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Nauru Sessional Legislation |
REPUBLIC OF NAURU
CORPORATION ACT 1972
(No. 5 of 1972)
ARRANGEMENT OF SECTIONS
Section
PART
I
PRELIMINARY
1. Short
title.
2.
Interpretation.
3. Transitional
provisions.
4. Related
corporations.
5. Purposes and
licences.
PART
II
ADMINISTRATION
OF ACT
6. Registrar of
Corporations.
7. Nauru Government
Commercial Authority.
8. Registered
corporation agents.
9. Registered
corporation auditors.
10. Official
liquidators.
11. Corporation
brokers.
12.
Registers.
13. Re-lodging of lost
documents.
PART
III
CONSTITUTION OF
CORPORATIONS
Division 1 - Incorporation
14. Formation of
corporations.
15. Registration and
incorporation.
15A. Continuation in
Nauru of corporation incorporated outside
Nauru.
16. Requirements as to
memorandum.
Division 2 - Status and name
17. Powers of
corporations.
18. Ultra vires
transactions.
19. Names of
corporations.
20. Change of
name.
21. Conversion from holding to
trading corporation.
22. Articles of
incorporation.
23. Adoption of Table
"A" or Table "B".
24. Alteration of
articles.
25. Effect of memorandum and
articles.
26. Copies of the memorandum
and articles.
27. Transactions and
branches.
28. Prohibition of carrying
on business with fewer than statutory minimum of members.
Division 3 - Restrictions on Holdings Corporations
29. Restriction on
membership in holding corporation.
30.
Restrictions on transactions of holding corporations.
PART
IV
SHARES,
DEBENTURES AND CHARGES
Division 1 - Prospectuses
31. Requirement to issue a
prospectus with any form of application for shares or
debentures.
32. Holding corporation
not to invite investment from
public.
33. Invitations to public to
lend money to or deposit money with a trading
corporation.
34. Requirements of a
prospectus.
35.
Advertisements.
36. Retention of
oversubscriptions in debenture
issue.
37. Registration of
prospectus.
38. Document containing
offer of shares to be deemed to be a
prospectus.
39. Expert's consent to
issue of prospectus containing statement by
him.
40. Civil liability for
misstatement in prospectus.
Division 2 - Restrictions on allotment
41. Minimum
subscriptions.
42. Application moneys
to be held in trust until allotment.
Division 3 - Shares in Corporations
43. Return as to
allotments.
44. Calls and
forfeiture.
45. Reserve
liability.
46. Bearer
shares.
47. Surrender of
warrants.
48. Extent of
membership.
49. Particulars in
register.
50. Regulations as to share
warrants.
51. Currency of shares,
interest-bearing shares, redeemable shares, shares with special rights and gift
shares.
52. No redemption when
insolvent.
53. Statement of
cancellation.
54. Dealing by a
corporation in its own shares,
etc.
55. Right of holding corporation
to acquire and dispose of its own
shares.
56. Cancellation of
re-acquired shares by holding
corporation.
57. Distributions from
capital surplus of holding
corporations.
58. Power to pay certain
commissions.
59. Issue of shares at a
discount.
60. Issues of shares at a
premium by trading corporation.
61.
Alteration of share capitals.
62.
Validation of shares improperly
issued.
63. Special resolution for
reduction of shares capital.
64.
Rights of holders of classes of
shares.
65. Rights of holders of
preference shares to be set out in articles.
Division 4 - Debentures
66. Register and votes of
debenture holders and copies of trust
deed.
67. Holding corporation not to
issue debentures to public.
68.
Perpetual debentures.
69. Reissue of
redeemed debentures.
70. Return of
debentures.
71. Qualification of
trustee for debenture holders.
72.
Replacement of trustee.
73. Registered
trustee corporations.
74. Contents of
trust deed.
75. Duties of
trustees.
76. Proper
law.
77. Obligation of borrowing
corporations.
78. Obligation of
guarantor corporations to furnish
information.
79. Loans and deposits to
be immediately repayable and certain events.
Division 5 - Title and Transfers
80. Nature of
shares.
81. Number of
shares.
82. Certificate to be evidence
of title.
83. Corporation may have
duplicate corporate seals.
84. Loss or
destruction of certificate.
85.
Instruments of transfer.
86. Official
register.
87. Register of transfer at
request of transferor.
88. Notice of
refusal to register transfers.
89.
Certificate of transfers.
90. Duties
of corporations with respect to issue of certificate.
Division 6 - Registration of Charges
91. Filing of
charges.
92. Duty to the
charges.
93. Filing of pre-existing
charges.
94. Register of charges to be
kept by Registrar.
95. Endorsement of
certificate of registration of
debentures.
96. Filing of satisfaction
and release of property from
charge.
97. Extension of time and
rectification of register of
charges.
98. Trading corporations to
keep copies of charging instruments and register of
charges.
99. Documents made outside
Nauru.
100. Application of
Division.
PART
V
MANAGEMENT AND
ADMINISTRATION
Division 1 - Office and Name
101. Registered office of
corporation.
102. Publication of
name.
Division 2 - Directors and Officers
103.
Directors.
104. Restrictions on
naming.
105. Qualification of
director.
106. Validity of acts of
directors and officers.
107. Power to
restrain certain persons from managing
corporations.
108. Disclosure of
interests in contracts, property, offices,
etc.
109. Duty and liability of
officers.
110.
Secretary.
111. Register of directors
and secretaries.
Division 3 - Meetings and Proceedings
112. Annual general
meeting of trading corporation.
113.
Convening of extraordinary general meetings on
requisition.
114. Calling of
meetings.
115. Articles as to right to
demand a poll.
116. Quorum, chairman,
voting, etc., at meetings.
117.
Proxies.
118. Power of Registrar to
order meeting.
119. Circulation of
members' resolutions, etc.
120.
Special resolutions.
121. Resolution
requiring special notice.
122. Filing
of copies of certain resolutions and
agreements.
123. Resolutions at
adjourned meetings.
124. Minutes of
proceedings.
125. Inspection of minute
book.
Division 4 - Register of Members
126. Register and index of
members.
127. Where register to be
kept.
128. Inspection and closing of
register.
129. Consequences of default
by agent.
130. Power of Registrar to
rectify register.
131. Limitation of
liability of trustee, etc., registered as owner of
shares.
132. Branch
registers.
Division 5 - Annual Return
133. Annual
return.
PART
VI
ACCOUNTS AND
AUDIT
Division 1 - Accounts
134. Accounts to be
kept.
135. Accounts to be laid before
meeting or circulated.
136.
Regulations as to accounts.
Division 2 - Audit
137. Auditor to be
appointed.
138. Appointment and
removal of auditors.
139. Auditor
ceasing to be registered.
140. Term of
office when auditor ceases to be
registered.
141. Partners of
auditors.
142. Remuneration of
auditor.
143. Auditor may attend
meeting.
144. Auditor to
audit.
145. Powers of
auditors.
146. Powers, duties and
obligations of auditors.
PART
VII
ARRANGEMENTS
AND RECONSTRUCTIONS
147. Power to compromise
with creditors and members.
148.
Information as to compromise with creditors and
members.
149. Provisions for
facilitating reconstruction and amalgamation of
corporations.
150. Takeover
offers.
PART VIII
RECEIVERS AND MANAGERS
151. Qualification for
appointment as receiver.
152.
Directions and liability.
153.
Notification of appointment of
receiver.
154. Statement that receiver
appointed.
155. Provisions as to
information where receiver
appointed.
156. Special provisions as
to statements made to receiver.
157.
Lodging of accounts of receivers.
158.
Payment of certain debts out of assets subject to floating charge in priority to
claims under charge.
PART
IX
WINDING-UP
Division 1 - Preliminary
159. Modes of
winding-up.
160. Republic
bound.
161. Certificate as to
winding-up.
162. Effect of
winding-up.
163. Avoidance of
disposition of property.
164. Costs of
the winding-up.
165. Custody and
vesting of the corporation's
property.
166. Delivery of
assets.
167. Avoidance of certain
transactions.
168. Pending
proceedings.
169. Power to stay
winding-up.
170. Delegation to
liquidator of Court's powers.
171.
Liability as contributories of present and past
members.
172. Nature of liability of
contributory.
173. Contributories in
case of dead or bankruptcy of
member.
174. Distribution of
assets.
175. Admission of claims to
proof.
176. Proof and ranking of
claims.
177. Claims of creditors and
distribution of assets.
Division 2 - Compulsory Winding-Up
178. Application for
winding-up.
179. Circumstances in
which corporation may be wound up
compulsorily.
180. Commencement of
compulsory winding-up.
181. Payment of
costs.
182. Costs relating to
winding-up.
183. Copy of order to be
lodged.
184. Appointment of
liquidator.
185. Validation of
proceedings in voluntary
winding-up.
186. Statement of
affairs.
187. Settlement of list of
contributories and application of
assets.
188. Report of
liquidator.
Division 3 - Voluntary Winding-Up
189. Circumstances in
which trading corporation may be wound up
voluntarily.
190. Circumstances in
which holding corporation may be wound up
voluntarily.
191. Declaration of
solvency.
192. Conversion of voluntary
winding-up to compulsory
winding-up.
193. Payment or claims by
liquidator of holding corporation in voluntary liquidation.
Division 4 - Liquidators
194. Vacancy in office of
liquidator.
195. Replacement of
liquidator.
196. Validity of
liquidator’s acts.
197. General
provisions as to liquidators.
198.
Powers of liquidator.
199. Exercise
and control of liquidator’s
powers.
200. Payment by liquidator
into bank.
201. Committees of
inspection.
202. Sale of property by
liquidator other than for cash.
203.
Liquidator's books.
204. Liquidator's
returns.
205. Invoices, etc., of
corporation in liquidation.
206. Books
of liquidator and corporation.
207.
Investment by liquidator.
208.
Liquidator's expenses.
Division 5 - Dissolution
209.
Dissolution.
210. Accountability of
liquidator.
Division 6 - Effect on Other Transactions
211. Avoidance of
preference: invalidity of floating
charge.
212. Sales other than at
proper value.
213. Disclaimer of
onerous property.
Division 7 - Offences
214. Offences by officers
of corporations in liquidation.
215.
Frauds by officers.
216. Liability
where proper accounts not kept or debts incurred without reasonable expectation
of payment.
217. Personal liability
for debts.
Division 8 - Defunct Corporations
218. Defunct
corporations.
219. Registrar to act as
representative of defunct corporation in certain
events.
220. Outstanding assets of
defunct corporation to vest in Registrar.
Division 9 - Winding-Up of Unregistered Corporations
221. Unregistered
corporations.
222. Winding-up of
unregistered corporations.
223.
Contributories in winding-up.
PART
X
FOREIGN
CORPORATIONS
224.
Interpretation.
225. Documents, etc.,
to be lodged by foreign
corporations.
226. Return to be lodged
where documents, etc., altered.
227.
Service on foreign corporations.
228.
Cesser of business in Nauru.
229.
Foreign liquidation.
230. Names of
foreign corporations.
231. Returns by
foreign corporations.
PART
XI
MISCELLANEOUS
232. Service of documents
on corporations.
232A. Continuation
outside Nauru of corporation incorporated under this
Act.
233. Costs before
Registrar.
234. Security for
costs.
235. Disposal of shares of
shareholder whose whereabouts are
unknown.
236. Power to grant
relief.
237. Irregularities in
proceedings.
238. Translation of
instruments
239. Dividends payable
from profits only.
240. Use of word
"corporation", etc.
241. General
penalty provisions.
242. Procedure
where none laid done.
243.
Regulations.
244. Rules of
court.
245.
Appeals.
246. Power of
exemption.
247. Prohibitions by
Cabinet.
248. No action to lie against
Republic, President, Minister, judge or public
officer.
249.
Secrecy.
250. Certain provisions of
applied status not to apply to the authority,
etc.
250A. Application of rule against
perpetuities in certain cases
PART
XII
REPEAL
251. Companies Ordinance
1912 of Territory of Papua to cease to be applied.
FIRST SCHEDULE
THE POWERS OF A CORPORATION
SECOND SCHEDULE
TABLE A: ARTICLES FOR
MANAGEMENT OF A TRADING
CORPORATION
TABLE B: ARTICLES FOR
MANAGEMENT OF A HOLDING
CORPORATION
TABLE C: TERMS OF
DEBENTURE OF A CORPORATION
-----------------------------------
Amended by No. 1, 1973, & No. 14, 1975
An Act
to provide for the incorporation and administration of
corporations.
Certified: 17th February 1972
Enacted by the Parliament of Nauru as follows:
PART I
PRELIMINARY
Short
title.
1.
(1) This Act may be cited as the
Corporation Act 1972.
(2) This
Part and Parts XI and XII of this Act shall come into force on the day upon
which this Act becomes law.
(3)
The other provisions of this Act shall come into force on a date or dates to be
notified by the Minister in the
Gazette.
Interpretation.
2.
In this Act, unless the context otherwise
requires or the contrary intention appears-
"annual return" means the annual return required to be made by a corporation under the provisions of section 133 of this Act;
"articles" means articles of incorporation;
"audit period" means the period in respect of which any profit and loss account of the corporation is made up and, when used in relation to the appointment of an auditor, means a period expiring on the 30th day of June next after the expiry of the preceding audit period or, if there be no preceding audit period, a period expiring on the 30th day of June next after the appointment of the auditor;
"board" means the board of directors of a corporation or a foreign corporation;
"books" includes accounts, deeds, writings, invoices and documents;
"borrowing corporation" means a corporation that is or will be under a liability, whether or not such liability is present or future, to repay any money received or to be received by it in response to an invitation to the public to subscribe for or purchase debentures of the corporation;
"branch register" means a branch register of members of a corporation kept in pursuance of section 132 of this Act;
"capital surplus" means the entire surplus of a corporation other than its earned surplus;
"certified" means certified to be a particular document or to be a true copy thereof;
"charge" includes a mortgage and any agreement to give or execute a charge or mortgage whether upon demand or otherwise;
"contributory", in relation to a corporation, means a person liable to contribute to the assets of the corporation in the event of its being wound up, and includes the holder of fully paid shares in the corporation and, prior to the final determination of the persons who are contributories, includes any person alleged to be a contributory;
"creditor" means a person whose debt or claim is admissible against the corporation under section 175 of this Act and, in respect of the proof of debts or claims, includes a person seeking to prove that his claim is so admissible;
"debenture" includes debenture stock, bonds, notes and any other securities of a corporation whether constituting a charge on the assets of the corporation or not;
"director" means any person occupying the position of director of a corporation by whatever name called;
"document" includes summons, order and other legal process, and notice and register;
"earned surplus" means the portion of the surplus of a corporation equal to the balance of its net profits, income, gains and losses from the date of incorporation or from the latest date when a deficit was eliminated, after deducting subsequent distributions to shareholders and transfers made out of earned surplus account and shall include also any portion of surplus allocated to earned surplus account in mergers, consolidations or acquisitions of all or substantially all of the outstanding shares or property or assets of another corporation, whether incorporated in Nauru or not;
"expert" includes engineer, valuer, accountant and any other person whose profession or reputation give authority to a statement made by him;
"foreign corporation" means -
(a) a corporation, company, society, association or other body incorporated outside Nauru; or
(b) an unincorporated society, association or other body which under the law of its place of origin may sue or be sued or hold property in the name of the secretary or other officer of the body or association duly appointed for that purpose and which does not have its head office or principal place of business in the Republic;
"guarantor corporation", in relation to a borrowing corporation, means a corporation that has guaranteed or has agreed to guarantee the repayment of any money received or to be received by the borrowing corporation in response to an invitation to the public to subscribe for or purchase debentures of the borrowing corporation;
"insolvent" means unable to pay debts as they become due;
"issued capital" means, at any particular time, the sum of the par value of all shares of the corporation that have been issued;
"Nauruan corporation" means a corporation of which none of the shares is a bearer share, which does not issue any debenture to which the provisions of subsection (12) of section 66 of this Act relate and of which all shares issued are held beneficially by one or more Nauruan citizens and by no other person or persons and are not subject to any options to purchase them;
"nominee corporation" means a corporation or a foreign corporation of which the whole or a part of the business is to hold registered in its name shares or debentures in which it has no beneficial interest on behalf of another person who has the power, subject only to any lien of such corporation or foreign corporation for its costs, charges and disbursements in respect of those shares or debentures, to direct such corporation or foreign corporation to transfer those shares or debentures to himself absolutely, such person himself not being a trustee or nominee, and the business of which does not, save as aforesaid, include undertaking or offering to undertake any of the duties of a trustee;
"officer", in relation to a corporation, includes-
(a) any director, secretary or employee of the corporation;
(b) a receiver and manager of any part of the undertaking of the corporation appointed under the power contained in any instrument; and
(c) any liquidator of a corporation appointed in a voluntary winding-up, but does not include a liquidator appointed in a compulsory winding-up;
"official liquidator" means a person appointed to be such under the provisions of section 10 of this Act;
"person" includes a corporation and a foreign corporation whether incorporated under this Act or otherwise;
"printing" includes typewriting and any duplication thereof not less legible and permanent than the original;
"profit and loss account" includes income and expenditure account, revenue account or any other account showing the results of the business of a corporation for a period;
"promoter", in relation to a prospectus issued by or in connection with a corporation, means a promoter of the corporation who was a party to the preparation of the prospectus or of any relevant portion thereof, but does not include any person by reason only of his acting in a professional or advisory capacity;
"public" includes those persons or classes of persons in Nauru or elsewhere who are for the relevant purposes regarded in Nauru by the law of Nauru or elsewhere by the law of the place where they are as being "public" or "the public";
"registered corporation agent" means a person appointed and registered as such under the provisions of section 8 of this Act;
"registered corporation auditor" means a person appointed to be such under the provisions of section 9 of this Act;
"registered corporation broker" means a person appointed to be such under the provisions of section 11 of this Act;
"registered director" means a person appointed to be such under the provisions of subsection (12) of section 103 of this Act;
"registered secretary" means a person appointed to be such under the provisions of subsection (1) of section 110 of this Act;
"resident secretary" means the registered secretary appointed by a corporation to be its resident secretary under the provisions of section 110 of this Act;
"registered trustee corporation" means a corporation appointed to be such under the provisions of section 73 of this Act;
"surplus" means the excess of the assets of a corporation over its issued capital;
"the Authority" means the Nauru Government Commercial Authority established by section 7 of this Act;
"the Court" means the District Court;
"the Registrar" means the Registrar of Corporations appointed under section 6 of this Act;
"trustee corporation" means a corporation which as a whole or a part of its business undertakes or offers to undertake all or any of the duties of a trustee, such business not being limited to undertaking or offering to undertake only the duties which a nominee corporation may undertake as its business as such.
Transitional
provisions.
3.
(1) Where any company has been incorporated prior to the commencement of this
Part and has not been dissolved, it shall continue
in existence for not more
than one year after such commencement and where any foreign company has been
registered prior to the commencement
of this Part and has not ceased to be so
registered since the last occasion on which it was registered the registration
shall continue
to have effect for not more than one year after such
commencement:
Provided that where
any winding-up of such a company or foreign company has been commenced while it
is continuing in existence and
subject to the written law under which it was
incorporated or registered, such winding-up shall be completed under that
written law.
(2) For such time as
a company continues in existence, or the registration of a foreign company
continues to have effect, under the
provisions of this section the company, or
the foreign company, shall be subject to the written law under which it was
incorporated
or registered, as the case may
be.
(3) A company which continues
in existence, and a foreign company of which the registration continues to have
effect, under the provisions
of this section may apply within one year after the
commencement of this Part to be registered as a corporation or foreign
corporation
under this Act and, subject to the provisions of section 247, shall,
upon payment of the prescribed fees, be so registered and shall
thereafter be
deemed for all purposes to have been incorporated or registered
hereunder.
(4) Where, any company
continued in existence by this section has not been registered under the
provisions of the last preceding subsection
within one year of the commencement
of this Part, it shall be deemed to have ceased to carry on business or be in
operation and the
provisions of Division 8 of Part IX shall apply as though it
were a corporation incorporated under this
Act.
(5) Where any foreign company
the registration of which has continued to have effect under the provisions of
this section has not
been registered under the provisions of subsection (3)
within one year of the commencement of this Part, the Registrar shall send
to
such foreign company a notice requiring it so to register within sixty days and,
if it fails so to register within that period,
it shall be deemed to have given
notice that it has ceased to have a place of business in the Republic and has
ceased to carry on
business in the Republic and it shall further be deemed to be
no longer registered in the
Republic.
(6) Every reference in
any written law to a company or a foreign company shall be deemed to be a
reference to a corporation incorporated
or registered, or a foreign corporation
registered, under the provisions of this Act, as the case may
be.
(7) No corporation which may
be incorporated as a corporation under this Act shall from the commencement of
this Act be incorporated
as a company under the provisions of any earlier
written law unless such written law relates only to such
corporation.
Related
corporations.
4.
(1) For the purpose of this Act and the regulations, a corporation shall
subject, to the provisions of subsection (3) of this section,
be deemed to be a
subsidiary of another corporation, if-
(a) that other corporation-
(i) controls the composition of the board of directors of the first-mentioned corporation;
(ii) controls more than half of the voting power of the first-mentioned corporation; or
(iii) holds more than half of the issued share capital of the first-mentioned corporation (excluding any part thereof which carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the first-mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary.
(2)
For the purposes of subsection (1) of this section, the composition of a
corporation's board of directors shall be deemed to be
controlled by another
corporation if that other corporation by the exercise of some power exercisable
by it, without the consent
or concurrence of any other person, can appoint or
remove all or a majority of the directors and, for the purposes of this
provision,
that other corporation shall be deemed to have power to make such an
appointed if -
(a) a person cannot be appointed as a director without the exercise in his favour by that other corporation of such a power; or
(b) a person's appointment as a director follows necessarily from his being a director or other officer of that other corporation.
(3)
In determining whether one corporation is a subsidiary of another corporation
-
(a) any shares held or power exercisable by that other corporation in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d) of this subsection, any shares held or power exercisable -
(i) by any person as a nominee for that other corporation, except where that other corporation is concerned only in a fiduciary capacity; or
(ii) by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary which is concerned only in a fiduciary capacity,
shall be treated as held or exercisable by that other corporation;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned corporation or of a trust deed for securing any issue of such debentures shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for, that other corporation or its subsidiary, not being held or exercisable as mentioned in paragraph (c) of this subsection, shall be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation 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)
A reference in this Act or the regulations to the parent corporation of a
corporation shall be read as a reference to a corporation
of which the
last-mentioned corporation is a
subsidiary.
(5) Where a
corporation-
(a) is the parent corporation of another corporation;
(b) is a subsidiary of another corporation; or
(c) is a subsidiary of the parent corporation of another corporation,
that
first mentioned corporation and that other corporation shall for the purposes of
this Act and the regulations be deemed to be
related to each other and to be
related to every other corporation so related to either of them or related
directly, or by a series
of such relationships, to any other such related
corporation.
Purposes
and
licenses.
5.
(1) Corporations may be incorporated for any lawful purpose or purposes except
for the purpose of carrying on the businesses of
banking, insurance and acting
as a trustee corporation and a nominee corporation, or any of such businesses,
otherwise than under,
and in accordance with the conditions of, a licence issued
to that corporation by the Minister under this
section.
(2) Subject to the
provisions of subsection (4) of this section, a corporation incorporated under
this Act, unless restricted by its
articles, may carry on any business which may
lawfully be carried on by an individual but shall not carry on the business of
banking,
insurance, trustee corporation or nominee corporation, or any of such
businesses, except under, and in accordance with the conditions
of, a licence
issued to that corporation by the Minister under this
section.
(3) A corporation
incorporated under this Act may be either a trading corporation or a holding
corporation.
(4) The Minister may
by notice in the Gazette restrict any corporation or class of corporations from
carrying on any specified business
in Nauru and may by notice in the Gazette
impose conditions subject to which any specified business may be carried on by
any corporation
or class of
corporations.
(5) The Minister may
grant licences, if he thinks fit, to corporations and foreign corporations
authorising them to carryon the businesses
of banking, insurance, trustee
corporation or nominee corporation, or any of such businesses, and in any
licence may impose conditions
subject to which the business or businesses to
which it relates may be carried
on.
(6) A licence granted under
the last preceding subsection shall be valid for such period as the Minister
determines at the time of
granting it but may be rescinded by the Minister at
any time if any of its conditions are breached by the
licensee.
(7) A licence granted
under subsection (5) of this section may be expressed to be an exclusive
licence; where any such licence is
granted, no other licence shall be granted in
respect of the business or businesses to which the first-mentioned licence
relates
while that first-mentioned licence continues in force, unless the
license of that first-mentioned licence consents to such other
licence being
granted.
(8) At the time of
granting a licence under subsection (5) of this section the Minister may, if he
thinks fit, impose a fee to be
paid by the licensee for such licence; such fee
may be a specified amount or an amount to be determined in relation to the gross
income, gross profits or net profits of the licensee or otherwise and shall be
payable on such date or dates as the Minister sets
at the time of granting the
licence.
(9) The
Minister–
Inserted by No. 14, 1975, s. 3.
(a) in granting or refusing to grant a licence under the provisions of this section;
(b) in imposing under this section any condition subject to which a specified business may be carried on by a corporation or a class of corporations; and
(c) in restricting a corporation or a class of corporations from carrying on any specified business in Nauru,
shall
not be required to act judicially and the grant, refusal, imposition of a
condition or restriction shall not be subject to challenge
in any
Court.
PART II
ADMINISTRATION OF ACT
Registrar
of
Corporations.
6.
(1) The President shall appoint a Registrar of Corporations to have the charge
and control of the Corporations Office and to carry
out the duties and functions
vested in him by or under this or any other
Act.
(2) The President may appoint
such Deputy Registrars of Corporations and other officers as are required for
the purposes of this Act.
(3)
Anything by this Act appointed or authorised or required to be done or signed by
the Registrar may be done or signed by any such
Deputy Registrar and shall be as
valid and effectual as if done or signed by the
Registrar.
(4) All Courts, judges,
and persons acting judicially shall take judicial notice of the seal and also
the signature of the Registrar
and of any Deputy
Registrar.
(5) For the purpose of
ascertaining whether a corporation is complying with the provisions of this Act
the Registrar or any person
authorised by him may inspect any book, minute book,
register or record required by or under this Act to be kept by the
corporation.
(6) A person who,
except for the purposes of this Act, or except in the course of any criminal
proceedings, makes a record of, divulges
or communicates to any other person any
information which he has acquired by reason of such inspection shall be guilty
of an offence
against this
Act.
(7) A corporation or any
officer thereof shall, on being required by the Registrar or a person authorised
by the Registrar, produce
any such book, register or
record.
(8) A corporation or any
officer thereof shall not obstruct or hinder the Registrar or person so
authorised while exercising any of
the powers referred to in subsection (5) of
this section.
(9) There shall be
paid to the Registrar such fees as are
prescribed.
Nauru
Government Commercial
Authority.
7.
(1) There shall be an Authority established by the Government of the Republic to
be known as "The Nauru Government Commercial
Authority".
(2) The Authority is
hereby established and shall be administered by a Commissioner who shall be a
public officer appointed by the
Cabinet and who shall, subject to this Act, have
power to administer the Authority. The Chief Secretary may direct any public
officer
to do work for the Authority as instructed by the Commissioner or the
Acting Commissioner.
Amended by No. 1, 1973, s. 3, No. 14, 1975
(3)
In the event that there is at any time no Commissioner or the Commissioner is
absent from Nauru or unable to perform his duties
for any reason the Registrar
shall, until the appointment of a Commissioner or until the Commissioner returns
to Nauru or is able
to perform his duties as the case may be, be Acting
Commissioner. An Acting Commissioner shall have all the powers and may perform
all the duties of the
Commissioner.
(4) The functions of
the Authority shall be-
(a) to receive moneys sent to it;
(b) to pay out of amounts received by the Authority amounts payable to the Registrar or payable to the Court or to any other person or corporation pursuant to the provisions of this Act or in relation to the incorporation or proposed incorporation or operation of a corporation in relation to which it has received a request of the kind referred to in paragraph (a) of subsection (10) of section 15;
(c) to enter into and carry out the transactions referred to in subsections (10) to (23) inclusive of section 15; and
(d) such other functions related to the publicising and promoting of the commercial facilities of Nauru and to the regulation of commercial activity in Nauru as may be provided for by law or directed by the Cabinet.
(5)
For the purpose of performing its functions the Authority shall have power to
establish and maintain bank accounts and draw, accept
and endorse bills of
exchange, cheques and promissory notes and to cash and receive money orders,
drafts, letters of credit and other
documentary credits and shall be entitled to
hold and transfer securities and enter into contracts not involving payments or
the
assumption of liabilities in excess of $500 or such other amount as the
regulations provide in any one case, and shall have power
to do such other acts
and things as are incidental to the performance of its
functions.
(6) The Authority shall
keep accounts in such form as Cabinet approves and the accounts of the Authority
shall be subject to inspection
and audit at least once yearly by an auditor
appointed by Cabinet and the auditor shall report to Cabinet the result of each
inspection
and audit.
(7) The
Authority shall have an official seal the affixation of which shall be attested
by the Commissioner or Acting Commissioner
and all Courts, judges and persons
acting judicially shall take judicial notice of the seal of the Authority
affixed to any document
and shall presume that it was duly
affixed.
(8) The Authority shall
be capable of entering into contracts and of suing in its said
name.
(9) No action shall lie
against the Authority or any officer of the Authority in respect of anything
done or omitted in exercise or
purported exercise of its or his functions or
duties under this Act.
(10) The
expenses of the Authority shall be paid from, and be a charge upon, the Treasury
Fund.
(11) Regulations may be made
providing for the employment of officers of the Authority, the delegation of the
powers and functions
of the Authority and regulating the manner in which the
Authority carried out its
functions.
Registered
corporation
agents.
8.
(1) The Minister may, by notice in the
Gazette, appoint any person or corporation to be a registered corporation
agent.
(2) The Minister may revoke
any appointment made under the last preceding
subsection.
(3) No person or
corporation shall act or hold himself or itself out as a registered corporation
agent unless appointed by the Minister
as a registered corporation agent under
this Act.
(4) The Registrar shall
keep a register in which shall be entered the names, addresses and dates of
appointment of all registered
corporation agents and shall permit inspection of
such register without fee.
(5) No
document required or permitted to be lodged with or filed by the Registrar under
the provisions oft his Act shall be lodged
with the Registrar except through a
registered corporation agent.
(6)
No application to the Registrar for any certificate issued under this Act or for
any extract or copy of any document filed by
the Registrar shall be made
otherwise than through a registered corporation
agent:
Provided that the
provisions of this subsection shall not apply where an application is made by a
member of a corporation who is not
a director or officer of that corporation or
of a related corporation for his own personal
use.
Registered
corporation
auditors.
9.
(1) The Minister may, by notice in the Gazette, appoint any person or
corporation to be a registered corporation
auditor.
(2) No person or
corporation shall be appointed, or perform the duties of, auditor of a
corporation unless he has been appointed to
be a registered corporation
auditor.
(3) The Minister may
revoke any appointment made under subsection (1) of this
section.
(4) The Registrar shall
keep a register of registered corporation
auditors.
(5) Until otherwise
prescribed by regulation the annual fee for registration as a registered
corporation auditor shall be the sum
of ten
dollars.
(6) A person or
corporation shall not knowingly consent to be appointed, and shall not knowingly
act, as auditor for any corporation
and shall not prepare for or on behalf of a
corporation any report required by this Act to be prepared by a registered
corporation
auditor-
(a) if he or it is not at the time of his or its so acting or preparing such report a registered corporation auditor;
(b) if he, it or any corporation related to it is indebted to the corporation or a related corporation in an amount exceeding five thousand dollars;
(c) if he, it or any corporation related to it is an officer of the corporation;
(d) if he or it or any corporation related to it is-
(i) a partner, employer or employee of an officer of the corporation; or
(ii) a partner or employee of an employee of an officer of the corporation; or
(e) if he is-
(i) a spouse of an officer of the corporation; or
(ii) a spouse of an employee of an officer of the corporation.
(7)
For the purposes of subsection (6) of this section, a person or corporation
shall be deemed to be an officer of a corporation
if he or it is an officer of a
corporation that is deemed to be related to the corporation by virtue of
subsection (5) of section
4 or he has, at any time within the preceding period
of twelve months, been an officer or promoter of the corporation or of such
other corporation.
(8) For the
purposes of this section, a person or corporation shall not be deemed to be an
officer by reason only of his or its having
been appointed as auditor of a
corporation.
(9) No corporation or
person shall appoint a person or corporation as auditor of a corporation unless
the person or corporation to
be appointed auditor has prior to such appointment
consented in writing to act as such
auditor.
(10) The Cabinet may make
regulations requiring registered corporation auditors to insure against their
liabilities as auditors of
corporations.
Official
liquidators.
10.
(1) For the purpose of proceedings in winding-up corporations the Minister may,
by notice in the Gazette, appoint any person or
corporation to be an official
liquidator.
(2) The Minister may
revoke any appointment made under the last preceding
subsection.
(3) No person or
corporation shall be appointed or act as liquidator of a
corporation-
(a) if he or it is not an official liquidator;
(b) if he, it or any corporation related to it is indebted to the corporation or to a corporation which is deemed to be related to that corporation by virtue of subsection (5) of section 4 in an amount exceeding $1,000;
(c) if he or it has not prior to the appointment consented to be appointed.
(4)
The Registrar shall keep a register of official
liquidators.
(5) Where an official
liquidator is appointed to be a liquidator of a corporation, whether by the
Court or in a voluntary winding-up,
he or it shall forthwith notify the
Registrar in writing of any interest which he, it or any corporation related to
it has in the
corporation as an officer or employee of the corporation or as a
partner, employee or employer of an officer of the corporation or
as a partner
or employee of an employee of the
corporation.
(6) Nothing in this
section shall affect any appointment of a liquidator made before the
commencement of this
Act.
Corporation
brokers.
11.
(1) The Minister may, by notice in the Gazette, appoint any person or
corporation to be a registered corporation broker and may revoke
any appointment
so made.
(2) No person or
corporation shall act as a corporation broker unless he or it is a registered
corporation broker.
(3) The
Registrar shall keep a register of corporation
brokers.
(4) The Cabinet may make
regulations requiring registered corporation brokers to insure against their
liabilities as
such.
Registers.
12.
(1) The Registrar may, subject to this Act and the regulations, keep such other
registers as he considers necessary and in such form
as he thinks
fit.
(2) Any person may, on
payment of the prescribed fee-
(a) inspect any document filed or lodged with the Registrar relating to a trading corporation; or
(b) require any certificate issued under this Act or a copy of or extract from any document kept by the Registrar in relation to a trading corporation to be given or certified by the Registrar.
(3)
Any member, debenture holder, director or liquidator of a holding corporation
may, subject to the other provisions of this Act
and on payment of the
prescribed fee-
(a) inspect any document filed by the Registrar in respect of that holding corporation; or
(b) require any certificate issued under this Act or a copy or extract from any document kept by the Registrar in respect of that holding corporation to be given or certified by the Registrar,
but
save as aforesaid no document filed by the Registrar in respect of a holding
corporation shall be available for inspection or
copying.
(4) A copy of or
extracted from any document filed by the Registrar certified to be a true copy
or extract under the hand and seal
of the Registrar shall in any proceedings be
as admissible in evidence as if it were the original document or the part
thereof so
extracted.
(5) In any
legal proceedings a certificate under the hand and seal of the Registrar that a
requirement of this Act specified in the
certificate-
(a) had or had not been complied with at a date or within a period specified in the certificate;
(b) had been complied with upon a date specified in the certificate but not before that date,
shall
be received as prima facie evidence of the matter specified in that
certificate.
(6) If the Registrar
is of opinion that any document lodged with him -
(a) contains matter contrary to law;
(b) by reason of any omission or misdescription has not been duly completed;
(c) does not comply with the requirements of this Act;
(d) contains any error, alteration or erasure; or
(e) has not been submitted through a registered corporation agent,
he
may refuse to file the document and request that the document be appropriately
amended or completed and re-lodged or that a fresh
document be lodged in its
place.
(7) If a corporation or
person, having been in default in complying with-
(a) any provision of this Act or of any other law which requires the lodging in any manner with the Registrar of any return, account or other document or the giving of notice to him on any matter; or
(b) any request of the Registrar to amend or complete and re-lodge any document or lodge a fresh document,
fails
to make good the default within sixty days after the service on the corporation
or person of a notice requiring it to be done,
the Minister may, on an
application by any member or creditor of the corporation or by the Registrar,
make an order directing the
corporation and any officer thereof or such person
to make good the default within such time as is specified in the
order.
(8) Nothing in this section
shall prejudice the operation of any enactment or other section of this Act
imposing penalties on a corporation
or its officers or such person in respect of
any such, default as
aforesaid.
Re-lodging
of lost
documents.
13.
(1) If, in the case of any corporation, the memorandum or articles or any other
document relating to the corporation lodged with
or filed by the Registrar has
been lost or destroyed, the corporation may lodge an application with the
Registrar for leave to lodge
a copy of the document as originally lodged or
filed, as the case may be.
(2) On
such application being made the Registrar may direct notice thereof to be given
to such persons and in such manner as he thinks
fit.
(3) The Registrar upon being
satisfied-
(a) that the original document has been lost or destroyed;
(b) of the date of the lodging thereof with, or the filing thereof by, the Registrar;
(c) that a copy of such document produced to the Registrar is a correct copy; and
(d) that the proper fee payable on lodging the original document has been paid,
may
certify upon such copy that he is so satisfied and direct that such copy be
lodged in the manner required by law in respect of
the
original.
(4) Upon the lodgement,
the copy for all purposes shall from such date as is mentioned in the
certificate as the date of the lodging
or filing, as the case may be, of the
original with the Registrar have the same force and effect as the
original.
(5) The Court may, by
order upon application by any person aggrieved and after notice to any other
person whom the Court directs,
confirm, vary or rescind the certificate and the
order may be lodged with the Registrar and shall be registered by him, but no
payments,
contracts, dealings, acts and things made, had or done in good faith
before the registration of such order and upon the faith of
and in reliance upon
the certificate shall be invalidated or affected by such variation or
rescission.
(6) No fee shall be
payable to the Registrar upon the lodging of a document lodged in pursuance of
subsection (3) of this section.
PART III
CONSTITUTION OF CORPORATIONS
Division 1 - Incorporation
Formation
of
corporations.
14.
(1) Subject to this Act, the Authority or any one or more persons or
corporations may by subscribing its, his or their name or names
to a memorandum
and complying with the requirements as to registration form a holding
corporation for any lawful
purpose.
(2) Subject to this Act,
any two or more persons or corporations may by subscribing their names to a
memorandum and complying with
the requirement as to registration form a trading
corporation for any lawful
purpose.
(3) If a subscriber to a
memorandum is a corporation or the Authority, the memorandum may be subscribed
by that corporation or the
Authority under its seal or by some person duly
authorised on its behalf.
(4)
Every corporation incorporated under this Act shall be a corporation limited by
shares.
Registration
and
incorporation.
15.
(1) Subject to the provisions of subsections (10) to (23) of this section, a
person desiring the incorporation of a corporation shall
cause to be lodged with
the Registrar the memorandum and articles, if any, of the proposed corporation
together with an unsigned
true copy thereof and the other documents required to
be lodged by or under this Act, and the Registrar upon payment of the prescribed
fees shall, subject to this Act, register the corporation by filing the
memorandum and articles, if
any.
(2) The Registrar may, if he
thinks fit, require a certificate by the registered corporation agent lodging
the documents stating that
all or any of the requirements of this Act have been
complied with and the Registrar may accept such certificate as sufficient
evidence
of such compliance.
(3)
On the filing of the memorandum the Registrar shall certify under his hand and
seal that the corporation is, on and from the date
specified in the certificate,
incorporated and that the corporation is-
(a) a trading corporation; or
(b) a holding corporation,
as
the case may be and shall deliver his certificate to the registered corporation
agent who lodged the documents or as such agent
in writing
requests.
(4) The first
certificate of incorporation shall be valid for twelve months from the date of
incorporation and shall be renewable
thereafter for further periods of twelve
months from each anniversary of the date of incorporation upon due lodgement of
the annual
return of the corporation and payment of the prescribed fee therefor
and such renewal certificate shall be issued by the Registrar
within fourteen
days after the due lodgement of the annual return and payment of such fee and
shall be delivered to the registered
corporation agent lodging the annual return
or as such agent in writing
requests.
(5) Every certificate of
incorporation shall show on its face the date of its expiry, and, if articles
are filed, a notation to that
effect.
(6) Any director or
officer of a corporation who permits a corporation to carry on business after
the expiry of its certificate of
incorporation and before a current certificate
of incorporation has been issued shall, unless the Minister otherwise directs,
be
personally liable for the debts and liabilities of the corporation incurred
during such period as the corporation carries on business
without a current
certificate of incorporation.
(7)
On and from the date of incorporation specified in the certificate of
incorporation but subject to this Act, the subscriber or
subscribers to the
memorandum, while they remain members together with such other persons as may
from time to time become members
of the corporation, shall be a body corporate
by the name contained in the memorandum capable forthwith of exercising all the
functions
of a corporation and of suing and being sued and having perpetual
succession and a corporate seal but with such liability on the
part of the
members to contribute to the assets of the corporation in the event of its being
wound up as is provided by this
Act.
(8) A certificate of
incorporation under the hand and seal of the Registrar shall be conclusive
evidence that all the requirements
of this Act in respect of incorporation and
of matters precedent and incidental thereto have been complied with and that the
corporation
referred to herein was duly incorporated under this
Act.
(9) Except where a
corporation is incorporated by the Authority pursuant to a direction under
subsection (10) of this section, every
subscriber to the memorandum shall upon
its incorporation be a member of the corporation and on the incorporation of the
corporation-
(i) if the articles so permit and the subscriber so desires and has paid up in full the nominal value of his shares, he shall be issued with a share warrant or warrants for the shares agreed to be taken by him in the memorandum and the appropriate entry shall be made in its register of members;
(ii) in any other case, without formal allotment of shares, he shall be entered as a member in its register of members in respect of the share or shares subscribed for by him in the memorandum.
(10)
A person desiring the incorporation of holding corporation may, if he so
desires, cause to be delivered to the Authority an unsigned
memorandum of the
proposed corporation together with an unsigned true copy thereof and together
with-
(a) a request in writing signed by him that no shares or share warrants be issued to him and that he be not a member of the corporations, and that one share be issued on incorporation to the Authority;
(b) an amount sufficient to pay-
(i) the fees payable on lodgement of the documents to be lodged for incorporation of the corporation; and
(ii) the fees payable to a registered corporation agent, a registered director and a resident secretary in respect of their services in and about the incorporations of the corporation and the issue of the share to be issued pursuant to the request in paragraph (a) above and any debenture to be issued pursuant to subsection (14) of this section; and
(c) the nomination, if any, made for the purpose of subsection (17).
(11)
The Authority, if it sees fit, upon receipt of the documents and payments
referred to in subsection (10) shall seal the memorandum
for the incorporation
of the corporation and shall cause the memorandum to be lodged with the
Registrar through a registered corporation
agent together with the prescribed
fees therefor and at the same time shall send to the registered corporation
agent an appointment
in writing in the form required by Table B and effective
for the purpose of appointing as the only director of the corporation a
registered director and shall pay to the registered corporations agent its fee
therefore and any fees payable to the registered director
and to a resident
secretary for the performance of their duties as such in and about the
incorporation of the corporation and the
issue of the share to be issued
pursuant to the request referred to in paragraph
(a)
of subsection
(10).
(12) Upon the incorporation
of the corporation, the Authority shall be the only member of the corporation
and, without formal allotment
of its share, the Authority shall be entered as a
member in the register of members of the corporation in respect of the share
referred
to in paragraph
(a)
of subsection (10) and such share shall be deemed to be fully paid up and shall
be issued to the Authority.
(13)
Unless there be delivered to the Authority with the documents referred to in
subsection (10) a written request that a debenture
should not be issued, the
corporation shall, as soon as convenient after incorporation, prepare a form of
bearer debenture which
shall incorporate the provisions set forth in Table C to
this Act and shall cause the same to be signed by a person appointed by
the
registered director, which form of bearer debenture shall be expressed to secure
to the bearer a sum equal to the amounts paid
by the Authority for the fees of
the registered director and resident secretary expressed in Australian dollars,
and shall thereupon
post or deliver the said form of bearer debenture with a
form of receipt attached to the person who signed the request referred to
in
subsection (10) or as he directs. The said form of bearer debenture shall not
take effect as a debenture and will give rise to
no rights against the
corporation until the corporation receives at its registered office in Nauru a
receipt of the kind and signed
in the manner referred to in the next following
subsection.
(14) Upon a receipt
for the form of bearer debenture signed for or on behalf of the person to whom
the same was posted or delivered
being received at the registered office of the
corporation in Nauru, the same shall be entered in the records of the
corporation
and thereupon the corporation shall be deemed to have resolved to
issue the bearer debenture and the same shall thereupon be a specialty
debt, due
from the corporation to the bearer, situate in the place where the bearer
debenture is. A receipt purporting to be signed
as aforesaid shall be prima
facie evidence that it was so
signed.
(15) Where a request of
the kind referred to in paragraph
(a)
of subsection (10) has been given to the Authority, the registered director
appointed pursuant to subsection (11) shall not be removed
and no additional
director of the corporation shall be appointed until the share referred to in
paragraph
(a)
of subsection (10) has been issued and the debenture, if any, to be issued
pursuant to subsection (14) has been
issued:
Provided that the
Authority may, notwithstanding anything contained in the articles, until the
share referred to in paragraph
(a)
of subsection (10) has been issued and the debenture, if any, to be issued
pursuant to subsection (14) has been issued appoint a
registered director in
substitution for the registered director so appointed and may remove any
registered director.
(16) Where a
request of the kind referred to in paragraph
(a)
of subsection (10) has been made to the
Authority, the person making such request shall not have any right to have a
corporation incorporated
or to have any shares or debentures issued and it shall
be in the absolute discretion of the Authority whether upon receiving such
request it acts in accordance with the provisions of subsection (11) of this
section or not:
Provided that, if
the Authority neglects or refuses to act in accordance with the provisions of
that subsection, the Authority shall,
after deducting such costs, charges and
expenses as in its discretion are properly attributable to its consideration of
such request,
repay the balance to the person making such request or as he
directs.
(17) (a) Where a share is issued to the Authority under the provisions of this section, such share shall, notwithstanding any provisions of the articles, be and be deemed to be forfeited to the corporation at the expiration of three months from the date of its incorporation and the corporation shall cause an entry to that effect to be made in its register of members and the certificate of such share shall be delivered up to the corporation and cancelled;
(b) In the event of a form of bearer debenture of the kind referred to in subsection (14) of this section not having been issued or a receipt for such a form, if issued, not being received by the corporation at its registered office in Nauru prior to the forfeiture of the share issued to the Authority, the director or directors of the corporation shall issue to a trustee corporation carrying on business in Nauru one ordinary share, or at the discretion of the director or directors one share of another type or class, by way of gift and without any valuable consideration, and thereupon the said trustee corporation shall be a member of the corporation and its name shall be entered in the register of members and the said trustee corporation shall hold the said share and any income rights and accruals thereto upon trust for the person or persons, if any, nominated in the nomination referred to in paragraph (c) of subsection (10) or, if there is no such nomination, for the person who made the request referred to in subsection (10). The trustee corporation shall be entitled to be indemnified out of the assets of the corporation for its reasonable costs and expenses in administering the trusts upon which such share is held and in making payment of such fees and charges payable by the corporation as it sees fit to make on behalf of the corporation;
(c) Where a person nominated in the nomination referred to in paragraph (c) of subsection (10) has died before the share referred to in the last preceding paragraph is issued to the trustee corporation, then, unless his nomination was conditional upon his being alive at the time of such issue, the trustee corporation shall hold the share and any income rights and accruals thereto upon trust for the executor of his will or the administrator of his estate, as the case may be;
(d) Where the person nominated in the nomination referred to in paragraph (c) of subsection (10) has died before the share referred to in paragraph (b) of this subsection is issued to the trustee corporation and the nomination was conditional upon his being alive at the time of such issue, then, unless any other person has been nominated to be the beneficiary in his place in the event of his not being alive, the trustee corporation shall hold the shares and any income rights and accruals thereto upon trust for the person who made the nomination or, if that person has died before the share is issued, for the executor of his will or the administrator of his estate, as the case may be;
(e) Where no nomination of the kind referred to in paragraph (c) of subsection (10) has been made, and the person who made the request referred to in paragraph (a) of subsection (10) has died before the share referred to in paragraph (b) of this subsection is issued to the trustee corporation, the trustee corporation shall hold the share and any income rights and accruals thereto on trust for the executor of the will of such person or for the administrator of his estate as the case may be.
(18)
The Authority shall not be a trustee for the person who made the request
referred to in subsection (10) or for the person or
persons nominated as
aforesaid and no trust shall be constituted by the issue of the share to the
Authority under the provisions
of this
section.
(19) The Minister shall
be the only person entitled to enforce the performance of the obligations of the
Authority under the provisions
of this
section.
(20) The requests
referred to in paragraph
(a)
of subsection (10) and in subsection (13) and any variation of such requests
made under this subsection may be revoked or varied
only by the Minister and
then only with the consent of the person who made the requests or such person as
he nominates for the purpose
in such
requests.
(21) Where a request of
the kind referred to in paragraph
(a)
of subsection (10) is made to the Authority, the registered corporation agent
through whom the documents relating to that corporation
are lodged by the
Authority shall be retained and employed by the Authority and not by the person
making the request; there shall
not be, nor shall there be deemed to be any
contract, agreement or arrangement between the registered corporation agent and
that
person, nor shall the registered corporation agent be, or be deemed to be,
the agent of that person.
(22)
Where a request of the kind referred to in paragraph
(a)
of subsection (10) is made to the
Authority for the incorporation of any corporation, no contract, agreement or
arrangement in respect
of that corporation shall arise, or be deemed to have
arisen, between the person making the request and the Authority, notwithstanding
that the Authority may incorporate that corporation or make any repayment of the
money received from that person nor shall the Authority
be, or be deemed to be,
the agent of that person in respect of anything done by it as a consequence of
the request.
(23) Where a request
of the kind referred to in paragraph
(a)
of subsection (10) is made in respect of a corporation, no articles shall by
filed with the memorandum of that corporation and no
articles other than the
articles as set out in Table B of the Second Schedule shall be adopted as the
articles of the corporation
until after the expiration of three months from the
date of its
incorporation:
Provided that,
where by any such request the Authority is specifically
requested-
(a) to the articles with the memorandum, or
(b) to cause the corporation to adopt new articles before the expiration of three months from the date of its incorporation,
such
articles being additional to or in substitution for all or any of the articles
as set out in the said Table B, the Authority
may, if it thinks fit,
notwithstanding the provisions of this subsection, lodge such articles with the
Registrar at the same time
as it lodges the memorandum or at any time within
three months of the incorporation of the corporation and such articles shall,
notwithstanding
the issue of a bearer debenture by the corporation under
subsection (13), be, upon the filing thereof and until altered in any manner
provided for by this Act, the articles of the corporation.
Inserted by No. 1, 1973, s. 4.
(24)
After incorporation any person who agrees to become a member of a corporation
and whose name is entered into its Register of
Members or who becomes the holder
of a share warrant shall be a member of the
corporation.
(25) Regulations may
be made prescribing the form of documents to be used pursuant to the provisions
of this
section.
Continuation
in Nauru of Corporation incorporation outside
Nauru.
15A.
(1) Subject to subsection (6) of this section and to section 247, a corporation
incorporated as a company or corporation under the
laws of any country other
than Nauru, or of any jurisdiction within such a country, may, if it appears to
the Registrar to be authorised
by the laws of that country or jurisdiction,
apply to the Registrar to be registered as being continued in Nauru as if it had
been
incorporated under this Act.
Inserted by No. 1, 1973, s. 5.
(2)
Upon application under the preceding subsection, supported by such material as
he considers adequate and satisfactory, the Registrar
may, if he is satisfied
that the consent of such number or proportion of the shareholders,
debenture-holders and creditors of the
corporation as may be required by the
laws of that country or jurisdiction, and the consent of the proper officer of
that country
or jurisdiction, to such registration has been obtained by the
corporation, register such corporation as being so continued and,
if so
registered, the corporation shall be deemed thereafter to be a corporation
incorporated under this Act and domiciled in
Nauru:
Provided that no
corporation may be registered under this section if-
(a) its winding-up has commenced;
(b) a receiver of its property has been appointed; or
(c) there is any scheme or order in force in relation thereto whereby the rights of creditors are suspended or restricted.
(3)
A corporation applying under subsection (1) to be registered in Nauru shall
state in its application whether it is seeking to
be registered as a trading
corporation or a bolding corporation. The Registrar shall not register any
corporation under this section
unless he is satisfied that it would be eligible
to be incorporated in Nauru as a corporation of the class in which it seeks to
be
registered and, if the registers it, he shall register it either as a trading
corporation or as a holding
corporation.
(4) The registration
of a corporation under this section shall not operate-
(a) to create a new legal entity;
(b) to prejudice or affect the continuity of the corporation;
(c) to affect the property of the corporation;
(d) to render defective any legal or other proceedings instituted, or to be instituted, by or against the corporation or any other person; or
(e) to affect any rights, powers, authorities, duties, functions, liabilities or obligations of the corporation or any other person.
(5)
Upon the registration of a corporation under this section-
(a) so much of its constitution as would, if it had been incorporated under this Act, have been required by this Act to be included in its memorandum of association shall be deemed to the be registered memorandum of association of the corporation; and
(b) so much of its constitution as does not, by virtue of the preceding paragraph, comprise its memorandum of association shall be deemed to be the registered articles of association of the corporation,
and
shall be binding on the corporation and its members
accordingly.
(6) No corporation
incorporated by private Act or which could not be incorporated under this Act
shall be registered under the preceding
subsection.
(7) A corporation
registered under subsection (1) shall pay the same fee for registration as if it
were being registered upon incorporation
in Nauru and the provisions of
regulations relating to the changing of names by companies incorporated under
the Companies Ordinance
1912 of the Territory of Papua in its application to
Nauru and registered under section 3 of this Act shall apply mutatis mutandis
thereto.
Requirements
as to
memorandum.
16.
(1) The memorandum of every corporation
shall be printed and divided into numbered paragraphs and dated and shall state
the following–
Amended by No. 14, 1975, s. 4.
(a) the name of the corporation;
(b) that the corporation is a trading corporation or a holding corporation, as the case may be;
(c) the amount of share capital with which the corporation proposes to be registered and the division thereof into shares of a fixed amount;
(d) in the case of a trading corporation the full names and addresses of the subscribers thereto; and
(e) that the subscriber or subscribers to the memorandum desire the formation of a corporation and that on incorporation shares of the number and class in the capital of the corporation set out are to be issued to the subscriber or the respective subscribers.
(2)
Members shall be liable to the corporation for the amount unpaid on their shares
but their liability as members is, subject to
the provisions of this Act,
limited to the amount, if any, unpaid on the shares held by them.
Division 2 - Status of corporations
Powers
of
corporations.
17.
The powers of a corporation shall include, unless expressly excluded or modified
by the articles, the powers set forth in the First
Schedule, which shall be
exercisable in Nauru and elsewhere, and such other powers, if any, as are set
out in its articles or granted
to it generally or specially by regulations made
under this
Act.
Ultra
vires
transactions.
18.
(1) No act of a corporation, including the entering into of an agreement by the
corporation, and no conveyance or transfer of property
whether real or personal
to or by a corporation shall be invalid by reason only of the fact that the
corporation was without capacity
or power to do such act or to execute or take
such conveyance or transfer.
(2)
Any such lack of capacity or power may be asserted or relied upon only
in-
(a) proceedings against the corporation by any member of the corporation or, where the corporation has issued debentures secured by a floating charge over all or any of the corporation's property, by the holder of any of those debentures, to restrain the doing of any act or acts or the conveyance to transfer of any property to or by the corporation; or
(b) any proceedings by the corporation or by any member of the corporation against the present or former officers of the corporation.
(3)
If the unauthorised act, conveyance or transfer sought to be restrained in any
proceedings under paragraph
(a)
of subsection (2) of this section is being or is to be performed or made
pursuant to any contract to which the corporation is a party,
the Court may, if
all the parties to the contract are parties to the proceedings and if the Court
deems it to be just and equitable,
set aside and restrain the performance of the
contract and may allow to the corporation or to the other parties to the
contract,
as the case requires, compensation for the loss or damage sustained by
either of them which 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.
Names
of
corporations.
19.
(1) Except with the consent of the Minister, a corporation shall not be
registered by a name that, in the opinion of the Registrar,
is undesirable or is
a name, or includes a name, of a kind that the Minister directs the Registrar
not to accept for
registration.
(2) A corporation
shall have the word "Corporation" or the word "Incorporat