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Incorporated Societies Act 1908

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

INCORPORATED SOCIETIES ACT 1908

1908/212 (NZ) – 1 January 1909

1 Short title

2 [Repealed]

3 Interpretation

4 Incorporated societies

5 Pecuniary gain

6 Rules of incorporated societies

7 Application for incorporation

8 Registrar to register society if in order

9 Certificate of incorporation

10 Members to be a body corporate

11 Name of society

11A Change of name

12 Appeal from Registrar to High Court

13 No liability on members for obligation of society

14 Members to have no right to property of society

15 Contracts by society

16 Service of summons on society

17 Security for costs where society is plaintiff

18 Registered office

19 Restriction of operations of society

20 Society not to engage in operations involving pecuniary gain

21 Alteration of rules

22 Register of members

23 Annual financial statement

24 Voluntary winding up of society

25 Winding up of society by High Court

26 Petition to Court for winding up

27 Division of surplus assets on winding up

28 Dissolution by Registrar 29 Corporate body may become of society

30 Pecuniary gain received by member

31 Corporate body to be equivalent to 3 members

32 [Repealed]

33 Register of incorporated societies

34 Inspection of documents

35 [Repealed]

36 Regulations

37 Incorporation of branches

38 Application for incorporation of branch

39 Registration of rules of branch

40 Application of Act

41 Members of branches not to be relieved of obligations as members of societies

42 Evidence of membership of branch

43 Assistant Registrars

44 Rules of society may provide for penalties

45 Improper use of word "Incorporated"

46 Society may make regulations or bylaws

SCHEDULE

___________________________

To make provision for the incorporation of societies which are not established for the purpose of pecuniary gain

1 Short title

This is the Incorporated Societies Act 1908.

2 [Repealed by 2004/270]

3 Interpretation

In this Act –

"prescribed" means prescribed by this Act or by regulations;

"Registrar" means the Registrar of Incorporated Societies;

"society" means a society incorporated under this Act.

4 Incorporated societies

(1) Any society consisting of not less than 15 persons associated for any lawful purpose but not for pecuniary gain may, on application being made to the Registrar under this Act, become incorporated as a society under this Act.

(2) No such application shall be made except with the consent of a majority of the members of the society.

5 Pecuniary gain

Persons shall not be deemed to be associated for pecuniary gain merely by reason of any of the following circumstances, namely –

(a) That the society itself makes a pecuniary gain, unless that gain or some part of it is divided among or received by the members or some of them;

(b) That the members of the society are entitled to divide between them the property of the society on its dissolution;

(c) That the society is established for the protection or regulation of some trade, business, industry, or calling in which the members are engaged or interested, if the society itself does not engage or take part in any such trade, business, industry, or calling, or any part of branch thereof;

(d) That any member of the society derives pecuniary gain from the society by way of salary as the servant or officer of the society;

(e) That any member of the society derives from the society any pecuniary gain to which he would be equally entitled if he were not a member of the society;

(f) That the members of the society compete with each other for trophies or prizes other than money prizes.

6 Rules of incorporated societies

(1) The rules of a society shall state or provide for the following matters –

(a) The name of the society, with the addition of the word "Incorporated" as the last word in that name;

(b) The objects for which the society is established;

(c) The modes in which persons become members of the society;

(d) The modes in which persons cease to be members of the society;

(e) The mode in which the rules of the society may be altered, added to, or rescinded;

(f) The mode of summoning and holding general meetings of the society, and of voting thereat;

(g) The appointment of officers of the society;

(h) The control and use of the common seal of the society;

(i) The control and investment of the funds of the society;

(j) The powers (if any) of the society to borrow money;

(k) The disposition of the property of the society in the event of the winding up of the society;

(l) Such other matters as the Registrar may require to be provided for in any particular instance.

(2) The rules of the society may contain any other provisions which are not inconsistent with this Act or with law.

(3) The rules of the society and any amendment of those rules shall be printed or typewritten.

7 Application for incorporation

Every application for the incorporation of a society shall be made to the Registrar in manner following –

(a) Two copies of the rules of the society having written an application for incorporation in the form in Schedule 1 or to the like effect shall be signed by not less than 15 persons being members of the society, and each subscriber to the application shall add to his signature his description and address, and his signature shall be attested by a witness who is not a subscriber. When any body corporate is a subscriber its seal shall be affixed to the said application;

(b) The 2 copies of the said rules so signed shall be delivered to the Registrar, together with the prescribed fee and together with a statutory declaration made by an officer of the society or by a solicitor to the effect that a majority of the members of the society have consented to the application, and that the rules so signed or sealed are the rules of the society.

8 Registrar to register society if in order

The Registrar, on being satisfied that the requirements of this Act have been observed, shall thereupon do the following things –

(a) Enter the name of the said society in the register kept by him under this Act, together with such other particulars with respect to the society as he thinks fit;

(b) Issue under his seal a certificate that the society is incorporated under this Act;

(c) Register the rules of the society by sealing with his seal the said copies of it;

(d) Return one of those copies to the subscribers and retain the other copy.

9 Certificate of incorporation

Every certificate of incorporation issued under the seal of the Registrar shall be conclusive evidence that all statutory requirements in respect of registration and of matters precedent and incidental to it have been complied with, and that the society is authorised to be registered and has been duly registered and incorporated under this Act.

10 Members to be a body corporate

Upon the issue of the certificate of incorporation the subscribers to the rules of the society, together with all other persons who are then members of the society or who afterwards become members of the society under the rules thereof, shall, as from the date of incorporation mentioned in the certificate, be a body corporate by the name contained in the said rules, having perpetual succession and a common seal, and capable forthwith, subject to this Act and to the said rules, of exercising all the functions of a body corporate and of holding land.

11 Name of society

No society shall be registered under a name which is identical with that of any other society registered under this Act, or of a company carrying on business in Niue (whether registered in Niue or not), or of any other body corporate established or registered in Niue under any Act, or so nearly resembles that name as to be calculated to deceive, except where that other society or company or body corporate, as the case may be, signifies its consent in such manner as the Registrar requires, and the Registrar is satisfied that registration of the society by the proposed name will not be contrary to the public interest.

11A Change of name

(1) If, through inadvertence or otherwise, a society at its first registration, or on its registration by a new name, is registered by a name which is in contravention of section 11, or of any enactment other than this Act, relating to restrictions on the use of any name, the society shall, within a period of 6 weeks from the date of its being required by the Registrar to do so, or such longer period as he may allow change its name under section 21 to a name that is not in contravention as aforesaid.

(2) If a society makes default in complying subsection (1) it commits an offence and shall be liable on conviction to a fine not exceeding 0.5 penalty units for every day on which the offence has continued.

(3) No fee shall be payable to the Registrar in respect of an alteration of the rules of a society if the alteration only changes the society’s name under the requirements of subsection (1).

12 Appeal from Registrar to High Court

An appeal shall lie to the High Court from any refusal of the Registrar to register a society or any enactment of the rules of a society, and the decision of the Court on any such appeal shall be final.

13 No liability on members for obligation of society

Except when otherwise expressly provided in this Act, membership of a society shall not of itself impose on the members any liability in respect of any contract, debt, or other obligation made or incurred by the society.

14 Members to have no right to property of society

Except when otherwise expressly provided by this Act or by the rules of a society, membership of a society shall not be deemed to confer upon the members any right, title, or interest, either legal or equitable, in the property of the society.

15 Contracts by society

(1) Any contract which, if made between private persons, must be by deed shall, when made by a society, be in writing under the common seal of the society.

(2) Any contract which, if made between private persons, must be in writing signed by the parties to be charged with it may, when made by a society, be in writing signed by any person acting on behalf of and under the express or implied authority of the society.

(3) Any contract which, if made between private persons, might be made without writing may, when made by a society, be made without writing by any person acting on behalf of and under the express or implied authority of the society.

16 Service on society

Any summons, notice, order, or other document required to be served upon a society may be served by leaving the same at the society’s registered office, or by sending it through the post in a registered letter addressed to the society at that office.

17 Security for costs where society is plaintiff

Where a society is the plaintiff in any action or other legal proceeding, and there appears by any credible testimony to be reason to believe that if the defendant is successful in his defence the assets of the society will be insufficient to pay his costs, any Court or Judge having jurisdiction in the matter may require sufficient security to be given for those costs, and may stay all proceedings until that security is given.

18 Registered office

(1) Every society shall have a registered office to which all communications may be addressed.

(2) Notice of the situation of that office, and of any change shall be given to the Registrar and recorded by him.

(3) Until that notice is given, the society shall be deemed not to have compiled with this section as to having a registered office.

(4) If any society carries on its operations without having a registered office, every officer of the society and every member of the committee or other governing body of the society shall be liable to a fine not exceeding 0.5 penalty units for every day during which those operations are carried on.

19 Restriction of operations of society

(1) If any society carries on or proposes to carry on any operation which is beyond the scope of the objects of the society as defined in its rules, the Registrar may give notice in writing to the society not to carry on that operation.

(2) If after the receipt of that notice the society fails or refuses to conform, every officer of the society and every member of the committee or other governing body of the society shall be liable to a fine not exceeding 0.5 penalty units for every day during which that failure or refusal continues, unless he proves that the failure or refusal has taken place without his authority or consent.

20 Society not to engage in operations involving pecuniary gain

(1) No society shall do any act of such a nature that if the doing thereof were one of the objects for which the society was established the members of the society would be deemed to be associated for pecuniary gain within the meaning of sections 4 and 5.

(2) Every society which does any such act shall be liable to a fine not exceeding 2 penalty units.

(3) Every member who aids, abets, procures, assists, or takes part in the doing of any such act by a society shall be liable to a fine not exceeding 0.5 penalty units, and all such members shall be jointly and severally liable to any creditor of the society for all debts and obligations incurred by the society in or in consequence of the doing of that act.

(4) Every member who derives any pecuniary gain from any act done by the society in breach of this section shall be deemed to have received the same to the use of the society, and the same may be recovered by the society accordingly.

21 Alteration of rules

(1) A society may alter its rules in manner provided by the said rules, but subject to this Act.

(2) Every such alteration shall be in writing, signed or sealed in duplicate by at least 3 members of the society, and take documents so signed or sealed shall be delivered to the Registrar, accompanied by a statutory declaration made by a solicitor or at least one member to the effect that the said alteration has been made in accordance with the rules of the society.

(3) The Registrar, if satisfied that the alteration has been duly made, and that the rules as so altered conform in all respects to this Act, shall register the alteration in like manner as in the case of the original rules, and the said alteration shall take effect according to its tenor. Such registration shall be conclusive evidence that all conditions precedent to the making of the alteration, or to the registration, have been duly fulfilled.

(3A) Notwithstanding subsection (3) the Court, on an application made to it by any member of the society, if it is satisfied that any such condition as aforesaid has not been duly fulfilled, declare the alteration to be void in whole or in part, and order that the registration be cancelled in whole or in part, and may by the order give such directions and make such provisions as seem just in the circumstances of the case. On the delivery to the Registrar of a sealed copy of the Court’s order he shall forthwith amend the register accordingly.

(4) No alteration in the objects of a society shall be registered unless the Registrar is satisfied either that the alteration is not of such a nature as to prejudicially affect any existing creditor of the society, or that all creditors who may be so affected consent to the alteration.

(5) In the case of any alteration of the name of a society the Registrar may refuse to register the alteration until the making of it has been publicly advertised in such manner as the Registrar thinks fit.

22 Register of members

(1) Every society shall keep a register of its members.

(2) The register shall contain the names, addresses, and occupations of those members and the dates at which they became members.

(3) Every society shall when required by the Registrar so to do, send to him a list of the names, addresses, and occupations of its members, accompanied by a statutory declaration verifying that list and made by some officer of the society.

23 Annual financial statement

(1) Every society shall deliver annually to the Registrar, in such form and at such time as he requires, a statement containing the following particulars –

(a) The income and expenditure of the society during the society’s last financial year;

(b) The assets and liabilities of the society at the close of the said year;

(c) All mortgages, charges, and securities of any description affecting any of the property of the society at the close of the said year.

(2) The said statement shall be accompanied by a certificate signed up by some officer of the society to the effect that the statement has been submitted to and approved by the members of the society at a general meeting.

(3) If any default is made by a society in the observance of this section, every officer of the society shall be liable to a fine not exceeding 0.5 penalty units for every day during which the default continues.

24 Voluntary winding up of society

(1) A society may be wound up voluntarily if the society, at a general meeting of its members, passes a resolution requiring the society so to be wound up, and the resolution is confirmed at a subsequent general meeting called together for that purpose and held not earlier than 30 days after the date on which the resolution so to be confirmed was passed.

(2) In subsection (1) "resolution" means a resolution carried by a majority of the valid votes cast by members voting at a general meeting in person or, if so allowed by the society’s rules, by proxy; and for the purposes of that subsection the resolution shall be taken to be confirmed at the subsequent general meeting if the confirmation is carried by such a majority.

25 Winding up of society by High Court

A society may be wound up by the High Court under the following circumstances –

(a) If the society suspends its operations for the space of a whole year; or

(b) If the members of the society are reduced in number to less than 15; or

(c) If the society is unable to pay its debts; or

(d) If the society carries on any operation whereby any member makes any pecuniary gain contrary to this Act; or

(e) If the Court or a Judge is of the opinion that it is just and equitable that the society should be wound up.

26 Petition to Court for winding up

(1) Any application to the Court for the winding up of a society shall be by petition presented either by the society, or by a member or by a creditor or by the Registrar.

(2) All costs incurred by the Registrar in making application for the winding up of a society shall, unless the Court or a Judge otherwise orders, be a first charge on the assets of the society.

27 Division of surplus assets on winding up

(1) On the winding up of a society or on its dissolution by the Registrar, all surplus assets after the payment of all costs, debts, and liabilities shall, subject to any trust affecting the same, be disposed of in manner provided by the rules of the society or if such assets cannot be disposed of under the rules, then as the Registrar directs.

(2) If the said surplus assets are subject to any trust, they shall be disposed of as the Court or a Judge directs in the case of a winding up by the Court, or as the Registrar directs in the case of a voluntary winding up or in the case of a dissolution by the Registrar, but an appeal shall lie from any such decision of the Registrar to the Court at the suit of any person interested.

(3) The decision of the Registrar under this section shall be final, unless notice of appeal is delivered to the Registrar within one month after the decision has been given.

28 Dissolution by Registrar

(1) If at any time the Registrar is satisfied that a society is no longer carrying on its operations or has been registered by reason of a mistake of fact or law he may make under his seal a declaration that the society is dissolved as from the date of the declaration, and shall thereupon publish the declaration in the Gazette, and make in the register an entry of the dissolution of the society.

(2) On the making of that entry the society shall be dissolved as from the date of the declaration.

(3) At any time after it the Registrar, on being satisfied that the declaration was made in error and ought to be revoked, may revoke the same by a declaration published in the Gazette, and shall thereupon make an entry of that revocation in the register and the society shall be revived from the date of the dissolution as if no such dissolution had taken place.

29 Corporate body may become member of society

Any corporate body, whether incorporated under this Act or in any other manner, may be a member of a society incorporated under this Act, unless the purposes for which the society is established are ultra vires of the said corporate body.

30 Pecuniary gain received by member

When any corporate body is a member of a society incorporated under this Act, any pecuniary gain received by any member of that corporate body shall be deemed for the purposes of this Act to be pecuniary gain received by a member of the society, and in respect of any such pecuniary gain every member of that corporate body shall be deemed to be a member of the society.

31 Corporate body to be equivalent to 3 members

In estimating –

(a) The number of subscribers to the rules of a society for the purposes of section 4 or section 7, or to the rules of a branch or group of branches for the purposes of section 37; or

(b) The number of members of a society for the purposes of section 4 or section 25 or of a branch for the purposes of section 37 and 38 –

every corporate body that is a subscriber or member shall be taken as the equivalent of 3 subscribers or 3 members as the case may require.

32 [Repealed by 2004/270]

33 Register of incorporated societies

(1) The Registrar shall keep a register in which there shall be recorded all matters required by this Act or by any regulations to be recorded by the Registrar.

(2) The Registrar shall keep a seal for the authentication of any documents required for the purposes of this Act.

(3) There shall be paid to the Registrar such fees as may be prescribed by regulations in respect of such matters as may be so prescribed.

34 Inspection of documents

(1) Every person may, inspect the register or any documents lodged with the Registrar.

(2) Any person may, on payment of the prescribed fee, require a copy of the certificate of the incorporation of any society, or a copy of or extract from the register or any document lodged with the Registrar, to be certified by the Registrar under his seal.

(3) Any such copy or extract purporting to be under the seal of the Registrar shall be received in evidence in all proceedings, civil or criminal.

(4) No process for compelling the production of any document kept by the Registrar shall issue from any Court except with the leave of that Court, and every such process if issued shall bear on it a statement that it is issued with the leave of the Court.

35 [Repealed]

36 Regulations

Cabinet may make such regulations as it thinks fit for the purposes of this Act.

37 Incorporation of branches

(1) Any society registered under this Act may apply to the Registrar in accordance with this Act for the incorporation of any local branch having not less than 15 members, or for the incorporation of a group or of groups of such branches of that society.

(2) No application for the incorporation of a local branch shall be made except with the consent of a majority of the members proposed to be incorporated as a local branch, and no application for the incorporation of a group of branches shall be made except with the consent of a majority of the members of each of those branches.

(3) Any group of local branches may be incorporated notwithstanding that the whole or any number of such branches may be already incorporated.

38 Application for incorporation of branch

Every application for the incorporation of a branch or group of branches of a society registered under this Act shall be made to the Registrar in manner following –

(a) Two copies of the rules of the branch or group, having written thereon an application for incorporation, shall be signed by not less than 2 of the executive officers of the registered society, and also, in the case of a local branch, by not less than 15 persons being members of that branch, and, in the case of a group of branches, by not less than 2 members of each of the branches proposed to be incorporated.

(b) Each subscriber to the application shall add to his signature his description and address, and his signature shall be attested by a witness who is not a subscriber;

(c) When any body corporate is a subscriber its seal shall be affixed to the said application;

(d) Two copies of the rules so signed or sealed shall be delivered to the Registrar, together with the prescribed fee, and with a statutory declaration made by an officer of the registered society, or by a solicitor, to the effect that a majority of the members of the branch or branches have consented to the application, and that the rules so signed or sealed are the rules of the branch or group.

39 Registration of rules of branch

The Registrar, on being satisfied that the requirements of sections 37 and 38 have been observed, and that the rules of the branch of group of branches are not inconsistent with this Act or with the rules of the registered society, shall thereupon do the following things –

(a) Enter the name of the branch or group of branches in a special register to be kept by him for the purposes of this Act, together with such other particulars with respect to the branch or branches as he thinks fit;

(b) Issue under his seal a certificate that the branch or group of branches is incorporated under this Act;

(c) Register the rules of the branch or group of branches by sealing with his seal the said copies of it; and

(d) Return one of those copies to the secretary of the registered society and retain the other copy.

40 Application of Act

All the provisions of this Act (including the powers conferred on societies to hold land) shall, so far as applicable, and with the necessary modifications, apply to branches of societies or to groups of such branches incorporated under sections 37 and 38.

41 Members of branches not to be relieved of obligations as members of societies

The incorporation of a branch of a society under sections 37 and 38 shall not relieve the members of that branch from any liabilities or obligations incident to their membership of the registered society, whether under this Act, or the rules of the society, or otherwise howsoever.

42 Evidence of membership of branch

For the purposes of this Act membership of a branch of a society shall be determined in accordance with the general rules of the society and the special rules (if any) of the branch in that behalf, and not otherwise, and every member of a local branch shall be deemed to be a member of the society and liable to all the obligations of membership.

43 Assistant Registrars

(1) There may be appointed such Assistant Registrars of incorporated societies as may be required.

(2) (a) Subject to the direction of the Registrar, or to regulations under the principal Act prescribing the duties of Assistant Registrars, every Assistant Registrar shall have and may exercise all the powers, duties, and functions of the Registrar.

(b) The fact of any Assistant registrar exercising any power, duty, or function as aforesaid shall be conclusive evidence of his authority so to do.

44 Rules of society may provide for penalties

In addition to the matters specified in section 6, the rules of any society may make provision for the imposition on any member of reasonable fines and forfeitures, and for the consequences of non-payment of any subscription or fine.

45 Improper use of word "Incorporated"

If any society, not being a society incorporated under this Act, operates under any name or title of which the word "Incorporated" or any name or title of which the word "Incorporated" or any contraction or imitation of that word is the last word, every member of the society shall be liable on summary conviction to a fine not exceeding 0.5 penalty units for every day upon which that name or title has been used.

46 Society may make regulations or bylaws

(1) In addition to the matters specified in section 6 the rules of any society may make provision for the making, amendment, or recission of regulations or bylaws, not inconsistent with this Act or with the rules of the society, for such purposes as may be specified in that behalf in the rules.

(2) The making, amendment, or recission of any regulations or bylaws under any rules in accordance with this section shall not be deemed to be an alteration of the rules under section 21.

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SCHEDULE
Section 7(a)
APPLICATION FOR INCORPORATION

We, the several persons whose names are subscribed hereto, being members of the above-mentioned society, hereby make application for the incorporation of the society under the Incorporated Societies Act 1908.