Introduction
This document is intended as a guide for companies and their directors to the principal filing requirements of the Companies Act 1993. It is not a complete statement of the obligations of companies or their directors, nor is it intended as legal advice. Therefore, the omission of any information will not relieve a company or its directors from any penalty that may be incurred through failure to comply with the Act.
Unless otherwise stated, all references in this document relate to the Companies Act 1993.
Filing of Documents
All forms forwarded to the Companies Office for filing must show the name and number of the company to which the document relates and the name, address and telephone/facsimile number of the solicitor, accountant, or other person by whom the document is filed. It is important to ensure that the form is completed correctly and all necessary information is provided so that any questions about the document can be dealt with as quickly as possible.
The Registrar may decline to complete the registration of a document for the following reasons:
- it is not in the prescribed form, if any, or
- it does not comply with the Act or regulations made under the Act, or
- it is not printed or typewritten, or
- it has not been properly completed, or
- it contains matter that is not clearly legible.
All documents relating to a company (excluding charges and satisfactions) must be filed at the Companies Office National Processing Centre, Private Bag 92061, Auckland Mail Centre, Fax 09-912-7787. Charge and satisfaction documents should be sent to the regional Companies Office where the company file is held.
The Registrar may refuse to register a document or decline to accept a document for registration if the correct fee is not paid. All cheques should be crossed and made payable to the Ministry of Commerce.
Books and Registers
A company must maintain the following books and registers:
- A share register (described in section 87).
- Company records (described in section 189).
- Accounting records (described in section 194).
- A register of charges created by the company under the Companies Act 1955 (if applicable) and the Companies (Registration of Charges) Act 1993.
These requirements are described in detail below.
Share Register
A company must maintain a share register that records the shares issued by the company and states:
- Whether, under the company’s constitution, or the terms of issue of the shares, there are any restrictions or limitations on their transfer,
- Where any document that contains the restrictions or limitations may be inspected.
- The share register must also state the following with respect to each class of shares:
- An alphabetical list of the names and last known address of each person who is or has within the last 10 years been a shareholder,
- The number of shares of that class held by each shareholder within the last 10 years,
- The date of any:
- issue of shares to each shareholder within the last 10 years and the name of the person to whom the shares were issued,
- repurchase or redemption of shares from each shareholder within the last 10 years and the name of the person from whom the shares were repurchased/redeemed,
- transfer of shares by or to each shareholder within the last 10 years and the name of the person to or from whom the shares were transferred.
An agent (such as a professional share registry) may maintain the share register of any company.
A share register may be divided into two or more registers and kept in different locations if a company’s constitution expressly permits such a division. A notice of the location of each register must be delivered to the Registrar no less than 10 working days after the share register is divided.
There is no prescribed form for this notice.
Company Records
A company must keep the following documents at its registered office:
- The constitution of the company.
- Minutes of all meetings and shareholders’ resolutions within the last seven years.
- An interests register (of directors’ interests).
- Minutes of all meetings and directors’ resolutions and directors’ committees within the last seven years.
- Certificates issued to directors under the Act within the last seven years.
- The full names and addresses of current directors.
- Copies of all written communications to all shareholders or holders of the same class of shares during the last seven years, including annual reports under section 208 of the Act.
- Copies of all financial statements and group financial statements required to be completed by the Act or the Financial Reporting Act 1993 for the last seven completed accounting periods of the company.
- The accounting records required by section 194 of the Act for the current accounting period and for the last seven completed accounting periods of the company.
- The share register.
Notwithstanding the general requirements to keep these records at a company’s registered office, those records referred to in paragraphs 1 to 10 above may be kept at any other location in New Zealand provided their location is notified to the Registrar within 10 working days of the change.
The share register, if undivided, is the company’s principal register and must be kept at its registered office. If divided, the registers may be kept elsewhere (see “Share Register” above).
Accounting Records
The board of a company must ensure that the company keeps accounting records. These records must:
- correctly record and explain the company’s transactions,
- at any time enable the financial position of the company to be determined with reasonable accuracy,
- enable the directors to ensure that the company’s financial statements comply with section 10 of the Financial Reporting Act 1993 and any group financial statements comply with section 13 of that Act,
- enable the company’s financial statements to be readily and properly audited.
Charges
The registration of charges created by or existing on property acquired by companies that are registered under the Companies Act 1993 is governed by the Companies (Registration of Charges) Act 1993. The Companies (Registration of Charges) Act 1993 applies the provisions of Part IV of the Companies Act 1955 to the companies registered under the Companies Act 1993.
Not every charge created by a company over its assets is required to be registered, only those listed in section 102(2) of the Companies Act 1955. The most common of these are debentures, mortgages, and instruments by way of security.
A copy of every document that creates a charge over a company’s assets and is required to be registered must be filed with the Registrar. Each must be accompanied by a ‘Certificate of Execution of Instrument Creating a Charge and Particulars of Charge’ – Comm Aff 12 form.
If the document that creates the charge has already been registered under another Act (e.g. a mortgage under the Land Transfer Act 1952), then it is not necessary to file a copy of the document with the Registrar. Instead, a company may complete and file only the ‘Certificate of Execution of Instrument Creating a Charge and Particulars of Charge’ – Comm Aff 12.
A copy of the document that creates a charge and/or a certificate of particulars of charge must be filed within 30 days after the date a charge is executed in New Zealand or the property subject to a charge is acquired. If a charge has been executed outside New Zealand, then filing must take place within three months after the date of execution. A charge that is filed out of time is accepted for registration provided it has been registered under another Act and evidence of such registration is produced. A penalty fee for late filing may be payable to the Registrar. In other cases, an order from the Court extending the time for registration will be necessary.
Registered Office
Every company must have a registered office in New Zealand. The registered office address must be notified to the Registrar on the application for incorporation.
If a company wishes to change its registered office, the change and the date upon which it is to take effect must be notified to the Registrar on the prescribed form – Form 12. This date must be at least five working days after the notice is registered.
Address for Service
Every company must have an address for service in New Zealand. This may be at the same address as a company’s registered office or it may be elsewhere, but it must not be at a postal centre or document exchange. A company’s address for service is first notified to the Registrar on the application for incorporation.
If a company wishes to change its address for service, the change and the date on which it is to take effect must be notified to the Registrar on the prescribed form – Form 13. This intended date of change must be at least five working days after the notice is registered.
Particulars of Directors
Any changes in the director(s) of a company or particulars relating to the director(s) must be notified, in the prescribed form – Form 11, to the Registrar. The changes that must be notified are:
- Changes to a director’s name or residential address.
- Removal from office in accordance with the Act or a company’s constitution.
- Disqualification from holding office as a director.
- Appointments.
- Resignations.
- Deaths.
New appointments or resignations must be notified within 20 working days of an appointment being made or a resignation taking effect. The other changes must be notified within 20 working days of the company first becoming aware of the change or event. If these timeframes are not observed, penalty fees may be incurred when the notice is filed.
A new director must consent to act as a director and certify that he or she is not disqualified from being appointed or holding office as a director. There is a prescribed form of consent – Form 10 which should be completed and attached to the ‘Notice of Change of Directors and Particulars of Directors’. A person cannot be a director of a company if he/she is:
- under 18 years of age, or
- an undischarged bankrupt, or
- prohibited from directing/promoting/participating in the management of a company under any statutory provisions, or
- subject to a property order made under sections 30 or 31 of the Protection of Personal and Property Rights Act 1988, or
- not qualified pursuant to the constitution of a particular company.
Annual Meeting
Every company must hold an annual meeting of shareholders once in each calendar year. The meeting must be no later than six months after the company’s balance date (ten months for an exempt company as defined in the Financial Reporting Act 1993 if all shareholders agree) and no later than 15 months after the previous annual meeting.
A company does not have to hold its first annual meeting in the calendar year of its registration, but must hold that meeting within 18 months of the date of its registration.
Appointment of Auditors
At each annual meeting, a company must appoint an auditor to hold office until the next annual meeting, unless an unanimous resolution is passed at or before the meeting which stipulates that an auditor is not necessary.
There are, however, some classes of companies that must always appoint an auditor. These are:
- A New Zealand subsidiary of a company that is incorporated outside New Zealand.
- A company in which 25% or more of the voting power is controlled by overseas interests.
- A company that is an issuer of securities within the meaning of section 4 of the Financial Reporting Act 1993.
Annual Return
All companies are required to file an annual return in a designated month and pay the prescribed annual return fee. An annual return is sent by the Registrar to a company’s address for communication notified to the Registrar or to its registered office in the month before the return is due to be filed.
A company is not required to file an annual return in the calendar year of its incorporation.
Change of Name
A company may choose to change its name. It must first apply to the Registrar of Companies to reserve the name it has chosen. For more information on company names, see “Company Names” in this library. After the company has been notified that the new name has been reserved, it must pass a resolution to change the name and notify the Registrar of the change. There is a prescribed form for notice of the change – Form 5 – but no fee.
Adoption, Alteration & Revocation of Constitution
The shareholders of a company without a constitution may adopt one by special resolution. Shareholders may also alter or revoke a constitution by special resolution. The board of a company must ensure that notice of an adoption, alteration or revocation is filed with the Registrar within 10 working days of the event taking place. There is a prescribed form for this notice – Form 6 – but no fee.
Issue of Shares
After registration, a company must issue to any person named in the application as a shareholder, the number of shares that the application says the shareholder will receive.
After the first issue of shares, the board of a company may issue shares at any time, to any person, and in any quantity it sees fit. This power is subject to the provisions of the Act and any provisions in a company’s constitution that may modify its right to issue shares.
The Registrar must receive notice of the share issue on the prescribed form – Form 7 or 8, as appropriate within 10 working days of the issue.
Distributions to Shareholders
The board of a company may authorise a distribution by the company at any time, and of any amount, and to any shareholders it sees fit. But before doing so it must:
- Be satisfied, on reasonable grounds, that the company will be able to satisfy the solvency test immediately after the distribution.
- Ensure that it does not breach section 53 of the Act, or any provision in its constitution relating to distributions.
- Directors who vote in favour of a distribution must sign a certificate stating that the company can satisfy the solvency test and give the grounds for that opinion. A company satisfies the solvency test if:
- it is able to pay its debts as they become due in the normal course of business, and
- the value of the company’s assets is greater than the value of its liabilities including contingent liabilities.
There can be fines of up to $10,000 if the above requirements and documents are not maintained by Companies and their Directors. BizOffice offers Company Folder to make the maintenance of your companies easier.
Source: New Zealand Companies Office – Information Library