 5
2A: All the provisions of this Act shall apply in respect of a unit in a unit trust that has previously been allotted (whether in New Zealand or elsewhere) and that is being offered, sold, or otherwise disposed of to the public for subscription by the manager or unit trustee of the unit trust or by an associated person of that manager or unit trustee.
3: All the provisions of this Act shall apply in respect of an equity security or a security convertible into an equity security if the holder or offeror, not being the original allotter, offers the security for sale to the public
4: Nothing in subsection (3) applies in respect of—
a: an offer by the holder of a security, being an offer of the security to the public, that is made only to persons who, at the time of the offer, are holders of securities of the original allotter under terms of the articles of association or the constitution of the original allotter that require the offer to be made to those persons; or
b: an offer by the holder of a security, being an offer of the security to the public, where the aggregate amount received by the holder, or persons associated with the holder, pursuant to offers of such securities to the public for subscription does not exceed $200,000 in any period of 12 months; or
c: an offer by the holder of a security that is made—
i: to not more than 6 members of the public; or
ii: if the offer is made to more than 6 members of the public, the offer is made with a view to its being accepted by not more than 6 members of the public.
5: For the purposes of subsections (2) and (2AA)
a: that an offer of the security for sale to the public was made within 6 months after the allotment; or
b: that, at the date when the offer was made, the consideration to be received by the allotter in respect of the security had not been received.
6: For the purposes of subsection (4)(c), unless the contrary is proved, an offer shall be deemed to have been made with a view to its being accepted by more than 6 members of the public if, within the period of 12 months immediately following the making of the offer, more than 6 persons acquire an interest, whether direct or indirect, in securities of the same class offered to the public for subscription by the holder.
7: Notwithstanding anything in section 2 or subsection (2AA) subsection (2A) or issuer sections 51 to 54 Section 6 replaced 1 July 1994 Securities Amendment Act 1993 Section 6(1) amended 1 May 2011 section 9 Securities Amendment Act 2011 Section 6(1) amended 1 October 1997 section 7(1) Securities Amendment Act 1996 Section 6(2) amended 1 December 2002 section 5(1) Securities Amendment Act 2002 Section 6(2AA) inserted 1 December 2002 section 5(2) Securities Amendment Act 2002 Section 6(2A) inserted 1 October 1997 section 7(2) Securities Amendment Act 1996 Section 6(3) amended 1 December 2002 section 5(3) Securities Amendment Act 2002 Section 6(5) amended 1 December 2002 section 5(4) Securities Amendment Act 2002 Section 6(7) amended 1 December 2002 section 5(5) Securities Amendment Act 2002 Section 6(7) amended 1 October 1997 section 7(3) Securities Amendment Act 1996
6A: Term implied in certain offers of previously allotted securities
1: This section applies to a security—
a: that is exempted from the application of sections 33 34 37 to 38A 38C to 43B 44B to 59 section 6(1)
b: that is not a security to which any of subsections (2), (2AA), section 6
c: that is offered to the public
2: Subject to subsection (3), it is an implied term of every offer of a security to which this section applies, that, except to the extent disclosed for the purposes of the offer of the security, the offeror has no information in relation to the original allotter that is not publicly available and that would, or would be likely to, affect materially the price of the security if it were so disclosed.
3: For the purposes of subsection (2), an offeror is not to be taken to have information in relation to the original allotter if—
a: arrangements existed to ensure that no individual who took part in the decision to offer the securities to the public received, or had access to, that information or was influenced, in relation to that decision, by an individual who had that information; and
b: no individual who took part in the decision to offer the securities to the public received, or had access to, that information or was influenced, in relation to that decision, by an individual who had that information. Section 6A replaced 1 July 1994 Securities Amendment Act 1994 Section 6A(1)(a) amended 1 May 2011 section 10 Securities Amendment Act 2011 Section 6A(1)(a) amended 1 October 1997 section 8(1) Securities Amendment Act 1996 Section 6A(1)(b) amended 1 December 2002 section 6(1) Securities Amendment Act 2002 Section 6A(1)(b) amended 1 October 1997 section 8(2) Securities Amendment Act 1996 Section 6A(1)(c) amended 1 December 2002 section 6(2) Securities Amendment Act 2002
7: Territorial scope of Part 2
1: Part 2
a: where any resulting allotment occurs:
b: where the issuer is resident, incorporated, or carries on business.
2: For the purposes of this Act, a security is offered to a person in New Zealand if an offer of that security for subscription is received by a person in New Zealand, unless the issuer demonstrates that it took all reasonable steps to ensure that members of the public in New Zealand may not accept the offer.
3: Sections 38B 58 section 58(3) and (4)
a: in the case of section 38B
b: in the case of section 58
4: For the purpose of subsection (3), the definitions of advertisement offer
5: The territorial scope of Part 2 Part 5
6: For the avoidance of doubt, nothing in Part 2 Section 7 replaced 1 December 2002 section 7 Securities Amendment Act 2002
7A: Temporary exemption for superannuation schemes
Section 7A expired 14 September 2001
7B: Terms and conditions of authorisation
Section 7B repealed 1 October 1997 section 9(1) Securities Amendment Act 1996
8: Act to bind Crown
This Act shall bind the Crown.
1: Securities Commission
Part 1 repealed 1 May 2011 section 11 Securities Amendment Act 2011
9: Securities Commission
Section 9 repealed 1 May 2011 section 11 Securities Amendment Act 2011
10: Functions of Commission
Section 10 repealed 1 May 2011 section 11 Securities Amendment Act 2011
11: Membership of Commission
Section 11 repealed 1 May 2011 section 11 Securities Amendment Act 2011
12: Appointment of member to exercise powers of
chairperson Section 12 repealed 25 January 2005 section 200 Crown Entities Act 2004
13: Term of office of members
Section 13 repealed 1 May 2011 section 11 Securities Amendment Act 2011
14: Remuneration of members
Section 14 repealed 25 January 2005 section 200 Crown Entities Act 2004
14A: Travelling allowances and expenses
Section 14A repealed 25 January 2005 section 200 Crown Entities Act 2004
14B: Commission may act by divisions
Section 14B repealed 1 May 2011 section 11 Securities Amendment Act 2011
14C: Membership, chairperson, meetings, and resolutions of division
Section 14C repealed 1 May 2011 section 11 Securities Amendment Act 2011
14D: Powers of division
Section 14D repealed 1 May 2011 section 11 Securities Amendment Act 2011
15: Meetings of Commission
Section 15 repealed 1 May 2011 section 11 Securities Amendment Act 2011
15A: Completion of proceedings where member unable to attend meeting
Section 15A repealed 1 May 2011 section 11 Securities Amendment Act 2011
16: Assent to resolution without a meeting
Section 16 repealed 1 May 2011 section 11 Securities Amendment Act 2011
17: General powers of Commission
Section 17 repealed 25 January 2005 section 200 Crown Entities Act 2004
17A: Sharing of information with Takeovers Panel
Section 17A repealed 1 May 2011 section 11 Securities Amendment Act 2011
17B: Sharing of information with Commerce Commission
Section 17B repealed 1 May 2011 section 11 Securities Amendment Act 2011
18: Powers of Commission to take evidence
Section 18 repealed 1 December 2002 section 12 Securities Amendment Act 2002
18A: Commission may take evidence for overseas commission or body
Section 18A repealed 1 December 2002 section 12 Securities Amendment Act 2002
19: Provisions relating to certain proceedings before Commission
Section 19 repealed 1 December 2002 section 12 Securities Amendment Act 2002
20: Employees of Commission
Section 20 repealed 25 January 2005 section 200 Crown Entities Act 2004
21: Employment of experts
Section 21 repealed 25 January 2005 section 200 Crown Entities Act 2004
22: Superannuation or retiring allowances
Section 22 repealed 1 May 2011 section 11 Securities Amendment Act 2011
23: Application of certain Acts to members and staff of Commission
Section 23 repealed 25 January 2005 section 200 Crown Entities Act 2004
24: Members of Commission and staff deemed to be officials
Section 24 repealed 25 January 2005 section 200 Crown Entities Act 2004
25: Commission may state case for opinion of High Court
Section 25 repealed 1 December 2002 section 12 Securities Amendment Act 2002
26: Appeals to High Court on questions of law only
Section 26 repealed 1 December 2002 section 12 Securities Amendment Act 2002
27: Restrictions on delegation
Section 27 repealed 1 May 2011 section 11 Securities Amendment Act 2011
28: Protection from liability for Commission and members, officers, and employees
Section 28 repealed 1 May 2011 section 11 Securities Amendment Act 2011
28A: Commission may publish reports
Section 28A repealed 1 May 2011 section 11 Securities Amendment Act 2011
29: Evidence of resolution of Commission
Section 29 repealed 1 May 2011 section 11 Securities Amendment Act 2011
30: Annual reports
Section 30 repealed 25 January 2005 section 200 Crown Entities Act 2004
31: Money to be appropriated by Parliament for purposes of this Act
Section 31 repealed 25 January 2005 section 200 Crown Entities Act 2004
31A: Funds of Commission
Section 31A repealed 25 January 2005 section 200 Crown Entities Act 2004
31B: Bank accounts
Section 31B repealed 25 January 2005 section 200 Crown Entities Act 2004
31C: Auditor-General to be auditor of Commission
Section 31C repealed 25 January 2005 section 200 Crown Entities Act 2004
31CA: Crown entity
Section 31CA repealed 25 January 2005 section 200 Crown Entities Act 2004
31D: Investment of money
Section 31D repealed 25 January 2005 section 200 Crown Entities Act 2004
31E: Exemption from income tax
Section 31E repealed 1 May 2011 section 11 Securities Amendment Act 2011
32: Offences
Section 32 repealed 1 December 2002 section 14 Securities Amendment Act 2002
2: Restrictions on offer and allotment of securities to the public
33: Restrictions on offer of securities to the public
1: No security shall be offered to the public for subscription, by or on behalf of an issuer, unless—
a: the offer is made in, or accompanied by, an authorised advertisement that is an investment statement that complies with this Act and regulations; or
b: the offer is made in an authorised advertisement that is not an investment statement; or
c: the offer is made in, or accompanied by, a registered prospectus that complies with this Act and regulations.
2: No debt security shall be offered to the public for subscription, by or on behalf of an issuer, unless—
a: the issuer of the security has appointed a person who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011
ab: the trust deed complies with this Act and the regulations; and
b: a copy of the trust deed has been registered by the Registrar pursuant to section 46
c: where the provisions of the trust deed have been amended, a copy of the instrument amending the deed has been registered by the Registrar pursuant to section 47
3: No participatory security shall be offered to the public for subscription, by or on behalf of an issuer, unless—
a: the issuer of the security has appointed a person who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011
ab: the deed of participation complies with this Act and the regulations; and
b: a copy of the deed of participation has been registered by the Registrar pursuant to section 46
c: where the provisions of the deed of participation have been amended, a copy of the instrument amending the deed has been registered by the Registrar pursuant to section 47 Section 33(1) replaced 1 October 1997 section 11(1) Securities Amendment Act 1996 Section 33(2)(a) amended 1 October 2011 section 68(1) Securities Trustees and Statutory Supervisors Act 2011 Section 33(2)(ab) inserted 1 May 2011 section 12(1) Securities Amendment Act 2011 Section 33(3)(a) amended 1 October 2011 section 68(2) Securities Trustees and Statutory Supervisors Act 2011 Section 33(3)(ab) inserted 1 May 2011 section 12(2) Securities Amendment Act 2011
34: Restrictions on distribution of prospectuses
1: No registered prospectus shall be distributed by or on behalf of an issuer,—
a: after it has been amended unless all the amendments have been incorporated in, or attached by way of an instrument
b: if it is false or misleading in a material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances (whether or not it became so misleading as a result of a change in circumstances occurring after the date of the prospectus).
2: A registered prospectus shall not be distributed by or on behalf of an issuer unless it is accompanied by,—
a: if the registered prospectus refers to, but does not contain, financial statements registered under the Financial Reporting Act 1993
b: a copy of any documents registered under this Act for the purpose of extending the period during which allotments may be made under the registered prospectus.
3: However, subsection (2)(a) does not apply to a simplified disclosure prospectus. Section 34 replaced 1 September 1983 Securities Amendment Act 1982 Section 34(1)(a) replaced 28 July 1997 section 6 Securities Amendment Act (No 2) 1997 Section 34(1)(a) amended 1 May 2011 section 13 Securities Amendment Act 2011 Section 34(2) inserted 1 October 1997 section 12 Securities Amendment Act 1996 Section 34(3) inserted 28 July 2009 section 8 Securities (Disclosure) Amendment Act 2009
35: Restrictions on door-to-door sales
1: No person shall go from house to house offering securities to the public or any member of the public.
2: In this section, the term house
3: In this section, the term securities Section 35(3) replaced 1 October 1997 section 13 Securities Amendment Act 1996
36: Restrictions on advertising of otherwise exempt securities
Section 36 repealed 1 September 1983 Securities Amendment Act 1982
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. Section 36A inserted 15 April 2004 section 10 Securities Amendment Act 2004
37: Void irregular allotments
1: No allotment of a security offered to the public for subscription shall be made unless at the time of the subscription for the security there was a registered prospectus relating to the security.
1A: No allotment of a security that is offered in a simplified disclosure prospectus may be made—
a: by a person who is subject to a prohibition order while that order is in force; or
b: in contravention of section 44AD(1)
1B: No allotment of a security offered to the public for subscription may be made in contravention of section 43D(1) 43I(4) 43K(5)(b)
2: No allotment shall be made of an equity security or a participatory security or a unit in a unit trust
a: a sum shall be deemed to have been paid to, and received by, the issuer if a cheque for that sum is received in good faith by the issuer and the directors of the issuer have no reason to suspect that the cheque will not be paid:
b: the amount so stated in the registered prospectus shall be reckoned exclusively of any amount payable otherwise than in cash.
2A: Subsection (2) does not apply if there is no minimum amount which, in the opinion of the directors of the issuer, must be raised by the issue of the securities in order to provide for the matters specified in regulations made under this Act.
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: Any allotment made in contravention of the provisions of this section shall be invalid and of no effect.
5: Where subscriptions for securities are received by or on behalf of an issuer, but, by virtue of this section, the securities may not be allotted, or for any reason the securities are not allotted, the issuer shall ensure that—
a:
b: the subscriptions, together with such interest (if any) as has been earned thereon, are repaid to the subscribers as soon as reasonably practicable.
6: If any subscriptions to which this section applies are not so repaid within 2 months after the date on which the subscriptions were received by or on behalf of the issuer (or, in any case to which subsection (2) applies, within 5 months after the date of the registered prospectus), the issuer and all the directors thereof shall be jointly and severally liable to repay the subscriptions, together with interest at a rate prescribed from time to time by regulations made under this Act provided that a director shall not be so liable if he or she or her
7: Section 37 replaced 1 September 1983 Securities Amendment Act 1982 Section 37(1A) inserted 28 July 2009 section 9 Securities (Disclosure) Amendment Act 2009 Section 37(1B) inserted 1 May 2011 section 14 Securities Amendment Act 2011 Section 37(2) amended 15 April 2004 section 11(1) Securities Amendment Act 2004 Section 37(2) amended 1 October 1997 section 14(1) Securities Amendment Act 1996 Section 37(2A) inserted 15 April 2004 section 11(2) Securities Amendment Act 2004 Section 37(3) replaced 15 April 2004 section 11(3) Securities Amendment Act 2004 Section 37(5)(a) repealed 15 April 2004 section 11(4) Securities Amendment Act 2004 Section 37(6) amended 1 October 1997 section 3 Securities Amendment Act 1997 Section 37(6) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 37(6) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 37(7) repealed 1 January 2011 section 58 Limitation Act 2010 Relief orders in respect of section 37 Heading inserted 15 April 2004 section 12 Securities Amendment Act 2004
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
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. Section 37AA inserted 15 April 2004 section 12 Securities Amendment Act 2004
37AB: Effect of relief order in respect of section 37
Section 37(4) to (6) section 37AC section 37AH section 37AI Section 37AB inserted 15 April 2004 section 12 Securities Amendment Act 2004 Mandatory relief orders Heading inserted 15 April 2004 section 12 Securities Amendment Act 2004
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 70B section 5(3A) or 5A
ii: the issuer has given notice of that contravention to the subscriber in accordance with sections 37AE 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 section 37AI Section 37AC inserted 15 April 2004 section 12 Securities Amendment Act 2004 Section 37AC(1)(e)(i) replaced 1 May 2011 section 15 Securities Amendment Act 2011
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 of a kind referred to in section 37AC(1)(e)(i) section 37
iv: an investment statement relating to the security, unless an exemption from section 37A(1)(a) this Act
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 information concerning that prospectus can be obtained from the register:
vii: if the security is offered in a simplified disclosure prospectus, a copy of that simplified disclosure prospectus.
1A: However, subsection (1)(b)(iv) and (v) do not apply to securities that are offered in a simplified disclosure prospectus.
2: Subsection (1)(b)(v) and (vi) does not apply if an exemption from section 37(1) this Act
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) has been received by the person:
b: that consent is given before there is a registered prospectus relating to the security if the notice referred to in subsection (1)(b) is required to contain, or have attached to it, the statements referred to in subsection (1)(b)(v) and (vi). Section 37AD inserted 15 April 2004 section 12 Securities Amendment Act 2004 Section 37AD(1)(b)(iii) amended 1 May 2011 section 16(1) Securities Amendment Act 2011 Section 37AD(1)(b)(iv) amended 1 May 2011 section 16(2) Securities Amendment Act 2011 Section 37AD(1)(b)(vi) replaced 1 July 2013 section 16(3) Securities Amendment Act 2011 Section 37AD(1)(b)(vii) inserted 28 July 2009 section 10(1) Securities (Disclosure) Amendment Act 2009 Section 37AD(1A) inserted 28 July 2009 section 10(2) Securities (Disclosure) Amendment Act 2009 Section 37AD(2) amended 1 May 2011 section 16(4) Securities Amendment Act 2011
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); and
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)
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. Section 37AE inserted 15 April 2004 section 12 Securities Amendment Act 2004
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
iia: in the case of an interest in a KiwiSaver scheme other than a restricted scheme, the KiwiSaver trustee; and
iii: in the case of a unit in a unit trust, the unit trustee (if any); and
iv: the FMA
2: The issuer must comply with subsection (1)(a) to (d) within a consecutive period of 5 working days.
3: However, the issuer does not have to comply with subsection (1)(a) if the issuer does not have knowledge of a current address for a subscriber and has taken reasonable steps to obtain a current address for the subscriber.
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) was complied with by the issuer; or
b: on which subsection (1)(b) to (d) was complied with by the issuer if subsection (3) applies.
5: The form of the notice that is published under subsection (1)(b) and (c) must not contain any personal information (within the meaning of the Privacy Act 1993 Section 37AF inserted 15 April 2004 section 12 Securities Amendment Act 2004 Section 37AF(1)(d)(iia) inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 37AF(1)(d)(iv) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
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) only if—
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) may not be made 1 year or more after the date on which the court makes a relief order under section 37AC
4: Subsection (1) applies regardless of whether the contravention of section 37 Section 37AG inserted 15 April 2004 section 12 Securities Amendment Act 2004 Discretionary relief orders Heading inserted 15 April 2004 section 12 Securities Amendment Act 2004
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 section 37AI Section 37AH inserted 15 April 2004 section 12 Securities Amendment Act 2004 Transitional provision for relief orders Heading inserted 15 April 2004 section 12 Securities Amendment Act 2004
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 in clause 3 of the Securities Act (Australian Unit Trusts) Exemption Notice 1995 (SR 1995/105); or
b: any of the requirements in paragraph (d) of the definition of Australian prospectus in clause 4 of the Securities Act (Australian Unit Trusts) Exemption Notice 1996 (SR 1996/74); or
c: the condition in clause 5 of the Securities Act (Australian Unit Trusts) Exemption Notice 1997 (SR 1997/216); or
d: the condition in clause 5 of the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 1999 (SR 1999/119); or
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 section 37AH Section 37AI inserted 15 April 2004 section 12 Securities Amendment Act 2004 Other orders in relation to section 37AH and section 37AI relief orders Heading inserted 15 April 2004 section 12 Securities Amendment Act 2004
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 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 Section 37AJ inserted 15 April 2004 section 12 Securities Amendment Act 2004 Service, rights to appear, and other proceedings Heading inserted 15 April 2004 section 12 Securities Amendment Act 2004
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 FMA
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 FMA
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):
fa: in the case of an interest in a KiwiSaver scheme other than a restricted scheme, the KiwiSaver trustee:
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), a notice of an application does not have to be served on a subscriber if, in connection with the security, the issuer has given the subscriber a notice in accordance with sections 37AE 37AF
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 FMA
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):
ca: in the case of an interest in a KiwiSaver scheme other than a restricted scheme, the KiwiSaver trustee:
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), the court may, if it thinks fit, order that notice of an application does not have to be served on a person or a class of persons.
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), 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:
b: in accordance with subsection (5), the person may appear and be heard in relation to the matters referred to in 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. Section 37AK inserted 15 April 2004 section 12 Securities Amendment Act 2004 Section 37AK(2)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37AK(3)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37AK(3)(fa) inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 37AK(5)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37AK(5)(ca) inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011
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) applies if—
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. Section 37AL inserted 15 April 2004 section 12 Securities Amendment Act 2004
37A: Voidable irregular allotments
1: No allotment of a security offered to the public for subscription shall be made if—
a: the subscriber did not receive an
ab: in the case of a security that is offered in a simplified disclosure prospectus,—
i: the subscriber did not receive, before subscribing for the security, a copy of—
A: that simplified disclosure prospectus; and
B: every instrument that amends that prospectus that is registered under section 43
ii: the FMA
b: at the time of allotment, the
c: the date of allotment would be more than,—
i: where the registered prospectus relating to the security contains or refers to a statement of financial position statement of financial position statement of financial position statement of financial position
ii: where the registered prospectus relating to the security contains or refers to a statement of financial position statement of financial position
iii: in any other case, 6 months after the date of the registered prospectus; or
d: in the case of an equity security, debt security, or participatory security, after the allotment, the total amount of securities allotted under the registered prospectus relating to the security would (after deducting, in the case of an allotment of debt securities, the total amount of debt securities of the issuer redeemed since the date of the registered prospectus) exceed the amount specified in the registered prospectus as the maximum amount that will be so allotted.
1AA: However, subsection (1)(a) does not apply to securities that are offered in a simplified disclosure prospectus.
1A: For the purposes of subsection (1)(c), if no interim statement of financial position
a: is signed on behalf of all the directors by at least 2 directors of the issuer (or, where the issuer has only 1 director, by that director); and
b: is dated no later than 9 months after the date of the statement of financial position
c: states that, in the opinion of all directors of the issuer after due enquiry by them,—
i: the financial position shown in the statement of financial position statement of financial position
ii: the registered prospectus is not, at the date of the certificate, false or misleading in a material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances; and
d: where the registered prospectus relates to equity securities, debt securities, or participatory securities, is accompanied by financial statements—
i: for the 6-month period from the date of the statement of financial position
ii: prepared in accordance with regulations as if they were required to be contained or referred to in a registered prospectus for those securities, except that they need not be audited.
2:
3: An allotment made in contravention of this section is (whether or not the issuer is in liquidation)
4: For the purpose of subsection (3), prescribed period
a: a period of 1 year after the security or a certificate of the security has been sent to the subscriber; or
b: a period of 6 months after the subscriber knows, or ought reasonably to know, that the allotment was made in contravention of the provisions of this section— whichever is the lesser.
5: Without limiting any enactment or rule of law, an allotment made in contravention of this section shall be valid unless notice avoiding the allotment is given by the subscriber in accordance with subsection (3).
6: Where an allotment made in contravention of this section is avoided by the subscriber under subsection (3), the issuer shall forthwith upon receiving notice under that subsection, repay the subscriptions to the subscriber.
7: If such subscriptions are not so repaid within 1 month after the date of the receipt by the issuer of notice under subsection (3), the issuer and all the directors thereof shall be jointly and severally liable to repay the subscriptions with interest at a rate prescribed from time to time by regulations made under this Act provided that a director shall not be so liable if he or she or her
8: Section 37A inserted 1 September 1983 Securities Amendment Act 1982 Section 37A(1) replaced 1 October 1997 section 15(1) Securities Amendment Act 1996 Section 37A(1)(a) amended 1 October 1997 section 4(1)(a) Securities Amendment Act 1997 Section 37A(1)(ab) inserted 28 July 2009 section 11(1) Securities (Disclosure) Amendment Act 2009 Section 37A(1)(ab)(i)(B) replaced 1 May 2011 section 17 Securities Amendment Act 2011 Section 37A(1)(ab)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37A(1)(b) amended 1 October 1997 section 4(1)(b) Securities Amendment Act 1997 Section 37A(1)(c)(i) amended 1 October 1997 section 4(1)(c) Securities Amendment Act 1997 Section 37A(1)(c)(ii) amended 1 October 1997 section 4(1)(c) Securities Amendment Act 1997 Section 37A(1AA) inserted 28 July 2009 section 11(2) Securities (Disclosure) Amendment Act 2009 Section 37A(1A) inserted 1 October 1997 section 15(1) Securities Amendment Act 1996 Section 37A(1A) amended 1 October 1997 section 4(2) Securities Amendment Act 1997 Section 37A(1A)(b) amended 1 October 1997 section 4(2) Securities Amendment Act 1997 Section 37A(1A)(c)(i) amended 1 October 1997 section 4(2) Securities Amendment Act 1997 Section 37A(1A)(d)(i) amended 1 October 1997 section 4(2) Securities Amendment Act 1997 Section 37A(2) repealed 15 April 2004 section 13(1) Securities Amendment Act 2004 Section 37A(3) amended 28 July 2009 section 11(3) Securities (Disclosure) Amendment Act 2009 Section 37A(7) amended 1 October 1997 section 4(3) Securities Amendment Act 1997 Section 37A(7) proviso amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 37A(7) proviso amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 37A(8) repealed 1 January 2011 section 58 Limitation Act 2010 Relief orders in respect of section 37A Heading inserted 15 April 2004 section 14 Securities Amendment Act 2004
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 section 37D section 37A
2: However, an application to the court for a relief order in respect of the application of section 37A
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. Section 37B inserted 15 April 2004 section 14 Securities Amendment Act 2004 Discretionary relief orders Heading inserted 15 April 2004 section 14 Securities Amendment Act 2004
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 Section 37C inserted 15 April 2004 section 14 Securities Amendment Act 2004 Transitional provision for relief orders Heading inserted 15 April 2004 section 14 Securities Amendment Act 2004
37D: Transitional provision for relief orders in respect of section 37A
1: This section applies to a contravention of section 37A
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 Section 37D inserted 15 April 2004 section 14 Securities Amendment Act 2004 Other orders Heading inserted 15 April 2004 section 14 Securities Amendment Act 2004
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 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 Section 37E inserted 15 April 2004 section 14 Securities Amendment Act 2004 Service, rights to appear, and other proceedings Heading inserted 15 April 2004 section 14 Securities Amendment Act 2004
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 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 FMA
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):
ea: in the case of an interest in a KiwiSaver scheme other than a restricted scheme, the KiwiSaver trustee:
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), the court may, if it thinks fit, order that notice of an application does not have to be served on a person or a class of persons.
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. Section 37F inserted 15 April 2004 section 14 Securities Amendment Act 2004 Section 37F(1)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37F(1)(ea) inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011
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) applies if—
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 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. Section 37G inserted 15 April 2004 section 14 Securities Amendment Act 2004 Advertisements Heading replaced 1 October 1997 section 16(1) Securities Amendment Act 1996
38: Meaning of authorised advertisement
In this Act, the term authorised advertisement
a: in relation to an offer of securities to the public in respect of which an investment statement is required, an advertisement—
i: that is an investment statement that relates to the securities and that complies with this Act and regulations; or
ii: that refers to an investment statement that relates to the securities referred to in the advertisement and that complies with this Act and regulations:
b: in relation to an offer of securities to the public in respect of which an investment statement is not required, but in respect of which a registered prospectus or a disclosure statement under section 81
i: that refers to a registered prospectus or a current disclosure statement; and
ii: that describes where a copy of the prospectus or the disclosure statement can be obtained free of charge; and
iii: that complies with this Act and regulations:
c: in any other case, an advertisement that complies with this Act and regulations. Section 38 replaced 1 October 1997 section 16(1) Securities Amendment Act 1996 Section 38(b) replaced 1 October 1997 section 5 Securities Amendment Act 1997 Section 38(c) inserted 1 October 1997 section 5 Securities Amendment Act 1997
38AA: Meaning of authorised advertisement in relation to offers of debt securities by registered banks
Section 38AA repealed 1 October 1997 section 6 Securities Amendment Act 1997
38A: Statement in advertisement by expert
No advertisement shall contain a statement purporting to be made by an expert unless—
a: the expert has given and has not, before distribution of the advertisement, withdrawn his or her
b: a statement of the expert's qualifications appears in the advertisement; and
c: if the expert is, or is intended to be, an officer, director, or employee of, or professional adviser to, the issuer of the securities referred to in the advertisement, a statement appears in the advertisement to that effect. Section 38A inserted 1 September 1983 Securities Amendment Act 1982 Section 38A(a) amended 3 May 2001 section 5(d) Securities Amendment Act 2001
38B: Prohibition of advertisements
1: Where, at any time, the FMA
a: is likely to deceive, mislead, or confuse with regard to any particular that is material to the offer of securities to which it relates; or
b: is inconsistent with any registered prospectus referred to in it; or
c: does not comply with this Act and regulations,— the FMA
2: Without limiting subsection (1), where, at any time, the FMA section 81 FMA
3: An order may be made on such terms and conditions as the FMA
4: Where the FMA
a: it shall forthwith notify the issuer of the securities that the order has been made and the reasons for making it; and
b: it may notify any other person that the order has been made and the reasons for making it.
5: Every person who contravenes an order made under this section commits an offence and is liable on
6: It is a defence to a charge under subsection (5) if the defendant proves that the advertisement was distributed—
a: without the defendant's knowledge; or
b: without the defendant's knowledge of the order.
7: The FMA must, after an order has been made under this section, give the issuer or the issuer's representative an opportunity to make written submissions and to be heard on the matter.
8: The FMA
9: In this section, the term advertisement Section 38B inserted 1 October 1997 section 17 Securities Amendment Act 1996 Section 38B(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 38B(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 38B(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 38B(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 38B(5) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 38B(7) replaced 1 May 2011 section 18 Securities Amendment Act 2011 Section 38B(8) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Investment statements Heading inserted 1 October 1997 section 17 Securities Amendment Act 1996
38C: Meaning of investment statement
In this Act, the term investment statement
a: contains or refers to 1 or more offers of securities to the public for subscription; and
b: states that it is an investment statement for the purposes of this Act. Section 38C inserted 1 October 1997 section 17 Securities Amendment Act 1996
38D: Purpose of investment statement
The purpose of an investment statement is to—
a: provide certain key information that is likely to assist a prudent but non-expert person to decide whether or not to subscribe for securities; and
b: bring to the attention of such a person the fact that other important information about the securities is available to that person in other documents. Section 38D inserted 1 October 1997 section 17 Securities Amendment Act 1996
38E: Form and content of investment statement
1: Every investment statement shall—
a: be in writing; and
b: state, in a prominent place, the date as at which the investment statement is prepared; and
c: if a registered prospectus is required in respect of the securities referred to in the investment statement, state that there is a registered prospectus containing an offer of securities to which the investment statement relates; and
d: contain all information, statements, and other matters that it is required to contain by regulations.
2: An investment statement may relate to any or all of the following:
a: 1 or more kinds of securities:
b: 1 or more offers of or subscriptions for securities of a particular kind.
3: Unless this Act or regulations provide otherwise, nothing in this Act or in regulations limits the information, statements, or other matters that may be contained in an investment statement. Section 38E inserted 1 October 1997 section 17 Securities Amendment Act 1996 Section 38E(1)(c) replaced 1 October 1997 section 7 Securities Amendment Act 1997
38F: Suspension and prohibition of investment statement
Section 38F repealed 1 May 2011 section 19 Securities Amendment Act 2011 Prospectuses
39: Form and content of prospectus
1: Every prospectus and registered prospectus shall—
a: be in writing and be dated; and
b: specify any documents required by section 41
c: contain all information, statements, certificates, and other matters that it is required to contain by regulations made under this Act.
2: A prospectus or registered prospectus may form part of, or be combined with, any annual report or other document that is required by any enactment; and, in any such case, the provisions of this Act and of all regulations made under this Act shall apply to that annual report or other document.
3: Unless this Act or regulations provide otherwise, nothing in this Act or in regulations made under this Act limits the information, statements, certificates, or other matters that may be contained in a prospectus or registered prospectus. Section 39 replaced 1 September 1983 Securities Amendment Act 1982 Section 39(2) inserted 1 October 1997 section 18 Securities Amendment Act 1996 Section 39(3) inserted 1 October 1997 section 18 Securities Amendment Act 1996
40: Statement in prospectus by expert
1: No prospectus delivered to the Registrar for registration under this Act, and no registered prospectus, shall contain a statement purporting to be made by an expert unless—
a: the expert has given and has not, before delivery of a copy of the prospectus for registration in accordance with section 41 or her
b: a statement that the expert has given and has not withdrawn his or her
c: a statement of the expert's qualifications appears in the prospectus or registered prospectus; and
d: a statement which appears in the prospectus or registered prospectus states whether or not the expert is or is intended to be a director, officer, or employee of, or professional adviser to, the issuer of the prospectus; and
e: if the statement by the expert was made more than 4 months before the date of delivery of the prospectus for registration in accordance with section 41
2: Where under subsection (1)(e), a supplementary statement by an expert is required to appear in a prospectus or registered prospectus—
a: the supplementary statement shall specifically affirm, deny, or qualify all assertions of fact contained in the original statement; and
b: if in the opinion of the expert making the supplementary statement, any opinions expressed in the original statement require further comment because of any such denial or qualification of any assertions of fact, or for any other reason, the supplementary statement shall contain such comments. Section 40 replaced 1 September 1983 Securities Amendment Act 1982 Section 40(1)(a) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 40(1)(b) amended 3 May 2001 section 5(d) Securities Amendment Act 2001
41: Requirements relating to prospectuses delivered to Registrar for registration
1: Every prospectus delivered to the Registrar for registration under this Act shall—
a: have endorsed thereon or attached thereto—
i: any consent to the issue thereof required by section 40
ii: all documents, information, certificates, and other matters required to be endorsed thereon or attached thereto for the purposes of this section by regulations made under this Act; and
b: be signed by—
i: the issuer of the prospectus (if an individual) and every person who is a director of the issuer at the time the prospectus is delivered to the Registrar, or by its or his or her
ii: every promoter of the securities to which the prospectus relates, or by its or his or her
2: The prescribed information and documents (if any) must be supplied to the Registrar, when the prospectus is delivered to the Registrar for registration, in the manner specified by the Registrar. Section 41(1)(b)(i) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 41(1)(b)(ii) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 41(2) inserted 1 May 2011 section 20 Securities Amendment Act 2011
42: Registration of prospectus
1: The Registrar must promptly register every prospectus delivered to him or her.
2: However, the Registrar must refuse to register a prospectus if,—
a: in his or her opinion,—
i: it does not comply with section 39(1)(a) 41(1)(b)
ii: it contains any material matter that is not clearly legible; or
iii: section 41(2)
b: the prescribed amount payable on registration is not paid; or
c: the date of registration would be earlier than the date of the prospectus.
3: The Registrar must, on the registration of a prospectus under this section, give a certificate of the registration (and the certificate is conclusive evidence that the prospectus has been registered under this section).
4: The certificate must specify a registration number for the prospectus. Section 42 replaced 1 May 2011 section 21 Securities Amendment Act 2011
43: Amendment of registered prospectus
1: A registered prospectus may be amended by an instrument to amend the prospectus that is delivered to the Registrar and registered under this section.
2: The prescribed information and documents (if any) must be supplied to the Registrar, when an instrument to amend the prospectus is delivered to the Registrar for registration, in the manner specified by the Registrar.
3: Every instrument to amend a registered prospectus that is delivered to the Registrar must be—
a: signed by the issuer of the prospectus (if an individual) and every person who is a director of the issuer at the time the instrument is delivered to the Registrar, or by the issuer's or director's agent authorised in writing; and
b: accompanied by a copy of the registered prospectus as amended.
4: The Registrar must promptly register every instrument delivered to him or her in accordance with this section.
5: However, the Registrar must refuse to register an instrument under this section if,—
a: in his or her opinion,—
i: he or she could, under section 42(2)
ii: subsection (2) or (3)
b: the prescribed amount payable on registration is not paid; or
c: the date of the registered prospectus is altered.
6: The Registrar must, on the registration of an instrument of amendment under this section, give a certificate of that registration (and the certificate is conclusive evidence that the instrument has been registered under this section). Section 43 replaced 1 May 2011 section 21 Securities Amendment Act 2011
43A: Registrar not required to consider certain matters
It is not the function of the Registrar, when acting under section 42 43
a: complies with section 39(1)(b) or (c) 40 41(1)(a)
b: contains a statement that is false or misleading as to a material particular or omits any material particular. Section 43A inserted 1 May 2011 section 21 Securities Amendment Act 2011
43B: Publication of registration
1: If a prospectus, or an instrument to amend a prospectus, is registered under section 42 43
a: contains a reasonably prominent statement—
i: to the effect that the prospectus or instrument has been registered; and
ii: describing where a copy of the prospectus or instrument can be obtained; or
b: contains a reasonably prominent link to such a statement.
2: The statement or link referred to in subsection (1) section 37A(1)(c)
3: If a prospectus, or an instrument to amend a prospectus, is registered under section 42 43
4: The Registrar may, in any manner that the Registrar thinks fit, give notice to any person or class of persons or to the public generally of any changes in the information referred to in section 43P Section 43B inserted 1 May 2011 section 21 Securities Amendment Act 2011 FMA's consideration of prospectuses, amendments, trust deeds, and deeds of participation Heading inserted 1 May 2011 section 21 Securities Amendment Act 2011
43C: FMA's consideration of prospectuses, amendments, trust deeds, and deeds of participation
1: The Registrar must, immediately after a prospectus or an instrument to amend a prospectus is registered under this Act, notify the FMA of the registration for the purpose of allowing the FMA an opportunity to consider whether the prospectus, or the prospectus as amended,—
a: complies with this Act and the regulations; or
b: contains any material misdescription or error or any material matter that is not clearly legible; or
c: is false or misleading as to a material particular or omits any material particular (whether or not it was so false or misleading, or the omission was material, at the time the prospectus or instrument was registered).
2: The Registrar must, immediately after a trust deed, a deed of participation, or an instrument to amend a deed of that kind is registered under this Act, notify the FMA of the registration for the purpose of allowing the FMA an opportunity to consider whether the trust deed or deed of participation, or the trust deed or deed of participation as amended,—
a: complies with this Act and the regulations; or
b: contains any material misdescription or error or any material matter that is not clearly legible.
3: The nature and extent of the consideration (if any) that the FMA gives to a prospectus, trust deed, or deed of participation or an instrument to amend a prospectus or deed is at the FMA's discretion.
4: Nothing in this section or any other provision of this Act limits the FMA's power to consider or reconsider at any time whether—
a: a registered prospectus—
i: complies with this Act and the regulations; or
ii: contains any material misdescription or error or any material matter that is not clearly legible; or
iii: is false or misleading as to a material particular or omits any material particular (whether or not it was so false or misleading, or the omission was material, at the time the prospectus or instrument was registered):
b: a trust deed or deed of participation—
i: complies with this Act and the regulations; or
ii: contains any material misdescription or error or any material matter that is not clearly legible. Section 43C inserted 1 May 2011 section 21 Securities Amendment Act 2011
43D: No allotments may be made and no applications or subscription money may be accepted during consideration period
1: No allotment of securities offered to the public for subscription may be made, and no applications for those securities or subscriptions for those securities may be accepted, during the period—
a: starting on the date that the prospectus relating to the offer of the securities is registered; and
b: ending on the close of—
i: the date that is 5 working days after that date; or
ii: a later date specified by the FMA by notice to the issuer.
2: However,—
a: if the prospectus is a continuous issue prospectus, subsection (1) section 43EA
b: if subsection (1) applies to a prospectus that relates to particular securities but another registered prospectus also relates to those securities, subsection (1) does not prevent—
i: an offer and allotment of those securities being made in accordance with this Act in reliance upon the other registered prospectus; and
ii: applications for those securities and subscriptions for those securities from being accepted in respect of the offer and allotment referred to in subparagraph (i).
3: In subsection (2) and section 43EA continuous issue prospectus
a: relates to securities that the issuer, in the ordinary course of its business, continuously offers to the public for subscription; and
b: is not the first prospectus to be registered in respect of that class of securities.
4: The later date specified under subsection (1)(b)(ii) must be no more than 10 working days after the prospectus is registered.
5: If a person contravenes subsection (1), section 37(1B) and (4) to (7) Section 43D inserted 1 May 2011 section 21 Securities Amendment Act 2011
43E: FMA may remove restrictions if its consideration is complete or consideration or further consideration is unnecessary
1: This section applies if the FMA is satisfied that—
a: its consideration of a prospectus is complete; or
b: consideration or further consideration of a prospectus is, in the circumstances, unnecessary.
2: The FMA may give notice to the issuer that—
a: the period that applies under section 43D section 43D
b: section 43D(1)
3: Section 43D
4: Nothing in this section limits section 70B section 43D Section 43E inserted 1 May 2011 section 21 Securities Amendment Act 2011
43EA: FMA may prescribe classes of continuous issue prospectuses to which section 43D(1) applies
1: The FMA may issue a notice that prescribes the class or classes of continuous issue prospectuses to which section 43D(1)
2: The FMA must, before issuing a notice under subsection (1) in respect of a class of continuous issue prospectuses, be satisfied that it is in the public interest for the FMA to have an opportunity to act under section 43C(1)
3: A notice issued by the FMA—
a: is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012
b: must be presented to the House of Representatives under section 41
4: The FMA may vary or revoke a notice issued under this section, and subsections (2) and (3) apply, with necessary modifications, in all respects to the variation or revocation. Section 43EA inserted 1 May 2011 section 21 Securities Amendment Act 2011 Section 43EA(3) replaced 5 August 2013 section 77(3) Legislation Act 2012 FMA's powers to prohibit distribution of investment statements, prohibit allotments, or cancel registration of prospectuses Heading inserted 1 May 2011 section 21 Securities Amendment Act 2011
43F: Prohibition of distribution of investment statement
1: The FMA may, at any time, make an order prohibiting the distribution of an investment statement if the FMA is of the opinion that the investment statement—
a: is likely to deceive, mislead, or confuse with regard to any particular that is material to the offer of securities to which it relates; or
b: is inconsistent with any registered prospectus referred to in it; or
c: does not comply with this Act or the regulations.
2: If an order is made under subsection (1) in respect of an investment statement,—
a: no allotment may be made of any securities subscribed for whether before or after the order is made (being securities to which the investment statement relates):
b: all subscriptions received for securities to which the investment statement relates, not being subscriptions for securities that were allotted before the order is made or subscriptions received after the order is revoked, must be immediately repaid to the subscribers.
3: An allotment made in contravention of subsection (2)(a) is invalid and of no effect. Section 43F inserted 1 May 2011 section 21 Securities Amendment Act 2011
43G: FMA may prohibit allotment or cancel registration
1: This section applies if, at any time, the FMA is of the opinion that—
a: a registered prospectus does not comply with this Act or the regulations; or
b: a registered prospectus contains any material misdescription or error or any material matter that is not clearly legible; or
c: a registered prospectus is false or misleading as to a material particular or omits any material particular (whether or not it was so false or misleading, or the omission was material, at the time the prospectus was registered); or
d: section 41
e: a trust deed or deed of participation in respect of the securities offered in a registered prospectus—
i: does not comply with this Act or the regulations; or
ii: contains any material misdescription or error or any material matter that is not clearly legible.
2: The FMA may exercise either or both of the following powers in respect of the registered prospectus if it considers that it is desirable in the public interest:
a: make an order prohibiting the allotment of securities under the registered prospectus for a period not exceeding 18 months:
b: cancel the registration of the registered prospectus (with effect from the time that the Registrar is notified of the cancellation).
3: If an order is made under subsection (2)(a) in respect of a registered prospectus,—
a: during the period in which the order is in force, no allotment may be made of any securities subscribed for whether before or after the order is made (being securities to which the prospectus relates); and
b: all subscriptions received for securities to which the prospectus relates, not being subscriptions for securities that were allotted before the order is made or subscriptions received after the order ceases to be in force, must be immediately repaid to the subscribers.
4: If the registration of a registered prospectus is cancelled,—
a: no allotment may be made of any securities subscribed for whether before or after the cancellation (being securities to which the prospectus relates); and
b: all subscriptions received for securities to which the prospectus relates, not being subscriptions for securities that were allotted before the cancellation, must be immediately repaid to the subscribers.
5: An allotment made in contravention of subsection (3)(a) or (4)(a) is invalid and of no effect. Section 43G inserted 1 May 2011 section 21 Securities Amendment Act 2011
43H: Repayment of subscriptions
1: If any subscriptions that are required under section 43F 43G
2: A director of an issuer is not liable to repay any subscriptions and interest on the subscriptions under subsection (1) if the director proves that the default in the repayment of the subscriptions was not due to any misconduct or negligence on his or her part.
3: In this section, relevant date
a: in the case of subscriptions received before the order is made under section 43F 43G
b: in any other case, the date that the subscriptions are received by or on behalf of the issuer. Section 43H inserted 1 May 2011 section 21 Securities Amendment Act 2011
43I: Order may be made on terms and conditions and may be varied or revoked
1: The FMA may make an order under section 43F 43G
2: The FMA may vary an order under section 43F 43G
3: The FMA may, either of its own volition or on the application of the person concerned, revoke an order under section 43F 43G
4: No allotment may be made of a security—
a: to which an investment statement relates in contravention of the terms or conditions of an order under section 43F
b: that is offered under a prospectus to which an order under section 43G
5: If a person contravenes subsection (4), section 37(1B) and (4) to (7) Section 43I inserted 1 May 2011 section 21 Securities Amendment Act 2011
43J: Notices and submissions concerning exercise of power under section 43F, 43G, or 43I(2) or (3)
1: The FMA may exercise a power under section 43F 43G 43I(2) or (3)
a: the FMA gives the issuer at least 5 working days' written notice of the following matters before the FMA exercises the power:
i: that the FMA may make an order under section 43F 43G section 43I(2) or (3) section 43G
ii: the reasons why it is considering exercising that power; and
b: the FMA gives the issuer or the issuer's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
2: If the FMA exercises a power under section 43F 43G
a: it must, immediately after exercising the power, notify the issuer of—
i: the reasons for making the order or for the cancellation; and
ii: the terms and conditions of the order (if any); and
b: it must, immediately after exercising the power, give notice to the Registrar and on its Internet site of—
i: the reasons for making the order or for the cancellation; and
ii: the terms and conditions of the order (if any); and
iii: any other information the FMA thinks relevant in the circumstances; and
c: it may give public notice by any other means of the matters in paragraph (b)
d: it may notify any other person of the matters in paragraph (b).
3: If the FMA varies or revokes an order under section 43I
a: it must, immediately after exercising the power, notify the Registrar and the issuer of—
i: the terms and conditions of the variation or revocation; and
ii: the reasons for the variation or revocation; and
iii: any other information the FMA thinks relevant in the circumstances; and
b: it may give notice on its Internet site or give public notice by any other means of those matters; and
c: it may notify any other person of those matters. Section 43J inserted 1 May 2011 section 21 Securities Amendment Act 2011
43K: FMA may make interim orders pending exercise of powers
1: The FMA may make an interim order that prohibits the allotment of securities—
a: to which an investment statement relates while the interim order is in force if—
i: the FMA is considering, at any time, whether it may exercise a power under section 43F
ii: the FMA considers that making an interim order is desirable in the public interest:
b: under a registered prospectus while the interim order is in force if—
i: the FMA is considering, at any time, whether it may exercise a power under section 43G
ii: the FMA considers that making an interim order is desirable in the public interest.
2: An interim order under subsection (1) is in force from the time at which it is made until the close of—
a: the date that is 15 working days after the day on which it is made; or
b: a later date specified by the FMA by notice to the issuer.
3: For the purposes of subsection (2)(b),—
a: the FMA may specify a later date if the FMA is of the opinion that it is not reasonably practicable for it to complete its consideration as referred to in subsection (1)(a)(i) or (b)(i) within the 15-working-day period referred to in subsection (2)(a):
b: the later date must be a date that is no more than 30 working days after the day on which the interim order is made.
4: The FMA—
a: may act under subsection (1) or (2)(b) without giving the issuer an opportunity to make submissions to, or be heard before, the FMA in respect of the matter; but
b: must, after acting under subsection (1) or (2)(b), give the issuer or the issuer's representative an opportunity to make written submissions and to be heard on the matter.
5: If an interim order is made in respect of an investment statement or a registered prospectus,—
a: the FMA must immediately after making the order notify the issuer and the Registrar that the order has been made and the reasons for the order; and
b: during the period in which the order is in force, no allotment may be made of any securities subscribed for whether before or after the order is made (being securities to which the investment statement or prospectus relates); and
c: section 37(1B) Section 43K inserted 1 May 2011 section 21 Securities Amendment Act 2011
43L: FMA may revoke interim order
1: The FMA may revoke an interim order made under section 43K
2: If an interim order is revoked, the FMA must immediately notify the issuer and the Registrar of the revocation. Section 43L inserted 1 May 2011 section 21 Securities Amendment Act 2011
43M: Nothing done or omitted to be done by Registrar or FMA guarantees or represents that prospectus complies with Act and regulations
1: Nothing done or omitted to be done under this Act by the Registrar or the FMA guarantees or represents that—
a: a prospectus—
i: complies with this Act and the regulations:
ii: does not contain any material misdescription or error or any material matter that is not clearly legible:
iii: is not false or misleading as to a material particular:
iv: does not omit any material particular; or
b: the FMA has considered a prospectus with a view to determining whether it—
i: complies with this Act and the regulations:
ii: contains any material misdescription or error or any material matter that is not clearly legible:
iii: is false or misleading as to a material particular:
iv: omits any material particular.
2: This section does not limit section 22 Financial Markets Authority Act 2011 Section 43M inserted 1 May 2011 section 21 Securities Amendment Act 2011 Register of securities offers Heading repealed 14 September 2013 section 4(2)(a) Financial Markets (Repeals and Amendments) Act 2013
43N: Register of securities offers
Section 43N repealed 14 September 2013 section 4(2)(a) Financial Markets (Repeals and Amendments) Act 2013
43O: Purpose of register
Section 43O repealed 14 September 2013 section 4(2)(a) Financial Markets (Repeals and Amendments) Act 2013
43P: Contents of register
Section 43P repealed 14 September 2013 section 4(2)(a) Financial Markets (Repeals and Amendments) Act 2013
43Q: Duty to notify relevant matters and provide certain documents and information to Registrar
Section 43Q repealed 14 September 2013 section 4(2)(a) Financial Markets (Repeals and Amendments) Act 2013
43R: Amendments to register
Section 43R repealed 14 September 2013 section 4(2)(a) Financial Markets (Repeals and Amendments) Act 2013
43S: Search of register
Section 43S repealed 14 September 2013 section 4(2)(a) Financial Markets (Repeals and Amendments) Act 2013
44: Suspension and cancellation of registration of registered prospectus
Section 44 repealed 1 May 2011 section 21 Securities Amendment Act 2011 Delayed allotment orders and prohibition orders concerning simplified disclosure prospectuses Heading inserted 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009
44A: FMA
1: This section applies if the FMA
a: has disclosed information in the prospectus that has not previously been publicly disclosed under the issuer's disclosure obligations, and that information is adverse to the issuer or the scheme and is material to the offer of the security; or
b: has disclosed information under the issuer's disclosure obligations between the date of the prospectus and the allotment date, and that information is adverse to the issuer or the scheme and is material to the offer of the security; or
c: has failed to comply with the issuer's disclosure obligations at any time during the previous 12 months.
2: If either subsection (1)(a) or (b) applies, the FMA
3: If subsection (1)(c) applies, the FMA
a: 14 days after the date of allotment stated in the terms of the offer; or
b: 14 days after the date on which the issuer's failure to comply with the issuer's disclosure obligations is remedied.
4: The FMA FMA FMA
5: The FMA
6: The FMA
7: In this section, issuer's disclosure obligations Section 44A replaced 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009 Section 44A heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44A(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44A(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44A(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44A(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44A(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44A(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
44AB: Notices and submissions concerning delayed allotment orders
1: The FMA may make a delayed allotment order only if—
a: the FMA gives the issuer at least 3 working days' written notice of the following matters before the FMA makes the delayed allotment order:
i: that the FMA is considering making a delayed allotment order; and
ii: the paragraph of section 44A(1)
iii: the reasons why the FMA is considering making a delayed allotment order; and
b: the FMA gives the issuer or the issuer's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
2: If the FMA
a: it must, immediately after the making of the order, notify the issuer of—
i: the terms and conditions of the order; and
ii: the reasons for the order; and
b: it must, immediately after the making of the order, give notice on its Internet site of—
i: the terms and conditions of the order; and
ii: the reasons for the order; and
iii: the information that is adverse to the issuer or the scheme and is material to the offer of the security, or the nature of the issuer's failure to comply with the issuer's disclosure obligations; and
iv: any other information the FMA
c: it may give public notice by any other means of the matters in paragraph (b); and
d: it may notify any other person of the matters in paragraph (b).
3: If the FMA section 44A(5)
a: it must immediately notify the issuer of—
i: the terms and conditions of the variation or revocation; and
ii: the reasons for the variation or revocation; and
b: it may give notice on its Internet site or give public notice by any other means of those matters; and
c: it may notify any other person of those matters. Section 44AB inserted 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009 Section 44AB(1) replaced 1 May 2011 section 23 Securities Amendment Act 2011 Section 44AB(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AB(2)(b)(iv) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AB(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
44AC: Limited notice and submissions for urgent delayed allotment orders
If the FMA section 44AB
a: it may give less than 3 working days' notice before it makes the order, and the notice and the submissions may be oral rather than written; but
b: it must include in that notice the reasons for acting urgently and must otherwise comply with that section. Section 44AC inserted 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009 Section 44AC amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AC(a) replaced 1 May 2011 section 24 Securities Amendment Act 2011
44AD: Effect of delayed allotment orders
1: No allotment of a security that is offered in a simplified disclosure prospectus to which a delayed allotment order applies may be made—
a: in contravention of the terms or conditions of the delayed allotment order or of its revocation; or
b: if a term or condition of the delayed allotment order remains unfulfilled; or
c: until after the delayed allotment order expires or is revoked.
2: If a person contravenes subsection (1), section 37(1A)(b) and (4) to (7)
3: If the FMA FMA section 37A(1)(ab)(ii) and (3) to (8) Example
Issuer A makes an offer of securities to the public for subscription in a simplified disclosure prospectus. Tom subscribes for some of those securities. After Tom has subscribed for the securities, the FMA In these circumstances, Issuer A's options may include the following:
a: Issuer A may ask Tom if he wants to resubscribe for the securities. In this case, Issuer A could obtain Tom's permission to use the money that Tom paid Issuer A when he originally subscribed for the securities ( Tom's subscription money
b: Issuer A could withdraw the offer or take some other similar course of action. If Issuer A withdraws the offer it must pay Tom's subscription money back to him. Tom's subscription money must be held in trust for him until it is repaid ( see
c: Issuer A could allot the securities to Tom (once the delayed allotment order has expired or has been revoked) without Tom having resubscribed for the securities. In this case, the allotment would be valid ( see see see Tom's options include the following:
a: Tom may decide to leave Tom's subscription money with Issuer A and use that money to resubscribe for the securities. If Issuer A agrees to this, Issuer A may allot those securities to Tom (once the delayed allotment order has expired or has been revoked) without contravening section 37A(1)(ab)(ii); or
b: Tom may require Issuer A to pay Tom's subscription money back to him. Tom's subscription money must be held in trust for him until it is repaid ( see
c: Tom may decide to take no action at all. In this case, if Issuer A allots the securities to Tom (once the delayed allotment order has expired or has been revoked), the allotment would be valid ( see see see see Regardless of which option is taken by Issuer A or Tom, if Issuer A allots securities to Tom in contravention of section 44AD(1) (for example, by allotting the securities to Tom before the delayed allotment order has expired or has been revoked), that allotment is invalid and of no effect ( see see
4: Subsections (1) and (2) override subsection (3).
5: This section applies despite anything in the terms of the offer. Section 44AD inserted 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009 Section 44AD(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AD(3) example amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
44AE: FMA
1: If the FMA person A FMA
2: The FMA FMA
3: The FMA
4: The FMA Section 44AE inserted 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009 Section 44AE heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AE(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AE(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AE(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AE(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
44AF: Notices and submissions concerning prohibition orders
1: The FMA may make a prohibition order only if—
a: the FMA gives the person concerned ( person A
i: that the FMA is considering making a prohibition order; and
ii: the nature of person A's failure to comply with his, her, or its disclosure obligations; and
iii: the reasons why the FMA is considering making the prohibition order; and
b: the FMA gives person A or person A's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
2: If the FMA
a: it must, immediately after the making of the order, notify person A of—
i: the terms and conditions of the order; and
ii: the reasons for the order; and
b: it must, immediately after the making of the order, give notice on its Internet site of—
i: the terms and conditions of the order; and
ii: the reasons for the order; and
iii: the nature of person A's failure to comply with his, her, or its disclosure obligations; and
iv: any other information the FMA
c: it may give public notice by any other means of the matters in paragraph (b); and
d: it may notify any other person of the matters in paragraph (b).
3: If the FMA section 44AE(3) or (4)
a: it must immediately notify person A of—
i: the terms and conditions of the variation, revocation, or suspension; and
ii: the reasons for the variation, revocation, or suspension; and
b: it may give notice on its Internet site or give public notice by any other means of those matters; and
c: it may notify any other person of those matters. Section 44AF inserted 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009 Section 44AF(1) replaced 1 May 2011 section 25 Securities Amendment Act 2011 Section 44AF(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AF(2)(b)(iv) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44AF(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
44AG: Effect of prohibition orders
If the FMA
a: a person who is prohibited by that order from using a simplified disclosure prospectus must not, while the prohibition order is in force,—
i: make an offer of securities to the public in, or accompanied by, a simplified disclosure prospectus; or
ii: distribute a simplified disclosure prospectus that relates to a security; or
iii: allot securities offered in a simplified disclosure prospectus; and
b: section 37(1A)(a) and (4) to (7) Section 44AG inserted 28 July 2009 section 12 Securities (Disclosure) Amendment Act 2009 Section 44AG amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Contributory mortgages Heading inserted 1 October 1997 section 21 Securities Amendment Act 1996
44B: FMA's
1: Where the Registrar receives a report from an auditor appointed pursuant to regulations made under this Act to the effect that a contributory mortgage broker is contravening, or has contravened, any of the provisions of this Act or regulations made under this Act, the Registrar may forward a copy of that report to the FMA
2: The FMA may, either on the receipt of that report or for any other reason, if it is satisfied that a contributory mortgage broker is contravening, or has contravened, any of the provisions of this Act or the regulations, and that it is desirable in the public interest to do so, exercise any 1 or more of the following powers:
a: make an order prohibiting the contributory mortgage broker from offering interests in contributory mortgages to the public for subscription for a period not exceeding 10 working days; or
b: make an order prohibiting the contributory mortgage broker from offering interests in contributory mortgages to the public for subscription for the period that the FMA thinks fit; or
c: make an order that the contributory mortgage broker must promptly cease to act as contributory mortgage broker in respect of all or any contributory mortgages that have previously been allotted by him, her, or it, and make an order appointing another person to act as contributory mortgage broker in his, her, or its place with respect to those contributory mortgages; or
d: make an order removing any of the directors of any nominee company of the contributory mortgage broker and make an order appointing any person as a director in his or her place.
2A: The FMA—
a: may act under subsection (2)(a) without giving the contributory mortgage broker an opportunity to make submissions to, and be heard before, the FMA in respect of the matter; but
b: must, after acting under subsection (2)(a), give the contributory mortgage broker or the contributory mortgage broker's representative an opportunity to make written submissions and to be heard on the matter.
2B: The FMA may make an order under subsection (2)(b) to (d) only if—
a: the FMA gives the relevant person or persons at least 5 working days' written notice of the following matters before the FMA makes the order:
i: that the FMA is considering making an order under subsection (2)(b), (c), or (d) (as the case may be); and
ii: the reasons why it is considering making the order; and
b: the FMA gives the relevant person or persons or a representative of the relevant person or persons an opportunity to make written submissions and to be heard on the matter within that notice period.
2C: In subsection (2B), relevant person or persons
a: in the case of subsection (2)(b) or (c), the contributory mortgage broker:
b: in the case of subsection (2)(d), the contributory mortgage broker and every director of the broker's nominee company.
3: Where the FMA
a: it shall forthwith notify the broker of the order and the reasons therefor; and
b: it may notify any other person or persons of the order and the reasons therefor.
4: Any such order made by the FMA FMA Section 44B inserted 1 September 1983 Securities Amendment Act 1982 Section 44B heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 44B(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44B(2) replaced 1 May 2011 section 26 Securities Amendment Act 2011 Section 44B(2A) inserted 1 May 2011 section 26 Securities Amendment Act 2011 Section 44B(2B) inserted 1 May 2011 section 26 Securities Amendment Act 2011 Section 44B(2C) inserted 1 May 2011 section 26 Securities Amendment Act 2011 Section 44B(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44B(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
44C: Powers and duties of persons appointed to act as broker
1: Where a person (in this section called the appointee FMA section 44B(2)(c) or she defaulting broker
a: to take and to retain possession of all property, whatsoever and wheresoever situated, of the defaulting broker and his or her mortgages
b: to demand and receive all money payable to the defaulting broker on account of the mortgages:
c: to sue for and recover all debts due and other money payable to the defaulting broker on account of the mortgages:
d: to pay over, in the discretion of the appointee, and in such manner and to such extent as he or she or her or her
e: to carry out and perform contracts relating to the mortgages entered into by the defaulting broker before the appointment of the appointee:
f: to take any such action, including, without limitation, actions at law or in equity, to enforce the rights of the mortgagee under the mortgages:
g: to consult and employ counsel, solicitors, accountants, and other persons for the purpose of performing his or her
h: to do all acts and to execute, in the name of the defaulting broker all deeds, receipts, and other documents, and for that purpose to use, when necessary, the seal of the defaulting broker (if any).
2: The appointee may, at any time, in his or her ex parte or her
3: The court may, on application of the appointee, enlarge the powers of the appointee in such manner as it thinks fit.
4: It shall be the duty of all persons having possession or control of any
5: The appointee shall not be liable for any acts or omissions by him or her or her
6: All costs, charges, and expenses properly incurred by the appointee in the exercise of his or her FMA or her
7: In any case where, either before or after the appointment of the appointee, any property has been acquired by any person in circumstances which cause it to be just and equitable that he or she or her provided that no such order shall deprive any other person of any estate or interest in the property if the estate or interest was acquired in good faith and for valuable consideration.
8: The appointee may, at any time, apply to the court to be relieved of his or her Section 44C inserted 1 September 1983 Securities Amendment Act 1982 Section 44C(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44C(1) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 44C(1)(a) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44C(1)(d) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 44C(1)(d) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44C(1)(d) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 44C(1)(g) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44C(2) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44C(4) amended 1 October 1997 section 22 Securities Amendment Act 1996 Section 44C(5) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44C(5) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 44C(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44C(6) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44C(6) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 44C(7) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 44C(7) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44C(8) amended 3 May 2001 section 5(d) Securities Amendment Act 2001
44D: Powers and duties of person appointed to act as director or secretary of nominee company
1: Any person appointed by the FMA section 44B(2)(d)
a: shall not be liable for any acts or omissions by him or her or her
b: shall be entitled to be paid out of the property held in the name of the nominee company, in priority to all other claims, all costs, charges, and expenses properly incurred by him or her or her FMA
2: It shall be the duty of all persons having possession or control of any section 44B(2)(d) or her Section 44D inserted 1 September 1983 Securities Amendment Act 1982 Section 44D(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44D(1)(a) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44D(1)(a) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 44D(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 44D(1)(b) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44D(1)(b) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 44D(2) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 44D(2) amended 1 October 1997 section 23 Securities Amendment Act 1996 Trust deeds and deeds of participation
45: Contents of deeds
1: Every trust deed, and deed of participation, required for the purposes of this Act shall contain all information and other matters that are required to be included therein by regulations made under this Act.
2: Every trust deed, and deed of participation, required for the purposes of this Act shall be deemed to contain all clauses that are prescribed in regulations made under this Act as clauses that are deemed to be contained in a trust deed or a deed of participation, as the case may be; and every such clause shall have effect notwithstanding anything to the contrary in any deed in which it is deemed to be contained.
3: A trust deed or deed of participation may expressly adopt all or any of the clauses that are prescribed in regulations made under this Act as clauses that may be adopted in a trust deed or deed of participation, as the case may be.
46: Registration of trust deeds and deeds of participation
1: The Registrar must promptly register every copy of a trust deed or deed of participation delivered to him or her for registration under this Act.
2: However, the Registrar must refuse to register a copy of a trust deed or deed of participation if,—
a: in his or her opinion, it contains any material matter that is not clearly legible; or
b: the prescribed amount payable on registration is not paid.
3: The Registrar must, on the registration of a copy of a trust deed or deed of participation under this section, give a certificate of that registration (and the certificate is conclusive evidence that the deed has been registered under this section). Section 46 replaced 1 May 2011 section 27 Securities Amendment Act 2011
47: Amendment of registered deed
1: If a trust deed or deed of participation that has been registered under this Act has been lawfully amended, the issuer must ensure that there is delivered to the Registrar, as soon as practicable after the amendment, a copy of the instrument by which the amendment to the deed was made.
2: The Registrar must promptly register every copy of an instrument amending a deed that—
a: is delivered to him or her for registration under this section; and
b: if the Registrar so requires, is accompanied by a copy of the deed as amended.
3: However, the Registrar must refuse to register a copy of an instrument amending a deed if,—
a: in his or her opinion, the deed as amended contains any material matter that is not clearly legible; or
b: the prescribed amount payable on registration is not paid.
4: The Registrar must, on the registration of a copy of an instrument of amendment under this section, give a certificate of that registration (and the certificate is conclusive evidence that the instrument has been registered under this section). Section 47 replaced 1 May 2011 section 27 Securities Amendment Act 2011
47A: Registrar not required to consider certain matters
It is not the function of the Registrar, when acting under section 46 47
a: complies with this Act or the regulations; or
b: contains any misdescription or error. Section 47A inserted 1 May 2011 section 27 Securities Amendment Act 2011 Trustees and statutory supervisors
48: Removal of trustees and statutory supervisors
1: A trustee or statutory supervisor ( T
a: all functions and duties of the position have been performed; or
b: the issuer has appointed another person who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011
c: the court consents.
2: This section does not apply to the removal of a trustee or statutory supervisor by the FMA under Part 2 Section 48 replaced 1 October 2011 section 69 Securities Trustees and Statutory Supervisors Act 2011
49: Trustees and statutory supervisors may apply to court for orders relating to securities
1: Where at any time after due inquiry, a trustee or statutory supervisor of securities is of the opinion that—
a: there is a significant risk that the interests of the security holders will be materially prejudiced; or
b: the provisions of any deed relating to the securities are no longer adequate to give proper protection to the security holders— the trustee or statutory supervisor may, in its absolute discretion, apply to the court for an order or orders under this section.
2: An application to the court under this section shall be served on such persons as the court may direct.
3: On an application by a trustee or statutory supervisor under this section, the court may, after giving the issuer and such other persons as it thinks fit an opportunity of being heard, by order—
a: amend the provisions of any deed relating to the securities:
b: impose such restrictions on the activities of the issuer, including restrictions on advertising, as the court thinks necessary for the protection of the interests of the security holders:
c: direct the issuer or the trustee or statutory supervisor to convene a meeting of the security holders for the purpose of having placed before them by the trustee or statutory supervisor such information relating to their interests, and such proposals for the protection of their interests, as the court or the trustee or statutory supervisor considers necessary or appropriate, and for the purpose of obtaining their opinions or directions in relation thereto; and the court may give such directions in relation to the conduct of the meeting as the court thinks fit:
d: stay all civil actions or civil proceedings before any court by or against the issuer or any guarantor of the securities:
e: restrain the payment of any money by the issuer or any guarantor of the securities to the security holders or any class of such holders:
f: appoint a receiver or manager of such of the property as constitutes the security (if any) for the securities:
fa: remove a person as manager and appoint another person as manager (with any powers that the court orders):
g: give such other directions as the court considers necessary to protect the interests of the security holders, other holders of securities of the issuer, any guarantor of the securities, or the public. In making any such order the court shall have regard to the interests of all creditors of the issuer.
4: The court may at any time vary or rescind any order made under this section. Section 49(1)(a) replaced 1 October 2011 section 70(1) Securities Trustees and Statutory Supervisors Act 2011 Section 49(3)(fa) inserted 1 October 2011 section 70(2) Securities Trustees and Statutory Supervisors Act 2011 Duties of auditors Heading inserted 1 October 1997 section 24 Securities Amendment Act 1996
50: Duty of auditor to report to trustee or statutory supervisor
1: Whenever the auditor of an issuer of debt securities or participatory securities offered to the public (being securities that are held by members of the public) furnishes to the issuer or its members or shareholders or the security holders any report, financial statements, certificate, or other document that is required by any Act or by any deed relating to the securities to be so furnished, the auditor shall forthwith send a copy to the trustee or statutory supervisor of the securities.
2: Whenever, in the performance of the auditor's duties, the auditor of an issuer of debt securities or participatory securities offered to the public (being securities that are held by members of the public) becomes aware of any matter that, in the auditor's opinion, is relevant to the exercise or performance of the powers or duties of the trustee or statutory supervisor of the securities, the auditor shall, within 7 working days of becoming aware of the matter, send—
a: to the issuer, a report in writing on the matter; and
b: to the trustee or statutory supervisor, as the case may be, a copy of that report.
3: The auditor of an issuer of debt securities or participatory securities offered to the public (being securities that are held by members of the public) shall from time to time, at the request of the trustee or statutory supervisor, furnish to the trustee or statutory supervisor such information or particulars relating to the issuer as are requested and are within the auditor's knowledge and are, in the auditor's opinion, relevant to the exercise or performance of the powers or duties of the trustee or statutory supervisor.
4: Nothing in this section affects the duties or liability of a trustee or statutory supervisor. Section 50 replaced 1 October 1997 section 24 Securities Amendment Act 1996
50A: Duty of auditor to report to unit trustee
1: Whenever the auditor of an issuer of units in a unit trust furnishes to the issuer any report, financial statements, certificate, or other documents required by any Act or any trust deed relating to the unit trust, the auditor shall forthwith send a copy to the unit trustee.
2: Whenever, in the performance of the auditor's duties, the auditor of a unit trust that has units held by members of the public becomes aware of any matter that, in the auditor's opinion, is relevant to the exercise or performance of the powers or duties of the unit trustee, the auditor shall, within 7 working days of becoming aware of the matter, send—
a: to the issuer of the units, a report in writing on the matter; and
b: to the unit trustee, a copy of that report.
3: The auditor of an issuer of units in a unit trust that has units held by members of the public shall from time to time, at the request of the unit trustee, furnish to the unit trustee such information or particulars relating to the issuer as are requested and are within the auditor's knowledge and are, in the auditor's opinion, relevant to the exercise or performance of the powers or duties of the unit trustee.
4: Nothing in this section affects the duties or liability of an issuer of units in a unit trust or a unit trustee. Section 50A inserted 1 October 1997 section 24 Securities Amendment Act 1996
50B: Duty of auditor to report to KiwiSaver trustee
1: This section applies to the auditor of an issuer of interests in a KiwiSaver scheme other than a restricted scheme.
2: If the auditor provides the issuer with any report, financial statement, certificate, or other document required by an Act or a trust deed relating to the scheme, the auditor must, as soon as practicable, send a copy to the KiwiSaver trustee.
3: If, in the performance of the auditor's duties, the auditor becomes aware of a matter that, in the auditor's opinion, is relevant to the exercise or performance of the powers or duties of the KiwiSaver trustee, the auditor must, within 7 working days of becoming aware of the matter, send—
a: a written report on the matter to the issuer of interests in the scheme; and
b: a copy of the report to the KiwiSaver trustee.
4: The auditor must, from time to time, at the request of the KiwiSaver trustee, provide the KiwiSaver trustee with any information relating to the issuer—
a: that the KiwiSaver trustee requests; and
b: that is within the auditor's knowledge; and
c: that is, in the auditor's opinion, relevant to the exercise or performance of the powers or duties of the KiwiSaver trustee.
5: This section does not limit the duties or liability of a KiwiSaver trustee or an issuer of interests in a KiwiSaver scheme other than a restricted scheme. Section 50B inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011
50C: Protection for auditors
1: No civil, criminal, or disciplinary proceedings may be brought against an auditor in respect of a protected disclosure.
2: No person may terminate the appointment of an auditor by reason of a protected disclosure.
3: No tribunal, body, or authority that has jurisdiction in respect of the professional conduct of an auditor may make an order against, or do any act in relation to, an auditor in respect of a protected disclosure.
4: In this section, protected disclosure
a: section 50(2)
b: section 50(3)
c: section 50A(2)
d: section 50A(3)
e: section 50B(3)
f: section 50B(4) 1989 No 157 s 157ZH Section 50C inserted 1 October 2011 section 71 Securities Trustees and Statutory Supervisors Act 2011 Obligations of issuers Heading inserted 1 October 1997 section 24 Securities Amendment Act 1996
51: Issuers to keep registers of securities
1: Every issuer of securities offered to the public shall keep in New Zealand—
a: a register of all equity securities; and
b: where the issuer is a company, a register of all debentures, debenture stock, bonds, notes, certificates of deposit, and convertible notes; and
c: a register of all participatory securities; and
d: a register of all units in unit trusts; and
e: a register of all interests in superannuation schemes; and
f: a register of all life insurance policies— of which it is the issuer.
2: Every register kept for the purposes of this section shall contain, in respect of every security entered in it,—
a: the name and address of the holder; and
b: the date on which the security was allotted or transferred to the holder, as the case may be; and
c: the nature of the security; and
d: the amount of the security (if any); and
e: the due date of the security (if any); and
f: such other particulars as are required to be entered in the register by regulations.
3: Nothing in paragraphs (a) and (b) of subsection (2) applies to bearer securities.
4: No notice of any trust, expressed, implied, or constructive, shall be entered on a register kept under any of paragraphs (a) to (c), and (f) of subsection (1).
5: Every register kept under this section is prima facie evidence of the matters required by this Act to be entered in it.
6: Every issuer of securities offered to the public (other than securities that have been redeemed) shall ensure that every register kept by it under this section is audited at least once a year by a qualified auditor.
7: Nothing in subsection (6) applies to a superannuation scheme if, by virtue of section 13(2)
8: If the auditor considers at any time that this section is not being complied with, the auditor shall forthwith advise the issuer and,—
a: in the case of equity securities, the security holders at their next meeting:
b: in the case of debt securities, the trustee:
c: in the case of participatory securities, the statutory supervisor:
ca: in the case of interests in a KiwiSaver scheme other than a restricted scheme, the KiwiSaver trustee:
d: in the case of units in a unit trust, the unit trustee.
9: Every issuer shall send a notice to the Registrar of the place where its registers are kept and of any change in that place.
10: Subsection (9) does not apply to an issuer that is a company if the registers of the company are kept at its registered office.
11: Nothing in this section derogates from the Life Insurance Act 1908 Companies Act 1993 Section 51 replaced 1 October 1997 section 24 Securities Amendment Act 1996 Section 51(8)(ca) inserted 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 51(11) amended 15 April 2004 section 18 Securities Amendment Act 2004
52: Rights of inspection of registers of securities and to copies of registers and deeds
1: The registers kept under paragraphs (a) to (d) of section 51(1)
2: The registers kept under paragraphs (e) and (f) of section 51(1)
3: Any person may require a copy of a register kept under paragraphs (a) to (d) of section 51(1)
4: A holder of securities may require a copy of that part of a register kept under paragraph (e) or paragraph (f) of section 51(1)
5: For the purposes of this section, a register shall be deemed to be duly closed if closed in accordance with provisions contained in the rules of the issuer or in the securities or any trust deed or deed of participation relating to the securities, during a period or periods not exceeding in aggregate 30 days in any year.
6: Nothing in this section derogates from the Life Insurance Act 1908 Companies Act 1993 Section 52 replaced 1 October 1997 section 24 Securities Amendment Act 1996 Section 52(6) amended 15 April 2004 section 19 Securities Amendment Act 2004
53: Issuers to keep proper accounting records
1: Every issuer of securities offered to the public (other than securities that have been redeemed) shall ensure that there are kept at all times accounting records that—
a: correctly record and explain the transactions,—
i: in the case of an issuer of equity securities, debt securities, or life insurance policies, of the issuer; and
ii: in the case of an issuer of participatory securities, units in a unit trust, or interests in a superannuation scheme, of the scheme; and
b: will at any time enable the financial position of the issuer or scheme, as the case may be, to be determined with reasonable accuracy; and
c: will enable the issuer to ensure that the financial statements of the issuer or scheme, as the case may be, comply with the Financial Reporting Act 1993
d: will enable the financial statements of the issuer or scheme, as the case may be, to be readily and properly audited.
2: The accounting records referred to in subsection (1) must be kept in a manner that will enable the financial statements of the issuer or scheme, as the case may be, to be readily and properly audited.
3: Without limiting subsection (1), accounting records kept under that subsection shall contain, in respect of the issuer or scheme concerned,—
a: entries of money received and spent each day and the matters to which those entries relate:
b: a record of the assets and liabilities of the issuer or scheme:
c: if the business of the issuer or scheme involves dealing in goods,—
i: a record of goods bought or sold, except goods sold for cash in the ordinary course of carrying on a retail business, that identifies the goods and buyers and sellers and relevant invoices; and
ii: a record of stock held at the end of the financial year together with records of any stocktakings during the year:
d: if the business of the issuer or scheme involves providing services, a record of services provided and relevant invoices. Section 53 replaced 1 October 1997 section 24 Securities Amendment Act 1996
53A: Place where accounting records to be kept
1: Subject to subsection (2), accounting records required by section 53
2: The accounting records may be kept at a place outside New Zealand only if there is sent to, and kept at a place in, New Zealand such documents in respect of the business dealt with in those accounting records as will disclose with reasonable accuracy the financial position of that business at intervals not exceeding 6 months and will enable to be prepared the financial statements of the issuer or scheme, and any document annexed to any of those documents giving information that is required by any enactment. Section 53A inserted 1 October 1997 section 24 Securities Amendment Act 1996
53B: Accounting records to be in English
Accounting records required by section 53 section 53A Section 53B inserted 1 October 1997 section 24 Securities Amendment Act 1996
53C: Period for which accounting records to be kept
1: Accounting records kept under section 53A
2: Nothing in subsection (1) derogates from any other requirement to keep accounting records for a particular time. Section 53C inserted 1 October 1997 section 24 Securities Amendment Act 1996
53D: Inspection of accounting records
Every issuer shall make the accounting records required to be kept under section 53 section 53A KiwiSaver trustee, Section 53D inserted 1 October 1997 section 24 Securities Amendment Act 1996 Section 53D amended 1 May 2011 section 56 KiwiSaver Amendment Act 2011
53E: Financial statements to be audited
1: Every issuer of equity securities or debt securities or life insurance policies offered to the public (other than securities that have been redeemed) shall ensure that its financial statements are audited at least once a year by a qualified auditor.
2:
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.
4: Nothing in subsection (3) applies to a superannuation scheme if, by virtue of section 13(2) Section 53E inserted 1 October 1997 section 24 Securities Amendment Act 1996 Section 53E(2) repealed 15 April 2004 section 20(1) Securities Amendment Act 2004 Section 53E(3) replaced 15 April 2004 section 20(2) Securities Amendment Act 2004
53F: Application of other Acts not affected
Nothing in sections 53 to 53E Companies Act 1993 Section 53F inserted 1 October 1997 section 24 Securities Amendment Act 1996 Section 53F amended 15 April 2004 section 21 Securities Amendment Act 2004
54: Issuers to issue certificates evidencing securities
1: Every issuer of an equity security, a debt security, a unit, or a participatory security
2: Every security or certificate sent to a security holder pursuant to this section shall be executed by or on behalf of the issuer of the security: provided that it shall be sufficient compliance with the provisions of this subsection requiring a security or certificate to be executed by any person if a facsimile of the required signature and seal (if any) is reproduced on the security or certificate.
3: Nothing in this section applies to an issuer in respect of securities that are approved for transfer under, or in accordance with the rules of, a system that does not require a certificate for the transfer of securities.
4: In this section,— certificate system
a: a system authorised or approved under the Securities Transfer Act 1991
b: a designated settlement system (as defined in section 156M Section 54(1) amended 1 October 1997 section 26 Securities Amendment Act 1996 Section 54(3) replaced 24 November 2009 section 10 Reserve Bank of New Zealand Amendment Act 2009 Section 54(4) replaced 24 November 2009 section 10 Reserve Bank of New Zealand Amendment Act 2009
54A: Information to be sent periodically to security holders
Every issuer of securities offered to the public for subscription shall send, or cause to be sent, to each security holder, at the times prescribed by regulations, the documents, information, and other matters required to be sent by those regulations. Section 54A inserted 1 October 1997 section 27 Securities Amendment Act 1996
54B: Information to be disclosed by issuers on request
1: Every issuer of securities offered to the public shall, at the request of a security holder and on payment of any prescribed fee, send, or cause to be sent, to the security holder such documents, information, and other matters of a kind prescribed by regulations as are requested by the security holder.
2: The documents, information, and other matters must be sent to the security holder as soon as practicable but, in any event, within 5 working days of the issuer receiving the request.
3: Every issuer of securities offered to the public shall, upon the request of a security holder or a prospective investor for a copy of the registered prospectus relating to the securities, without fee, send, or cause to be sent, to that security holder or prospective investor,—
a: a copy of that registered prospectus; and
b: a copy of any financial statements of the issuer or scheme concerned that have been registered under the Financial Reporting Act 1993
c: a copy of any documents registered under this Act for the purpose of extending the period during which allotments may be made under the registered prospectus.
4: The documents referred to in subsection (3) must be sent to the security holder or prospective investor as soon as practicable but, in any event, within 5 working days of the issuer receiving the request. Section 54B inserted 1 October 1997 section 27 Securities Amendment Act 1996
54C: Documents, information, and other matters to be made publicly available
1: Every issuer of securities offered to the public for subscription must, at the prescribed times or on the occurrence of the prescribed events and otherwise in the prescribed manner, make publicly available the documents, information, and other matters that are required to be made publicly available by the regulations.
2: The documents, information, and other matters must, if required by the regulations, be presented, calculated, or prepared in accordance with the frameworks or methodologies specified in a notice issued by the FMA under section 54D Section 54C inserted 1 May 2011 section 28 Securities Amendment Act 2011
54D: FMA may specify frameworks or methodologies
1: The FMA may issue a notice that specifies frameworks or methodologies relating to the manner in which documents, information, or other matters that are to be made publicly available under section 54C
2: A notice issued by the FMA—
a: may specify different matters and requirements in respect of different kinds of securities or different classes of issuers:
b: must not specify matters and requirements that are inconsistent with regulations made under section 70(1)(cb)
3: A notice issued by the FMA—
a: is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012
b: must be presented to the House of Representatives under section 41
4: A notice issued by the FMA must, as soon as practicable after it is issued, be—
a: published on an Internet site maintained by or on behalf of the FMA; and
b: notified in the Gazette
c: made available in printed form for purchase on request by members of the public.
5: A notification in the Gazette Section 54D inserted 1 May 2011 section 28 Securities Amendment Act 2011 Section 54D(3) replaced 5 August 2013 section 77(3) Legislation Act 2012
54E: Consultation
1: The FMA must not issue a notice under section 54D
2: A failure to comply with subsection (1) does not affect the validity of the notice. Section 54E inserted 1 May 2011 section 28 Securities Amendment Act 2011
54F: FMA may vary or revoke notice
1: The FMA may vary or revoke a notice issued under section 54D
2: Sections 54D(2) to (5) 54E Section 54F inserted 1 May 2011 section 28 Securities Amendment Act 2011 Liability of issuers, etc, and offences
55: Interpretation of provisions relating to advertisements, prospectuses, and registered prospectuses
For the purposes of this Act,—
a: a statement included in an advertisement or registered prospectus is deemed to be untrue if—
i: it is misleading in the form and context in which it is included; or
ii: it is misleading by reason of the omission of a particular which is material to the statement in the form and context in which it is included:
b: a statement is deemed to be included in an advertisement or registered prospectus if it is—
i: contained in the advertisement or registered prospectus; or
ii: appears on the face of the advertisement or registered prospectus; or
iii: contained in any financial statements, report, memorandum, or document that accompany, or are incorporated by reference or referred to in, or distributed with, the advertisement or registered prospectus:
c: a certificate registered under section 37A(1A) Section 55 replaced 1 October 1997 section 28(1) Securities Amendment Act 1996 Civil liability Heading inserted 25 October 2006 section 6(1) Securities Amendment Act 2006
55A: Overview of civil liability
1: The following civil remedies are available from the court under this Act if there is a civil liability event:
a: a pecuniary penalty order and declaration of civil liability (on application by the FMA section 55C
b: compensation under section 55G
2: Sections 56 to 57A
3: This section is a guide only to the general scheme and effect of sections 55B to 57E Section 55A inserted 25 October 2006 section 6(1) Securities Amendment Act 2006 Section 55A(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
55B: What are civil liability events
In this Part, a civil liability event
a: distribution of an advertisement or a registered prospectus that includes an untrue statement:
b: a breach of regulations made under this Act relating to the offer, sale, or management of interests in contributory mortgages. Section 55B inserted 25 October 2006 section 6(1) Securities Amendment Act 2006
55C: When court may make pecuniary penalty orders and declarations of civil liability
If the FMA
a: must determine whether there has been a civil liability event and whether the person is liable for a pecuniary penalty order for that civil liability event under sections 56 to 57A
b: must make a declaration of civil liability if satisfied of those matters ( see sections 55D 55E
c: may order the person to pay to the Crown a pecuniary penalty that the court considers appropriate ( see section 55F
i: materially prejudices the interests of subscribers for the securities involved; or
ii: is likely to materially damage the integrity or reputation of any of New Zealand's securities markets; or
iii: is otherwise serious. Section 55C inserted 25 October 2006 section 6(1) Securities Amendment Act 2006 Section 55C amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
55D: Purpose and effect of declarations of civil liability
1: The purpose of a declaration of civil liability is to enable a person who brings proceedings under section 55G
2: Accordingly, a declaration of civil liability is conclusive evidence of the matters that must be stated in it under section 55E Section 55D inserted 25 October 2006 section 6(1) Securities Amendment Act 2006
55E: What declarations of civil liability must state
A declaration of civil liability must state the following:
a: the court that made the declaration; and
b: whether the civil liability event comes within section 55B(a) or (b)
c: the person who has been found liable for the civil liability event; and
d: the conduct that constituted the civil liability event. Section 55E inserted 25 October 2006 section 6(1) Securities Amendment Act 2006
55F: Amount of pecuniary penalty
1: The maximum amount of a pecuniary penalty under this Act is $500,000 for an individual and $5,000,000 for a body corporate, for each civil liability event.
2: In determining an appropriate pecuniary penalty, the court must have regard to all relevant matters, including—
a: the nature and extent of the civil liability event; and
b: the likelihood, nature, and extent of any damage to the integrity or reputation of New Zealand's securities markets because of the civil liability event; and
c: the nature and extent of any loss or damage suffered by subscribers because of the civil liability event; and
d: the circumstances in which the civil liability event occurred; and
e: whether or not the person has previously been found by the court in proceedings under this Act to have engaged in any similar conduct. Section 55F inserted 25 October 2006 section 6(1) Securities Amendment Act 2006
55G: Compensation orders
1: The court may, on the application of the FMA
2: The court may, on the application of the FMA
3: A liable person sections 56 to 57A
4: The liable person must pay any compensation ordered under the compensation order.
5: The court may, if the proceedings were brought or conducted (in whole or in part) by the FMA FMA's
6: Subsection (5) does not limit section 65B Section 55G inserted 25 October 2006 section 6(1) Securities Amendment Act 2006 Section 55G(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55G(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55G(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55G(5) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
56: Which persons are liable for misstatements
1: A person is liable for a pecuniary penalty order ( section 55C section 55G
a: the person is the issuer of the securities referred to in the advertisement or registered prospectus (the issuer
b: in the case of an advertisement, the person—
i: is a director of the issuer at the time that the advertisement is distributed; or
ii: has authorised himself or herself to be named and is named in the advertisement as a director of the issuer or as having agreed to become a director immediately or after an interval of time:
c: in the case of a registered prospectus, the person—
i: has signed the prospectus as a director of the issuer or is a director on whose behalf the prospectus has been so signed; or
ii: has authorised himself or herself to be named and is named in the prospectus as a director of the issuer or has agreed to become a director either immediately or after an interval of time:
d: the person is a promoter of the securities referred to in the advertisement or registered prospectus.
2: No person shall be liable under subsection (1)(c) in respect of any untrue statement included in a registered prospectus if he or she or she or her or she or her FMA or her
3: No person shall be liable under subsection (1) in respect of any untrue statement included in an advertisement or registered prospectus, as the case may be, if he or she
a: the advertisement was distributed or the prospectus was registered, as the case may be, without his or her knowledge or consent, and on becoming aware of its distribution or registration he or she promptly gave notice to the trustee, statutory supervisor, KiwiSaver trustee,
b: after the distribution of the advertisement or the registration of the prospectus, as the case may be, and before the securities were subscribed for, he or she, on becoming aware of any untrue statement in the advertisement or the prospectus, withdrew his or her consent to the distribution or the registration and promptly gave notice to the trustee, statutory supervisor, KiwiSaver trustee,
ba: (in the case of liability for a pecuniary penalty order) as regards every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, he or she had reasonable grounds to believe and did believe, up to the time of the distribution of the advertisement or registered prospectus, that the statement was true; or
c: (in the case of liability for compensation) or she
d: as regards every untrue statement purporting to be a statement by an expert or contained in what purports to be a copy of or extract from a report or valuation of an expert,—
i: it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation; and
ii: he or she
iii: that person had given the consent required by section 38A section 40
e: as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document.
4: Where—
a: an advertisement or a registered prospectus contains the name of a person as a director of the issuer, or as having agreed to become a director thereof, and he or she or her
b: the consent of a person is required under section 38A section 40 or she the directors of the issuer, except any without whose knowledge or consent the advertisement was distributed or the prospectus was registered, shall be liable to indemnify the person named as aforesaid or whose consent was required as aforesaid, as the case may be, against all damages, costs, and expenses to which he or she or her or her or herself or her
5: Where any person acting in good faith, believing a statement in an advertisement or prospectus to be untrue, withdraws his or her or she 1978 No 103 s 57 Section 56 replaced 1 September 1983 Securities Amendment Act 1982 Section 56 heading replaced 25 October 2006 section 7(1) Securities Amendment Act 2006 Section 56(1) replaced 25 October 2006 section 7(2) Securities Amendment Act 2006 Section 56(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 56(2) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(2) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 56(3) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(3)(a) replaced 1 May 2011 section 29 Securities Amendment Act 2011 Section 56(3)(a) amended 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 56(3)(b) replaced 1 May 2011 section 29 Securities Amendment Act 2011 Section 56(3)(b) amended 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 56(3)(ba) inserted 25 October 2006 section 7(3) Securities Amendment Act 2006 Section 56(3)(c) amended 25 October 2006 section 7(4) Securities Amendment Act 2006 Section 56(3)(c) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(3)(d)(ii) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(4) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(4) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 56(4) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 56(4) amended 3 May 2001 section 5(f) Securities Amendment Act 2001 Section 56(4)(a) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(4)(a) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 56(4)(b) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(5) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 56(5) amended 3 May 2001 section 5(d) Securities Amendment Act 2001
57: Which experts are liable for misstatements
1: A person is liable for a pecuniary penalty order ( section 55C section 55G
a: the person gave consent to the distribution of the advertisement or registered prospectus under section 38A section 40
b: the untrue statement purports to be made by him or her as an expert.
2: No person shall be liable under subsection (1) if he or she
a: having given his or her or she
b: after distribution of the advertisement or registered prospectus and before the securities were subscribed for, he or she, on becoming aware of the untrue statement or omission, withdrew his or her consent in writing and gave notice to the trustee, statutory supervisor, KiwiSaver trustee,
ba: (in the case of liability for a pecuniary penalty order) he or she was competent to make the statement and that he or she had reasonable grounds to believe and did, up to the time of the distribution of the advertisement or registered prospectus, believe that the statement was true; or
c: (in the case of liability for compensation) or she or she
3: Where any person acting in good faith, believing a statement in an advertisement or registered prospectus to be untrue, withdraws his or her or she Section 57 replaced 1 September 1983 Securities Amendment Act 1982 Section 57 heading replaced 25 October 2006 section 8(1) Securities Amendment Act 2006 Section 57(1) replaced 25 October 2006 section 8(2) Securities Amendment Act 2006 Section 57(2) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 57(2)(a) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 57(2)(a) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 57(2)(b) replaced 1 May 2011 section 30 Securities Amendment Act 2011 Section 57(2)(b) amended 1 May 2011 section 56 KiwiSaver Amendment Act 2011 Section 57(2)(ba) inserted 25 October 2006 section 8(3) Securities Amendment Act 2006 Section 57(2)(c) amended 25 October 2006 section 8(4) Securities Amendment Act 2006 Section 57(2)(c) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 57(3) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 57(3) amended 3 May 2001 section 5(d) Securities Amendment Act 2001
57A: Which persons are liable for breaches of contributory mortgage regulations
1: A person is liable for a pecuniary penalty order ( section 55C section 55G
a: in the case of a contributory mortgage broker who is an individual, the person acts, or is charged with acting, as the contributory mortgage broker for the contributory mortgage at the time that the breach occurred:
b: in the case of a contributory mortgage broker that is a body corporate or other body, the person is—
i: the contributory mortgage broker; or
ii: a director of the contributory mortgage broker that is acting, or is charged with acting, as the contributory mortgage broker for the contributory mortgage at the time that the breach occurred.
2: No person who is a director of a contributory mortgage broker shall be liable under subsection (1)(b) if he or she
a: the breach occurred without his or her
b: he or she or she
c: upon becoming aware of the breach he or she Registrar Section 57A inserted 1 September 1983 Securities Amendment Act 1982 Section 57A heading replaced 25 October 2006 section 9(1) Securities Amendment Act 2006 Section 57A(1) replaced 25 October 2006 section 9(2) Securities Amendment Act 2006 Section 57A(2) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 57A(2)(a) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 57A(2)(b) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 57A(2)(c) amended 20 September 2007 section 5 Securities Amendment Act 2007 Section 57A(2)(c) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 General provisions on civil liability remedies Heading inserted 25 October 2006 section 10 Securities Amendment Act 2006
57B: Pecuniary penalty order and compensation order may be made for same conduct
A person may be liable for both a pecuniary penalty order and compensation for the same conduct. Section 57B inserted 25 October 2006 section 10 Securities Amendment Act 2006
57C: Only 1 pecuniary penalty order may be made for same conduct
If conduct by a person constitutes 2 or more civil liability events, proceedings may be brought against that person for any 1 or more of the civil liability events, but no person is liable to more than 1 pecuniary penalty order for the same conduct. Section 57C inserted 25 October 2006 section 10 Securities Amendment Act 2006
57D: Standard of proof for civil remedies
The proceedings under sections 55A to 57A Section 57D inserted 25 October 2006 section 10 Securities Amendment Act 2006
57E: Time limit for applying for civil remedies
1: An application for a pecuniary penalty order may be made at any time within 3 years
2: The usual time limits apply to all applications for compensation.
3: However, an application for compensation in respect of the civil liability event may be made at any time within 6 months after the date on which a declaration of civil liability is made, even if the usual time limit has expired. Section 57E inserted 25 October 2006 section 10 Securities Amendment Act 2006 Section 57E(1) amended 1 May 2011 section 31(1) Securities Amendment Act 2011 Criminal liability Heading inserted 25 October 2006 section 11 Securities Amendment Act 2006
58: Criminal liability for misstatement in advertisement or registered prospectus
1: Subject to subsection (2), where an advertisement that includes any untrue statement is distributed,—
a: the issuer of the securities referred to in the advertisement, if an individual; or
b: if the issuer of the securities is a body, every director thereof at the time the advertisement is distributed— commits an offence.
2: No person shall be convicted of an offence under subsection (1) if the person proves either that the statement was immaterial or that he or she had reasonable grounds to believe, and did, up to the time of the distribution of the advertisement, believe that the statement was true.
3: Subject to subsection (4), where a registered prospectus that includes an untrue statement is distributed, every person who signed the prospectus, or on whose behalf the registered prospectus was signed for the purposes of section 41(1)(b)
4: No person shall be convicted of an offence under subsection (3) if the person proves either that the statement was immaterial or that he or she had reasonable grounds to believe, and did, up to the time of the distribution of the prospectus, believe that the statement was true.
5: Every person who commits an offence against this section is liable on conviction to—
a: imprisonment for a term not exceeding 5 years; or
b: a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued. Section 58 replaced 15 December 1994 section 2(1) Securities Amendment Act (No 2) 1994 Section 58(3) amended 1 May 2011 section 32 Securities Amendment Act 2011 Section 58(5) replaced 1 July 2013 section 413 Criminal Procedure Act 2011
59: Criminal liability for offering, distributing, or allotting in contravention of this Act
1: Subject to subsection (2), if an offer of a security is made to the public, or a registered
a: the issuer of the security; and
b: every person who is a principal officer of the issuer at the time of the contravention; and
c: every promoter of the security; and
d: every person who has authorised himself or herself advertisement or registered each commits an offence, and is liable on $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued
2: No person shall be convicted under subsection (1) for any such contravention if—
a: the contravention was in respect of matters which in the opinion of the court dealing with the case were immaterial, or was otherwise such as, in the opinion of the court having regard to all the circumstances of the case, ought reasonably to be excused; or
b: in the case of a person other than the issuer, in the opinion of the court dealing with the case, the contravention did not take place with his or her
3: In proceedings for an offence against this section, the burden of proving any of the matters described in subsection (2) lies on the defendant. Section 59(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 59(1) amended 1 December 2002 section 17 Securities Amendment Act 2002 Section 59(1) amended 1 September 1983 Securities Amendment Act 1982 Section 59(1)(d) amended 3 May 2001 section 5(f) Securities Amendment Act 2001 Section 59(1)(d) amended 1 September 1983 Securities Amendment Act 1982 Section 59(2)(b) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 59(3) inserted 1 July 2013 section 413 Criminal Procedure Act 2011
59A: Criminal liability for delivering prospectus or amendment for registration that does not comply with various requirements
1: The issuer of securities to which a prospectus relates commits an offence if, when the prospectus is delivered to the Registrar for registration under this Act,—
a: any of sections 39(1) 40 41(1)
b: the issuer knows, or ought reasonably to know, that any of sections 39(1) 40 41(1)
2: The issuer of securities to which a registered prospectus relates commits an offence if—
a: an instrument to amend the prospectus is delivered to the Registrar for registration under this Act that would result, if the amendment were made, in the prospectus failing to comply with section 39(1) 40
b: when the instrument is delivered for registration under this Act, the issuer knows, or ought reasonably to know, that if the amendment in the instrument were made it would result in the prospectus failing to comply with section 39(1) 40
3: An issuer that commits an offence under subsection (1) or (2) is liable, on
4: This section applies in respect of prospectuses and instruments of amendment delivered to the Registrar for registration under this Act on or after the commencement of this section. Section 59A replaced 1 May 2011 section 33 Securities Amendment Act 2011 Section 59A(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
60: Other offences
1: Every person who—
a:
b:
c:
d: without reasonable excuse, sections 35 43B(1) 47 50 51 52 54 commits an offence and is liable on $5,000
2: If a person contravenes or fails to comply in any respect with any provision of sections 7 37(4) 43D(1) 48 53 to 53E and 54A to 54C $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued provided that—
a: no person shall be convicted under this subsection in respect of any such contravention or failure to comply if the contravention or failure was in respect of matters which in the opinion of the court dealing with the case were immaterial, or was otherwise such as, in the opinion of the court having regard to all the circumstances of the case, ought reasonably to be excused:
b: no principal officer shall be convicted under this subsection in respect of any such contravention or failure to comply if, in the opinion of the court dealing with the case, the contravention or failure did not take place with his or her Section 60(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 60(1) amended 1 December 2002 section 19(1)(d) Securities Amendment Act 2002 Section 60(1)(a) repealed 1 December 2002 section 19(1)(a) Securities Amendment Act 2002 Section 60(1)(b) repealed 1 December 2002 section 19(1)(a) Securities Amendment Act 2002 Section 60(1)(c) repealed 1 May 2011 section 34(1) Securities Amendment Act 2011 Section 60(1)(d) amended 1 May 2011 section 34(2) Securities Amendment Act 2011 Section 60(1)(d) amended 1 December 2002 section 19(1)(c) Securities Amendment Act 2002 Section 60(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 60(2) amended 1 May 2011 section 34(3)(a) Securities Amendment Act 2011 Section 60(2) amended 1 May 2011 section 34(3)(b) Securities Amendment Act 2011 Section 60(2) amended 1 December 2002 section 19(2) Securities Amendment Act 2002 Section 60(2) amended 1 October 1997 section 31 Securities Amendment Act 1996 Section 60(2) amended 1 September 1983 Securities Amendment Act 1982 Section 60(2)(b) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Management bans Heading inserted 25 October 2006 section 13 Securities Amendment Act 2006
60A: When court may make management banning orders
1: The court may, on application by an entitled person, make a management banning order against a person ( A
a: A has been convicted of an offence against section 58 59
ab: A has been convicted of an offence against section 51 61 Financial Markets Authority Act 2011
b: A has, while a director of an incorporated or unincorporated body,—
i: persistently contravened this Act, the Companies Act 1993 Securities Markets Act 1988 the Securities Trustees and Statutory Supervisors Act 2011 Takeovers Act 1993
ii: if the incorporated or unincorporated body has so contravened, persistently failed to take all reasonable steps to obtain compliance with those Acts or the code; or
c: A has been prohibited in an overseas jurisdiction from carrying on activities that the court is satisfied are substantially similar to any of the activities referred to in section 60B
2: An entitled person
a: the FMA
b: the Registrar:
c: an incorporated or unincorporated body that—
i: A is a director of at the time of the application; or
ii: A was a director of at the time of the ground that triggers the making of the order under subsection (1):
d: the liquidator of an incorporated or unincorporated body referred to in paragraph (c):
e: a person who is, or has been, a security holder or creditor of an incorporated or unincorporated body referred to in paragraph (c). Section 60A inserted 25 October 2006 section 13 Securities Amendment Act 2006 Section 60A(1)(a) amended 1 May 2011 section 35(1) Securities Amendment Act 2011 Section 60A(1)(ab) inserted 1 May 2011 section 35(2) Securities Amendment Act 2011 Section 60A(1)(b)(i) amended 1 October 2011 section 72 Securities Trustees and Statutory Supervisors Act 2011 Section 60A(2)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
60B: Terms of management banning orders
A management banning order may, for a period stated in the order of 10 years or less, prohibit or restrict the person (without the leave of the court) from being a director or promoter of, or in any way (whether directly or indirectly) being concerned or taking part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand). Section 60B inserted 25 October 2006 section 13 Securities Amendment Act 2006
60C: Offence of contravening management banning order
An individual who acts in contravention of a management banning order under section 60A Section 60C inserted 25 October 2006 section 13 Securities Amendment Act 2006 Section 60C amended 1 July 2013 section 413 Criminal Procedure Act 2011
60D: Only 1 management banning order may be made for same conduct
If conduct by a person constitutes grounds for making an order under any 1 or more of section 60A section 43F section 44F section 383 Section 60D inserted 25 October 2006 section 13 Securities Amendment Act 2006
60E: Persons automatically banned from management
1: This section applies to a person if—
a: the person has been convicted of an offence against section 58 section 51 61 Financial Markets Authority Act 2011
b: a pecuniary penalty order has been made against the person under this Act.
2: The person must not, for the period of 5 years after the conviction or making of the order (without the leave of the court) be a director or promoter of, or in any way (whether directly or indirectly) be concerned or take part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand).
2A: The court may give leave for the purposes of subsection (2)—
a: at the time of conviction or making of the order, or at any other time on the application of the relevant person:
b: in respect of a particular incorporated or unincorporated body, a class of incorporated or unincorporated bodies, or incorporated or unincorporated bodies generally.
3: An individual who acts in contravention of this section commits an offence and is liable on conviction Section 60E inserted 25 October 2006 section 13 Securities Amendment Act 2006 Section 60E(1) replaced 1 May 2011 section 36(1) Securities Amendment Act 2011 Section 60E(2A) inserted 1 May 2011 section 36(2) Securities Amendment Act 2011 Section 60E(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
60F: General provisions for bans and banning orders
1: The Registrar of the court must, as soon as practicable after the making of a management banning order by a court under section 60A
a: give notice to the Registrar of Companies and the FMA
b: give notice in the Gazette
2: A person intending to apply for the leave of the court under section 60B section 60E FMA
3: The FMA Section 60F inserted 25 October 2006 section 13 Securities Amendment Act 2006 Section 60F(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 60F(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 60F(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Orders to preserve assets to satisfy claims Heading inserted 25 October 2006 section 13 Securities Amendment Act 2006
60G: When court may prohibit payment or transfer of money, securities, or other property
1: This section applies if—
a: an investigation is being carried out under the Financial Markets Authority Act 2011
i: constitutes or may constitute a contravention of this Act; or
ii: constitutes or may constitute a contravention of any other financial markets legislation in connection with an offer of securities to the public or securities offered to the public; or
iii: may result in a prosecution or civil proceedings of the kind referred to in any of paragraphs (b) to (d) being begun against the person; or
b: a prosecution has begun against a person for a contravention of—
i: this Act; or
ii: any other financial markets legislation in connection with an offer of securities to the public or securities offered to the public; or
c: civil proceedings have begun against a person under, or in respect of,—
i: this Act; or
ii: any other financial markets legislation in connection with an offer of securities to the public or securities offered to the public; or
d: civil proceedings have begun against a person, being proceedings that, in connection with an offer of securities to the public or securities offered to the public, seek damages or other relief for fraud, negligence, default, breach of duty, or other misconduct.
2: The court may, on application by the FMA section 60H
3: In this section and section 60H aggrieved person civil proceedings financial markets legislation section 4 Financial Markets Authority Act 2011 liable relevant person Corporations Act 2001 s 1323(1) (Aust) Section 60G inserted 25 October 2006 section 13 Securities Amendment Act 2006 Section 60G(1) replaced 1 May 2011 section 37(1) Securities Amendment Act 2011 Section 60G(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 60G(3) civil proceedings inserted 1 May 2011 section 37(2) Securities Amendment Act 2011 Section 60G(3) financial markets legislation inserted 1 May 2011 section 37(2) Securities Amendment Act 2011
60H: What orders may be made
1: The orders that may be made under section 60G
a: an order prohibiting the relevant person from transferring, charging, or otherwise dealing with money, securities, or other property held or controlled by the relevant person:
b: an order prohibiting a person who is indebted to the relevant person or to an associated person of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed:
c: an order prohibiting a person holding money, securities, or other property, on behalf of the relevant person, or on behalf of an associated person of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the securities or other property, to, or to another person at the direction or request of, the person on whose behalf the money, securities, or other property, is or are held:
d: an order prohibiting the taking or sending out of New Zealand by a person of money of the relevant person or of an associated person of the relevant person:
e: an order prohibiting the taking, sending, or transfer by a person of securities or other property of the relevant person, or of an associated person of the relevant person from a place in New Zealand to a place outside New Zealand (including the transfer of securities from a register in New Zealand to a register outside New Zealand):
f: an order requiring the relevant person, or any person holding money, securities, or other property on behalf of the relevant person or an associated person of the relevant person, to pay or transfer money, securities, or other property to a specified person to be held on trust pending determination of the investigation, prosecution, or civil proceeding:
g: an order appointing,—
i: if the relevant person is a natural person, a receiver or trustee, having any powers that the court orders, of the property or of part of the property of that person; or
ii: if the relevant person is a body corporate, a receiver or receiver and manager, having any powers that the court orders, of the property or of part of the property of that person:
ga: an order—
i: removing a person from being a manager of a scheme to which the investigation, prosecution, or proceedings referred to in section 60G(1)
ii: appointing another person as the manager of the scheme (with any powers that the court orders):
h: if the relevant person is a natural person, an order requiring that person to deliver up to the court his or her passport and any other documents that the court thinks fit:
i: if the relevant person is a natural person, an order prohibiting that person from leaving New Zealand, without the consent of the court.
2: A reference in subsection (1)(e) or (g) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example,—
a: as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or
b: in a fiduciary capacity.
3: An order may be expressed to operate for a specified period or until the order is discharged by a further order under this section. Corporations Act 2001 s 1323(1), (2A), (6) (Aust) Section 60H inserted 25 October 2006 section 13 Securities Amendment Act 2006 Section 60H(1)(ga) inserted 1 May 2011 section 38(1) Securities Amendment Act 2011
60I: Interim orders
1: If an application is made to the court for an order under section 60G
2: The court must not require the applicant or any other person, as a condition of granting an interim order under this section, to give an undertaking as to damages. Corporations Act 2001 s 1323(3), (4) (Aust) Section 60I inserted 25 October 2006 section 13 Securities Amendment Act 2006
60J: Relationship with other law
1: Nothing in sections 60G to 60I
2: This section has effect subject to the Insolvency Act 1967 Corporations Act 2001 s 1323(7), (8) (Aust) Section 60J inserted 25 October 2006 section 13 Securities Amendment Act 2006
60K: Offence
A person commits an offence who contravenes an order by the court under section 60H section 60I
a: in the case of an individual, to imprisonment for a term not exceeding 3 years or to a fine not exceeding $100,000, or both:
b: in the case of a body corporate, to a fine not exceeding $300,000. Corporations Act 2001 s 1323(9), (10) (Aust) Section 60K inserted 25 October 2006 section 13 Securities Amendment Act 2006 Section 60K amended 1 July 2013 section 413 Criminal Procedure Act 2011
61: General prohibition on indemnities or insurance for directors, employees, and auditors of issuer
1: Except as provided in section 61A 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. Section 61 replaced 15 April 2004 section 23 Securities Amendment Act 2004
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 Section 61A inserted 15 April 2004 section 23 Securities Amendment Act 2004
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) must sign a certificate stating that, in their opinion, the cost of effecting the insurance is fair to the issuer.
3: The director or employee who is insured is personally liable to the issuer for the cost of effecting insurance if—
a: subsection (2) has not been complied with in effecting the insurance; or
b: reasonable grounds did not exist for the opinion set out in the certificate given under subsection (2).
4: However, subsection (3) does not apply to the extent that the director or employee proves that the insurance was fair to the issuer at the time the insurance was effected.
5: A certificate signed for the purposes of section 162(6) Section 61B inserted 15 April 2004 section 23 Securities Amendment Act 2004
61C: Interpretation for sections 61 to 61B
In sections 61 to 61B director effect insurance employee indemnify Section 61C inserted 15 April 2004 section 23 Securities Amendment Act 2004
62: Liability of trustees and statutory supervisors
1: Subject to the following provisions of this section, any provision of a deed or contract relating to debt securities or participatory securities shall be void in so far as it would have the effect of exempting a trustee or statutory supervisor thereof from or indemnifying him or her or she or her or her
2: Subsection (1) shall not invalidate—
a: any release otherwise validly given in respect of anything done or omitted to be done by a trustee or statutory supervisor before the giving of the release; or
b: any provision enabling such a release to be given—
i: on the agreement thereto of a majority comprising not less than three-fourths in value of the security holders voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose; and
ii: either with respect to specific acts or omissions or on the trustee or statutory supervisor being wound up or ceasing to act.
3: Subsection (1) shall not operate—
a: to invalidate any provision in force at the commencement of this Part; or
b: to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him or her Section 62(1) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 62(1) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 62(3)(b) amended 3 May 2001 section 5(e) Securities Amendment Act 2001
63: Power of court to grant relief in certain cases
1: If in any proceedings against any person for negligence, default, breach of duty, or breach of trust in connection with—
a: an offer to the public or allotment of securities; or
b: the distribution of a registered prospectus or advertisement; or
c: the management of securities offered to the public; or
d: any matter related thereto— it appears to the court hearing the case that the person is or may be liable in respect of the negligence, default, breach of duty, or breach of trust, but that he or she or her or she or her or her
2: Where any such person has reason to apprehend that any claim will or might be made against him or her or she or her
3: Where any case to which subsection (1) applies is being tried by a Judge with a jury, the Judge may, after hearing the evidence, if he or she or her Section 63(1) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 63(1) amended 3 May 2001 section 5(d) Securities Amendment Act 2001 Section 63(1) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 63(1)(a) amended 28 July 2009 section 14(1) Securities (Disclosure) Amendment Act 2009 Section 63(1)(b) replaced 1 September 1983 Securities Amendment Act 1982 Section 63(1)(b) amended 28 July 2009 section 14(2) Securities (Disclosure) Amendment Act 2009 Section 63(2) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 63(2) amended 3 May 2001 section 5(e) Securities Amendment Act 2001 Section 63(3) amended 3 May 2001 section 5(c) Securities Amendment Act 2001 Section 63(3) amended 3 May 2001 section 5(e) Securities Amendment Act 2001
63A: No liability under Fair Trading Act 1986 if not liable under this Act
A court hearing a proceeding brought against a person under the Fair Trading Act 1986 Section 63A inserted 25 October 2006 section 14 Securities Amendment Act 2006
64: Time for filing charging document for certain offences
1: Despite anything to the contrary in section 25
a: a charging document may be filed at any time in relation to an offence against section 58 60C 60E(3) 60K
b: the limitation period in respect of an offence against section 38B(5) 60(1)
2: Nothing in subsection (1) affects the application of section 25 Section 64 replaced 1 July 2013 section 413 Criminal Procedure Act 2011
65: Saving of liability under general law
Nothing in this Act shall limit or diminish any liability that any person may incur under any rule of law or enactment other than this Act. Other general provisions Heading replaced 25 October 2006 section 15 Securities Amendment Act 2006
65A: Jurisdiction of courts in New Zealand
The High Court has exclusive jurisdiction to hear and determine proceedings in New Zealand under this Act, other than proceedings for offences against Part 2 Section 65A inserted 1 December 2002 section 20 Securities Amendment Act 2002
65B: Court may order payment of
FMA's If the FMA FMA's Section 65B inserted 25 October 2006 section 16 Securities Amendment Act 2006 Section 65B heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 65B amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 65B amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
65C: Orders to secure compliance
The court may, for the purpose of securing compliance with any other order it makes under this Act, direct a person to do or refrain from doing a specified act. Section 65C inserted 25 October 2006 section 16 Securities Amendment Act 2006
65D: Giving notice of application for court orders
Before making an order under this Act, the court may direct the person making the application for the order to—
a: give notice of the application to those persons the court thinks fit:
b: publish notice of the application in the manner the court thinks fit. Section 65D inserted 25 October 2006 section 16 Securities Amendment Act 2006
65E: General provisions as to court's orders
1: An order under this Act may be made on the terms and conditions the court thinks fit.
2: The court may revoke, vary, or suspend an order made under this Act on the terms and conditions the court thinks fit. Section 65E inserted 25 October 2006 section 16 Securities Amendment Act 2006
65F: No pecuniary penalty and fine for same conduct
A person cannot be ordered to pay a pecuniary penalty and be liable for a fine under this Act for the same conduct. Section 65F inserted 25 October 2006 section 16 Securities Amendment Act 2006
65G: Appeals against decisions of FMA on questions of law only
A person that considers that a decision of the FMA under any of the following provisions is wrong in law may appeal against the decision to the High Court on a question of law only:
a: section 38B
b: section 43F
c: section 43G
d: section 44A
e: section 44AE
f: section 44B Section 65G inserted 1 May 2011 section 39 Securities Amendment Act 2011
65H: Power of Registrar to delegate
1: The Registrar may delegate to any person, either generally or particularly, any of the Registrar's functions, duties, and powers under this Act except the power of delegation.
2: A delegation—
a: must be in writing; and
b: may be made subject to any restrictions and conditions the Registrar thinks fit; and
c: is revocable at any time, in writing; and
d: does not prevent the performance or exercise of a function, duty, or power by the Registrar.
3: A person to whom any functions, duties, or powers are delegated may perform and exercise them in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.
4: A person who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary. Section 65H inserted 1 May 2011 section 39 Securities Amendment Act 2011
66: Registers to be kept by Registrar for purposes of this Act
1: The Registrar shall cause to be kept in the office of each District Registrar of Companies such registers as he or she
2: Sections 360 361 363 that Act Section 66 treated as being in force 14 September 2013 section 4(2)(b) Financial Markets (Repeals and Amendments) Act 2013
3: General investigation and enforcement powers
Part 3 repealed 1 May 2011 section 41 Securities Amendment Act 2011 Powers of inspection Heading repealed 1 May 2011 section 41 Securities Amendment Act 2011
67: Power to inspect documents
Section 67 repealed 1 May 2011 section 41 Securities Amendment Act 2011
67A: Power to request or approve Registrar or authorised persons to inspect documents
Section 67A repealed 1 May 2011 section 41 Securities Amendment Act 2011
68: Limits on exercise of power to inspect documents
Section 68 repealed 1 May 2011 section 41 Securities Amendment Act 2011
68A: Requirements for persons authorised to inspect documents
Section 68A repealed 1 May 2011 section 41 Securities Amendment Act 2011
68B: Disclosure of information from inspection
Section 68B repealed 1 May 2011 section 41 Securities Amendment Act 2011
68C: Powers not limited
Section 68C repealed 1 May 2011 section 41 Securities Amendment Act 2011
68D: Non-disclosure of information from inspection
Section 68D repealed 1 May 2011 section 41 Securities Amendment Act 2011
68E: No privilege against self-incrimination
Section 68E repealed 1 May 2011 section 41 Securities Amendment Act 2011
68F: Protection from liability for persons exercising powers of inspection
Section 68F repealed 1 May 2011 section 41 Securities Amendment Act 2011
68G: Rights of appeal
Section 68G repealed 1 May 2011 section 41 Securities Amendment Act 2011
68H: Time for appeal
Section 68H repealed 1 May 2011 section 41 Securities Amendment Act 2011
68I: Situation while appeal pending
Section 68I repealed 1 May 2011 section 41 Securities Amendment Act 2011
68J: Determination of appeal
Section 68J repealed 1 May 2011 section 41 Securities Amendment Act 2011
68K: Requirements where appeal allowed
Section 68K repealed 1 May 2011 section 41 Securities Amendment Act 2011
69: Appeals against other decisions of Registrar
Section 69 repealed 1 May 2011 section 41 Securities Amendment Act 2011
69A: Appeals from decisions under section 67A
Section 69A repealed 1 December 2002 section 22 Securities Amendment Act 2002 Commission's powers for receiving evidence Heading repealed 1 May 2011 section 41 Securities Amendment Act 2011
69B: Who may receive evidence
Section 69B repealed 1 May 2011 section 41 Securities Amendment Act 2011
69BA: Admissibility of evidence
Section 69BA repealed 1 May 2011 section 41 Securities Amendment Act 2011
69C: How evidence may be given
Section 69C repealed 1 May 2011 section 41 Securities Amendment Act 2011
69D: Power to summon witnesses
Section 69D repealed 1 May 2011 section 41 Securities Amendment Act 2011
69E: Witnesses' expenses
Section 69E repealed 1 May 2011 section 41 Securities Amendment Act 2011 Exercise of inspection and evidence powers for overseas regulators Heading repealed 1 May 2011 section 41 Securities Amendment Act 2011
69F: Power of Commission to act on requests of overseas regulators
Section 69F repealed 1 May 2011 section 41 Securities Amendment Act 2011
69G: Commission's consideration of requests
Section 69G repealed 1 May 2011 section 41 Securities Amendment Act 2011
69H: Conditions that may be imposed on providing information to overseas regulators
Section 69H repealed 1 May 2011 section 41 Securities Amendment Act 2011
69I: Undertakings to be obtained before providing certain information to overseas regulators
Section 69I repealed 1 May 2011 section 41 Securities Amendment Act 2011 Commission's power to accept undertakings Heading repealed 1 May 2011 section 41 Securities Amendment Act 2011
69J: Commission may accept undertakings
Section 69J repealed 1 May 2011 section 41 Securities Amendment Act 2011
69K: Enforcement of undertakings
Section 69K repealed 1 May 2011 section 41 Securities Amendment Act 2011 Proceedings before Commission Heading repealed 1 May 2011 section 41 Securities Amendment Act 2011
69L: Right to be heard and represented at proceedings before Commission
Section 69L repealed 1 May 2011 section 41 Securities Amendment Act 2011
69M: Power to hear proceedings in private
Section 69M repealed 1 May 2011 section 41 Securities Amendment Act 2011
69N: Power to make other confidentiality orders
Section 69N repealed 1 May 2011 section 41 Securities Amendment Act 2011
69O: Commission may state case for opinion of High Court
Section 69O repealed 1 May 2011 section 41 Securities Amendment Act 2011 Appeals of Commission decisions Heading repealed 1 May 2011 section 41 Securities Amendment Act 2011
69P: Appeals to High Court on questions of law only
Section 69P repealed 1 May 2011 section 41 Securities Amendment Act 2011
69Q: Requirements for lodging appeal
Section 69Q repealed 1 May 2011 section 41 Securities Amendment Act 2011
69R: Determination of appeal
Section 69R repealed 1 May 2011 section 41 Securities Amendment Act 2011 Miscellaneous provisions Heading repealed 1 May 2011 section 41 Securities Amendment Act 2011
69S: Witnesses and counsel to have privileges of witnesses and counsel in court
Section 69S repealed 1 May 2011 section 41 Securities Amendment Act 2011
69T: No privilege against self-incrimination
Section 69T repealed 1 May 2011 section 41 Securities Amendment Act 2011
69U: Restrictions on use of self-incriminating statements obtained by summons
Section 69U repealed 1 May 2011 section 41 Securities Amendment Act 2011
69V: Limitation on disclosure of information obtained in Commission's operations
Section 69V repealed 1 May 2011 section 41 Securities Amendment Act 2011
4: Regulations
and exemptions Part 4 heading inserted 1 December 2002 section 24 Securities Amendment Act 2002 Part 4 heading amended 1 May 2011 section 42 Securities Amendment Act 2011
70: Regulations and Orders in Council
1: The Governor-General may from time to time, by Order in Council, on the recommendation of the Minister in accordance with subsection (3)
a: prescribing, or empowering the Registrar to prescribe, forms required for the purposes of this Act:
b: regulating advertising, advertisements, investment statements,
i: prescribing the information, statements, certificates, documents, or other matters that shall or shall not be contained in, or endorsed on, or attached to, advertisements, investment statements,
ii: prohibiting or restricting the use in advertisements, investment statements,
iii: prescribing requirements as to the layout or method of presentation of any advertisement, investment statement, and different matters may be prescribed, prohibited, restricted, specified, or required in respect of advertisements, investment statements,
c: providing that statements included in, or relating to an advertisement , investment statement, , investment statement, , investment statement, sections 55 to 65
ca: prescribing, in respect of securities offered to the public, the kinds of information that must be sent to security holders periodically or on request; and different kinds of information may be prescribed in respect of different kinds of securities:
cb: prescribing, in respect of securities offered to the public, the documents, information, and other matters that must be made publicly available under section 54C
d: specifying obligations that are disclosure obligations for the purposes of this Act:
e:
f:
g: prescribing the information and other matters that shall be included in trust deeds and deeds of participation for the purposes of this Act, and the clauses that shall be deemed to be contained in, or may be adopted by, such deeds; and different matters and clauses may be prescribed in respect of deeds relating to different kinds of securities and different classes of issuers
h: regulating the offer to the public of interests in contributory mortgages; and prescribing requirements relating to the management of such interests, including requirements relating to the auditing thereof:
ha: prescribing procedures, requirements, and other matters, not inconsistent with this Act, for the register, including matters that relate to—
i: the operation of the register:
ii: the form of the register:
iii: the information or documents to be contained in the register:
iv: prescribing information and documents for the purposes of section 43P(2)
v: the information and documents to be supplied under sections 41(2) 43(2)
vi: access to the register:
vii: search criteria for the register:
viii: circumstances in which amendments must be made to the register:
ix: the manner in which the status of a registered prospectus is determined and manner in which that status is described in the register:
hb: prescribing matters for the purposes of section 43Q
i: the manner in which information, documents, or other matters are notified or provided:
ii: changes for the purposes of section 43Q(2)(a)(iii) and (b)(iii)
i: prescribing the places at which documents shall be delivered, and the number of copies of such documents required, for the purposes of this Act:
j: prescribing transitional and savings provisions relating to the coming into force of this Act; and without limiting the generality of the foregoing, any such regulation may provide that, subject to such terms and conditions as are specified in the regulation, specified provisions of this Act shall not apply during a specified transitional period, or specified provisions of Acts repealed by this Act shall continue to apply, in respect of any specified person or class of persons:
k: prescribing offences in respect of the contravention of or non-compliance with any regulations made under this Act; and prescribing the fines, not exceeding $5,000, that may be imposed in respect of any such offence:
l: providing for such other matters, not inconsistent with this Act, as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
1A: Regulations made for the purposes of subsection (1)(g) may, without limitation, do all or any of the following:
a: specify the duties and powers of the trustee or statutory supervisor:
b: specify the duties of the issuer:
c: provide for the trustee or statutory supervisor to have the power, exercisable with the consent of the issuer (but without the consent of security holders having to be obtained), to make amendments to the trust deed or deed of participation that do not adversely affect the interests of security holders.
2: The Governor-General may from time to time, by Order in Council, on the recommendation of the Minister in accordance with subsection (3) Schedule 2
3: The Minister must consult with the FMA
3A:
4: Section 70(1) amended 12 March 2009 section 25(1) Securities Amendment Act 2002 Section 70(1)(b) replaced 16 December 1982 Securities Amendment Act 1982 Section 70(1)(b) amended 2 September 1996 section 37(1) Securities Amendment Act 1996 Section 70(1)(b)(i) amended 2 September 1996 section 37(1) Securities Amendment Act 1996 Section 70(1)(b)(ii) amended 2 September 1996 section 37(1) Securities Amendment Act 1996 Section 70(1)(b)(iii) amended 2 September 1996 section 37(2) Securities Amendment Act 1996 Section 70(1)(c) replaced 16 December 1982 Securities Amendment Act 1982 Section 70(1)(c) amended 2 September 1996 section 37(3) Securities Amendment Act 1996 Section 70(1)(ca) inserted 2 September 1996 section 37(4) Securities Amendment Act 1996 Section 70(1)(cb) inserted 1 May 2011 section 43(1) Securities Amendment Act 2011 Section 70(1)(d) replaced 28 July 2009 section 15 Securities (Disclosure) Amendment Act 2009 Section 70(1)(e) repealed 16 December 1982 Securities Amendment Act 1982 Section 70(1)(f) repealed 16 December 1982 Securities Amendment Act 1982 Section 70(1)(g) amended 1 October 2011 section 73(1) Securities Trustees and Statutory Supervisors Act 2011 Section 70(1)(ha) inserted 1 July 2013 section 43(2) Securities Amendment Act 2011 Section 70(1)(hb) inserted 1 July 2013 section 43(2) Securities Amendment Act 2011 Section 70(1A) inserted 1 October 2011 section 73(2) Securities Trustees and Statutory Supervisors Act 2011 Section 70(2) amended 12 March 2009 section 25(2) Securities Amendment Act 2002 Section 70(3) replaced 12 March 2009 section 25(3) Securities Amendment Act 2002 Section 70(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 70(3A) repealed 21 December 1988 section 51(1) Securities Markets Act 1988 Section 70(4) repealed 21 December 1988 section 51(1) Securities Markets Act 1988
70AAA: Regulations relating to exemptions under section 5(1)
1: The Governor-General may, by Order in Council, on the recommendation of the Minister in accordance with subsection (2), make regulations—
a: prescribing circumstances in which any exemption under section 5(1)
b: prescribing additional requirements that must be satisfied before any exemption under section 5(1)
c: prescribing transitional and savings provisions in connection with any regulations made under paragraph (a) or (b).
2: The Minister must, before making a recommendation under subsection (1),—
a: consult with the FMA; and
b: be satisfied that the regulations are needed in order to prevent an exemption in section 5(1) Section 70AAA inserted 1 May 2011 section 44 Securities Amendment Act 2011
70AA: Regulations may require compliance with generally accepted accounting practice and incorporate financial reporting standards by reference
1: Regulations may—
a: require any person, class of persons, information, or class of information to comply with generally accepted accounting practice either generally or in specified circumstances; and
b: incorporate by reference any
2: Regulations may require compliance with generally accepted accounting practice or incorporate material by reference—
a: in whole or in part; and
b: with modifications, additions, or variations specified in the regulations.
3: Material incorporated by reference in regulations has legal effect as part of the regulations.
4: In this section and in sections 70AAB to 70AAF chief executive financial reporting standard section 2(1) generally accepted accounting practice section 3 material incorporated by reference Ministry Section 70AA inserted 25 October 2006 section 21 Securities Amendment Act 2006 Section 70AA(1)(b) amended 1 July 2011 section 12 Financial Reporting Amendment Act 2011 Section 70AA(4) approved financial reporting standard repealed 1 July 2011 section 12 Financial Reporting Amendment Act 2011 Section 70AA(4) financial reporting standard inserted 1 July 2011 section 12 Financial Reporting Amendment Act 2011 Section 70AA(4) material incorporated by reference amended 1 July 2011 section 12 Financial Reporting Amendment Act 2011
70AAB: Effect of amendments to, or replacement of, material incorporated by reference in regulations
An amendment to, or replacement of, material incorporated by reference in regulations ( regulations A Section 70AAB inserted 25 October 2006 section 21 Securities Amendment Act 2006
70AAC: Access to material incorporated by reference
1: The chief executive—
a: must make the material referred to in subsection (3) ( the material
b: must make copies of the material available for purchase at a reasonable price at the head office of the Ministry; and
c: may make copies of the material available in any other way that the chief executive considers appropriate in the circumstances (for example, on an Internet website); and
d: must give notice in the Gazette
i: the material is incorporated in the regulations and the date on which the regulations were made; and
ii: the material is available for inspection during working hours, free of charge, at the head office of the Ministry and giving the location of that office; and
iii: copies of the material can be purchased at the head office of the Ministry and giving the location of that office; and
iv: if copies of the material are made available under paragraph (c), the material is available in other ways and details of where or how it can be accessed or obtained.
2: The chief executive must comply with subsection (1) as soon as practicable after a section 70AA(1)(b)
3: The material is—
a: material incorporated by reference in regulations; and
b: either—
i: any amendment to, or replacement of, the material referred to in paragraph (a); or
ii: the material referred to in paragraph (a) with the amendments or replacement material amalgamated within it.
4: A failure to comply with this section does not invalidate regulations that incorporate material by reference. Section 70AAC inserted 25 October 2006 section 21 Securities Amendment Act 2006 Section 70AAC(2) amended 1 July 2011 section 12 Financial Reporting Amendment Act 2011
70AAD: Application of Legislation Act 2012 to material incorporated by reference
1: Part 2
2: Subpart 1
3: However, nothing in section 41 Section 70AAD replaced 5 August 2013 section 77(3) Legislation Act 2012
70AAE: Application of Regulations (Disallowance) Act 1989 to material incorporated by reference
Section 70AAE repealed 5 August 2013 section 77(3) Legislation Act 2012
70AAF: Application of Standards Act 1988 not affected
Sections 70AA to 70AAD sections 22 to 25 Section 70AAF inserted 25 October 2006 section 21 Securities Amendment Act 2006 Section 70AAF amended 5 August 2013 section 77(3) Legislation Act 2012
70A: Fees and charges
1: The Governor-General may from time to time, by Order in Council, make regulations—
a: prescribing the amount to be paid on the registration of a prospectus under section 42
b: prescribing the amount to be paid on the registration of an instrument that amends section 43 ; and
c: prescribing the amount to be paid on the registration of any other information or document under this Act and different amounts may be prescribed in respect of different amounts of securities being offered, different kinds of securities, or different classes of issuers or offerees:
d: requiring the Registrar to provide to the FMA a portion of any amounts paid on the registration of a prospectus, trust deed, deed of participation, or an instrument that amends any of those kinds of documents.
1A: Regulations made under subsection (1) may prescribe amounts to be paid on the registration of a prospectus, trust deed, deed of participation, or an instrument that amends any of those kinds of documents on the basis that those amounts recover (in whole or in part) the costs of the FMA in performing or exercising functions, powers, or duties under sections 43C to 43L
2: The Governor-General may from time to time, by Order in Council, make regulations prescribing fees and charges to be paid for the purposes of this Act.
3: Without limiting subsection (2), regulations may be made under that subsection—
a: prescribing fees and charges which the FMA
i: in connection with the exercise by the FMA
ii: on an application to the FMA
b: authorising the FMA FMA Section 70A inserted 21 December 1988 section 52 Securities Markets Act 1988 (1988 No 234) Section 70A(1)(b) amended 1 May 2011 section 45(1) Securities Amendment Act 2011 Section 70A(1)(b) amended 1 May 2011 section 45(2) Securities Amendment Act 2011 Section 70A(1)(c) inserted 1 May 2011 section 45(2) Securities Amendment Act 2011 Section 70A(1)(d) inserted 1 May 2011 section 45(2) Securities Amendment Act 2011 Section 70A(1A) inserted 1 May 2011 section 45(3) Securities Amendment Act 2011 Section 70A(3)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 70A(3)(a)(i) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 70A(3)(a)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 70A(3)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
70B: FMA may grant exemptions
1: The FMA may, on the terms and conditions (if any) that it thinks fit, exempt any person or class of persons or any transaction or class of transactions from compliance with any provision or provisions of—
a: Part 2
b: any regulations made under section 70(1)
2: The FMA must not grant an exemption under this section unless it is satisfied that—
a: the exemption would not cause significant detriment to subscribers for the securities to which the exemption relates who are members of the public in New Zealand; and
b: the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption.
3: Nothing in Part 5 Section 70B inserted 1 May 2011 section 46 Securities Amendment Act 2011
70C: Status and publication of exemptions
1: An exemption granted under section 70B
a: is a disallowable instrument for the purposes of the Legislation Act 2012
b: must be presented to the House of Representatives under section 41
2: A class exemption (but not any other exemption granted under section 70B Legislation Act 2012
3: An exemption granted under section 70B
a: published on an Internet site maintained by or on behalf of the FMA; and
b: notified in the Gazette
c: made available in printed form for purchase on request by members of the public.
4: A notification in the Gazette
5: The FMA's reasons for granting an exemption under section 70B
6: In this section, class exemption
a: means an exemption granted under section 70B
b: does not include an exemption granted under section 70B
i: a particular person or transaction; or
ii: persons associated with, or transactions involving, a particular entity. Section 70C inserted 1 May 2011 section 46 Securities Amendment Act 2011 Section 70C(1) replaced 5 August 2013 section 77(3) Legislation Act 2012 Section 70C(2) replaced 5 August 2013 section 77(3) Legislation Act 2012
70D: Variation or revocation of exemptions
1: The FMA may vary or revoke an exemption granted under section 70B
2: Sections 70B(2) 70C Section 70D inserted 1 May 2011 section 46 Securities Amendment Act 2011
5: Recognition and application regimes
Part 5 heading inserted 1 December 2002 section 26 Securities Amendment Act 2002
1: Preliminary
Subpart 1 heading inserted 1 December 2002 section 26 Securities Amendment Act 2002
71: Purpose of this Part
The purpose of this Part is to enable recognition and application regimes to be implemented that—
a: provide for exemptions from Part 2
b: extend the territorial scope of Part 2
c: provide for enforcement in New Zealand of fines and pecuniary penalties imposed for breaches of securities laws of designated countries. Section 71 replaced 1 December 2002 section 26 Securities Amendment Act 2002
72: Definition of country in this Part
In this Part, country Section 72 replaced 1 December 2002 section 26 Securities Amendment Act 2002
2: Exemption from Part 2 and regulations for New Zealand offers under recognition regime
Subpart 2 heading inserted 1 December 2002 section 26 Securities Amendment Act 2002
73: Exemption from Part 2 and regulations for New Zealand offers under recognition regime
1: A provision of Part 2
a: a recognition regime set out in regulations made under section 74
b: the recognition regime provides an exemption from that provision for the security; and
c: the issuer of the security has opted into the recognition regime; and
d: any other preconditions of the recognition regime are met.
2: For the purposes of subsection (1), an issuer opts into a recognition regime in respect of a security by notifying the Registrar—
a: that an offer of the security is to be made under the recognition regime; and
b: of the full name and address in New Zealand of 1 or more persons resident or incorporated in New Zealand who are authorised to accept service in New Zealand at that address of documents on behalf of the issuer. Section 73 replaced 1 December 2002 section 26 Securities Amendment Act 2002
74: Power to exempt from Part 2 and regulations under recognition regime
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations, for the purpose of implementing a recognition regime for a designated country, that provide for—
a: exemptions from provisions of Part 2
b: the other matters set out in section 75
2: The Minister may recommend making an Order in Council under this section only—
a: if he or she is satisfied that it is in the public interest after having regard to—
i: the securities laws of the designated country; and
ii: the interests of New Zealand investors; and
b: after consulting with the FMA Section 74 replaced 1 December 2002 section 26 Securities Amendment Act 2002 Section 74(2)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
75: Matters that must be stated in regulations implementing recognition regime
1: The regulations made under section 74
a: the country to which the recognition regime applies; and
b: the classes of securities to which the recognition regime applies (whether by reference to type of issuer, offer, or any other matter); and
c: the exemptions from provisions of Part 2
d: the preconditions that must be met for the recognition regime to apply, for example (without limitation), requiring specified information relating to the offer or securities to be provided to the FMA
e: the terms and conditions that must be complied with under the recognition regime, for example (without limitation), requiring—
i: the offer of the securities to be made in accordance with specified provisions of the designated country's laws:
ii: warnings to be given to investors so as to inform them that the offer of the securities is regulated under the designated country's laws and that New Zealand securities laws do not apply to the offer:
iii: specified information relating to the offer or securities to be provided to the FMA
2: Regulations may provide different exemptions, preconditions, and terms and conditions for different classes of securities, offers, persons, or circumstances. Section 75 replaced 1 December 2002 section 26 Securities Amendment Act 2002 Section 75(1)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75(1)(e)(iii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
76: Offence for breach of regulations implementing recognition regime
1: If there is a contravention, in respect of a security, of a term or condition that must be complied with under a recognition regime, each of the following persons commits an offence:
a: the issuer of the security; and
b: every person who is a principal officer of the issuer at the time of the contravention; and
c: every promoter of the security; and
d: every person who has authorised himself or herself to be named and is named in any advertisement relating to the security as a director of the issuer or as having agreed to become a director either immediately or after an interval of time.
2: A person who commits an offence against subsection (1) is liable on
3: No person may be convicted under subsection (1) for a contravention if—
a: the contravention was for matters that, in the opinion of the court, were immaterial, or that otherwise, in the opinion of the court, having regard to all the circumstances of the case, ought reasonably to be excused; or
b: in the case of a person other than the issuer, in the opinion of the court dealing with the case, the contravention did not take place with the person's knowledge and consent. Section 76 replaced 1 December 2002 section 26 Securities Amendment Act 2002 Section 76(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
3: Extension of Part 2 and regulations to overseas offers under application regime
Subpart 3 heading inserted 1 December 2002 section 26 Securities Amendment Act 2002
77: Extension of Part 2 and regulations to overseas offers under application regime
A provision of Part 2
a: an application regime set out in regulations made under section 78
b: the application regime applies that provision to the security; and
c: any other preconditions of the application regime are met. Section 77 inserted 1 December 2002 section 26 Securities Amendment Act 2002
78: Power to extend Part 2 and regulations under application regime
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations, for the purpose of implementing an application regime for a designated country, that provide for—
a: the application of provisions of Part 2
b: the other matters set out in section 79
2: The Minister may recommend making an Order in Council under this section only—
a: if he or she is satisfied that it is appropriate for New Zealand securities laws to apply to securities offered to persons in the designated country as set out in the proposed application regime; and
b: after consulting with the FMA Section 78 inserted 1 December 2002 section 26 Securities Amendment Act 2002 Section 78(2)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
79: Matters that must be stated in regulations implementing application regime
1: The regulations made under section 78
a: the country to which the application regime applies; and
b: the classes of securities to which the application regime applies (whether by reference to type of issuer, offer, or any other matter); and
c: the provisions of Part 2
d: whether or not, or the extent to which, exemptions from those provisions granted by the FMA under section 70B
e: the preconditions (if any) that must be met for the application regime to apply; and
f: the terms and conditions (if any) that must be complied with under the application regime.
2: The regulations may provide different applications of provisions, preconditions, and terms and conditions for different classes of securities, offers, persons, or circumstances. Section 79 inserted 1 December 2002 section 26 Securities Amendment Act 2002 Section 79(1)(d) replaced 1 May 2011 section 47 Securities Amendment Act 2011
4: Enforcement of overseas pecuniary penalties under application regime
Subpart 4 heading inserted 1 December 2002 section 26 Securities Amendment Act 2002
80: Enforcement of overseas pecuniary penalties under application regime
This subpart applies to a judgment given by a court under a provision of the law of another country if—
a: an application regime set out in regulations made under section 81
b: the judgment requires payment of a pecuniary penalty; and
c: any other preconditions of the application regime are met. Section 80 inserted 1 December 2002 section 26 Securities Amendment Act 2002
81: Power to enforce overseas pecuniary penalties under application regime
The Governor-General may, by Order in Council made on the recommendation of the Minister, for the purpose of implementing an application regime for a designated country, make regulations that provide for—
a: the application of this subpart to provisions of the securities laws of that country under or in respect of which a pecuniary penalty may be imposed; and
b: the preconditions of the application regime (if any). Section 81 inserted 1 December 2002 section 26 Securities Amendment Act 2002
82: Interpretation
In this subpart, unless the context requires otherwise,— court of rendition enforcement judgment pecuniary penalty place of rendition registered judgment section 83 Section 82 inserted 1 December 2002 section 26 Securities Amendment Act 2002
83: Registration of judgment
The High Court must register a judgment to which this subpart applies under section 80 as a civil judgment debt section 90 Section 83 inserted 1 December 2002 section 26 Securities Amendment Act 2002 Section 83 amended 25 October 2006 section 22 Securities Amendment Act 2006
84: Effect of registration
A registered judgment—
a: has the same force and effect; and
b: subject to sections 85 86 as if the judgment had been given by the High Court. Section 84 inserted 1 December 2002 section 26 Securities Amendment Act 2002
85: Enforceability of registered judgment
A registered judgment is capable of being enforced in or by the High Court only if, and to the extent that, at the time when the proceeding for enforcement is or is to be taken, the judgment is capable of being enforced in or by—
a: the court of rendition; or
b: a court in the place of rendition. Section 85 inserted 1 December 2002 section 26 Securities Amendment Act 2002
86: Stay may be granted
1: The High Court may, on application by a person against whom the registered judgment has been given, order that proceedings in the High Court to enforce the judgment—
a: not be commenced until a specified time; or
b: be stayed for a specified period.
2: The order—
a: must be made subject to conditions that—
i: within the period specified in the order, the person make and prosecute an appropriate application for relief in respect of the registered judgment; and
ii: the application be prosecuted in an expeditious manner; and
b: may be made subject to other conditions, including as to the giving of security, that the High Court thinks fit.
3: For the purposes of subsection (2)(a)(i), an appropriate application for relief Section 86 inserted 1 December 2002 section 26 Securities Amendment Act 2002
87: Costs
1: The following are recoverable in proceedings by way of enforcement of a registered judgment:
a: the reasonable costs and expenses of, and incidental to, obtaining and lodging the copy of the judgment; and
b: the costs and expenses reasonably incurred in attempting to execute the judgment in the court of rendition.
2: The entitlement of a person to, and the liability of a person for, the costs or expenses of, and incidental to, those proceedings are the same as they are in proceedings by way of enforcement of—
a: a similar judgment given by the High Court; or
b: if there is no such similar judgment, the most closely analogous judgment given by the High Court. Section 87 inserted 1 December 2002 section 26 Securities Amendment Act 2002
88: Interest
Interest on the amount of a registered judgment—
a: is payable at the same rate or rates and in respect of the same period or periods as would be applicable in the court of rendition; and
b: is recoverable to the extent that the judgment creditor satisfies the High Court as to the amount of the interest. Section 88 inserted 1 December 2002 section 26 Securities Amendment Act 2002
89: Rules of private international law not to apply
If a judgment is registered in the High Court under this subpart, the courts of New Zealand must not, merely because of the operation of a rule of private international law, refuse to permit proceedings by way of enforcement of the registered judgment to be taken or continued. Section 89 inserted 1 December 2002 section 26 Securities Amendment Act 2002
90: Other regulations for registration of judgments under application regime
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the registration of judgments under this subpart, including (without limitation) providing for—
a: the verification requirements for those judgments:
b: the registration and service of facsimiles of those judgments:
c: the service of notice of registration of those judgments:
d: other requirements for the way in which those judgments may be registered (for example, the currency of registrations and the registration of partly satisfied judgments). Section 90 inserted 1 December 2002 section 26 Securities Amendment Act 2002