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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