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[F.A.Q.]
Fiji Consolidated Legislation |
LAWS OF FIJI
[Rev. Ed. 1985]
CHAPTER 247
COMPANIES
___________
TABLE OF PROVISIONS
___________
PART I-PRELIMINARY
SECTION
1.
Short title
2.
Interpretation
3. Register of
Companies
PART II-INCORPORATION OF COMPANIES
AND
MATTERS INCIDENTAL THERETO
Division 1 - Memorandum of Association
4. Mode of
forming incorporated company
5.
Requirements with respect to
memorandum
6. Signature of
memorandum
7. Incidental and
ancillary powers
8.
Ultra vires
transactions
9. Restriction on
alteration of memorandum
10. Mode in
which and extent to which objects or powers of company may be altered
Division 2 - Articles of Association
11. Articles
prescribing regulations for
companies
12. Regulations required
in case of unlimited company or company limited by
guarantee
13. Adoption and
application of Table A
14. Printing
and signature of articles
15.
Alteration of articles by special resolution
Division 3 - Form of Memorandum and Articles
16. Statutory
forms of memorandum and articles
Division 4 - Registration
17. Registration
of memorandum and articles
18.
Effect of registration
19.
Conclusiveness of certificate of
incorporation
20. Registration of
unlimited company as limited
Division 5 - Provisions with Respect to Names of Companies
21.
Reservation of name and prohibition of undesirable
name
22. Change of
name
23. Power to dispense with
"Limited" in name of charitable and other companies
Division 6 - General Provisions with Respect
to
Memorandum and Articles
24. Effect of
memorandum and articles
25.
Provision as to memorandum and articles of companies limited by
guarantee
26. Alterations in
memorandum or articles increasing liability to contribute to share capital not
to bind existing members without
consent
27. Power to alter
conditions in memorandum which could have been contained in
articles
28. Copies of memorandum
and articles to be given to
members
29. Issued copies of
memorandum to embody alterations
Division 7 - Membership of Company
30. Definition of
member
31. Membership of holding
company
Division 8 - Private Companies
32. Meaning of
"private company"
33. Consequences
of default in complying with conditions constituting a company a private
company
34. Statement in lieu of
prospectus to be delivered to registrar by company on ceasing to be private
company
Division 9 - Reduction of Number of Members Below Legal Minimum
35. Members
severally liable for debts where business carried on with fewer than 7, or in
case of private company 2, members
Division 10 - Contracts, etc.
36. Form of
contracts
37. Bills of exchange and
promissory notes
38. Execution of
deeds abroad
39. Power for company
to have official seal for use
abroad
40. Authentication of
documents
PART III-SHARE CAPITAL AND DEBENTURES
Division 1 - Prospectus
41. Dating of
prospectus
42. Matters to be stated
and reports to be set out in
prospectus
43. Provisions of section
42 not to limit any other
liability
44. Expert's consent to
issue of prospectus containing statement by
him
45. Registration of
prospectus
46. Restriction on
alteration of terms mentioned in prospectus or statement in lieu of
prospectus
47. Civil liability for
mis-statements in prospectus
48.
Criminal liability for mis-statements in
prospectus
49. Document containing
offer of shares or debentures for sale to be deemed
prospectus
50. Interpretation of
provisions relating to prospectuses
Division 2 - Allotment
51. Prohibition
of allotment unless minimum subscription
received
52. Prohibition of
allotment in certain cases unless statement in lieu of prospectus delivered to
registrar
53. Effect of irregular
allotment
54. Applications for, and
allotment of, shares and
debentures
55. Allotment of shares
and debentures to be dealt in on stock
exchange
56. Return as to
allotments
Division 3 - Commissions and Discounts, etc.
57. Power to pay
certain commissions, and prohibition of payment of all other commissions,
discounts, etc.
58. Prohibition of
provision of financial assistance by company for purchase of or subscription for
its own or its holding company's
shares
Division 4 - Construction of References to Offering
Shares
or Debentures to the Public
59. Construction
of references to offering shares or debentures to the public
Division 5 - Issue of Shares at Premium and Discount
and
Redeemable Preference Shares
60. Application
of premiums received on issue of
shares
61. Power to issue shares at
a discount
62. Power to issue
redeemable preference shares
Division 6 - Miscellaneous Provisions as to Share Capital
63. Power of
company to arrange for different amounts being paid on
shares
64. Reserve liability of
limited company
65. Power of company
limited by shares to alter its share
capital
66. Notice to registrar of
consolidation of share capital, conversion of shares into stock,
etc.
67. Notice of increase of share
capital
68. Power of unlimited
company to provide for reserve share capital on
re-registration
69. Power of company
to pay interest out of capital in certain cases
Division 7 - Reduction of Share Capital
70. Special
resolution for reduction of share
capital
71. Application to court for
confirming order, objections by creditors, and settlement of list of objecting
creditors
72. Order confirming
reduction and powers of court on making such
order
73. Registration of order and
minute of reduction
74. Liability of
members in respect of reduced
shares
75. Penalty for concealing
name of creditor, etc.
Division 8 - Variation of Shareholders' Rights
76. Rights of
holders of special classes of shares
Division 9 - Transfer of Shares and Debentures, Evidence of Title, etc.
77. Nature of
shares
78. Numbering of
shares
79. Transfer not to be
registered except on production of instrument of
transfer
80. Transfer by personal
representative
81. Registration of
transfer at request of
transferor
82. Notice of refusal to
register transfer
83. Certification
of transfers
84. Duties of company
with respect to issue of
certificates
85. Certificate to be
evidence of title
86. Evidence of
grant of probate
87. Issue and
effect of share warrants to
bearer
88. Penalty for personation
of shareholder
89. Offences in
connection with share warrants
Division 10-Special Provisions as to Debentures
90. Provisions as
to registers of debenture
holders
91. Rights of debenture
holders and shareholders to inspect register of debenture holders and to have
copies of trust deed
92. Liability
of trustees for debenture
holders
93. Perpetual
debentures
94. Power to reissue
redeemed debentures in certain
cases
95. Saving, in case of
reissued debentures, of rights of certain
mortgagees
96. Specific performance
of contracts to subscribe for
debentures
97. Payment of certain
debts out of assets subject to floating charge in priority to claims under the
charge
PART IV-REGISTRATION OF CHARGES
Division 1 - Registration of Charges with Registrar
98. Registration
of charges
99. Duty of company to
register charges created by
company
100. Duty of company to
register, charges existing on property
acquired
101. Certificate of
registration of charge
102.
Endorsement of certificate of registration on
debentures
103. Registration of
satisfaction and release of property from
charge
104. Extension of time to
register charges
105. Registration
of enforcement of security
Division 2 - Provisions as to Company's Register of Charges
and as to
Copies of Instruments Creating Charges
106. Copies of
instruments creating charges to be kept by
company
107. Company's register of
charges
108. Right to inspect copies
of instruments creating charges and company's register of charges
PART V-MANAGEMENT AND ADMINISTRATION
Division 1 - Registered Office and Name
109. Registered
office of company
110. Notification
of situation of registered office and of change
therein
111. Publication of name by
company
Division 2 - Statement of Amount of Paid-up Capital
112. Statement of
amount of capital subscribed and amount paid up
Division 3 - Restrictions on Commencement of Business
113. Restrictions
on commencement of business
Division 4 - Register of Members
114. Register of
members
115. Index of
members
116. Provisions as to
entries in register in relation to share
warrants
117. Inspection of register
and index
118. Consequences of
failure to comply with requirements as to register owing to agent's
default
119. Power to close
register
120. Power of court to
rectify register
121. Trusts not to
be entered on register
122. Register
to be evidence
Division 5 - Branch Register
123. Power for
company to keep branch register
124.
Regulations as to branch
register
125. Stamp duty in case of
transfer of shares registered in branch
registers
126. Provisions as to
branch registers of Commonwealth companies kept in Fiji
Division 6 - Annual Return
127. Annual
return to be made by company having a share
capital
128. Annual return to be
made by company not having a share
capital
129. Time for completion of
annual return
130. Documents to be
annexed to annual return
131.
Certificates to be sent by private company with annual return
Division 7 - Meetings and Proceedings
132. Statutory
meeting and statutory report
133.
Annual general meeting
134.
Convening of extraordinary general meeting on
requisition
135. Length of notice
for calling meetings
136. General
provisions as to meetings and
votes
137. Power of court to order
meeting
138.
Proxies
139. Rights to demand a
poll
140. Voting on a
poll
141. Representation of
corporations at meetings of companies and of
creditors
142. Circulation of
members' resolutions, etc.
143.
Special resolutions
144. Resolutions
requiring special notice.
145.
Registration and copies of certain resolutions and
agreements
146. Resolutions passed
at adjourned meetings
147. Minutes
of proceedings of meetings of company and of
directors
148. Inspection of minute
books
Division 8 - Accounts and Audit
149. Keeping of
books of account
150. Profit and
loss account and balance sheet
151.
General provisions as to contents and form of
accounts
152. Obligation to lay
group accounts before holding
company
153. Form of group
accounts
154. Contents of group
accounts
155. Financial year of
holding company and subsidiary
156.
Meaning of "holding company" and
"subsidiary"
157. Signing of balance
sheet
158. Accounts and auditors'
report to be annexed to balance
sheet
159. Directors' report to be
attached to balance sheet
160. Right
to receive copies of balance sheets and auditors'
report
161. Appointment and
remuneration of auditors
162.
Operation of section 161 in relation to
private companies
163. Provisions as
to resolutions relating to appointment and removal of
auditors
164. Disqualifications for
appointment as auditor
165.
Auditors' report and right of access to books and to attend and be heard at
general meetings
166. Construction
of references to documents annexed to accounts
Division 9 - Investigation by the Registrar
167.
Investigation by registrar
Division 10 - Inspection
168.
Investigation of company's affairs on application of
members
169. Investigation of
company's affairs in other
cases
170. Power of inspectors to
carry investigation into affairs of related
companies
171. Production of
documents, and evidence, on
investigation
172. Inspector's
report
173. Proceedings on
inspector's reports
174. Expenses of
investigation of company's
affairs
175 Inspector's report to be
evidence
176. Appointment and powers
of inspectors to investigate ownership of
company
177. Power to require
information as to persons interested in shares or
debentures
178. Power to impose
restrictions on shares or
debentures
179. Saving for
barristers and solicitors and bankers
Division 11 - Directors and Other Officers
180.
Directors
181.
Secretary
182. Validity of acts of
directors
183. Restrictions on
appointment or advertisement of
director
184. Share qualifications
of directors
185. Appointment of
directors to be voted on
individually
186. Removal of
directors
187. Minimum age for
appointment of directors; and retirement of directors over age
limit
188. Duty of directors to
disclose age to company
189.
Provisions as to undischarged bankrupts acting as
directors
190. Power to restrain
fraudulent persons from managing
companies
191. Prohibition of
tax-free payments to directors
192.
Prohibition of loans to
directors
193. Approval of company
requisite for payment by it to director for loss of office,
etc.
194. Approval of company
requisite for any payment, in connection with transfer of its property to
director for loss of office,
etc.
195. Duty of director to
disclose payment for loss of office, etc., made in connection with transfer of
shares in company
196. Provisions
supplementary to sections 193,
194 and
195
197.
Register of directors' shareholdings,
etc.
198. Particulars in accounts of
directors' salaries, pensions,
etc.
199. Particulars in accounts of
loans to officers, etc.
200. General
duty to made disclosure for purposes of sections
197,
198 and
199
201.
Disclosure of interests in, contracts, property, offices,
etc.
202. Register of directors and
secretaries
203. Interpretation of
section
202
204.
Limited company may have directors with unlimited
liability
205. Special resolution of
limited company making liability of directors
unlimited
206. Provisions as to
assignment of office by directors
Division 12 - Avoidance of Provisions in Articles
or
Contracts Relieving Officers from Liability
207. Provisions
as to liability of officers and auditors
Division 13 - Arrangements and Reconstructions
208. Power to
compromise with creditors and
members
209. Information as to
compromises with creditors and
members
210. Provisions for
facilitating reconstruction and amalgamation of
companies
211. Power to acquire
shares of shareholders dissenting from scheme or contract approved by
majority
Division 14 - Minorities
212. Alternative
remedy to winding-up in cases of oppression
PART VI-WINDING-UP
Division 1 - Preliminary
Subdivision A - Modes of Winding-up
213. Modes of
winding-up
Subdivision B - Contributories
214. Liability as
contributories of present and past
members
215. Definition of
contributory
216. Nature of
liability of contributory
217.
Contributories in case of death of
member
218. Contributories in case
of bankruptcy of member
Division 2 - Winding-up by the Court
Subdivision A - Jurisdiction
219. Jurisdiction
to wind up companies registered in Fiji
Subdivision B - Cases in which Company may be Wound up by Court
220.
Circumstances in which company may be wound up by the
court
221. Definition of inability
to pay debts
Subdivision C - Petition for Winding-up and Effects Thereof
222. Provisions
as to applications for
winding-up
223. Power of court on
hearing petition
224. Power to stay
or restrain proceedings against
company
225. Avoidance of
dispositions of property, etc., after commencement of
winding-up
226. Avoidance of
attachments, etc.
Subdivision D - Commencement of Winding-up
227. Commencement
of winding-up by the court
Subdivision E - Consequences of Winding-up Order
228. Copy of
order to be forwarded to
registrar
229. Actions stayed on
winding-up order
230. Effect of
winding-up order
Subdivision F - Official Receiver in Winding-up
231. Official
receiver in bankruptcy to be official receiver for winding-up
purposes
232. Appointment of
official receiver by court in certain
cases
233. Statement of company's
affairs to be submitted to official
receiver
234. Report by official
receiver
Subdivision G - Liquidators
235. Power of
court to appoint liquidators
236.
Appointment and powers of interim
liquidator
237. Appointment, style,
etc., of liquidators
238. Provisions
where person other than official receiver is appointed
liquidator
239. General provisions
as to liquidators
240. Custody of
company's property
241. Vesting of
property of company in
liquidator
242. Powers of
liquidator
243. Exercise and control
of liquidator's powers
244. Books to
be kept by liquidator
245. Payments
by liquidator to official receiver or into
bank
246. Audit of liquidator's
accounts
247. Control over
liquidators
248. Release of
liquidators
Subdivision H - Committees of Inspection
249. Meetings of
creditors and contributories to determine whether committee of inspection shall
be appointed.
250. Constitution and
proceedings of committee of
inspection.
251. Powers of court
where no committee of inspection.
Subdivision I - General Powers of Court in Case of Winding-up by Court
252. Power to
stay winding-up
253. Settlement of
list of contributories and application of
assets
254. Delivery of property to
liquidator
255. Payment of debts due
by contributory to company and extent to which set off
allowed
256. Power of court to make
calls
257. Payment into bank of
moneys due to company
258. Order on
contributory conclusive
evidence
259. Appointment of special
manager
260. Power to exclude
creditors not proving in time
261.
Adjustment of rights of
contributories
262. Inspection of
books by creditors and
contributories
263. Power to order
costs of winding-up to be paid out of
assets
264. Power to summon persons
suspected of having property of company,
etc.
265. Attendance of officers of
company at meetings of creditors,
etc.
266. Power to order public
examination of promoters and
officers
267. Power to arrest
absconding promoters, officers and
contributories
268. Powers of court
cumulative
269. Delegation to
liquidator of certain powers of
court
270. Dissolution of
company
Subdivision J - Appeals
271. Appeals
Division 3 - Voluntary Winding-up
Subdivision A - Resolutions for and Commencement of Voluntary Winding-up
272.
Circumstances in which company may be wound up
voluntarily
273. Notice of
resolution to wind up
voluntarily
274. Commencement of
voluntary winding-up
Subdivision B - Consequences of Voluntary Winding-up
275. Effect of
voluntary winding-up on business and status of
company
276. Avoidance of transfers,
etc., after commencement of voluntary winding-up
Subdivision C - Declaration of Solvency
277. Statutory
declaration of solvency in case of proposal to wind up voluntarily
Subdivision D - Provisions Applicable to a Members' Voluntary Winding-up
278. Provisions
applicable to a members'
winding-up
279. Power of company to
appoint and fix remuneration of
liquidators
280. Power to fill
vacancy in office of liquidator
281.
Power of liquidator to accept shares, etc., as consideration for sale of
property of company
282. Duty of
liquidator to call creditors' meeting in case of
insolvency
283. Duty of liquidator
to call general meeting at end of each
year
284. Final meeting and
dissolution
285. Alternative
provisions as to annual and final meetings in case of insolvency
Subdivision E - Provisions Applicable to a Creditors' Voluntary Winding-up
286. Provisions
applicable to a creditors'
winding-up
287. Meeting of
creditors
288. Appointment of
liquidator
289. Appointment of
committee of inspection
290. Fixing
of liquidators' remuneration
291.
Cesser of directors' powers on appointment of
liquidator
292. Power to fill
vacancy in office of liquidator
293.
Application of section 281 to a
creditors' voluntary winding-up
294.
Duty of liquidator to call meetings of company and of creditors at end of each
year
295. Final meeting and
dissolution
Subdivision F - Provisions Applicable to Every Voluntary Winding-up
296. Provisions
applicable to every voluntary
winding-up
297. Distribution of
property of company
298. Powers and
duties of liquidator in voluntary
winding-up
299. Power of court to
appoint and remove liquidator in voluntary
winding-up
300. Notice by liquidator
of his appointment
301. Arrangement
when binding on creditors
302. Power
to apply to court to have questions determined or powers
exercised
303. Costs of voluntary
winding-up
304. Saving for rights of
creditors and contributories
Division 4 - Winding-up Subject to Supervision of Court
305. Power to
order winding-up subject to
supervision
306. Effect of petition
for winding-up subject to
supervision
307. Application of
sections 225 and
226 to winding-up subject to
supervision
308. Power of court to
appoint or remove liquidators
309.
Effect of supervision order
Division 5 - Provisions Applicable to Every Mode of Winding-up
Subdivision A - Proof and Ranking of Claims
310. Debts of all
descriptions may be proved
311.
Application of bankruptcy rules in winding-up of insolvent
companies
312. Preferential
payments
Subdivision B - Effect of Winding-up on Antecedent and Other Transactions
313. Fraudulent
preference
314. Liabilities and
rights of certain fraudulently preferred
persons
315. Effect of floating
charge
316. Disclaimer of onerous
property in case of company wound
up
317. Restriction of rights of
creditor as to execution or attachment in case of company being wound
up
318.
Duties of court as to goods taken in execution
Subdivision C - Offences Antecedent to or in Course of Winding-up
319. Offences by
officers of companies in
liquidation
320. Penalty for
falsification of books
321. Fraud by
officers of companies which have gone into
liquidation
322. Officers of company
failing to account for loss of part of company's
property
323. Liability where proper
accounts not kept
324.
Responsibility for fraudulent trading of persons
concerned
325. Power of court to
assess damages against delinquent directors,
etc.
326. Prosecution of delinquent
officers and members of company
Subdivision D - Supplementary Provisions as to Winding-up
327.
Disqualification for appointment as
liquidator
328.
Corrupt inducement affecting appointment as
liquidator
329. Enforcement of duty
of liquidator to make returns,
etc.
330. Notification that a
company is in liquidation
331.
Exemption of certain documents from stamp duty on winding-up of
companies
332. Books of company to
be evidence
333. Disposal of books
and papers of
company
334.
Information as to pending
liquidations
335. Unclaimed assets
to be paid to Companies Liquidation
Account
336. Resolutions passed at
adjourned meetings of creditors and contributories
Subdivision E - Supplementary Powers of Court
337. Meetings to
ascertain wishes of creditors or
contributories
338. Swearing of
affidavits and declarations
Subdivision F - Provisions as to Dissolution
339. Power of
Court to declare dissolution of company
void
340.
Registrar may strike defunct company off register.
341. Property of dissolved company to be bona vacantia
342. Power of Crown to disclaim title to property vesting under section 341
Subdivision G - Companies Liquidation Account
343. Companies
Liquidation Account
344. Investment
of surplus funds; Companies Contingency Fund
Subdivision H - Rules and Fees
345. Rules and
fees for winding-up
PART VII-RECEIVERS AND MANAGERS
346.
Disqualification of body corporate for appointment as
receiver
347. Disqualification of
undischarged bankrupt from acting as receiver or
manager
348. Power to appoint
official receiver as receiver for debenture holder or
creditors
349. Receivers and
managers appointed out of court
350.
Notification that receiver or manager
appointed
351. Power of court to fix
remuneration on application of
liquidator
352. Provisions as to
information where receiver or manager
appointed
353. Special provisions as
to statement submitted to
receiver
354. Delivery to registrar
of accounts of receivers and
managers
355. Enforcement of duty of
receivers and managers to make returns,
etc.
356. Construction of references
to receivers and managers
PART VIII-APPLICATION OF ACT TO COMPANIES FORMED
OR
REGISTERED UNDER THE REPEALED ACTS
357. Application
of Act to companies formed and registered under the repealed Acts
PART IX-WINDING-UP OF UNREGISTERED COMPANIES
358. Meaning of
unregistered company
359. Winding-up
of unregistered companies
360.
Foreign companies may be wound up although
dissolved
361. Contributories in
winding-up of unregistered
company
362. Power of court to stay
or restrain proceedings
363. Actions
stayed on winding-up order
364.
Provisions of Part IX
cumulative
365. Saving for
winding-up under the repealed Acts
PART X-COMPANIES INCORPORATED OUTSIDE FIJI
Division 1 - Provisions as to Establishment of Place of Business in Fiji
366. Application
of sections 367
to
376
367. Documents, etc., to
be delivered to registrar by foreign companies carrying on business in
Fiji
368. Certificate of
registration and power to hold
land
369. Returns to be delivered to
registrar by foreign company
370.
Registration of charges created by foreign
companies
371. Accounts of foreign
company
372. Obligation to state
name of foreign company, whether limited and country where
incorporated
373. Service on foreign
company
374. Cessation of business
by foreign company and striking off
register
375.
Penalties
376. Interpretation of
sections 367
to 375
Division 2 - Prospectuses
377. Dating of
prospectus and particulars to be contained
therein
378. Provisions as to
expert's consent and allotment
379.
Registration of prospectus
380.
Penalty for contravention of sections
377 to
379
381.
Civil liability for mis-statements in
prospectus
382. Interpretation of
provisions as to prospectus
PART XI-GENERAL PROVISIONS AS TO REGISTRATION
383. Appointment
of registrar, etc.
384.
Fees
385. Inspection, production and
evidence of documents kept by
registrar
386. Enforcement of duty
of company to make returns to registrar
PART XII-MISCELLANEOUS PROVISIONS WITH RESPECT
TO INSURANCE
COMPANIES, AND CERTAIN SOCIETIES AND PARTNERSHIPS
387. Certain
companies to publish periodical
statement
388. Certain companies
deemed insurance companies
389.
Prohibition of partnerships with more than 25 members
PART XIII-GENERAL
390. Form of
registers, etc.
391. Service of
documents
392. Returns, etc., filed
out of time
393. Penalty for false
statements
394. Penalty for improper
use of word "Limited"
395. Provision
with respect to default fines and meaning of "officer in
default"
396. Production and
inspection of books where offence
suspected
397. Cognizance of
offences
398. Application of
fines
399. Provisions relating to
institution of criminal proceedings by the Director of Public
Prosecutions
400. Proceedings by the
Attorney-General
401. Saving for
privileged communications
402. Costs
in actions by certain limited
companies
403. Power of court to
grant relief in certain cases
404.
Power to enforce orders
405.
Regulations
406. Saving for repealed
Companies Act
407. Provision as to
winding-up commenced prior to appointed
day
408. Repeal
SCHEDULES
First Schedule-Incidental and Ancillary
Powers
Second Schedule- Tables A, B, C, D and E:-
Table A
Part I-Regulations for the Management of a Company
Limited by Shares, not being a Private Company
r. 1 Interpretation
rr. 2-10 Share capital and variation of rights
rr. 11-14 Lien
rr. 15-21 Calls on shares
rr. 22-28 Transfer of shares
rr. 29-32 Transmission of shares
rr. 33-39 Forfeiture of shares
rr. 40-43 Conversion of shares into stock
rr. 44-46 Alteration of capital
rr. 47-49 General Meetings
rr. 50-51 Notice of general meetings
rr. 52-61 Proceedings at general meetings
rr. 62-73 Votes of members
r. 74 Corporations acting by representatives at meetings
rr. 75-78 Directors
r. 79 Borrowing powers
rr. 80-87 Powers and duties of directors
r. 88 Disqualifications of directors
rr. 89-97 Rotation of directors
rr. 98-106 Proceedings of directors
rr. 107-109 Managing Director
r. 110 Secretary
r. 111 The seal
rr. 112-120 Dividends and reserve
rr. 121-125 Accounts
rr. 126-127 Capitalization of profits
rr. 128 Audit
rr. 129-132 Notices
r. 133 Winding-up
r. 134 Indemnity
Part II-Regulations for the Management of a Private,
Company Limited by Shares
Table B-
Form of Memorandum of Association of a Company Limited by Shares
Table C-
Form of Memorandum and Articles of Association of a Company Limited by Guarantee, and not having a Share Capital
Table D-
Form of Memorandum and Articles of Association of a Company Limited by Guarantee, and Having a Share Capital
Table E-
Form of Memorandum and Articles of Association of an Unlimited Company Having a Share Capital
Third Schedule- Form of
Statement in lieu of Prospectus to be Delivered to Registrar by a Private
Company on Becoming a Public Company
and Reports to be Set out
therein.
Fourth Schedule- Matters to be specified in Prospectus and
Reports to be Set out therein.
Fifth Schedule- Form of Statement in lieu
of Prospectus to be Delivered to Registrar by a Company Which does not Issue a
Prospectus
of Which does not Go to Allotment on a Prospectus Issued, and Reports
to be Set out therein.
Sixth Schedule- Contents and Form of Annual Return
of a Company Having a Share Capital.
Seventh Schedule-
Accounts.
Eighth Schedule- Matters to be Expressly Stated in Auditors'
Report
Ninth Schedule- Provisions of This Act Which do no Apply in the
Case of a Winding-up Subject to Supervision of the Court
Tenth Schedule-
Form of Statement to be Published by Insurance Companies and Deposit, Provident
or Benefit Societies
Eleventh Schedule- Provisions Referred to in Section
393
--------------------------------
COMPANIES
AN ACT TO AMEND AND CONSOLIDATE THE LAW RELATING
TO THE
INCORPORATION, REGULATION AND WINDING-UP OF
COMPANIES AND OTHER ASSOCIATIONS,
AND TO MAKE
PROVISION FOR OTHER MATTERS RELATING THERETO
AND CONNECTED
THEREWITH
[1 January 1984*]
PART I-PRELIMINARY
Short title
1. This Act may
be cited as the Companies Act.
Interpretation
2.-(1) In this
Act, except where the context otherwise requires-
"accounts" includes a company's group accounts, whether prepared in the form of accounts or not;
"agent" does not include a person's barrister and solicitor acting as such;
"annual return" means the return required to be made, in the case of a company having a share capital, under section 127 and in the case of a company not having a share capital, under section 128;
"articles" means the articles of association of a company, as originally framed or as altered by special resolution, including, so far as they apply to the company, the regulations contained in Table A in the First Schedule to any of the repealed Acts or in Table A in the Second Schedule to this Act;
"book and paper" and "book or paper" include accounts, deeds, writings and documents;
"certified" means certified in the prescribed manner to be a true copy or to be a correct translation into the English language;
"company" means a company formed and registered under this Act or an existing company;
"company limited by guarantee" and "company limited by shares" have the meanings assigned to them respectively by subsection (2) of section 4;
"contributory" has the meaning assigned to it by section 215;
"court" means the Supreme Court;
"creditors' voluntary winding-up" has the meaning assigned to it by subsection (4) of section 277;
"debenture" includes debenture stock, bonds and any other securities of a company, whether constituting a charge on the assets of the company or not;
"director" includes any person occupying the position of director, by whatever name called;
"document" includes summons, notice, order and other legal process, and registers;
"existing company" means a company formed and registered under any of the repealed Acts;
"financial year" means, in relation to any body corporate, the period in respect of which any profit and loss account of the body corporate laid before it in general meeting is made up, whether that period is a year or not;
"group accounts" has the meaning assigned to it by subsection (1) of section 152;
"holding company" means a holding company as defined by section 156;
"insurance company" means a company which carries on the business of insurance either solely or in conjunction with any other business or businesses;
"issued generally" means, in relation to a prospectus, issued to persons who are not existing members or debenture holders of the company;
"limited company" means a company limited by shares or a company limited by guarantee;
"members' voluntary winding-up" has the meaning assigned to it by subsection (4) of section 277;
"memorandum" means the memorandum of association of a company, as originally framed or as altered from time to time;
"minimum subscription" has the meaning assigned to it by subsection (2) of section 51;
"officer", in relation to an association or a body corporate, includes a director, manager or secretary;
"printed or typewritten" means printed, or typewritten, or reproduced by such other means as may be prescribed;
"private company" has the meaning assigned to it by subsection (1) of section 32;
"prospectus" means any prospectus, notice, circular, advertisement or other invitation, offering to the public for subscription or purchase any shares or debentures of a company;
"registrar" means the registrar of companies, the deputy registrar or any assistant registrar or other officer performing under this Act the duty of registration of companies;
"repealed Acts" means the Companies Act 1913, and includes the Partnership Consolidation and Limited Liability Act 1878 and the repealed Companies Act;
"repealed Companies Act" means the Companies Act repealed by this Act;
"resolution for reducing share capital" has the meaning assigned to it by subsection (2) of section 70;
"resolution for voluntary winding-up" has the meaning assigned to it by subsection (2) of section 272;
"share" means share in the share capital of a company, and includes stock, except where a distinction between stock and shares is expressed or implied;
"share warrant" has the meaning assigned to it by subsection (2) of section 87;
"statutory meeting" means the meeting required to be held by subsection (1) of section 132;
"statutory report" has the meaning assigned to it by subsection (2) of section 132;
"subsidiary" means a subsidiary as defined by section 156;
"Table A" means Table A in the Second Schedule;
"time of the opening of the subscription lists" has the meaning assigned to it by subsection (1) of section 54;
"unlimited company" has the meaning assigned to it by subsection (2) of section 4.
(2)
A person shall not be deemed to be, within the meaning of any provision of this
Act, a person in accordance with whose directions
or instructions the directors
of a company are accustomed to act, by reason only that the directors of the
company act on advice
given by him in a professional capacity.
(3)
References in this Act to a body corporate or to a corporation shall be
construed as not including a corporation sole but as including
a company
incorporated outside Fiji.
(4) Any provision of this Act overriding or
interpreting a company's articles shall, except as provided by this Act, apply
in relation
to articles in force immediately before 1 January 1984, as well as
to articles coming into force thereafter, and shall apply also
in relation to a
company's memorandum as it applies in relation to its articles.
Register of Companies
3. There shall be
kept by the registrar a record called "the Register of Companies" wherein shall
be entered all the matters prescribed
by this Act.
PART II-INCORPORATION OF COMPANIES
AND
MATTERS INCIDENTAL THERETO
Division 1 - Memorandum of Association
Mode of forming incorporated company
4.-(1) Any 7 or
more persons, or, where the company to be formed will be a private company, any
2 or more persons, associated for any
lawful purpose may, by subscribing their
names to a memorandum of association and otherwise complying with the
requirements of this
Act in respect of registration, form an incorporated
company, with or without limited liability.
(2) Such a company may be
either-
(a) a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Act termed a "company limited by shares"); or
(b) a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Act termed a "company limited by guarantee"); or
(c) a company not having any limit on the liability of its members (in this Act termed an "unlimited company").
Requirements with respect to memorandum
5.-(1) The
memorandum of every company-
(a) shall be in the English language;
(b) shall be printed or typewritten;
(c) shall be divided into paragraphs numbered consecutively;
(d) shall be dated; and
(e) shall state-
(i) the name of the company, the last word of which shall be the word "Limited" or the abbreviation thereof "Ltd." in the case of a company limited by shares or by guarantee;
(ii) that the registered office of the company is to be situate in Fiji;
and
(iii) the objects of the company.
(2) The memorandum of a company limited by shares
or by guarantee shall also state that the liability of its members is
limited.
(3) The memorandum of a company limited by guarantee shall also
state that each member undertakes to contribute to the assets of the
company in
the event of its being wound up while he is a member, or within 1 year after he
ceases to be a member, for payment of
the debts and liabilities of the company
contracted before he ceases to be a member, and of the costs, charges and
expenses of winding-up,
and for adjustment of the rights of the contributories
among themselves, such amount as may be required, not exceeding a specified
amount.
(4) In the case of a company having a share capital-
(a) the memorandum shall also, unless the company is an unlimited company, state the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount; and
(b) no subscriber of the memorandum shall take less than 1 share; and
(c) each subscriber shall write opposite to his name the number of shares he takes.
Signature of memorandum
6.-(1) The
memorandum of every company must be signed by each subscriber, or his agent
authorised in writing, in the presence of at least
1 witness, who must attest
the signature and must add to his signature his occupation and postal
address.
(2) Opposite the signature of every subscriber there shall be
written in legible roman characters his full name, his occupation and
postal
address.
(3) In any case where a corporation, whether a company within
the meaning of this Act or not, is the subscriber of the memorandum
of a
company, the memorandum may be signed on behalf of the corporation by any person
or persons acting under its authority expressed
in writing, and it shall not be
necessary in any such case for the seal of the corporation to be fixed to the
memorandum.
Incidental and ancillary powers
7. A company,
whether registered before or after 1 January 1984, shall have, as ancillary and
incidental to the objects stated in its
memorandum, the powers set forth in the
First Schedule, unless such powers or any of them are expressly excluded or
modified by the
memorandum.
Ultra vires transactions
8.-(1) No act of
a company (including the entering into an agreement by the company) and no
conveyance or transfer of property to or
by a company, shall be invalid by
reason only of the fact that the company was without capacity or power to do the
act or to execute
or take the conveyance or transfer.
(2) Any such lack
of capacity or power may be asserted or relied upon only in-
(a) proceedings against the company by a member of the company or, where the company has issued debentures secured by a floating charge over all or any of the property of the company, by the holder of any of those debentures or the trustees for the holders of those debentures to restrain the doing of any act or acts or the conveyance or transfer of any property to or by the company;
(b) proceedings by the company, or by a member of the company, against the present or former officers of the company; or
(c) a petition by the Attorney-General to wind up the company.
(3) If the unauthorized act,
conveyance or transfer sought to be restrained in any proceedings under
paragraph (a) of subsection (2) is
being, or is to be, performed or made pursuant to any contract to which the
company is a party, the court may,
if all the parties to the contract are
parties to the proceedings, and if the court considers it to be just and
equitable, set aside
and restrain the performance of the contract and may allow
to the company and to the other parties to the contract (as the case requires)
compensation for the loss or damage sustained by either of them that may result
from the action of the court in setting aside and
restraining the performance of
the contract, but anticipated profits to be derived from the performance of the
contract shall not
be awarded by the court as a loss or damage
sustained.
Restriction on alteration of memorandum
9. A company
shall not alter the conditions contained in its memorandum, except in the cases,
in the mode and to the extent for which
express provision is made in this
Act.
Mode in which and extent to which objects or powers of company may be altered
10.- (1) A
company may, by special resolution, alter the provisions of its memorandum with
respect to the objects or powers of the company:
Provided that, if an
application is made to the court in accordance with this section for the
alteration to be cancelled, it shall
not have effect, except in so far as it is
confirmed by the court.
(2) An application under this section may be
made-
(a) by the holders of not less in the aggregate than 10 per cent in nominal value of the company's issued share capital or any class thereof or, if the company is not limited by shares, not less than 10 per cent of the company's members; or
(b) by the holders of not less than 10 per cent of the company's debentures entitling the holders to object to alterations of its objects or powers:
Provided that an application shall not
be made by any person who has consented to or voted in favour of the
alteration.
(3) An application under this section shall be made within 30
days after the date on which the resolution altering the company's objects
or
powers was passed and may be made on behalf of the persons entitled to make the
application by such 1 or more of their number
as they may appoint in writing for
the purpose.
(4) On an application under this section, the court may make
an order cancelling the alteration or confirming the alteration either
wholly or
in part and on such terms and conditions as it thinks fit, and may, if it thinks
fit, adjourn the proceedings in order
that an arrangement may be made to the
satisfaction of the court for the purchase of the interests of dissentient
members, and may
give such directions and make such orders as it may think
expedient for facilitating or carrying into effect any such
arrangement:
Provided that no part of the capital of the company shall be
expended in any such purchase.
(5) (a) The debentures entitling the holders to object to alterations of a company's objects or powers shall be any debentures secured by a floating charge which were issued or first issued before 1 January 1984, or form part of the same series as any debentures so issued, and a special resolution altering a company's objects or powers shall require the same notice to the holders of any such debentures as to members of the company.
(b) In default of any provisions regulating the giving of notice to any such debenture holders, the provisions of the company's articles regulating the giving of notice to members shall apply.
(6)
In the case of a company which is, by virtue of a licence from the Minister,
exempt from the obligation to use the word "Limited"
as part of its name, a
resolution altering the company's objects or powers shall also require the same
notice to the Minister as
to members of the company.
(7) Where a company
passes a resolution altering its objects or powers-
(a) if no application is made with respect thereto under this section, it shall, within 14 days from the end of the period for making such an application, deliver to the registrar a printed or typewritten copy of its memorandum as altered; and
(b) if such an application is made, it shall-
(i) forthwith give notice of that fact to the registrar; and
(ii) within 14 days from the date of any order cancelling or confirming the alteration wholly or in part, deliver to the registrar a certified copy of the order and, in the case of an order confirming the alteration wholly or in part, a printed or typewritten copy of the memorandum as altered,
but the court may, by order, at any time, extend the time for the delivery of documents to the registrar under paragraph (b) for such period as the court may think proper.
(8) If a company makes default
in giving notice or delivering any document to the registrar as required by
subsection (7), the company
and every officer of the company who is in default
shall be liable to a default fine of $20.
(9) The validity of an
alteration of the provisions of company's memorandum with respect to the objects
or powers of the company shall
not be questioned on the ground that it was not
authorized by subsection (1), except in proceedings taken for the purpose
(whether
under this section or otherwise) before the expiration of 30 days after
the date of the resolution in that behalf; and, where any
such proceedings are
taken otherwise than under this section, subsections (7) and (8) shall apply in
relation thereto as if they
had been taken under this section and as if an order
declaring the alteration invalid were an order cancelling it and as if an order
dismissing the proceedings were an order confirming the alteration.
(10)
In relation to a resolution for altering the provisions of a company's
memorandum with respect to the objects of the company
passed before 1 January
1984, this section shall have effect as if, in lieu of the proviso to subsection
(1) and subsections (2)
to (9) thereof, there had been enacted herein the
provisions of subsections (2) to (7) of section
7 of the repealed Companies
Act.
Division 2 -Articles of Association
Articles prescribing regulations for companies
11. There may, in
the case of a company limited by shares, and there shall, in the case of a
company limited by guarantee or unlimited,
be registered, with the memorandum,
articles of association prescribing regulations for the company.
Regulations required in case of unlimited company limited by guarantee
12.-(1) In the
case of an unlimited company, the articles shall state the number of members
with which the company proposes to be registered
and, if the company has a share
capital, the amount of share capital with which the company proposes to be
registered.
(2) In the case of a company limited by guarantee, the
articles shall state the number of members with which the company proposes
to be
registered.
(3) (a) Where an unlimited company or a company limited by guarantee has increased the number of its members beyond the registered number, it shall, within 14 days after the increase was resolved on or took place, give to the registrar notice of the increase, and the registrar shall record the increase.
(b) If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.
Adoption and application of Table A
13.-(1) Articles
of association may adopt all or any of the regulations contained in Table
A.
(2) In the case of a company limited by shares and registered on or
after 1 January 1984, if articles are not registered, or, if articles
are
registered, in so far as the articles do not exclude or modify the regulations
contained in Table A, those regulations shall,
so far as applicable, be the
regulations of the company in the same manner and to the same extent as if they
were contained in duly
registered articles.
Printing and signature of articles
14. Articles
shall be-
(a) in the English language; and
(b) printed or typewritten; and
(c) divided into paragraphs numbered consecutively; and
(d) dated; and
(e) signed by each subscriber to the memorandum or his agent authorised in writing, in the presence of at least 1 witness who must attest the signature, and must add to his signature his occupation and postal address.
Alteration of articles by special resolution
15.-(1) Subject
to the provisions of this Act and to the conditions contained in its memorandum,
a company may by special resolution alter
or add to its articles.
(2) Any
alteration or addition so made in the articles shall, subject to the provisions
of this Act, be as valid as if originally
contained therein, and be subject in
like manner to alteration by special resolution.
Division 3-Form of Memorandum and Articles
Statutory forms of memorandum and articles
16. The form
of-
(a) the memorandum of association of a company limited by shares;
(b) the memorandum and articles of association of a company limited by guarantee and not having a share capital;
(c) the memorandum and articles of association of a company limited by guarantee and having a share capital;
(d) the memorandum and articles of association of an unlimited company having a share capital,
shall be, respectively, in accordance
with the forms set out in Tables B, C, D and E in the Second Schedule, or as
near thereto as
circumstances admit.
Division 4-Registration
Registration of memorandum and articles
17. The
memorandum and the articles, if any, shall be delivered to the registrar for
registration.
Effect of registration
18.-(1) On the
registration of the memorandum of a company, the registrar shall certify under
his hand that the company is incorporated
and, in the case of a limited company,
that the company is limited.
(2) From the date of incorporation mentioned
in the certificate of incorporation, the subscribers to the memorandum, together
with
such other persons as may, from time to time, become members of the
company, shall be a body corporate by the name contained in the
memorandum,
capable of suing and being sued and of exercising all the functions of an
incorporated company, with power to hold land
and having perpetual succession
and a common seal, but with such liability on the part of the members to
contribute to the assets
of the company in the event of its being wound up as is
mentioned in this Act.
Conclusiveness of certificate of incorporation
19.-(1) A
certificate of incorporation given by the registrar in respect of any
association shall be conclusive evidence that all the
requirements of this Act
in respect of registration and of matters of precedent and incidental thereto
have been complied with, and
that the association is a company authorized to be
registered and duly registered under this Act.
(2) A statutory
declaration by a barrister and solicitor engaged in the formation of the
company, or by a person named in the articles
as a director or secretary of the
company, of compliance with all or any of the said requirements shall be
delivered to the registrar,
and the registrar may accept such a declaration as
sufficient evidence of compliance.
Registration of unlimited company as limited
20.-(1) Subject
to the provisions of this section, a company registered as unlimited may
register under this Act as limited, or a company
already registered as a limited
company may re-register under this Act, but the registration of an unlimited
company as a limited
company shall not affect the rights or liabilities of the
company in respect of any debt or obligation incurred, or any contract
entered
into, by, to, with, or on behalf of the company before the
registration.
(2) On registration in pursuance of this section the
registrar shall close the former registration of the company and may dispense
with the delivery to him of copies of any documents with copies of which he was
furnished on the occasion of the original registration
of the company, but, save
as aforesaid, the registration shall take place in the same manner and shall
have effect as if it were
the first registration of the company under this
Act.
Division 5-Provisions with Respect to Names of Companies
Reservation of name and prohibition of undesirable name
21.-(1) (a) The registrar may, on written application, reserve a name pending registration of a company or a change of name by a company.
(b) Any such reservation shall remain in force for a period of 30 days or such longer period, not exceeding 60 days, as the registrar may, for special reasons, allow and, during such period, no other company shall be entitled to be registered with that name.
(2) No name shall
be reserved, and no company shall be registered by a name, which, in the opinion
of the registrar, is undesirable:
Provided that-
(a) no company shall be registered by a name which-
(i) is identical with that by which a company is already registered, or so nearly resembles that name as to be calculated to deceive, except where the company in existence is in the course of being dissolved and signifies its consent in such manner as the registrar requires; or
(ii) contains the words "Chamber of Commerce", unless the company is a company which is to be registered under a licence granted in pursuance of section 23 without the addition of the word "Limited" to its name;
(b) except with the consent of the Minister, no company shall be registered by a name which-
(i) contains the words "Royal" or "Imperial" or, in the opinion of the registrar, suggests, or is calculated to suggest, the patronage of Her Majesty or of any member of the Royal Family, or connection with the Government or any department thereof; or
(ii) contains the words "Municipal" or "Chartered" or, in the opinion of the registrar, suggests, or is calculated to suggest, connection with any municipality or other local authority or with any society or body incorporated by Royal Charter; or
(iii) contains the word "Co-operative"; or
(iv) contains the words "Building Society".
Change of name
22.-(1) A company
may, by special resolution and with the approval of the registrar signified in
writing, change its name.
(2) (a) If, through inadvertence or otherwise, a company, on its first registration or on its registration by a new name, is registered by a name which, in the opinion of the registrar, is too like the name by which a company in existence is previously registered, the first-mentioned company may change its name with the sanction of the registrar and, if he so directs within 6 months of its being registered by that name, shall change it within a period of 6 weeks from the date of the direction or such longer period as the registrar may think fit to allow.
(b) If a company makes default in complying with a direction under this subsection, the company and every officer of the company who is in default shall be liable to a fine not exceeding $10 for every day during which the default continues.
(3) Where a company changes its
name under this section, it shall, within 14 days, give to the registrar notice
thereof and the registrar
shall enter the new name on the register in place of
the former name, and shall issue to the company a certificate of change of name,
and shall notify such change of name in the Gazette.
(4) A change of name
by a company under this section shall not affect any rights or obligations of
the company or render defective
any legal proceedings by or against the company,
and any legal proceedings that might have been continued or commenced against it
by its former name may be continued or commenced against it by its new
name.
Power to dispense with "Limited" in name of charitable and other companies
23.-(1) Where it
is proved to the satisfaction of the Minister that an association about to be
formed as a limited company is to be
formed for promoting commerce, art,
science, religion, charity or any other useful object, and intends to apply its
profits, if any,
or other income in promoting its objects, and to prohibit the
payment of any dividend to its members, the Minister may, by licence,
direct
that the association may be registered as a company with limited liability,
without the addition of the word "Limited" to
its name, and the association may
be registered accordingly and shall, on registration; enjoy all the privileges
and (subject to
the provisions of this section) be subject to all the
obligations of limited companies.
(2) Where it is proved to the
satisfaction of the Minister-
(a) that the objects of a company registered under this Act as a limited company are restricted to those specified in subsection (1) and to objects incidental or conducive thereto; and
(b) that, by its constitution, the company is required to apply its profits, if any, or other income in promoting its objects and is prohibited from paying any dividend to its members,
the Minister may, by licence, authorize the company to make, by special resolution, a change in its name including or consisting of the omission of the word "Limited", and subsections (3) and (4) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section.
(3) A licence by the Minister under
this section may be granted on such conditions and subject to such regulations
as the Minister
thinks fit, and those conditions and regulations shall be
binding on the body to which the licence is granted, and (where the grant
is
under subsection (1)) shall, if the Minister so directs, be inserted in the
memorandum and articles, or in 1 of those documents.
(4) An association
or company to which a licence is granted under this section shall be excepted
from the provisions of this Act relating
to the use of the word "Limited" as any
part of its name, the publishing of its name and the sending of lists of members
to the registrar.
(5) The Minister may, upon the recommendation of the
registrar, revoke a licence under this section and, upon revocation, the
registrar
shall enter in the register the word "Limited" at the end of the name
of the association or company to which it was granted, and
the association or
company shall cease to enjoy the exemptions and privileges or, as the case may
be, the exemptions granted by this
section:
Provided that, before
recommendation is made to the Minister, the registrar shall give to the
association or company notice in writing
of his intention, and shall afford it
an opportunity of being heard in opposition to the revocation.
(6) Where
an association or company in respect of which a licence under this section is in
force alters the provisions of its memorandum
with respect to its objects, the
registrar may (unless he sees fit to recommend the revocation of the licence)
recommend to the Minister
the variation of the licence by making it subject to
such conditions and regulations as the Minister may think fit, in lieu of or
in
addition to the conditions and regulations, if any, to which the licence was
formerly subject.
(7) Where a licence granted under this section to an
association or company the name of which contains the words "Chamber of
Commerce"
is revoked, the association or company shall, within a period of 6
weeks from the date of revocation or such longer period as the
registrar may
think fit to allow, change its name to a name which does not contain those
words, and-
(a) the notice to be given under the proviso to subsection (5) to that association or company shall include a statement of the effect of the foregoing provisions of this subsection; and
(b) subsections (3) and (4) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section.
(8) If any association or company
makes default in complying with the requirements of subsection (7), the
association or company and
every officer of the association or company who is in
default shall be liable to a fine of not exceeding $100 for every day during
which the default continues.
Division 6-General Provisions with Respect to Memorandum and Articles
Effect of memorandum and articles
24.-(1) Subject
to the provisions of this Act, the memorandum and articles shall, when
registered, bind the company and the members
thereof to the same extent as if
they respectively had been signed and sealed by each member, and contained
covenants on the part
of each member to observe all the provisions of the
memorandum and of the articles.
(2) All money payable by any member to
the company under the memorandum or articles shall be a debt due from him to the
company.
Provision as to memorandum and articles of companies limited by guarantee
25.-(1) In the
case of a company limited by guarantee and not having a share capital, and
registered after 1 February 1914, every provision
in the memorandum or articles
or any resolution of the company purporting to give any person a right to
participate in the divisible
profits of the company otherwise than as a member
shall be void.
(2) For the purpose of the provisions of this Act relating
to the memorandum of a company limited by guarantee and of this section,
every
provision in the memorandum or articles, or in any resolution, of a company
limited by guarantee and registered on or after
the date aforesaid, purporting
to divide the undertaking of the company into shares or interests shall be
treated as a provision
for a share capital, notwithstanding that the nominal
amount or number of the shares or interests is not specified thereby.
Alterations in memorandum or articles increasing liability to contribute to share capital not to bind existing members without consent
26.
Notwithstanding anything in the memorandum or articles of a company, no member
of the company shall be bound by an alteration made
in the memorandum or
articles after the date on which he became a member, if and so far as the
alteration requires him to take or
subscribe for more shares than the number
held by him at the date on which the alteration is made, or in any way increases
his liability
as at that date to contribute to the share capital of, or
otherwise to pay money to, the company:
Provided that this section shall
not apply in any case where the member agrees, in writing, either before or
after the alteration
is made, to be bound thereby.
Power to alter conditions in memorandum which could have been contained in articles
27.-(1) Subject
to the provisions of sections 26 and
212, any condition contained in a
company's memorandum which could lawfully have been contained in articles of
association instead of
in the memorandum may, subject to the provisions of this
section, be altered by the company by special resolution:
Provided that,
if an application is made to the court for the alteration to be cancelled, it
shall not have effect, except in so far
as it is confirmed by the
court.
(2) This section shall not apply where the memorandum itself
provides for or prohibits the alteration of all or any of the said conditions,
and shall not authorize any variation or abrogation of the special rights of any
class of members.
(3) Subsections (2), (3), (4), (7) and (8) of section
10 (except paragraph
(b) of the said subsection (2)) shall
apply in relation to any alteration and to any application made under this
section as they apply
in relation to alterations and to applications made under
that section.
(4) This section shall apply to a company's memorandum
whether registered before or after 1 January 1984.
Copies of memorandum and articles to be given to members
28.-(1) A company
shall, on being so required by any member, send to him a copy of the memorandum
and of the articles, if any, subject
to payment of $2 or such less sum as the
company may specify.
(2) If a company makes default in complying with
this section, the company and every officer of the company who is in default
shall
be liable for each offence to a fine not exceeding $20.
Issued copies of memorandum to embody alterations
29.-(1) Where an
alteration is made in .the memorandum of a company, every copy of the memorandum
issued after the date of the alteration
shall be in accordance with the
alteration.
(2) If, where any such alteration has been made, the company,
at any time after the date of the alteration, issues any copies of the
memorandum which are not in accordance with the alteration, it shall be liable
to a fine not exceeding $10 for each copy so issued,
and every officer of the
company who is in default shall be liable to the like penalty.
Division 7-Membership of Company
Definition of member
30.-(1) The
subscribers to the memorandum of a company shall be deemed to have agreed to
become members of the company and, on its registration,
shall be entered as
members in its register of members.
(2) Every other person who agrees to
become a member of a company, and whose name is entered in its register of
members, shall be
a member of the company.
Membership of holding company
31.-(1) Except in
the cases hereafter in this section mentioned, a body corporate cannot be a
member of a company which is its holding
company, and any allotment or transfer
of shares in a company to its subsidiary shall be void.
(2) Nothing in
this section shall apply where the subsidiary is concerned as personal
representative, or where it is concerned as
trustee, unless the holding company
or a subsidiary thereof is beneficially interested under the trust and is not so
interested only
by way of security for the purposes of a transaction entered
into by it in the ordinary course of business, which includes the lending
of
money.
(3) This section shall not prevent a subsidiary which was,
immediately before 1 January 1984, a member of its holding company from
continuing to be a member but, subject to subsection (2), the subsidiary shall
have no right to vote at meetings of the holding company
or any class of members
thereof.
(4) Subject to subsection (2), subsections (1) and (3) shall
apply in relation to a nominee for a body corporate which is a subsidiary,
as if
references in the said subsections (1) and (3) to such a body corporate included
references to a nominee for it.
(5) In relation to a company limited by
guarantee or unlimited which is a holding company, the reference in this section
to shares,
whether or not the company has a share capital, shall be construed as
including a reference to the interest of its members as such,
whatever the form
of that interest.
Division 8-Private Companies
Meaning of "private company"
32.-(1) For the
purposes of this Act, "private company" means a company which by its
articles-
(a) restricts the right to transfer its shares; and
(b) limits the number of its members to 50, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were, while in that employment and have continued, after the determination of that employment, to be, members of the company; and
(c) prohibits any invitation to the public to subscribe for any shares or debentures of the company.
(2) Where 2 or more persons hold 1 or more shares
in a company jointly, they shall, for the purposes of this section, be treated
as
a single member. Consequences of default in complying with conditions
constituting a company a private company
Consequences
of default in complying with
conditions
constituting a company a
private company
33. Where the
articles of a company include the provisions which, under section
32, are required to be included in the
articles of a company in order to constitute it a private company, but default
is made in complying
with any of those provisions, the company shall cease to be
entitled to any privilege or exemption conferred on private companies
under any
of the, provisions of this Act, and thereupon the provisions of this Act shall
apply to the company as if it not a private
company:
Provided that the
court, on being satisfied that the failure to comply with the conditions was
accidental or due to inadvertence or
to some other sufficient cause, or that, on
other grounds, it is just and equitable to grant relief, may, on the application
of the
company or any other person interested and on such terms and conditions
as seem to the court just and expedient, order that the company
be relieved from
such consequences as aforesaid.
Statement in lieu of prospectus to be delivered to
registrar by company
on ceasing to be private company
34.-(1) If a
company, being a private company, alters its articles in such a manner that they
no longer include the provisions which,
under section
32, are required to be included in the
articles of a company in order to constitute it a private company, the company
shall, on and
from the date of the alteration, cease to be a private company and
shall, within a period of 14 days after the said date, deliver
to the registrar
for registration a statement in lieu of prospectus in the form and containing
the particulars set out in Part I
of the Third Schedule and, in the cases
mentioned in Part II of that Schedule, setting out the reports specified
therein, and the
said Parts I and II shall have effect subject to the provisions
contained in Part III of that Schedule:
Provided that a statement in lieu
of prospectus need not be delivered under this subsection, if, within the said
period of 14 days,
a prospectus relating to the company, which complies with the
Fourth Schedule, is issued and is delivered to the registrar as required
by
section 45.
(2) Every statement
in lieu of prospectus delivered under subsection (1) shall, where the persons
making any such report as aforesaid
have made therein or have, without giving
the reasons, indicated therein any such adjustments as are mentioned in
paragraph 5 of
the Third Schedule, have endorsed thereon or attached thereto a
written statement signed by those persons setting out the adjustments
and giving
the reasons therefor.
(3) If default is made in complying with subsection
(1) or (2), the company and every officer of the company who is in default shall
be liable to a default fine of $100.
(4) Where a statement in lieu of
prospectus delivered to the registrar under subsection (1) includes any untrue
statement, any person
who authorized the delivery of the statement in lieu of
prospectus for registration shall be guilty of an offence and liable to
imprisonment
for a term not exceeding 2 years or to a fine not exceeding $1,000,
or to both such imprisonment and fine, unless he proves either
that the untrue
statement was immaterial or that he had reasonable ground to believe and did, up
to the time of the delivery for
registration of the statement in lieu of
prospectus, believe that the untrue statement was true.
(5) For the
purposes of this section-
(a) a statement included in a statement in lieu of prospectus shall be deemed to be untrue, if it is misleading in the form and context in which it is included; and
(b) a statement shall be deemed to be included in a statement in lieu of prospectus, if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein.
Division 9-Reduction of Number of Members Below Legal Minimum
Members severally liable for debts where business carried
on with fewer than 7,
or in case of private company 2, members
35. If, at any
time, the number of members of a company is reduced, in the case of a private
company, below 2, or, in the case of any
other company, below 7, and it carries
on business for more than 6 months while the number is so reduced, every person
who is a member
of the company during the time that it so carries on business
after those 6 months and is cognizant of the fact that it is carrying
on
business with fewer than 2 members, or 7 members, as the case may be, shall be
severally liable for the payment of the whole debts
of the company contracted
during that time, and may be severally sued therefor.
Division 10-Contracts, etc.
Form of contracts
36.-(1) Contracts
on behalf of a company may be made as follows:
(a) a contract which, if made between private persons, would be, by law, required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied;
(b) a contract which, if made between private persons, would, by law, be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under its authority, express or implied.
(2) A contract made according to this section
shall be effectual in law, and shall bind the company and its successors and all
other
parties thereto.
(3) A contract made according to this section may
be varied or discharged in the same manner in which it is authorized by this
section
to be made.
Bills of exchange and promissory notes
37. A bill of
exchange or promissory note shall be deemed to have been made, accepted or
endorsed on behalf of a company, if made, accepted
or indorsed in the name of,
or by or on behalf of, or on account of, the company by any person acting under
its authority, express
or implied.
Execution of deeds abroad
38.-(1) A company
may, by writing under its common seal, empower any person, either generally or
in respect of any specified matters,
as its attorney, to execute deeds on its
behalf in any place not situate in Fiji.
(2) A deed signed by such an
attorney on behalf of the company and under his seal shall bind the company and
have the same effect
as if it were under its common seal.
Power for company to have official seal for use abroad
39.-(1) A company
whose objects require or comprise the transaction of business outside Fiji may,
if authorized by its articles, have
for use, in any place outside Fiji, an
official seal, which shall be a facsimile of the common seal of the company,
with the addition
on its face of the name of the place where it is to be
used.
(2) A deed or other document to which an official seal is duly
affixed shall bind the-company as if it had been sealed with the common
seal of
the company.
(3) A company having an official seal for use in any place
outside Fiji may, by writing under its common seal, authorize any person
appointed for the purpose in that place to affix the official seal to any deed
or other document to which the company is party in
that place.
(4) The
authority of any such agent shall, as between the company and any person dealing
with the agent, continue during the period,
if any, mentioned in the instrument
conferring the authority, or, if no period is there mentioned, then until notice
of the revocation
or determination of the agent's authority has been given to
the person dealing with him.
(5) The person affixing any such official
seal shall, by writing under his hand, certify on the deed or other instrument
to which
the seal is affixed the date on which and the place at which it is
affixed.
Authentication of documents
40. A document or
proceeding requiring authentication by a company may be signed by a director,
secretary or other authorized officer
of the company, and need not be under its
common seal.
PART III-SHARE CAPITAL AND DEBENTURES
Division 1-Prospectus
Dating of prospectus
41. A prospectus
issued by or on behalf of a company or in relation to an intended company shall
be dated, and that date shall, unless
the contrary is proved, be taken as the
date of publication of the prospectus.
Matters to be stated and reports to be set out in prospectus
42.-(1) Every
prospectus issued by or on behalf of a company, or by or on behalf of any person
who is or has been engaged or interested
in the formation of the company, shall
state the matters specified in Part I of the Fourth Schedule and set out the
reports specified
in Part II of that Schedule, and the said Parts I and II shall
have effect subject to the provisions contained in Part III of that
Schedule.
(2) A condition requiring or binding an applicant for shares in
or debentures of a company to waive compliance with any requirement
of this
section, or purporting to affect him with notice of any contract, document or
matter not specifically referred to in the
prospectus, shall be void.
(3)
It shall not be lawful to issue any form of application for shares in or
debentures of a company, unless the form is issued with
a prospectus which
complies with the requirements of this section:
Provided that this
subsection shall not apply, if it is shown that the form of application was
issued either-
(i) in connection with a bona fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures; or
(ii) in relation to shares or debentures which were not offered to the public.
(4) If any person acts in
contravention of the provisions of subsection (3), he shall be liable to a fine
not exceeding $1,000.
(5) In the event of non-compliance with or
contravention of any of the requirements of this section, a director or other
person responsible
for the prospectus shall not incur any liability by reason of
the non-compliance or contravention, if-
(a) as regards any matter not disclosed, he proves that he was not cognizant thereof; or
(b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part; or
(c) the non-compliance or contravention was in respect of matters which, in the opinion of the court dealing with the case, were immaterial or was otherwise such as ought, in the opinion of that court, having regard to all the circumstances of the case, reasonably to be excused:
Provided that, in the event of failure to include in a prospectus a statement with respect to the matters specified in paragraph 16 of the Fourth Schedule, no director or other person shall incur any liability in respect of the failure, unless it be proved that he had knowledge of the matters not disclosed.
(6) This section shall not
apply-
(a) to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons; or
(b) to the issue of a prospectus or form of application relating to shares or debentures which are or are to be, in all respects, uniform with shares or debentures previously issued,
but, subject as aforesaid, this section shall apply to a prospectus or a form of application, whether issued on or with reference to the formation of a company or subsequently.
Provisions of section 42 not to limit any other liability
43. Nothing in
section 42 shall limit or diminish any
liability which any person may incur under the general law or this Act apart
from that section.
Expert's consent to issue of prospectus containing statement by him
44.-(1) A
prospectus inviting persons to subscribe for shares in or debentures of a
company and including a statement purporting to
be made by an expert shall not
be issued, unless-
(a) he has given and has not, before delivery of a copy of the prospectus for registration, withdrawn his written consent to the issue thereof with the statement included in the form and context in which it is included; and
(b) a statement that he has given and has not withdrawn his consent as aforesaid appears in the prospectus.
(2) If any
prospectus is issued in contravention of this section, the company and every
person who is knowingly a party to the issue
thereof shall be liable to a fine
not exceeding $1,000.
(3) In this section, "expert" includes engineer,
valuer, accountant and any other person whose profession gives authority to a
statement
made by him.
Registration of prospectus
45.-(1) No
prospectus shall be issued by or on behalf of a company or in relation to an
intended company unless, on or before the date
of its publication, there has
been delivered to the registrar for registration a copy thereof signed by every
person who is named
therein as a director or proposed director of the company,
or by his agent authorized in writing, and having endorsed thereon or
attached
thereto-
(a) any consent to the issue of the prospectus required by section 44 from any person as an expert; and
(b) in the case of a prospectus issued generally, also-
(i) a copy of any contract required by paragraph 14 of the Fourth Schedule to be stated in the prospectus, or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof; and
(ii) where the persons making any report required by Part II of that Schedule have made therein, or have, without giving the reasons, indicated therein, any such adjustments as are mentioned in paragraph 29 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor.
(2) The
references in sub-paragraph (i) of paragraph
(b) of subsection (1) to the copy of a
contract required thereby to be endorsed on or attached to a copy of the
prospectus shall, in
the case of a contract wholly or partly in a language other
than English, be taken as references to a copy of a translation of the
contract
in English, or a copy embodying a translation in English, of the parts in a
language other than English, as the case may
be, being a translation certified
in the prescribed manner to be a correct translation.
(3) Every
prospectus shall, on the face of it-
(a) state that a copy has been delivered for registration as required by this section; and
(b) specify, or refer to statements included in the prospectus which specify, any documents required by this section to be endorsed on or attached to the copy so delivered.
(4) The registrar shall not
register a prospectus, unless it is dated and the copy thereof signed in manner
required by this section
and unless it has endorsed thereon or attached thereto
the documents (if any) specified as aforesaid.
(5) If a prospectus is
issued without a copy thereof being delivered under this section to the
registrar or without the copy so delivered
having endorsed thereon or attached
thereto the required documents, the company, and every person who is knowingly a
party to the
issue of the prospectus, shall be liable to a fine not exceeding
$10 for every day from the date of the issue of the prospectus until
a copy
thereof is so delivered with the required documents endorsed thereon or attached
thereto.
Restriction on alteration of terms mentioned in
prospectus
or statement in lieu of prospectus
46.-(1) A company
limited by shares or a company limited by guarantee and having a share capital
shall not, previously to the statutory
meeting, vary the terms of a contract
referred to in the prospectus, or statement in lieu of prospectus, except
subject to the approval
of the statutory meeting.
(2) This section shall
not apply to a private company.
Civil liability for mis-statements in prospectus
47.-(1) Subject
to the provisions of this section, where a prospectus invites persons to
subscribe for shares in or debentures of a
company, the following persons shall
be liable to pay compensation to all persons who subscribe for any shares or
debentures on the
faith of the prospectus for the loss or damage they may have
sustained by reason of any untrue statement included therein, that is
to
say:-
(a) every person who is a director of the company at the time of the issue of the prospectus;
(b) every person who has authorized himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time;
(c) every person being a promoter of the company; and
(d) every person who has authorized the issue of the prospectus:
Provided that, where, under section 44, the consent of a person is required to the issue of a prospectus and he has given that consent, he shall not, by reason of his having given it, be liable under this subsection as a person who has authorized the issue of the prospectus, except in respect of an untrue statement purporting to be made by him as an expert.
(2) No person shall be
liable under subsection (1), if he proves-
(a) that, having consented to become a director of the company, he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or
(b) that the prospectus was issued without his knowledge or consent, and that, on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) that, after the issue of the prospectus and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto and gave reasonable public notice of the withdrawal and of the reason therefor; or
(d) that-
(i) 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 had reasonable ground to believe, and did, up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true; and
(ii) 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, if fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation, and he had reasonable ground to believe, and did, up to the time of the issue of the prospectus, believe, that the person making the statement was competent to make it and that person had given the consent required by section 44 to the issue of the prospectus and had not withdrawn that consent before delivery of a copy of the prospectus for registration or, to the defendant's knowledge, before allotment thereunder; and
(iii) 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:
Provided that this subsection shall not apply in the case of a person liable by reason of his having given a consent required of him by section 44 as a person who has authorized the issue of the prospectus in respect of an untrue statement purporting to be made by him as an expert.
(3) A person who, apart
from this subsection would, under subsection (1), be liable, by reason of his
having given a consent required
of him by section
44, as a person who has authorized the
issue of a prospectus in respect of an untrue statement purporting to be made by
him as an expert
shall not be so liable if he proves-
(a) that, having given his consent under section 44 to the issue of the prospectus, he withdrew it, in writing, before delivery of a copy of the prospectus for registration; or
(b) that, after delivery of a copy of the prospectus for registration and before allotment thereunder, he, on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal, and of the reason therefor; or
(c) that he was competent to make the statement and that he had reasonable ground to believe, and did, up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true.
(4) Where-
(a) the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorized or consented to the issue thereof; or
(b) the consent of a person is required under section 44 to the issue of the prospectus and he either has not given that consent or has withdrawn it before the issue of the prospectus, the directors of the company, except any without whose knowledge or consent the prospectus was issued, and any other person who authorized the issue thereof 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 may be made liable by reason of his name having been inserted in the prospectus or of the inclusion therein of a statement purporting to be made by him as an expert, as the case may be, or in defending himself against any action or legal proceeding brought against him in respect thereof:
Provided that a person shall not be deemed, for the purposes of this subsection, to have authorized the issue of a prospectus by reason only of his having given the consent required by section 44 to the inclusion therein of a statement purporting to be made by him as an expert.
(5) For the purposes of this
section-
(a) "promoter" means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company; and
(b) "expert" has the same meaning as in section 44.
Criminal liability for mis-statements in prospectus
48.-(1) Where a
prospectus issued on or after 1 January 1984 includes any untrue statement, any
person who authorized the issue of the
prospectus shall be guilty of an offence
and liable to imprisonment for a term not exceeding 2 years, or to a fine not
exceeding
$1,000, or to both such imprisonment and fine, unless he proves either
that the statement was immaterial or that he had reasonable
grounds to believe,
and did, up to the time of the issue of the prospectus, believe, that the
statement was true.
(2) A person shall not be deemed, for the purpose of
this section, to have authorized the issue of a prospectus by reason only of
his
having given the consent required by section
44 to the inclusion therein of a
statement purporting to be made by him as an expert.
Document containing offer of shares or debentures for
sale
to be deemed prospectus
49.-(1) Where a
company allots or agrees to allot any shares in or debentures of the company
with a view to all or any of those shares
or debentures being offered for sale
to the public, any document by which the offer for sale to the public is made
shall, for all
purposes, be deemed to be a prospectus issued by the company, and
any written law as to the contents of prospectuses and to liability
in respect
of statements in and omissions from prospectuses, or otherwise relating to
prospectuses, shall apply and have effect accordingly,
as if the shares or
debentures had been offered to the public for subscription and as if persons
accepting the offer in respect of
any shares or debentures were subscribers for
those shares or debentures, but without prejudice to the liability, if any, of
the
persons by whom the offer is made, in respect of mis-statements contained in
the document or otherwise in respect thereof.
(2) For the purposes of
this Act, it shall, unless the contrary is proved, be evidence that an allotment
of, or any agreement to allot,
shares or debentures was made with a view to the
shares or debentures being offered for sale to the public, if it is
shown-
(a) that an offer of the shares or debentures or of any of them for sale to the public was made within 6 months after the allotment or agreement to allot; or
(b) that, at the date when the offer was made, the whole consideration to be received by the company in respect of the shares or debentures had not been so received.
(3) Section
42 as applied by this section shall
have effect as, if it required a prospectus to state, in addition to the matters
required by that
section to be stated in a prospectus-
(a) the net amount of the consideration received or to be received by the company in respect of the shares or debentures to which the offer relates; and
(b) the place and time at which the contract under which the said shares or debentures have been or are to be allotted may be inspected, and section 45 as applied by this section shall have effect as though the persons making the offer were persons named in a prospectus as directors of a company.
(4)
Where a person making an offer to which this section relates is a company or a
firm, it shall be sufficient if the document aforesaid
is signed on behalf of
the company or firm by 2 directors of the company or not less than half of the
partners, as the case may be,
and any such director or partner may sign by his
agent authorized in writing.
Interpretation of provisions relating to prospectuses
50. For the
purpose of the foregoing provisions of this Part-
(a) a statement included in a prospectus shall be deemed to be untrue, if it is misleading in the form and context in which it is included; and
(b) a statement shall be deemed to be included in a prospectus, if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith.
Division 2-Allotment
Prohibition of allotment unless minimum subscription received
51.-(1) (a) No allotment shall be made of any share capital of a company offered to the public for subscription, unless the amount stated in the prospectus as the minimum amount which, in the opinion of the directors, must be raised by the issue of share capital in order to provide for the matters specified in paragraph 4 of the Fourth Schedule has been subscribed, and the sum payable on application for the amount so stated has been paid to and received by the company.
(b) For the purposes of this subsection, a sum shall be deemed to have been paid to and received by the company, if a cheque for that sum has been received in good faith by the company and the directors of the company have no reason for suspecting that the cheque will not be paid.
(2) The amount so stated in the
prospectus shall be reckoned exclusively of any amount payable otherwise than in
cash and is, in this
Act, referred to as the "minimum subscription".
(3)
The amount payable on application on each share shall not be less than 5 per
cent of the nominal amount of the share.
(4) If the conditions aforesaid
have not been complied with on the expiration of 60 days after the first issue
of the prospectus,
all money received from applicants for shares shall be
forthwith repaid to them without interest, and, if any such money is not so
repaid within 75 days after the issue of the prospectus, the directors of the
company shall be jointly and severally liable to repay
that money with interest
at the rate of 5 per cent per annum from the expiration of the seventy fifth
day:
Provided that a director shall not be liable, if he proves that the
default in the repayment of the money was not due to any misconduct
or
negligence on his part.
(5) Any condition requiring or binding any
applicant for shares to waive compliance with any requirement of this section
shall be
void.
(6) This section, except subsection (3), shall not apply
to any allotment of shares subsequent to the first allotment of shares offered
to the public for subscription.
Prohibition of allotment in certain cases unless
statement
in lieu of prospectus delivered to Registrar
52.-(1) A company
having a share capital which does not issue a prospectus on or with reference to
its formation, or which has issued
such a prospectus but has not proceeded to
allot any of the shares offered to the public for subscription, shall not allot
any of
its shares or debentures, unless, at least 3 days before the first
allotment of either shares or debentures, there has been delivered
to the
registrar for registration a statement in lieu of prospectus signed by every
person who is named therein as a director or
a proposed director of the company
or by his agent authorized in writing, in the form and containing the
particulars set out in Part
I of the Fifth Schedule and, in the case mentioned
in Part II of that Schedule, setting out the reports specified therein, and the
said Parts I and II shall have effect subject to the provisions contained in
Part III of that Schedule.
(2) Every statement in lieu of prospectus
delivered under subsection (1) shall, where the persons making any such report
as aforesaid
have made therein or have, without giving the reasons, indicated
therein any such adjustments as are mentioned in paragraph 5 of
the Fifth
Schedule, have endorsed thereon or attached thereto a written statement signed
by those persons setting out the adjustments
and giving the reasons
therefor.
(3) This section shall not apply to a private
company.
(4) If a company acts in contravention of subsection (1) or
subsection (2), the company and every director of the company who knowingly
and
wilfully authorizes or permits the contravention shall be liable to a fine not
exceeding $200.
(5) Where a statement in lieu of prospectus delivered to
the registrar under subsection (1) includes any untrue statement, any person
who
authorized the delivery of the statement in lieu of prospectus for registration
shall be guilty of an offence and liable to imprisonment
for a term not
exceeding 2 years or to a fine not exceeding $1,000, or to both such
imprisonment and fine, unless he proves either
that the untrue statement was
immaterial or that he had reasonable grounds to believe, and did, up to the time
of the delivery for
registration of the statement in lieu of prospectus,
believe, that the untrue statement was true.
(6) For the purposes of this
section-
(a) a statement included in a statement in lieu of prospectus shall be deemed to be untrue, if it is misleading in the form and context in which it is included; and
(b) a statement shall be deemed to be included in a statement in lieu of prospectus, if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein.
Effect of irregular allotment
53.-(1) An
allotment made by a company to an applicant in contravention of the provisions
of section 51 or section
52 shall be voidable at the instance of
the applicant within 1 month after the holding of the statutory meeting of the
company and not
later, or, in any case where the company is not required to hold
a statutory meeting, or where the allotment is made after the holding
of the
statutory meeting, within 1 month after the date of the allotment, and not
later, and shall be so voidable, notwithstanding
that the company is in course
of being wound up.
(2) If any director of a company knowingly
contravenes, or permits or authorizes the contravention of, any of the
provisions of the
said sections with respect to allotment, he shall be liable to
compensate the company and the allottee respectively for any loss,
damages or
costs which the company or the allottee may have sustained or incurred
thereby:
Provided that proceedings to recover any such loss, damages or
costs shall not be commenced after the expiration of 2 years from the
date of
the allotment.
Applications for, and allotment of, shares and debentures
54.-(1) (a) No allotment shall be made of any shares in or debentures of a company in pursuance of a prospectus issued generally and no proceedings shall be taken on applications made in pursuance of a prospectus so issued, until the beginning of the third day after that on which the prospectus is first so issued, or such later time (if any) as may be specified in the prospectus.
(b) The beginning of the said third day or such later time as aforesaid is hereafter in this Act referred to as the "time of the opening of the subscription lists".
(2) In subsection (1),
the reference to the day on which the prospectus is first issued generally shall
be construed as referring
to the day on which it is first so issued as a
newspaper advertisement:
Provided that, if it is not so issued as a
newspaper advertisement before the third day after that on which is it first so
issued
in any other manner, the said reference shall be construed as referring
to the day on which it is first so issued in any manner.
(3) The validity
of an allotment shall not be affected by any contravention of the foregoing
provisions of this section but, in the
event of any such contravention, the
company and every officer of the company who is in default shall be liable to a
fine not exceeding
$1,000.
(4) In the application of this section to a
prospectus offering shares or debentures for sale, subsections (1), (2) and (3)
shall
have effect with the substitution of references to sale for references to
allotment, and with the substitution for the reference
to the company and every
officer of the company who is in default of a reference to any person by or
through whom the offer is made
and who knowingly and wilfully authorizes or per
the contravention.
(5) An application for shares in or debentures of a
company which is made in pursuance of a prospectus issued generally shall not
be
revocable until after the expiration of the third day after the time of the
opening of the subscription lists, or the giving,
before the expiration of the
said third day, by some person responsible under section
47 for the prospectus, of a public
notice having the effect under that section of excluding or limiting the
responsibility of the person
giving it.
(6) In reckoning, for the
purposes of this section and of section
55, the third day after another day,
any intervening day which is a Saturday or Sunday or which is a public holiday
shall be disregarded,
and, if the third day (as so reckoned) is itself a
Saturday or Sunday or such a public holiday, there shall, for the said purposes,
be substituted the first day thereafter which is none of them.
Allotment of shares and debentures to be dealt in on stock exchange
55.-(1) Where a
prospectus, whether issued generally or not, states that application has been or
will be made for permission for the
shares or debentures offered thereby to be
dealt in on any stock exchange, any allotment made on an application in
pursuance of the
prospectus shall, whenever made, be void, if the permission has
not been applied for before the third day after the first issue of
the
prospectus, or if the permission has been refused before the expiration of 3
weeks from the date of the closing of the subscription
lists or such longer
period not exceeding 6 weeks as may, within the said 3 weeks, be notified to the
applicant for permission by
or on behalf of the stock exchange.
(2) Where
the permission has not been applied for as aforesaid, or has been refused as
aforesaid, the company shall forthwith repay
without interest all money received
from applicants in pursuance of the prospectus, and, if any such money is not
repaid within 8
days after the company becomes liable to repay it, the directors
of the company shall be jointly and severally liable to repay that
money with
interest at the rate of 5 per cent per annum from the expiration of the eighth
day:
Provided that a director shall not be liable, if he proves that the
default in the repayment of the money was not due to any misconduct
or
negligence on his part.
(3) All money received as aforesaid shall be kept
in a separate bank account so long as the company may become liable to repay it
under subsection (2); and, if default is made in complying with this subsection,
the company and every officer of the company who
is in default shall be liable
to a fine not exceeding $1,000.
(4) Any condition requiring or binding
any applicant for shares or debentures to waive compliance with any requirement
of this section
shall be void.
(5) For the purposes of this section,
permission shall not be deemed to be refused, if it is intimated that the
application for it,
though not at present granted, will be given further
consideration.
(6) This section shall have effect-
(a) in relation to any shares or debentures agreed to be taken by a person underwriting an offer thereof by a prospectus, as if he had applied therefor in pursuance of the prospectus; and
(b) in relation to a prospectus offering shares for sale, with the following modifications, that is to say:-
(i) references to sale shall be substituted for references to allotment;
(ii) the persons by whom the offer is made, and not the company, shall be liable under subsection (2) to repay money received from applicants, and references to the company's liability under that subsection shall be construed accordingly; and
(iii) for the reference in subsection (3) to the company and every officer of the company who is in default there shall be substituted a reference to any person by or through whom the offer is made and who knowingly and wilfully authorizes or permits the default.
Return as to allotments
56.-(1) Whenever
a company limited by shares or a company limited by guarantee and having a share
capital makes any allotment of its
shares, the company shall, within 60 days
thereafter, deliver to the registrar for registration-
(a) a return of the allotments, stating the number and nominal amount of the shares comprised in the allotment, the names, addresses and descriptions of the allottees, and the amount, if any, paid or due and payable on each share; and
(b) in the case of shares allotted as fully or partly paid up otherwise than in cash, a contract in writing constituting the title of the allottee to the allotment, together with any contract of sale, or for services or other consideration in respect of which that allotment was made, such contracts being duly stamped, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted.
(2) Where such a contract as
above-mentioned is not reduced to writing, the company shall, within 60 days
after the allotment, deliver
to the registrar for registration the prescribed
particulars of the contract stamped with the same stamp duty as would have been
payable if the contract had been reduced to writing, and those particulars shall
be deemed to be an instrument within the meaning
of the Stamp Duties Act.
(Cap. 205)
(3) If default is made in complying with this section,
every officer of the company who is in default shall be liable to a fine not
exceeding $10 for every day during which the default continues.
Division 3-Commissions and Discounts, etc.
Power to pay certain commissions, and prohibition of
payment of
all other commissions, discounts, etc.
57.-(1) It shall
be lawful for a company to pay a commission to any person in consideration of
his subscribing or agreeing to subscribe,
whether absolutely or conditionally,
for any shares in the company, or procuring or agreeing to procure
subscriptions, whether absolute
or conditional, for any shares in the company,
if-
(a) the payment of the commission is authorized by the articles; and
(b) the commission paid or agreed to be paid does not exceed 10 per cent of the price at which the shares are issued or the amount or rate authorized by the articles, whichever is the less; and
(c) the amount or rate per cent of the commission paid or agreed to be paid is-
(i) in the case of shares offered to the public for subscription, disclosed in the prospectus; or
(ii) in the case of shares not offered to the public for subscription, disclosed in the statement in lieu of prospectus, or in a statement in the prescribed form signed in like manner as a statement in lieu of prospectus and delivered, before the payment of the commission, to the registrar for registration, and, where a circular or notice, not being a prospectus, inviting subscription for the shares is issued, also disclosed in that circular or notice; and
(d) the number of shares which persons have agreed for a commission to subscribe absolutely is disclosed in manner aforesaid.
(2) Save as aforesaid, no company
shall apply any of its shares or capital money either directly or indirectly in
payment of any commission,
discount or allowance, to any person in consideration
of his subscribing or agreeing to subscribe, whether absolutely or
conditionally,
for any shares of the company, or procuring or agreeing to
procure subscriptions, whether absolute or conditional, for any shares
in the
company, whether the shares or money be so applied by being added to the
purchase money of any property acquired by the company
or to the contract price
of any work to be executed for the company, or the money be paid out of the
nominal purchase money or contract
price, or otherwise.
(3) Nothing in
this section shall affect the power of any company to pay such brokerage as it
has heretofore been lawful fox a company
to pay.
(4) A vendor to, or
promoter of, or other person who receives payment in money or shares from, a
company shall have, and shall be
deemed always to have had, power to apply any
part of the money or shares so received in payment of any commission, the
payment of
which, if made directly by the company, would have been legal under
this section.
(5) If default is made in complying with the provisions of
this section relating to the delivery to the registrar of the statement
in the
prescribed form, the company and every officer of the company who is in default
shall be liable to a fine not exceeding $50.
Prohibition
of provision of financial assistance by company for purchase
of
or subscription for its own or
its holding company's shares
58.-(1) Subject
as provided in this section, it shall not be lawful for a company to give,
whether directly or indirectly, and whether
by means of a loan, guarantee, the
provision of security or otherwise, any financial assistance for the purpose of
or in connection
with a purchase or subscription made or to be made by any
person of or for any shares in the company, or, where the company is a
subsidiary company, in its holding company:
Provided that nothing in this
section shall be taken to prohibit-
(i) where the lending of money is part of the ordinary business of a company, the lending of money by the company in the ordinary course of its business;
(ii) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase of, or subscription for, fully-paid shares in the company or its holding company, being a purchase or subscription by trustees of or for shares to be held by or for the benefit of employees of the company, including any director holding a salaried employment or office in the company;
(iii) the making by a company of loans to persons, other than directors, bona fide in the employment of the company with a view to enabling those persons to purchase or subscribe for fully-paid shares in the company or its holding company to be held by themselves by way of beneficial ownership;
(iv) the making by a private company of a loan to a shareholder or director with a view to enabling him to purchase shares in the company held by an existing shareholder or by a person entitled thereto by reason of the death or bankruptcy of a shareholder.
(2) If a company acts in
contravention of this section, the company and every officer of the company who
is in default shall be liable
to a fine not exceeding $2,000.
Division 4-Construction of References to Offering Shares or Debentures to the Public
Construction of references to offering shares or debentures to the public
59.-(1) Any
reference in this Act to offering shares or debentures to the public shall,
subject to any provision to the contrary contained
therein, be construed as
including a reference to offering them to any section of the public, whether
selected as members or debenture
holders of the company concerned or as clients
of the person issuing the prospectus or in any other manner, and references in
this
Act or in a company's articles to invitations to the public to subscribe
for shares or debentures shall, subject as aforesaid, be
similarly
construed.
(2) Subsection (1) shall not be taken as requiring any offer
or invitation to be treated as made to the public, if it can properly
be
regarded, in all the circumstances, as not being calculated to result, directly
or indirectly, in the shares or debentures becoming
available for subscription
or purchase by persons other than those receiving the offer or invitation, or
otherwise as being a domestic
concern of the persons making and receiving it,
and, in particular-
(a) a provision in a company's articles prohibiting invitations to the public to subscribe for shares or debentures shall not be taken as prohibiting the making to members or debenture holders of an invitation which can properly be regarded as aforesaid; and
(b) the provisions of this Act relating to private companies shall be construed accordingly.
Division 5-Issue of Shares at Premium and Discount and Redeemable Preference Shares
Application of premiums received on issue of shares
60.-(1) Where a
company issues shares at a premium, whether for cash or otherwise, a sum equal
to the aggregate amount or value of the
premiums on those shares shall be
transferred to an account, to be called the "share premium account" and the
provisions of this
Act relating to the reduction of the share capital of a
company shall, except as provided in this section, apply as if the share
premium
account were paid-up share capital of the company.
(2) The share premium
account may, notwithstanding anything in subsection (1), be applied by the
company in paying up unissued shares
of the company to be issued to members of
the company as fully-paid bonus shares, in writing off-
(a) the preliminary expenses of the company; or
(b) the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company, or in providing for the premium payable on redemption of any redeemable preference shares or of any debentures of the company.
(3) Where a company has, before 1
January 1984, issued any shares at a premium, this section shall apply as if the
shares had been
issued on or after that date:
Provided that any part of
the premiums which has been so applied that it does not, at that date, form an
identifiable part of the
company's reserves within the meaning of the Seventh
Schedule shall be disregarded in determining the sum to be included in the share
premium account.
Powers to issue shares at a discount
61.-(1) Subject
as provided in this section, it shall be lawful for a company to issue at a
discount shares in the company of a class
already issued:
Provided
that-
(i) the issue of the shares at a discount shall be authorized by resolution passed in general meeting of the company, and shall be sanctioned by the court; and
(ii) the resolution shall specify the maximum rate of discount at which the shares are to be issued; and
(iii) not less than 1 year shall, at the date of the issue, have elapsed since the date on which the company was entitled to commence business; and
(iv) the shares to be issued at a discount shall be issued within 1 month after the date on which the issue is sanctioned by the court or within such extended time as the court may allow.
(2) Where a
company has passed a resolution authorizing the issue of shares at a discount,
it may apply to the court for an order
sanctioning the issue, and, on any such
application, the court, if, having regard to all the circumstances of the case,
it thinks
proper so to do, may make an order sanctioning the issue on such terms
and conditions as it thinks fit.
(3) (a) Every prospectus relating to the issue of the shares must contain particulars of the discount allowed on the issue of the shares or of so much of that discount as has not been written off at the date of the issue of the prospectus.
(b) If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.
Power to issue redeemable preference shares
62.-(1) Subject
to the provisions of this section, a company limited by shares may, if so
authorized by its articles, issue preference
shares which are, or at the option
of the company are to be liable, to be redeemed:
Provided that-
(i) no such shares shall be redeemed, except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;
(ii) no such shares shall be redeemed, unless they are fully paid;
(iii) the premium, if any, payable on redemption, must have been provided for out of the profits of the company or out of the company's share premium account before the shares are redeemed;
(iv) where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall, out of profits which would otherwise have been available for dividend, be transferred to a reserve fund, to be called the "capital redemption reserve fund", a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid-up share capital of the company.
(2) Subject to the provisions of this
section, the redemption of preference shares thereunder may be effected on such
terms and in
such manner as may be provided by the articles of the
company.
(3) The redemption of preference shares under this section by a
company shall not be taken as reducing the amount of the company's
authorized
share capital.
(4) Where, in pursuance of this section, a company has
redeemed or is about to redeem any preference shares, it shall have power to
issue shares up to the nominal amount of the shares redeemed or to be redeemed
as if those shares had never been issued, and accordingly
the share capital of
the company shall not, for the purpose of any enactments relating to stamp duty,
be deemed to be increased by
the issue of shares in pursuance of this
subsection:
Provided that, where new shares are issued before the
redemption of the old shares, the new shares shall not, so far as relates to
stamp duty, be deemed to have been issued in pursuance of this subsection,
unless the old shares are redeemed within 1 month after
the issue of the new
shares.
(5) The capital redemption reserve fund may, notwithstanding
anything in this section, be applied by the company in paying up unissued
shares
of the company to be issued to members of the company as fully paid bonus
shares.
Division 6-Miscellaneous Provisions as to Share Capital
Power of company to arrange for different amounts being paid on shares
63. A company, if
so authorized by its articles, may do any 1 or more of the following
things:-
(a) make arrangements, on the issue of shares, for a difference between the shareholders in the amounts and times of payment of calls on their shares;
(b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up;
(c) pay dividend in proportion to the amount paid up on each share, where a larger amount is paid up on some shares than on others.
Reserve liability of limited company
64. A limited
company may, by special resolution, determine that any portion of its share
capital which has not been already called
up shall not be capable of being
called up, except in the event and for the purposes of the company being wound
up, and thereupon
that portion of its share capital shall not be capable of
being called up, except in the event and for the purposes aforesaid.
Power of company limited by shares to alter its share capital
65.-(1) A company
limited by shares or a company limited by guarantee and having a share capital,
if so authorized by its articles,
may alter the conditions of its memorandum as
follows, that is to say, it may-
(a) increase its share capital by new shares of such amount as it thinks expedient;
(b) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;
(c) convert all or any of its paid-up shares into stock, and reconvert that stock into paid-up shares of any denomination;
(d) subdivide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;
(e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
(2) The powers conferred by this
section shall be exercised by the company in general meeting.
(3) A
cancellation of shares in pursuance of this section shall not be deemed to be a
reduction of share capital within the meaning
of this Act.
Notice to registrar of consolidation of share
capital,
conversion of shares into stock, etc.
66.-(1) If a
company having a share capital has-
(a) consolidated and divided its share capital into shares of larger amount than its existing shares; or
(b) converted any shares into stock; or
(c) reconverted stock into shares; or
(d) subdivided its shares or any of them; or
(e) redeemed any redeemable preference shares; or
(f) cancelled any shares, otherwise than in connection with a reduction of share capital under section 70,
it shall, within 30 days after so doing, give notice thereof to the registrar specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock reconverted.
(2) If default is made in
complying with this section, the company and every officer of the company who is
in default shall be liable
to a default fine.
Notice of increase of share capital
67.-(1) Where a
company having a share capital, whether its shares have or have not been
converted into stock, has increased its share
capital beyond the registered
capital, it shall, within 30 days after the passing of the resolution
authorizing the increase, give
to the registrar notice of the increase, and the
registrar shall record the increase.
(2) The notice to be given as
aforesaid shall include such particulars as may be prescribed with respect to
the classes of shares
affected and the conditions subject to which the new
shares have been or are to be issued, and there shall be forwarded to the
registrar,
together with the notice, a printed copy of the resolution
authorizing the increase.
(3) If default is made in complying with this
section, the company and every officer of the company who is in default shall be
liable
to a default fine.
Power of unlimited company to provide for
reserve share
capital on re-registration
68. An unlimited
company having a share capital may, by its resolution for registration as a
limited company in pursuance of this Act,
do either or both of the following
things, namely-
(a) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up, except in the event and for the purposes of the company being wound up;
(b) provide that a specified portion of its uncalled share capital shall not be capable of being called up, except in the event and for the purposes of the company being wound up.
Power of company to pay interest out of capital in certain cases
69. Where any
shares of a company are issued for the purpose of raising money to defray the
expenses of the construction of any works
or buildings or the provision of any
plant which cannot be made profitable for a lengthened period, the company may
pay interest
on so much of that share capital as is, for the time being, paid up
for the period and subject to the conditions and restrictions
in this section
mentioned, and may charge the sum so paid by way of interest to capital, as part
of the cost of construction of the
work or building, or the provision of
plant:
Provided that-
(i) no such payment shall be made, unless it is authorized by the articles or by special resolution;
(ii) no such payment, whether authorized by the articles or by special resolution, shall be made without the previous sanction of the registrar;
(iii) before sanctioning any such payment, the registrar may, at the expense of the company, appoint a person to inquire and report to him as to the circumstances of the case, and may, before making the appointment, require the company to give security for the payment of the costs of the inquiry;
(iv) the payment shall be made only for such period as may be determined by the registrar, and that period shall, in no case, extend beyond the close of the half year next after the half-year during which the works or buildings have been actually completed or the plant provided;
(v) the rate of interest shall, in no case, exceed 5 per cent per annum or such other rate as the Minister may, for the time being, by notice in the Gazette, prescribe;
(vi) the payment of the interest shall not operate as a reduction of the amount paid up on the shares in respect of which it is paid.
Division 7-Reduction of Share Capital
Special resolution for reduction of share capital
70.-(1) Subject
to confirmation by the court, a company limited by shares or a company limited
by guarantee and having a share capital
may, if so authorized by its articles,
by special resolution, reduce its share capital in any way and, in particular,
without prejudice
to the generality of the foregoing power, may-
(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or
(b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid-up share capital which is lost or unrepresented by available assets; or
(c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid-up share capital which is in excess of the wants of the company,
and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.
(2) A special resolution under
this section is in this Act referred to as a "resolution for reducing share
capital".
Application to court for confirming order, objections by
creditors,
and settlement of list of objecting creditors
71.-(1) Where a
company has passed a resolution for reducing share capital, it shall apply by
petition to the court for an order confirming
the reduction.
(2) Where
the proposed reduction of share capital involves either diminution of liability
in respect of unpaid share capital or the
payment to any shareholder of any
paid-up share capital, and, in any other case, if the court so directs, the
following provisions
shall have effect, subject nevertheless to subsection
(3):-
(a) every creditor of the company who, at the date fixed by the court, is entitled to any debt or claim which, if that date were the commencement of the winding-up of the company, would be admissible in proof against the company, shall be entitled to object to the reduction;
(b) the court shall settle a list of creditors so entitled to object and, for that purpose, shall ascertain, as far as possible without requiring an application from any creditor, the names of those creditors and the nature and amount of their debts or claims, and may publish notices fixing a day or days within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the reduction;
(c) where a creditor entered on the list whose debt or claim is not discharged or has not determined does not consent to the reduction, the court may, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his debt or claim by appropriating, as the court may direct, the following amount-
(i) if the company admits the full amount of the debt or claim, or, though not admitting it, is willing to provide for it, then the full amount of the debt or claim;
(ii) if the company does not admit and is not willing to provide for the full amount of the debt or claim, or if the amount is contingent or not ascertained, then an amount fixed by the court after the like inquiry and adjudication as if the company were being wound up by the court.
(3) Where a proposed
reduction of share capital involves either the diminution of any liability in
respect of unpaid share capital
or the payment to any shareholder of any paid-up
share capital, the court may, if, having regard to any special circumstances of
the case, it thinks proper so to do, direct that subsection (2) shall not apply
as regards any class or classes of creditors.
Order confirming reduction and powers of court on making such order
72.-(1) The
court, if satisfied, with respect to every creditor of the company who under
section 71 is entitled to object to the
reduction, that either his consent to the reduction has been obtained or his
debt or claim has been
discharged or has determined, or has been secured, may
make an order confirming the reduction on such terms and conditions as it
thinks
fit.
(2) Where the court makes any such order, it may-
(a) if, for any special reason, it thinks proper so to do, make an order directing that the company shall, during such period, commencing on or at any time after the date of the order, as is specified in the order, add to its name as the last words thereof the words "and reduced"; and
(b) make an order requiring the company to publish, as the court directs, the reason for reduction or such other information in regard thereto as the court may think expedient with a view to giving proper information to the public, and, if the court thinks fit, the causes which led to the reduction.
(3) Where a company is ordered to
add to its name the words "and reduced", those words shall, until the expiration
of the period specified
in the order, be deemed to be part of the name of the
company.
Registration of order and minute of reduction
73.-(1) The
registrar, on production to him of an order of the court confirming the
reduction of the share capital of a company, and
the delivery to him of a copy
of the order and of a minute approved by the court, showing, with respect to the
share capital of the
company, as altered by the order, the amount of the share
capital, the number of shares into which it is to be divided, the amount
of each
share, and the amount, if any, at the date of the registration deemed to be paid
up on each share, shall register the order
and minute.
(2) On the
registration of the order and minute, and not before, the resolution for
reducing share capital as confirmed by the order
so registered shall take
effect.
(3) Notice of the registration shall be published in such manner
as the court may direct.
(4) The registrar shall certify under his hand
the registration of the order and minute, and his certificate shall be
conclusive evidence
that all the requirements of this Act with respect to
reduction of share capital have been complied with, and that the share capital
of the company is such as is stated in the minute.
(5) The minute, when
registered, shall be deemed to be substituted for the corresponding part of the
memorandum, and shall be valid
and may be altered as if it had been originally
contained therein.
(6) The substitution of any such minute as aforesaid
for part of the memorandum of the company shall be deemed to be an alteration
of
the memorandum within the meaning of section
29.
Liability of members in respect of reduced shares
74.-(1) In the
case of a reduction of share capital, a member of the company, past or present,
shall not be liable, in respect of any
share, to any call or contribution
exceeding in amount the difference, if any, between the amount of the share as
fixed by the minute
and the amount paid, or the reduced amount, if any, which is
to be deemed to have been paid, on the share, as the case may
be:
Provided that, if any creditor, entitled in respect of any debt or
claim to object to the reduction of share capital, is, by reason
of his
ignorance of the proceedings for reduction, or of their nature and effect with
respect to his claim, not entered on the list
of creditors, and, after the
reduction, the company is unable, within the meaning of the provisions of this
Act with respect to winding-up
by the court, to pay the amount of his debt or
claim, then-
(i) every person who was a member of the company at the date of the registration of the order for reduction and minute shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he would have been liable to contribute if the company had commenced to be wound up on the day before the said date; and
(ii) if the company is wound up, the court, on the application of any such creditor and proof of his ignorance as aforesaid, may, if it thinks fit, settle accordingly a list of persons so liable to contribute, and make and enforce calls and orders on the contributories settled on the list, as if they were ordinary contributories in a winding-up.
(2)
Nothing in this section shall affect the rights of the contributories among
themselves.
Penalty for concealing name of creditor, etc.
75. In any
officer of the company-
(a) wilfully conceals the name of any creditor entitled to object to the reduction; or
(b) wilfully misrepresents the nature or amount of the debt or claim of any creditor; or
(c) aids, abets or is privy to any such concealment or misrepresentation as aforesaid,
he shall be liable to imprisonment for a term not exceeding 1 year or to a fine not exceeding $200, or to both such imprisonment and fine.
Division 8-Variation of Shareholders' Rights
Rights of holders of special classes of shares
76.-(1) If, in
the case of a company the share capital of which is divided into different
classes of shares, provision is made by the
memorandum or articles for
authorizing the variation of the rights attached to any class of shares in the
company, subject to the
consent of any specified proportion of the holders of
the issued shares of that class or the sanction of a resolution passed at a
separate meeting of the holders of those shares, and, in pursuance of the said
provision, the rights attached to any such class of
shares are at any time
varied, the holders of not less in the aggregate than 15 per cent of the issued
shares of that class, being
persons who did not consent to or vote in favour of
the resolution for the variation, may apply to the court to have the variation
cancelled, and, where any such application is made, the variation shall not have
effect unless and until it is confirmed by the court.
(2) An application
under this section shall be made by petition within 30 days after the date on
which the consent was given or the
resolution was passed, as the case may be,
and may be made on behalf of the shareholders entitled to make the application
by such
1 or more of their number as they may appoint, in writing, for the
purpose.
(3) On any such application, the court, after hearing the
applicant and any other persons who apply to the court to be heard and appear
to
the court to be interested in the application, may, if it is satisfied, having
regard to all the circumstances of the case, that
the variation would unfairly
prejudice the shareholders of the class represented by the applicant, disallow
the variation, and shall,
if not so satisfied, confirmed the
variation.
(4) The decision of the court on any such application shall be
final.
(5) The company shall, within 30 days after the making of an order
by the court on any such application, forward a certified copy
of the order to
the registrar, and, if default is made in complying with this provision, the
company and every officer of the company
who is in default shall be liable to a
default fine.
(6) In this section, "variation" includes abrogation, and
"varied" shall be construed accordingly.
Division 9-Transfer of Shares and Debentures, Evidence of Title, etc.
Nature of shares
77.-The shares or
other interest of any member in a company shall be personal property
transferable in manner provided by the articles
of the company.
Numbering of shares
78. Each share in
a company having a share capital shall be distinguished by its appropriate
number:
Provided that, if, at any time, all the issued shares in a
company, or all the issued shares therein of a particular class, are fully
paid
up and rank pari passu for all
purposes, none of those shares need thereafter have a distinguishing number so
long as it remains fully paid up and ranks
pari passu, for all purposes, with all
shares of the same class for the time being issued and fully paid up.
Transfer not to be registered except on production of instrument of transfer
79.
Notwithstanding anything in the articles of a company, it shall not be lawful
for the company to register a transfer of shares in
or debentures of the
company, unless a proper instrument of transfer has been delivered to the
company:
Provided that nothing in this section shall prejudice any power
of the company to register as shareholder or debenture holder any
person to whom
the right to any shares in or debentures of the company has been transmitted by
operation of law.
Transfer by personal representative
80. A transfer of
the share or other interest of a deceased member of a company made by his
personal representative shall, although the
personal representative is not
himself a member of the company, be as valid as if he had been such a member at
the time of the execution
of the instrument of transfer.
Registration of transfer at request of transferor
81. On the
application of the transferor of any share or interest in a company, the company
shall enter in its register of members the
name of the transferee in the same
manner and subject to the same conditions as if the application for the entry
were made by the
transferee.
Notice of refusal to register transfer
82.-(1) If a
company refuses to register a transfer of any shares or debentures, the company
shall, within 60 days after the date on
which the transfer was lodged with the
company, send to the transferee notice of the refusal.
(2) If default is
made in complying with this section, the company and every officer of the
company who is in default shall be liable
to a default fine.
Certification of transfers
83.-(1) The
certification by a company of any instrument of transfer of shares in or
debentures of the company shall be taken as a representation
by the company to
any person acting on the faith of the certification that there have been
produced to the company such documents
as on the face of them show a
prima facie title to the shares or
debentures in the transferor named in the instrument of transfer, but not as a
representation that the transferor
has any title to the shares or
debentures.
(2) Where any person acts on the faith of a false
certification by a company made negligently, the company shall be under the same
liability to him as if the certification had been made fraudulently.
(3)
For the purposes of this section-
(a) an instrument of transfer shall be deemed to be certificated if it bears the words "certificate lodged" or words to the like effect;
(b) the certification of an instrument of transfer shall be deemed to be made by a company, if-
(i) the person issuing the instrument is a person authorized to issue certificated instruments of transfer on the company's behalf; and
(ii) the certification is signed by a person authorized to certificate transfers on the company's behalf or by any officer or servant either of the company or of a body corporate so authorized;
(c) a certification shall be deemed to be signed by any person, if-
(i) it purports to be authenticated by his signature or initials (whether handwritten or not); and
(ii) it is not shown that the signature or initials was or were placed there neither by himself nor by any person authorized to use the signature or initials for the purpose of certificating transfers on the company's behalf.
Duties of company with respect to issue of certificates
84.-(1) (a) Every company shall, within 90 days after the allotment of any of its shares, debentures or debenture stock and within 90 days after the date on which a transfer of any such shares, debentures or debenture stock is lodged with the company, complete and have ready for delivery the certificates of all shares, the debentures and the certificates of all debenture stock allotted or transferred, unless the conditions of issue of the shares, debentures or debenture stock otherwise provide.
(b) For the purposes of this subsection, "transfer" means a transfer duly stamped and otherwise valid, and does not include such a transfer as the company is, for any reason, entitled to refuse to register and does not register.
(2) If default is made in complying
with this section, the company and every officer of the company who is in
default shall be liable
to a default fine.
(3) If any company, on whom a
notice has been served requiring the company to make good any default in
complying with the provisions
of subsection (1), fails to make good the default
within 14 days after the service of the notice, the court may, on the
application
of the person entitled to have the certificates or the debentures
delivered to him, make an order directing the company and any officer
of the
company to make good the default within such time as may be specified in the
order, and any such order may provide that all
costs of and incidental to the
application shall be borne by the company or by any officer of the company
responsible for the default.
Certificate to be evidence of title
85. A
certificate, under the common seal of the company, specifying any shares held by
any member shall be prima facie
evidence of the title of the member to the shares.
Evidence of grant of probate
86. The
production to a company of any document which is, by law, sufficient evidence
of-
(a) probate of the will, or letters or certificate of administration of the estate, of a deceased person having been granted to some person; or
(b) the Public Trustee having undertaken administration of an estate under the Public Trustee Act,
shall be accepted by the company, notwithstanding anything in its articles, as sufficient evidence of such grant or undertaking.
(Cap. 64)
Issue and effect of share warrants to bearer
87.-(1) A company
limited by shares, if so authorized by its articles, may, with respect to any
fully paid-up shares, issue under its
common seal a warrant stating that the
bearer of the warrant is entitled to the shares therein specified, and may
provide, by coupons
or otherwise, for the payment of the future dividends on the
shares included in the warrant.
(2) Such a warrant as aforesaid is, in
this Act, termed a "share warrant".
(3) A share warrant shall entitle the
bearer thereof to the shares therein specified, and the shares may be
transferred by delivery
of the warrant.
Penalty for personation of shareholder
88. If any person
falsely and deceitfully personates any owner of any share or interest in any
company, or of any share warrant or coupon,
issued in pursuance of this Act, and
thereby obtains or endeavours to obtain any such share or interest or share
warrant or coupon,
or receives or endeavours to receive any money due to any
such owner, as if the offender were the true and lawful owner, he shall
be
liable to imprisonment for a term not exceeding 7 years.
Offences in connection with share warrants
89.-(1) If any
person-
(a) with intent to defraud, forges or alters, or offers, utters, disposes of or puts off, knowing the same to be forged or altered, any share warrant or coupon, or any document purporting to be a share warrant or coupon, issued in pursuance of this Act; or
(b) by means of any such forged or altered share warrant, coupon or document, purporting as aforesaid, demands or endeavours to obtain or receive any share or interest in any company under this Act, or to receive any dividend or money payable in respect thereof, knowing the warrant, coupon or document to be forged or altered,
he shall be guilty of an offence and liable to imprisonment for a term not exceeding 14 years.
(2) If any person, without
lawful authority or excuse, proof whereof shall lie on him-
(a) engraves or makes on any plate, wood, stone or other material any share warrant or coupon purporting to be-
(i) a share warrant or coupon issued or made by any particular company in pursuance of this Act; or
(ii) a blank share warrant or coupon so issued or made; or
(iii) a part of such a share warrant or coupon; or
(b) uses any such plate; wood, stone or other material for the making or printing of any such share warrant or coupon, or of any such blank share warrant or coupon, or any part thereof respectively; or
(c) knowingly has in his custody or possession any such plate, wood, stone or other material, he shall be guilty of an offence and liable to imprisonment for a term not exceeding 7 years.
Division 10-Special Provisions as to Debentures
Provisions as to registers of debenture holders
90.-(1)
Every company which, on or after 1 January 1984, issues a series of
debentures shall keep at the registered office of the company
a register of
holders of such debentures:
Provided that-
(i) where the work of making up such register is done at some office of the company other than the registered office, such register may be kept at such office; and
(ii) where the work of making up such register is, by arrangement by the company, undertaken by some person on behalf of the company, such register may be kept at the office of that person at which the work is done.
(2) Every company shall give notice to
the registrar of the place where the register is kept and of any change in that
place:
Provided that a company shall not be bound to give notice under
this subsection, if the register has been kept at the registered office
of the
company.
Rights of debenture-holders and shareholders to
inspect
register of debenture-holders and to have copies of trust deed
91.-(1) Every
register of holders of debentures of a company shall, except when duly closed
(but subject to such reasonable restrictions
as the company may, in general
meeting, impose so that not less than 2 hours in each day shall be allowed for
inspection), be open
to the inspection of the registered holder of any such
debentures or any holder of shares in the company without fee, and of any
other
person on payment of a fee of 50 cents or such less sum as may be specified by
the company.
(2) Every registered holder of debentures and every holder
of shares in a company may require a copy of the register of the holders
of
debentures of the company or any part thereof on payment of 50 cents for every
100 words required to be copied.
(3) A copy of any trust deed for
securing any issue of debentures shall be forwarded to every holder of any such
debentures, at his
request, on payment, in the case of a printed trust deed, of
the sum of 50 cents or such less sum as may be specified by the company,
or,
where the trust deed has not been printed, on payment of 50 cents for every 100
words required to be copied.
(4) If inspection is refused, or a copy is
refused or not forwarded, the company and every officer of the company who is in
default
shall be liable to a fine not exceeding $10, and further shall be liable
to a default fine of $4.
(5) Where a company is in default as aforesaid,
the court may, by order, compel an immediate inspection of the register or
direct
that the copies required shall be sent to the person requiring
them.
(6) For the purposes of this section, a register shall be deemed to
be duly closed, if closed in accordance with provisions contained
in the
articles or in the debentures or, in the case of debenture stock, in the stock
certificates, or in the trust deed or other
document securing the debentures or
debenture stock, during such period or periods, not exceeding in the whole 30
days in any year,
as may be therein specified.
Liability of trustees for debenture holders
92.-(1) Subject
to the following provisions of this section, any provision contained in a trust
deed for securing an issue of debentures,
or in any contract with the holders of
debentures secured by a trust deed, shall be void in so far as it would have the
effect of
exempting a trustee thereof from or indemnifying him against liability
for breach of trust, where he fails to show the degree of
care and diligence
required of him as trustee, having regard to the provisions of the trust deed
conferring on him any powers, authorities
or discretions.
(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 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 of not less than three-fourths in value of the debenture holders present and 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 dying or ceasing to act.
(3) Subsection
(1) shall not operate-
(a) to invalidate any provision in force immediately before 1 January 1984, so long as any person then entitled to the benefit of that provision, or afterwards given the benefit thereof under subsection (4), remains a trustee of the deed in question; 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 while any such provision was in force.
(4) While any trustee of a trust deed
remains entitled to the benefit of a provision saved by subsection (3), the
benefit of that
provision may be given either-
(a) to all trustees of the deed, present and future; or
(b) to any named trustees or proposed trustees thereof,
by a resolution passed by a majority of not less than three-fourths in value of the debenture holders present in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed or, if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by the court.
Perpetual debentures
93. A condition
contained in any debentures or in any deed for securing any debentures, whether
issued or executed before or after 1
January 1984, shall not be invalid by
reason only that the debentures are thereby made irredeemable or redeemable only
on the happening
of a contingency, however remote, or on the expiration of a
period, however long, any rule of equity to the contrary
notwithstanding.
Power to reissue redeemed debentures in certain cases
94.-(1) Where,
either before or after 1 January 1984,
a company has redeemed any debentures previously issued, then-
(a) unless any provision to the contrary, whether express or implied, is contained in the articles or in any contract entered into by the company; or
(b) unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled, the company shall have, and shall be deemed always to have had, power to reissue the debentures, either by reissuing the same debentures or by issuing other debentures in their place.
(2) Subject to the
provisions of section 95, on a reissue
of redeemed debentures, the person entitled to the debentures shall have, and
shall be deemed always to have had, the
same priorities as if the debentures had
never been redeemed.
(3) Where a company has, either before or after 1
January 1984, deposited any of its debentures to secure advances, from time to
time,
on current account or otherwise, the debentures shall not be deemed to
have been redeemed by reason only of the account of the company
having ceased to
be in debit whilst the debentures remained so deposited.
(4) The reissue
of a debenture or the issue of another debenture in its place under the power by
this section given to, or deemed
to have been possessed by, a company, whether
the reissue or issue was made before or after 1 January 1984, shall be treated
as the
issue of a new debenture for the purposes of stamp duty, but it shall not
be so treated for the purposes of any provision limiting
the amount or number of
debentures to be issued:
Provided that any person lending money on the
security of a debenture reissued under this section which appears to be duly
stamped
may give the debenture in evidence in any proceedings for enforcing his
security without payment of the stamp duty or any penalty
in respect thereof,
unless he had notice or, but for his negligence, might have discovered, that the
debenture was not duly stamped,
but, in any such case, the company shall be
liable to pay the proper stamp duty and penalty.
Saving, in case of reissue of debentures, of rights of certain mortgagees
95. Where any
debentures which were redeemed before 1 May 1945 have been reissued after that
day and before 1 January 1984, or are
reissued on or after 1 January 1984,
the reissue of the debentures shall not prejudice, and shall be deemed
never to have prejudiced, any right or priority which any person
would have had
under or by virtue of any mortgage or charge created before 1 May
1945.
Specific performance of contracts to subscribe for debentures
96. A contract
with a company to take up and pay for any debentures of the company may be
enforced by an order for specific performance.
Payment of certain debts out of assets subject to floating
charge
in priority to claims under the charge
97.-(1) Where,
either a receiver is appointed on behalf of the holders of any debentures of a
company secured by a floating charge,
or possession is taken by or on behalf of
those debenture holders of any property comprised in or subject to the charge,
then, if
the company is not, at the time, in course of being wound up, the debts
which, in every winding-up, are under the provisions of Part
VI relating to
preferential payments to be paid in priority to all other debts, shall be paid
out of any assets coming to the hands
of the receiver or other person taking
possession as aforesaid in priority to any claim for principal or interest in
respect of the
debentures.
(2) The periods of time mentioned in the said
provisions of Part VI shall be reckoned from the date of the appointment of the
receiver
or of possession being taken as aforesaid, as the case may
be.
(3) Where the date referred to in subsection (2) occurred before 1
January 1984, subsections (1) and (2) shall have effect with the
substitution,
for references to the provisions of Part VI, of references to the provisions
which, by virtue of subsection (9) of
section
312, are deemed to remain in force in
the case therein mentioned.
(4) Any payments made under this section
shall be recouped, as far as may be, out of the assets of the company available
for payment
of general creditors.
PART IV-REGISTRATION OF CHARGES
Division 1-Registration of Charges with Registrar
Registration of charges
98.-(1) Subject
to the provisions of this Part, every charge created after the fixed date by a
company registered in Fiji and being
a charge to which this section applies
shall, so far as any security on the company's property or undertaking is
conferred thereby,
be void against the liquidator and any creditor of the
company, unless the prescribed particulars of the charge, together with the
original or a copy certified in the prescribed manner of the instrument, if any,
by which the charge is created or evidenced, are
delivered to or received by the
registrar for registration within 42 days after the date of its creation, but
without prejudice to
any contract or obligation for repayment of the money
thereby secured, and, when a charge becomes void under this section, the money
secured thereby shall immediately become payable.
(2) This section
applies to the following charges:-
(a) a charge for the purpose of securing any issue of debentures;
(b) a charge on uncalled share capital of the company;
(c) a charge created or evidenced by an instrument which, if executed by an individual, would require registration as an instrument under the Bills of Sale Act;
(Cap. 225.)
(d) a charge on real property, wherever situate, or any interest therein;
(e) a charge on book debts of the company;
(f) a floating charge on the undertaking or property of the company;
(g) a charge on calls made but not paid;
(h) a charge on a ship or any share in a ship;
(i) a charge on goodwill, on a patent or a licence under a patent, on a trade mark or on a copyright or a licence under a copyright.
(3) In the case of a charge created out of Fiji
comprising property situate outside Fiji, 42 days after the date on which the
instrument
or copy could, in due course of post, and if despatched with due
diligence, have been received in Fiji, shall be substituted for
42 days after
the creation of the charge, as the time within which the particulars and
instrument or copy are to be delivered to
the registrar.
(4) Where a
charge is created in Fiji but comprises property outside Fiji, the instrument
creating or purporting to create a charge
or the copy thereof, as the case may
be, may be sent for registration under this section, notwithstanding that
further proceedings
may be necessary to make the charge valid or effectual
according to the law of the place in which the property is situated.
(5)
Where a negotiable instrument has been given to secure the payment of any book
debts of a company, the deposit of the instrument
for the purpose of securing an
advance to the company shall not, for the purposes of this section, be treated
as a charge on those
book debts.
(6) The holding of debentures entitling
the holder to a charge on real property shall not, for the purposes of this
section, be deemed
to be an interest in real property.
(7) Where a series
of debentures containing, or giving by reference to any other instrument, any
charge to the benefit of which the
debenture holders of that series are entitled
pari passu is created by a company, it
shall, for the purposes of this section, be sufficient, if there are delivered
to or received by the
registrar within 42 days after the execution of the deed
containing the charge or, if there is no such deed, after the execution
of any
debentures of the series, the following particulars:-
(a) the total amount secured by the whole series; and
(b) the dates of the resolutions authorizing the issue of the series and the date of the covering deed, if any, by which the security is created or defined; and
(c) a general description of the property charged; and
(d) the names of the trustees, if any, for the debenture holders, together with the deed containing the charge or a copy thereof certified in the prescribed manner, or, if there is no such deed, 1 of the debentures of the series:
Provided that, where more than 1 issue is made of debentures in the series, there shall be delivered to the registrar for registration, within 42 days after the date of its issue, particulars of the date and amount of each issue, but an omission to do this shall not affect the validity of the debentures issued.
(8) Where any commission, allowance or
discount has been paid or made either directly or indirectly by a company to any
person in
consideration of his subscribing or agreeing to subscribe, whether
absolutely or conditionally, for any debentures of the company,
or procuring or
agreeing to procure subscriptions, whether absolute or conditional, for any such
debentures, the particulars required
to be sent for registration under this
section shall include particulars as to the amount or rate per cent of the
commission, discount
or allowance so paid or made, but omission to do this shall
not affect the validity of the debentures issued:
Provided that the
deposit of any debentures as security for any debt of the company shall not, for
the purposes of this subsection,
be treated as the issue of the debentures at a
discount.
(9) In this Part-
(a) "charge" includes mortgage;
(b) "the fixed date" means, in relation to the charges specified in paragraphs (a) to (f), both inclusive, of subsection (2), 1 February 1914 and, in relation to the charges specified in paragraphs (g) to (i), both inclusive, of that subsection, 1 May 1945;
(c) a charge shall be deemed to be created, in the case of an instrument creating a charge, on the date of the execution thereof by or on behalf of the company and, in the case of a charge created by deposit of title deeds, on the date of the deposit thereof.
Duty of company to register charges created by company
99.-(1)
It shall be the duty of a company to deliver to the registrar, for
registration, the particulars of every charge created by the company
and of the
issues of debentures of a series, requiring registration under section
98, but registration of any such charge
may be effected on the application of any person interested therein.
(2)
Where registration is effected on the application of some person other than the
company, that person shall be entitled to recover
from the company the amount of
any fees properly paid by him to the registrar on registration.
(3) If
any company fails for a period of 42 days, or such extended period as the court
may have ordered, to deliver to the registrar,
for registration, the particulars
of any charge created by the company, or of the issues of debentures of a
series, requiring registration
as aforesaid, then, unless the registration has
been effected on the application of some other person, the company and every
officer
or other person who is a party to the default shall be liable to a
default fine of $100.
Duty of company to register charges existing on property acquired
100.-(1) Where,
on or after 1 January, 1984, a company acquires any property which is subject to
a charge of any such kind as would,
if it had been created by the company after
the acquisition of the property; have been required to be registered under this
Part,
the company shall cause the prescribed particulars of the charge, together
with a copy (certified in the prescribed manner to be
a correct copy) of the
instrument, if any, by which the charge was created or evidenced, to be
delivered to the registrar, for registration,
within 42 days after the date on
which the acquisition is completed:
Provided that, if the property is
situate and the charge was created outside Fiji, 42 days after the date on which
the copy of the
instrument could in due course of post, and if despatched with
due diligence, have been received in Fiji shall be substituted for
42 days after
the completion of the acquisition as the time within which the particulars and
the copy of the instrument are to be
delivered to the registrar.
(2) If
default is made in complying with this section, the company and every officer of
the company who is in default shall be liable
to a default fine of $100.
Certificate of registration of charge
101. The
registrar shall give a certificate under his hand of the registration of any
charge registered in pursuance of and within any
period allowed under this Part,
stating the amount thereby secured, and the certificate shall be conclusive
evidence that the requirements
of this Part as to registration have been
complied with.
Endorsement of certificate of registration on debentures
102.-(1) The
company shall cause a copy of every certificate of registration given under
section 101 to be endorsed on every
debenture or certificate of debenture stock which is issued by the company, and
the payment of which is secured
by the charge so registered:
Provided
that nothing in this subsection shall be construed as requiring a company to
cause a certificate of registration of any charge
so given to be endorsed on any
debenture or certificate of debenture stock issued by the company before the
charge was created.
(2) If any person knowingly and wilfully authorizes
or permits the delivery of any debenture or certificate of debenture stock
which,
under the provisions of this section, is required to have endorsed on it
a copy of a certificate of registration without the copy
being so endorsed upon
it, he shall, without prejudice to any other liability, be liable to a fine not
exceeding $200.
Registration of satisfaction and release of property from charge
103. The
registrar, on evidence being given to his satisfaction with respect to any
registered charge-
(a) that the debt for which the charge was given has been paid or satisfied in whole or in part; or
(b) that part of the property or undertaking charged has been released from the charge or has ceased to form part of the company's property or undertaking,
may register a memorandum of satisfaction in whole or in part, or of the fact that part of the property or undertaking has been released from the charge or has ceased to form part of the company's property or undertaking, as the case may be, and, where he registers a memorandum of satisfaction in whole, he shall, if required, furnish the company with a copy thereof.
Extension of time to register charges
104. The court,
on being satisfied that the omission to register a charge within the time
required by this Act, or that the omission or
mis-statement of any particular
with respect to any such charge or in a memorandum of satisfaction, was
accidental, or due to inadvertence
or to some other sufficient cause, or is not
of a nature to prejudice the position of creditors or shareholders of the
company, or
that, on other grounds, it is just and equitable to grant relief,
may, on the application of the company or any person interested
and on such
terms and conditions as seem to the court just and expedient, order that the
time for registration shall be extended,
or, as the case may be, that the
omission or mis-statement shall be rectified.
Registration of enforcement of security
105.-(1) If any
person obtains an order for the appointment of a receiver or manager of the
property of a company, or appoints such a
receiver or manager under any powers
contained in any instrument, he shall, within 7 days from the date of the order
or of the appointment
under the said powers, give notice of the fact to the
registrar.
(2) Where any person appointed receiver or manager of the
property of a company under the powers contained in any instrument ceases
to act
as such receiver or manager, he shall, within 7 days of so ceasing, give the
registrar notice to that effect.
(3) If any person makes default in
complying with the requirements of this section, he shall be liable to a fine
not exceeding $10
for every day during which the default continues.
Division 2-Provisions as to Company's Register of Charges
and as to
Copies of Instruments Creating Charges
Copies of instruments creating charges to be kept by company
106. Every
company shall cause a copy of every instrument creating any charge requiring
registration under this Part to be certified in
the prescribed manner and kept
at the registered office of the company:
Provided that, in the case of a
series of uniform debentures, a copy certified as aforesaid of 1 debenture of
the series shall be
sufficient.
Company's register of charges
107.-(1) Every
limited company shall keep, at the registered office of the company, a register
of charges and enter therein all charges
specifically affecting property of the
company and all floating charges on the undertaking or any property of the
company, giving,
in each case, a short description of the property charged, the
amount of the charge, and, except in the case of securities to bearer,
the names
of the persons entitled thereto.
(2) If any director, manager, or other
officer of the company knowingly and wilfully authorizes or permits the omission
of any entry
required to be made in pursuance of this section, he shall be
liable to a fine not exceeding $100.
Right to inspect copies of instruments creating charges and company's register of charges
108.-(1) The
copies of instruments creating any charge requiring registration under this Part
with the registrar, and the register of
charges kept in pursuance of section
107, shall be open during business
hours (but subject to such reasonable restrictions as the company in general
meeting may impose, so
that not less than 2 hours in each day shall be allowed
for inspection) to the inspection of any creditor or member of the company
without fee, and the register of charges shall also be open to the inspection of
any other person on payment of such fee, not exceeding
50 cents for each
inspection, as the company may specify.
(2) If inspection of the said
copies or register is refused, any officer of the company refusing inspection,
and every director and
manager of the company authorizing or knowingly and
wilfully permitting the refusal, shall be liable to a fine not exceeding $10,
and a further fine not exceeding $4 for every day during which the refusal
continues, and the court may, by order, compel an immediate
inspection of the
copies or register.
PART V-MANAGEMENT AND ADMINISTRATION
Division 1-Registered Office and Name
Registered office of company
109.-(1) A
company shall, as from the day on which it begins to carry on business or as
from the fourteenth day after the date of its
incorporation, whichever is the
earlier, have a registered office and a registered postal address to which all
communications and
notices may be addressed.
(2) If default is made in
complying with this section, the company and every officer of the company who is
in default shall be liable
to a default fine.
Notification of situation of registered office and of change therein
110.-(1)
Notice of the situation of the registered office and the registered
postal address, and of any change therein, shall be given within
14 days after
the date of incorporation of the company or of the change, as the case may be,
to the registrar for registration.
(2) The inclusion in the annual return
of a company of a statement as to the situation of its registered office or as
to its registered
postal address shall not be taken to satisfy the obligations
imposed by this section.
(3) If default is made in complying with this
section, the company and every officer of the company who is in default shall be
liable
to a default fine.
Publication of name by company
111.-(1) Every
company-
(a) shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position, in easily legible roman letters; and
(b) shall have its name engraven or otherwise permanently marked in legible roman letters on its seal; and
(c) shall have its name mentioned in legible roman letters in all business letters of the company and in all notices and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills of parcels, invoices, receipts and letters of credit of the company.
(2) For the purposes of
paragraphs (a) and
(c) of subsection (1), it shall be
lawful to use-
(a) the abbreviation "Co." or "Coy." in lieu of the word "Company" contained in the name of the company;
(b) the abbreviation "Ltd." in lieu of the word "Limited" contained in the name of the company;
(c) the symbol "&" in lieu of the word "and" contained in the name of the company; or
(d) any of those words in lieu of the corresponding abbreviation or symbol contained in the name of the company.
(3) If a
company does not paint or affix its name in manner directed by this Act, the
company and every officer of the company who
is in default shall be liable to a
fine not exceeding $10 and, if a company does not keep its name painted or
affixed in manner so
directed, the company and every officer of the company who
is in default shall be liable to a default fine.
(4) If a company fails
to comply with paragraph (b) or
(r) of subsection (1), the company
shall be liable to a fine not exceeding $100.
(5) If an officer of a
company or any person on its behalf-
(a) uses or authorizes the use of any seal purporting to be a seal of the company whereon its name is not so engraven or marked as aforesaid; or
(b) issues or authorizes the issue of any business letter of the company or any notice or other official publication of the company, or signs or authorizes to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods, wherein its name is not mentioned in manner aforesaid; or
(c) issues or authorizes the issue of any bill of parcels, invoice, receipt or letter of credit of the company wherein its name is not mentioned in manner aforesaid,
he shall be liable to a fine not exceeding $100, and shall further be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof, unless it is duly paid by the company.
Division 2-Statement of Amount of Paid-up Capital
Statement of amount of capital subscribed and amount paid up
112.-(1) Where
any notice, advertisement or other official publication of a company contains a
statement of the amount of the authorized
capital of the company, such notice,
advertisement, or other official publication shall also contain a statement, in
an equally prominent
position and in equally conspicuous characters, of the
amount of the capital which has been subscribed and the amount paid
up.
(2) Any company which makes default in complying with the
requirements of this section and every officer who is in default shall be
liable
to a fine not exceeding $100.
Division 3-Restrictions on Commencement of Business
Restrictions on commencement of business
113.-(1) Where a
company having a share capital has issued a prospectus inviting the public to
subscribe for its shares, the company
shall not commence any business or
exercise any borrowing powers, unless-
(a) shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription; and
(b) every director of the company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription; and
(c) no money is or may become liable to be repaid to applicants for any shares or debentures which have been offered for public subscription by reason of any failure to apply for or to obtain permission for the shares or debentures to be dealt in on any stock exchange; and
(d) there has been delivered to the registrar, for registration, a statutory declaration by a secretary or 1 of the directors, in the prescribed form, that the aforesaid conditions have been complied with.
(2) Where a company having a share
capital has not issued a prospectus inviting the public to subscribe for its
shares, or has issued
a prospectus but has failed to raise the minimum
subscription, the company shall not commence any business or exercise any
borrowing
powers, unless-
(a) there has been delivered to the registrar, for registration, a statement in lieu of prospectus; and
(b) every director of the company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash; and
(c) there has been delivered to the registrar, for registration, a statutory declaration by a secretary or 1 of the directors, in the prescribed form, that paragraph (b) of this subsection has been complied with.
(3) The registrar shall,
on the delivery to him of the said statutory declaration, and, in the case of a
company which is required
by this section to deliver a statement in lieu of
prospectus, of such a statement, certify that the company is entitled to
commence
business, and that certificate shall be conclusive evidence that the
company is so entitled.
(4) Any contract made by a company before the
date at which it is entitled to commence business shall be provisional only, and
shall
not be binding on the company until that date and, on that date, it shall
become binding.
(5) Nothing in this section shall prevent the
simultaneous offer for subscription or allotment of any shares and debentures or
the
receipt of any money payable on application for debentures.
(6) If
any company commences business or exercises borrowing powers in contravention of
this section, every person who is responsible
for the contravention shall,
without prejudice to any other liability, be liable to a fine not exceeding $100
for every day during
which the contravention continues.
(7) This section
shall not apply to a private company.
Division 4-Register of Members
Register of members
114.-(1) Every
company shall keep a register of its members and enter therein the following
particulars:-
(a) the names and postal addresses of the members, and, in the case of a company having a share capital, a statement of the shares held by each member, distinguishing each share by its number so long as the share has a number, and of the amount paid or agreed to be considered as paid on the shares of each member;
(b) the date at which each person was entered in the register as a member;
(c) the date at which any person ceased to be a member:
Provided that, where the company has converted any of its shares into stock, the register shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares specified in paragraph (a).
(2)
The register of members shall be kept at the registered office of the
company:
Provided that-
(i) if the work of making it up is done at another office of the company, it may be kept at that other office; and
(ii) if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, it may be kept at the office of that other person at which the work is done, so, however, that it shall not be kept at a place outside Fiji.
(3) Every company shall send notice to
the registrar of the place where its register of members is kept and of any
change in that
place:
Provided that a company shall not be bound to send
notice under this subsection where the register has, at all times since it came
into existence or, in the case of a register in existence immediately before 1
January 1984, at all times since then, been kept at
the registered office of the
company.
(4) Where a company makes default in complying with subsection
(1) or makes default for 14 days in complying with subsection (3),
the company
and every officer of the company who is in default shall be liable to a default
fine.
Index of members
115.-(1) Every
company having more than 50 members shall, unless the register of members is in
such a form as to constitute in itself
an index, keep an index of the names of
the members of the company and shall, within 14 days after the date on which any
alteration
is made in the register of members, make any necessary alteration in
the index.
(2) The index, which may be in the form of a card index,
shall, in respect of each member, contain a sufficient indication to enable
the
account of that member in the register to be readily found.
(3) The index
shall be, at all times, kept at the same place as the register of
members.
(4) If default is made in complying with this section, the
company and every officer of the company who is in default shall be liable
to a
default fine.
Provisions as to entries in register in relation to share warrants
116.-(1) On the
issue of a share warrant, the company shall strike out of its register of
members the name of the member then entered
therein as holding the shares
specified in the warrant as if he had ceased to be a member, and shall enter in
the register the following
particulars, namely:-
(a) the fact of the issue of the warrant;
(b) a statement of the shares included in the warrant, distinguishing each share by its number; and
(c) the date of the issue of the warrant.
(2)
The bearer of a share warrant shall, subject to the articles of the company, be
entitled, on surrendering it for cancellation,
to have his name entered as a
member in the register of members.
(3) The company shall be responsible
for any loss incurred by any person by reason of the company entering in the
register the name
of a bearer of a share warrant in respect of the shares
therein specified without the warrant being surrendered and
cancelled.
(4) Until the warrant is surrendered, the particulars
specified in subsection (1) shall be deemed to be the particulars required by
this Act to be entered in the register of members, and, on the surrender, the
date of the surrender shall be entered.
(5) Subject to the provisions of
this Act, the bearer of a share warrant may, if the articles of the company so
provide, be deemed
to be a member of the company, within the meaning of this
Act, either to the full extent or for any purpose defined in the
articles,
Inspection of register and index
117.-(1) Except
when the register of members is closed under the provisions of this Act, the
register, and index of the names, of the
members of a company shall, during
business hours (subject to such reasonable restrictions as the company in
general meeting may
impose, so that not less than 2 hours in each day be allowed
for inspection), be open to the inspection of any member without charge
and of
any other person on payment of 50 cents, or such less sum as the company may
specify, for each inspection.
(2) (a) Any member or other person may require a copy of the register, or of any part thereof, on payment of 50 cents or such less sum as the company may specify, for every 100 words or fractional part thereof required to be copied.
(b) The company shall cause any copy so required by any person to be sent to that person within a period of 14 days commencing on the day next after the day on which the requirement is received by the company.
(3) If any inspection required
under this section is refused, or if any copy required under this section is not
sent within the proper
period, the company and every officer of the company who
is in default shall be liable, in respect of each offence, to a fine not
exceeding $4 and further to a default fine of $4.
(4) In the case of any
such refusal or default, the court may, by order, compel an immediate inspection
of the register and index
or direct that the copies required shall be sent to
the person requiring them.
Consequences of failure to comply with requirements
as
to register owing to agent's default
118. Where by
virtue of paragraph (ii) of the proviso to subsection (2) of section
114, the register of members is kept at
the office of some person other than the company and, by reason of any default
of his, the company
fails to comply with subsection (3) of that section,
subsection (3) of section 115, or
section 117 or with any requirements of
this Act as to the production of the register, that other person shall be liable
to the same penalties
as if he were an officer of the company who was in
default, and the power of the court under subsection (4) of section
117 shall extend to the making of
orders against that other person and his officers and servants.
Power to close register
119. A company
may, on giving notice by advertisement in some newspaper published and
circulating in Fiji or in that area of Fiji in
which the registered office of
the company is situate, close the register of members for any time or times, not
exceeding in the
whole 30 days in each year.
Power of court to rectify register
120.-(1)
If-
(a) the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or
(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member,
the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.
(2) Where an application is made
under this section, the court may either refuse the application or may order
rectification of the
register and payment by the company of any damages
sustained by any party aggrieved.
(3) On an application under this
section, the court may decide any question relating to the title of any person
who is a party to
the application to have his name entered in or omitted from
the register, whether the question arises between members or alleged
members, or
between members or alleged members on the one hand and the company on the other
hand, and generally may decide any question
necessary or expedient to be decided
for rectification of the register.
(4) In the case of a company required
by this Act to send a list of its members to the registrar, the court, when
making an order
for rectification of the register, shall, by its order, direct
notice of the rectification to be given to the registrar.
Trusts not to be entered on register
121. No notice of
any trust, expressed, implied or constructive, shall be entered on the register,
or be receivable by the registrar.
Register to be evidence
122. The register
of members shall be prima facie
evidence of any matters by this Act directed or authorized to be inserted
therein.
Division 5-Branch Register
Power for company to keep branch register
123.-(1)
A company having a share capital may, if so authorized by its articles,
cause to be kept in any part of the Commonwealth outside Fiji
a branch register
of members resident in that part of the Commonwealth (in this Act called a
"branch register").
(2) The company shall give to the registrar notice of
the situation of the office where any branch register is kept, and of any change
in its situation, and, if it is discontinued, of its discontinuance, and any
such notice shall be given within 1 month of the opening
of the office or of the
change or discontinuance, as the case may be.
(3) If default is made in
complying with subsection (2), the company and every officer of the company who
is in default shall be liable
to a default fine.
Regulations as to branch register
124.-(1) A branch
register shall be deemed to be part of the company's register of members (in
this section called the "principal register".)
(2) A branch register
shall be kept in the same manner in which the principal register is, by this
Act, required to be kept, except
that the advertisement required by section
119
to be given before closing the register shall be inserted in some
newspaper circulating in the area where the branch register is kept.
(3)
The company shall-
(a) transmit to its registered office a copy of every entry in its branch register as soon as maybe after the entry is made; and
(b) cause to be kept at the place where the company's principal register is kept a duplicate of its branch register duly entered up from time to time,
and every such duplicate shall, for all
the purposes of this Act, be deemed to be part of the principal
register.
(4) Subject to the provisions of this section with respect to
the duplicate, the shares registered in a branch register shall be distinguished
from the shares registered in the principal register, and no transaction with
respect to any shares registered in a branch register
shall, during the
continuance of that registration, be registered in any other
register.
(5) A company may discontinue to keep a branch register, and
thereupon all entries in that register shall be transferred to the principal
register.
(6) Subject to the provisions of this Act, any company may, by
its articles, make such provisions as it may think fit respecting the
keeping of
branch registers.
(7) If default is made in complying with subsection
(3), the company and every officer of the company who is in default shall be
liable
to a default fine; and where, by virtue of paragraph (ii) of the proviso
to subsection (2)of section 114, the
principal register is kept at the office of some person other than the company
and ,by reason of any default of his ,the company
fails to comply with
paragraph(b) of subsection (3) of this
section ,he shall be liable to the same penalty as if he were an officer of the
company who was in default.
Stamp duty in case of transfer of shares registered in branch registers.
125. An
instrument of transfer of a share registered in a branch register be deemed to
be a transfer of property situate out of Fiji,
and, unless executed in any part
of Fiji, shall be exempt from stamp duty chargeable in Fiji.
Provisions as to branch registers of Commonwealth companies kept in Fiji
126. If , by
virtue of the law in force in any part of the Commonwealth, companies
incorporated under that law have power to keep, in
Fiji ,branch registers of
their members resident in Fiji, the Minister may, by notice in Gazette , direct
that subsection (2) of
section 114,
except the proviso thereto, in sections
117 and
120, shall, subject to any
modifications and adaptations specified in the notice, apply to and in relation
to any such branch registers
kept in Fiji as they apply to and in relation to
the registers of companies within the meaning of this Act.
Division 6-Annual Return
Annual return to be made by company having a share capital
127.-(1)
Every company having a share capital , once at least in every year, make a
return containing, with respect to the registered office
of the registered
company, registers of members and debenture holders, shares in debentures,
indebtedness ,past and present members
and directors and secretary, the matters
specified in Part I of the Sixth Schedule ,and the said return shall be in the
form and
shall be made up to the date set out in Part II of that Schedule or as
near thereto as circumstances admit:
Provided that -
(i) a company need not make a return under this subsection either in the year of its incorporation or ,if it is not required by section 133 to hold an annual general meeting during the following year , in that year;
(ii) where the company has converted any of its shares into stock, the list referred to in paragraph 5 of Part I of the Sixth Schedule shall state the amount of stock held by each of the existing members instead of the amount of shares and the particulars relating to shares required by that paragraph;
(iii) the return may, in any year, if the return for either of the 2 immediately preceding years has given, as at the date of that return, the full particulars required by the said paragraph 5, give only such of the particulars required by that paragraph as relate to persons ceasing to be or becoming members since the date of the last return and to shares transferred the date or to changes as compared with that date in the amount of stock held by a member.
(2) In the case of a company keeping a branch
register-
(a) references in paragraph (iii) of the proviso to subsection (1) to the particulars required by paragraph 5 of Part I of the Sixth Schedule shall be taken as not including any such particulars contained in the branch register, in so far as copies of the entries containing those particulars are not received at the registered office of the company before the date when the return in question is made; and
(b) where an annual return is made between the date when any entries are made in the branch register and the date when copies of those entries are received at the registered office of the company, the particulars contained in those entries, so far as relevant to an annual return, shall be included in the next or a subsequent annual return, as may be appropriate, having regard to the particulars include in that return with the respect to the company's register of members.
(3) If a company fails to comply with
this section, the company and every officer of the company who is in default
shall be liable
to a default fine.
(4) For the purposes of this section
and of Part I of the Sixth Schedule, "director" and "officer" include any person
in accordance
with whose directions or instructions the directors of the company
are accustomed to act.
Annual return to be made by company not having a share capital
128.-(1) Every
company not having a share capital shall, once at least in every calendar year,
make a return stating-
(a) the situation of the registered office of the company and the registered postal address thereof;
(b) in a case in which the register of members is, under the provisions of this Act, kept elsewhere than at the registered office, the address of the place where it is kept;
(c) in a case in which any register of holders of debentures of a company or part of any such register is, under the provisions of this Act, kept, in Fiji, elsewhere than at the registered office of the company, the address of the place where it is kept; and
(d) all such particulars with respect to the persons who, at the date of the return, are the directors of the company and any person who, at that date, is a secretary of the company as are, by this Act, required to be contained with respect to directors and secretaries, respectively, in the register of directors and secretaries of a company:
Provided that a company need not make a return
under this subsection either in the year of is incorporation or, if it is not
required
by section 133 to hold an
annual general meeting during the following year, in that year.
(2) There
shall be annexed to the return a statement containing particulars of the total
amount of the indebtedness of the company
in respect of all mortgages and
charges which are required to be registered with the registrar under this
Act.
(3) If a company fails to comply with this section, the company and
every officer of the company who is in default shall be liable
to a default
fine.
(4) For the purposes of this section, "officer" and "director"
include any person in accordance with whose directions or instructions
the
directors of the company are accustomed to act.
Time for completion of annual return
129.-(1) The
annual return shall be completed within 42 days after the annual general meeting
for the year, whether or not that meeting
is the first or only ordinary general
meeting, or the first or only general meeting, of the company in the year, and
the company
shall, within such period, deliver to the registrar a copy signed
both by a director and by a secretary of the company.
(2) (a) If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a default fine.
(b) For the purposes of this subsection, "officer" includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act.
Documents to be annexed to annual return
130.-(1) There
shall be annexed to the annual return-
(a) a copy, certified both by a director and by a secretary of the company to be a true copy, of every balance sheet laid before the company general meeting during the period to which the return relates (including every document required by law to be annexed to the balance sheet); and
(b) a copy, certified as aforesaid, of the report of the auditors on, and of the report of the directors accompanying, each such balance sheet,
and, where any such balance sheet or document required by law to be annexed thereto is in a foreign language, there shall be annexed to that balance sheet a translation in the English language of the balance sheet or document certified, in the prescribed manner, to be a correct translation.
(2) If any such balance sheet as
aforesaid or document required by law to be annexed thereto did not comply with
the requirements
of the law as in force at the date of the audit with respect to
the form of balance sheets or documents aforesaid, as the case may
be, there
shall be made such additions to and corrections in the copy as would have been
required to be made in the balance sheet
or document in order to make it comply
with the said requirements, and the fact that the copy has been so amended shall
be stated
thereon.
(3) (a) If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a default fine.
(b) For the purposes of this subsection, "officer" includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act.
(4) This section shall
not apply to a private company, unless any of its shares is held by a company
which is not a private company
or by a company which is a subsidiary of a
company which is not a private company.
Certificates to be sent by private company with annual return
131. A private
company shall send with the annual return required by section
127-
(a) a certificate signed by both a director and a secretary of the company that the company has not, since the date of the last return, or since, in the case of a first return, the date of incorporation of the company, issued any invitation to the public to subscribe for any shares or debentures of the company;
(b) where the annual return discloses the fact that the number of members of the company exceeds 50, also a certificate so signed that the excess consists wholly of persons who, under paragraph (b) of subsection (1) of section 32 are not to be included in reckoning the number of 50;
(c) where the company claims to be a private company to which section 130 does not apply, a certificate so signed in the prescribed form.
Division 7-Meetings and Proceedings
Statutory meeting and statutory report
132.-(1) Every
company limited by shares and every company limited by guarantee and having a
share capital shall, within a period of
not less than 1 month nor more than 3
months from the date at which the company is entitled to commence business, hold
a general
meeting of the members of the company, which shall be called the
"statutory meeting".
(2) The directors shall, at least 14 days before the
day on which the meeting is held, forward a report (in this Act referred to as
the "statutory report") to every member of the company:
Provided that, if
the statutory report is forwarded later than is required by this subsection, it
shall, notwithstanding that fact,
be deemed to have been duly forwarded if it is
so agreed by all the members entitled to attend and vote at the
meeting.
(3) The statutory report shall be certified by not fewer than 2
directors of the company and shall state-
(a) the total number of shares allotted, distinguishing shares allotted as fully or partly paid up otherwise than in cash, and stating, in the case of shares partly paid up, the extent to which they are so paid up, and, in either case, the consideration for which they have been allotted;
(b) the total amount of cash received by the company in respect of all the shares allotted, distinguished as aforesaid;
(c) an abstract of the receipts of the company and of the payments made thereout, up to a date within 7 days of the date of the report, exhibiting under distinctive headings the receipts of the company from shares and debentures and other sources, the payments made thereout, and particulars concerning the balance remaining in hand, and an account or estimate of the preliminary expenses of the company;
(d) the names, postal addresses and descriptions of the directors, auditors, if any, managers, if any, and secretary of the company; and
(e) the particulars of any contract the modification of which is to be submitted to the meeting for its approval, together with the particulars of the modification or proposed modification.
(4) The
statutory report shall, so far as it relates to the shares allotted by the
company, and to the cash received in respect of
such shares, and to the receipts
and payments of the company on capital account, be certified as correct by the
auditors, if any,
of the company.
(5) The directors shall cause a copy of
the statutory report, certified as required by this section, to be delivered to
the registrar,
for registration, forthwith after the sending thereof to the
members of the company.
(6) The directors shall cause a list showing the
names and postal addresses of the members of the company, and the number of
shares
held by them respectively, to be produced at the commencement of the
meeting and to remain open and accessible to any member of the
company during
the continuance of the meeting.
(7) The members of the company present at
the meeting shall be at liberty to discuss any matter relating to the formation
of the company,
or arising out of the statutory report, whether previous notice
has been given or not, but no resolution of which notice has not
been given in
accordance with the articles may be passed.
(8) The meeting may adjourn
from time to time and, at any adjourned meeting, any resolution of which notice
has been given in accordance
with the articles, either before or subsequently to
the former meeting, may be passed, and the adjourned meeting shall have the same
powers as an original meeting.
(9) In the event of any default in
complying with the provisions of this section, every director of the company who
is knowingly and
wilfully guilty of the default, or, in the case of default by
the company, every officer of the company who is in default shall be
liable to a
fine not exceeding $100.
(10) This section shall not apply to a private
company.
Annual general meeting
133.-(1) Every
company shall, in each year, hold a general meeting as its annual general
meeting in addition to any other meetings in
that year, and shall specify the
meeting as such in the notices calling it; and not more than 15 months shall
elapse between the
date of 1 annual general meeting of a company and that of the
next:
Provided that, so long as a company holds its first annual general
meeting within 18 months of its incorporation, it need not hold
it in the year
of its incorporation or in the following year.
(2) If default is made in
holding a meeting of the company in accordance with subsection (1), the
registrar may, on the application
of any member of the company, call or direct
the calling of a general meeting of the company and give such ancillary or
consequential
directions as the registrar thinks expedient, including directions
modifying or supplementing, in relation to the calling, holding
and conducting
of the meeting, the operation of the company's articles; and it is hereby
declared that the directions that may be
given under this subsection include a
direction that 1 member of the company present in person or by proxy shall be
deemed to constitute
a meeting.
(3) A general meeting held in pursuance
of subsection (2) of this section shall, subject to any directions of the
registrar, be deemed
to be an annual general meeting of the company; but, where
a meeting so held is not held in the year in which the default in holding
the
company's annual general meeting occurred, the meeting so held shall not be
treated as the annual general meeting for the year
in which it is held, unless,
at that meeting, the company resolves that it shall be so treated.
(4)
Where a company resolves that a meeting shall be so treated, a copy of the
resolution shall, within 14 days after the passing
thereof, be forwarded to the
registrar for registration.
(5) If default is made in holding a meeting
of the company in accordance with subsection (1), or in complying with any
directions
of the registrar under subsection (2), the company and every officer
of the company who is in default shall be liable to a fine not
exceeding $200
and, if default is made in complying with subsection (4), the company and every
officer of the company who is in default
shall be liable to a default fine of
$4.
Convening of extraordinary general meeting on requisition
134.-(1) The
directors of a company, notwithstanding anything in its articles, shall, on the
requisition of members of the company holding,
at the date of the deposit of the
requisition, not less than one-tenth of such of the paid-up capital of the
company as, at the date
of the deposit, carries the right of voting at general
meetings of the company, or, in the case of a company not having a share
capital,
members of the company representing not less than one-tenth of the
total voting rights of all the members having, at the said date,
a right to vote
at general meetings of the company, forthwith proceed duly to convene an
extraordinary general meeting of the company.
(2) The requisition must
state the objects of the meeting, and must be signed by the requisitionists and
deposited at the registered
office of the company, and may consist of several
documents in like form each signed by 1 or more requisitionists.
(3) If
the directors do not, within 21 days from the date of the deposit of the
requisition, proceed duly to convene a meeting, the
requisitionists, or any of
them representing more than one-half of the total voting rights of all of them,
may themselves convene
a meeting, but any meeting so convened shall not be held
after the expiration of 3 months from the said date.
(4) A meeting
convened under this section by the requisitionists shall be convened in the same
manner, as nearly as possible, as that
in which meetings are to be convened by
directors.
(5) Any reasonable expenses incurred by the requisitionists by
reason of the failure of the directors duly to convene a meeting shall
be repaid
to the requisitionists by the company, and any sum so repaid shall be retained
by the company out of any sums due or to
become due from the company by way of
fees or other remuneration in respect of their services to such of the directors
as were in
default.
(6) For the
purposes of this section, the directors shall, in the case of a meeting at which
a resolution is to be proposed as a special
resolution, be deemed not to have
duly convened the meeting, if they do not give such notice thereof as is
required by section 143.
Length of notice for calling meetings
135.-(1) (a) Any provision of a company's articles shall be void in so far as it provides for the calling of a meeting of the company (other than an adjourned meeting) by a shorter notice than 21 days.
(b) Every such notice shall be in writing.
(2)
Save in so far as the articles of a company make other provision in that behalf
(not being a provision avoided by subsection (1)),
a meeting of the company
(other than an adjourned meeting) may be called by 21 days' notice in
writing.
(3) A meeting of a company shall, notwithstanding that it is
called by shorter notice than that specified in subsection (2) or in
the
company's articles, as the case may be, be deemed to have been duly called, if
it is so agreed-
(a) in the case of a meeting called as the annual general meeting, by all the members entitled to attend and vote thereat; and
(b) in the case of any other meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than 95 per cent in nominal value of the shares giving a right to attend and vote at the meeting, or, in the case of a company not having a share capital, together representing not less than 95 per cent of the total voting rights at that meeting of all the members.
General provisions as to meetings and votes
136. The
following provisions shall have effect in so far as the articles of the company
do -not make other provision in that behalf:-
(a) notice of the meeting of a company shall be served on every member of the company in the manner in which notices are required to be served by Table A, and, for the purpose of this paragraph, "Table A" means that Table as for the time being in force;
(b) 2 or more members holding not less than one-tenth of the issued share capital or, if the company has not a share capital, not less than 5 percent in number of the members of the company may call a meeting;
(c) in the case of a private company, 2 members, and, in the case of any other company, 3 members, personally present shall be a quorum;
(d) any member elected by the members present at meeting may be chairman thereof;
(e) in the case of a company originally having a share capital, every member shall have 1 vote in respect of each share or each $20 of stock held by him, and, in any other case, every member shall have 1 vote.
Power of court to order meeting
137.-(1) If, for
any reason, it is impracticable to call a meeting of a company in any manner in
which meetings of that company may be
called, or to conduct the meeting of the
company in manner prescribed by the articles or this Act, the court may, either
of its own
motion or on the application of any director of the company or of any
member of the company who would be entitled to vote at the
meeting, order a
meeting of the company to be called, held and conducted in such manner as the
court thinks fit and, where any such
order is made, may give such ancillary or
consequential directions as it thinks expedient; and it is hereby declared that
the directions
that may be given under this subsection include a direction that
1 member of the company present in person or by proxy shall be deemed
to
constitute a meeting.
(2) Any meeting called, held and conducted in
accordance with an order under subsection (1) shall, for all purposes, be deemed
to
be a meeting of the company duly called, held and conducted.
Proxies
138.-(1) Any
member of a company entitled to attend and vote at a meeting of the company
shall be entitled to appoint another person
(whether a member or not) as his
proxy to attend and vote instead of him, and a proxy appointed to attend and
vote instead of a member
of a private company shall also have the same right as
the member to speak at the meeting:
Provided that, unless the articles
otherwise provide-
(i) this subsection shall not apply in the case of a company not having a share capital; and
(ii) a member of a private company shall not be entitled to appoint more than 1 proxy to attend on the same occasion; and
(iii) a proxy shall not be entitled to vote except on a poll.
(2) In every notice calling a meeting of
a company having a share capital, there shall appear, with reasonable
prominence, a statement
that a member entitled to attend and vote is entitled to
appoint a proxy or, where that is allowed, or more proxies to attend and
vote
instead of him, and that a proxy need not also be a member; and, if default is
made in complying with this subsection as respects
any meeting, every officer of
the company who is in default shall be liable to a fine not exceeding
$100.
(3) Any provision contained in a company's articles shall be void
in so far as it would have the effect of requiring the instrument
appointing a
proxy, or any other document necessary to show the validity of, or otherwise
relating to, the appointment of a proxy,
to be received by the company or any
other person more than 48 hours before a meeting or adjourned meeting in order
that the appointment
may be effective thereat.
(4) If, for the purpose of
any meeting of a company, invitations to appoint as proxy a person or 1 of a
number of persons specified
in the invitations are issued at the company's
expense to some only of the members entitled to be sent a notice of the meeting
and
to vote thereat by proxy, every officer of the company who knowingly and
wilfully authorizes or permits their issue as aforesaid
shall be liable to a
fine not exceeding $200:
Provided that an officer shall not be liable
under this subsection by reason only of the issue to a member, at his request,
in writing,
of a form of appointment naming the proxy or of a list of persons
willing to act as proxy, if the form or list is available, on request,
in
writing, to every member entitled to vote at the meeting by proxy.
(5)
This section shall apply to meetings of any class of members of a company as it
applies to general meetings of the company.
Rights to demand a poll
139.-(1) Any
provision contained in a company's articles shall be void in so far as it would
have the effect either-
(a) of excluding the right to demand a poll at a general meeting on any question other than the election of the chairman of the meeting or the adjournment of the meeting; or
(b) of making ineffective a demand for a poll on any such question which is made either-
(i) by not fewer than 5 members having the right to vote at the meeting; or
(ii) by a member or members representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting; or
(iii) by a member or members holding shares in the company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all shares conferring that right.
(2) The
instrument appointing a proxy to vote at a meeting of a company shall be deemed
also to confer authority to demand or join
in demanding a poll and, for the
purposes of subsection (1), a demand by a person as proxy for a member shall be
the same as a demand
by the member.
Voting on a poll
140. On a poll
taken at a meeting of a company or a meeting of any class of members of a
company, a member entitled to more than 1 vote
need not, if he votes, use all
his votes or cast all the votes he uses in the same way.
Representation of corporations at meetings of companies and of creditors
141.-(1) A
corporation, whether a company within the meaning of this Act or not,
may-
(a) if it is a member of another corporation, being a company within the meaning of this Act, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company;
(b) if it is a creditor (including a holder of debentures) of another corporation, being a company within the meaning of this Act, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of this Act or of any rules made thereunder, or in pursuance of the provisions contained in any debenture or trust deed, as the case may be.
(2) A person authorized as aforesaid shall
be entitled to exercise the same powers on behalf of the corporation which he
represents
as that corporation could exercise, if it were an individual
shareholder, creditor or holder of debentures of that other company.
Circulation of members' resolutions, etc.
142.-(1) Subject
to the following provisions of this section, it shall be the duty of a company,
on the requisition in writing of such
number of members as is hereinafter
specified and (unless the company otherwise resolves) at the expense of the
requisitionists:-
(a) to give to members of the company entitled to receive notice of the next annual general meeting notice of any resolution which may properly be moved and is intended to be moved at that meeting;
(b) to circulate to members entitled to have notice of any general meeting sent to them any statement of not more than 1,000 words with respect to the matter referred to in any proposed resolution or the business to be dealt with at that meeting.
(2) The number of members necessary
for a requisition under subsection (1) shall be-
(a) any number of members representing not less than one-twentieth of the total voting rights of all the members having, at the date of the requisition, a right to vote at the meeting to which the requisition relates; or
(b) not fewer than 100 members holding shares in the company on which there has been paid up an average sum, per member, of not less than $200.
(3) Notice of any such resolution shall
be given, and any such statement shall be circulated, to members of the company
entitled to
have notice of the meeting sent to them by serving a copy of the
resolution or statement on each such member in any manner permitted
for service
of notice of the meeting, and notice of any such resolution shall be given to
any other member of the company by giving
notice of the general effect of the
resolution in any manner permitted for giving him notice of meetings of the
company:
Provided that the copy shall be served, or notice of the effect
of the resolution shall be given, as the case may be, in the same
manner and, so
far as practicable, at the same time, as notice of the meeting and, where it is
not practicable for it to be served
or given at that time, it shall be served or
given as soon as practicable thereafter.
(4) A company shall not be
bound, under this section, to give notice of any resolution or to circulate any
statement unless-
(a) a copy of the requisition signed by the requisitionists (or 2 or more copies which between them contain the signatures of all the requisitionists) is deposited at the registered office of the company:
(i) in the case of a requisition requiring notice of a resolution, not less than 6 weeks before the meeting; and
(ii) in the case of any other requisition, not less than 1 week before the meeting; and
(b) there is deposited or tendered with the requisition a sum reasonably sufficient to meeting the company's expenses in giving effect thereto:
Provided that, if, after a copy of a requisition requiring notice of a resolution has been deposited at the registered office of the company, an annual general meeting is called for a date 6 weeks or less after the copy has been deposited, the copy, though not deposited within the time required by this subsection, shall be deemed to have been properly deposited for the purposes thereof.
(5) The company shall also not be
bound under this section to circulate any statement, if, on the application
either of the company
or of any other person who claims to be aggrieved, the
court is satisfied that the rights conferred by this section are being abused
to
secure needless publicity for defamatory matter; and the court may order the
company's costs on an application under this section
to be paid in whole or in
part by the requisitionists, notwithstanding that they are not parties to the
application.
(6) Notwithstanding anything in the company's articles, the
business which may be dealt with at an annual general meeting shall include
any
resolution of which notice is given in accordance with this section and, for the
purposes of this subsection, notice shall be
deemed to have been so given,
notwithstanding the accidental omission, in giving it, of 1 or more
members.
(7) In the event of any default in complying with the provisions
of this section, every officer of the company who is in default shall
be liable
to a fine not exceeding $1,000.
Special resolutions
143.-(1)
A resolution shall be a special resolution when it has been passed by a
majority of not less than three-fourths of such members as,
being entitled so to
do, vote in person or, where proxies are allowed, by proxy, at a general meeting
of which notice specifying
the intention to propose the resolution as a special
resolution has been duly given:
Provided that, if it is so agreed by a
majority in number of the members having the right to attend and vote at any
such meeting,
being a majority together holding not less than 95 per cent in
nominal value of the shares giving that right, or, in the case of,
a company not
having a share capital, together representing not less than 95 per cent of the
total voting rights at that meeting
of all the members, a resolution may be
proposed and passed as a special resolution at a meeting of which less than 21
days' notice
has been given.
(2) At any meeting at which a special
resolution is submitted to be passed, a declaration of the chairman that the
resolution is carried
shall, unless a poll is demanded, be conclusive evidence
of the fact without proof of the number or proportion of the votes recorded
in
favour of or against the resolution.
(3) In computing the majority on a
poll demanded on the question that a special resolution be passed, reference
shall be had to the
number of votes cast for and against the
resolution.
(4) For the purposes of this section, notice of a meeting
shall be deemed to be duly given and the meeting to be duly held, when the
notice is given and the meeting held in manner provided by this Act or the
articles.
Resolutions requiring special notice
144. Where, by
any provision hereafter contained in this Act, special notice is required of a
resolution, the resolution shall not be
effective, unless notice of the
intention to move it has been given to the company not less than 28 days before
the meeting at which
it is moved, and the company shall give its members notice
of any such resolution at the same time and in the same manner as it gives
notice of the meeting or, if that is not practicable, shall give them notice
thereof, either by advertisement in a newspaper having
an appropriate
circulation or in any other mode allowed by the articles, not less than 21 days
before the meeting:
Provided that, if, after notice of the intention to
move such a resolution has been given to the company, a meeting is called for
a
date 28 days or less after the notice has been given, the notice, though not
given within the time required by this subsection,
shall be deemed to have been
properly given for the purposes thereof.
Registration and copies of certain resolutions and agreements
145.-(1) A
printed or typewritten copy of every resolution or agreement to which this
section applies shall, within 30 days after the
passing or making thereof, be
delivered to the registrar for registration.
(2) Where articles have been
registered, a printed or typewritten copy of every such resolution or agreement
for the time being in
force shall be embodied in or annexed to every copy of the
articles issued after the passing of the resolution or the making of the
agreement.
(3) Where articles have not been registered, a printed or
typewritten copy of every such resolution or agreement shall be forwarded
to any
member at his request on payment of 50 cents or such less sum as the company may
direct.
(4) This section shall apply to-
(a) special resolutions;
(b) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose, unless they had been passed as special resolutions;
(c) resolutions or agreements which have been agreed to by all the members of some class of shareholders but which, if not so agreed to, would not have been effective for their purpose, unless they had been passed by some particular majority or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of shareholders, though not agreed to by all those members;
(d) resolutions requiring a company to be wound up voluntarily, passed under paragraph (a) of subsection (1) of section 272.
(5)
If a company fails to comply with subsection (1), the company and every officer
of the company who is in default shall be liable
to a default fine of
$4.
(6) If a company fails to comply with subsection (2) or subsection
(3), the company and every officer of the company who is in default
shall be
liable to a fine not exceeding $2 for each copy in respect of which default is
made.
(7) For the purposes of subsections (5) and (6), a liquidator of
the company shall be deemed to be an officer of the company.
Resolutions passed at adjourned meetings
146. Where a
resolution is passed at an adjourned meeting of-
(a) a company;
(b) the holders of any class of shares in a company;
(c) the directors of a company,
the resolution shall, for all purposes, be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.
Minutes of proceedings of meetings of company and of directors
147.-(1) Every
company shall cause minutes of all proceedings of general meetings, and of all
proceedings at meetings of its directors,
to be entered in books kept for that
purpose.
(2) Any such minute, if purporting to be signed by the chairman
of the meeting at which the proceedings were had, or by the chairman
of the next
succeeding general meeting or meeting of directors, as the case may be, shall be
evidence of the proceedings.
(3) Where, in accordance with the provisions
of this section, minutes have been made of the proceedings at any general
meeting of
the company or meeting of directors then, until the contrary is
proved, the meeting shall be deemed to have been duly held and convened,
and all
proceedings thereat to have been duly transacted, and all appointments of
directors, managers or liquidators shall be deemed
to be valid.
(4) If a
company fails to comply with subsection (1), the company and every officer of
the company who is in default shall be liable
to a default fine.
Inspection of minute books
148.-(1)
The books containing the minutes of proceedings of any general meeting of
a company shall be kept at the registered office of the
company, and shall,
during business hours (subject to such reasonable restrictions as the company
may by its articles or in general
meeting impose, so that not less than 2 hours
in each day be allowed for inspection), be open to the inspection of any member
without
charge.
(2) Any member shall be entitled to be furnished, within
14 days after he has made a request in that behalf to the company, with a
copy
of any such minutes as aforesaid at a charge not exceeding 50 cents for every
100 words.
(3) If any inspection required under this section is refused
or if any copy required under this section is not sent within the proper
time,
the company and every officer of the company who is in default shall be liable
in respect of each offence to a fine not exceeding
$4 and further to a default
fine of $4.
(4) In the case of any such refusal or default, the court
may, by order, compel an immediate inspection of the books in respect of
all
proceedings of general meetings or direct that the copies required shall be sent
to the persons requiring them.
Division 8-Accounts and Audit
Keeping of books of account
149.-(1)
Every company shall cause to be kept, in the English language, proper
books of account with respect to-
(a) all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;
(b) all sales and purchases of goods by the company;
(c) the assets and liabilities of the company.
(2) For the purposes of this section,
proper books of account shall be deemed not to have been kept with respect to
the matters aforesaid,
if there are not kept such books as are necessary to give
a true and fair view of the state of the company's affairs and to explain
its
transactions.
(3) A company shall retain the books of account kept under
this section, or under section 122 of
the repealed Act, for a period of 7 years after the financial year to which they
relate.
(4) The books of account shall be kept at the registered office
of the company or, at such other place in Fiji as the directors think
fit, and
shall, at all times, be open to inspection by the
directors.
(5) If any person,
being a director of a company, fails to take all reasonable steps to secure
compliance by the company with the requirements
of this section, or has, by his
own wilful act, been the course of any default by the company thereunder, he
shall, in respect of each offence, be
liable to imprisonment for a term not exceeding 12 months or to a fine not
exceeding $1,000 or to both:
Provided that-
(i) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by the company with the requirements of this section, it shall be a defence to prove that he had reasonable ground to believe, and did believe, that a competent and reliable person was charged with the duty of seeing that those requirements were complied with and was in a position to discharge that duty; and
(ii) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the court, the offence was committed wilfully.
Profit and loss account and balance sheet
150.-(1) The
directors of every company shall, at some date not later than 18 months after
the incorporation of the company and subsequently
once at least in every
calendar year, lay before the company in general meeting a profit and loss
account or, in the case of a company
not trading for profit, an income and
expenditure account for the period, in the case of the first account, since the
incorporation
of the company, and, in any other case, since the preceding
account, made up to a date not earlier than the date of the meeting by
more than
9 months or, in the case of a company carrying on business or having interests
abroad, by more than 12 months:
Provided that, if the registrar, for any
special reason, thinks fit to do so, he may-
(i) in the case of any company, extend the period of 18 months aforesaid, and, in the case of any company and with respect to any year, extend the period of 9 and 12 months aforesaid; and
(ii) in the case of any company, permit the account to be laid before the company after the end of the calendar year.
(2) The directors shall cause to be made
out in every calendar year, and to be laid before the company in general
meeting, a balance
sheet as at the date to which the profit and loss account or
the income and expenditure account, as the case may be is made up.
(3) If
any person, being a director of a company, fails to take all reasonable steps to
comply with the provisions of this section,
he shall, in respect of each
offence, be liable to a fine not exceeding $1,000.
Provided that, in any
proceedings against a person in respect of an offence under this section, it
shall be a defence to prove that
he had reasonable ground to believe, and did
believe, that a competent and reliable person was charged with the duty of
seeing that
the provisions of this section were complied with and was in a
position to discharge that duty.
General provisions as to contents and form of accounts
151.-(1) Every
balance sheet of a company shall give a true and fair view of the
state-of-affairs of the company as at the end of its
financial year, and every
profit and loss account of a company shall give a true and fair view of the
profit or loss of the company
for the financial year.
(2) A company's
balance sheet and profit and loss account shall comply with the requirements of
the Seventh Schedule so far as applicable
thereto.
(3) Save as expressly
provided in the following provisions of this section or in Part III of the
Seventh Schedule, the requirements
of subsection (2) and the said Schedule shall
be without prejudice either to the general requirements of subsection (1) or to
any
other requirements of this Act.
(4) The registrar may, on the
application, or with the consent of a company's directors, modify, in relation
to that company, any
of the requirements of this Act as to the matters to be
stated in a company's balance sheet or profit and loss account (except the
requirements of subsection (1)) for the purpose of adapting them to the
circumstances of the company.
(5) Subsections (1) and (2) shall not apply
to a company's profit and loss account, if-
(a) the company has subsidiaries; and
(b) the profit and loss account is framed as a consolidated profit and loss account dealing with all or any of the company's subsidiaries as well as the company and-
(i) complies with the requirements of this Act relating to consolidated profit and loss accounts; and
(ii) shows how much of the consolidated profit or loss for the financial year is dealt with in the accounts of the company.
(6) If any person, being
a director of a company, fails to take all reasonable steps to secure
compliance, as respects any accounts
laid before the company in general meeting,
with the provisions of this section and with the other requirements of this Act
as to
the matters to be stated in accounts, he shall, in respect of each
offence, be liable to imprisonment for a term not exceeding 12
months or to a
fine not exceeding $1,000, or to both:
Provided that-
(i) in any proceedings against a person in respect of an offence under this section, it shall be a defence to prove that he had reasonable ground to believe, and did believe, that a competent and reliable person was charged with the duty of seeing that the said provisions or the said other requirements, as the case may be, were complied with and was in a position to discharge that duty; and
(ii) a person shall, not be sentenced to imprisonment for any such offence unless, the opinion of the court, the offence was committed wilfully.
(7) For the purposes of this section
and the following provisions of this Act, except where the context otherwise
requires-
(a) any reference to a balance sheet or profit and loss account shall include any notes thereon or document annexed thereto giving information which is required by this Act and is thereby allowed to be so given; and
(b) any reference to a profit and loss account shall be taken, in the case of a company not trading for profit, as referring to its income and expenditure account, and references to profit or to loss and, if the company has subsidiaries, references to a consolidated profit and loss account shall be construed accordingly.
Obligation to lay group accounts before holding company
152.-(1) Where,
at the end of its financial year, a company has subsidiaries, accounts or
statements (in this Act referred to as "group
accounts") dealing as hereinafter
mentioned with the state-of-affairs and profit or loss of the company and the
subsidiaries shall,
subject to subsection (2), be laid before the company in
general meeting when the company's own balance sheet and profit and loss
account
are so laid.
(2) Notwithstanding anything in subsection (1)-
(a) group accounts shall not be required where the company is, at the end of its financial year, the wholly owned subsidiary of another body corporate incorporated in Fiji; and
(b) group, accounts need not deal with a subsidiary of the company, if the company's directors are of opinion that-
(i) it is impracticable, or would be of no real value to members of the company, in view of the insignificant amounts involved, or would involve expense or delay out of proportion to the value to members of the company; or
(ii) the result would be misleading, or harmful to the business of the company or any of its subsidiaries; or
(iii) the business of the holding company and that of the subsidiary are so different that they cannot reasonably be treated as a single undertaking,
and, if the directors are of such an opinion about each of the company's subsidiaries, group accounts shall not be required:
Provided that the approval of the registrar shall be required for not dealing in group accounts with a subsidiary on the ground that the result would be harmful, or on the ground of the difference between the business of the holding company and that of the subsidiary.
(3) If any person,
being a director of a company, fails to take all reasonable steps to secure
compliance as respects the company
with the provisions of this section, he
shall, in respect of each offence, be liable to a fine not exceeding
$1,000,
Provided that, in any proceedings against a person in respect of
an offence under this section, it shall be a defence to prove that
he had
reasonable ground to believe, and did believe, that a competent and reliable
person was charged with the duty of seeing that
the requirements of this section
were complied with and was in a position to discharge that duty.
(4) For
the purposes of this section, a body corporate shall be deemed to be the wholly
owned subsidiary of another, it has no members
except that other and that
other's wholly owned subsidiaries and its or their nominees.
Form of group accounts
153.-(1) Subject
to subsection (2), the group accounts laid before a holding company shall be
consolidated accounts comprising-
(a) a consolidated balance sheet dealing with the state-of-affairs of the company and all the subsidiaries to be dealt with in group accounts;
(b) a consolidated profit and loss account dealing with the profit or loss of the company and those subsidiaries.
(2) If the
company's directors are of opinion that it is better, for the purpose-
(a) of presenting the same or equivalent information about the state-of-affairs and profit and loss of the company and those subsidiaries; and
(b) of so presenting it that it may be readily appreciated by the company's members,
the group accounts may be prepared in a form other than that required by subsection (1) and, in particular, may consist of more than 1 set of consolidated accounts dealing respectively with the company and 1 group of subsidiaries and with other groups of subsidiaries or of separate accounts dealing with each of the subsidiaries, or of statements expanding the information about the subsidiaries in the company's own accounts, or any combination of those forms.
(3) The group
accounts may be wholly or partly incorporated in the company's own balance sheet
and profit and loss account.
Contents of group accounts
154.-(1) The
group accounts laid before a company shall give a true and fair view of the
state-of-affairs and profit or loss of the company
and the subsidiaries dealt
with thereby as a whole, so far as concerns members of the company.
(2)
Where the financial year of a subsidiary does not coincide with that of the
holding company, the group accounts shall, unless
the registrar, on the
application or with the consent of the holding company's directors, otherwise
directs, deal with the subsidiary's
state-of-affairs as at the end of its
financial year ending with or last before that of the holding company, and with
the subsidiary's
profit or loss for that financial year.
(3) Without
prejudice to subsection (1), the group accounts, if prepared as consolidated
accounts shall comply with the requirements
of the Seventh Schedule, so far as
applicable thereto and, if not so prepared, shall give the same or equivalent
information:
Provided that the registrar may, on the application or with
the consent of a company's directors, modify the said requirements in
relation
to that company for the purpose of adapting them to the circumstances of the
company.
Financial year of holding company and subsidiary
155.-(1) A
holding company's directors shall ensure that, except where, in their opinion,
there are good reasons against it, the financial
year of each of its
subsidiaries shall coincide with the company's own financial year.
(2)
Where it appears to the registrar desirable for a holding company or a holding
company's subsidiary to extend its financial year
so that the subsidiary's
financial year may end with, that of the holding company and, for that purpose,
to postpone the submission
of the relevant accounts to a general meeting from 1
calendar year to the next, the registrar may, on the application or with the
consent of the directors of the company whose financial year is to be extended,
direct that, in the ease of that company, the submission
of accounts to a
general meeting, the holding of an annual general meeting or the making of an
annual return shall not be required
in the earlier of the said calendar
years.
Meaning of "holding company" and "subsidiary"
156.-(1) For the
purposes of this Act, a company shall, subject to the provisions of subsection
(3), be deemed to be a subsidiary of
another if, but only if-
(a) that other either-
(i) is a member of it and controls the composition of its board of directors; or
(ii) holds more than half in nominal value of its equity share capital; or
(b) the first-mentioned company is a subsidiary of any company which is that other's subsidiary.
(2) For the purposes of
subsection (1), the composition of a company's board of directors shall be
deemed to be controlled by another
company if, but only if, that other company,
by the exercise of some power exercisable by it without the consent or
concurrence of
any other person, can appoint or remove the holders of all or a
majority of the directorships; but, for the purposes of this provision,
that
other company shall be deemed to have power to appoint to a directorship with
respect to which any of the following conditions
is satisfied, that is to
say:-
(a) that a person cannot be appointed thereto without the exercise in his favour by that other company of such a power as aforesaid; or
(b) that a person's appointment thereto follows necessarily from his appointment as director of that other company.
(3) In
determining whether 1 company is a subsidiary of another-
(a) any shares held or power exercisable by that other in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power exercisable-
(i) by any person as a nominee for that other (except where that other is concerned only in a fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other, not being a subsidiary which is concerned only in a fiduciary capacity,
shall be treated as held or exercisable by that other;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned company or of a trust deed for securing any issue of such debentures shall, be disregarded;
(d) any shares held or power exercisable by, or by a nominee for, that other or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other, if the ordinary business of that other or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that, business.
(4) For the purposes of this Act, a
company shall be deemed to be another's holding company if, but only if, that
other is its subsidiary.
(5) In this section, "company" includes anybody
corporate, and "equity share capital" means, in relation to a company, its
issued
share capital, excluding any part thereof which, neither as respects
dividends nor as respects capital, carries any right to participate
beyond a
specified amount in a distribution.
Signing of balance sheet
157.-(1) Every
balance sheet of a company shall be signed on behalf of the board by 2 of the
directors of the company.
(2) In the case of a banking company, the
balance sheet must be signed by a secretary or manager, if any, and, where there
are more
than 3 directors of the company, by at least 3 of those directors, and,
where there are not more than 3 directors, by all the directors.
(3) When
the total number of the directors of the company for the time being in Fiji is
less than the number of directors whose signatures
are required by this section,
the balance sheet shall be signed by all the directors for the time being in
Fiji or, if there is only
1 director for the time being in Fiji, by such
director, but, in any such case, there shall be subjoined to the balance sheet a
statement
signed by such directors or director explaining the reason for
non-compliance with the provisions of this section.
(4) If any copy of a
balance sheet which has not been signed as required by this section is issued,
circulated or published, the company
and every officer of the company who is in
default shall be liable to a fine not exceeding $100.
Accounts and auditors' report to be annexed to balance sheet
158.-(1)
The profit and loss account, and, so far as not incorporated in the
balance sheet or profit and loss account, any group accounts laid
before the
company in general meeting, shall be annexed to the balance sheet, and the
auditors' report, if any, shall be attached
thereto.
(2) Any accounts so
annexed shall be approved by the board of directors before the balance sheet is
signed on their behalf.
(3) If any copy of a balance sheet is issued,
circulated or published without having annexed thereto a copy of the profit and
loss
account or any group accounts required by this section to be so annexed, or
without having attached thereto a copy of the auditors'
report, if any, the
company and every officer of the company who is in default shall be liable to a
fine not exceeding $100.
Directors' report to be attached to balance sheet
159.-(1) There
shall be attached to every balance sheet laid before a company in general
meeting a report by the directors with respect
to the state of the company's
affairs, the amount, if any, which they recommend should be paid by way of
dividend, and the amount,
if any, which they propose to carry to reserves within
the meaning of the Seventh Schedule.
(2) The said report shall deal, so
far as is material for the appreciation of the state of the company's affairs by
its members and
will not, in the directors' opinion, be harmful to the business
of the company or of any of its subsidiaries, with any change during
the
financial year in the nature of the company's business, or in the company's
subsidiaries, or in the classes of business in which
the company has an
interest, whether as member of another company or otherwise.
(3) If any
person, being a director of a company, fails to take all reasonable steps to
comply with the provisions of subsection (1),
he shall, in respect of each
offence, be liable to a fine not exceeding $1,000:
Provided that, in any
proceedings against a person in respect of an offence under subsection (1), it
shall be a defence to prove that
he had reasonable ground to believe, and did
believe, that a competent and reliable person was charged with the duty of
seeing that
the provisions of that subsection were complied with and was in a
position to discharge that duty.
Right to receive copies of balance sheets and auditors' report
160.-(1) A copy
of every balance sheet, including every document required by law to be annexed
thereto, which is to be laid before a company
in general meeting, together with
a copy of the auditors' report, if any, shall, not less than 21 days before the
date of the meeting,
be sent to every member of the company (whether he is or is
not entitled to receive notices of general meetings of the company),
every
holder of debentures of the company (whether he is or is not so entitled) and
all persons other than members or holders of
debentures of the company, being
persons so entitled:
Provided that-
(i) in the case of a company not having a share capital, this subsection shall not require the sending of a copy of the documents aforesaid to a member of the company who is not entitled to receive notices of general meetings of the company or to a holder of debentures of the company who is not so entitled;
(ii) this subsection shall not require a copy of those documents to be sent-
(a) to a member of the company or a holder of debentures of the company, being, in either case, a person who is not entitled to receive notices of general meetings of the company and of whose address the company is unaware;
(b) to more than 1 of the joint holders of any shares or debentures, none of whom are entitled to receive such notices; or
(c)in the case of joint holders of any shares or debentures, some of whom are and some of whom are not entitled to receive such notices, to those who are not so entitled; and
(iii) if the copies of the documents aforesaid are sent less than 21 days before the date of the meeting, they shall, notwithstanding that fact, be deemed to have been duly sent, if it so agreed by all the members entitled to attend and vote at the meeting.
(2) Any member of a
company, whether he is or is not entitled to have sent to him copies of the
company's balance sheets, and any
holder of debentures of the company, whether
he is or is not so entitled, shall be entitled to be furnished, on demand,
without charge,
with a copy of the last balance sheet of the company, including
every document required by law to be annexed thereto, together with
a copy of
the auditors' report, if any, on the balance sheet.
(3) If default is
made in complying with subsection (1), the company and every officer of the
company who is in default shall be liable
to a fine not exceeding $100, and if,
when any person makes a demand for any document with which he is, by virtue of
subsection (2),
entitled to be furnished, default is made in complying with the
demand within a reasonable period after the making thereof, the company
and
every officer of the company who is in default shall be liable to a default
fine, unless it is proved that that person has already
made a demand for and
been furnished with a copy of the document.
(4) The foregoing provisions
of this section shall not have effect in relation to a balance sheet of a
private company laid before
it before 1 January 1984, and the right of any
person to be furnished with a copy of any such balance sheet and the liability
of
the company in respect of a failure to satisfy that right shall be the same
as they would have been if this Act had not passed.
Appointment and remuneration of auditors
161.-(1)
Subject to section 162, every
company shall, at each annual general meeting, appoint auditor or auditors to
hold office from the conclusion of that, until
the conclusion of the next,
annual general meeting.
(2) Notwithstanding the provisions of subsection
(1), at any annual general meeting, a retiring auditor, however appointed, shall
be deemed to be reappointed without any resolution being passed, unless-
(a) he is not qualified for reappointment; or
(b) a resolution has been passed at that meeting appointing somebody instead of him or providing expressly that he shall not be reappointed; or
(c) he has given the company notice in writing of his unwillingness to be reappointed:
Provided that, where notice is given of an intended resolution to appoint some person or persons in place of a retiring auditor, and by reason of the death, incapacity or disqualification of that person or of all those persons, as the case may be, the resolution cannot be proceeded with, the retiring auditor shall not be deemed to be automatically reappointed by virtue of this subsection.
(3) Where, at an annual general
meeting, no auditors are appointed or are deemed to be reappointed, the
registrar may appoint a person
to fill the vacancy.
(4) The company
shall, within 7 days of the registrar's power under subsection (3) becoming
exercisable, give him notice of that fact,
and, if a company fails to give
notice as required by this subsection, the company and every officer of the
company who is in default
shall be liable to a default fine.
(5) Subject
as hereinafter provided, the first auditors of a company may be appointed by the
directors at any time before the first
annual general meeting, and auditors so
appointed shall hold of ice until the conclusion that meeting:
Provided
that-
(i) the company may, at a general meeting, remove any such auditors and appoint in their place any other persons who have been nominated for appointment by any member of the company and of whose nomination notice has been given to the members of the company not less than 14 days before the date of the meeting; and
(ii) if the directors fail to exercise their powers under this subsection, the company in general meeting may appoint the first auditors, and thereupon the said powers of the directors shall cease.
(6)
The directors may fill any casual vacancy in the office of auditor but, while
any such vacancy continues, the surviving or continuing
auditor or auditors, if
any, may act.
(7) (a) the
remuneration of the auditors of a company-
(i) in the case of an auditor appointed by the directors or by the registrar, may be fixed by, the directors or by the registrar as the case may be;
(ii) subject to subparagraph (i), shall be fixed by the company in general meeting or in such manner as the company in general meeting may determine.
(b) For the purposes of this subsection, any sums paid by the company in respect of the auditors' expenses shall be deemed to be included in the expression "remuneration".
Operation of section 161 in relation to private companies
162.-(1) Section
161 shall not apply to a private
company, not being a private company which is required to comply with section
130, in respect of any annual general
meeting, if, at or before that meeting, all the members of the company having
the right to vote
on that resolution pass a unanimous resolution that no auditor
be appointed at that meeting.
(2) Every such resolution shall expire at
the commencement of the next annual general meeting after the meeting to which
it relates.
(3) Where a resolution under this section is passed-
(a) section 145 shall apply to the resolution;
(b) the registrar may, at any time before the next annual general meeting, if he thinks fit, on the application or with the consent of any member or creditor of the company, or of his own motion, appoint an auditor or auditors to hold office until the conclusion of the next annual general meeting;
(c) every balance sheet of the company prepared while the company has no auditor shall include a statement that the accounts have not been audited; and subsection (6) of section 151 shall apply in every case of failure to comply with this paragraph.
Provisions as to resolution relating to appointment and removal of auditors
163.-(1) Special
notice shall be required for a resolution at a company's annual general meeting
appointing as auditor a person other
than a retiring auditor or providing
expressly that a retiring auditor shall not be reappointed.
(2) On
receipt of notice of such an intended resolution as aforesaid, the company shall
forthwith send a copy thereof to the retiring
auditor (if any).
(3) Where
notice is given of such an intended resolution as aforesaid and the retiring
auditor makes, with respect to the intended
resolution, representations in
writing to the company (not exceeding a reasonable length) and requests their
notification to members
of the company, the company shall, unless the
representations are received by it too late for it to do so-
(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made; and
(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company),
and, if a copy of the representations is not sent as aforesaid because received too late or because of the company's default, the auditor may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:
Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs, on an application under this section, to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application.
(4) Subsection (3) shall apply to
a resolution to remove the first auditors by virtue of subsection (5) of section
161 as it applies in relation to a
resolution that a retiring auditor shall not be reappointed.
Disqualifications for appointment as auditor
164.-(1) A person
or firm shall not be qualified for appointment as auditor of a company which is
not a private company, or of a private
company to which section
130 applies, unless he, or in the case
of a firm, every partner in the firm, is the holder of a certificate of public
practice issued
by the Fiji Institute of Accountants.
(2) (a) None of the following persons shall be qualified for appointment as auditor of a company-
(i) an officer or servant of the company;
(ii) a person who is a partner of or in the employment of an officer or servant of the company;
(iii) a body corporate.
(b) References in this subsection to an officer or servant shall be construed as not including references to an auditor.
(3) A
person shall also not be qualified for appointment as auditor of a company if he
is, by virtue of subsection (2), disqualified
for appointment as auditor of any
other body corporate which is that company's subsidiary or holding company or a
subsidiary of that
company's holding company, or would be so disqualified, if
the body corporate were a company.
(4) If any person who is not qualified
so to act is appointed as auditor of a company, such person and the company and
every officer
in default shall each be liable to a fine not exceeding
$400.
(5) This section shall not apply to the person who holds office as,
or is for the time being exercising the powers and performing
the duties of, the
Auditor-General.
Auditors' report and right of access to books and to
attend
and be heard at general meetings
165.-(1)
The auditors shall make a report to the members on the accounts examined by
them, and on every balance sheet, every profit and
loss account and all group
accounts laid before the company in general meeting during their tenure of
office, and the report shall
contain statements as to the matters mentioned in
the Eighth Schedule.
(2) The auditors' report shall be read before the
company in general meeting and shall be open to inspection by any
member.
(3) Every auditor of a company shall have a right of access, at
all times, to the books and accounts and vouchers of the company,
and shall be
entitled to require from the officers of the company such information and
explanations as he thinks necessary for the
performance of the duties of the
auditors.
(4) The auditors of a company shall be entitled to attend any
general meeting of the company and to receive all notices of and other
communications relating to any general meeting which any member of the company
is entitled to receive and to be heard at any general
meeting which they attend
on any part of the business of the meeting which concerns them as
auditors.
Construction of references to documents annexed to accounts
166. References
in this Act to a document annexed or required to be annexed to a company's
accounts or any of them do not include the
directors' report or the auditors'
report:
Provided that any information which is required, by this Act, to
be given in accounts, and is thereby allowed to be given in a statement
annexed,
may be given in the directors' report instead of in the accounts and, if any
such information is so given, the report shall
be annexed to the accounts and
this Act shall apply in relation thereto accordingly, except that the auditors
shall report thereon
only so far as it gives the said information.
Division 9-Investigation by the Registrar
Investigation by registrar
167.-(1) (a) Where the registrar has reasonable cause to believe that the provisions of this Act are not being complied with, or where, on perusal of any document which a company is required to submit to him under the provisions of this Act, he is of opinion that the document does not disclose a full and fair statement of the matters to which it purports to relate, he may, by a written order, call on the company concerned to produce all or any of the books of the company or to furnish, in writing, such information or explanation as he may specify in his order.
(b) Such books shall be produced and such information or explanation shall be furnished within such time as may be specified in the order.
(2) On receipt of an
order under subsection (1), it shall be the duty of all persons who are or have
been officers of the company
to produce such books or to furnish such
information or explanation, so far as lies within their power.
(3) If any
such person refuses or neglects to produce such books or to furnish any such
information or explanation he shall be liable
to a fine not exceeding $100 in
respect of each offence.
(4) If, after examination of such books or
consideration of such information or explanation, the registrar is of the
opinion that
an unsatisfactory state-of-affairs is disclosed or that a full and
fair statement has not been disclosed, the registrar shall report
the
circumstances of the case, in writing, to the court.
Division 10-Inspection
Investigation of company's affairs on application of members
168.-(1) The
court may appoint 1 or more competent inspectors to investigate the affairs of a
company and to report thereon in such manner
as the court directs-
(a) in the case of a company having a share capital, on the application either of not fewer than 200 members or of members holding not less than one-tenth of the shares issued;
(b) in the case of a company not having a share capital, on the application of not less than one-fifth in number of the persons on the company's register of members.
(2) The application shall be
supported by such evidence as the court may require for the purpose of showing
that the applicants have
good reason for requiring the investigation, and the
court may, before appointing an inspector, require the applicants to give
security,
to an amount not exceeding $1,000, for payment of the costs of the
investigation.
Investigation of company's affairs in other cases
169. Without
prejudice to its powers under section
168, the court-
(a) shall appoint 1 or more competent inspectors to investigate the affairs of a company and to report thereon in such manner as the court directs, if the company by special resolution declares that its affairs ought to be investigated by an inspector appointed by the court; and
(b) may do so, if it appears to the court upon a report from the registrar that there are circumstances suggesting-
(i) that the company's business is being conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose or in a manner oppressive of any part of its members or that it was formed for any fraudulent or unlawful purpose; or
(ii) that persons concerned with its formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members; or
(iii) that its members have not been given all the information with respect to its affairs which they might reasonably expect; or
(iv) that it is desirable so to do.
Power of inspectors to carry investigation into affairs of related companies
170. If an
inspector appointed under either section 168
or section 169 to investigate
the affairs of a company thinks it necessary for the purposes of his
investigation to investigate also the affairs
of any other body corporate which
is or has, at any relevant time, been the company's subsidiary or holding
company or a subsidiary
of its holding company or a holding company of its
subsidiary, he shall have power so to do, and shall report on the affairs of the
other body corporate so far as he thinks the results of his investigation
thereof are relevant to the investigation of the affairs
of the first-mentioned
company.
Production of documents and evidence on investigation
171.-(1) It shall
be the duty of all officers and agents of the company and of all officers and
agents of any other body corporate whose
affairs are investigated by virtue of
section 170 to produce to any inspector
all books and documents of or relating to the company or, as the case may be,
the other body corporate
which are in their custody or power and otherwise to
give to the inspectors all assistance in connection with the investigation which
they are reasonably able to give.
(2) An inspector may examine on oath
the officers and agents of the company or other body corporate in relation to
its business, and
may administer an oath accordingly.
(3) If any officer
or agent of the company or other body corporate refuses to produce to any
inspector any book or document which
it is his duty under this section so to
produce, or refuses to answer any question which is put to him by an inspector
with respect
to the affairs of the company or other body corporate, as the case
may be, the inspector may certify the refusal under his hand to
the court, and
the court may thereupon inquire into the case, and after hearing any witnesses
who may be produced against or on behalf
of the alleged offender and, after
hearing any statement which may be offered in defence, punish the offender in
like manner as if
he had been guilty of contempt of the court.
(4) If an
inspector thinks it necessary for the purpose of his investigation that a person
whom he has no power to examine on oath
should be so examined, he may apply to
the court and the court may, if it sees fit, order that person to attend and be
examined on
oath before it on any matter relevant to the investigation and, on
any such examination-
(a) the inspector may take part therein, either personally or by barrister and solicitor;
(b) the court may put such questions to the person examined as the court thinks fit;
(c) the person examined shall answer all such questions as the court may put or allow to be put to him, but may, at his own cost, employ a barrister and solicitor, who shall be at liberty to put to him such questions as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him,
and notes of the examination shall be taken down in writing and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him:
Provided that, notwithstanding anything in paragraph (c), the court may allow the person examined such costs as, in its discretion, it may think fit, and any costs so allowed shall be paid as part of the expenses of the investigation.
(5) In this section, any
reference to officers or to agents includes past, as well as present, officers
or agents, as the case may
be and, for the purposes of this section, "agents",
in relation to a company or other body corporate, includes the bankers and
barristers
and solicitors of the company or other body corporate and any persons
employed by the company or other body corporate as auditors,
whether those
persons are or are not officers of the company or other body corporate.
Inspector's report
172.-(1) (a) An inspector may, and, if so directed by the court, shall, make interim reports to the court and, on the conclusion of the investigation, shall make a final report to the court.
(b) Any such report shall be written or, if the court so directs, printed.
(2) The court shall-
(a) forward a copy of any report made by an inspector to the company and to the registrar;
(b) if the court thinks fit, forward a copy thereof, on request and on payment of the prescribed fee, to any other person who is a member of the company or of any other body corporate dealt with in the report by virtue of section 170, or whose interests as a creditor of the company or any such other body corporate as aforesaid appear to the court to be affected;
(c) where any inspector is appointed under section 168, furnish, at the request of the applicants for the investigation, a copy to them,
and may also cause the report to be printed and published.
Proceedings on inspector's reports
173.-(1) (a) If, from any report made under section 172, it appears to the court that any person has, in relation to the company or to any other body corporate whose affairs have been investigated by virtue of section 170, been guilty of any offence for which he is criminals liable, the court shall forward a copy of the report to the Director of Public Prosecutions, and, if the Director of Public Prosecutions considers that the case is one in which a prosecution ought to be instituted, he shall institute proceedings accordingly, and it shall be the duty of all officers and agents of the company, past and present (other than the defendant in the proceedings), to give to him all assistance in connection with the prosecution which they are reasonably able to give.
(b) Subsection (5) of section 171 shall apply, for the purposes of this subsection, as it applies for the purpose of that section.
(2) If, in the case of any body
corporate liable to be wound up under this Act, it appears to the
Attorney-General, from any such
report as aforesaid, that it is expedient so to
do by reason of any such circumstances as are referred to in subparagraph (i) or
subparagraph (ii) of paragraph (b) of
section 169, the Attorney-General may,
unless the body corporate is already being wound up by the court, present a
petition for it to be so wound
up, if the court thinks it just and equitable
that it should be wound up, or a petition for an order under section
212, or both.
(3) If, from any
such report as aforesaid, it appears to the Attorney-General that proceedings
ought, in the public interest, to be
brought by any body corporate dealt with by
the report for the recovery of damages in respect of any fraud, misfeasance or
other
misconduct in connection with the promotion or formation of that body
corporate or the management of its affairs, or for the recovery
of any property
of the body corporate which has been misapplied or wrongfully retained, he may
himself bring proceedings for that
purpose in the name of the body
corporate.
(4) The registrar shall indemnify the body corporate against
any costs or expenses incurred by it in or in connection with any proceedings
brought by virtue of subsection (3).
Expenses of investigation of company's affairs
174.-(1) The
expenses of and incidental to an investigation by an inspector appointed by the
court under the foregoing provisions of
this Act shall be defrayed in the first
instance by the registrar, but the following persons shall, to the extent
mentioned, be liable
to repay the registrar:-
(a) any person who is ordered to pay damages or restore any property in proceedings brought by virtue of subsection (3) of section 173, may, in the same proceedings, be ordered to pay the said expenses to such extent as may be specified in the order;
(b) any body corporate in whose name proceedings are brought as aforesaid shall be liable to the amount or value of any sums or property recovered by it as a result of those proceedings;
(c) unless, as a result of the investigation, a prosecution is instituted by the Director of Public Prosecutions-
(i) any body corporate dealt with by the report, where the inspector was appointed otherwise than under paragraph (b) of section 169, shall be liable, except so far as the court otherwise directs; and
(ii) the applicants for the investigation, where the inspector was appointed under section 168, shall be liable to such extent (if any) as the court directs,
and any amount for which a body corporate is liable by virtue of paragraph (b) of this subsection shall be a first charge on the sums or property mentioned in that paragraph.
(2) The report of an inspector
appointed otherwise than under paragraph
(b) of section
169 may, if he thinks fit, and shall,
if the court so directs, include a recommendation as to the directions (if any)
which he thinks
appropriate, in the light of his investigation, to be given
under paragraph (c) of subsection (1)
of this section.
(3) For the purposes of this section, any costs or
expenses incurred by the registrar in or in connection with proceedings brought
by virtue of subsection (3) of section 173
(including expenses incurred by virtue of subsection (4) of that section)
shall be treated as expenses of the investigation giving
rise to the
proceedings.
(4) Any liability to repay the registrar imposed by
paragraphs (a) and
(b) of subsection (1) shall, subject
to satisfaction of the registrar's right to repayment, be a liability also to
indemnify all persons
against liability under paragraph
(c) thereof, and any such liability
imposed by paragraph (a) shall,
subject as aforesaid, be a liability also to indemnify all persons against
liability under paragraph (b); and any
person liable under paragraph (a) or
(b) or either subparagraph of
paragraph (c) shall be entitled to
contribution from any other person liable under the same paragraph or
subparagraph, as the case may be, according
to the amount of their respective
liabilities thereunder.
Inspector's report to be evidence
175. A copy of
any report of any inspector appointed under the foregoing provisions of this
Act, authenticated by the seal of the company
whose affairs have been
investigated, shall be admissible in any legal proceedings as evidence of the
opinion of the inspector in
relation to any matter contained in the
report.
Appointment and powers of inspectors to investigate ownership of company
176.-(1) Where it
appears to the registrar that there is good reason so to do, he may appoint 1 or
more competent inspectors to investigate
and report on the membership of any
company, and otherwise with respect to the company, for the purpose of
determining the true persons
who are or have been financially interested in the
success or failure (real or apparent) of the company or able to control or
materially
to influence the policy of the company.
(2) The appointment of
an inspector under this section may define the scope of his investigation,
whether as respects the matter or
the period to which it is to extend or
otherwise, and, in particular, may limit the investigation to matters connected
with particular
shares or debentures.
(3) Where an application for an
investigation under this section with respect to particular shares or debentures
of a company is made
to the registrar by members of the company, and the number
of applicants or the amount of the shares held by them is not less than
that
required for an application for the appointment of an inspector under section
168, the registrar shall appoint an
inspector to conduct the investigation, unless he is satisfied that the
application is vexatious,
and the inspector's appointment shall not exclude from
the scope of his investigation any matter which the application seeks to have
included therein, except in so far as the registrar is satisfied that it is
unreasonable for that matter to be investigated:
Provided that the
registrar may refuse to appoint an inspector under this subsection unless, in
any case in which he considers it
reasonable so to require, the applicants give
sufficient security for the payment of the costs of the
investigation.
(4) Subject to the terms of an inspector's appointment,
his powers shall extend to the investigation of any circumstances suggesting
the
existence of an arrangement or understanding which, though not legally binding,
is or was observed or likely to be observed in
practice and which is relevant to
the purposes of his investigation.
(5) For the purposes of any
investigation under this section, sections
170 to
172 shall apply with the necessary
modifications of references to the affairs of the company or to those of any
other body corporate,
so, however, that-
(a) the said sections shall apply in relation to all persons who are or have been, or whom the inspector has reasonable cause to believe to be or have been, financially interested in the success or failure, or the apparent success or failure, of the company or any other body corporate whose membership is investigated with that of the company, or able to control or materially to influence the policy thereof, including persons concerned only on behalf of others, as they apply in relation to officers and agents of the company or of the other body corporate, as the case may be; and
(b) the registrar shall not be bound to furnish the company or any other person with a copy of any report by an inspector appointed under this section or with a complete copy thereof, if he is of opinion that there is good reason for not divulging the contents of the report or of parts thereof, but shall keep a copy of any such report or, as the case may be, the parts of any such report, as respects which he is not of that opinion.
(6) (a) The expenses of any investigation under subsection (1) shall be defrayed by the registrar.
(b) The expenses of any investigation under subsection (3) shall be defrayed by the applicants, unless the registrar certifies that it is a case in which he might properly have acted under subsection (1).
Power to require information as to persons interested in shares or debentures
177.-(1)
Where it appears to the registrar that there is good reason to
investigate the ownership of any shares in or debentures of a company
and that
it is unnecessary to appoint an inspector for the purpose, he may require any
person whom he has reasonable cause to believe-
(a) to be or to have been interested in those shares or debentures; or
(b) to act or to have acted in relation to those shares or debentures as the barrister and solicitor or agent of someone interested therein,
to give him any information which he has or can reasonably be expected to obtain as to the present and past interests in those shares or debentures and the names and addresses of the persons interested and of any persons who act or have acted on their behalf in relation to the shares or debentures.
(2) For the purposes of this
section, a person shall be deemed to have an interest in a share or debenture,
if he has any right to
acquire or dispose of the share or debenture or any
interest therein or to vote in respect thereof, or if his consent is necessary
for the exercise of any of the rights of other persons interested therein, or if
other persons interested therein can be required
or are accustomed to exercise
their rights in accordance with his instructions.
(3) Any person who
fails to give any information required of him under this section, or who, in
giving any such information, makes
any statement which he knows to be false in a
material particular, shall be liable to imprisonment for a term not exceeding 6
months
or to a fine not exceeding $1,000, or to both.
Power to impose restrictions on shares or debentures
178.-(1) Where,
in connection with an investigation under either section
176 or section
177, it appears to the registrar that
there is difficulty in finding out the relevant facts about any shares (whether
issued or to be
issued), and that the difficulty is due wholly or mainly to the
unwillingness of the persons concerned or any of them to assist the
investigation as required by this Act, the registrar may, by order, direct that
the shares shall, until further order, be subject
to the restrictions imposed by
this section.
(2) So long as any shares are directed to be subject to the
restrictions imposed by this section-
(a) any transfer of those shares, or, in the case of unissued shares, any transfer of the right to be issued therewith and any issue thereof, shall be void; and
(b) no voting rights shall be exercisable in respect of those shares; and
(c) no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder thereof; and
(d) except in a liquidation, no payment shall be made of any sums due from the company on those shares, whether in respect of capital or otherwise.
(3) Where the registrar makes an
order directing that shares shall be subject to the said restrictions, or
refuses to make an order
directing that shares shall cease to be subject
thereto, any person aggrieved thereby may apply to the court, and the court may,
if it sees fit, direct that the shares shall cease to be subject to the said
restrictions.
(4) Any order (whether of the registrar or of the court)
directing that shares shall cease to be subject to the said restrictions
which
is expressed to be made with a view to permitting a transfer of those shares may
continue the restrictions mentioned in paragraphs
(c) and
(d) of subsection (2), either in whole
or in part, so far as they relate to any right acquired or offer made before the
transfer.
(5) Any person who-
(a) exercises or purports to exercise any right to dispose of any shares which, to his knowledge, are, for the time being, subject to the said restrictions or of any right to be issued with any such shares; or
(b) votes in respect of any such shares, whether as holder or proxy, or appoints a proxy to vote in respect thereof; or
(c) being the holder of any such shares, fails to notify of their being subject to the said restrictions any person whom he does not know to be aware of that fact but does know to be entitled, apart from the said restrictions, to vote in respect of those shares whether as holder or proxy,
shall be liable to imprisonment for a
term not exceeding 6 months or to a fine not exceeding $1,000, or to
both.
(6) Where shares in any company are issued in contravention of the
said restrictions, the company and every officer of the company
who is in
default shall be liable to a fine not exceeding $1,000.
(7) A prosecution
shall not be instituted under this section, except by or with the consent of the
Director of Public Prosecutions.
(8) This section shall apply in relation
to debentures as it applies in relation to shares.
Saving for barristers and solicitors and bankers
179. Nothing in
the foregoing provisions of this Part shall require disclosure to the court or
to the registrar or to an inspector appointed
by the court or the
registrar-
(a) by a barrister and solicitor of any privileged communication made to him in that capacity, except as respects the name and address of his client; or
(b) by a company's bankers as such of any information as to the affairs of any of their customers other than the company.
Division 11-Directors and Other Officers
Directors
180.-(1)
Every company other than a private company shall have at least 3 directors and
every private company shall have at least 2 directors.
(2) A person is incapable of being appointed as a director
of a company, unless he is a natural person.
(3) In the case of a company
other than a private company, at least 2 directors shall be persons who
ordinarily reside in Fiji and,
in the case of a private company, at, least 1
director shall be a person who ordinarily so resides.
(4) This section
applies to a company whether registered before or after 1 January
1984.
(5) If default is made in complying with this section, the company
and every officer of the company who is in default shall be liable
to a fine not
exceeding $500.
Secretary
181.-(1) Every
company shall have at least 1 secretary.
(2) A secretary of a company
shall be appointed by the directors.
(3) A person is not capable of being
a secretary of a company, unless the person is a natural person who has attained
the age of 21
years.
(4) The secretary, or 1 of the secretaries, shall be
a person who ordinarily resides in Fiji.
(5) Anything required or
authorised to be done by or to a secretary may, if the office is vacant, or
there is, for any other reason,
no secretary capable of acting, be done by or to
any assistant or deputy secretary or, if there is no assistant or deputy
secretary
capable of acting, by or to any officer of the company authorised
generally or specially in that behalf by a resolution of the board
of
directors.
(6) A provision of this Act or of the memorandum or articles
requiring or authorising any act or thing to be done by or to a director
and a
secretary is not satisfied by its being done by or to the same person acting
both as director and as, or in place of, a secretary.
(7) This section
applies to a company whether registered before or after 1 January
1984.
(8) If default is made in complying with this section, the company
and every officer of the company who is in default shall be liable
to a fine not
exceeding $400.
Validity of acts of directors
182. The acts of
a director or manager shall be valid, notwithstanding any defect that may
afterwards be discovered in his appointment
or qualification.
Restrictions on appointment or advertisement of director
183.-(1) A person
shall not be capable of being appointed director of a company by the articles,
and shall not be named as a director
or proposed director of a company in a
prospectus issued by or on behalf of the company, or as proposed director of an
intended company
in a prospectus issued in relation to that intended company, or
in a statement in lieu of prospectus delivered to the registrar by
or on behalf
of a company, unless, before the registration of the articles or the publication
of the prospectus or the delivery of
the statement in lieu of prospectus, as the
case may be, he has, by himself or by his agent authorized in writing-
(a) signed and delivered to the registrar, for registration, a consent, in writing, to act as such director; and
(b) either-
(i) signed the memorandum for a number of shares not less than his qualification, if any; or
(ii) taken from the company and paid or agreed to pay for his qualification shares, if any; or
(iii) signed and delivered to the registrar, for registration, an undertaking, in writing, to take from the company and pay for his qualification shares, if any; or
(iv) made and delivered to the registrar, for registration, a statutory declaration to the effect that a number of shares, not less than his qualification, if any, are registered in his name.
(2) Where a person has signed and delivered as
aforesaid an undertaking to take and pay for his qualification shares, he shall,
as
regards those shares, be in the same position as if he had signed the
memorandum for that number of shares.
(3) References in this section to
the share qualification of a director or proposed director shall be construed as
including only
a share qualification required on appointment or within a period
determined by reference to the time of appointment and references
therein to
qualification shares shall be construed accordingly.
(4) On the
application for registration of the memorandum and articles of a company, the
applicant shall deliver to the registrar
a list of the persons who have
consented to be directors of the company, and, if this list contains the name of
any person who has
not so consented, the applicant shall be liable to a fine not
exceeding $100.
(5) This section shall not apply to-
(a) a company not having a share capital; or
(b) a private company; or
(c) a company which was a private company before becoming a public company; or
(d) a prospectus issued by or on behalf of a company after the expiration of 1 year from the date on which the company was entitled to commence business
Share qualifications of directors
184.-(1) Without
prejudice to the restrictions imposed by section
183, it shall be the duty of every
director who is, by the articles of the company, required to hold a specified
share qualification,
and who is not already qualified, to obtain his
qualification within 2 months after his appointment, or such shorter time as may
be fixed by the articles.
(2) For the purpose of any provision in the
articles requiring a director or manager to hold a specified share
qualification, the
bearer of a share warrant shall not be deemed to be the
holder of the shares specified in the warrant.
(3) The office of director
of a company shall be vacated, if the director does not, within 2 months from
the date of his appointment,
or within such shorter time as may be fixed by the
articles, obtain his qualification, or if, after the expiration of the said
period
or shorter time, he ceases at any time to hold his
qualification.
(4) A person vacating office under this section shall be
incapable of being reappointed director of the company until he has obtained
his
qualification.
(5) If, after the expiration of the said period or shorter
time, any unqualified person acts as a director of the company, he shall
be
liable to a fine not exceeding $10 for every day between the expiration of the
said period or shorter time or the day on which
he ceased to be qualified, as
the case may be, and the last day on which it is proved that ire acted as a
director.
Appointment of directors to be voted on individually
185.-(1) At a
general meeting of a company other than a private company, a motion for the
appointment of 2 or more persons as directors
of the company by a single
resolution shall not be made, unless a resolution that it shall be so made has
first been agreed to by
the meeting without any vote being given against
it.
(2) A resolution moved in contravention of this section shall be
void, whether or not its being so moved was objected to at the
time:
Provided that-
(a) this subsection shall not be taken as excluding the operation of section 182; and
(b) where a resolution so moved is passed, no provision for the automatic reappointment of retiring directors in default of another appointment shall apply.
(3) For the purposes of this section, a motion
for approving a person's appointment or for nominating a person for appointment
shall
be treated as a motion for his appointment.
(4) Nothing in this
section shall apply to a resolution altering the company's articles.
Removal of directors
186.-(1)
A company may, by ordinary resolution, remove a director before the expiration
of his period of office, notwithstanding anything
in its articles or in any
agreement between it and him:
Provided that this subsection shall not, in
the case of a private company, authorize the removal of a director holding
office for
life immediately before 1 January 1984, whether or not subject to
retirement under an age-limit by virtue of the articles or otherwise.
(2)
Special notice shall be required of any resolution to remove a director under
this section or to appoint somebody instead of a
director so removed at the
meeting at which he is removed, and, on receipt of notice of an intended
resolution to remove a director
under this section, the company shall forthwith
send a copy thereof to the director concerned, and the director (whether or not
he
is a member of the company) shall be entitled to be heard on the resolution
at the meeting.
(3) Where notice is given of an intended resolution to
remove a director under this section and the director concerned makes, with
respect thereto, representations, in writing, to the company (not exceeding a
reasonable length) and requests their notification
to members of the company,
the company shall, unless the representations are received by it too late for it
to do so-
(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made; and
(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company),
and, if a copy of the representations is not sent as aforesaid because received too late or because of the company's default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:
Provided
that copies of the representations need not be sent out and the representations
need not be read out at the meeting if, on
the application either of the company
or of any other person who claims to be aggrieved, the court is satisfied that
the rights conferred
by this section are being abused to secure needless
publicity for defamatory matter; and the court may order the company's costs
on
an application under this section to be paid in whole or in part by the
director, notwithstanding that he is not a party to the
application.
(4) A vacancy created by the removal of a director under this section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy.
(5) A person appointed director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the person in whose place he is appointed was last appointed a director.
(6) Nothing in this section shall be taken as depriving a person removed thereunder of compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director or as derogating from any power to remove a director which may exist apart from this section.
Minimum age for appointment of directors,
and retirement
of directors over age limit
187.-(1) Subject to the provisions of this section, no
person shall be capable of being appointed a director of a company which is
subject to this section, if, at the time of his appointment, he has not attained
the age of 21, or he has attained the age of 75.
(2) Subject as
aforesaid, a director of a company which is subject to this section shall vacate
his office at the conclusion of the
annual general meeting commencing next after
he attains the age of 75:
Provided that acts done by a person as director
shall be valid, notwithstanding that it is afterwards discovered that his
appointment
had terminated by virtue of this subsection.
(3) Where a person retires by virtue of subsection (2), no provision for the automatic reappointment of retiring directors in default of another appointment shall apply; and if, at the meeting at which he retires, the vacancy is not filled, it may be filled as a casual vacancy.
(4) Subsection (2) shall not apply to a director who was in office immediately before 1 January 1984 so as to terminate his then appointment before the conclusion of the third annual general meeting commencing on or after that date, but shall apply so as to terminate it at the conclusion of that meeting, if he has attained the age of 75 before the commencement of the meeting.
(5) Nothing in the foregoing provisions of this section shall prevent the appointment of a director at any age, or require a director to retire at any time, if his appointment is or was made or approved by the company in general meeting, but special notice shall be required of any resolution appointing or approving the appointment of a director for it to have effect for the purposes of this subsection and the notice thereof given to the company and by the company to its members must state or must have stated, the age of the person to whom it relates.
(6) A person reappointed director on retiring by virtue of subsection (2), or appointed in place of a director so retiring, shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the retiring director was last appointed before his retirement; but, except as provided by this subsection, the retirement of a director out of turn by virtue of subsection (2) shall be disregarded in determining when any other directors are to retire.
(7) In the case of a company first registered on or after 1 January 1984, this section shall have effect subject to the provisions of the company's articles; and, in the case of a company first registered before that date-
(a) this section shall have effect subject to any alterations of the company's articles made on or after that date; and
(b) if, immediately before that date, the company's articles contained provision for retirement of directors under an age limit or for preventing or restricting appointments of directors over a given age, this section shall not apply to directors to whom that provision applies.
(8) A company shall be subject to this section, if it is not a private company or if, being a private company, it is the subsidiary of a body corporate incorporated in Fiji which is not a private company; and, for the purposes of any other section of this Act which refers to a company subject to this section, a company shall be deemed to be subject to this section, notwithstanding that all or any of the provisions thereof are excluded or modified by the company's articles.
Duty on directors to disclose age to company
188.-(1) Any
person who is appointed or, to his knowledge, proposed to be appointed director
of a company, subject to section 187,
at a time before he has attained the age of 21 or after he has attained any
retiring age applicable to him as director either under
this Act or under the
company's articles, shall give notice of his age to the company:
Provided
that this subsection shall not apply in relation to a person's reappointment on
the termination of a previous appointment
as director of the company.
(2) Any person who-
(a) fails to give notice of his age as required by this section; or
(b) acts as, director under any appointment which is invalid or has terminated by reason of his age,
shall be liable to a
fine not exceeding $10 for every day during which the failure continues or
during which he continues to act as
aforesaid.
(3) for the purposes of
subsection (2), a person who has acted as director under an appointment which is
invalid or has terminated
shall be deemed to have continued so to act throughout
the period from the invalid appointment or the date on which the appointment
terminated, as the case may be, until the last day on which he is proved to have
acted thereunder.
Provisions as to undischarged bankrupts acting as directors
189.-(1) If any
person who has been declared bankrupt or insolvent by a competent court in Fiji
or elsewhere and has not received his
discharge acts as director of, or directly
or indirectly takes part in or is concerned in the management of, any company,
except
with the leave of the court, he shall be liable to imprisonment for a
term not exceeding 2 years or to a fine not exceeding $1,000,
or to
both.
(2) The leave of the court, for the purposes of this section, shall
not be given, unless notice of intention to apply therefor has
been served on
the official receiver, and it shall be the duty of the official receiver, if he
is of opinion that it is contrary
to the public interest that any such
application should be granted, to attend on the hearing of and oppose the
granting of the application.
(3) In this section, "company" includes an
unregistered company and a company incorporated outside Fiji which has an
established place
of business within Fiji, and "official receiver" means the
official receiver in bankruptcy.
Power to restrain fraudulent persons from managing companies
190.-(1)
Where-
(a) a person is convicted of any offence in connection with the promotion, formation or management of a company; or
(b) in the course of winding-up a company, it appears that a person-
(i) has been guilty of any offence for which he is liable (whether he has been convicted or not) under section 324; or
(ii) has otherwise been guilty, while an officer of the company, of any fraud in relation to the company or of any breach of his duty to the company,
the court may make an order that that person shall not, without the leave of the court, be a director of or in any way, whether directly or indirectly, be concerned or take part in the management of the company for such period, not exceeding 5 years, as may be specified in the order.
(2) In subsection (1), "the court", in
relation to the making of an order against any person by virtue of paragraph
(a) thereof, includes the court before
which he is convicted, as well as any court having jurisdiction to wind up the
company, and, in
relation to the granting of leave, means any court having
jurisdiction to wind up the company as respects which leave is
sought.
(3) A person intending to apply for the making of an order under
this section by the court having jurisdiction to wind up a company
shall give
not less than 10 days' notice of his intention to the person against whom the
order is sought and, on the hearing of the
application, the last mentioned
person may appear and himself give evidence or call witnesses.
(4) An
application for the making of an order under this section by the court having
jurisdiction to wind up a company may be made
by the official receiver, or by
the liquidator of the company or by a person who is or has been a member or
creditor of the company;
and, on the hearing of any application for an order
under this section by the official receiver or the liquidator, or of any
application
for leave under this section by a person against whom an order has
been made on the application of the official receiver or the liquidator,
the
official receiver or liquidator shall appear and call the attention of the court
to any matters which seem to him to be relevant,
and may himself give evidence
or call witnesses.
(5) An order may be made by virtue of subparagraph
(ii) of paragraph (b) of subsection
(1), notwithstanding that the person concerned may be criminally liable in
respect of the matters on the ground of
which the order is to be made and, for
the purposes of that subparagraph (ii), "officer" includes any person in
accordance with whose
directions or instructions the directors of the company
have been accustomed to act.
(6) If any person acts in contravention of
an order made under this section, he shall, in respect of each offence, be
liable to imprisonment
for a term not exceeding 2 years or to a fine not
exceeding $1,000, or to both.
Prohibition of tax-free payments to directors
191.-(1) It shall
not be lawful for a company to pay a director remuneration (whether as a
director or otherwise) free of income tax
or any other tax on income, or
otherwise calculated by reference to or varying with the amount of his income
tax or any other tax
on income, or to or with the rate of income tax, except
under a contract which was in force 2 years before the appointed day and
provides expressly, and not by reference to the articles, for payment of
remuneration as aforesaid.
(2) Any provision contained in a company's
articles, or in any contract other than such a contract as aforesaid, or in any
resolution
of a company or a company's directors, for payment to a director of
remuneration as aforesaid shall have effect as if it provided
for payment, as a
gross sum subject to income tax and any other tax or income, of the net sum for
which it actually provides.
(3) This section shall not apply to
remuneration due before 1 January 1984 or in respect of a period before the
appointed day.
Prohibition of loans to directors
192.-(1) It shall
not be lawful for a company to make a loan to any person who is its director or
a director of its holding company,
or to enter into any guarantee or provide any
security in connection with a loan made to such a person as aforesaid by any
other
person:
Provided that nothing in this section shall apply either-
(i) to anything done by a company which is for the time a private company; or
(ii) subject to subsection (2), to anything done to provide a person with funds to meet expenditure incurred or to be incurred by him for the purposes of the company or for the purpose of enabling him properly to perform his duties as an officer of the company; or
(iii) in the case of a company whose ordinary business includes the lending of money or the giving of guarantees in connection with loans made by other persons, to anything done by the company in the ordinary course of that business; or
(iv) to any loan to a director or guarantee or security in connection with such loan, made, entered into or provided under the repealed Acts.
(2) Paragraph (ii) of the proviso to
subsection (1) shall not authorize the making of any loan, or the entering into
any guarantee,
or the provision of any security, except either-
(a) with the prior approval of the company given at a general meeting at which the purposes of the expenditure and the amount of the loan or the extent of the guarantee or security, as the case may be, are disclosed; or
(b) on condition that, if the approval of the company is not given as aforesaid at or before the next following annual general meeting, the loan shall be repaid or the liability under the guarantee or security shall be discharged, as the case may be, within 6 months from the conclusion of that meeting.
(3) Where the
approval of the company is not given as required by any such condition, the
directors authorizing the making of the
loan, or the entering into the
guarantee, or the provision of the security, shall be jointly and severally
liable to indemnify the
company against any loss arising therefrom.
Approval of company requisite for payment by it to director for loss of office, etc.
193.-(1) It shall
not be lawful for a company to make to any director of the company any payment
by way of compensation for loss of office,
or as consideration for or in
connection with his retirement from office, without particulars with respect to
the proposed payment
(including the amount thereof) being disclosed to members
of the company and the proposal being approved by the company in general
meeting.
(2) Where a payment which is hereby declared to be illegal is
made to a director of the company, the amount received shall be deemed
to have
been received by him in trust for the company.
Approval of company requisite for any payment, in
connection with transfer
of its property to director for loss of office,
etc.
194.-(1) It shall not be lawful, in connection with the
transfer of the whole or any part of the undertaking or property of a company,
for any payment to be made to any director of the company by way of compensation
for loss of office, or as consideration for or in
connection with his retirement
from office, unless particulars with respect to the proposed payment (including
the amount thereof)
have been disclosed to the members of the company and the
proposal approved by the company in general meeting.
(2) Where a payment
which is hereby declared to be illegal is made to a director of the company, the
amount received shall be deemed
to have been received by him in trust for the
company.
Duty of director to disclose payment for loss of office,
etc.,
made in connection with transfer of shares in company
195.-(1) Where, in connection with the transfer to any
persons of all or any of the shares in a company, being a transfer resulting
from-
(a) an offer made to the general body of shareholders;
(b) an offer made by or on behalf of some other body corporate with a view to the company becoming its subsidiary or a subsidiary of its holding company;
(c) an offer made by or on behalf of an individual with a view to his obtaining the right to exercise or control the exercise of not less than one-third of the voting power at any general meeting of the company; or
(d) any other offer which is conditional on acceptance to a given extent,
a payment is to be made to a director of the company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, it shall be the duty of that director to take all reasonable steps to secure that particulars with respect to the proposed payment (including the amount thereof) shall be included in or sent with any notice of the offer made for their shares which is given to any shareholders.
(2) If-
(a) any such director fails to take reasonable steps as aforesaid; or
(b) any person who has been properly required by any such director to include the said particulars in or send them with any such notice as aforesaid fails so to do,
he shall be liable to a fine not exceeding $50.
(3) If-
(a) the requirements of subsection (1) are not complied with in relation to any such payment as is herein mentioned; or
(b) the making of the proposed payment is not, before the transfer of any shares in pursuance of the offer, approved by a meeting summoned for the purpose of the holders of the shares to which the offer relates and of other holders of shares of the same class as any of the said shares,
any sum received by the director on account of
the payment shall be deemed to have been received by him in trust for any
persons who
have sold their shares as a result of the offer made, and the
expenses incurred by him in distributing that sum amongst those persons
shall be
borne by him and not retained out of that sum.
(4) Where the shareholders
referred to in paragraph (b) of
subsection (3) are not all the members of the company and no provision is made
by the articles for summoning or regulating such
a meeting as is mentioned in
that paragraph, the provisions of this Act and of the company's articles
relating to general meetings
of the company shall, for that purpose, apply to
the meeting either without modifications or with such modifications as the
registrar,
on the application of any person concerned, may direct for the
purpose of adapting them to the circumstances of the meeting.
(5) If, at
a meeting summoned for the purpose of approving any payment as required by
paragraph (b) of subsection (3), a
quorum is not present and, after the meeting has been adjourned to a later date,
a quorum is again not present,
the payment shall be deemed, for the purposes of
that subsection, to have been approved.
Provisions supplementary to sections 193, 194 and 195
196.-(1) Where,
in proceedings for the recovery of any payment as having, by virtue of
subsections (1) and (2) of section 194
or subsections (1) and (3) of section
195, been received by any person in
trust, it is shown that-
(a) the payment was made in pursuance of any arrangement entered into as part of the agreement for the transfer in question, or within 1 year before or 2 years after that agreement or the offer leading thereto; and
(b) the company or any person to whom the transfer was made was privy to that arrangement,
the payment shall be deemed,
except in so far as the contrary is shown, to be one to which the subsections
apply.
(2) If, in connection with any such transfer as is mentioned in
either section 194 or section
195-
(a) the price to be paid to a director of the company whose office is to be abolished or who is to retire from office for any shares in the company held by him is in excess of the price which could, at the time, have been obtained by other holders of the like shares; or
(b) any valuable consideration is 'given to any such director, the excess or the money value of the consideration, as the case may be, shall, for the purposes of that section, be deemed to have been a payment made to him by way of compensation for loss of office or as consideration for or in connection with his retirement from office.
(3) References in sections
193, 194 and
195 to payments made to any director of
a company by way of compensation for loss of office, or as consideration for or
in connection
with his retirement from office, do not include any
bona fide payment by way of damages
for breach of contract or by way of pension in respect of past services and, for
the purposes of this subsection,
"pension" includes any superannuation
allowance, superannuation gratuity or similar payment.
(4) Nothing in
sections 194 and
195 shall be taken to prejudice the
operation of any rule of law requiring disclosure to be made with respect to any
such payments as
are therein mentioned or with respect to any other like
payments made to or to be made to the directors of a company.
Register of directors, shareholders, etc.
197.-(1) Every
company shall keep a register showing, as respects each director of the company,
the number, description and amount of
any shares in or debentures of the company
or any other body corporate, being the company's subsidiary or holding company,
or a subsidiary
of the company's holding company, which are held by or in trust
for him or of which he has any right to become the holder (whether
on payment or
not):
Provided that the register need not include shares in any body
corporate which is the wholly-owned subsidiary of another body corporate,
and,
for this purpose, a body corporate shall be deemed to be the wholly-owned
subsidiary of another if it has no members but that
other and that other's
wholly-owned subsidiaries and its or their nominees.
(2) Where any shares
or debentures fall to be or cease to be recorded in the said register in
relation to any director by reason of
a transaction entered into on or after 1
January 1984 and while he is a director, the register shall also show the date
of, and price
or other consideration for the transaction:
Provided that,
where there is an interval between the agreement for any such transaction and
the completion thereof, the date shall
be that of the agreement.
(3) The
nature and extent of a director's interest or right in or over any shares or
debentures recorded in relation to him in the
said register shall, if he so
requires, be indicated in the register.
(4) The company shall not, by
virtue of anything done for the purposes of this section, be affected with
notice of, or put upon inquiry
as to, the rights of any person in relation to
any shares or debentures.
(5) The said register shall, subject to the
provisions of this section, be kept at the company's registered office and shall
be open
to inspection during business hours (subject to such reasonable
restrictions as the company may by its articles or in general meeting
impose, so
that not less than 2 hours in each day be allowed for inspection) as
follows:-
(a) during the period beginning 14 days before the date of the company's annual general meeting and ending 3 days after the date of its conclusion, it shall be open to the inspection of any member or holder of debentures of the company; and
(b) during that or any other period, it shall be open to the inspection of any person acting on behalf of the registrar,
and, in computing the 14 days and the 3 days mentioned in this subsection, any day which is a Saturday or a Sunday or a public holiday shall be disregarded.
(6) Without prejudice to the
rights conferred by subsection (5), the registrar may, at any time, require a
copy of the said register,
or any part thereof.
(7) The said register
shall also be produced at the commencement of the company's annual general
meeting and remain open and accessible
during the continuance of the meeting to
any person attending the meeting.
(8) If default is made in complying
with subsection (7), the company and every officer of the company who is in
default shall be liable
to a fine not exceeding $100; and, if default is made in
complying with subsection (1) or subsection (2), or if any inspection required
under this section is refused of any copy required thereunder is not sent within
a reasonable time, the company and every officer
of the company who is in
default shall be liable to a fine not exceeding $1,000 and further to a default
fine of $10.
(9) In the case of any such refusal, the court may, by
order, compel an immediate inspection of the register.
(10) For the
purposes of this section-
(a) any person in accordance with whose directions or instructions the directors of a company are accustomed to act shall be deemed to be a director of the company; and
(b) a director of a company shall be deemed to hold, or to have an interest or right in or over, any shares or debentures, if a body corporate other than the company holds them or has that interest or right in or over them, and either-
(i) that body corporate or its directors are accustomed to act in accordance with his directions or instructions; or
(ii) he is entitled to exercise or control the exercise of one-third or more of the voting power at any general meeting of that body corporate.
Particulars in accounts of directors' salaries, pensions, etc.
198.-(1) In any
accounts of a company laid before it in general meeting, or in a statement
annexed thereto, there shall, subject to and
in accordance with the provisions
of this section, be shown, so far as the information is contained in the
company's books and papers
or the company has the right to obtain it from the
persons concerned-
(a) the aggregate amount of the directors' emoluments;
(b) the aggregate amount of directors' or past directors' pensions; and
(c) the aggregate amount of any compensation to directors or past directors in respect of loss of office.
(2) The amount to be shown under
paragraph (a) of subsection
(1)-
(a) shall include any emoluments paid to or receivable by any person in respect of his services as director of the company or in respect of his services as director of the company, as director of any subsidiary thereof or other wise in connection with the management of the affairs of the company or any subsidiary thereof; and
(b) shall distinguish between emoluments in respect of services as director, whether of the company or its subsidiary, and other emoluments,
and, for the
purposes of this section, "emoluments", in relation to a director, includes fees
and percentages, any sums paid by way
of expenses allowance in so far as those
sums are charged to income tax, any contribution paid in respect of him under
any pension
scheme and the estimated money value of any other benefits received
by him otherwise than in cash.
(3) The amount to be shown under paragraph
(b) of subsection (1)-
(a) shall not include any pension paid or receivable under a pension scheme is such that the contributions thereunder are substantially adequate for the maintenance of the scheme , save, as aforesaid , shall include any pension paid or receivable in respect of any such other services of a director or past director
(b) shall distinguish between pensions in respect of services as director, whether of the company or its subsidiary, and other pensions,
and, for the purposes of this section, "pension"
includes any superannuation allowance, superannuation gratuity or similar
payment,
and "pension scheme" means a scheme for the provision of pensions in
respect of services as director or otherwise which is maintained
in whole or in
part by means of contributions, and "contribution", in relation to a pension
scheme, means any payment (including
an insurance premium) paid for the purposes
of the scheme by or in respect of persons rendering services in respect of which
pensions
will or may become payable under the scheme, except that it does not
include any payment in respect of 2 or more persons, if the
amount paid in
respect of each of them is not ascertainable.
(4) The amount to be shown
under paragraph (c) of subsection
(1)-
(a) shall include any sums paid to or receivable by a director or past director by way of compensation for the loss of office as director of the company or for the loss, while director of the company or on or in connection with his ceasing to be a director of the company, of any other office in connection with the management of the company's affairs or of any office as director or otherwise in connection with the management of the affairs of any subsidiary thereof; and
(b) shall distinguish between compensation in respect of the office of director, whether of the company or its subsidiary, and compensation in respect of other offices,
and, for the purposes of this section, references to compensation for loss of office shall include sums paid as consideration for or in connection with a person's retirement from office.
(5) The
amounts to be shown under each paragraph of subsection (1)-
(a) shall include all relevant sums paid by or receivable from-
(i) the company; and
(ii) the company's subsidiaries; and
(iii) any other person,
except sums to be accounted for to the company or any of its subsidiaries or, by virtue of section 195, to past or present members of the company or any of its subsidiaries or any class of those members; and
(b) shall distinguish, in the case of the amount to be shown under paragraph (c) of subsection (1), between the sums respectively paid by or receivable from the company, the company's subsidiaries and persons other than the company and its subsidiaries.
(6) The amounts to be shown under this section
for any financial year shall be the sums receivable in respect of that year,
whenever
paid, or, in the case of sums not receivable in respect of a period,
the sums paid during that year, so, however, that, where-
(a) any sums are not shown in the accounts for the relevant financial year on the ground that the person receiving them is liable to account therefor as mentioned in paragraph (a) of subsection (5), but the liability is thereafter wholly or partly released or is not enforced within a period of 2 years; or
(b) any sums paid by way of expenses allowance are charged to income tax after the end of the relevant financial year,
those sums shall, to the extent to which the liability is released or not enforced or they are charged as aforesaid, as the case may be, be shown in the first accounts in which it is practicable to show them, or in a statement annexed thereto, and shall be distinguished from the amounts to be shown therein apart from this provision.
(7) Where it is
necessary so to do for the purpose of making any distinction required by this
section in any amount to be shown thereunder,
the directors may apportion any
payments between the matters in respect of which they have been paid or are
receivable in such manner
as they think appropriate.
(8) If, in the case
of any accounts, the requirements of this section are not complied with, it
shall be the duty of any auditors
of the company by whom the accounts are
examined to include in the report thereon, so far as they are reasonably able to
do so, a
statement giving the required particulars.
(9) In this section,
any reference to a company's subsidiary-
(a) in relation to a person who is or was, while a director of the company, a director also, by virtue of the company's nomination, direct or indirect, of any other body corporate, shall, subject to paragraph (b), include that body corporate, whether or not it is or was in fact the company's subsidiary; and
(b) shall, for the purposes of subsections (2) and (3), be taken as referring to a subsidiary at the time the services were rendered, and, for the purposes of subsection (4), be taken as referring to a subsidiary immediately before the loss of office as director of the company.
Particulars in accounts of loans to officers, etc.
199.-(1) The
accounts which, in pursuance of this Act, are to be laid before every company in
general meeting shall, subject to the provisions
of this section, contain
particulars showing-
(a) the amount of any loans made during the company's financial year to-
(i) any officer of the company; or
(ii) any person who, after the making of the loan, became, during that year, an officer of the company, by the company or a subsidiary thereof or by any other person under a guarantee from or on a security provided by the company or a subsidiary thereof (including any such loans which were repaid during that year); and
(b) the amount of any loans made in manner aforesaid to any such officer or person as aforesaid at any time before the company's financial year and outstanding at the expiration thereof.
(2)
Subsection (1) shall not require the inclusion in accounts of particulars
of-
(a) a loan made in the ordinary course of its business by the company or a subsidiary thereof, where the ordinary business of the company or, as the case may be, the subsidiary, includes the lending of money; or
(b) a loan made by the company or a subsidiary thereof to an employee of the company or subsidiary, as the case may be, if the loan does not exceed $4,000 and is certified by the directors of the company or subsidiary, as the case may be, to have been made in accordance with any practice adopted or about to be adopted by the company or subsidiary with respect to loans to its employees,
not being, in either case, a loan made by the company under a guarantee from or on a security provided by a subsidiary thereof or a loan made by a subsidiary of the company under a guarantee from or on a security provided by the company or any other subsidiary thereof.
(3) If, in the
case of any such accounts as aforesaid, the requirements of this section are not
complied with, it shall be the duty
of any auditors of the company by whom the
accounts are examined to include in the report on the balance sheet of the
company, so
far as they are reasonably able to do so, a statement giving the
required particulars.
(4) References in this section to a subsidiary
shall be taken as referring to a subsidiary at the end of the company's
financial year
(whether or not a subsidiary at the date of the loan).
General duty to make disclosure for purposes of sections 197, 198 and 199
200.-(1) It shall
be the duty of any director of a company to give notice to the company of such
matters relating to himself as may be
necessary for the purposes of sections
197 and
198, and of section
199 except so far as it relates to
loans made, by the company or by any other person under a guarantee from or on a
security provided
by the company, to an officer thereof.
(2) Any such
notice given for the purposes of section
197 shall be in writing and, if it is
not given at a meeting of the directors, the director giving it shall take
reasonable steps to
secure that it is brought up and read at the next meeting of
directors after it is given.
(3) Subsection (1) shall apply-
(a) for the purposes of section 199, in relation to officers other than directors; and
(b) for the purposes of sections 198 and 199, in relation to persons who are or have, at any time during the preceding 5 years, been officers,
as it applies in relation to directors.
(4)
Any person who makes default in complying with the foregoing provisions of this
section shall be liable to a fine not exceeding
$100.
Disclosure of interests in contracts, property, offices, etc.
201.-(1) Subject
to this section, a director of a company who is in any way, whether directly or
indirectly, interested in a contract
or proposed contract with the company
shall, as soon as practicable after the relevant facts have come to his
knowledge, declare
the nature of his interest at a meeting of the directors of
the company.
(2) The requirements of subsection (1) do not apply in any
case where the interest of a director of a company consists only of being
a
member or creditor of a corporation that is interested in a contract or proposed
contract with the first-mentioned company, if
the interest of the director may
properly be regarded as not being a material interest.
(3) A director of
a company shall not be taken to be interested or to have been, at any time,
interested in any contract or proposed
contract by reason only-
(a) in a case where the contract or proposed contract relates to any loan to the company-that he has guaranteed or joined in guaranteeing the repayment of the loan or any part of the loan; or
(b) in a case where the contract or proposed contract has been or will be made with or for the benefit of or on behalf of a corporation that is a subsidiary or the holding company or a subsidiary of the holding company of the company-that he is a director of that corporation,
and this subsection has effect not only for the purposes of this Act but also for the purposes of any other law, but does not affect the operation of any provision in the articles of the company.
(4)
For the purposes of subsection (1), a general notice given to the directors of a
company by a director to the effect that he is
an officer or member of a
specified corporation or a member of a specified firm and is to be regarded as
interested in any contract
that may, after the date of the notice, be made with
that corporation or firm shall be deemed to be a sufficient declaration of
interest
in relation to any contract so made or proposed to be made, if-
(a) the notice states the nature and extent of the interest of the director in the corporation or firm;
(b) when the question of confirming or entering into the contract is first taken into consideration, the extent of his interest in the corporation or firm is not greater than is stated in the notice; and
(c) the notice is given at a meeting of the directors or the director takes reasonable steps to ensure that it is brought up and read at the next meeting of the directors after it is given.
(5) A director of a company who holds
any office or possesses any property whereby, whether directly or indirectly,
duties or interests
might be created in conflict with his duties or interests as
director shall, in accordance with subsection (6), declare at a meeting
of the
directors of the company the fact and the nature, character and extent of the
conflict.
(6) The declaration shall be made at the first meeting of the
directors held-
(a) after he becomes a director; or
(b) if already a director, after he commenced to hold the office or to possess the property,
as the case requires.
(7)
A secretary of a company shall record every declaration under this section in
the minutes of the meeting at which it was made.
(8) Except as provided
in subsection (3), this section is in addition to, and not in derogation of, the
operation of any rule of law
or any provision in the articles restricting a
director from having any interest in contracts with the company or from holding
offices
or possessing, properties involving duties or interests in conflict with
his duties or interests as a director.
(9) Any director who fails to
comply with the provisions with this section shall be liable to a fine not
exceeding $1,000.
Register of directors and secretaries
202.-(1) Every
company shall keep at its registered office a register of its directors and
secretaries.
(2) The register shall specify, with respect to each
director, his present forename and surname, any former forename or surname, his
postal address, his nationality, his business occupation, if any, particulars of
all other directorships held by him and, in the
case of a company subject to
section 187, the date of his
birth:
Provided that it shall not be necessary for the register to
contain particulars of directorships held by a director in companies of
which
the company is the wholly-owned subsidiary, or which are the wholly-owned
subsidiaries either of the company or of another
company of which the company is
the wholly-owned subsidiary; and, for the purposes of this proviso-
(i) "company" includes any body corporate incorporated in Fiji; and
(ii) a body corporate shall be deemed to be the wholly-owned subsidiary of another if it has no members except that other and that other's wholly-owned subsidiaries and its or their nominees.
(3)
The register shall specify, with respect to each secretary, his full name and
address and other occupation, if any.
(4) The company shall, within the
periods respectively mentioned in subsection (5), deliver to the registrar, for
registration a return
in the prescribed form containing the particulars
specified in the said register and a notification in the prescribed form of any
change among its directors or in its secretary or in any of the particulars
contained in the register, specifying the date of the
change.
(5) The
periods referred to in subsection (4) are the following, namely:-
(a) the periods within which the said return is to be sent shall be a period of 14 days from the appointment of the first directors of the company; and
(b) the period within which the said notification of a change is to be sent shall be 14 days from the happening thereof:
Provided that, in the case of a
return containing particulars with respect to any person who is the company's
secretary on 1 January
1984, the period shall be 14 days from that
date.
(6) The register to be kept under this section shall, during
business hours (subject to such reasonable restrictions as the company
may by
its articles or in general meeting impose, so that not less than 2 hours in each
day be allowed for inspection), be open to
the inspection of any member of the
company without charge and of any other person on payment of 50 cents, or such
less sum as the
company may specify, for each inspection.
(7) If any
inspection required under this section is refused or if default is made in
complying with subsection (1), subsection (2),
subsection (3) or subsection (4),
the company and every officer of the company who is in default shall be liable
to a default fine.
(8) In the case of any such refusal, the court may, by
order, compel an immediate inspection of the register.
Interpretation of section 202
203. For the
purposes of section 202-
(a) a person in accordance with whose directions or instructions the directors of a company are accustomed to act shall be deemed to be a director and officer of the company;
(b) in the case of a peer or a person usually known by a title different from his surname, "surname" means that title;
(c) references to a former forename or surname do not include-
(i) in the case of a peer or a person usually known by a British title different from his surname, the name by which he was known previous to the adoption of or succession to the title;
(ii) in the case of any person, a former forename or surname, where that forename or surname was changed or disused before the person bearing the name attained the age of 18 years or has been changed or disused for a period of not less than 20 years; or
(iii) in the case of a married woman, the name or surname by which she was known previous to the marriage.
Limited company may have directors with unlimited liability
204.-(1) In a
limited company, the liability of the directors or managers, or of the managing
director, may, if so provided by the memorandum,
be unlimited.
(2) In a
limited company in which the liability of a director or manager is unlimited,
the directors and any managers of the company
and the member who proposes a
person for election or appointment to the office of director or manager, shall
add to that proposal
a statement that the liability of the person holding that
office will be unlimited and, before the person accepts the office or acts
therein, notice, in writing, that his liability will be unlimited shall be given
to him by the following or 1 of the following persons,
namely the promoters of
the company, the directors of the company, any managers of the company and a
secretary of the company.
(3) If any director, manager or proposer makes
default in adding such a statement, or if any promoter, director, manager or
secretary
makes default in giving such a notice, he shall be liable to a fine
not exceeding $200, and shall also be liable for any damage which
the person so
elected or appointed may sustain from the default, but the liability of the
person elected or appointed shall not be
affected by the default.
Special resolution of limited company making liability of directors unlimited
205.-(1) A
limited company, if so authorized by its articles, may, by special resolution,
alter its memorandum so as to render unlimited
the liability of its directors,
managers or of any managing director.
(2) Upon the passing of any such
special resolution the provisions thereof shall be as valid as if they had been
originally contained
in the memorandum.
Provisions as to assignment of office by directors
206. If, in the
case of any company, provision is made by the articles or by any agreement
entered into between any person and the company
for empowering a director or
manager of the company to assign his office as such to another person, any
assignment of office made
in pursuance of the said provision shall,
notwithstanding anything to the contrary contained in the said provision, be of
no effect
unless and until it is approved by a special resolution of the
company.
Division 12-Avoidance of Provisions in Articles or Contracts Relieving Officers from Liability
Provisions as to liability of officers and auditors
207. Subject as
hereinafter provided, any provision, whether contained in the articles of a
company or in any contract with a company
or otherwise, for exempting any
officer of the company or any person (whether an officer of the company or not)
employed by the company
as auditor from, or indemnifying him against, any
liability which, by virtue of any rule of law, would otherwise attach to him in
respect of any negligence, default, breach of duty or breach of trust of which
he may be guilty in relation to the company, shall
be void:
Provided
that-
(i) nothing in this section shall operate to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force; and
(ii) notwithstanding anything in this section, a company may, in pursuance of any such provision as aforesaid, indemnify any such officer or auditor against any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or; the proceedings against him are discontinued or in connection with any application under section 403 in which relief is granted to him by the court.
Division 13-Arrangements and Reconstructions
Power to compromise with creditors and members
208.-(1) Where a
compromise or arrangement is proposed between a company and its creditors or any
class of them or between the company
and its members or any class of them, the
court may, on the application of the company or of any creditor or member of the
company,
or, in the case of a company being wound up, of the liquidator, order a
meeting of the creditors or class of creditors, or of the
members of the company
or class of members, as the case may be, to be summoned in such manner as the
court directs.
(2) If a majority in number representing three-fourths in
value of the creditors or class of creditors or members or class of members,
as
the case may be, present and voting either in person or by proxy at the meeting,
agree to any compromise or arrangement, the compromise
or arrangement shall, if
sanctioned by the court, be binding on all the creditors or the class of
creditors, or on the members or
class of members, as the case may be, and also
on the company or, in the case of a company in the course of being wound up, on
the
liquidator and contributories of the company.
(3) An order made under
subsection (2) shall have no effect until a certified copy of the order has been
delivered to the registrar
for registration, and a copy of every such order
shall be annexed to every copy of the memorandum of the company issued after the
order has been made, or, in the case of a company not having a memorandum, of
every copy so issued of the instrument constituting
or defining the constitution
of the company.
(4) If a company makes default in complying with
subsection (3), the company and every officer of the company who is in default
shall
be liable to a fine not exceeding $10 for each copy in respect of which
default is made.
(5) In this section and in section
209, "company" means any company liable
to be wound up under this Act, and "arrangement" includes a reorganization of
the share capital
of the company by the consolidation of shares of different
classes or by the division of shares into shares of different classes
or by both
those methods.
Information as to compromises with creditors and members
209.-(1) Where a
meeting of creditors or any class of creditors or of members or any class of
members is summoned under section 208,
there shall-
(a) with every notice summoning the meeting which is sent to a creditor or member, be sent also a statement explaining the effect of the compromise or arrangement and, in particular, stating any material interests of the directors of the company, whether as directors or as members or as creditors of the company or otherwise, and the effect thereon of the compromise or arrangement, in so far as it is different from the effect on the like interests of other persons; and
(b) in every notice summoning the meeting which is given by advertisement, be included either such a statement as aforesaid or a notification of the place at which and the manner in which creditors or members entitled to attend the meeting may obtain copies of such a statement as aforesaid.
(2) Where the compromise or
arrangement affects the rights of debenture holders of the company, the said
statement shall give the
like explanation as respects the trustees of any deed
for securing the issue of the debentures as it is required to give as respects
the company's directors.
(3) Where a notice given by advertisement
includes a notification that copies of a statement explaining the effect of the
compromise
or arrangement proposed can be obtained by creditors or members
entitled to attend the meeting, every such creditor or member shall,
on making
application in the manner indicated by the notice, be furnished by the company,
free of charge, with a copy of the statement.
(4) Where a company makes
default in complying with any requirement of this section, the company and every
officer of the company
who is in default shall be liable to a fine not exceeding
$1,000 and, for the purpose of this subsection, any liquidator of the company
and any trustee of a deed for securing the issue of debentures of the company
shall be deemed to be an officer of the company:
Provided that a person
shall not be liable under this subsection, if that person shows that the default
was due to the refusal of
any other person, being a director or trustee for
debenture holders, to supply the necessary particulars as to his
interests.
(5) It shall be the duty of any director of the company and of
any trustee for debenture holders of the company to give notice to
the company
of such matters relating to himself as may be necessary for the purposes of this
section, and any person who makes default
in complying with this subsection
shall be liable to a fine not exceeding $100.
Provisions for facilitating reconstruction and amalgamation of companies
210.-(1) Where an
application is made to the court under section
208 for the sanctioning of a compromise
or arrangement proposed between a company and any such persons as are mentioned
in that section,
and it is shown to the court that the compromise or arrangement
has been proposed for the purposes of or in connection with a scheme
for the
reconstruction of any company or companies or the amalgamation of any 2 or more
companies, and that, under the scheme, the
whole or any part of the undertaking
or the property of any company concerned in the scheme (in this section referred
to as a "transferor
company") is to be transferred to another company (in this
section referred to as 'the "transferee company"), the court may, either
by the
order sanctioning the compromise or arrangement or by any subsequent order, make
provision for all or any of the following
matters:-
(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company;
(b) the allotting or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company, which, under the compromise or arrangement, are to be allotted or appropriated by that company to or for any person;
(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;
(d) the dissolution, without winding-up, of any transferor company;
(e) the provision to be made for any persons who, within such time and in such manner as the court directs, dissent from the compromise or arrangement;
(f) such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.
(2) Where an order under this
section provides for the transfer of property or liabilities, that property
shall, by virtue of the
order, be transferred to and vest in, and those
liabilities shall, by virtue of the order, be transferred to and become the
liabilities
of, the transferee company and, in the case of any property, if the
order so directs, freed from any charge which is, by virtue of
the compromise or
arrangement, to cease to have effect.
(3) Where an order is made under
this section, every company in relation to which the order is made shall cause a
certified copy thereof
to be delivered to the registrar, for registration within
14 days, after the making of the order, and, if default is made in complying
with this subsection, the company and every officer of the company who is in
default shall be liable to a default fine.
(4) In this section,
"property" includes property, rights and powers of every description, and
"liabilities" includes duties.
(5) Notwithstanding the provisions of
subsection (5) of section 208,
"company" in this section does not include any company other than a company
within the meaning of this Act.
Power to acquire shares of shareholders dissenting
from
scheme or contract approved by majority
211.-(1) Where a
scheme or contract involving the transfer of shares or any class of shares in a
company (in this section referred to
as the "transferor company") to another
company, whether a company within the meaning of this Act or not, (in this
section referred
to as the "transferee company") has, within 4 months after the
making of the offer in that behalf by the transferee company, been
approved by
the holders of not less than nine-tenths in value of the shares whose transfer
is involved (other than shares already
held at the date of the offer by, or by a
nominee for, the transferee company or its subsidiary), the transferee company
may, at
any time within 2 months after the expiration of the said 4 months, give
notice in the prescribed manner to any dissenting shareholder
that it desires to
acquire his shares and, when such a notice is given, the transferee company
shall, unless, on, an application
made by the dissenting shareholder within 1
month from the date on which the notice was given, the court thinks fit to order
otherwise,
be entitled and bound to acquire those shares on the terms on which,
under the scheme or contract, the shares of the approving shareholders
are to be
transferred to the transferee company:
Provided that, where shares in the
transferor company of the same class or classes as the shares whose transfer is
involved are already
held as aforesaid to a value greater than one-tenth of the
aggregate of their value and that of the shares (other than those already
held
as aforesaid) whose transfer is involved, the foregoing provisions of this
subsection shall not apply, unless-
(a) the transferee company offers the same terms to all holders of the shares (other than those already held as aforesaid) whose transfer is involved, or, where those shares include shares of different classes, of each class of them; and
(b) the holders who approve the scheme or contract, besides holding not less than nine-tenths in value of the shares (other than those already held as aforesaid) whose transfer is involved, are not less than three-fourths in number of the holders of those shares.
(2) Where, in
pursuance of any such scheme or contract as aforesaid, shares in a company are
transferred to another company or its
nominee, and those shares, together with
any other shares in the first-mentioned company held by, or by a nominee for,
the transferee
company or its subsidiary at the date of the transfer, comprise
or include nine-tenths in value of the shares in the first-mentioned
company or
of any class of those shares, then-
(a) the transferee company shall, within 1 month from the date of the transfer (unless on a previous transfer in pursuance of the scheme or contract it has already complied with this requirement), give notice of that fact in the prescribed manner to the holder of the remaining shares or of the remaining shares of that class, as the case may be, who have not assented to the scheme or contract; and
(b) any such holder may, within 3 months from the giving of the notice to him, require the transferee company to acquire the shams in question,
and, where a shareholder gives notice under paragraph (b) of this subsection with respect to any shares, the transferee company shall be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders were transferred to it, or on such other terms as may be agreed or as the court, on the application, of either the transferee company or the shareholder, thinks fit to order.
(3)
Where a notice has been given by the transferee company under subsection (1) and
the court has not, on an application made by
the dissenting shareholder, ordered
to the contrary, the transferee company shall, on the expiration of 1 month from
the date on
which the notice has been given, or, if an application to the court
by the dissenting shareholder is then pending; after that application
has been,
disposed of, transmit a copy of the notice to the transferor company, together
with an instrument of transfer executed
on behalf of the shareholder by any
person appointed by the transferee company and on its own behalf by the
transferee company, and
pay or transfer to the transferor company the amount or
other consideration representing the price payable by the transferee company
for
the shares which by, virtue of this section, that company is entitled to
acquire, and the transferor company shall thereupon
register the transferee
company as the holder of those shares:
Provided that an instrument of
transfer shall not be required for any share for which a share warrant is, for
the time being, outstanding.
(4) Any sums received by the transferor
company under this section shall be paid into a separate bank account, and any
such sums and
any other consideration so received shall be held by that company
on trust for the several persons entitled to the shares in respect
of which the
said sums or other consideration were respectively received.
(5) In this
section, "dissenting shareholder" includes a shareholder who has not assented to
the scheme or contract and any shareholder
who has failed or refused to transfer
his shares to the transferee company, in accordance with the scheme or
contract.
(6) In relation to an offer made by the transferee company to
shareholders of the transferor company before 1 January 1984, this section
shall
have effect-
(a) with the substitution, in subsection (1), for the words "the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company or its subsidiary)", of the words "the shares affected" and with the omission of the proviso to that subsection;
(b) with the omission of subsection (2); and
(c) with the omission, in subsection (3), of the words "together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company" and of the proviso to that subsection.
Division 14-Minorities
Alternative remedy to winding-up in cases of oppression
212.-(1) Any
member of a company who complains that the affairs of the company are being
conducted in a manner oppressive to some part
of the members (including
himself); or, in a case falling within subsection (2) of section
173, the Attorney-General, may make an
application to the court, by petition, for an order under this
section.
(2) If, on any such petition, the court is of opinion-
(a) that the company's affairs are being conducted as aforesaid; and
(b) that to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up;
the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the company's affairs in future, or for the purchase of the shares of any members of the company by other members of the company or by the company and, in the case of a purchase by the company, for the reduction accordingly of the company's capital, or otherwise.
(3) Where an order under this
section makes any alteration in or addition to any company's memorandum or
articles, then, notwithstanding
anything in any other provision of this Act but
subject to the provisions of the order, the company concerned shall not have
power,
without the leave of the court, to make any further alteration in or
addition to the memorandum or articles inconsistent with the
provisions of the
order; but, subject to the foregoing provisions of this subsection, the
alterations or additions made by the order
shall be of the same effect as if
duly made by resolution of the company and the provisions of this Act shall
apply to the memorandum
or articles as so altered or added to
accordingly.
(4) A certified copy of any order under this section
altering or adding to, or giving leave to alter or add to, a company's
memorandum
or articles shall, within 14 days after the making thereof, be
delivered by the company to the registrar, for registration; and,
if a company
makes default in complying with this subsection, the company and every officer
of the company who is in default shall
be liable to a default fine.
(5)
In relation to a petition under this section, section
345 shall apply as it applies in
relation to a winding-up petition.
PART VI-WINDING-UP
Division 1-Preliminary
Subdivision A-Modes of Winding-up
Modes of winding-up
213.-(1) The
winding-up of a company may be either-
(a) by the court; or
(b) voluntary; or
(c) subject to the supervision of the court.
(2) The provisions of this Act with
respect to winding-up apply, unless the contrary appears, to the winding-up of a
company in any
of those modes.
Subdivision B-Contributories
Liability as contributories of present and past members
214.-(1) In the
event of a company being wound up, every present and past member shall be liable
to contribute to the assets of the company
to an amount sufficient for payment
of its debts and liabilities, and the costs, charges and expenses of the
winding-up, and for
the adjustment of the rights of the contributories among,
themselves, subject to the provisions of subsection (2) and the following
qualifications:-
(a) a past member shall not be liable to contribute, if he has ceased to be a member for 1 year or upwards before the commencement of the winding-up;
(b) a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he ceased to be a member;
(c) a past member shall not be liable to contribute, unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act;
(d) in the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member;
(e) in the case of a company limited by guarantee, no contribution shall, subject to the provisions of subsection (3), be required from any member exceeding the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up;
(f) nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of the policy or contract;
(g) a sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise shall not be deemed to be a debt of the company payable to that member in a case of competition between himself and any other creditor not a member of the company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.
(2) In the
winding-up of a limited company, any director or manager, whether past or
present, whose liability is, under the provisions
of this Act, unlimited, shall,
in addition to his liability (if any) to contribute as an ordinary member, be
liable to make a further
contribution as if he were, at the commencement of the
winding-up, a member of an unlimited company:
Provided that-
(a) a past director or manager shall not be liable to make such further contribution, if he has ceased to hold office for a year or upwards before the commencement of the winding-up;
(b) a past director or manager shall not be liable to make such further contribution in respect of any debt or liability of the company contracted after he ceased to hold office;
(c) subject to the articles of the company, a director or manager shall not be liable to make such further contribution, unless the court deems it necessary to require that contribution in order to satisfy the debts and liabilities of the company and the costs, charges and expenses of the winding-up.
(3) In the winding-up of a company
limited by guarantee which has a share capital, every member of the company
shall be liable, in
addition to the amount undertaken to be contributed by him
to the assets of the company in the event of its being wound up, to contribute
to the extent of any sums unpaid on any shares held by him.
Definition of contributory
215. The term
"contributory" means every person liable to contribute to the assets of a
company in the event of its being wound up and,
for the purposes of all
proceedings for determining, and all proceedings prior to the final
determination of, the persons who are
to be deemed contributories, includes any
person alleged to be a contributory.
Nature of liability of contributory
216. The
liability of a contributory shall create a debt accruing due from him at the
time when his liability commenced, but payable
at the time when calls are made
for enforcing the liability.
Contributories in case of death of member
217.-(1) If a
contributory dies, either before or after he has been placed on the list of
contributories, his personal representatives
shall be liable, in the due course
of administration, to contribute to the assets of the company in discharge of
his liability and
shall be contributories accordingly.
(2) If the
personal representatives make default in paying any money ordered to be paid by
them, proceedings may be taken for administering
the estate of the deceased
contributory and for compelling payment thereout of the money due.
Contributories in case of bankruptcy of member
218. If a
contributory becomes bankrupt, either before or after he has been placed on the
list of contributories-
(a) his trustee in bankruptcy shall represent him for all the purposes of the winding-up, and shall be a contributory accordingly, and may be called on to admit to proof against the estate of the bankrupt, or otherwise to allow to be paid out of his assets, in due course of law, any money due from the bankrupt in respect of his liability to contribute to the assets of the company; and
(b) there may be proved against the estate of the bankrupt the estimated value of his liability to future calls as well as calls already made.
Division 2-Winding-up by the Court
Subdivision A-Jurisdiction
Jurisdiction to wind up companies registered in Fiji
219. The Supreme
Court shall have jurisdiction to wind up any company registered in Fiji.
Subdivision B-Cases in which Company may be Wound Up by Court
Circumstances in which company may be wound up by the court
220. A company
may be wound up by the court, if-
(a) the company has, by special resolution, resolved that the company be wound up by the court;
(b) default is made in delivering the statutory report to the registrar or in holding the statutory meeting;
(c) the company does not commence its business within a year from its incorporation or suspends its business for a whole year;
(d) the number of members is reduced, in the case of a private company, below 2, or, in the case of any other company, below 7;
(e) the company is unable to pay its debts;
(f) the court is of opinion that it is just and equitable that the company should be wound up;
(g) in the case of a company incorporated outside Fiji and carrying on business in Fiji, winding-up proceedings have been commenced in respect of it in the country or territory of its incorporation or in any other country or territory in which it has established a place of business.
Definition of inability to pay debts
221. A company
shall be deemed to be unable to pay its debts-
(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding $100 then due has served on the company, by leaving it at the registered office of the company, a demand under his hand requiring the company to pay the sum so due and the company has, for 3 weeks thereafter; neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor; or
(b) if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or
(c) if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.
Subdivision C-Petition for Winding-up and Effects Thereof
Provisions as to applications for winding-up
222.-(1) An
application to the court for the winding-up of a company shall be by petition
presented, subject to the provisions of this
section, either by the company or
by any creditor or creditors (including any contingent or prospective creditor
or creditors), contributory
or contributories, or by all or any of those
parties, together or separately:
Provided that-
(i) a contributory shall not be entitled to present a winding-up petition, unless-
(a) either the number of members is reduced, in the case of a private company, below 2, or, in the case of any other company, below 7; or
(b) the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least 6 months during the 18 months before the commencement of the winding-up, or have devolved on him through the death of a former holder; and
(ii) a winding-up petition shall not, if the ground of the petition is default in delivering the statutory report to the registrar or in holding the statutory meeting, be presented by any person except a shareholder, nor before the expiration of 14 days after the last day on which the meeting ought to have been held; and
(iii) the court shall not give a hearing to a winding-up petition presented by a contingent or prospective creditor, until such security for costs has been given as the court thinks reasonable and until a prima facie case for winding-up has been established to the satisfaction of the court; and
(iv) in a case falling within subsection (2) of section 173, a winding-up petition may be presented by the Attorney-General; and
(v) a petition for the winding-up of a company on the ground mentioned in paragraph (g) of section 220, may be presented by the official receiver, as well as by any other person authorized to do so under the provisions of this subsection, but the court shall not make a winding-up order on a petition presented by the official receiver, unless it is satisfied that the liquidator or provisional liquidator of the company in the country or territory where winding-up proceedings have been commenced in respect of it has, in the manner prescribed, required the official receiver to present the petition.
(2) Where a company is being wound
up voluntarily or subject to supervision, a winding-up petition may be presented
by the official
receiver, as well as by any other person authorized in that
behalf under the other provisions of this section, but the court shall
not make
a winding-up order on the petition, unless it is satisfied that the voluntary
winding-up or winding-up subject to supervision
cannot be continued with due
regard to the interests of the creditors or contributories.
Power of court on hearing petition
223.-(1) On
hearing a winding-up petition, the court may dismiss it, or adjourn the hearing
conditionally or unconditionally, or make
any interim order, or any other order
that it thinks fit, but the court shall not refuse to make a winding-up order on
the ground
only that the assets of the company have been mortgaged to an amount
equal to or in excess of those assets or that the company has
no
assets.
(2) Where the petition is presented by members of the company as
contributories on the ground that it is just and equitable that the
company
should be wound up, the court, if it is of opinion-
(a) that the petitioners are entitled to relief, either by winding-up the company or by some other means; and
(b) that, in the absence of any other remedy, it would be just and equitable that the company should be wound up,
shall make a winding-up order, unless it is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.
(3) Where the petition is
presented on the ground of default in delivering the statutory report to the
registrar or in holding the
statutory meeting, the court may-
(a) instead of making a winding-up order, direct that the statutory report shall be delivered or that a meeting shall be held; and
(b) order the costs to be paid by any persons who, in the opinion of the court, are responsible for the default.
Power to stay or restrain proceedings against company
224. At any time
after the presentation of a winding-up petition, and before a winding-up order
has been made, the company, or any creditor
or contributory, may-
(a) where any suit or proceeding against the company is pending in the Supreme Court or the Court of Appeal, apply to the court in which the suit or proceeding is pending for a stay of proceedings therein; and
(b) where any other suit or proceeding is pending against the company, apply to the court having jurisdiction to wind up the company to restrain further proceedings in the suit or proceeding,
and the court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms as it thinks fit.
Avoidance of dispositions of property, etc. after commencement of winding-up
225. In a
winding-up by the court, any disposition of the property of the company,
including things in action, and any transfer of shares,
or alteration in the
status of the members of the company, made after the commencement of the
winding-up, shall, unless the court
otherwise orders, be void.
Avoidance of attachments, etc.
226. Where any
company is being wound up by the court, any attachment, distress or execution
put in force against the estate or effects
of the company after the commencement
of the winding-up shall be void.
Commencement of winding-up by the court
227.-(1) Where,
before the presentation of a petition for the winding-up of a company by the
court, a resolution has been passed by the
company for voluntary winding-up, the
winding-up of the company shall be deemed to have commenced at the time of the
passing of the
resolution and, unless the court, on proof of fraud or mistake,
thinks fit otherwise to direct, all proceedings taken in the voluntary
winding-up shall be deemed to have been validly taken.
(2) In any other
case, the winding-up of a company by the court shall be deemed to commence at
the time of the presentation of the
petition for the
winding-up.
Subdivision D-Commencement of Winding-up
Subdivision E-Consequences of Winding-Up Order
Copy of order to be forwarded to registrar
228. On the
making of a winding-up order, a copy of the order shall forthwith be forwarded
by the company, or otherwise as may be prescribed,
to the registrar for
registration.
Actions stayed on winding-up order
229. When a
winding-up order has been made or an interim liquidator has been appointed under
section 236, no action or proceeding
shall be proceeded with or commenced against the company, except by leave of the
court and subject to such
terms as the court may impose.
Effect of winding-up order
230. An order for
winding-up a company shall operate in favour of all the creditors and of all the
contributories of the company as if
made on the joint petition of a creditor and
of a contributory.
Subdivision F-Official Receiver in Winding-Up
Official receiver in bankruptcy to be official receiver for winding-up purposes
231.-(1) For the
purposes of this Act, so far as it relates to the winding-up of companies by the
court, "official receiver" means the
official receiver attached to the court for
bankruptcy purposes.
(2) Any such officer shall, for the purpose of his
duties under this Act, be styled the official receiver.
Appointment of official receiver by court in certain cases
232. If, in the
case of the winding-up of any company by the court, it appears to the court
desirable; with a view to securing the more
convenient and economical conduct of
the winding-up, that some officer other than the person who would, by virtue of
section 231, be the official receiver
should be the official receiver for purposes of that winding-up, the court may
appoint that other officer
to act as official receiver in that winding-up, and
the person so appointed shall be deemed to be the official receiver in that
winding-up
for all the purposes of this Act.
Statement of company's affairs to be submitted to official receiver
233.-(1) When the
court has made a winding-up order or appointed an interim liquidator under
section 236, there shall, unless the
court think fit to order otherwise and so orders, be made out and submitted to
the official receiver a statement
as to the affairs of the company in the
prescribed form, verified by affidavit, and showing the particulars of its
assets, debts
and liabilities, the names, postal addresses and occupations of
its creditors, the securities held by them respectively, the dates
when the
securities were respectively given, and such further or other information as may
be prescribed or as the official receiver
may require.
(2) The statement
shall be submitted and verified by 1 or more of the persons who are, at the
relevant date, the directors and by
a person who is, at that date, a secretary
of the company, or by such of the persons hereinafter in this subsection
mentioned as
the official receiver, subject to the direction of the court, may
require to submit and verify the statement, that is to say, persons-
(a) who are or have been officers of the company;
(b) who have taken part in the formation of the company at any time within 1 year before the relevant date;
(c) who are in the employment of the company, or have been in the employment of the company within the said year, and are, in the opinion of the official receiver, capable of giving the information required;
(d) who are or have been, within the said year, officers of or in the employment of a company which is, or within the said year was, an officer of the company to which the statement relates;
(e) who are, at the relevant date, the receivers or managers of the whole or substantially the whole of the company's property.
(3) The statement shall be submitted
within 14 days from the relevant date or within such extended time as the
official receiver or
the court may, for special reasons, appoint.
(4) Any
person making or concurring in making the statement and affidavit required by
this section may be allowed and, if so allowed,
shall be paid by the official
receiver or provisional liquidator, as the case may be, out of the assets of the
company such costs
and expenses incurred in and about the preparation and making
of the statement and affidavit as the official receiver may consider
reasonable,
subject to an appeal to the court.
(5) If any person, without reasonable
excuse, makes default in complying with the requirements of this section, he
shall be liable
to a fine not exceeding $20 for every day during which the
default continues.
(6) Any person stating himself, in writing, to be a
creditor or contributory of the company shall be entitled, by himself or by his
agent, at all reasonable times, on payment of the prescribed fee, to inspect the
statement submitted in pursuance of this section,
and to a copy thereof or
extract therefrom.
(7) Any person untruthfully so stating himself to be a
creditor or contributory shall be liable to fine not exceeding $40.
(8)
In this section, "the relevant date" means, in a case where an interim
liquidator is appointed, the date of his appointment and,
in a case where no
such appointment is made, the date of the winding-up order.
Report by official receiver
234.-(1) In a
case where a winding-up order is made, the official receiver shall, as soon as
practicable after receipt of the statement
to be submitted under section
233, or, in a case where the court
orders that no statement shall be submitted, as soon as practicable after the
date of the order, submit
a preliminary report to the court-
(a) as to the amount of capital issued, subscribed and paid up, and the estimated amount of assets and liabilities; and
(b) if the company has failed, as to the causes of the failure; and
(c) whether, in his opinion, further inquiry is desirable as to any matter relating to the promotion, formation or failure of the company or the conduct of the business thereof.
(2) The official
receiver may also, if he thinks fit, make a further report, or further reports,
stating the manner in which the company
was formed and whether, in his opinion,
any fraud has been committed by any person in its promotion or formation or by
any officer
of the company in relation to the company since the formation
thereof, and any other matters which, in his opinion, it is desirable
to bring
to the notice of the court.
(3) If the official receiver states in any
such further report as aforesaid that, in his opinion, a fraud has been
committed as aforesaid,
the court shall have the further powers provided in
section 266.
Subdivision G-Liquidators
Power of court to appoint liquidators
235. For the
purpose of conducting the proceedings in winding-up a company and performing
such duties in reference thereto as the court
may impose, the court may appoint
a liquidator or liquidators.
Appointment and powers of interim liquidator
236.-(1) The
court may appoint the official receiver to be the liquidator provisionally at
any time after the presentation of a winding-up
petition and before the making
of a winding-up order.
(2) Where a liquidator (in this Act referred to as
an "interim liquidator") is so appointed by the court, the court may limit and
restrict his powers by the order appointing him.
Appointment, style, etc., of liquidators
237. The
following provisions with respect to liquidators shall have effect on a
winding-up order being made:-
(a) the official receiver shall, by virtue of his office, become the provisional liquidator and shall continue to act as such, until he or another person becomes liquidator and is capable of acting as such;
(b) the official receiver shall summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the court for appointing a liquidator in the place of the official receiver:
Provided that, where the court has dispensed with the settlement of a list of contributories, it shall not be necessary for the official receiver to summon a meeting of contributories;
(c) the court may make any appointment and order required to give effect to any such determination and, if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matter aforesaid, the court shall decide the difference and make such order thereon as the court may think fit;
(d) in a case where a liquidator is not appointed by the court, the official receiver shall be the liquidator of the company;
(e) the official receiver shall, by virtue of his office, be the liquidator during any vacancy;
(f) a liquidator shall be described, where a person other than the official receiver is liquidator, by the style of "the liquidator", and, where the official receiver is liquidator, by the style of "the official receiver and liquidator", of the particular company in respect of which he is appointed and not by his individual name.
Provisions where person other than official receiver is appointed liquidator
238.
Where, in the winding-up of a company by the court, a person other than the
official receiver is appointed liquidator, that person-
(a) shall not be capable of acting as liquidator, until he has notified his appointment to the registrar and given security, in the prescribed manner, to the satisfaction of the official receiver;
(b) shall give the official receiver such information and such access to and facilities for inspecting the books and documents of the company and generally such aid as may be requisite for enabling that officer to perform his duties under this Act.
General provisions as to liquidators
239.-(1) A
liquidator appointed by the court may resign or, on cause shown, be removed by
the court.
(2) Where a person other than the official receiver is
appointed liquidator, he shall receive such salary or remuneration by way of
percentage or otherwise as the court may direct, and, if more such persons than
1 are appointed liquidators, their remuneration shall
be distributed among them
in such proportions as the court directs.
(3) A vacancy in the office of
a liquidator appointed by the court shall be filled by the court.
(4) If
more than 1 liquidator is appointed by the court, the court shall declare
whether any act, by this Act required or authorized
to be done by the
liquidator, is to be done by all or any 1 or more of the persons
appointed.
(5) Subject to the provisions of section
327, the acts of a liquidator shall be
valid, notwithstanding any defects that may afterwards be discovered in, his
appointment or qualification.
Custody of company's property
240. Where a
winding-up order has been made or where an interim liquidator has been
appointed, the liquidator or the interim liquidator,
as the case may be, shall
take into his custody or under his control all the property and things in action
to which the company is
or appears to be entitled.
Vesting of property of company in liquidator
241. Where a
company is being wound up by the court, the court may, on the application of the
liquidator, by order, direct that all or
any part of the property of whatsoever
description belonging to the company or held by trustees on its behalf shall
vest in the liquidator
by his official name, and thereupon the property to which
the order relates shall vest accordingly, and the liquidator may, after
giving
such indemnity, if any, as the court may direct, bring or defend, in his
official name, any action or other legal proceeding
which relates to that
property or which it is necessary to bring or defend for the purpose of
effectually winding-up the company
and recovering its property.
Powers of liquidator
242.-(1) The
liquidator in a winding-up by the court shall have power, with the sanction
either of the court or of the committee of inspection-
(a) to bring or defend any action or other legal proceeding in the name and on behalf of the company;
(b) to carry on the business of the company, so far as may be necessary for the beneficial winding-up thereof;
(c) to appoint a barrister and solicitor to assist him in the performance of his duties;
(d) to pay any classes of creditors in full;
(e) to make any compromise, or arrangement with creditors, or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable;
(f) to compromise all calls and liabilities to calls, debts and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and contributory or alleged contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or the winding-up of the company, on such terms as may be agreed, and take any security for the discharge of any such call, debt, liability or claim and give a complete discharge in respect thereof.
(2) The liquidator in a winding-up by
the court shall have power-
(a) to sell the real and personal property and things in action of the company by public auction or private contract, with power to transfer the whole thereof to any person or company or to sell the same in parcels;
(b) to do all acts and to execute, in the name and on behalf of the company, all deeds, receipts and other documents and, for that purpose, to use, when necessary, the company's seal;
(c) to prove, rank and claim in the bankruptcy, insolvency or sequestration of any contributory for any balance against his estate, and to receive dividends in the bankruptcy, insolvency or sequestration in respect of that balance, as a separate debt due from the bankrupt or insolvent, and rateably with the other separate creditors;
(d) to draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if the bill or note had been drawn, accepted, made or endorsed by or on behalf of the company in the course of its business;
(e) to raise, on the security of the assets of the company, any money requisite;
(f) to take out, in his official name, letters of administration for any deceased contributory, and to do, in his official name, any other act necessary for obtaining payment of any money due from a contributory or his estate which cannot be conveniently done in the name of the company and, in all such cases, the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or recover the money, be deemed to be due to the liquidator himself:
Provided that nothing in this paragraph shall be deemed to affect the rights, duties and privileges of the Public Trustee;
(g) to appoint an agent to do any business which the liquidator is unable to do himself;
(h) to do all such other things as may be necessary for winding-up the affairs of the company and distributing its assets.
(3) The exercise by a liquidator in a
winding-up by the court of the powers conferred by this section shall be subject
to the control
of the court, and any creditor or contributory may apply to the
court with respect to any exercise or proposed exercise of any of
those
powers.
Exercise and control of liquidator's powers
243.-(1) Subject
to the provisions of this Act, the liquidator of a company which is being wound
up by the court shall, in the administration
of the assets of the company and in
the distribution thereof among its creditors, have regard to any directions that
may be given
by resolution of the creditors or contributories at any general
meeting or by the committee of inspection, and any directions given
by the
creditors or contributories at any general meeting shall, in case of conflict,
be deemed to override any directions given
by the committee of
inspection.
(2) The liquidator may summon general meetings of the
creditors or contributories for the purpose of ascertaining their wishes, and
it
shall be his duty to summon meetings at such times as the creditors or
contributories, by resolution, either at the meeting appointing
the liquidator
or otherwise, may direct, or whenever requested in writing to do so by one-tenth
in value of the creditors or contributories
as the case may be.
(3) The
liquidator may apply to the court, in manner prescribed, for directions in
relation to any particular matter arising under
the winding-up.
(4)
Subject to the provisions of this Act, the liquidator shall use his own
discretion in the management of the estate and its distribution
among the
creditors.
(5) If any person is aggrieved by any act or decision of the
liquidator, that person may apply to the court, and the court may confirm,
reverse or modify the act or decision complained of, and make such order in the
premises as it thinks just.
Books to be kept by liquidator
244. Every
liquidator of a company which is being wound up by the court shall keep, in
manner prescribed, proper books, in which he shall
cause to be made entries or
minutes of proceedings at meetings, and of such other matters as may be
prescribed, and any creditor
or contributory may, subject to the control of the
court, personally or by his agent inspect any such books.
Payments by liquidator to official receiver or into bank
245.-(1) Every
liquidator of a company which is being wound up by the court shall, in such
manner and at such times as the official receiver
shall direct, pay the money
received by him to the official receiver for the credit of the Companies
Liquidation Account, and the
official receiver shall furnish him with a receipt
for the money so paid:
Provided that, if the committee of inspection
satisfy the court that, for the purpose of carrying on the business of the
company or
of obtaining advances, or for any other reason, it is for the
advantage of the creditors or contributories that the liquidator should
have an
account with any bank, the court shall, on the application of the committee of
inspection, authorize the liquidator to make
his payments into and out of such
bank as the committee may select, and thereupon those payments shall be made in
the prescribed
manner.
(2) If any such liquidator at any time retains for
more than 10 days a sum exceeding $100, or such other amount as the court in any
particular case authorizes him to retain, then, unless he explains the retention
to the satisfaction of the court, he shall pay interest
on the amount so
retained in excess at the rate of 20 per cent per annum and shall be liable to
disallowance of all or such part
of his remuneration as the court may think
just, and to be removed from his office; by the court, and shall be liable to
pay any
expenses occasioned by reason of his default.
(3) A liquidator of
a company which is being wound up by the court shall not pay any sums received
by him as liquidator into his private
banking account.
Audit of liquidator's accounts
246.-(1) Every
liquidator, other than the official receiver, of a company which is being wound
up by the court shall, at such times as
may be prescribed, but not less than
twice in each year during his tenure of office, send to the official receiver,
or as he directs,
an account of his receipts and payments as
liquidator.
(2) The account shall be in the prescribed form, shall be
made in duplicate and shall be verified by a statutory declaration in the
prescribed form.
(3) The official receiver shall cause the account to be
audited, and, for the purpose of the audit, the liquidator shall furnish the
official receiver with such vouchers and information as the official receiver
may require, and the official receiver may, at any
time, require the production
of and inspect any books or accounts kept by the liquidator.
(4) When the
account has been audited, 1 copy thereof shall be filed by the official receiver
and the other copy shall be delivered
to the court for filing, and each copy
shall be open to the inspection of any person on payment of the prescribed
fee.
(5) The liquidator shall cause a copy of the account, when audited,
or a summary thereof, to be sent by post to each creditor and
contributory
within 30 days of the completion of the audit:
Provided that the official
receiver may, in any case, dispense with compliance with this
subsection.
Control over liquidators
247.-(1) The
official receiver shall take cognizance of the conduct of liquidators of
companies which are being wound up by the court,
and, if a liquidator does not
faithfully perform his duties and duly observe all the requirements imposed on
him by statute, rules
or otherwise with respect to the performance of his
duties, or if any complaint is made to the official receiver by any creditor
or
contributory in regard thereto, the official receiver shall inquire into the
matter and take such action thereon as he may think
expedient.
(2) The
official receiver may, at any time, require any liquidator of a company which is
being wound up by the court to answer any
inquiry in relation to any winding-up
in which he is engaged, and may, if the official receiver thinks fit, apply to
the court to
examine him or any other person on oath concerning the
winding-up.
Release of liquidators
248.-(1) When the
liquidator of a company which is being wound up by the court has realized all
the property of the company, or so much
thereof as can, in his opinion, be
realized without needlessly protracting the liquidation, and has distributed a
final dividend,
if any, to the creditors, and adjusted the rights of the
contributories among themselves, and made a final return, if any, to the
contributories, or has resigned, or has been removed from his office, the court
shall, on his application, cause a report on his
accounts to be prepared, and,
on his complying with all the requirements of the court, shall take into
consideration the report and
any objection which may be urged by any creditor or
contributory or person interested against the release of the liquidator, and
shall either grant or withhold the release accordingly.
(2) Where the
release of a liquidator is withheld, the court may, on the application of any
creditor or contributory or person interested,
make such order as it thinks
just, charging the liquidator with the consequences of any act or default which
he may have done or
made contrary to his duty.
(3) An order of the court
releasing the liquidator shall discharge him from all liability in respect of
any act done or default made
by him in the administration of the affairs of the
company or otherwise in relation to his conduct as liquidator, but any such
order
may be revoked on proof that it was obtained by fraud or by suppression or
concealment of any material fact.
(4) Whether the liquidator has not
previously resigned or been removed, his release shall operate as a removal of
him from his office.
Subdivision H-Committees of Inspection
Meetings of creditors and contributories to determine whether committee of inspection shall be appointed
249.-(1) When a
winding-up order has been made by the court, it shall be the business of the
separate meetings of creditors and contributories
summoned for the purpose of
determining whether or not an application should be made to the court for
appointing a liquidator in
place of the official receiver, to determine further
whether or not an application is to be made to the court for the appointment
of
a committee of inspection to act with the liquidator and who are to be members
of the committee if appointed.
(2) The court may make any appointment and
order required to give effect to any such determination and, if there is a
difference between
the determinations of the meetings of the creditors and
contributories in respect of the matters aforesaid, the court shall decide
the
difference and make such order thereon as the court may think fit.
Constitution and proceedings of committee of inspection
250.-(1) A
committee of inspection appointed in pursuance of this Act shall consist of
creditors and contributories of the company, or
persons holding general powers
of attorney from creditors or contributories, in such proportions as may be
agreed on by the meetings
of creditors and contributories or as, in case of
difference, may be determined by the court.
(2) The committee shall meet
at such times as they from time to time appoint, and, failing such appointment,
at least once a month,
and the liquidator or any member of the committee may
also call a meeting of the committee as and when he thinks necessary.
(3)
The committee may act by a majority of their members present at a meeting, but
shall not act unless a majority of the committee
are present,
(4) A
member of the committee may resign by notice in writing signed by him and
delivered to the liquidator.
(5) If a member of the committee becomes
bankrupt or compounds or arranges with his creditors or is absent from 5
consecutive meetings
of the committee without the leave of those members who,
together with himself, represent the creditors or contributories, as the
case
may be, his office shall thereupon become vacant.
(6) A member of the
committee may be removed by an ordinary resolution at a meeting of creditors, if
he represents creditors, or of
contributories, if he represents contributories,
of which 21 days' notice has been given, stating the object of the
meeting.
(7) On a vacancy occurring in the committee, the liquidator
shall forthwith summon a meeting of creditors or of contributories, as
the case
may require, to fill the vacancy, and the meeting may, by resolution, reappoint
the same or appoint another creditor or
contributory to fill the
vacancy:
Provided that, if the liquidator, having regard to the position
in the winding-up, is of the opinion that it is unnecessary for the
vacancy to
be filled, he may apply to the court and the court may make an order that the
vacancy shall not be filled, or shall not
be filled, except in such
circumstances as may be specified in the order.
(8) The continuing
members of the committee, if not fewer than 2, may act, notwithstanding any
vacancy in the committee.
Powers of court where no committee of inspection
251. Where, in
the case of a winding-up, there is no committee of inspection, the court may, on
the application of the liquidator, do
any act or thing or give any direction or
permission which is, by this Act, authorized or required to be done or given by
the committee:
Provided that, where the official receiver is the
liquidator, he may do any such act or thing and give any such direction or
permission
without application to the court.
Subdivision I-General Powers of Court in Case of Winding-up by Court
Power to stay winding-up
252.-(1) The
court may, at any time after an order for winding-up, on the application either
of the liquidator or the official receiver
or any creditor or contributory, and
on proof to the satisfaction of the court that all proceedings in relation to
the winding-up
ought to be stayed, make an order staying the proceedings, either
altogether or for a limited time, on such terms and conditions
as the court
thinks fit.
(2) On any application under this section, the court may,
before making an order, require the official receiver to furnish to the
court a
report with respect to any facts or matters which are in his opinion relevant to
the application.
(3) A copy of every order made under this section shall
forthwith be forwarded by the company, or otherwise as may be prescribed,
to the
registrar for registration.
Settlement of list of contributories and application of assets
253.-(1) As soon
as may be after making a winding-up order, the court shall settle a list of
contributories, with power to rectify the
register of members in all cases where
rectification is required in pursuance of this Act, and shall cause the assets
of the company
to be collected, and applied in discharge of its
liabilities:
Provided that, where it appears to the court that it will
not be necessary to make calls on or adjust the rights of contributories,
the
court may dispense with the settlement of a list of contributories.
(2)
In settling the list of contributories, the court shall distinguish between
persons who are contributories in their own right
and persons who are
contributories as being representatives of or liable for the debts of
others.
Delivery of property to liquidator
254. The court
may, at any time after making a winding-up order, require any contributory for
the time being on the list of contributories
and any trustee, receiver, banker,
agent or officer of the company to pay, deliver, convey, surrender or transfer
forthwith, or within
such time as the court directs, to the liquidator any
money, property or books and papers in his hands to which the company is
prima facie entitled.
Payment of debts due by contributory to company and extent to which set-off allowed
255.-(1) The
court may, at any time after making a winding-up order, make an order on any
contributory for the time being on the list
of contributories to pay, in manner
directed by the order, any money due from him or from the estate of the person
whom he represents
to the company, exclusive of any money payable by him or the
estate by virtue of any call in pursuance of this Act.
(2) The court, in
making such an order may-
(a) in the case of an unlimited company, allow to the contributory, by way of set-off, any money due to him or to the estate which he represents from the company on any independent dealing or contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit; and
(b) in the case of a limited company, make to any director or manager whose liability is unlimited or to his estate the like allowance.
(3) In the case of any company, whether limited
or unlimited, when all the creditors are paid in full, any money due on any
account
whatever to a contributory from the company may be allowed to him by way
of set-off against any subsequent call.
Power of court to make calls
256.-(1) The
court may, at any time after making a winding-up order, and either before or
after it has ascertained the sufficiency of
the assets of the company, make
calls on all or any of the contributories for the time being on the list of the
contributories, to
the extent of their liability, for payment of any money which
the court considers necessary to satisfy the debts and liabilities
of the
company, and the costs, charges and expenses of winding-up, and for the
adjustment of the rights of the contributories among
themselves, and make an
order for payment of any calls so made.
(2) In making a call, the court
may take into consideration the probability that some of the contributories may
partly or wholly fail
to pay the call.
Payment into bank of moneys due to company
257.-(1) The
court may order any contributory, purchaser or other person from whom money is
due to the company to pay the amount due
into a specified bank or any branch
thereof to the account of the liquidator instead of to the liquidator, and any
such order may
be enforced in the same manner as if it had directed payment to
the liquidator.
(2) All moneys and securities paid or delivered into a
specified bank or any branch thereof in the event of a winding-up by the court
shall be subject in all respects to the orders of the court.
Order on contributory conclusive evidence
258.-(1) An order
made by the court on a contributory shall, subject to any right of appeal, be
conclusive evidence that the money, if
any, thereby appearing to be due or
ordered to be paid is due.
(2) All other pertinent matters stated in the
order shall be taken to be truly stated as against all persons and in all
proceedings
whatsoever.
Appointment of special manager
259.-(1) Where
the official receiver becomes the liquidator of a company, whether provisionally
or otherwise, he may, if satisfied that
the nature of the estate or business of
the company, or the interests of the creditors or contributories generally,
require the appointment
of a special manager of the estate or business of the
company other than himself, apply to the court, and the court may, on such
application, appoint a special manager of the said estate or business to act
during such time as the court may direct, with such
powers, including any of the
powers of a receiver or manager, as may be entrusted to him by the
courts.
(2) The special manager shall give such security and account in
such manner as the official receiver shall direct.
(3) The special
manager shall receive such remuneration as may be fixed by the court.
Power to exclude creditors not proving in time
260. The court
may fix, a time or times within which creditors are to prove their debts or
claims or to be excluded from the benefit
of any distribution made before those
debts are proved.
Adjustment of rights of contributories
261. The court
shall adjust the rights of the contributories among themselves and make an order
for the distribution of any surplus among
the persons entitled thereto.
Inspection of books by creditors and contributories
262.-(1) The
court may, at any time after making a winding-up order, make such order for
inspection of the books and papers of the company
by creditors and
contributories as the court thinks just, and any books and papers of the company
may be inspected by creditors or
contributories accordingly, but not further or
otherwise.
(2) Nothing in this section shall be taken as excluding or
restricting any statutory rights of any department of the Government or
of any
officer thereof or of any person acting under the authority of any such
department or officer.
Power to order costs of winding-up to be paid out of assets
263. The court
may, in the event of the assets being insufficient to satisfy the liabilities,
make an order as to the payment out of
the assets of the costs, charges and
expenses incurred in the winding-up in such order of priority as the court
thinks just.
Power to summon persons suspected of having property of company, etc.
264.-(1) The
court may, at any time after the appointment of an interim liquidator or the
making of a winding-up order, summon before
it any officer of the company or
person known or suspected to have in his possession any property of the company
or supposed to be
indebted to the company, or any person whom the court deems
capable of giving information concerning the promotion, formation, trade,
dealings, affairs or property of the company.
(2) The court may examine
him on oath concerning the matters aforesaid, either by word of mouth or on
written interrogatories, and
may reduce his answers to writing and require him
to sign them.
(3) The court may require him to produce any books and
papers in his custody or power relating to the company, but, where he claims
any
lien on books or papers produced by him, the production shall be without
prejudice to that lien, and the court shall have jurisdiction,
in the
winding-up, to determine all questions relating to that lien.
(4) If any
person so summoned, after being tendered a reasonable sum for his expenses,
refuses to come before the court at the time
appointed, not having a lawful
impediment (made known to the court at the time of its sitting and allowed by
it), the court may cause
him to be arrested and brought before the court for
examination.
Attendance of officers of company at meetings of creditors, etc.
265. In the
winding-up by the court of a company, the court shall have power to require the
attendance of any officer of the company
at any meeting of creditors or of
contributories or of a committee of inspection for the purpose of giving
information as to the
trade, dealings, affairs or property of the
company.
Power to order public examination of promoters and officers
266.-(1) Where an
order has been made for winding-up a company by the court, and the official
receiver has made a further report under
this Act stating that, in his opinion,
a fraud has been committed by any person in the promotion or formation of the
company or by
any officer of the company in relation to the company since its
formation, the court may, after consideration of the report, direct
that that
person or officer shall attend before the court on a day appointed by the court
for that purpose and be publicly examine
as to the promotion or formation or the
conduct of the business of the company or as to his conduct and dealings as an
officer thereof.
(2) The official receiver shall take part in the
examination, and, for that purpose, may, if specially authorized by the court in
that behalf employ a barrister and solicitor.
(3) The liquidator, where
the official receiver is not the liquidator, and any creditor or contributory
may also take part in the
examination, either personally or by his barrister and
solicitor.
(4) The court may put such questions to the person examined as
the court thinks fit.
(5) The person examined shall be examined on oath
and shall answer all such questions as the court may put or allow to be put to
him.
(6) A person ordered to be examined under this section shall, at his
own cost, before his examination, be furnished with a copy of
the official
receiver's report, and may, at his own cost, employ a barrister and solicitor,
who shall be at liberty to put to him
such questions as the court may deem just
for the purpose of enabling him to explain or qualify any answers given by
him:
Provided that, if any such person applies to the court to be
exculpated from any charges made or suggested against him, it shall be
the duty
of the official receiver to appear on the hearing of the application and call
the attention of the court to any matters
which appear to the official receiver
to be relevant and, if the court, after hearing any evidence given or witnesses
called by the
official receiver, grants the application, the court may allow the
applicant such costs as, in its discretion, it may think fit.
(7) Notes
of the examination shall be taken down, in writing, and shall be read over to or
by, and signed by, the person examined,
and may thereafter be used in evidence
against him, and shall be open to the inspection of any creditor or contributory
at all reasonable
times.
(8) The court may, if it thinks fit, adjourn the
examination from time to time.
Power to arrest absconding promoters, officers and contributories
267. The court,
at any time either before or after making a winding-up order, on proof of
probable cause for believing that any person
or officer of the company mentioned
in subsection (1) of section 266 or a
contributory is about to quit Fiji or otherwise to abscond or to remove or
conceal any of his property for the purpose of evading
payment to calls or of
avoiding examination respecting the affairs of the company, may cause him to be
arrested and his books and
papers and movable personal property to be seized and
him and them to be safely kept until such times as the court may order.
Powers of court cumulative
268. Any powers
by this Act conferred on the court shall be in addition to, and not in
restriction of, any existing powers of instituting
proceedings against any
contributory or debtor of the company or the estate of any contributory or
debtor, for the recovery of any
call or other sums.
Delegation to liquidator of certain powers of court
269. Provision
may be made by rules for enabling or requiring all or any of the powers and
duties conferred and imposed on the court
by this Act in respect of the
following matters:-
(a) the holding and conducting of meetings to ascertain the wishes of creditors and contributories;
(b) the settling of lists of contributories and the rectifying of the register of members, where required, and the collecting and applying of the assets;
(c) the paying, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator;
(d) the making of calls;
(e) the fixing of a time within which debts and claims must be proved, to be exercised or performed by the liquidator as an officer of the court, and subject to the control of the court:
Provided that the liquidator shall not, without the special leave of the court, rectify the register of members, and shall not make any call without either the special leave of the court or the sanction of the committee of inspection.
Dissolution of company
270.-(1) When the
affairs of a company have been completely wound up, the court, if the liquidator
makes an application in that behalf,
shall make an order that the company be
dissolved from the date of the order, and the company shall be dissolved
accordingly.
(2) A copy of the order shall, within 14 days from the date
thereof, be delivered by the liquidator to the registrar for
registration.
(3) If the liquidator makes default in complying with the
requirements of this section, he shall be liable to a fine not exceeding
$10 for
every day during which he is in default.
Subdivision J-Appeals
Appeals
271. Subject to
such conditions and limitations as may be prescribed by rules, an appeal shall
lie to the Court of Appeal from any decision
or order given or made by the
Supreme Court in the exercise of the jurisdiction conferred upon it by section
219.
Division 3-Voluntary Winding-up
Subdivision A-Resolutions for, and Commencement
of
Voluntary Winding-up
Circumstances in which company may be wound up voluntarily
272.-(1) A
company may be wound up voluntarily-
(a) when the period, if any, fixed for the duration of the company by the articles expires, or the event, if any, occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily;
(b) if the company resolves, by special resolution, that the company be wound up voluntarily;
(c) the company resolves, by special resolution, to the effect that it cannot, by reason of its liabilities, continue its business, and that it is advisable to wind up.
(2) In this Act, "a resolution for
voluntary winding-up" means a resolution passed under any of the provisions of
subsection (1).
Notice of resolution to wind up voluntarily
273.-(1) When a
company has passed a resolution for voluntary winding-up, it shall, within 14
days after the passing of the resolution,
give notice of the resolution by
advertisement in the Gazette, and also in a newspaper published and circulating
in Fiji.
(2) If default is made in complying with this section, the
company and every officer of the company who is in default shall be liable
to a
default fine and, for the purposes of this subsection, the liquidator of the
company shall be deemed to be an officer of the
company.
Commencement of voluntary winding-up
274. A voluntary
winding-up shall be deemed to commence at the time of the passing of the
resolution for voluntary winding-up.
Subdivision B-Consequences of Voluntary Winding-up
Effect of voluntary winding-up on business and status of company
275. In case of a
voluntary winding-up, the company shall, from the commencement of the
winding-up, cease to carry on its business, except
so far as may be required for
the beneficial winding-up thereof:
Provided that the corporate state and
corporate powers of the company shall, notwithstanding anything to the contrary
in its articles,
continue until it is dissolved.
Avoidance of transfers, etc., after commencement of voluntary winding-up
276. Any transfer
of shares, not being a transfer made to or with the sanction of the liquidator,
and any alteration in the status of
the members of the company, made after the
commencement of a voluntary winding-up, shall be void.
Subdivision C-Declaration of Solvency
Statutory declaration of solvency in case of proposal to wind up voluntarily
277.-(1) Where it
is proposed to wind up a company voluntarily, the directors of the company or,
in the case of a company having more
than 2 directors, the majority of the
directors, m