New Zealand Legislation: Acts
Acts are laws made by Parliament
Reprint
as at 24 November 2009
| Public Act | 1978 No 103 |
| Date of assent | 20 October 1978 |
Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this eprint.
A general outline of these changes is set out in the notes at the end of this eprint, together with other explanatory material about this eprint.
The Securities Act 1978 is administered by the Ministry of Commerce.
7B Terms and conditions of authorisation [Repealed]
14 Remuneration of members [Repealed]
14A Travelling allowances and expenses [Repealed]
17 General powers of Commission [Repealed]
18 Powers of Commission to take evidence [Repealed]
20 Employees of Commission [Repealed]
21 Employment of experts [Repealed]
26 Appeals to High Court on questions of law only [Repealed]
30 Annual reports [Repealed]
31A Funds of Commission [Repealed]
31B Bank accounts [Repealed]
31C Auditor-General to be auditor of Commission [Repealed]
31CA Crown entity [Repealed]
31D Investment of money [Repealed]
Relief orders in respect of section 37
Transitional provision for relief orders
Other orders in relation to section 37AH and section 37AI relief orders
37AJ Other orders that Court may make in relation to relief orders under section 37AH or section 37AI
Service, rights to appear, and other proceedings
Relief orders in respect of section 37A
Transitional provision for relief orders
Service, rights to appear, and other proceedings
38AA Meaning of authorised advertisement in relation to offers of debt securities by registered banks [Repealed]
Delayed allotment orders and prohibition orders concerning simplified disclosure prospectuses
Trust deeds and deeds of participation
Trustees and statutory supervisors
Liability of issuers, etc, and offences
55 Interpretation of provisions relating to advertisements, prospectuses, and registered prospectuses
General provisions on civil liability remedies
Orders to preserve assets to satisfy claims
69A Appeals from decisions under section 67A [Repealed]
Commission's powers for receiving evidence
Exercise of inspection and evidence powers for overseas regulators
Commission's power to accept undertakings
Appeals of Commission decisions
70AA Regulations may require compliance with generally accepted accounting practice and incorporate financial reporting standards by reference
An Act to establish a Securities Commission; and to consolidate and amend the law relating to the offering of securities to the public, and to extend the application thereof
(1) This Act may be cited as the Securities Act 1978.
(2) The provisions of this Act shall come into force on a date to be fixed by the Governor-General by Order in Council. For the purposes of this subsection, one or more Orders in Council may be made bringing different provisions of this Act into force on different dates.
(1) In this Act, unless the context otherwise requires,—
Advertisement has the meaning set out in section 2A of this Act
Advertisement: this definition was inserted, as from 16 December 1982, by section 2(1) Securities Amendment Act 1982 (1982 No 147).
Advertisement: this definition was amended, as from 24 March 1995, by section 13(1) Reserve Bank of New Zealand Amendment Act 1995 (1995 No 5) by inserting the words “, or a disclosure statement published by a registered bank in accordance with section 81 of the Reserve Bank of New Zealand Act 1989”
.
Advertisement: this definition was substituted, as from 1 October 1997, by section 3(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Allot includes sell, issue, assign, and convey; and allotment has a corresponding meaning
Approved superannuation scheme
[Repealed]
Approved superannuation scheme: this definition was repealed, as from 22 March 1989, by section 31 Superannuation Schemes Act 1989 (1989 No 10).
Associated persons or persons associated with each other are—
(a) Persons who are relatives within the meaning of the Income Tax Act 2007; or
(b) Persons who are partners to whom the Partnership Act 1908 applies; or
(c) Bodies corporate that consist substantially of the same members or shareholders or that are under the control of the same persons; or
(d) A body corporate and a person who has the power, directly or indirectly, to exercise, or control the exercise of, the rights to vote attached to 25 percent or more of the voting securities of the body corporate; or
(e) A body corporate and a person who is a director of the body corporate:
Authorised advertisement has the meaning assigned to it by section 38 or section 38AA of this Act
Authorised advertisement: this definition was amended, as from 1 October 1997, by section 3(3) Securities Amendment Act 1996 (1996 No 100), by inserting the words “or section 38AA”
. See section 2 of that Act for transitional provisions relating to its application.
Authorised life insurance company
[Repealed]
Authorised life insurance company: this definition was inserted, as from 1 July 1989, by section 42(1) Securities Amendment Act 1988 (1988 No 234).
Authorised life insurance company: this definition was repealed, as from 1 October 1997, by section 3(4) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Bonus bond means a unit in an approved unit trust within the meaning of section 3(1) of the Finance Act (No 2) 1990
Bonus bond: this definition was inserted, as from 1 October 1997, by section 3(5) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Books and papers
[Repealed]
Books and papers or books or papers: this definition was repealed, as from 1 October 1997, by section 3(4) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Building society has the same meaning as in section 2(1) of the Building Societies Act 1965
chattel includes livestock and emissions units, but does not include a book debt or negotiable instrument
civil liability event has the meaning set out in section 55B
civil liability event: this definition was inserted, as from 25 October 2006, by section 6(2) Securities Amendment Act 2006 (2006 No 46). See section 23 of that Act as to the transitional validation for small employer superannuation schemes. See section 24 of that Act as to the transitional provision for existing offences and contraventions.
Commission—
(a) means the Securities Commission established under Part 1; or
(b) for the purposes of determining any matter or class of matter specified in a determination under section 14B, means the division of the Commission specified in the determination in accordance with section 14D(1)(a).
Commission: this definition was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
company means a company, or an overseas company, within the meaning of section 2(1) of the Companies Act 1993
Company: this definition was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
company: this definition was substituted, as from 15 April 2004, by section 3(2) Securities Amendment Act 2004 (2004 No 31).
Contributory mortgage means a mortgage of land that—
(a) Secures money owing to 2 or more persons or to a nominee on behalf of 2 or more persons, whether or not the mortgage originally secured money owing to only one person; or
(b) Has the same priority in respect of the land as another mortgage or mortgages of that land;—
and, for the purposes of this definition, money owing to not more than 5 persons as joint tenants shall be deemed to be owed to one person
Contributory mortgage broker means a person (not being a mortgagor under the mortgage or any other person to whom or for whose benefit any money is lent in consideration for the mortgage given by the mortgagor) who—
(a) Offers an interest in a contributory mortgage to the public for subscription; or
(b) Manages interests in a contributory mortgage, being interests that have been offered to the public for subscription, whether or not that person holds beneficially any interest in that mortgage:
Contributory mortgage broker: this definition was inserted, as from 16 December 1982, by section 2(2) Securities Amendment Act 1982 (1982 No 147).
Contributory scheme means any scheme or arrangement that, in substance and irrespective of the form thereof, involves the investment of money in such circumstances that—
(a) The investor acquires or may acquire an interest in or right in respect of property; and
(b) Pursuant to the terms of investment that interest or right will or may be used or exercised in conjunction with any other interest in or right in respect of property acquired in like circumstances, whether at the same time or not;—
but does not include such a scheme or arrangement if the number of investors therein does not exceed 5, and neither a manager of the scheme nor any associated person is a manager of any other such scheme or arrangement
Convertible note has the same meaning as in section YA 1 of the Income Tax Act 2007
Co-operative company means—
(a) A company registered as a co-operative company under the Co-operative Companies Act 1956 or the Co-operative Companies Act 1996; or
(b) A company registered as a co-operative dairy company under the Co-operative Dairy Companies Act 1949 or Part 3 of the Co-operative Companies Act 1996; or
(c) A company registered as a co-operative freezing company under the Co-operative Freezing Companies Act 1960; or
(d) A company registered as a co-operative forestry company under the Co-operative Forestry Companies Act 1978:
Co-operative company: paragraph (a) was substituted, as from 1 September 1996, by section 51 Co-operative Companies Act 1996 (1996 No 24). See clause 2 Co-operative Companies Act Commencement Order 1996 (SR 1996/211).
Co-operative company: paragraph (b) was substituted, as from 1 September 1996, by section 51 Co-operative Companies Act 1996 (1996 No 24). See clause 2 Co-operative Companies Act Commencement Order 1996 (SR 1996/211).
Co-operative company: paragraph (c) was substituted, and paragraph (d) was inserted, as from 16 December 1982, by section 2(3) Securities Amendment Act 1982 (1982 No 147).
Court means, in relation to any matter, the Court before which the matter is to be determined.
Court: this definition was amended, as from 1 April 1980, by to section 12 Judicature Amendment Act 1979 (1979 No 124) by substituting “High Court”
for “Supreme Court”
.
Court: this definition was substituted, as from 1 December 2002, by section 3(1) Securities Amendment Act 2002 (2002 No 43).
The Crown includes a Government department
Date of a balance sheet or date of an interim balance sheet
[Repealed]
Date of a balance sheet or date of an interim balance sheet: this definition was inserted, as from 16 December 1982, by section 2(4) Securities Amendment Act 1982 (1982 No 147).
Date of a balance sheet or date of an interim balance sheet: this definition was repealed, as from 1 October 1997, by section 2 Securities Amendment Act 1997 (1997 No 16).
Date of a prospectus means the date specified on a prospectus pursuant to section 39(1)(a)
Date of a prospectus: this definition was amended, as from 15 April 2004, by section 3(4) Securities Amendment Act 2004 (2004 No 31) by substituting the expression “section 39(1)(a)”
for the words “section 39(a) of this Act”
.
Date of a registered prospectus means the date specified on a registered prospectus pursuant to section 39(1)(a)
Date of a registered prospectus: this definition was inserted, as from 16 December 1982, by section 2(5) Securities Amendment Act 1982 (1982 No 147).
Date of a registered prospectus: this definition was amended, as from 15 April 2004, by section 3(4) Securities Amendment Act 2004 (2004 No 31) by substituting the expression “section 39(1)(a)”
for the words “section 39(a) of this Act”
.
Date of a statement of financial position or date of an interim statement of financial position means the date as at which the statement of affairs contained in the statement of financial position or interim statement of financial position has been drawn up
Date of a statement of financial position or date of an interim statement of financial position: this definition was inserted, as from 1 October 1997, by section 2 Securities Amendment Act 1997 (1997 No 16).
Debt security means any interest in or right to be paid money that is, or is to be, deposited with, lent to, or otherwise owing by, any person (whether or not the interest or right is secured by a charge over any property); and includes—
(a) A debenture, debenture stock, bond, note, certificate of deposit, and convertible note; and
(b) An interest or right that is declared by regulations to be a debt security for the purposes of this Act; and
(c) A renewal or variation of the terms or conditions of any such interest or right or of a security referred to in paragraph (a) or paragraph (b) of this definition;—
but does not include—
(d) An interest in a contributory mortgage where the interest is offered by a contributory mortgage broker; or
(e) Any such interest or right or a security referred to in paragraph (a) or paragraph (c) of this definition that is declared by regulations not to be a debt security for the purposes of this Act:
Debt security: the original definition was amended, as from 16 December 1982, by section 2(6) Securities Amendment Act 1982 (1982 No 147) by inserting the words “where the interest is offered by a contributory mortgage broker”
.
Debt security: this definition was substituted, as from 1 October 1997, by section 3(6) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
delayed allotment order means an order made by the Commission under section 44A(2) or (3) that delays the date of allotment of a security that is offered in a simplified disclosure prospectus
Director means—
(a) In relation to a company, any person occupying the position of a director of the company by whatever name called:
(b) In relation to a partnership (other than a special partnership or limited partnership), any partner:
(c) In relation to a special partnership or limited partnership, any general partner:
(d) In relation to a body corporate or unincorporate, other than a company, partnership, or special partnership or limited partnership, any person occupying a position in the body that is comparable with that of a director of a company:
(e) In relation to any other person, that person:
disclosure obligation means—
(a) the requirements of the continuous disclosure provisions as defined in section 19D of the Securities Markets Act 1988; and
(b) any obligation that—
(i) requires ongoing disclosure of information to the public or to a person who has a role in monitoring the person who disclosed the information; and
(ii) is imposed by an enactment; and
(iii) is specified in the regulations
Distribute includes—
(a) Make available, publish, and circulate; and
(b) Communicate by letter, newspaper, broadcasting, sound recording, television, cinematographic film, video, or any form of electronic or other means of communication:
Distribute: this definition was substituted, as from 1 October 1997, by section 3(7) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
document means any record of information; and includes—
(a) anything on which there is writing or any image; and
(b) information recorded by means of any article or device (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device; and
(c) material subsequently derived from information recorded by that means.
Document: this definition was inserted, as from 1 October 1997, by section 3(7) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Document: this definition was substituted, as from 1 December 2002, by section 3(2) Securities Amendment Act 2002 (2002 No 43).
emissions units means—
(a) units as defined in section 4(1) of the Climate Change Response Act 2002; and
(b) personal property that—
(i) is created by, or in accordance with, any enactment (whether of New Zealand, another country, or any jurisdiction of any country), rule of law, contractual provision, or international treaty or protocol as—
(A) one of a fixed number of units issued by reference to a specified amount of greenhouse gas; or
(B) evidence of a specified amount of reductions, removals, avoidance, storage, sequestration, or any other form of mitigation of greenhouse gas emissions; and
(ii) can be surrendered, retired, cancelled, or otherwise used to—
(A) offset greenhouse gas emissions under, or otherwise comply with, any enactment (whether of New Zealand, another country, or any jurisdiction of any country), rule of law, contractual provision, or international treaty or protocol; or
(B) enable a person who surrenders, retires, cancels, or otherwise uses it to claim an environmental benefit
Equity security means any interest in or right to a share in, or in the share capital of, a company; and includes—
(a) A preference share, and company stock; and
(b) A security that is declared by regulations to be an equity security for the purposes of this Act; and
(c) A renewal or variation of the terms or conditions of any such interest or right or a security referred to in paragraph (a) or paragraph (b) of this definition;—
but does not include any such interest or right or a security referred to in paragraph (a) or paragraph (c) of this definition that is declared by regulations not to be an equity security for the purposes of this Act
Equity security: this definition was substituted, as from 1 October 1997, by section 3(8) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Expert means any person who holds himself or herself out to be of a profession or calling that gives authority to a statement made by him or her; but does not include a person acting in his or her capacity as an auditor or as a director or officer of a body
Expert: this definition was amended, as from 3 May 2001, pursuant to section 5(f) Securities Amendment Act 2001 (2001 No 25) by inserting after the word “himself”
the words “or herself”
.
Expert: this definition was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25) by inserting after the word “him”
the words “or her”
.
Expert: this definition was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25) by inserting after the word “his”
the words “or her”
.
Expert: this definition was amended, as from 15 April 2004, by section 3(5) Securities Amendment Act 2004 (2004 No 31) by omitting the words “and includes an accountant, engineer, valuer, quantity surveyor, and geologist;”
.
Government department includes—
(a) the Maori Trustee; and
(b) Public Trust, but in relation only to money constituted in the common fund of Public Trust that is entitled to the protection against deficiency afforded by section 52 of the Public Trust Act 2001.
Government department: this definition was substituted, as from 1 March 2002, by section 170(1) Public Trust Act 2001 (2001 No 100). See clause 2 Public Trust Act Commencement Order 2002 (SR 2002/11).
greenhouse gas has the meaning set out in section 31 of the Climate Change Response Act 2002
Interest in a superannuation scheme means an interest or right to participate in any capital, assets, earnings, or other property of a superannuation scheme; and includes—
(a) Any interest or right that is declared by regulations to be an interest in a superannuation scheme for the purposes of this Act; and
(b) Any renewal or variation of the terms or conditions of any such interest or right or a security referred to in paragraph (a) of this definition;—
but does not include any such interest or right, or a security referred to in paragraph (b) of this definition, that is declared by regulations not to be an interest in a superannuation scheme for the purposes of this Act
Interest in a superannuation scheme: this definition was inserted by section 3(9) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Investment statement has the meaning set out in section 38C of this Act
Investment statement: this definition was inserted by section 3(9) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Issuer means,—
(a) In relation to an equity security or a debt security, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to an equity security or a debt security, or to a trust deed that relates to a debt security, the person on whose behalf any money paid in consideration of the allotment of the security is received:
(b) In relation to a participatory security, or to an advertisement, investment statement, prospectus, or registered prospectus, or to a deed of participation that relates to a participatory security, the manager:
(c) In relation to an interest in a contributory mortgage offered by a contributory mortgage broker, or to an advertisement that relates to such an interest, the contributory mortgage broker:
(d) In relation to a unit in a unit trust, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to such a unit, the manager:
(e) In relation to a life insurance policy, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to a life insurance policy, the life insurance company that is liable under the policy:
(f) In relation to an interest in a superannuation scheme, or to an advertisement, investment statement, prospectus, or registered prospectus that relates to such an interest, the superannuation trustee of the scheme:
Issuer: this definition was substituted, as from 16 December 1982, by section 2(8) Securities Amendment Act 1982 (1982 No 147).
Issuer: this definition was substituted, as from 1 October 1997, by section 3(10) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Labour share
[Repealed]
Labour share: this definition was repealed, as from 15 April 2004, by section 3(6) Securities Amendment Act 2004 (2004 No 31).
Life insurance company means any person or association of persons, whether incorporated or unincorporated, which, in the course of business issues, or is liable under, life insurance policies
Life insurance company: this definition was inserted, as from 1 July 1989, by section 42(2) Securities Amendment Act 1988 (1988 No 234).
Life insurance policy means a policy of life or endowment insurance, or a policy securing an annuity; and includes—
(a) A policy of insurance that is declared by regulations to be a life insurance policy for the purposes of this Act; and
(b) A renewal or variation of the terms or conditions of any such policy or a security referred to in paragraph (a) of this definition;—
but does not include any such policy, or a security referred to in paragraph (b) of this definition, or a term life insurance policy (within the meaning of regulations) that is declared by regulations not to be a life insurance policy for the purposes of this Act
Life insurance policy: this definition was inserted, as from 1 July 1989, by section 42(2) Securities Amendment Act 1988 (1988 No 234).
Life insurance policy: this definition was substituted, as from 1 October 1997, by section 3(11) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
local authority has the meaning set out in section 5(1) of the Local Government Act 2002
Manager,—
(a) in relation to a participatory security,—
(i) means a person—
(A) on whose behalf any money paid in consideration of the allotment of the security is received; or
(B) with a substantial obligation to security holders to act in the continuing administration or management of the scheme to which the security relates; or
(C) to whom both subsubparagraphs (A) and (B) apply; but
(ii) does not include a person who is a participatory security trustee in relation to the security if the person acts in the continuing administration or management of the scheme to which the security relates solely in the person's capacity as a participatory security trustee; and
(b) In relation to a unit in a unit trust, has the same meaning as in section 2(1) of the Unit Trusts Act 1960:
Manager: this definition was substituted, as from 1 October 1997, by section 3(12) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Manager: paragraph (a) of this definition was substituted, as from 15 April 2004, by section 3(7) Securities Amendment Act 2004 (2004 No 31).
Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act
Minister: this definition was substituted, as from 1 October 1995, by section 10(3) Department of Justice (Restructuring) Act 1995 (1995 No 39).
Money includes money's worth
Offer includes an invitation, and any proposal or invitation to make an offer; and to offer has a corresponding meaning
offered in a simplified disclosure prospectus means an offer of securities to the public for subscription that is made—
(a) by or on behalf of an issuer; and
(b) in, or accompanied by, a simplified disclosure prospectus
overseas regulator means a body in another country with functions corresponding to those of the Commission
overseas regulator: this definition was inserted, as from 1 December 2002, by section 3(3) Securities Amendment Act 2002 (2002 No 43).
Participatory security means any security other than—
(a) An equity security; or
(b) A debt security; or
(c) A unit in a unit trust; or
(d) An interest in a superannuation scheme; or
(e) A life insurance policy:
Participatory security: this definition was substituted, as from 1 October 1997, by section 3(13) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
participatory security trustee means a person appointed as a trustee in respect of participatory securities
participatory security trustee: this definition was inserted, as from 15 April 2004, by section 3(8) Securities Amendment Act 2004 (2004 No 31).
Person includes a corporation sole, a company or other body corporate (whether incorporated in New Zealand or elsewhere), an unincorporated body of persons, a public body, and a Government department
portfolio investment entity means a portfolio investment entity within the meaning of the Income Tax Act 2004
portfolio investment interest means a portfolio investment interest within the meaning of the Income Tax Act 2004
Prescribed means prescribed by regulations made under the authority of this Act
Principal officer, in relation to a body corporate or other body, means—
(a) A director of the body; or
(b) A person in accordance with whose directions or instructions any or all of the directors of the body are accustomed to act; or
(c) In relation to any particular requirement of this Act, any person whose function it is, or who has undertaken, to ensure that that requirement is complied with by the body:
Provided that for the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions any or all of the directors of a body are accustomed to act by reason only that the directors act on advice given by him or her solely in a professional capacity:
Principal officer: this definition was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25) by inserting after the word “him”
the words “or her”
.
prohibition order means an order made by the Commission under section 44AE(1) that prohibits a person from using a simplified disclosure prospectus
Promoter, in relation to securities offered to the public for subscription,—
(a) Means a person who is instrumental in the formulation of a plan or programme pursuant to which the securities are offered to the public; and
(b) Where a body corporate is a promoter, includes every person who is a director thereof; but
(c) Does not include a director or officer of the issuer of the securities or a person acting solely in his or her professional capacity:
Promoter: this definition was substituted, as from 16 December 1982, by section 2(9) Securities Amendment Act 1982 (1982 No 147).
Promoter: this definition was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25) by inserting after the word “his”
the words “or her”
.
Prospective investor, in relation to a security, means any person who, under the terms of issue of the security, is eligible to subscribe for the security
Prospective investor: this definition was inserted by section 3(14) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Prospectus means a document that contains an offer of securities to the public for subscription, and that is intended to be, or has been, delivered to the Registrar for registration under section 42 of this Act:
Prospectus: this definition was substituted, as from 16 December 1982, by section 2(10) Securities Amendment Act 1982 (1982 No 147).
Qualified auditor has the meaning given to it by section 2C of this Act
Qualified auditor: this definition was amended, as from 1 October 1996, by section 23 Institute of Chartered Accountants of New Zealand Act 1996 (1996 No 39) by substituting the words “chartered accountant (within the meaning of section 19 of the Institute of Chartered Accountants of New Zealand Act 1996)”
for the words “member of the New Zealand Society of Accountants who holds a certificate of public practice”
.
Qualified auditor: this definition was substituted, as from 1 October 1997, by section 3(15) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Receive, in relation to a document, information, or other matter, includes receive by any form of electronic or other means of communication in a manner that enables the recipient to readily store the document, information, or other matter in a permanent form and, with or without the aid of any equipment, to retrieve and read it
Receive: this definition was inserted, as from 1 October 1997, by section 3(15) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Registered bank has the same meaning as in section 2(1) of the Reserve Bank of New Zealand Act 1989
Registered bank: this definition was inserted, as from 24 March 1995, by section 13(2) Reserve Bank of New Zealand Amendment Act 1995 (1995 No 5).
Registered prospectus means—
(a) Except where paragraph (b) of this definition applies—
(i) A prospectus that has been registered under section 42 of this Act, and the registration of which has not been cancelled or suspended under section 44 of this Act; or
(b) Where a memorandum of amendments to a prospectus of the kind specified in paragraph (a)(i) of this definition has been registered under section 43 of this Act, and the registration of that prospectus as so amended has not been cancelled or suspended under section 44 of this Act—
(i) That prospectus as so amended; or
Registered prospectus: this definition was inserted, as from 16 December 1982, by section 2(11) Securities Amendment Act 1982 (1982 No 147).
Registrar means,—
(a) In sections 67A to 68B , 68G, 68I, and 68K, a person for the time being holding the office of Registrar of Companies or Deputy Registrar of Companies in accordance with the Companies Act 1993:
(b) In all other sections of this Act, the Registrar of Companies appointed in accordance with the Companies Act 1993 and, pursuant to sections 357 and 358 of that Act, includes every Deputy Registrar of Companies, District Registrar of Companies, and Assistant Registrar of Companies appointed in accordance with that Act:
Regulations means regulations made under section 70 of this Act
Regulations: this definition was inserted by section 3(16) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Relative has the same meaning as in the Income Tax Act 2007
Scheme means,—
(a) In relation to a participatory security, the arrangement or scheme to which the security relates; and
(b) In relation to an interest in a superannuation scheme, that superannuation scheme; and
(c) In relation to a unit in a unit trust, that unit trust:
Scheme: this definition was inserted by section 3(17) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Security has the meaning set out in section 2D of this Act
Security: this definition was substituted by section 3(18) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Security holder, in relation to a security offered to the public, means—
(a) In the case of a bearer security or a security to which section 51 of this Act does not apply, the holder of that security; or
(b) In the case of any other security, the person who is registered as the holder of the security in a register kept pursuant to section 51 of this Act:
Send, in relation to a document, information, or other matter, includes send by electronic or other means that enables the recipient to readily store the matter in a permanent and legible form
Send: this definition was inserted by section 3(19) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
simplified disclosure prospectus means a registered prospectus that may be used only if—
(a) the issuer is subject to a disclosure obligation; and
(b) the regulations provide for the use of a simplified disclosure prospectus by a person who is subject to that type of disclosure obligation
Statutory supervisor means a person appointed as a statutory supervisor in respect of participatory securities for the purposes of, and in accordance with, this Act
Subscribe includes purchase and contribute to, whether by way of cash or otherwise; and subscription and subscriber have corresponding meanings
Superannuation scheme means a registered superannuation scheme within the meaning of section 2(1) of the Superannuation Schemes Act 1989
Superannuation scheme: this definition was inserted by section 3(20) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Superannuation trustee has the same meaning as the term trustees has in the Superannuation Schemes Act 1989
Superannuation trustee: this definition was inserted by section 3(20) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Takeovers Panel means the Takeovers Panel established under Part 1 of the Takeovers Act 1993.
Takeovers Panel: this definition was inserted, as from 1 June 2001, by section 3 Securities Amendment Act (No 2) 2001 (2001 No 29).
Trust deed means a trust deed required by section 33(2)(a) of this Act
Trust deed: this definition was inserted by section 3(20) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Trustee means a person appointed as a trustee in respect of debt securities for the purposes of, and in accordance with, this Act
Trustee corporation means Public Trust or the Maori Trustee or any corporation authorised by any Act of the Parliament of New Zealand to administer the estates of deceased persons and other trust estates.
Trustee corporation: the words “Parliament of New Zealand”
were substituted for the words “General Assembly”
, as from 1 January 1987, pursuant to section 29(2) Constitution Act 1986 (1986 No 114).
Trustee corporation: this definition was amended, as from 1 March 2002, by section 170(1) Public Trust Act 2001 (2001 No 100) by substituting the words “Public Trust”
for the words “the Public Trustee”
. See clause 2 Public Trust Act Commencement Order 2002 (SR 2002/11).
Unit means an interest or right to participate in any capital, assets, earnings, or other property of a unit trust; and includes—
(a) Any interest or right that is declared by regulations to be a unit for the purposes of this Act; and
(b) Any renewal or variation of the terms or conditions of any such interest or right;—
but does not include any such interest or right or a security referred to in paragraph (b) of this definition that is declared by regulations not to be a unit for the purposes of this Act
Unit: this definition was inserted by section 3(21) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Unit trust has the same meaning as in section 2(1) of the Unit Trusts Act 1960
Unit trust: this definition was inserted by section 3(21) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Unit trustee has the same meaning as the term trustee has in section 2(1) of the Unit Trusts Act 1960
Unit trustee: this definition was inserted by section 3(21) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Working day means a day of the week other than—
(a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, Labour Day, and Waitangi Day; and
(b) A day in the period commencing with the 25th day of December in any year and ending with the 2nd day of January in the following year; and
(c) If the 1st day of January in any year falls on a Friday, the following Monday; and
(d) If the 1st day of January in any year falls on a Saturday or a Sunday, the following Monday and Tuesday:
Working day: this definition was inserted by section 3(21) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Writing includes—
(a) The recording of words in a permanent and legible form; and
(b) The display of words by any form of electronic or other means of communication in a manner that enables the words to be readily stored in a permanent form and, with or without the aid of any equipment, to be retrieved and read;—
and written has a corresponding meaning.
Writing: this definition was inserted by section 3(21) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
(2) [Repealed]
Associated persons: this definition was amended, as from 1 April 1995, by section YB 1 Income Tax Act 1994 (1994 No 164) by substituting the words “section OD 7 of the Income Tax Act 1994”
for the words “section 8 of the Income Tax Act 1976”
.
Associated persons: this definition was repealed, as from 1 October 1997, by section 3(2) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Associated persons or persons associated with each other: this definition was inserted, as from 1 October 1997, by section 3(2) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Associated persons: this definition was amended, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35) by substituting the words “Income Tax Act 2004”
for the words “Income Tax Act 1994”
.
Section 2(1) associated persons or persons associated with each other paragraph (a): amended, on 1 April 2008, by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).
chattel: this definition was substituted, as from 15 April 2004, by section 3(1) Securities Amendment Act 2004 (2004 No 31).
Section 2(1) chattel: amended, on 24 November 2009, by section 4(1) of the Securities Amendment Act 2009 (2009 No 56).
Section 2(1) convertible note: amended, on 1 April 2008, by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).
Convertible note: this definition was amended, as from 1 April 1995, by section YB 1 Income Tax Act 1994 (1994 No 164) by substituting the words “section FZ 2 of the Income Tax Act 1994”
for the words “section 196 of the Income Tax Act 1976”
.
Convertible note: this definition was amended, as from 15 April 2004, by section 3(3) Securities Amendment Act 2004 (2004 No 31) by substituting the expression “section OB 1”
for the expression “section FZ 2”
.
Convertible note: this definition was amended, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35) by substituting the words “Income Tax Act 2004”
for the words “Income Tax Act 1994”
.
Section 2(1) delayed allotment order: inserted, on 28 July 2009, by section 4 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Director: this definition was substituted, as from 16 December 1982, by section 2(7) Securities Amendment Act 1982 (1982 No 147).
Section 2(1) director paragraph (b): amended, on 2 May 2008, by section 121(3) of the Limited Partnerships Act 2008 (2008 No 1).
Section 2(1) director paragraph (c): amended, on 2 May 2008, by section 121(3) of the Limited Partnerships Act 2008 (2008 No 1).
Section 2(1) director paragraph (d): amended, on 2 May 2008, by section 121(3) of the Limited Partnerships Act 2008 (2008 No 1).
Section 2(1) disclosure obligation: inserted, on 28 July 2009, by section 4 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 2(1) emissions units: inserted, on 24 November 2009, by section 4(2) of the Securities Amendment Act 2009 (2009 No 56).
Section 2(1) greenhouse gas: inserted, on 24 November 2009, by section 4(2) of the Securities Amendment Act 2009 (2009 No 56).
Section 2(1) local authority: inserted, on 9 April 2008, by section 4 of the Securities (Local Authority Exemption) Amendment Act 2008 (2008 No 23).
Local authority: this definition was substituted, as from 1 July 2003, by section 262 Local Government Act 2002 (2002 No 84). See sections 273 to 314 of that Act as to the savings and transitional provisions.
Local authority: this definition was repealed, as from 15 April 2004, by section 3(6) Securities Amendment Act 2004 (2004 No 31).
Section 2(1) offered in a simplified disclosure prospectus: inserted, on 28 July 2009, by section 4 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 2(1) portfolio investment entity: inserted, on 1 October 2007, by section 232 of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).
Section 2(1) portfolio investment interest: inserted, on 1 October 2007, by section 232 of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).
Section 2(1) prohibition order: inserted, on 28 July 2009, by section 4 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 2(1) Registrar: amended, on 20 September 2007, by section 4 of the Securities Amendment Act 2007 (2007 No 79).
Registrar: this definition was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Section 2(1) relative: amended, on 1 April 2008, by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).
Relative: this definition was amended, as from 1 April 1995, by section YB 1 Income Tax Act 1994 (1994 No 164) by substituting the words “Income Tax Act 1994”
for the words “Income Tax Act 1976”
.
Relative: this definition was amended, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35) by substituting the words “Income Tax Act 2004”
for the words “Income Tax Act 1994”
.
Section 2(1) simplified disclosure prospectus: inserted, on 28 July 2009, by section 4 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Subsection (2) was inserted, as from 16 December 1982, by section 2(12) Securities Amendment Act 1982 (1982 No 147).
Subsection (2) was repealed by section 3(22) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
(1) In this Act, unless the context otherwise requires, advertisement means a form of communication—
(a) That—
(i) Contains or refers to an offer of securities to the public for subscription; or
(ii) Is reasonably likely to induce persons to subscribe for securities of an issuer, being securities to which the communication relates and that have been, or are to be, offered to the public for subscription; and
(b) That is authorised or instigated by, or on behalf of, the issuer of the securities or prepared with the co-operation of, or by arrangement with, the issuer of the securities; and
(c) That is to be, or has been, distributed to a person.
(2) The following are also advertisements:
(a) A statement relating to an interest in a contributory mortgage required to be distributed to a person by regulations:
(b) An investment statement.
(3) None of the following is an advertisement:
(a) A registered prospectus:
(b) [Repealed]
(c) A statement or report made in accordance with section 3(7) of this Act:
(d) A disclosure statement published by a registered bank under section 81 of the Reserve Bank of New Zealand Act 1989.
(4) A communication is an advertisement whether or not consideration is to be, or has been, paid for the distribution of the communication.
(5) The definition of the term advertisement in this section does not apply to the term advertisement in section 3(1)(c) of this Act.
(6) Where—
(a) An advertisement within the meaning of this section appears in association with another advertisement that is not an advertisement within the meaning of this section; and
(b) Both advertisements are authorised or instigated by, or on behalf of, the same person or prepared with the co-operation of, or by arrangement with, the same person,—
those advertisements are deemed to be a single advertisement within the meaning of this section.
(7) Unless this Act or regulations provide otherwise, nothing in this Act or regulations limits the information, statements, and other matters that may be contained in an advertisement.
Sections 2A to 2D were inserted, as from 1 October 1997, by section 4 Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (3)(b) was repealed, as from 15 April 2004, by section 4 Securities Amendment Act 2004 (2004 No 31).
(1) For the purposes of this Act, a person who is required to make due enquiry about a matter does not fail to do so if—
(a) He or she receives information or advice about the matter from another person whom he or she believes on reasonable grounds is reliable and competent; and
(b) The information or advice received—
(i) Is of the same kind and standard as that which it would be reasonable to expect to be supplied in the ordinary course of management of businesses of the same kind to persons in the same kind of position; and
(ii) Does not state or indicate that further information, advice, or investigation is or may be required; and
(c) He or she has no reason to believe that the information or advice is or may be incorrect.
(2) Nothing in subsection (1) of this section limits the ways in which a person may make due enquiry about a matter.
Sections 2A to 2D were inserted, as from 1 October 1997, by section 4 Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
(1) For the purposes of this Act, a person is a qualified auditor only if—
(a) The person is a chartered accountant (within the meaning of section 19 of the Institute of Chartered Accountants of New Zealand Act 1996); or
(b) The person is an auditor appointed by the Auditor-General under section 32 of the Public Audit Act 2001; or
(c) The person is a member, fellow, or associate of an association of accountants constituted outside New Zealand where—
(i) The association is, by notice in the Gazette, approved for the time being for the purposes of this Act by the Registrar; and
(ii) The person is entitled to act as an auditor in the country, state, or territory in which the association is constituted; or
(d) The person, not being a person referred to in paragraph (c) of this subsection, is—
(i) Entitled to act as an auditor in a country, state, or territory outside New Zealand; and
(ii) Approved for the time being for the purposes of this Act by the Registrar by notice in the Gazette.
(2) None of the following persons is qualified for appointment as an auditor of the accounting or other records of an issuer of securities:
(a) The issuer, or a principal officer, officer, or employee of the issuer:
(b) A person who is a partner of or in the employment of a person specified in paragraph (a) of this subsection:
(c) A body corporate.
(3) A person is not qualified for appointment as auditor of an issuer of securities if the person is, by virtue of subsection (2) of this section, disqualified for appointment as auditor of a person that is the issuer's subsidiary or holding company or a subsidiary of the issuer's holding company, or would be so disqualified if that person were a company.
Sections 2A to 2D were inserted, as from 1 October 1997, by section 4 Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (1)(b) was amended, as from 1 July 2001, by section 53 Public Audit Act 2001 (2001 No 10) by substituting the words “an auditor appointed by the Auditor-General under section 32 of the Public Audit Act 2001”
for the words “an officer of the Audit Department authorised in writing by the Controller and Auditor-General to be an auditor for the purposes of this Act”
.
(1) In this Act, unless the context otherwise requires, the term security means any interest or right to participate in any capital, assets, earnings, royalties, or other property of any person; and includes—
(a) An equity security; and
(b) A debt security; and
(c) A unit in a unit trust; and
(d) An interest in a superannuation scheme; and
(e) A life insurance policy; and
(f) Any interest or right that is declared by regulations to be a security for the purposes of this Act; and
(g) Any renewal or variation of the terms or conditions of any such interest or right;—
but does not include any such interest or right (other than a security referred to in paragraph (f) of this subsection) that is declared by regulations not to be a security for the purposes of this Act.
(2) Where the terms of a security require or allow the subscriber to pay separate amounts of money at different times, each such payment shall, for the purposes of this Act, be treated as payment for the same security as each other payment.
Sections 2A to 2D were inserted, as from 1 October 1997, by section 4 Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
(1) Any reference in this Act to an offer of securities to the public shall be construed as including—
(a) A reference to offering the securities to any section of the public, however selected; and
(b) A reference to offering the securities to individual members of the public selected at random; and
(c) A reference to offering the securities to a person if the person became known to the offeror as a result of any advertisement made by or on behalf of the offeror and that was intended or likely to result in the public seeking further information or advice about any investment opportunity or services,—
whether or not any such offer is calculated to result in the securities becoming available for subscription by persons other than those receiving the offer.
(2) None of the following offers shall constitute an offer of securities to the public:
(a) An offer of securities made to any or all of the following persons only:
(i) Relatives or close business associates of the issuer or of a director of the issuer:
(ii) Persons whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invest money:
(iia) persons who are each required to pay a minimum subscription price of at least $500,000 for the securities before the allotment of those securities:
(iib) persons who have each previously paid a minimum subscription price of at least $500,000 for securities (the initial securities) in a single transaction before the allotment of the initial securities, provided that—
(A) the offer of the securities is made by the issuer of the initial securities; and
(B) the offer of the securities is made within 18 months of the date of the first allotment of the initial securities:
(iii) Any other person who in all the circumstances can properly be regarded as having been selected otherwise than as a member of the public:
(b) An invitation to a person to enter into a bona fide underwriting or sub-underwriting agreement with respect to an offer of securities:
(c) [Repealed]
(3) A person shall not be precluded from being regarded as a member of the public in regard to any offer of securities by reason only that he or she is a purchaser of goods from, or an employee or client of, or a holder of securities previously issued by, the issuer or any promoter of the securities.
(4) Any reference in this Act to an offer of securities to the public shall be construed as including a reference to distributing an advertisement, a prospectus, a registered prospectus, or an application form for the subscription of securities.
(5) Proof of an offer of securities to one person selected as a member of the public shall be prima facie evidence of an offer of securities to the public.
(6) [Repealed]
(7) A statement or report—
(a) Made to or for the purposes of a general meeting of the members of the issuer, or a report of the proceedings of such a meeting; or
(b) Relating to the affairs of the issuer made to any stock exchange for the purposes of compliance with the listing requirements relating to that stock exchange, by or on behalf of that issuer, or any report of such statement or report—
shall not constitute an offer of securities to the public.
(8) In calculating the subscription price payable, or paid, for securities for the purposes of subsection (2)(a)(iia) or (iib), any amount payable, or paid, must be disregarded to the extent to which it is to be paid, or was paid, out of money lent by the issuer, the offeror, or any associated person of the issuer or offeror.
(9) The Governor-General may, by Order in Council, amend the minimum subscription price that applies under subsection (2)(a)(iia) or (iib).
Subsection (2)(a)(i) was amended, as from 15 April 2004, by section 5(1) Securities Amendment Act 2004 (2004 No 31) by inserting the words “or of a director of the issuer”
.
Subsection (2)(a)(iia) was inserted, as from 15 April 2004, by section 5(2) Securities Amendment Act 2004 (2004 No 31).
Section 3(2)(a)(iib): inserted, on 28 July 2009, by section 5(1) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Subsection (2)(c) was repealed, as from 1 July 2001, by section 12(2) Takeovers Amendment Act 2001 (2001 No 30).
Subsection (3) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
Subsection (4) was substituted, as from 1 September 1983, by section 3(1) Securities Amendment Act 1982 (1982 No 147).
Subsection (6) was inserted, as from 1 September 1983, by section 3(2) Securities Amendment Act 1982 (1982 No 147).
Subsection (6) was repealed, as from 15 April 2004, by section 5(3) Securities Amendment Act 2004 (2004 No 31).
Subsection (7) was inserted, as from 1 September 1983, by section 3(2) Securities Amendment Act 1982 (1982 No 147).
Subsections (8) and (9) were inserted, as from 15 April 2004, by section 5(4) Securities Amendment Act 2004 (2004 No 31).
Section 3(8): amended, on 28 July 2009, by section 5(2) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 3(9): amended, on 28 July 2009, by section 5(3) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
(1) An example used in this Act is only illustrative of the provisions to which it relates. It does not limit those provisions.
(2) If an example and a provision to which it relates are inconsistent, the provision prevails.
Section 3A: inserted, on 28 July 2009, by section 6 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
(1) The provisions of this Act shall have effect notwithstanding anything to the contrary in any other enactment or in any deed, agreement, application, prospectus, registered prospectus, or advertisement.
(2) A condition of any agreement requiring or binding an applicant for securities to waive compliance with any requirement of this Act, or purporting to affect him or her with notice of any contract, document, or matter relating to the securities that is not specifically referred to in a prospectus or registered prospectus, shall be void.
(3) Nothing in this Act shall limit any powers a trustee, superannuation trustee, unit trustee, or statutory supervisor may have other than pursuant to this Act.
(4) Nothing in this section or in any other provision of this Act limits the Illegal Contracts Act 1970.
(5) Despite subsection (4), nothing in the Illegal Contracts Act 1970 applies to sections 37 and 37A.
Subsection (1) was amended, as from 1 September 1983, by section 4(a) Securities Amendment Act 1982 (1982 No 147) by inserting the words “registered prospectus,”
.
Subsection (2) was amended, as from 1 September 1983, by section 4(b) Securities Amendment Act 1982 (1982 No 147) by inserting the words “or registered prospectus”
.
Subsection (2) was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “him”
the words “or her”
.
Subsection (3) was amended, as from 1 October 1997, by section 5(1) Securities Amendment Act 1996 (1996 No 100) by inserting the words “, superannuation trustee, unit trustee,”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (4) was inserted, as from 1 October 1997, by section 5(2) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (5) was inserted, as from 15 April 2004, by section 6 Securities Amendment Act 2004 (2004 No 31).
Subsection (7) was inserted, as from 1 September 1983, by section 3(2) Securities Amendment Act 1982 (1982 No 147).
(1) Nothing in Part 2 of this Act shall apply in respect of—
(a) [Repealed]
(b) Any estate or interest in land for which a separate certificate of title can be issued under the Land Transfer Act 1952 or the Unit Titles Act 1972, other than any such estate or interest that—
(i) Forms part of a contributory scheme; and
(ii) Does not entitle the holder to a right in respect of a specified part of the land for which a separate certificate of title can be so issued; or
(c) Any proprietary right to chattels (other than any such right that forms part of a contributory scheme); or
(d) Any share in the share capital of a flat or office owning company (as defined in section 121A(1) of the Land Transfer Act 1952); or
(e) Any interest or right to participate in the capital, assets, earnings, royalties, or other property of any company, partnership, or other person whose sole undertaking is the practice, conduct, or operation of any one or more of the professions, occupations, or businesses that may in law be practised, conducted, or operated only by persons having or possessing qualifications specified in Schedule 2 to this Act; or
(f) A mortgage of land other than a contributory mortgage; or
(g) [Repealed]
(h) a share purchased or subscribed for by an employee of a company under a share purchase scheme as defined in section YA 1 of the Income Tax Act 2007; or
(i) An interest in the Government Superannuation Fund; or
(j) [Repealed]
(k) an interest in a retirement village that is an interest exempted from this Act by section 107(1) of the Retirement Villages Act 2003.
(2) [Repealed]
(2A) [Repealed]
(2B) [Repealed]
(2C) Nothing in sections 33(2), 37, 37A(1)(c) and (d), 39 to 44, 45 to 52, 54, and 54B(3) of this Act shall apply in respect of any debt security the issuer of which is a registered bank.
(2CA) Nothing in Part 2 (except sections 38B and 58) or the regulations applies to an advertisement made by or on behalf of an issuer that—
(a) states that—
(i) the issuer is considering making an offer of securities to the public; and
(ii) no money is currently being sought and that no applications for securities will be accepted or money received unless the subscriber has received an investment statement or, if the securities are to be offered in a simplified disclosure prospectus, a copy of that prospectus; and
(b) if the issuer wishes, states that the issuer is seeking preliminary indications of interest and, in this case, also states—
(i) how indications of interest may be made; and
(ii) that no indication of interest will involve an obligation or commitment of any kind; and
(c) contains no other information, except any or all of the following:
(i) the name of the issuer:
(ii) a description of the securities intended to be offered, including a brief description of any rights or privileges to be attached:
(iii) the rate or rates of interest (if any) that may be earned by holding the securities intended to be offered:
(iv) the total number of securities intended to be offered:
(v) a statement of the intended use of the subscriptions:
(vi) the terms of the intended offer:
(vii) a description of the class of persons to whom it is intended the offer will be made:
(viii) the date at which the issuer expects that the offer will be made; and
(d) is dated and is not distributed to any person later than 6 months after its date.
(2CB) Nothing in Part 2 (except sections 38B and 58) or the regulations applies in respect of a security if—
(a) the only persons in New Zealand who are able, under the terms of the offer of the security, to subscribe for the security are eligible persons; and
(b) the subscriber is an eligible person.
(2CBA) Nothing in Part 2 (except sections 38B and 58) or the regulations applies in respect of a security if—
(a) the only persons in New Zealand who are able, under the terms of the offer of the security, to subscribe for the security are—
(i) eligible persons; and
(ii) persons who fall within 1 or more of the categories set out in subparagraphs (i) to (iii) of section 3(2)(a); and
(b) the subscriber is either—
(i) an eligible person; or
(ii) a person who falls within 1 or more of the categories set out in subparagraphs (i) to (iii) of section 3(2)(a).
(2CC) For the purposes of subsections (2CB) and (2CBA), a person is an eligible person if the person is 1 or more of the following:
(a) wealthy (as defined in subsection (2CD)):
(b) experienced in investing money (as defined in subsection (2CE)):
(c) experienced in the industry or business to which the security relates (as defined in subsection (2CE)).
(2CD) For the purposes of subsection (2CC)(a), a person is wealthy if an independent chartered accountant certifies, no more than 12 months before the offer is made, that the chartered accountant is satisfied on reasonable grounds that the person—
(a) has net assets of at least $2,000,000; or
(b) had an annual gross income of at least $200,000 for each of the last 2 financial years.
(2CDA) To avoid doubt, for the purposes of subsections (2CC)(a) and (2CD), person includes—
(a) the trustees of a trust acting jointly in their capacity as trustees of that trust; and
(b) the sole trustee of a trust acting in his, her, or its capacity as trustee of that trust.
(2CE) For the purposes of subsection (2CC)(b) and (c), a person is experienced in investing money or in the industry or business to which the security relates (as the case may be) if—
(a) an independent financial service provider is satisfied on reasonable grounds that the person to whom the offer is made, as a result of having experience of that kind, is able to assess—
(i) the merits of the offer; and
(ii) the value of the security; and
(iii) the risks involved in accepting the offer; and
(iv) that person's own information needs; and
(v) the adequacy of the information given by the person making the offer; and
(b) the financial service provider gives the person to whom the offer is made, before the security is allotted to the person, a written statement of the financial service provider's reasons for being satisfied as to those matters; and
(c) the person to whom the offer is made signs a written acknowledgment, before the security is allotted to the person, that—
(i) the financial service provider has given the person neither an investment statement nor a registered prospectus relating to the security; and
(ii) the person understands that he, she, or it will not receive information usually provided by an issuer in respect of an offer of securities to the public including (in particular) an investment statement and a registered prospectus.
(2CF) For the purposes of subsection (2CE),—
financial service provider means a person whose principal business consists of 1 or more of the following
(a) the giving of investment advice:
(b) the receiving of investment money:
(c) the receiving of investment property
investment advice has the same meaning as in section 2(1) of the Securities Markets Act 1988
investment money means any money received from, or on account of, a member of the public in relation to buying or selling securities
investment property means security certificates or other valuable property received from, or on account of, a member of the public in relation to buying or selling securities.
(2CG) The Governor-General, by Order in Council, may make regulations for all or any of the following purposes:
(a) amending the amounts of minimum net assets and minimum annual gross income that apply under subsection (2CD):
(b) prescribing how net assets referred to in subsection (2CD) are to be determined and valued, either generally or in specified circumstances:
(c) prescribing how gross income referred to in subsection (2CD) is to be calculated, either generally or in specified circumstances.
(2D) Nothing in sections 37A(1)(a) and 38C to 38F of this Act shall apply in respect of—
(a) An interest in a call debt security as defined in regulations made under this Act; or
(b) An interest in a call building society share as defined in regulations made under this Act; or
(c) An interest in a bonus bond.
(2E) [Repealed]
(2F) [Repealed]
(3) Nothing in sections 33(2), 33(3), 34 to 37, 37A(1)(c) and (d) and (2), 39 to 44, 44B to 54, and 57A to 69 of this Act shall apply in respect of any security the issuer of which is—
(a) The Crown; or
(b) [Repealed]
(c) The National Provident Fund Board established by the National Provident Fund Act 1950; or
(d) The Reserve Bank of New Zealand constituted under the Reserve Bank of New Zealand Act 1964; or
(e) Housing New Zealand Corporation established by the Housing Corporation Act 1974; or
(f) [Repealed]
(3A) Nothing in sections 37, 37A(1)(c) and (d) and (1A), and 39 to 44 applies in respect of a debt security the issuer of which is a local authority.
(3B) The exemption in subsection (3A) is subject to the conditions that—
(a) the investment statement relating to the debt securities refers to the most recent audited financial statements, and audited consolidated financial statements, for the local authority; and
(b) if the date of allotment of the debt securities would be more than 9 months after the balance date of the financial statements referred to in paragraph (a), the investment statement relating to the debt securities refers to interim financial statements, and interim consolidated financial statements, for the local authority that have been prepared in accordance with generally accepted accounting practice (within the meaning of section 5(1) of the Local Government Act 2002) for a period beginning on the day after that balance date and ending on a date that is not more than 9 months later; and
(c) it is a term of the offer of the debt securities to the public that the local authority will, upon the request of a security holder or a prospective investor for a copy of any financial statements referred to in paragraph (a) or (b), without fee, send, or cause to be sent, to that security holder or prospective investor, a copy of those statements; and
(d) the investment statement relating to the debt securities contains, unless the debt securities are expressly guaranteed by the Crown under the Public Finance Act 1989, a statement that the debt securities being offered are not guaranteed by the Crown.
(3C) The conditions in subsection (3B) apply despite anything to the contrary in any regulations made under this Act.
(3D) The financial statements referred to in subsection (3B)(a) and (b) must, for the purposes of this Act, be treated as forming part of the investment statement relating to the debt securities.
(4) Nothing in sections 6, 33(3), 37, 37A, 38C to 38F, 39 to 44, and 45 to 53 of this Act shall apply in respect of an interest in a contributory mortgage that is offered to the public for subscription by a contributory mortgage broker.
(4A) Nothing in sections 33, 37, and 37A(1)(a) of this Act shall apply in respect of an adjustment under section HL 7(3) of the Income Tax Act 2004 of the portfolio investor interest of an investor by a portfolio investment entity.
(4B) The exemption in subsection (4A) does not apply if the portfolio investment entity has under section HL 7(4) of the Income Tax Act 2004 offered the investor a choice of the method of adjustment.
(5) The Commission may, in its discretion and upon such terms and conditions (if any) as it thinks fit, by notice in the Gazette, exempt any person or class of persons or any transaction or class of transactions from compliance with any provision or provisions of—
(a) Part 2 of this Act; or
(b) Any regulations made under section 70(1) of this Act; or
(c) [Repealed]
(d) [Repealed]
and may in like manner vary or revoke any such exemption. Every such exemption shall have effect according to its tenor.
(5A) The Commission's reasons for granting an exemption under subsection (5) (including why the exemption is appropriate) must be notified in the Gazette together with the exemption.
(5B) However, the Commission may defer notifying or not notify the reasons for granting an exemption if the Commission is satisfied that it is proper to do so on the ground of commercial confidentiality.
Subsection (1)(a) was repealed, as from 21 December 1988, by section 43(1) Securities Amendment Act 1988 (1988 No 234).
Subsection (1)(d) was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Section 5(1)(d): amended, on 28 July 2009, by section 7(1) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Subsection (1)(g) was repealed, as from 1 September 1983, by section 5(1) Securities Amendment Act 1982 (1982 No 147).
Section 5(1)(h): amended, on 1 April 2008, by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).
Subsection (1)(h) was amended, as from 1 April 1995, by section YB 1 Income Tax Act 1994 (1994 No 164) by substituting the words “section OB 1 of the Income Tax Act 1994”
for the words “section 166 of the Income Tax Act 1976”
.
Subsection (1)(h) was amended, as from 15 April 2004, by section 7(1) Securities Amendment Act 2004 (2004 No 31) by omitting the words “a labour share or”
.
Subsection (1)(h) was amended, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35) by substituting the words “a share purchase scheme as defined in section OB 1 of the Income Tax Act 2004”
for the words “an employee share purchase scheme (as defined in section OB 1 of the Income Tax Act 1994)”
.
Subsection (1)(j) was repealed, as from 1 September 1983, by section 5(1) Securities Amendment Act 1982 (1982 No 147).
Subsection (1)(k) was inserted, as from 1 May 2007, by section 110 Retirement Villages Act 2003 (2003 No 112). See clause 2(d) Retirement Villages Act Commencement Order (No 2) 2006 (SR 2006/296).
Subsection (2) was substituted, as from 1 February 1990, by section 181(1) Reserve Bank of New Zealand Act 1989 (1989 No 157).
Subsection (2) was repealed, as from 1 October 1997, by section 6(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application. Subsection (2) was previously proposed to be repealed by section 22(1) Private Savings Banks (Transfer of Undertakings) Act 1992 (1992 No 21), but that change was not formally enacted until 22 May 1998, pursuant to clause 2 Private Savings Banks (Transfer of Undertakings) Act Commencement Order 1998.
Subsection (2A) was substituted, as from 1 February 1990, by section 181(1) Reserve Bank of New Zealand Act 1989 (1989 No 157).
Subsection (2A) was repealed, as from 1 October 1997, by section 6(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (2B) was repealed, as from 1 February 1990, by section 181(1) Reserve Bank of New Zealand Act 1989 (1989 No 157).
The former subsection (2B) was inserted, as from 1 February 1990, by section 181(2) Reserve Bank of New Zealand Act 1989 (1989 No 157).
The former subsection (2B) expired, as from 31 March 1990, pursuant to section 181(3) Reserve Bank of New Zealand Act 1989 (1989 No 157).
A new subsection (2B) was inserted, as from 1 April 1990, by section 181(4) Reserve Bank of New Zealand Act 1989 (1989 No 157).
Subsection (2B) was repealed, as from 1 October 1997, section 6(2) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
The original subsection (2C) was substituted, as from 1 February 1990, by section 181(1) and (6) Reserve Bank of New Zealand Act 1989 (1989 No 157).
Subsection (2C) expired, as from 30 June 1996, pursuant to section 181(7) Reserve Bank of New Zealand Act 1989 (1989 No 157). See clause 2 Reserve Bank of New Zealand Commencement Order 1995 (SR 1995/249).
A new subsection (2C) was inserted, as from 1 July 1996, by section 181(8) Reserve Bank of New Zealand Amendment Act 1989 (1989 No 157) (as substituted by section 11 Reserve Bank of New Zealand Amendment Act 1995). See clause 3 Reserve Bank of New Zealand Commencement Order 1995 (SR 1995/249).
Subsection (2C) was substituted, as from 1 October 1997, by section 6(3) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsections (2CA) to (2CG) were inserted, as from 15 April 2004, by section 7(2) Securities Amendment Act 2004 (2004 No 31).
Section 5(2CA)(a)(ii): amended, on 28 July 2009, by section 7(2) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 5(2CB)(a): amended, on 28 July 2009, by section 7(3) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 5(2CBA): inserted, on 28 July 2009, by section 7(4) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 5(2CC): amended, on 28 July 2009, by section 7(5) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 5(2CD): amended, on 28 July 2009, by section 7(6) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 5(2CDA): inserted, on 28 July 2009, by section 7(7) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 5(2CE)(c): substituted, on 28 July 2009, by section 7(8) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 5(2CF) investment advice: amended, on 29 February 2008, by section 14 of the Securities Markets Amendment Act 2006 (2006 No 47).
Subsections (2D) to (2F) were inserted, as from 1 October 1997, by section 6(3) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsections (2E) and (2F) were repealed, as from 15 April 2004, by section 7(3) Securities Amendment Act 2004 (2004 No 31).
Subsection (3) was amended, as from 1 September 1983, by section 5(4) Securities Amendment Act 1982 (1982 No 147) by substituting the expression “sections 33(2), 33(3), 34 to 37, 37A, 39 to 44, 44B to 54, and 57A to 69”
for the expression “sections 33 to 35 and 37 to 69”
.
Subsection (3) was amended, as from 1 October 1997, by section 6(4) Securities Amendment Act 1996 (1996 No 100) by substituting the expression “37A(1)(c) and (d) and (2)”
for the expression “37A”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (3)(b) was repealed, as from 1 July 1998, by section 13(1) Local Government Amendment Act (No 3) 1996 (1996 No 83).
Subsection (3)(e) was amended, as from 1 July 2001, by section 24(1) Housing Corporation Amendment Act 2001 (2001 No 37) by substituting the words “Housing New Zealand Corporation”
for the words “The Housing Corporation of New Zealand”
.
Subsection (3)(f) was repealed, as from 9 October 1989, by section 20 Rural Banking and Finance Corporation of New Zealand Act 1989 (1989 No 81).
Section 5(3A): inserted, on 9 April 2008, by section 5(1) of the Securities (Local Authority Exemption) Amendment Act 2008 (2008 No 23).
Section 5(3B): inserted, on 9 April 2008, by section 5(1) of the Securities (Local Authority Exemption) Amendment Act 2008 (2008 No 23).
Section 5(3C): inserted, on 9 April 2008, by section 5(1) of the Securities (Local Authority Exemption) Amendment Act 2008 (2008 No 23).
Section 5(3D): inserted, on 9 April 2008, by section 5(1) of the Securities (Local Authority Exemption) Amendment Act 2008 (2008 No 23).
Subsection (4) was substituted, as from 1 September 1983, by section 5(5) Securities Amendment Act 1982 (1982 No 147).
Subsection (4) was amended, as from 1 October 1997, by section 6(5) Securities Amendment Act 1996 (1996 No 100) by inserting the expression “38C to 38F”
. See section 2 of that Act for transitional provisions relating to its application.
Section 5(4A): inserted, on 1 October 2007, by section 233 of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).
Section 5(4B): inserted, on 1 October 2007, by section 233 of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).
Subsection (5) was substituted, as from 21 December 1988, by section 43(2) Securities Amendment Act 1988 (1988 No 234).
Subsection (5) was amended, as from 15 April 2004, by section 7(4) Securities Amendment Act 2004 (2004 No 31) by inserting the words “or any transaction or class of transactions”
after the words “person or class of persons”
.
Subsection (5)(c) and (d) was repealed, as from 1 December 2002, by section 4(1) Securities Amendment Act 2002 (2002 No 43).
Subsections (5A) and (5B) were inserted, as from 15 April 2004, by section 7(5) Securities Amendment Act 2004 (2004 No 31).
Subsection 6 was inserted, as from 1 December 2002, by section 4(2) Securities Amendment Act 2002 (2002 No 43).
Nothing in sections 37, 37A(1)(c), and 39 to 44 applies to any interest in a superannuation scheme that is an employer superannuation scheme.
Sections 5A to 5C were inserted, as from 15 April 2004, by section 8 Securities Amendment Act 2004 (2004 No 31).
The exemption in section 5A is subject to the conditions that—
(a) each annual report prepared under section 14 of the Superannuation Schemes Act 1989 for a financial year during which the superannuation trustees of the scheme relied on that exemption must include the following statements and information:
(i) if any superannuation trustee, promoter, or manager of the scheme, or any director of that superannuation trustee, promoter, or manager, has, during the 5 years preceding the specified date, been adjudged bankrupt or insolvent, convicted of any crime involving dishonesty, prohibited from acting as a director of a company, or placed in statutory management or receivership, a statement to that effect including the name and any alternative or former name or names of the superannuation trustee, promoter, manager, or director concerned:
(ii) if more than 10% of the value of the scheme's assets (calculated in accordance with generally accepted accounting practice) was, at any time during the year preceding the specified date, represented directly or indirectly by any securities that were issued by a superannuation trustee, manager, or custodian of the scheme (or any associated person of any of them), a description of those securities:
(iii) a brief description of any legal proceedings or arbitrations that are pending at the specified date and that may have a material adverse effect on the scheme:
(iv) a statement by the superannuation trustees of the scheme (or, if a superannuation trustee is a body corporate or unincorporate, by the directors of that body) as to whether, in their opinion, after due enquiry by them, either or both of the following have materially and adversely changed since the specified date:
(A) the value of the scheme's assets relative to its liabilities (including contingent liabilities):
(B) the ability of the scheme to pay its debts as they become due in the normal course of business; and
(b) the superannuation trustees of the scheme must, within 5 working days of receiving a member's request for a description of the investment objectives and policy for the scheme or of the means by which changes can be made to those objectives and that policy, without fee, send, or cause to be sent, to that member a brief description of those matters, except to the extent that those matters have been disclosed in the investment statement.
Sections 5A to 5C were inserted, as from 15 April 2004, by section 8 Securities Amendment Act 2004 (2004 No 31).
(1) For the purposes of this section and sections 5A and 5B, unless the context otherwise requires,—
crime involving dishonesty has the same meaning as in section 2(1) of the Crimes Act 1961
custodian does not include a bare trustee
de facto partner has the same meaning as in the Property (Relationships) Act 1976
employer superannuation scheme means a registered superannuation scheme (within the meaning of section 2(1) of the Superannuation Schemes Act 1989) that is promoted by an employer—
(a) admission to the membership of which is conditional on either or both of the following:
(i) being an employee of that employer or an employee of an associated person of that employer:
(ii) being a relative, spouse, partner, or dependant of a person who is an employee of that employer or an employee of an associated person of that employer; and
(b) in respect of which that employer is required to incur in any financial year costs (by way of contributions, expense payments, or both) at least equal to the amount of the costs of administering the scheme in respect of that financial year that are not met in that year from any excess in the value of the scheme's assets over the value of the members' accrued benefits
employer superannuation scheme: paragraph (a)(ii) of this definition was amended, as from 26 April 2005, by section 7 Relationships (Statutory References) Act 2005 (2005 No 3) by omitting the words “de facto”
.
manager means an administration manager or an investment manager (as those terms are defined in section 2(1) of the Superannuation Schemes Act 1989)
partner means a civil union partner or de facto partner.
partner: this definition was inserted, as from 26 April 2005, by section 7 Relationships (Statutory References) Act 2005 (2005 No 3).
specified date means, in relation to an annual report for a financial year, the date on which the financial year ends
spouse has the same meaning as in the Property (Relationships) Act 1976.
(2) For the purposes of the definition of employer superannuation scheme, the costs of administering a scheme do not include costs that are directly attributable to the management of the investments of the scheme.
Sections 5A to 5C were inserted, as from 15 April 2004, by section 8 Securities Amendment Act 2004 (2004 No 31).
(1) Subject to this section, nothing in sections 33, 34, 37 to 38A, 38C to 44, and 44B to 59 of this Act shall apply in respect of a security that has previously been allotted.
(2) All the provisions of this Act shall apply in respect of a security that has previously been allotted (whether in New Zealand or elsewhere) if the security was originally allotted with a view to its being offered for sale to the public in New Zealand and the security has not previously been offered for sale to the public in New Zealand or to the public outside New Zealand under an application regime under Part 5.
(2AA) A provision of Part 2 or the Regulations applies to a previously allotted security that is offered to a person outside New Zealand if—
(a) the provision applies to the security under section 77; and
(b) the security was originally allotted with a view to its being offered for sale to the public outside New Zealand in circumstances in which an application regime under Part 5 would have applied to the security; and
(c) the security has not previously been offered for sale to the public in New Zealand or to the public outside New Zealand under an application regime under Part 5.
(2A) All the provisions of this Act shall apply in respect of a unit in a unit trust that has previously been allotted (whether in New Zealand or elsewhere) and that is being offered, sold, or otherwise disposed of to the public for subscription by the manager or unit trustee of the unit trust or by an associated person of that manager or unit trustee.
(3) All the provisions of this Act shall apply in respect of an equity security or a security convertible into an equity security if the holder or offeror, not being the original allotter, offers the security for sale to the public and the original allotter advises, encourages, or knowingly assists the holder or offeror in connection with the offer or sale of the security.
(4) Nothing in subsection (3) of this section applies in respect of—
(a) An offer by the holder of a security, being an offer of the security to the public, that is made only to persons who, at the time of the offer, are holders of securities of the original allotter under terms of the articles of association or the constitution of the original allotter that require the offer to be made to those persons; or
(b) An offer by the holder of a security, being an offer of the security to the public, where the aggregate amount received by the holder, or persons associated with the holder, pursuant to offers of such securities to the public for subscription does not exceed $200,000 in any period of 12 months; or
(c) An offer by the holder of a security that is made—
(i) To not more than 6 members of the public; or
(ii) If the offer is made to more than 6 members of the public, the offer is made with a view to its being accepted by not more than 6 members of the public.
(5) For the purposes of subsections (2) and (2AA) of this section, unless the contrary is proved, a security shall be deemed to have been allotted with a view to its being offered for sale to the public if it is shown—
(a) That an offer of the security for sale to the public was made within 6 months after the allotment; or
(b) That, at the date when the offer was made, the consideration to be received by the allotter in respect of the security had not been received.
(6) For the purposes of subsection (4)(c) of this section, unless the contrary is proved, an offer shall be deemed to have been made with a view to its being accepted by more than 6 members of the public if, within the period of 12 months immediately following the making of the offer, more than 6 persons acquire an interest, whether direct or indirect, in securities of the same class offered to the public for subscription by the holder.
(7) Notwithstanding anything in section 2 of this Act, in this Act, unless the context otherwise requires, in relation to a security to which subsection (2) or subsection (2AA) or subsection (2A) or subsection (3) of this section applies, the term issuer means the original allotter of the security, and, except for the purposes of sections 51 to 54 of this Act, also includes the offeror of the security.
Section 6 (as amended, from 1 September 1983, by section 6 Securities Amendment Act 1982 (1982 No 147)) was substituted, as from 1 July 1994, by section 2(1) Securities Amendment Act 1993 (1993 No 120).
Subsection (1) was amended, as from 1 October 1997, by section 7(1) Securities Amendment Act 1996 (1996 No 100) by substituting the expression “37 to 38A, 38C to 44”
for the expression “37 to 44”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (2) was amended, as from 1 December 2002, by section 5(1) Securities Amendment Act 2002 (2002 No 43), by inserting the words “or to the public outside New Zealand under an application regime under Part 5”
.
Subsection (2AA) was inserted, as from 1 December 2002, by section 5(2) Securities Amendment Act 2002 (2002 No 43).
Subsection (2A) was inserted, as from 1 October 1997, by section 7(2) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (3) was amended, as from 1 December 2002, by section 5(3) Securities Amendment Act 2002 (2002 No 43), by omitting the words “in New Zealand”
.
Subsection (5) was amended, as from 1 December 2002, by section 5(4) Securities Amendment Act 2002 (2002 No 43), by substituting the words “subsections (2) and (2AA)”
for the expression “subsection (2)”
.
Subsection (7) was amended, as from 1 October 1997, by section 7(3) Securities Amendment Act 1996 (1996 No 100) by inserting the words “subsection (2A) or”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (7) was amended, as from 1 December 2002, by section 5(5) Securities Amendment Act 2002 (2002 No 43), by inserting the words “or subsection (2AA)”
after the expression “subsection (2)”
.
(1) This section applies to a security—
(a) That is exempted from the application of sections 33, 34, 37 to 38A, 38C to 44, and 44B to 59 of this Act by virtue of section 6(1) of this Act; and
(b) That is not a security to which any of subsections (2), (2AA), (2A), or (3) of section 6 of this Act applies; and
(c) That is offered to the public.
(2) Subject to subsection (3) of this section, it is an implied term of every offer of a security to which this section applies, that, except to the extent disclosed for the purposes of the offer of the security, the offeror has no information in relation to the original allotter that is not publicly available and that would, or would be likely to, affect materially the price of the security if it were so disclosed.
(3) For the purposes of subsection (2) of this section, an offeror is not to be taken to have information in relation to the original allotter if—
(a) Arrangements existed to ensure that no individual who took part in the decision to offer the securities to the public received, or had access to, that information or was influenced, in relation to that decision, by an individual who had that information; and
(b) No individual who took part in the decision to offer the securities to the public received, or had access to, that information or was influenced, in relation to that decision, by an individual who had that information.
Section 6A was inserted, as from 1 July 1994, by section 2(1) Securities Amendment Act 1993 (1993 No 120).
Section 6A was substituted, as from 1 July 1994, by section 2 Securities Amendment Act 1994 (1994 No 15).
Subsection (1)(a) was amended, as from 1 October 1997, by section 8(1) Securities Amendment Act 1996 (1996 No 100) by substituting the expression “37 to 38A, 38C to 44”
for the expression “37 to 44”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (1)(b) was amended, as from 1 October 1997, by section 8(2) Securities Amendment Act 1996 (1996 No 100) by substituting the words “any of subsections (2), (2A), or (3)”
for the words “subsection (2) or subsection (3)”
. See section 1(2) and (3) of that Act as to the commencement date, and section 2 of that Act for transitional provisions relating to its application.
Subsection (1)(b) was amended, as from 1 December 2002, by section 6(1) Securities Amendment Act 2002 (2002 No 43), by inserting the expression “(2AA),”
after the expression “subsections (2),”
.
Subsection (1)(c) was amended, as from 1 December 2002, by section 6(2) Securities Amendment Act 2002 (2002 No 43), by omitting the words “in New Zealand”
.
(1) Part 2 applies to securities offered to the public in New Zealand, regardless of—
(a) where any resulting allotment occurs:
(b) where the issuer is resident, incorporated, or carries on business.
(2) For the purposes of this Act, a security is offered to a person in New Zealand if an offer of that security for subscription is received by a person in New Zealand, unless the issuer demonstrates that it took all reasonable steps to ensure that members of the public in New Zealand may not accept the offer.
(3) Sections 38B and 58 (except section 58(3) and (4)) also apply to any advertisement that contains or refers to an offer of securities to the public outside New Zealand and that is distributed or to be distributed to a person outside New Zealand by,—
(a) in the case of section 38B, a person resident or having a place of business in New Zealand:
(b) in the case of section 58, a person resident or having a principal place of business in New Zealand.
(4) For the purpose of subsection (3), the definitions of advertisement and offer extend to communications or offers received by persons outside New Zealand.
(6) For the avoidance of doubt, nothing in Part 2 applies to a security or an advertisement unless it applies under subsections (1) to (5).
The original subsection (2)(b) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
The original subsection (2)(b) was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “him”
the words “or her”
.
Section 7 was substituted, as from 1 December 2002, by section 7 Securities Amendment Act 2002 (2002 No 43).
[Expired]
Sections 7A and 7B were inserted, as from 1 July 1989, by section 44 Securities Amendment Act 1988 (1988 No 234).
Sections 7A and 7B were repealed, as from 1 October 1997, by section 9(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
A new section 7A was inserted, as from 25 September 2000, by section 3 Securities Amendment Act 2000 (2000 No 35).
Section 7A expired, as from 14 September 2001, pursuant to section 7A(2).
[Repealed]
Sections 7A and 7B were inserted, as from 1 July 1989, by section 44 Securities Amendment Act 1988 (1988 No 234).
Sections 7A and 7B were repealed, as from 1 October 1997, by section 9(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
This Act shall bind the Crown.
(1) There is hereby established a Commission to be called the Securities Commission.
(2) The Commission is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.
(3) The Crown Entities Act 2004 applies to the Commission except to the extent that this Act expressly provides otherwise.
Subsections (2) and (3) were substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) The functions of the Commission shall be—
(a) To perform the functions and duties conferred or imposed on it by or under this Act or any other enactment; and
(b) To keep under review the law relating to bodies corporate, securities, financial advisers, and unincorporated issuers of securities, and to recommend to the Minister any changes thereto that it considers necessary; and
(c) To keep under review practices relating to securities and financial advisers, and to comment thereon to any appropriate body; and
(ca) To co-operate with any overseas regulator and for that purpose, but without limiting this function, to communicate, or make arrangements for communicating, information obtained by the Commission in the performance of its functions and powers, confidential or not, to that overseas regulator which the Commission considers may assist that overseas regulator in the performance of its functions; and
(caa) to keep under review activities on securities markets, and to comment on those activities to the appropriate body; and
(cab) on the Minister's request, to advise the Minister on the conduct rules, or amendments to those rules, proposed by securities exchanges; and.
(d) To promote public understanding of the law and practice relating to securities and the law and practice relating to financial advisers; and
(da) to keep under review the law and practices relating to settlement systems (as defined in Part 5C of the Reserve Bank of New Zealand Act 1989, but not including any designated settlement system that is declared to be a pure payment system in accordance with section 156N(3)(d)) and to perform the functions and duties, and exercise the powers, given to it under that Part; and
(e) by agreement with the Takeovers Panel, to provide administrative and support services to the Panel.
(2) Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers, under—
(a) this Act; and
(b) any other Act that expressly provides for the functions, powers or duties of the Commission (other than the Crown Entities Act 2004).
Section 10(1)(b): amended, on 5 December 2008, by section 163(2) of the Financial Advisers Act 2008 (2008 No 91).
Section 10(1)(c): amended, on 5 December 2008, by section 163(3) of the Financial Advisers Act 2008 (2008 No 91).
Subsection (1)(ca) was inserted, as from 21 December 1988, by section 45 Securities Amendment Act 1988 (1988 No 234).
Subsection (1)(ca) was amended, as from 1 December 2002, by section 8(1) Securities Amendment Act 2002 (2002 No 43), by substituting the words “overseas regulator”
for the words “securities commission or other similar body in any other country”
.
Subsection (1)(ca) was amended, as from 1 December 2002, by section 8(2) Securities Amendment Act 2002 (2002 No 43), by substituting the words “overseas regulator”
for the words “commission or body”
in both places that they occur.
Subsection (1)(caa) and (cb) were inserted, as from 1 December 2002, by section 8(3) Securities Amendment Act 2002 (2002 No 43).
Section 10(1)(d): amended, on 5 December 2008, by section 163(4) of the Financial Advisers Act 2008 (2008 No 91).
Subsection (1)(d) was amended, as from 1 June 2001, by section 4 Securities Amendment Act (No 2) 2001 (2001 No 29) by inserting the expression “; and”
.
Section 10(1)(da): inserted, on 24 November 2009, by section 9 of the Reserve Bank of New Zealand Amendment Act 2009 (2009 No 53).
Subsection (1)(e) was inserted, as from 1 June 2001, by section 4 Securities Amendment Act (No 2) 2001 (2001 No 29).
Subsection (2) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) The Commission must consist of not less than 5, and not more than 11, members, of whom at least 1 must be a barrister or solicitor of at least 7 years' practice.
(2) Members of the Commission are the board for the purposes of the Crown Entities Act 2004.
(3) One member of the Commission must be appointed by the Governor-General, on the recommendation of the Minister, as chairperson.
(3A) The chairperson and any deputy chairperson may only be removed from office as chairperson or deputy chairperson for just cause.
(3B) In other respects, clauses 1(2) and (3) and 4(2) and (3) of Schedule 5 of the Crown Entities Act 2004 apply to the appointment and removal of the chairperson and any deputy chairperson of the Commission.
(3C) One of the members must be appointed by the Governor-General as Commissioner for Financial Advisers under section 79(3) of the Financial Advisers Act 2008.
(4) The Minister must not recommend a person for appointment as a member of the Commission, unless, in the opinion of the Minister, the person is qualified for appointment, having regard to the functions and powers of the Commission, by virtue of the person's knowledge of, or experience in, industry, commerce, economics, law, accountancy, public administration, or securities.
(5) Subsection (4) does not limit section 29 of the Crown Entities Act 2004.
Subsection (1) was substituted, as from 6 November 1986, by section 2 Securities Amendment Act 1986 (1986 No 109).
The words “High Court”
in subsection (2) were substituted, as from 1 April 1980, for the words “Supreme Court”
pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).
Section 11 was substituted, as from 3 May 2001, by section 3 Securities Amendment Act 2001 (2001 No 25).
Section 11(1): amended, on 5 December 2008, by section 163(5) of the Financial Advisers Act 2008 (2008 No 91).
Subsections (2) and (3) were substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsections (3A) and (3B) were inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Section 11(3C): inserted, on 5 December 2008, by section 163(6) of the Financial Advisers Act 2008 (2008 No 91).
Subsection (4) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “The Minister must not recommend a person”
for the words “No person may be recommended”
.
Subsection (5) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 12 was substituted, as from 6 November 1986, by section 3 Securities Amendment Act 1986 (1986 No 109).
The heading to section 12 was amended, as from 1 December 2002, by section 9(1) Securities Amendment Act 2002 (2002 No 43), by omitting the words “in case of absence or incapacity”
.
Subsections (1) and (2) were amended, as from 3 May 2001, pursuant to section 5(a) Securities Amendment Act 2001 (2001 No 25) by substituting the word “Chairperson”
for the word “Chairman”
Subsection (1) was amended, as from 1 December 2002, by section 9(2) Securities Amendment Act 2002 (2002 No 43), by inserting the words “, or if the Chairperson considers it not proper or desirable to participate personally in relation to a matter”
.
Subsection (2) was amended, as from 1 December 2002, by section 9(3) Securities Amendment Act 2002 (2002 No 43), by inserting the words “, or if, in relation to a matter, the Chairperson does not consider it proper or desirable to participate personally,”
after the words “exercising those powers”
.
Subsection (3) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Subsection (3) was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “him”
the words “or her”
.
Section 12 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) [Repealed]
(2) [Repealed]
(3) [Repealed]
(4) Notwithstanding that the term of office of a member of the Commission has expired or that a member of the Commission has resigned his or her office, he or she shall be deemed to continue a member of the Commission for the purpose of deciding any inquiry, application, or matter that was wholly heard before the expiration of his or her term of office or before his or her resignation took effect, as the case may be.
(5) Subsection (4) applies despite section 45 of the Crown Entities Act 2004.
Section 13 was substituted, as from 6 November 1986, by section 4 Securities Act 1986 (1986 No 109).
Subsections (1) and (3) were amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after each occurrence of the word “his”
the words “or her”
.
Subsection (3) was amended, as from 1 January 2002, by section 70(1) Human Rights Amendment Act 2001 (2001 No 96), by substituting the words “inability to perform the functions of the office”
for the word “disability”
.
Subsections (1) to (3) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (4) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Subsection (4) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
Subsection (5) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 14 was substituted, as from 6 November 1986, by section 5 Securities Amendment Act 1986 (1986 No 109).
Subsection (1) was amended, as from 1 April 2003, by section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54) by substituting the words “Remuneration Authority”
for the words “Higher Salaries Commission”
.
Section 14 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 14A was inserted, as from 14 November 1980, by section 6(1) Higher Salaries Commission Amendment Act 1980 (1980 No 31).
Section 14A was substituted, as from 6 November 1986, by section 5(1) Securities Amendment Act 1986 (1986 No 109).
Section 14A was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) The Commission or Chairperson may determine that the powers of the Commission in relation to any matter or class of matters may be exercised by separate divisions of the Commission.
(2) The Commission or Chairperson may revoke or amend a determination made under subsection (1).
(3) Every determination (or revocation or amendment of a determination) must be recorded in writing and signed by 3 members or the Chairperson.
(4) The powers in this section are an exception to clause 14 of Schedule 5 of the Crown Entities Act 2004.
Compare: 1993 No 107 s 7A
Sections 14B to 14C were inserted, as from 1 December 2002, by section 10 Securities Amendment Act 2002 (2002 No 43).
Subsection (4) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) Each division consists of the members who are assigned to it for the time being by the Commission or Chairperson.
(2) Each division must have at least 3 members.
(3) If the members assigned to a division do not include the Chairperson, the Commission or Chairperson must nominate 1 of those members as chairperson of the division.
(4) [Repealed]
(5) [Repealed]
Compare: 1993 No 107 s 7B
Sections 14B to 14C were inserted, as from 1 December 2002, by section 10 Securities Amendment Act 2002 (2002 No 43).
Subsections (4) and (5) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) For the purposes of determining any matter or class of matters specified in a determination under section 14B,—
(a) the Commission consists of the division of the Commission specified in the determination; and
(b) the powers of that division are not affected by any changes or vacancies in its membership.
(2) A division of the Commission may exercise powers of the Commission even though another division of the Commission is exercising powers of the Commission at the same time.
Compare: 1993 No 107 s 7C
Sections 14B to 14C were inserted, as from 1 December 2002, by section 10 Securities Amendment Act 2002 (2002 No 43).
(1) [Repealed]
(2) [Repealed]
(2A) [Repealed]
(3) [Repealed]
(4) [Repealed]
(5) At any meeting of the Commission, the quorum necessary for the transaction of business shall be 3 members.
(6) Subsection (5) applies despite clause 9(1) and (2) of Schedule 5 of the Crown Entities Act 2004.
(7) [Repealed]
Subsections (1) to (4) were amended, as from 3 May 2001, pursuant to section 5(a) Securities Amendment Act 2001 (2001 No 25) by substituting the word “Chairperson”
for the word “Chairman”
.
Subsection (1) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
Subsection (1) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (2) was amended, as from 1 December 2002, by section 11(1) Securities Amendment Act 2002 (2002 No 43), by substituting the words “the places, dates, and times, and by the methods, that”
for the words “such places as”
.
Subsection (2) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (2A) was inserted, as from 1 December 2002, by section 11(2) Securities Amendment Act 2002 (2002 No 43).
Subsections (2A) to (4) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (6) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (7) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) Despite section 15, if—
(a) A meeting of the Commission with 3 or more members commences any proceeding, inquiry, or the transaction of other business; and
(b) The number of those members able to attend any subsequent meeting is reduced to 2 as a result of illness, accident, or other unavoidable cause, or the expiration of a member's term, or the resignation or removal from office of a member,—
the remaining 2 members of the Commission constitute a quorum for the purposes of completing the proceeding, inquiry, or transaction of business.
(2) At a meeting of the Commission at which those 2 members are present, each of those members has a deliberative vote and, in the event of an equality of votes, the presiding member has a casting vote.
Section 15A was inserted, as from 28 July 1997, by section 2 Securities Amendment Act (No 2) 1997 (1997 No 54).
(1) A resolution in writing signed, or assented to in writing (whether sent by post, delivery, or electronic communication) by 3 members of the Commission shall be as valid and effectual as if it had been passed at a meeting of the Commission duly called and constituted.
(2) This section applies despite clause 13 of Schedule 5 of the Crown Entities Act 2004.
Section 16 was amended, as from 28 July 1997, by section 3 Securities Amendment Act (No 2) 1997 (1997 No 54) by substituting the words “, telex message, facsimile, electronic mail, or other similar means of communication by 3”
for the words “or telex message by all the”
.
Subsection (1) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “in writing (whether sent by post, delivery, or electronic communication)”
for the words “by letter, telegram, cable, telex message, facsimile, electronic mail, or other similar means of communication”
.
Subsection (2) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 17 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) The Commission may communicate to the Takeovers Panel any information that the Commission—
(a) holds in relation to the exercise of the Commission's powers or the performance of its functions and duties; and
(b) considers may assist the Takeovers Panel in the exercise of the Panel's powers or the performance of its functions and duties.
(2) The Commission may use any information communicated to it by the Takeovers Panel under section 15A of the Takeovers Act 1993 in the Commission's exercise of its powers or the performance of its functions and duties.
(3) This section applies despite anything to the contrary in any enactment, contract, deed, or document.
Section 17A was inserted, as from 1 June 2001, by section 5 Securities Amendment Act (No 2) 2001 (2001 No 29).
(1) The Commission may communicate to the Commerce Commission any information that the Commission—
(a) holds in relation to the exercise of the Commission's powers, or the performance of its functions and duties; and
(b) considers may assist the Commerce Commission in the exercise of the Commerce Commission's powers, or the performance of its functions and duties, in respect of the Fair Trading Act 1986.
(2) The Commission may use any information communicated to it by the Commerce Commission under section 48A of the Fair Trading Act 1986 in the Commission's exercise of its powers, or the performance of its functions and duties.
(3) This section applies despite anything to the contrary in any enactment, contract, deed, or document.
Section 17B was inserted, as from 25 October 2006, by section 4 Securities Amendment Act 2006 (2006 No 46). See section 23 of that Act as to the transitional validation for small employer superannuation schemes. See section 24 of that Act as to the transitional provision for existing offences and contraventions.
[Repealed]
Subsection (3) was amended, as from 16 December 1982, by section 7 Securities Amendment Act 1982 (1982 No 147) by inserting the words “or business”
.
Subsections (3) and (5) were amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25) by inserting, after each occurrence of the word “his”
, the words “or her”
.
Subsection (5) was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25) by inserting, after the word “him”
, the words “or her”
.
Sections 18 to 19 were repealed, as from 1 December 2002, by section 12 Securities Amendment Act 2002 (2002 No 43).
[Repealed]
Section 18A was inserted, as from 21 December 1988, by section 46 Securities Amendment Act 1988 (1988 No 234).
Sections 18 to 19 were repealed, as from 1 December 2002, by section 12 Securities Amendment Act 2002 (2002 No 43).
[Repealed]
Subsection (1) was substituted, as from 16 December 1982, by section 8(1) Securities Amendment Act 1982 (1982 No 147).
The words “High Court”
in the original subsection (2) were substituted, as from 1 April 1980, for the words “Supreme Court”
pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).
The original subsection (2) was amended, as from 16 December 1982, by section 8(2) Securities Amendment Act 1982 (1982 No 147) by substituting the expression “sections 44(1)(b), 44A, 44B(2)”
for the expression “section 44(1)(b)”
.
Subsection (2) was substituted, as from 3 May 2001, by section 4 Securities Amendment Act 2001 (2001 No 25).
Subsection (5) was substituted, and subsection (6) was inserted, as from 1 April 1987, by section 25(1) Official Information Amendment Act 1987 (1987 No 8).
Sections 18 to 19 were repealed, as from 1 December 2002, by section 12 Securities Amendment Act 2002 (2002 No 43).
[Repealed]
Subsection (2) was repealed, as from 28 July 1997, by section 4 Securities Amendment Act (No 2) 1997 (1997 No 54).
Section 20 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 21 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(1) For the purpose of providing a superannuation fund or retiring allowance for any of the full-time members of the Commission, sums by way of subsidy may from time to time be paid into any superannuation scheme which is registered under the Superannuation Schemes Act 1989.
(1A) If the question arises as to whether or not any member of the Commission is a full-time member for the purposes of subsection (1) of this section, that question shall be determined by the Minister, whose decision shall be final.
(2) Notwithstanding anything in this Act, any person who immediately before becoming an officer or employee or member of the Commission is a contributor to the Government Superannuation Fund under Part 2 of the Government Superannuation Fund Act 1956 shall be deemed to be, for the purposes of the Government Superannuation Fund Act 1956, employed in the Government service so long as he or she continues to be an officer or employee or member of the Commission; and that Act shall apply to him or her in all respects as if his or her service as such an officer or employee or member were Government service.
(3) Subject to the Government Superannuation Fund Act 1956, nothing in subsection (2) of this section shall entitle any such person to become a contributor to the Government Superannuation Fund after he has once ceased to be a contributor.
(4) For the purposes of applying the Government Superannuation Fund Act 1956, in accordance with subsection (2) of this section, to a person who is in the service of the Commission (whether as an officer or an employee or as a member) and who is a contributor to the Government Superannuation Fund, the term controlling authority in relation to any such person means the Commission.
Subsection (1) (as amended, from 13 December 1979, by section 2(1) Securities Amendment Act 1979 (No 109)) was substituted, as from 1 April 1991, by section 80 National Provident Fund Restructuring Act 1990 (No 126).
Subsection (1) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by omitting the words “officers or employees or”
.
Subsection (1A) was inserted, from 13 December 1979, by section 2(2) Securities Amendment Act 1979 (No 109).
Subsection (2) was amended, from 13 December 1979, by section 2(1)(b) Securities Amendment Act 1979 (No 109) by inserting the words “or member”
.
Subsection (2) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
Subsection (2) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Subsection (2) was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “him”
the words “or her”
.
Subsection (4) was amended, from 13 December 1979, by section 2(1)(c) Securities Amendment Act 1979 (No 109) by inserting the words “or as a member”
.
[Repealed]
Section 23 was amended, as from 13 December 1979, by section 3 and 6 Securities Amendment 1979 (1979 No 109) by substituting the word “Commission”
for the word “Board”
and by omitting the words “or alternative member”
, respectively.
Section 23 was amended, as from 1 April 1988, by section 90(a) State Sector Act 1988 (1988 No 20) by substituting the words “State Sector Act 1988”
for the words “State Services Act 1962”
.
Subsection (2) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Section 23 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 24 was amended, from 1 July 1983, by section 50 Official Information Act 1982 (1982 No 156) by substituting the words “sections 105 and 105A of the Crimes Act 1961 to be officials”
for the words “the Official Secrets Act 1951 to be persons holding office under Her Majesty”
.
Section 24 was amended, as from 6 November 1986, section 7 Securities Amendment Act 1986 (1986 No 109) by omitting the words “and alternate member”
.
Section 24 was substituted, as from 1 April 1987, by section 25(1) Official Information Amendment Act 1987 (1987 No 8).
Section 24 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Subsections (1), (2), and (3) were amended, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124) by substituting “High Court”
for “Supreme Court”
.
Sections 25 and 26 were repealed, as from 1 December 2002, by section 12 Securities Amendment Act 2002 (2002 No 43).
[Repealed]
Subsections (2) and (5) were amended, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124) by substituting “High Court”
for “Supreme Court”
.
Subsections (3), (4), and (7) were amended, as from 1 October 1997, by section 10 Securities Amendment Act 1996 (1996 No 100) by substituting the expression “10 working”
for the expression “14”
. See section 2 of that Act for transitional provisions relating to its application.
Subsections (4) to (7) were amended, as from 3 May 2001, pursuant to section 5(a) Securities Amendment Act 2001 (2001 No 25) by substituting the word “Chairperson”
for the word “Chairman”
.
Subsections (2) and (5) were amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after each occurrence of the word “he”
the words “or she”
.
Subsections (4) and (8) were amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after each occurrence of the word “his”
the words “or her”
.
Sections 25 and 26 were repealed, as from 1 December 2002, by section 12 Securities Amendment Act 2002 (2002 No 43).
(1) The Commission may not delegate the powers in—
(b) sections 34, 36ZO, 48, 48C, and subpart 2 of Part 5, of the Securities Markets Act 1988.
(2) In other respects, section 73 of the Crown Entities Act 2004 applies.
Subsection (1) was amended, as from 16 December 1982, by section 9 Securities Amendment Act 1982 (1982 No 147) by inserting the expression “44A, 44B(2)”
.
The word “Chairperson”
in subsection (1) was substituted, as from 3 May 2001, for the word “Chairman”
pursuant to section 5(a) Securities Amendment Act 2001 (2001 No 25).
Subsection (1) was amended, as from 15 April 2004, by section 9(1) Securities Amendment Act 2004 (2004 No 31) by inserting the expression “38B,”
after the expression “5(5),”
.
Subsection (1) was amended, as from 15 April 2004, by section 9(2) Securities Amendment Act 2004 (2004 No 31) by omitting the expression “44A,”
.
Subsection (6) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Section 27 was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (1) was substituted, as from 25 October 2006, by section 5 Securities Amendment Act 2006 (2006 No 46). See section 23 of that Act as to the transitional validation for small employer superannuation schemes. See section 24 of that Act as to the transitional provision for existing offences and contraventions. See section 2(2)(a) of that Act as to the new section 27(1)(b) of this Act coming into force on a date to be appointed by Order in Council.
Section 27(1)(b): added, on 29 February 2008, by section 5 of the Securities Amendment Act 2006 (2006 No 46).
(1) No proceedings, civil or criminal, shall lie against the Commission for anything it may do or fail to do in the course of the exercise or intended exercise of its functions, unless it is shown that it acted in bad faith or without reasonable care.
(2) No proceedings, civil or criminal, lie against any member of the Commission, or any officer or employee of the Commission, or any member of a committee of the Commission, for anything that person may do or say or fail to do or say in the course of the operations of the Commission, unless it is shown by the Commission that the person acted in bad faith.
(2A) Section 59(3) of the Crown Entities Act 2004 (which provides that a statutory entity may bring an action against a member for breach of an individual duty) does not apply, unless it is shown that the person acted in bad faith.
(3) [Repealed]
(4) [Repealed]
(5) Nothing in subsections (1) and (2) applies in respect of proceedings for—
(a) An offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961; or
(b) The offence of conspiring to commit an offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961; or
(c) The offence of attempting to commit an offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961.
(5A) Sections 122 to 126 of the Crown Entities Act 2004 apply as if the conduct for which a person may be indemnified or insured under those sections were conduct that is covered by the protection from liability in this section.
(5B) This section contains an exception to section 121 of the Crown Entities Act 2004.
(6) [Repealed]
(7) For the purposes of clause 3 of Part 2 of Schedule 1 to the Defamation Act 1992, any report or comment made by the Commission in the course of the exercise or intended exercise of its functions shall be deemed to be an official report made by a person holding an inquiry under the authority of the Parliament of New Zealand.
Section 28 was substituted, as from 16 December 1982, by section 10 Securities Amendment Act 1982 (1982 No 147).
The heading to section 28 was substituted, as from 1 December 2002, by section 13(1) Securities Amendment Act 2002 (2002 No 43).
Subsection (2) was amended, as from 6 November 1986, by section 8 Securities Amendment Act 1986 (1986 No 109) by omitting the words “or alternate member”
. See section 14 of that Act for savings provisions for subsections (2) and (3).
Subsection (2) was amended, as from 1 June 2001, by section 6 Securities Amendment Act (No 2) 2001 (2001 No 29) by inserting the words “, or any officer or employee of the Commission,”
after the words “member of the Commission”
.
Subsection (2) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after every occurrence of the word “he”
the words “or she”
.
Subsection (2) was amended, as from 1 December 2002, by section 13(2) Securities Amendment Act 2002 (2002 No 43), by substituting the word “No”
for the words “Subject to subsection (3) of this section, no”
.
Subsection (2) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (2A) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (3) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after every occurrence of the word “he”
the words “or she”
.
Subsection (3) was repealed, as from 1 December 2002, by section 13(3) Securities Amendment Act 2002 (2002 No 43).
Subsections (3), and (4) were amended, as from 6 November 1986, by section 8 Securities Amendment Act 1986 (1986 No 109) by omitting the words “or alternate member”
from each place where those words occurred. See section 14 of that Act for savings provisions for subsections (2) and (3).
Subsection (4) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Subsection (4) was repealed, as from 1 December 2002, by section 13(3) Securities Amendment Act 2002 (2002 No 43).
Subsection (5) was substituted, as from 1 July 1983, by section 50 Official Information Act 1982 (1982 No 156).
Subsection (5) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “subsections (1) and (2)”
for the words “subsections (1) to (4) of this section”
.
Subsection (5)(a), (b), and (c) were amended, as from 1 April 1987, by section 25(1) Official Information Amendment Act 1987 (1987 No 8) by omitting the words “or section 32(d) of this Act”
.
Subsection (5)(a), (b), and (c) were amended, as from 1 July 1993, by section 129(1) Privacy Act 1993 (1993 No 28) by adding the words “or section 105B”
.
Subsections (5A) and (5B) were inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (6) was repealed, as from 1 December 2002, by section 13(3) Securities Amendment Act 2002 (2002 No 43).
Subsection (7) was substituted, as from 1 February 1993, by section 56 Defamation Act 1992 (1992 No 105).
(1) Subject to subsection (2) of this section the Commission may publish any report or comment made by the Commission in the course of the exercise or intended exercise of its functions.
(2) Notwithstanding subsection (1) of this section, the Commission shall not publish any report containing a recommendation made by it under section 10(b) of this Act.
Section 28A was inserted, as from 16 December 1982, by section 11 Securities Amendment Act 1982 (1982 No 147).
In any proceedings for an offence against this Act, a certificate purporting to be signed by the Chairperson of the Commission for the time being and certifying that a copy of a resolution set out in, or attached to, the certificate was passed by the Commission on a date specified in the certificate shall be sufficient evidence, until the contrary is proved, that such a resolution was so passed by the Commission.
The word “Chairperson”
was substituted, as from 3 May 2001, for the word “Chairman”
pursuant to section 5(a) Securities Amendment Act 2001 (2001 No 25).
[Repealed]
Subsection (1) was amended, as from 1 July 1989, by section 86(1) Public Finance Act 1989 (1989 No 44) by substituting the words “30th day of June,”
for the words “31st day of March”
.
Subsection (2) was substituted, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).
Section 30 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 31 was substituted, as from 21 December 1988, by section 47 Securities Amendment Act 1988 (1988 No 234).
Section 31 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Sections 31A to 31E were inserted, as from 16 December 1982, by section 12 Securities Amendment Act 1982 (1982 No 147).
Section 31A was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Sections 31A to 31E were inserted, as from 16 December 1982, by section 12 Securities Amendment Act 1982 (1982 No 147).
Subsection (3) was amended, as from 28 July 1997, by section 5(1) Securities Amendment Act (No 2) 1997 (1997 No 54) by substituting the word “practicable”
for the word “ordinary”
.
Subsection (4) was amended, as from 28 July 1997, by section 5(2) Securities Amendment Act (No 2) 1997 (1997 No 54) by substituting the word “effected”
for the words “by cheque signed”
.
Section 31B was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Sections 31A to 31E were inserted, as from 16 December 1982, by section 12 Securities Amendment Act 1982 (1982 No 147).
Subsections (2) to (5) were repealed, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).
Section 31C was substituted, as from 1 July 2001, by section 53 Public Audit Act 2001 (2001 No 10).
Section 31C was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Section 31CA was inserted, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).
Section 31CA was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed]
Sections 31A to 31E were inserted, as from 16 December 1982, by section 12 Securities Amendment Act 1982 (1982 No 147).
Section 31D was amended, as from 1 July 1989, by section 86(1) Public Finance Act 1989 (1989 No 44) by substituting the words “pursuant to section 25 of the Public Finance Act 1989”
for the words “in the same manner in which money in the Public Account may by invested pursuant to section 50 of the Public Finance Act 1977”
.
Section 31D was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
The income of the Commission shall be exempt from income tax.
Sections 31A to 31E were inserted, as from 16 December 1982, by section 12 Securities Amendment Act 1982 (1982 No 147).
[Repealed]
Paragraph (a) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
Paragraph (a) was amended, as from 3 May 2001, pursuant to section 5(e) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “him”
the words “or her”
.
Paragraph (c) was amended, as from 1 April 1987, by section 25(1) Official Information Amendment Act 1987 (1987 No 8) by omitting the words “or paragraph (c)”
.
Paragraph (d) was repealed, as from 1 April 1987, by section 25(1) Official Information Amendment Act 1987 (1987 No 8).
Section 32 was repealed, as from 1 December 2002, by section 14 Securities Amendment Act 2002 (2002 No 43).
(1) No security shall be offered to the public for subscription, by or on behalf of an issuer, unless—
(a) The offer is made in, or accompanied by, an authorised advertisement that is an investment statement that complies with this Act and regulations; or
(b) The offer is made in an authorised advertisement that is not an investment statement; or
(c) The offer is made in, or accompanied by, a registered prospectus that complies with this Act and regulations.
(2) No debt security shall be offered to the public for subscription, by or on behalf of an issuer, unless—
(a) The issuer of the security has appointed a person as a trustee in respect of the security and both the issuer and that person have signed a trust deed relating to the security; and
(b) A copy of the trust deed has been registered by the Registrar pursuant to section 46 of this Act; and
(c) Where the provisions of the trust deed have been amended, a copy of the instrument amending the deed has been registered by the Registrar pursuant to section 47 of this Act.
(3) No participatory security shall be offered to the public for subscription, by or on behalf of an issuer, unless—
(a) The issuer of the security has appointed a person as a statutory supervisor in respect of the security and both the issuer and that person have signed a deed of participation relating to the security; and
(b) A copy of the deed of participation has been registered by the Registrar pursuant to section 46 of this Act; and
(c) Where the provisions of the deed of participation have been amended, a copy of the instrument amending the deed has been registered by the Registrar pursuant to section 47 of this Act.
Subsection (1) was substituted, as from 1 September 1983, by section 13 Securities Amendment Act 1982 (1982 No 147).
Subsection (1) was further substituted, as from 1 October 1997, by section 11(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
(1) No registered prospectus shall be distributed by or on behalf of an issuer,—
(a) After it has been amended unless all the amendments have been incorporated in, or attached by way of memorandum to, every copy of the registered prospectus that is so distributed; or
(b) If it is false or misleading in a material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances (whether or not it became so misleading as a result of a change in circumstances occurring after the date of the prospectus).
(2) A registered prospectus shall not be distributed by or on behalf of an issuer unless it is accompanied by,—
(a) If the registered prospectus refers to, but does not contain, financial statements registered under the Financial Reporting Act 1993, a copy of those financial statements; and
(b) A copy of any documents registered under this Act for the purpose of extending the period during which allotments may be made under the registered prospectus.
(3) However, subsection (2)(a) does not apply to a simplified disclosure prospectus.
Section 34 was substituted, as from 1 September 1983, by section 14 Securities Amendment Act 1982 (1982 No 147)).
Subsection (1)(a) was substituted, as from 28 July 1997, by section 6 Securities Amendment Act (No 2) 1997 (1997 No 54).
Subsection (2) was inserted, as from 1 October 1997, by section 12 Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Section 34(3): added, on 28 July 2009, by section 8 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
(1) No person shall go from house to house offering securities to the public or any member of the public.
(2) In this section, the term house shall not include an office used for business purposes, or any other premises used by the occupier wholly or partly for the purpose of carrying on any trade, business, profession, or calling.
(3) In this section, the term securities does not include life insurance policies or securities in any co-operative company or building society.
Subsection (3) was substituted, as from 1 October 1997, by section 13 Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
[Repealed]
Section 36 was repealed, as from 1 September 1983, by section 17(2) Securities Amendment Act 1982 (1982 No 147).
An issuer must ensure that subscriptions for securities offered to the public are held in trust for the subscribers until the securities are allotted or until the subscriptions are repaid to the subscribers under this Act.
Section 36A was inserted, as from 15 April 2004, by section 10 Securities Amendment Act 2004 (2004 No 31).
(1) No allotment of a security offered to the public for subscription shall be made unless at the time of the subscription for the security there was a registered prospectus relating to the security.
(1A) No allotment of a security that is offered in a simplified disclosure prospectus may be made—
(a) by a person who is subject to a prohibition order while that order is in force; or
(b) in contravention of section 44AD(1).
(2) No allotment shall be made of an equity security or a participatory security or a unit in an unit trust offered to the public for subscription unless the amount stated in the registered prospectus relating thereto as the minimum amount which, in the opinion of the directors of the issuer, must be raised by the issue of the securities in order to provide for the matters specified in regulations made under this Act, is subscribed, and that amount is paid to, and received by, the issuer within 4 months after the date of the registered prospectus; and, for the purposes of this subsection—
(a) A sum shall be deemed to have been paid to, and received by, the issuer if a cheque for that sum is received in good faith by the issuer and the directors of the issuer have no reason to suspect that the cheque will not be paid:
(b) The amount so stated in the registered prospectus shall be reckoned exclusively of any amount payable otherwise than in cash.
(2A) Subsection (2) does not apply if there is no minimum amount which, in the opinion of the directors of the issuer, must be raised by the issue of the securities in order to provide for the matters specified in regulations made under this Act.
(3) An allotment of a participatory security offered to the public for subscription must not be made unless, at the time of allotment, a written statement from the subscriber authorising the subscription for that particular security has been received by—
(a) the statutory supervisor; or
(b) a person appointed by the statutory supervisor to receive, on the statutory supervisor's behalf, that written statement or written statements of that class.
(4) Any allotment made in contravention of the provisions of this section shall be invalid and of no effect.
(5) Where subscriptions for securities are received by or on behalf of an issuer, but, by virtue of this section, the securities may not be allotted, or for any reason the securities are not allotted, the issuer shall ensure that—
(a) [Repealed]
(b) The subscriptions, together with such interest (if any) as has been earned thereon, are repaid to the subscribers as soon as reasonably practicable.
(6) If any subscriptions to which this section applies are not so repaid within 2 months after the date on which the subscriptions were received by or on behalf of the issuer (or, in any case to which subsection (2) of this section applies, within 5 months after the date of the registered prospectus), the issuer and all the directors thereof shall be jointly and severally liable to repay the subscriptions, together with interest at a rate prescribed from time to time by regulations made under this Act from the date on which the subscriptions were received by or on behalf of the issuer:
Provided that a director shall not be so liable if he or she proves that the default in the repayment of the subscriptions was not due to any misconduct or negligence on his or her part.
(7) For the purposes of the Limitation Act 1950, any sum recoverable under subsection (5) or subsection (6) is not a penalty or forfeiture or sum by way of penalty or forfeiture.
Section 37 was substituted, as from 1 September 1983, by section 15 Securities Amendment Act 1982 (1982 No 147)).
Section 37(1A): inserted, on 28 July 2009, by section 9 of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Subsection (2) was amended, as from 1 October 1997, by section 14(1) Securities Amendment Act 1996 (1996 No 100) by inserting the words “or a unit in an unit trust”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (2) was amended, as from 15 April 2004, by section 11(1) Securities Amendment Act 2004 (2004 No 31) by omitting the words “if the allotment is the first allotment of such security to the public”
.
Subsection (2A) was inserted, as from 15 April 2004, by section 11(2) Securities Amendment Act 2004 (2004 No 31).
Subsection (3) was amended, as from 1 October 1997, by section 14(2) Securities Amendment Act 1996 (1996 No 100) by substituting the words “has received a written statement from”
for the words “holds a written statement signed by”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (3) was substituted, as from 15 April 2004, by section 11(3) Securities Amendment Act 2004 (2004 No 31).
Subsection (5)(a) was repealed, as from 15 April 2004, by section 11(4) Securities Amendment Act 2004 (2004 No 31).
Subsection (6) was amended, as from 1 October 1997, by section 3 Securities Amendment Act 1997 (1997 No 16) by substituting the words “a rate prescribed from time to time by regulations made under this Act”
for the words “the rate of 10 percent per annum”
.
Subsection (6) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
Subsection (6) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Subsection (7) was inserted, as from 15 April 2004, by section 11(5) Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) An application to the Court for a relief order in respect of the application of section 37 to the allotment of a security may be made—
(a) in respect of a contravention of section 37; and
(b) regardless of whether the contravention occurred before or after this section comes into force; and
(c) in connection with 1 or more subscribers.
(2) However, an application to the Court for a relief order in respect of the application of section 37 to the allotment of a security may not be made if the subscription for the security has been repaid to the subscriber under section 37(5) or (6).
(3) In this section and sections 37AB to 37AL, unless the context otherwise requires,—
(a) security holder means the person who would be the current security holder but for the application of section 37(4); and
(b) the references to the security holder apply if the security holder is a person other than the subscriber.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
Section 37(4) to (6) does not apply to the allotment of a security if a relief order under section 37AC or section 37AH or section 37AI is made in respect of the application of section 37 to the allotment of the security.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) The Court must make a relief order in respect of the application of section 37 to the allotment of the security if the application for that order is made by—
(a) the subscriber; or
(b) the security holder; or
(c) the issuer, if the subscriber consents in writing to the making of the relief order; or
(d) the issuer, if the security holder consents in writing to the making of the relief order; or
(e) the issuer, if—
(i) the contravention of section 37 was caused by a failure to comply with a condition of an exemption granted under section 5(5) or provided under section 5(3A) or 5A; and
(ii) the issuer has given notice of that contravention to the subscriber in accordance with sections 37AE and 37AF; and
(iii) the subscriber has not objected to the Court making a relief order by—
(A) notifying the issuer in writing within 30 working days after the day on which the notice is given that the subscriber objects to the making of the relief order; and
(B) including in the subscriber's objection a description as to how the contravention has materially prejudiced the interests of the subscriber.
(2) An order may be made under this section regardless of whether the contravention of section 37 occurred before or after this section comes into force.
(3) An application under this section may be made in conjunction with an application under section 37AH or section 37AI.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
Section 37AC(1)(e)(i): amended, on 9 April 2008, by section 5(2) of the Securities (Local Authority Exemption) Amendment Act 2008 (2008 No 23).
(1) The issuer must not obtain the consent of a person under section 37AC(1)(c) or (d) until after—
(a) the contravention in relation to the proposed application for the relief order has occurred; and
(b) a notice that contains, or has attached to it, the following is sent by the issuer to the person:
(i) any information that is necessary to enable a reasonable person to understand the nature and implications of the contravention that has occurred:
(ii) a statement to the effect that the notice concerns the legal rights of the person and that, if there is anything about the person's legal rights that the person does not understand, then the person should seek legal advice before giving their consent to the making of a relief order:
(iii) any information, documents, or copies of documents required to be sent, delivered, or provided to the person in accordance with an exemption granted under section 5(5) or provided under section 5(3A) or 5A, if the contravention of section 37 was caused by a failure to send, deliver, or provide that information, those documents, or those copies to the person in accordance with that exemption:
(iv) an investment statement relating to the security, unless an exemption from section 37A(1)(a) granted or provided under section 5 applies to the security or to the issuer in respect of the security (or would have applied but for a failure to comply with a condition of that exemption):
(v) a statement to the effect that there is a registered prospectus in relation to the security and that, at the request of the person and on payment of any prescribed fee, the issuer will send the registered prospectus to the person:
(vi) a statement that describes the effect of section 363 of the Companies Act 1993 (as applied by section 66) in relation to that prospectus:
(vii) if the security is offered in a simplified disclosure prospectus, a copy of that simplified disclosure prospectus.
(1A) However, subsection (1)(b)(iv) and (v) do not apply to securities that are offered in a simplified disclosure prospectus.
(2) Subsection (1)(b)(v) and (vi) does not apply if an exemption from section 37(1) granted or provided under section 5 or section 5A applies to the security or to the issuer in respect of the security (or would have applied but for a failure to comply with a condition of that exemption).
(3) A person's consent is of no effect for the purposes of section 37AC(1)(c) or (d) if either or both of the following apply:
(a) that consent is given before the date on which the notice referred to in subsection (1)(b) has been received by the person:
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
Section 37AD(1)(b)(iii): amended, on 9 April 2008, by section 5(3) of the Securities (Local Authority Exemption) Amendment Act 2008 (2008 No 23).
Section 37AD(1)(b)(vii): added, on 28 July 2009, by section 10(1) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Section 37AD(1A): inserted, on 28 July 2009, by section 10(2) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
(1) The issuer must, if an application is to be made under section 37AC(1)(e), give a notice to the subscriber in accordance with this section and section 37AF after the contravention in relation to the proposed application for the relief order has occurred.
(2) The notice must contain statements or information to the following effect:
(a) a description of the securities to which the notice relates; and
(b) a description of the manner in which the issuer has contravened section 37; and
(d) a summary, if appropriate, of the effect of section 37(5) if a relief order is not made; and
(e) that the Court has the power to make an order that grants relief from the application of section 37(4) to (6); and
(f) that the issuer is seeking, or may seek, a relief order; and
(g) that the subscriber may object to the making of a relief order by notifying the issuer in writing within 30 working days after the day on which the notice is given that the subscriber objects to the making of the relief order; and
(h) that, if the subscriber objects to the making of the relief order, then the subscriber must include in the subscriber's objection a description as to how the contravention has materially prejudiced the interests of the subscriber; and—
(i) that the Court must make a relief order if the subscriber does not object to the making of the relief order in the manner referred to in paragraphs (g) and (h); and
(j) the address of the issuer to which objections must be sent; and
(k) that the notice affects the subscriber's legal rights and that, if there is anything about the subscriber's legal rights that the subscriber does not understand, then the subscriber should seek legal advice immediately; and
(l) a summary of the effect of section 37AF(1)(d) and the names and addresses of the persons to whom the notice will be sent under section 37AF(1)(d); and
(m) any further information and explanation as may be necessary to enable a reasonable person to understand the nature and implications of an application for a relief order and the notice.
(3) The notice may contain statements and information in connection with 1 or more subscribers.
(4) The form of the notice must be approved by the Court before the notice is given to any subscriber.
(5) The Court may—
(a) grant its approval subject to any terms and conditions concerning the form and content of the notice that it thinks fit; and
(b) require the notice to contain any information concerning the security or the issuer that it considers may assist the subscriber to decide whether or not to object to the making of the relief order.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) The notice to be given to a subscriber under section 37AE must be given by—
(a) sending the notice to a current address for the subscriber; and
(b) publishing the notice in each of the daily newspapers published in Whangarei, Auckland, Hamilton, Rotorua, Hawke's Bay, New Plymouth, Palmerston North, Wellington, Nelson, Christchurch, Dunedin, and Invercargill (unless a daily newspaper is not published in that place); and
(c) publishing the notice on the issuer's website (if the issuer has a website) in an electronic form that is publicly accessible; and
(d) sending a copy of the notice to,—
(i) in the case of a participatory security, the statutory supervisor (if any); and
(ii) in the case of a debt security, the trustee (if any); and
(iii) in the case of a unit in a unit trust, the unit trustee (if any); and
(iv) the Commission.
(2) The issuer must comply with subsection (1)(a) to (d) within a consecutive period of 5 working days.
(3) However, the issuer does not have to comply with subsection (1)(a) if the issuer does not have knowledge of a current address for a subscriber and has taken reasonable steps to obtain a current address for the subscriber.
(4) The notice must be treated as having been given to the subscriber on the day within the consecutive period of 5 working days—
(a) on which subsection (1)(a) to (d) was complied with by the issuer; or
(b) on which subsection (1)(b) to (d) was complied with by the issuer if subsection (3) applies.
(5) The form of the notice that is published under subsection (1)(b) and (c) must not contain any personal information (within the meaning of the Privacy Act 1993) unless the Court orders otherwise.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) The Court may, on the application of a subscriber, order an issuer to pay compensation to the subscriber for any loss or damage suffered by the subscriber that is caused by a contravention of section 37.
(2) An application may be made under subsection (1) only if—
(a) an application has been made to the Court for a relief order under section 37AC; or
(b) the Court has made a relief order under section 37AC.
(3) An application under subsection (1) may not be made 1 year or more after the date on which the Court makes a relief order under section 37AC (if the Court has made an order).
(4) Subsection (1) applies regardless of whether the contravention of section 37 occurred before or after this section comes into force.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) The Court may in the course of any proceedings, or on the application of the issuer under this section, make a relief order in respect of the application of section 37 to the allotment of a security if the Court considers that it is just and equitable to do so.
(2) An order may be made under this section regardless of whether the contravention of section 37 occurred before or after this section comes into force.
(3) In determining whether to make a relief order under this section, the Court must have regard to—
(a) all of the circumstances relating to the allotment of the security; and
(b) the nature and seriousness of the contravention of section 37; and
(c) whether the contravention has materially prejudiced the interests of the subscriber; and
(d) whether the subscriber has disposed of the security to any other person; and
(e) any other matters that the Court thinks fit.
(4) An application under this section may be made in conjunction with an application under section 37AC or section 37AI.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) This section applies to a contravention of section 37 in connection with the allotment of a security if that contravention is caused solely by a failure to comply, before this section comes into force, with—
(a) any of the requirements in paragraph (d) of the definition of Australian prospectus in clause 3 of the Securities Act (Australian Unit Trusts) Exemption Notice 1995 (SR 1995/105); or
(b) any of the requirements in paragraph (d) of the definition of Australian prospectus in clause 4 of the Securities Act (Australian Unit Trusts) Exemption Notice 1996 (SR 1996/74); or
(c) the condition in clause 5 of the Securities Act (Australian Unit Trusts) Exemption Notice 1997 (SR 1997/216); or
(d) the condition in clause 5 of the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 1999 (SR 1999/119); or
(e) the condition in clause 6 of the Securities Act (Great Britain Collective Investment Schemes) Exemption Notice 1999 (SR 1999/420).
(2) The Court must, on the application of the issuer, make a relief order in respect of the application of section 37 to the allotment of the security if the contravention has not materially prejudiced the interests of the subscriber.
(3) If the contravention has materially prejudiced the interests of the subscriber, the Court may make a relief order in respect of the application of section 37 to the allotment of the security if the Court considers that it is just and equitable to do so having regard to—
(a) whether the subscriber has disposed of the security to any other person; and
(b) any other matters that the Court thinks fit.
(4) An application under this section may be made in conjunction with an application under section 37AC or section 37AH.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
If the Court makes a relief order under section 37AH or section 37AI, the Court may—
(a) make the relief order subject to any terms and conditions that it thinks fit if the contravention of section 37 has materially prejudiced the interests of the subscriber; and
(b) in respect of a security, order the issuer to pay compensation to—
(i) the subscriber for any loss or damage suffered by the subscriber that is caused by the contravention of section 37; and
(ii) any person who has, at any time, been a security holder in relation to the security for any loss or damage suffered by the person that is caused by the contravention of section 37; and
(c) grant any mandatory, restrictive, or prohibitory injunction that the Court thinks fit; and
(d) make an order for any consequential relief that the Court thinks fit, unless the Court makes the relief order under section 37AI.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) If an application for an order is made under section 37AC(1)(a) or (b) in connection with a security, the applicant must, as soon as practicable, serve notice of the application on the following persons:
(a) the issuer:
(b) any other person that the Court orders must be served with notice of the application.
(2) If an application for an order is made under section 37AC(1)(c) or (d) in connection with a security, the applicant must, as soon as practicable, serve notice of the application on the following persons:
(a) the subscriber:
(b) the security holder:
(c) the Commission:
(d) any other person that the Court orders must be served with notice of the application.
(3) If an application for an order is made under any of the provisions of sections 37AG to 37AI in connection with a security, the applicant must, as soon as practicable, serve notice of the application on the following persons (unless the person is the applicant):
(a) the issuer:
(b) the subscriber or a representative defendant appointed by the Court:
(c) the security holder or a representative defendant appointed by the Court:
(d) the Commission:
(e) in the case of a participatory security, the statutory supervisor (if any):
(f) in the case of a debt security, the trustee (if any):
(g) in the case of a unit in a unit trust, the unit trustee (if any):
(h) any other person that the Court orders must be served with notice of the application.
(4) For the purposes of subsection (3)(b), a notice of an application does not have to be served on a subscriber if, in connection with the security, the issuer has given the subscriber a notice in accordance with sections 37AE and 37AF and the subscriber has not objected to the making of a relief order in the manner referred to in section 37AE(2)(g) and (h).
(5) If an issuer applies, in connection with a security, to the Court for the Court's approval for the purposes of section 37AE(4), the issuer must, as soon as practicable, serve notice of that application on the following persons:
(a) the Commission:
(b) in the case of a participatory security, the statutory supervisor (if any):
(c) in the case of a debt security, the trustee (if any):
(d) in the case of a unit in a unit trust, the unit trustee (if any):
(e) any other person that the Court orders must be served with notice of the application.
(6) Despite subsections (1) to (5), the Court may, if it thinks fit, order that notice of an application does not have to be served on a person or a class of persons.
(7) If a person has been served, or should have been served, with notice of an application—
(a) in accordance with subsections (1) to (3), the person may appear and be heard on the application and on any related matter, in person or by a barrister or solicitor, in the Court:
(8) A person has the right to adduce evidence and the right to cross-examine witnesses if the person appears under this section, unless the proceedings are by way of appeal.
(9) The rights referred to in this section apply whether or not the person was a party to the proceedings at any earlier stage in the proceedings.
(10) This section does not limit the rights of any person, under any other enactment or rule of law, to appear and be heard or to adduce evidence.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) This section applies—
(a) to all proceedings commenced after this section comes into force that relate to an allotment of a security made in contravention of section 37; and
(b) to all proceedings that have not been finally disposed of by the Court of first instance before this section comes into force that relate to an allotment of a security made in contravention of section 37.
(2) The Court must not, in respect of an allotment of a security made in contravention of section 37, make any order or declaration, including an order or declaration in respect of moneys payable, relief, validation, restitution, compensation, variation of a contract, or relief of a contract in whole or part or for any particular purpose, other than any of the following orders:
(a) any order in accordance with any of the provisions of sections 37AA to 37AK, this section, and sections 37B to 37G:
(b) any order or direction in relation to a matter of procedure:
(c) any order as to costs:
(e) any order in relation to proceedings under section 59:
(f) any order in relation to proceedings under section 60(2).
(3) This section does not limit—
(a) the right of a person to discontinue any proceedings; or
(b) the right of a person to commence proceedings in accordance with any of the provisions of sections 37AA to 37AK, this section, and sections 37B to 37G.
(4) Subsection (5) applies if—
(a) proceedings have been commenced to require the repayment of subscriptions or interest under section 37(5) or (6) in relation to the allotment of a security; and
(b) an application has been made for a relief order in relation to the security under 1 or more of the following provisions:
(i) section 37AC:
(ii) section 37AH:
(iii) section 37AI.
(5) The Court must, on the application of the issuer, order that the proceedings to require the repayment of subscriptions or interest under section 37(5) or (6) be stayed until after the determination of the application, or applications, for a relief order unless the application, or applications, for a relief order—
(a) is, or are, frivolous or vexatious; or
(b) is, or are, an abuse of the process of the Court.
(6) Nothing in this section applies to an appeal against a final judgment given or made before this section comes into force.
Sections 37AA to 37AL were inserted, as from 15 April 2004, by section 12 Securities Amendment Act 2004 (2004 No 31).
(1) No allotment of a security offered to the public for subscription shall be made if—
(a) The subscriber did not receive an investment statement relating to the security before subscribing for the security; or
(ab) in the case of a security that is offered in a simplified disclosure prospectus,—
(i) the subscriber did not receive, before subscribing for the security, a copy of—
(A) that simplified disclosure prospectus; and
(B) every memorandum of amendments to that prospectus that is registered by the Registrar under section 43 before the time of allotment; or
(ii) the Commission made a delayed allotment order in relation to that simplified disclosure prospectus and the subscriber subscribed for the security before the delayed allotment order was made; or
(b) At the time of allotment, the investment statement or registered prospectus relating to the security is known by the issuer of the security, or any director of the issuer, to be false or misleading in a material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances (whether or not the investment statement or registered prospectus became so false or misleading as a result of a change of circumstances occurring after the date of the investment statement or registered prospectus); or
(c) The date of allotment would be more than,—
(i) Where the registered prospectus relating to the security contains or refers to a statement of financial position or interim statement of financial position in accordance with regulations and no certificate has been registered in relation to that prospectus under subsection (1A) of this section, 9 months after the date of that statement of financial position or interim statement of financial position (whichever is the later); or
(ii) Where the registered prospectus relating to the security contains or refers to a statement of financial position (but not an interim statement of financial position) in accordance with regulations and a certificate has been registered in relation to that prospectus under subsection (1A) of this section, 9 months after the date of that certificate; or
(iii) In any other case, 6 months after the date of the registered prospectus; or
(d) In the case of an equity security, debt security, or participatory security, after the allotment, the total amount of securities allotted under the registered prospectus relating to the security would (after deducting, in the case of an allotment of debt securities, the total amount of debt securities of the issuer redeemed since the date of the registered prospectus) exceed the amount specified in the registered prospectus as the maximum amount that will be so allotted.
(1AA) However, subsection (1)(a) does not apply to securities that are offered in a simplified disclosure prospectus.
(1A) For the purposes of subsection (1)(c) of this section, if no interim statement of financial position is contained or referred to in a registered prospectus, an issuer may deliver to the Registrar for registration under this Act, and the Registrar shall register, a certificate that relates to the registered prospectus and that—
(a) Is signed on behalf of all the directors by at least 2 directors of the issuer (or, where the issuer has only 1 director, by that director); and
(b) Is dated no later than 9 months after the date of the statement of financial position contained or referred to in the registered prospectus; and
(c) States that, in the opinion of all directors of the issuer after due enquiry by them,—
(i) The financial position shown in the statement of financial position referred to in paragraph (b) of this subsection has not materially and adversely changed during the period from the date of that statement of financial position to the date of the certificate; and
(ii) The registered prospectus is not, at the date of the certificate, false or misleading in a material particular by reason of failing to refer, or give proper emphasis, to adverse circumstances; and
(d) Where the registered prospectus relates to equity securities, debt securities, or participatory securities, is accompanied by financial statements—
(i) For the 6-month period from the date of the statement of financial position referred to in paragraph (b) of this subsection; and
(ii) Prepared in accordance with regulations as if they were required to be contained or referred to in a registered prospectus for those securities, except that they need not be audited.
(2) [Repealed]
(3) An allotment made in contravention of this section is (whether or not the issuer is in liquidation) voidable at the instance of the subscriber by notice in writing to the issuer at any time within the prescribed period.
(4) For the purpose of subsection (3) of this section, prescribed period means—
(a) A period of one year after the security or a certificate of the security has been sent to the subscriber; or
(b) A period of 6 months after the subscriber knows, or ought reasonably to know, that the allotment was made in contravention of the provisions of this section—
whichever is the lesser.
(5) Without limiting any enactment or rule of law, an allotment made in contravention of this section shall be valid unless notice avoiding the allotment is given by the subscriber in accordance with subsection (3) of this section.
(6) Where an allotment made in contravention of this section is avoided by the subscriber under subsection (3) of this section, the issuer shall forthwith upon receiving notice under that subsection, repay the subscriptions to the subscriber.
(7) If such subscriptions are not so repaid within one month after the date of the receipt by the issuer of notice under subsection (3) of this section, the issuer and all the directors thereof shall be jointly and severally liable to repay the subscriptions with interest at a rate prescribed from time to time by regulations made under this Act from the date on which such notice was received:
Provided that a director shall not be so liable if he or she proves that the default in the repayment of the subscriptions was not due to any misconduct or negligence on his or her part.
(8) For the purposes of the Limitation Act 1950, any sum recoverable under subsection (6) or subsection (7) is not a penalty or forfeiture or sum by way of penalty or forfeiture.
Section 37A was inserted, as from 1 September 1983, by section 16 Securities Amendment Act 1982 (1982 No 147).
Subsection (1) was substituted, as from 1 October 1997, by section 15(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (1)(a) was amended, as from 1 October 1997, by section 4(1)(a) Securities Amendment Act 1997 (1997 No 16) by substituting the word “an”
for the word “any”
.
Section 37A(1)(ab): inserted, on 28 July 2009, by section 11(1) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Subsection (1)(b) was amended, as from 1 October 1997, by section 4(1)(b) Securities Amendment Act 1997 (1997 No 16) by substituting the word “the”
for the word “any”
.
Subsection (1)(c)(i) and (ii) was amended, as from 1 October 1997, by section 4(1)(a) Securities Amendment Act 1997 (1997 No 16) by substituting the words “statement of financial position”
for the words “balance sheet”
in each place where they occur.
Section 37A(1AA): inserted, on 28 July 2009, by section 11(2) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Subsection (1A) was inserted, as from 1 October 1997, by section 15(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (1A) was amended, as from 1 October 1997, by section 4(2) Securities Amendment Act 1997 (1997 No 16) by substituting the words “statement of financial position”
for the words “balance sheet”
.
Subsection (2) was repealed, as from 15 April 2004, by section 13(1) Securities Amendment Act 2004 (2004 No 31).
Section 37A(3): amended, on 28 July 2009, by section 11(3) of the Securities (Disclosure) Amendment Act 2009 (2009 No 23).
Subsection (3) was amended, as from 1 October 1997, by section 15(2) Securities Amendment Act 1996 (1996 No 100) by substituting the words “in liquidation”
for the words “wound up”
. See section 2 of that Act for transitional provisions relating to its application.
Subsection (7) was amended, as from 1 October 1997, by section 4(3) Securities Amendment Act 1997 (1997 No 16) by substituting the words “a rate prescribed from time to time by regulations made under this Act”
for the words “the rate of 10 percent per annum”
.
Subsection (7) was amended, as from 3 May 2001, pursuant to section 5(c) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “he”
the words “or she”
.
Subsection (7) was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
Subsection (8) was inserted, as from 15 April 2004, by section 13(2) Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
(1) The issuer of a security may make an application to the Court for a relief order under section 37C or section 37D in respect of the application of section 37A to the allotment of a security if the subscriber has given notice to the issuer under section 37A(3).
(2) However, an application to the Court for a relief order in respect of the application of section 37A to the allotment of a security may not be made if the subscription for the security has been repaid to the subscriber under section 37A(6) or (7).
(3) If a relief order in respect of the application of section 37A to the allotment of a security is made,—
(a) the notice given under section 37A(3) does not affect the validity of the allotment of the security; and
(4) An application to the Court may be made in connection with 1 or more subscribers.
Sections 37B to 37G were inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
(1) The Court may in the course of any proceedings, or on the application of the issuer under this section, make a relief order in respect of the application of section 37A to the allotment of a security if the Court considers that it is just and equitable to do so.
(2) An order may be made under this section regardless of whether the contravention of section 37A occurred before or after this section comes into force.
(3) In determining whether to make a relief order under this section, the Court must have regard to—
(a) all of the circumstances relating to the allotment of the security; and
(b) the nature and seriousness of the contravention of section 37A; and
(c) whether the contravention has materially prejudiced the interests of the subscriber; and
(d) whether the subscriber has disposed of the security to any other person; and
(e) any other matters that the Court thinks fit.
(4) An application under this section may be made in conjunction with an application under section 37D.
Sections 37B to 37G were inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
(1) This section applies to a contravention of section 37A in connection with the allotment of a security if that contravention is caused solely by a failure to comply, before this section comes into force, with the condition in clause 6 of the Securities Act (Great Britain Collective Investment Schemes) Exemption Notice 1999 (SR 1999/420).
(2) The Court must, on the application of the issuer, make a relief order in respect of the application of section 37A to the allotment of the security if the contravention has not materially prejudiced the interests of the subscriber.
(3) If the contravention has materially prejudiced the interests of the subscriber, the Court may make a relief order in respect of the application of section 37A to the allotment of the security if the Court considers that it is just and equitable to do so having regard to—
(a) whether the subscriber has disposed of the security to any other person; and
(b) any other matters that the Court thinks fit.
(4) An application under this section may be made in conjunction with an application under section 37C.
Sections 37B to 37G were inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
If the Court makes a relief order under section 37C or section 37D, the Court may—
(a) make the relief order subject to any terms and conditions that it thinks fit if the contravention of section 37A has materially prejudiced the interests of the subscriber; and
(b) in respect of a security, order the issuer to pay compensation to—
(i) the subscriber for any loss or damage suffered by the subscriber that is caused by the contravention of section 37A; and
(ii) any person who has, at any time, been a security holder in relation to the security for any loss or damage suffered by the person that is caused by the contravention of section 37A; and
(c) grant any mandatory, restrictive, or prohibitory injunction that the Court thinks fit; and
(d) make an order for any consequential relief that the Court thinks fit, unless the Court makes the relief order under section 37D.
Sections 37B to 37G were inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
This heading was inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
(1) If an application for an order is made under section 37C or section 37D in connection with a security, the applicant must, as soon as practicable, serve notice of the application on the following persons:
(a) the subscriber or a representative defendant appointed by the Court:
(b) the security holder (being the person who would be the current security holder but for the application of section 37A(3)) or a representative defendant appointed by the Court:
(c) the Commission:
(d) in the case of a participatory security, the statutory supervisor (if any):
(e) in the case of a debt security, the trustee (if any):
(f) in the case of a unit in a unit trust, the unit trustee (if any):
(g) any other person that the Court orders must be served with notice of the application.
(2) Despite subsection (1), the Court may, if it thinks fit, order that notice of an application does not have to be served on a person or a class of persons.
(3) If a person has been served, or should have been served, with notice of an application, the person may appear and be heard on the application and on any related matter, in person or by a barrister or solicitor, in the Court.
(4) A person has the right to adduce evidence and the right to cross-examine witnesses if the person appears under this section, unless the proceedings are by way of appeal.
(5) The rights referred to in this section apply whether or not the person was a party to the proceedings at any earlier stage in the proceedings.
(6) This section does not limit the rights of any person, under any other enactment or rule of law, to appear and be heard or to adduce evidence.
Sections 37B to 37G were inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
(1) This section applies—
(a) to all proceedings commenced after this section comes into force that relate to an allotment of a security made in contravention of section 37A; and
(b) to all proceedings that have not been finally disposed of by the Court of first instance before this section comes into force that relate to an allotment of a security made in contravention of section 37A.
(2) The Court must not, in respect of an allotment of a security made in contravention of section 37A, make any order or declaration, including an order or declaration in respect of moneys payable, relief, validation, restitution, compensation, variation of a contract, or relief of a contract in whole or part or for any particular purpose, other than any of the following orders :
(a) any order in accordance with any of the provisions of sections 37AA to 37AL, sections 37B to 37F, and this section:
(b) any order or direction in relation to a matter of procedure:
(c) any order as to costs:
(d) any order to require the repayment of any subscriptions or interest under section 37A(6) or (7):
(e) any order in relation to proceedings under section 59:
(f) any order in relation to proceedings under section 60(2).
(3) This section does not limit—
(a) the right of a person to discontinue any proceedings; or
(b) the right of a person to commence proceedings in accordance with any of the provisions of sections 37AA to 37AL, sections 37B to 37F, and this section.
(4) Subsection (5) applies if—
(a) proceedings have been commenced to require the repayment of subscriptions or interest under section 37A(6) or (7) in relation to the allotment of a security; and
(b) an application has been made for a relief order under section 37C or section 37D (or both of them) in relation to the security.
(5) The Court must, on the application of the issuer, order that the proceedings to require the repayment of subscriptions or interest under section 37A(6) or (7) be stayed until after the determination of the application, or applications, for a relief order unless the application, or applications, for a relief order—
(a) is, or are, frivolous or vexatious; or
(b) is, or are, an abuse of the process of the Court.
(6) Nothing in this section applies to an appeal against a final judgment given or made before this section comes into force.
Sections 37B to 37G were inserted, as from 15 April 2004, by section 14 Securities Amendment Act 2004 (2004 No 31).
The heading “Authorised advertisements”
was substituted, as from 1 October 1997, by section 16(1) Securities Amendment Act 1996 (1996 No 100).
In this Act, the term authorised advertisement means,—
(a) In relation to an offer of securities to the public in respect of which an investment statement is required, an advertisement—
(i) That is an investment statement that relates to the securities and that complies with this Act and regulations; or
(ii) That refers to an investment statement that relates to the securities referred to in the advertisement and that complies with this Act and regulations:
(b) In relation to an offer of securities to the public in respect of which an investment statement is not required, but in respect of which a registered prospectus or a disclosure statement under section 81 of the Reserve Bank of New Zealand Act 1989 is required, an advertisement—
(i) That refers to a registered prospectus or a current disclosure statement; and
(ii) That describes where a copy of the prospectus or the disclosure statement can be obtained free of charge; and
(iii) That complies with this Act and regulations:
(c) In any other case, an advertisement that complies with this Act and regulations.
Section 38 was substituted, as from 1 September 1983, by section 17(1) Securities Amendment Act 1982 (1982 No 147).
The proviso to the previous section 38 was further substituted, as from 21 December 1988, by section 48(1) Securities Amendment Act 1988 (No 234) and again, as from 1 February 1990, by section 181(10) Reserve Bank of New Zealand Act 1989, (1989 No 157).
Section 38 was substituted, as from 1 October 1997, by section 16(1) Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Paragraph (b) was substituted, and paragraph (c) was inserted, as from 1 October 1997, by section 5 Securities Amendment Act 1997 (1997 No 16).
[Repealed]
Section 38AA was inserted, as from 1 January 1996, by section 13(3) Reserve Bank of New Zealand Amendment Act 1995 (1995 No 5). See clause 4 Reserve Bank of New Zealand Act Commencement Order 1995 (SR 1995/249).
Section 38AA was repealed, as from 1 October 1997, by section 6 Securities Amendment Act 1997 (1997 No 16).
No advertisement shall contain a statement purporting to be made by an expert unless—
(a) The expert has given and has not, before distribution of the advertisement, withdrawn his or her written consent to the distribution of the advertisement with the statement included in the form and context in which it is included; and
(b) A statement of the expert's qualifications appears in the advertisement; and
(c) If the expert is, or is intended to be, an officer, director, or employee of, or professional adviser to, the issuer of the securities referred to in the advertisement, a statement appears in the advertisement to that effect.
Section 38A was inserted, as from 1 September 1983, by section 18 Securities Amendment Act 1982 (1982 No 147).
Section 38A was amended, as from 3 May 2001, pursuant to section 5(d) Securities Amendment Act 2001 (2001 No 25), by inserting after the word “his”
the words “or her”
.
(1) Where, at any time, the Commission is of the opinion that an advertisement—
(a) Is likely to deceive, mislead, or confuse with regard to any particular that is material to the offer of securities to which it relates; or
(b) Is inconsistent with any registered prospectus referred to in it; or
(c) Does not comply with this Act and regulations,—
the Commission may make an order prohibiting the distribution of that advertisement or any advertisement which relates to the offer of securities.
(2) Without limiting subsection (1) of this section, where, at any time, the Commission is of the opinion that an advertisement that contains or refers to an offer of debt securities the issuer of which is a registered bank is inconsistent with the most recent disclosure statement published by the registered bank under section 81 of the Reserve Bank of New Zealand Act 1989, the Commission may make an order prohibiting the distribution of that advertisement or any advertisement which relates to the offer of securities.
(3) An order may be made on such terms and conditions as the Commission thinks fit.
(4) Where the Commission makes an order under this section,—
(a) It shall forthwith notify the issuer of the securities that the order has been made and the reasons for making it; and
(b) It may notify any other person that the order has been made and the reasons for making it.
(5) Every person who contravenes an order made under this section commits an offence and is liable on summary conviction to a fine not exceeding $5,000.
(6) It is a defence to a charge under subsection (5) of this section if the defendant proves that the advertisement was distributed—
(a) Without the defendant's knowledge; or
(b) Without the defendant's knowledge of the order.
(7) At any time after an order has been made under this section, the issuer of the securities to which the advertisement relates shall be entitled to be heard and represented before the Commission.
(8) The Commission, if it is satisfied that the order should not continue in force, may revoke the order.
(9) In this section, the term advertisement does not include an investment statement.
Sections 38B to 38F were inserted, as from 1 October 1997, by section 17 Securities Amendment Act 1996 (1996 No 100). See section 2 of that Act for transitional provisions relating to its application.
Subsection (7) was amended, as from 1 December 2002, by section 15 Securities Amendment Act 2002 (2002 No 43), by substituting the words “be heard and”
for the words “appear and be”
.
In this Act, the term investment statement means a written document that—
(a) Contains or refers to one or more offers of securities to the public for subscription; and
(b) States that it is an investment statement for the purposes of this Act.
Sections 38B to 38F were inserted, as from 1 October 1997, by section 17 Securities Amendment Act 1996. (1996 No 100) See section 2 of that Act for transitional provisions relating to its application.
The purpose of an investment statement is to—
(a) Provide certain key information that is likely to assist a prudent but non-expert person to decide whether or not to subscribe for securities; and
(b) Bring to the attention of such a person the fact that other