Home | Databases | WorldLII | Search | Feedback New Zealand Legislation for Niue

Industrial and Provident Societies Amendment Act 1952

NEW ZEALAND

THE INDUSTRIAL AND PROVIDENT SOCIETIES AMENDMENT ACT 1952

1952, No. 45

An Act to amend the Industrial and Provident Societies Act 1908

[22 October 1952

1. Short Title - This Act may be cited as the Industrial and Provident Societies Amendment Act 1952, and shall be read together with and deemed part of the Industrial and Provident Societies Act 1908 (hereinafter referred to as the principal Act).

PART I
MISCELLANEOUS AMENDMENTS

2. This section substituted a new paragraph for para. (c) of s. 5 of the principal Act.

3. This section substituted a new paragraph for para. (d) of s. 5 of the principal Act.

4. This section amended the proviso to subs. (1) of s. 2 of the Industrial and Provident Societies Amendment Act 1923.

5. (a) This paragraph amended the proviso to para. (e) of s. 9 of the principal Act.

(b), (c), (d) These paragraphs amended para. (f) of s. 9 of the principal Act.

6. This section inserted subs. (1a) in s. 19 of the principal Act.

7. Reprinted after s. 10 of the principal Act.

Special Provisions as to Debentures

8. Rights of inspection of register of debenture holders and to copies of register and trust deed - (1) Every register of holders of debentures of a registered society shall, except when duly closed (but subject to such reasonable restrictions as the society may in general meeting impose, so that not less than two hours in each day shall be allowed for inspection), be open to the inspection of the registered holder of any such debentures or any member of the society without fee, and of any other person on payment of a fee of one shilling or such less sum as may be prescribed by the society.

(2) Any such registered holder of debentures or member as aforesaid or any other person may require a copy of the register of the holders of debentures of the society or any part thereof on payment of one shilling for every hundred words required to be copied.

(3) A copy of any trust deed for securing any issue of debentures shall be forwarded to every holder of any such debentures at his request on payment in the case of a printed trust deed of the sum of five shillings or such less sum as may be prescribed by the society, or, where a printed copy of the trust deed is not available, on payment of one shilling for every hundred words required to be copied.

(4) If inspection is refused or a copy is refused or not forwarded, the society and every officer of the society who knowingly and wilfully authorises or permits the default shall be liable to a fine not exceeding five pounds, and further shall be liable to a fine not exceeding two pounds for every day during which the default continues.

(5) Where a society is in default as aforesaid, a Magistrate's Court may by order compel an immediate inspection of the register, or direct that the copies required shall be sent to the person requiring them.

(6) For the purposes of this section, a register shall be deemed to be duly closed if closed in accordance with provisions contained in the rules of the society or in the debentures or, in the case of debenture stock, in the stock certificates, or in the trust deed or other document securing the debentures or debenture stock, during such period or periods, not exceeding in the whole thirty days in any year, as may be therein specified.

Cf. 1933, No. 29, s. 84.

9. Liability of trustees for debenture holders- (1) Subject to the following provisions of this section, any provision contained in a trust deed for securing an issue ^-of debentures, or in any contract with the holders of debentures secured by a trust deed shall be void in so far as it would have the effect of exempting a trustee thereof from or indemnifying him against liability for breach of trust where he fails to show the degree of care and diligence required of him as trustee, having regard to the provisions of the trust deed conferring on him any powers, authorities, or discretions.

(2) The last preceding subsection shall not invalidate –

(a) Any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or

(b) Any provision enabling such a release to be given-

(i) On the agreement thereto of a majority of not less than three-fourths in value of the debenture holders voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose; and

(ii) Either with respect to specific acts or omissions or on the trustee dying or ceasing to act.

(3) Subsection one of this section shall not operate-

(a) To invalidate any provision in force at the commencement of this Act so long as any person then entitled to the benefit of that provision or afterwards given the benefit thereof under the next succeeding subsection remains a trustee of the deed in question; or

(b) To deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force.

(4) While any trustee of a trust deed remains entitled to the benefit of a provision saved by the last preceding subsection, the benefit of that provision may be given either-

(a) To all trustees of the deed, present and future; or

(b) To any named trustees or proposed trustees thereof,-

by a resolution passed by a majority of not less than three-fourths in value of the debenture holders voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed or, if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by a Magistrate's Court.

Cf. Companies Act 1948, s. 88 (U.K.)

10. Perpetual debentures- A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after the commencement of this Act, shall not be invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, any rule of equity to the contrary notwithstanding.

Cf. 1933, No. 29, s. 85

11. Prohibiting reissue of redeemed debentures - (1) A registered society shall have no power to reissue any debentures that it has redeemed.

(2) Where a registered society has either before or after the commencement of this Act deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the society having ceased to be in debit whilst the debentures remained so deposited.

12. Specific performance of contracts to subscribe for debentures - A contract with a registered society to take up and pay for any debentures of the society may be enforced by an order for specific performance.

Cf. 1933, No. 29, s. 87

13. Payment of certain debts out of assets subject to floating charge in priority to claims under the charge - (1) Where either a receiver is appointed on behalf of the holders of any debentures of a registered society secured by a floating charge, or possession is taken by or on behalf of those debenture holders of any property comprised in or subject to the charge, then, if the society is not at the time in course of being wound up, the debts which in every winding up are under the provisions of [Part VI of the Companies Act 1955] relating to preferential payments to be paid in priority to all other debts shall be paid out of any assets coming to the hands of the receiver or other person taking possession as aforesaid in priority to any claim for principal or interest in respect of the debentures.

(2) In the application of the said provisions, they shall be construed as if any provision for payment of accrued holiday pay becoming payable on the termination of employment before or by the effect of the winding up order or resolution were a provision for payment of that holiday pay becoming payable on the termination of employment before or by the effect of the appointment of the receiver or possession being taken as aforesaid.

(3) The periods of time mentioned in the said provisions of [Part VI of the Companies Act 1955] shall be reckoned from the date of the appointment of the receiver or of possession being taken as aforesaid, as the case may be.

(4) Any payments made under this section shall be recouped as far as may be out of the assets of the society available for payment of general creditors.

Cf. 1933, No. 29, s. 88

In subss. (1) and (3) the references to Part VI of the Companies Act 1955 were substituted for references to the repealed Part VI of the Companies Act 1933 by s. 14 (2) of this Act.

Winding Up

14. Application of Companies Act to winding up of societies- (1) Subject to the provisions of the principal Act and its amendments (including this Act), all the provisions of [Part VI o£ the Companies Act 1955] shall, so far as they are applicable and with the necessary modifications, apply with respect to the winding up of registered societies, except that the Court having jurisdiction in every such winding up shall be a Magistrate's Court.

(2) References in this Act to Part VI of the Companies Act 1933 shall be deemed to be references to that Part as for the time being amended, and in the event of the repeal of that Act shall be deemed to be references to the corresponding Part of the Companies Act as for the time being in force: Provided that this subsection shall have effect subject to any saving provision applicable in any case where the winding up has commenced before a particular date.

In subs. (1) the reference to Part VI of the Companies Act 1955 was substituted for a reference to the repealed Part VI of the Companies Act 1933 by subs. (2) of this section.

PART II
REGISTRATION OF CHARGES

Registration of Charges with Registrar

15. Commencement of this Part - This Part of this Act shall come into force on the first day of January, nineteen hundred and fifty-three.

16. Interpretation - (1) In this Part of this Act, unless the context otherwise requires,-

"Charge" includes a mortgage:

"Debenture" includes debenture stock, bonds, and any other securities of a registered society, whether constituting a charge on the assets of the society or not:

"Prescribed" means prescribed by this Part of this Act or by regulations under the principal Act.

(2) For the purposes of this Part of this Act, land held by a registered society under an agreement for sale and purchase shall be deemed to be the property of the society subject to a charge created by the agreement, and securing the balance of the purchase money for the time being unpaid.

Cf. 1933, No. 29, ss. 3 (1), 89 (11)

17. Registration of charges created by societies - (1) Where after the commencement of this Part of this Act a registered society creates any charge to which this section applies, it shall be the duty of the society within the time prescribed by subsection three of this section to cause a copy of the instrument by which the charge is created or evidenced to be delivered to the Registrar for registration in manner required by this Part of this Act. Every such copy shall be accompanied by a statutory declaration as to the execution of the instrument and verifying the copy as a true copy:

Provided that if the instrument by which the charge is created or evidenced is registered under any Act other than this Act it shall be sufficient compliance with the requirements of this subsection if, within the time prescribed as aforesaid, particulars of the instrument sufficient to identify it, and such other particulars (if any) as may be prescribed, are delivered to the Registrar for registration.

(2) This section applies to the following charges:

(a) A charge for the purpose of securing any issue of debentures:

(b) A charge on uncalled share capital of the society:

(c) A charge created or evidenced by an instrument which, if executed by an individual, would require registration under the Chattels Transfer Act 1924:

(d) A floating charge on the undertaking or property of the society:

(e) A charge on land, wherever situate, or any interest therein:

(f) A charge on book debts of the society:

(g) A charge on calls made but not paid:

(h) A charge on a ship or any share in a ship:

(i) A charge on goodwill, on a patent or a licence under a patent, on a trade mark, or on a copyright or a licence under a copyright.

(3) Instruments required to be registered in accordance with the foregoing provisions of this section shall, in the case of instruments executed in New Zealand, be so registered within twenty-one days after the date of the execution thereof, and, in the case of instruments executed outside New Zealand, within three months after the date of execution.

(4) Where a charge is created in New Zealand but comprises property outside New Zealand, a copy of the instrument creating or purporting to create the charge must be sent for registration under this section notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.

(5) Where a negotiable instrument has been given to secure the payment of any book debts of a registered society the deposit of the instrument for the purposes of securing an advance to the society shall not for the purposes of this section be treated as a charge on those book debts.

(6) The holding of debentures entitling the holder to a charge on land shall not for the purposes of this section be deemed to be an interest in land.

(7) Where a series of debentures containing, or giving by reference to any other instrument, any charge to the benefit of which the debenture holders of that series are entitled pari passu is created by a registered society, it shall for the purposes of this section be sufficient if there are delivered to or received by the Registrar within twenty-one days, or three months, as the case may be, after the execution of the deed containing the charge, or, if there is no such deed, after the execution of any debentures of the series, the following particulars:

(a) The total amount secured by the whole series; and

(b) The dates of the resolutions authorising the issue of the series and the date of the covering deed, if any, by which the security is created or defined; and

(c) A general description of the property charged; and

(d) The names of the trustees, if any, for the debenture holders,-

together with a copy of the deed containing the charge, or, if there is no such deed, a copy of one of the debentures of the series, in either case accompanied by a statutory declaration as required by subsection one of this section:

Provided that, where more than one issue is made of debentures in the series, there shall be sent to the Registrar, for entry in the register, particulars of the date and amount of each issue, but an omission to do this shall not affect the validity of the debentures issued.

(8) Where any commission, allowance, or discount has been paid or made either directly or indirectly by a registered society to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the society, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such debentures, the particulars required to be sent for registration under this section shall include particulars as to the amount or rate per cent of the commission, discount, or allowance so paid or made, but omission to do this shall not affect the validity of the debentures issued:

Provided that the deposit of any debentures as security for any debt of the society shall not for the purposes of this subsection be treated as the issue of the debentures at a discount.

(9) Registration of any charge under this section may be effected on the application of any person interested therein. Where registration is effected on the application of some person other than the society, that person shall be entitled to recover from the society the amount of any fees properly paid by him to the Registrar on the registration.

(10) If any registered society makes default in sending to the Registrar for registration a copy of the instrument creating or evidencing any charge created by the society, or the particulars of the issues of debentures of a series, requiring registration as aforesaid, then, unless the registration has been erected on the application of some other person, the society and every officer of the society who knowingly and wilfully authorises or permits the default shall be liable to a fine not exceeding fifty pounds for every day during which the default continues.

(11) Except as provided in subsection two of section four of the Chattels Transfer Act 1924, registration of any instrument under this Part of this Act shall not in itself constitute notice to any person of the contents of that instrument.

Cf. 1933, No. 29, s.89

18. Unregistered charges to be void in certain cases- (1) This section applies to every charge created after the commencement of this Part of this Act and required to be registered under the last preceding section, other than charges registrable under any Act other than this Act.

(2) Subject to the provisions of this Part of this Act, every charge to which this section applies shall, so far as any security on a society's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the society, unless the charge is registered in the manner and within the time prescribed by the last preceding section or, if the time for registration is extended under section twenty-three of this Act, then within the extended time, but without prejudice to any contract or obligation for repayment of the money thereby secured, and when a charge becomes void under this subsection the money secured thereby shall immediately become payable.

(3) A charge created outside New Zealand and registered more than twenty-one days after the execution of the instrument creating or evidencing the charge, but within three months after the execution thereof shall, as to property in New Zealand, take effect subject to any rights acquired before the registration thereof.

Cf. 1933, No. 29, s.90

19. Duty of society to register charges existing on property acquired- (1) Where a registered society acquires any property which is subject to a charge of any such kind as would, if it had been created by the society after the acquisition of the property, have been required to be registered under this Part of this Act, the society shall cause a copy of the instrument by which the charge was created or is evidenced, accompanied by a statutory declaration as to the date of the acquisition of the property and verifying the copy as a true copy, to be delivered to the Registrar for registration in manner required by this Part of this Act within twenty-one days after the date on which the acquisition is completed:

Provided that, if the property is situate and the charge was created outside New Zealand, three months after the completion of the acquisition shall be substituted for twenty-one days after the completion thereof as the time within which the copy of the instrument is to be delivered to the Registrar:

Provided also that if the instrument by which the charge is created or evidenced has been already registered with the Registrar, or is registered under any Act other than this Act, it shall be sufficient compliance with the requirements of this subsection if, within twenty-one days, or three months, as the case may be, particulars of the instrument sufficient to identify it, and such other particulars (if any) as may be prescribed are delivered to the Registrar for registration.

(2) If default is made in complying with this section, the society and every officer of the society who knowingly and wilfully authorises or permits the default shall be liable to a fine not exceeding fifty pounds for every day during which the default continues unless it is proved to the satisfaction of the Court that a copy of the instrument required to be registered was not obtainable by the society.

Cf. 1933, No. 29, s. 91

20. Register of charges to be kept by Registrar- (1) The Registrar shall keep, with respect to each registered society, a register in the prescribed form of all the charges requiring registration under this Part of this Act, and shall, on payment of the prescribed fee, enter in the register with respect to such charges the following particulars:

(a) In the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in subsection seven of section seventeen of this Act:

(b) In the case of any other charge-

(i) If the charge is a charge created by the society, the date of its creation, and if the charge was a charge existing on property acquired by the society, the date of the acquisition of the property; and

(ii) The amount secured by the charge; and

(iii) Short particulars of the property charged; and

(iv) The persons entitled to the charge.

(2) The Registrar shall, on payment of the prescribed fee, give a certificate under his hand of the registration of any charge registered in pursuance of this Part of this Act stating the amount thereby secured, and the certificate shall be conclusive evidence that the requirements of this Part of this Act as to registration have been complied with.

(3) The register kept in pursuance of this section and all documents registered under this Part of this Act shall be open to inspection by any person on payment of the prescribed fee.

Cf. 1933, No. 29, s. 92

21. Endorsement of certificate of registration on debentures - (1) The society shall cause a copy of every certificate of registration given under the last preceding section to be endorsed on every debenture or certificate of debenture stock which is issued by the society and the payment of which is secured by the charge so registered:

Provided that nothing in this subsection shall be construed as requiring a society to cause a certificate of registration of any charge so given to be endorsed on any debenture or certificate of debenture stock issued by the society before the charge was created.

(2) If any person knowingly and wilfully authorises or permits the delivery of any debenture or certificate of debenture stock which under the provisions of this section is required d to have endorsed on it a copy of a certificate of registration without the copy being so endorsed upon it, he shall, without prejudice to any other liability, be liable to a fine not exceeding one hundred pounds.

Cf. 1933, No. 29, s. 93

22. Entries of satisfaction and release of property from charge - (1) The Registrar, on evidence being given to his satisfaction with respect to any registered charge-

(a) That the debt for which the charge was given has been paid or satisfied in whole or in part; or,

(b) That the property or undertaking charged or any part thereof has been released from the charge or has ceased to form part of the society's property or undertaking,-

and on payment of the prescribed fee, shall enter on the register-

(i) A memorandum of satisfaction in whole or in part; or

(ii) A memorandum of the fact that the property or undertaking or any part thereof has been released from the charge; or

(iii) A memorandum of the fact that the property or undertaking or any part thereof has ceased to form part of the society's property or undertaking,-

as the case may be, and where he enters any such memorandum he shall, if required, and on payment of the prescribed fee, furnish the society with a copy thereof.

(2) A Magistrate's Court, on application made to it for that purpose, and on being satisfied as to the fact stated in paragraph (a) or paragraph (b) of the last preceding subsection, may order that a memorandum as aforesaid, as the case may require, be entered on the register, and the Registrar shall enter that memorandum accordingly.

Cf. 1933, No. 29, s. 94

23. Rectification of register of charges - A Magistrate's Court, on being satisfied that the omission to register a charge within the time required by this Part of this Act, or that the omission or misstatement of any particular form or in any document or memorandum registered or entered under this Part of this Act, was accidental, or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the society, or that on other grounds it is just and equitable to grant relief, may, on the application of the society or any person interested, and on such terms and conditions as seem to the Court just and expedient, order that the time for registration shall be extended, or, as the case may be, that the omission or misstatement shall be rectified.

Cf. 1933, No. 29, s. 95

24. Registration of enforcement of security - (1) If any person obtains an order for the appointment of a receiver or manager of the property of a registered society, or appoints such a receiver or manager under any powers contained in any instrument, he shall, within seven days from the date of the order or of the appointment under the said powers, give notice of the fact to the Registrar, and the Registrar shall, on payment of the prescribed fee, enter the fact in the register of charges.

(2) Where any person appointed receiver or manager of the property of a society under the powers contained in any instrument ceases to act as such receiver or manager, he shall, on so ceasing, give the Registrar notice to that effect, and the Registrar shall enter the notice in the register of charges.

(3) If any person makes default in complying with the requirements of this section he shall be liable to a fine not exceeding five pounds for every day during which the default continues.

Cf. 1933, No. 29, s. 96

Provisions as to Society's Register of Charges and as to
Copies of Instruments Creating Charges

25. Copies of instruments creating charges to be kept by society- Every registered society shall cause a copy of every instrument creating any charge requiring registration under this Part of this Act to be kept at the registered office of the society:

Provided that, in the case of a series of uniform debentures, a copy of one debenture of the series shall be sufficient.

Cf. 1933, No. 29, s.97

26. Society's register of charges - (1) Every registered society shall keep at the registered office of the society a register of charges, and enter therein all charges specifically affecting property of the society and all floating charges on the undertaking or any property of the society, giving in each case a short description of the property charged, the amount of the charge, and, except in the case of securities to bearer, the names of the persons entitled thereto.

(2) If any officer of the society knowingly and wilfully authorises or permits the omission of any entry required to be made in pursuance of this section he shall be liable to a fine not exceeding fifty pounds.

Cf. 1933, No. 29, s.98

27. Right to inspect copies of instruments creating charges and society's register of charges - (1) The copies of instruments creating any charge requiring registration under this Part of this Act with the Registrar, and the register of charges kept in pursuance of the last preceding section, shall be open during business hours (but subject to such reasonable restrictions as the society in general meeting may impose, so that not less than two hours in each day shall be allowed for inspection) to the inspection of any creditor or member of the society without fee, and the register of charges shall also be open to the inspection of any other person on payment of such fee, not exceeding two shillings for each inspection, as the society may prescribe.

(2) If inspection of the said copies or register is refused, every officer of the society who knowingly and wilfully authorises or permits the refusal shall be liable to a fine not exceeding five pounds, and a further fine not exceeding two pounds for every day during which the refusal continues.

(3) In the case of any such refusal, a Magistrate's Court may by order compel an immediate inspection of the copies or register.

Cf. 1933, No. 29, s. 99

Rights of the Crown

28. This Part to bind the Crown - This Part of this Act shall bind the Crown.

Registration of Existing Charges

29. Registration of charges created, and charges on property acquired, by society before commencement of this Part - (1) Except as provided in the next succeeding subsection, it shall be the duty of a registered society within six months after the commencement of this Part of this Act to send or deliver to the Registrar for registration under this Part of this Act a copy (verified in manner prescribed by section seventeen or section nineteen of this Act) of the instrument creating or evidencing-

(a) Any charge created by the society before the date of the commencement of this Part of this Act and remaining unsatisfied at that date which would have been required to be registered under section seventeen of this Act if the charge had been created after the commencement of this Part of this Act; and

(b) Any charge to which any property acquired by the society before the commencement of this Part of this Act is subject and which would have been required to be registered under section nineteen of this Act if the property had been acquired after the commencement o£ this Part of this Act.

(2) Notwithstanding anything in the last preceding subsection, if the instrument by which the charge was created or evidenced has been already registered with the Registrar, or is registered under any Act other than this Act, it shall be sufficient compliance with the requirements of the last preceding subsection if, within the time hereinbefore prescribed, particulars of the instrument sufficient to identify it, and such other particulars (if any) as may be prescribed, are delivered to the Registrar for registration.

(3) The Registrar shall, on payment of the prescribed fee, register all such charges in the register kept by him in pursuance of this Part of this Act.

(4) If a society fails to comply with this section, the society and every officer of the society who knowingly and wilfully authorises or permits the default shall be liable to a fine not exceeding fifty pounds for every day during which the default continues:

Provided that the failure of the society shall not prejudice any rights which any person in whose favour the charge was made may have thereunder.

Cf. 1933, No. 29, s. 101

--------------------------------------