Finland

Finland - Civil Law (Scandinavian)
Incorporate Now
Click request a call for a free, no obligation consultation.
In a hurry? Click incorporate now, and startup your company immediately.

Finland taxes

If you are wanting to do business in Finland, reading this will help you becoming knowlegeable on the specific tax laws and rates for a LLC which is the most common company type in Finland.

FI imposes a tax on income from outside the country differently than if it were made onshore. The prevailing standard rate for offshore tax, from our research, and this is not personal tax advice, is 0%. Finland doesn't have major incentives to remit foreign earned profits made internationally. Taxes are lower than average in Finland as the rate which LLC will pay tax is 20%. This ranks Finland as 63rd overall in terms of CIT globally. . .

The VAT rate in Finland is 24.00%, that ranks Finland as 63rd overall in terms of VAT globally. In terms of other taxation, an employer will contribute 23.60% to the equivalent of a social security fund and an employee will contribute 0.69%. This is measured by average time to comply with a country's labor tax requirements is as it is 48hours. Contributing to this is the number of yearly labor tax payments, which is 3 in FI.

Thin capitalisation mandates are in play. This refers to any type of restrictions on a business and the debt-to-asset ratios. A dividend is a distribution of a portion of an earnings of the business, determined by the board, to shareholders.Dividends can be either cash payments, shares of stock, or other property. The capital gains taxation rate in FIis 0%. A capital gains tax is levied on the profits that a corporation or natural person realizes when he or she sells sells a capital asset for a price that is higher than the purchase price.

The interest witholding rate is estimated at 0This should be interpreted usually that the taxman expects LLC's to automatically withhold 0 of money remitted abroad on interest payments. The dividends witholding rate is 0Which means that the tax authorities expects legal entities to pay tax on at least 0 of money remitted abroad on dividend payments. The royalties witholding rate 0 This should be interpreted usually that the tax authorities expects relevant legal entities to pay tax on at least 0 of payments abroad for royalty payments.
There is no known tax on wealth in Finland. There are inheritance taxes in FI placed on an estate. There exist well know R&D intitiatives that provide tax incentives here.

The above is not tax or legal advice for your company's situation. Incorporations.io can to reference you to a tax advisorin Finland who can get you an answer. Want to work together? Click incorporate now if you are in a hurry, or press the free consultation button above.

It takes approximately 21 hours to file and prepare documents for a Finland Civil Law (Scandinavian).
The corporate tax is approximately 20% which is 63 in the world.

Owners of a company in Finland are not allowed to carry back a loss and may be allowed to carry forward a loss for 10 years.

The vat rate in Finland is 24% which ranks 168 in the world.

Patent box
RND credit
Wealth tax
Estate tax
Transfer taxes
Asset taxes
Capital duties
118Tax treaties
20%Offshore Tax
20%Corp rate
-Loss carryback years
21Corporate time
24%VAT rate
32%Capital gains
2017AEOI planned

Read this to learn about incorporating a company in
Finland

We can help you form a company in Finland. Click the button above for a no-obligation quote. We will provide you with all the necessary documents to open a bank account as well as a registered office in Finland, which is required by law.

We can help you with your incorporations needs for an initial payment of just $1000.

Easy Step by Step Process:
The standard process typically takes between two (2) to three (3) weeks depending on when we receive all the required information from you. Once we receive your information, we will email you a complete set of documents for your review within 3 working days upon confirmation of payment. After executing the documents, you will need to mail them to us and we will formally submit your application for filing with the Registry. The Registry will then take about 3-8 working days to process the incorporation and produce certificates necessary for opening your bank account.

Applying for Your Bank Accounts:
Incorporations.IO maintains close working relationship within our extensive network of partner banks to help you apply for and receive banking services that are most appropriate to your specific situation. From the time of verification of incorporation it can take (1) one week to (2) two weeks to apply for and receive a bank account. We work primarily with banks that allow for remotely opened accounts to ensure you are ready to do business as soon as possible.

Applying for Payment Processing:
We include introductions to payment processors or merchant accounts with all of our incorporation services. Whether you just need standard credit card processing or specialized services for high risk processing, we have partners that can assist you and are happy to help you with introductions that can empower your business.

Start Online or via Phone:
We can get started for you whenever you are ready via a US$1000 initial payment via credit card. I get notified whenever a payment is made here and would send out the welcome letter and initial forms we would need within 12 hours. If you prefer, we can also process via a phone or Skype call.

Finland Tax Treaties

CountryTypeDate signed
Greece
DTC 1980-01-20
Saint Kitts and Nevis
TIEA2010-03-24
Liechtenstein
TIEA2010-12-17
Mexico
DTC 1997-02-12
Luxembourg
DTC 1982-03-01
Montserrat
TIEA2010-11-22
Canada
DTC 2006-07-20
Barbados
DTC 1989-06-15
Norway
TIEA1989-12-07
Liberia
TIEA2010-11-10
Ireland
DTC 1992-03-27
Cyprus
DTC 2012-11-15
Zambia
DTC 1978-11-30
Antigua and Barbuda
TIEA2010-05-19
Belize
TIEA2010-09-15
China
DTC 2010-05-25
Kazakhstan
DTC 2009-03-24
Bahamas
TIEA2010-03-10
Armenia
DTC 2006-10-16
Kyrgyzstan
DTC 2003-04-03
Turks and Caicos Islands
TIEA2009-12-16
Egypt
DTC 1965-04-01
Kosovo
DTC 2011-11-11
Georgia
DTC 2007-10-11
Indonesia
DTC 1987-10-15
Netherlands
DTC 1995-12-28
Niue
TIEA2013-10-16
United Kingdom
DTC 1969-07-17
Hungary
DTC 1978-10-25
Germany
DTC 1979-07-05
Isle of Man
TIEA2007-10-30
Montenegro
DTC 1986-05-08
Brazil
DTC 1996-04-02
Serbia
DTC 1986-05-08
South Africa
DTC 1995-05-26
Belgium
DTC 1976-05-18
Azerbaijan
DTC 2005-09-29
Brunei
TIEA2012-06-27
Czech Republic
DTC 1994-12-02
Malaysia
DTC 1984-03-28
Pakistan
DTC 1994-12-30
Iceland
TIEA1989-12-07
Australia
DTC 2006-11-20
Guatemala
TIEA2012-05-15
Botswana
TIEA2013-02-20
Curacao
TIEA2009-09-10
India
DTC 2010-01-15
Sri Lanka
DTC 1982-05-18
Aruba
TIEA2009-09-10
Cook Islands
TIEA2009-12-16
Saint Lucia
TIEA2010-05-19
Gibraltar
TIEA2009-10-20
Uruguay
DTC 2011-12-13
Cayman Islands
TIEA2009-04-01
Macedonia
DTC 2001-01-25
Bermuda
TIEA2009-04-16
Turkey
DTC 2009-10-06
Singapore
DTC 2002-06-07
Anguilla
TIEA2009-12-14
France
DTC 1970-09-11
Qatar
TIEA2013-09-06
Israel
DTC 1997-08-01
Saint Vincent and the Grenadines
TIEA2010-03-24
Jersey
TIEA2008-10-28
Portugal
DTC 1970-04-27
Russia
DTC 1996-05-04
Vietnam
DTC 2001-11-21
Slovakia
DTC 1999-02-15
Lithuania
DTC 1993-04-30
Monaco
TIEA2010-06-23
Latvia
DTC 1993-03-23
Spain
DTC 1967-11-15
Poland
DTC 2009-06-08
Marshall Islands
TIEA2010-09-28
Sweden
TIEA1989-12-07
Belarus
DTC 2007-12-18
Macao
TIEA2011-04-29
Andorra
TIEA2010-02-24
Switzerland
DTC 1991-12-16
Moldova
DTC 2008-04-16
Seychelles
TIEA2011-03-30
Uzbekistan
DTC 1998-04-09
Morocco
DTC 2006-04-07
Philippines
DTC 1978-10-13
Thailand
DTC 1985-04-25
Mauritius
TIEA2011-12-01
Costa Rica
TIEA2011-06-29
Ukraine
DTC 1994-10-14
United States
DTC 1989-09-21
United Arab Emirates
DTC 1996-03-12
Dominica
TIEA2010-05-19
Sint Maarten
TIEA2009-09-10
Grenada
TIEA2010-05-19
Greenland
TIEA1989-12-07
Jamaica
TIEA2012-12-04
Slovenia
DTC 2003-09-19
Panama
TIEA2012-11-12
Estonia
DTC 1993-03-23
Bosnia and Herzegovina
DTC 1986-05-08
Malta
DTC 2000-10-30
Guernsey
TIEA2008-10-28
Denmark
TIEA1989-12-07
Japan DTC 1991-03-04
Samoa
TIEA2009-12-16
Faroe Islands
TIEA1989-12-07
Italy
DTC 1981-06-12
Croatia
DTC 1986-05-08
Bulgaria
DTC 1985-04-25
Argentina
DTC 1994-12-13
San Marino
TIEA2010-01-12
South Korea
DTC 1979-02-08
New Zealand
DTC 1982-03-12
Vanuatu
TIEA2010-10-13
Bahrain
TIEA2011-10-14
Tajikistan
DTC 2012-10-24
Austria
DTC 2000-07-26
Romania
DTC 1998-10-27
Tanzania
DTC 1976-05-12

Country Info

National Flag of
Suomen tasavalta (fin)
Republiken Finland (swe)
Currency
EUR
Area Code
+358
Capital
Helsinki
Region
Northern Europe
Native Languages
Finnish
Swedish

Companies Act of Finland

Companies Act of Fiji

Chapter 247

PART I-PRELIMINARY

Short title

1. This Act may be cited as the Companies Act.

Interpretation

2. (1) In this Act, except where the context otherwise requires-

"accounts" includes a company's group accounts, whether prepared in the form of accounts or not;

"agent" does not include a person's barrister and solicitor acting as such;

"annual return" means the return required to be made, in the case of a company having a share capital, under section 127 and in the case of a company not having a share capital, under section 128;

"articles" means the articles of association of a company, as originally framed or as altered by special resolution, including, so far as they apply to the company, the regulations contained in Table A in the First Schedule to any of the repealed Acts or in Table A in the Second Schedule to this Act;

"book and paper" and "book or paper" include accounts, deeds, writings and documents;

"certified" means certified in the prescribed manner to be a true copy or to be a correct translation into the English language;

"company" means a company formed and registered under this Act or an existing company;

"company limited by guarantee" and "company limited by shares" have the meanings assigned to them respectively by subsection (2) of section 4;

"contributory" has the meaning assigned to it by section 215;

"court" means the Supreme Court;

"creditors' voluntary winding-up" has the meaning assigned to it by subsection (4) of section 277;

"debenture" includes debenture stock, bonds and any other securities of a company, whether constituting a charge on the assets of the company or not;

"director" includes any person occupying the position of director, by whatever name called;

"document" includes summons, notice, order and other legal process, and registers;

"existing company" means a company formed and registered under any of the repealed Acts;

"financial year" means, in relation to any body corporate, the period in respect of which any profit and loss account of the body corporate laid before it in general meeting is made up, whether that period is a year or not;

"group accounts" has the meaning assigned to it by subsection (1) of section 152;

"holding company" means a holding company as defined by section 156;

"insurance company" means a company which carries on the business of insurance either solely or in conjunction with any other business or businesses;

"issued generally" means, in relation to a prospectus, issued to persons who are not existing members or debenture holders of the company;

"limited company" means a company limited by shares or a company limited by guarantee;

"members' voluntary winding-up" has the meaning assigned to it by subsection (4) of section 277;

"memorandum" means the memorandum of association of a company, as originally framed or as altered from time to time;

"minimum subscription" has the meaning assigned to it by subsection (2) of section 51;

"officer", in relation to an association or a body corporate, includes a director, manager or secretary;

"printed or typewritten" means printed, or typewritten, or reproduced by such other means as may be prescribed;

"private company" has the meaning assigned to it by subsection (1) of section 32;

"prospectus" means any prospectus, notice, circular, advertisement or other invitation, offering to the public for subscription or purchase any shares or debentures of a company;

"registrar" means the registrar of companies, the deputy registrar or any assistant registrar or other officer performing under this Act the duty of registration of companies;

"repealed Acts" means the Companies Act 1913, and includes the Partnership Consolidation and Limited Liability Act 1878 and the repealed Companies Act;

"repealed Companies Act" means the Companies Act repealed by this Act;

"resolution for reducing share capital" has the meaning assigned to it by subsection (2) of section 70;

"resolution for voluntary winding-up" has the meaning assigned to it by subsection (2) of section 272;

"share" means share in the share capital of a company, and includes stock, except where a distinction between stock and shares is expressed or implied;

"share warrant" has the meaning assigned to it by subsection (2) of section 87;

"statutory meeting" means the meeting required to be held by subsection (1) of section 132;

"statutory report" has the meaning assigned to it by subsection (2) of section 132;

"subsidiary" means a subsidiary as defined by section 156;

"Table A" means Table A in the Second Schedule;

"time of the opening of the subscription lists" has the meaning assigned to it by subsection (1) of section 54;

"unlimited company" has the meaning assigned to it by subsection (2) of section 4.

(2) A person shall not be deemed to be, within the meaning of any provision of this Act, a person in accordance with whose directions or instructions the directors of a company are accustomed to act, by reason only that the directors of the company act on advice given by him in a professional capacity.

(3) References in this Act to a body corporate or to a corporation shall be construed as not including a corporation sole but as including a company incorporated outside Fiji.

(4) Any provision of this Act overriding or interpreting a company's articles shall, except as provided by this Act, apply in relation to articles in force immediately before 1 January 1984, as well as to articles coming into force thereafter, and shall apply also in relation to a company's memorandum as it applies in relation to its articles.

Register of Companies

3. There shall be kept by the registrar a record called "the Register of Companies" wherein shall be entered all the matters prescribed by this Act.

PART II-INCORPORATION OF COMPANIES AND MATTERS INCIDENTAL THERETO

Division 1 - Memorandum of Association

Mode of forming incorporated company

4. (1) Any 7 or more persons, or, where the company to be formed will be a private company, any 2 or more persons, associated for any lawful purpose may, by subscribing their names to a memorandum of association and otherwise complying with the requirements of this Act in respect of registration, form an incorporated company, with or without limited liability.

(2) Such a company may be either-

(a) a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Act termed a "company limited by shares"); or

(b) a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Act termed a "company limited by guarantee"); or

(c) a company not having any limit on the liability of its members (in this Act termed an "unlimited company"). Requirements with respect to memorandum

5. (1) The memorandum of every company-

(a) shall be in the English language;

(b) shall be printed or typewritten;

(c) shall be divided into paragraphs numbered consecutively;

(d) shall be dated; and

(e) shall state-

(i) the name of the company, the last word of which shall be the word "Limited" or the abbreviation thereof "Ltd." in the case of a company limited by shares or by guarantee;

(ii) that the registered office of the company is to be situate in Fiji;

and

(iii) the objects of the company.

(2) The memorandum of a company limited by shares or by guarantee shall also state that the liability of its members is limited.

(3) The memorandum of a company limited by guarantee shall also state that each member undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within 1 year after he ceases to be a member, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs, charges and expenses of winding-up, and for adjustment of the rights of the contributories among themselves, such amount as may be required, not exceeding a specified amount.

(4) In the case of a company having a share capital-

(a) the memorandum shall also, unless the company is an unlimited company, state the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount; and

(b) no subscriber of the memorandum shall take less than 1 share; and

(c) each subscriber shall write opposite to his name the number of shares he takes. Signature of memorandum

6. (1) The memorandum of every company must be signed by each subscriber, or his agent authorized in writing, in the presence of at least 1 witness, who must attest the signature and must add to his signature his occupation and postal address.

(2) Opposite the signature of every subscriber there shall be written in legible roman characters his full name, his occupation and postal address.

(3) In any case where a corporation, whether a company within the meaning of this Act or not, is the subscriber of the memorandum of a company, the memorandum may be signed on behalf of the corporation by any person or persons acting under its authority expressed in writing, and it shall not be necessary in any such case for the seal of the corporation to be fixed to the memorandum.

Incidental and ancillary powers

7. A company, whether registered before or after 1 January 1984, shall have, as ancillary and incidental to the objects stated in its memorandum, the powers set forth in the First Schedule, unless such powers or any of them are expressly excluded or modified by the memorandum.

Ultra vires transactions

8. (1) No act of a company (including the entering into an agreement by the company) and no conveyance or transfer of property to or by a company, shall be invalid by reason only of the fact that the company was without capacity or power to do the act or to execute or take the conveyance or transfer.

(2) Any such lack of capacity or power may be asserted or relied upon only in-

(a) proceedings against the company by a member of the company or, where the company has issued debentures secured by a floating charge over all or any of the property of the company, by the holder of any of those debentures or the trustees for the holders of those debentures to restrain the doing of any act or acts or the conveyance or transfer of any property to or by the company;

(b) proceedings by the company, or by a member of the company, against the present or former officers of the company; or

(c) a petition by the Attorney-General to wind up the company.

(3) If the unauthorized act, conveyance or transfer sought to be restrained in any proceedings under paragraph (a) of subsection (2) is being, or is to be, performed or made pursuant to any contract to which the company is a party, the court may, if all the parties to the contract are parties to the proceedings, and if the court considers it to be just and equitable, set aside and restrain the performance of the contract and may allow to the company and to the other parties to the contract (as the case requires) compensation for the loss or damage sustained by either of them that may result from the action of the court in setting aside and restraining the performance of the contract, but anticipated profits to be derived from the performance of the contract shall not be awarded by the court as a loss or damage sustained.

Restriction on alteration of memorandum

9. A company shall not alter the conditions contained in its memorandum, except in the cases, in the mode and to the extent for which express provision is made in this Act.

Mode in which and extent to which objects or powers of company may be altered

10. (1) A company may, by special resolution, alter the provisions of its memorandum with respect to the objects or powers of the company:

Provided that, if an application is made to the court in accordance with this section for the alteration to be cancelled, it shall not have effect, except in so far as it is confirmed by the court.

(2) An application under this section may be made-

(a) by the holders of not less in the aggregate than 10 per cent in nominal value of the company's issued share capital or any class thereof or, if the company is not limited by shares, not less than 10 per cent of the company's members; or

(b) by the holders of not less than 10 per cent of the company's debentures entitling the holders to object to alterations of its objects or powers:

Provided that an application shall not be made by any person who has consented to or voted in favor of the alteration.

(3) An application under this section shall be made within 30 days after the date on which the resolution altering the company's objects or powers was passed and may be made on behalf of the persons entitled to make the application by such 1 or more of their number as they may appoint in writing for the purpose.

(4) On an application under this section, the court may make an order cancelling the alteration or confirming the alteration either wholly or in part and on such terms and conditions as it thinks fit, and may, if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissentient members, and may give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangement:

Provided that no part of the capital of the company shall be expended in any such purchase.

(5) (a) The debentures entitling the holders to object to alterations of a company's objects or powers shall be any debentures secured by a floating charge which were issued or first issued before 1 January 1984, or form part of the same series as any debentures so issued, and a special resolution altering a company's objects or powers shall require the same notice to the holders of any such debentures as to members of the company.

(b) In default of any provisions regulating the giving of notice to any such debenture holders, the provisions of the company's articles regulating the giving of notice to members shall apply.

(6) In the case of a company which is, by virtue of a licence from the Minister, exempt from the obligation to use the word "Limited" as part of its name, a resolution altering the company's objects or powers shall also require the same notice to the Minister as to members of the company.

(7) Where a company passes a resolution altering its objects or powers-

(a) if no application is made with respect thereto under this section, it shall, within 14 days from the end of the period for making such an application, deliver to the registrar a printed or typewritten copy of its memorandum as altered; and

(b) if such an application is made, it shall-

(i) forthwith give notice of that fact to the registrar; and

(ii) within 14 days from the date of any order cancelling or confirming the alteration wholly or in part, deliver to the registrar a certified copy of the order and, in the case of an order confirming the alteration wholly or in part, a printed or typewritten copy of the memorandum as altered, but the court may, by order, at any time, extend the time for the delivery of documents to the registrar under paragraph (b) for such period as the court may think proper.

(8) If a company makes default in giving notice or delivering any document to the registrar as required by subsection (7), the company and every officer of the company who is in default shall be liable to a default fine of $20.

(9) The validity of an alteration of the provisions of company's memorandum with respect to the objects or powers of the company shall not be questioned on the ground that it was not authorized by subsection (1), except in proceedings taken for the purpose (whether under this section or otherwise) before the expiration of 30 days after the date of the resolution in that behalf; and, where any such proceedings are taken otherwise than under this section, subsections (7) and (8) shall apply in relation thereto as if they had been taken under this section and as if an order declaring the alteration invalid were an order cancelling it and as if an order dismissing the proceedings were an order confirming the alteration.

(10) In relation to a resolution for altering the provisions of a company's memorandum with respect to the objects of the company passed before 1 January 1984, this section shall have effect as if, in lieu of the proviso to subsection (1) and subsections (2) to (9) thereof, there had been enacted herein the provisions of subsections (2) to (7) of section 7 of the repealed Companies Act.

Division 2 -Articles of Association

Articles prescribing regulations for companies

11. There may, in the case of a company limited by shares, and there shall, in the case of a company limited by guarantee or unlimited, be registered, with the memorandum, articles of association prescribing regulations for the company.

Regulations required in case of unlimited company limited by guarantee

12. (1) In the case of an unlimited company, the articles shall state the number of members with which the company proposes to be registered and, if the company has a share capital, the amount of share capital with which the company proposes to be registered.

(2) In the case of a company limited by guarantee, the articles shall state the number of members with which the company proposes to be registered.

(3) (a) Where an unlimited company or a company limited by guarantee has increased the number of its members beyond the registered number, it shall, within 14 days after the increase was resolved on or took place, give to the registrar notice of the increase, and the registrar shall record the increase.

(b) If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

Adoption and application of Table A

13. (1) Articles of association may adopt all or any of the regulations contained in Table A.

(2) In the case of a company limited by shares and registered on or after 1 January 1984, if articles are not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations contained in Table A, those regulations shall, so far as applicable, be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles.

Printing and signature of articles

14. Articles shall be-

(a) in the English language; and

(b) printed or typewritten; and

(c) divided into paragraphs numbered consecutively; and

(d) dated; and

(e) signed by each subscriber to the memorandum or his agent authorized in writing, in the presence of at least 1 witness who must attest the signature, and must add to his signature his occupation and postal address. Alteration of articles by special resolution

15. (1) Subject to the provisions of this Act and to the conditions contained in its memorandum, a company may by special resolution alter or add to its articles.

(2) Any alteration or addition so made in the articles shall, subject to the provisions of this Act, be as valid as if originally contained therein, and be subject in like manner to alteration by special resolution.

Division 3-Form of Memorandum and Articles

Statutory forms of memorandum and articles

16. The form of-

(a) the memorandum of association of a company limited by shares;

(b) the memorandum and articles of association of a company limited by guarantee and not having a share capital;

(c) the memorandum and articles of association of a company limited by guarantee and having a share capital;

(d) the memorandum and articles of association of an unlimited company having a share capital, shall be, respectively, in accordance with the forms set out in Tables B, C, D and E in the Second Schedule, or as near thereto as circumstances admit.

Division 4-Registration

Registration of memorandum and articles

17. The memorandum and the articles, if any, shall be delivered to the registrar for registration.

Effect of registration

18. (1) On the registration of the memorandum of a company, the registrar shall certify under his hand that the company is incorporated and, in the case of a limited company, that the company is limited.

(2) From the date of incorporation mentioned in the certificate of incorporation, the subscribers to the memorandum, together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable of suing and being sued and of exercising all the functions of an incorporated company, with power to hold land and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.

Conclusiveness of certificate of incorporation

19. (1) A certificate of incorporation given by the registrar in respect of any association shall be conclusive evidence that all the requirements of this Act in respect of registration and of matters of precedent and incidental thereto have been complied with, and that the association is a company authorized to be registered and duly registered under this Act.

(2) A statutory declaration by a barrister and solicitor engaged in the formation of the company, or by a person named in the articles as a director or secretary of the company, of compliance with all or any of the said requirements shall be delivered to the registrar, and the registrar may accept such a declaration as sufficient evidence of compliance.

Registration of unlimited company as limited

20. (1) Subject to the provisions of this section, a company registered as unlimited may register under this Act as limited, or a company already registered as a limited company may re-register under this Act, but the registration of an unlimited company as a limited company shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into, by, to, with, or on behalf of the company before the registration.

(2) On registration in pursuance of this section the registrar shall close the former registration of the company and may dispense with the delivery to him of copies of any documents with copies of which he was furnished on the occasion of the original registration of the company, but, save as aforesaid, the registration shall take place in the same manner and shall have effect as if it were the first registration of the company under this Act.

Division 5-Provisions with Respect to Names of Companies

Reservation of name and prohibition of undesirable name

21. (1) (a) The registrar may, on written application, reserve a name pending registration of a company or a change of name by a company.

(b) Any such reservation shall remain in force for a period of 30 days or such longer period, not exceeding 60 days, as the registrar may, for special reasons, allow and, during such period, no other company shall be entitled to be registered with that name.

(2) No name shall be reserved, and no company shall be registered by a name, which, in the opinion of the registrar, is undesirable:

Provided that-

(a) no company shall be registered by a name which-

(i) is identical with that by which a company is already registered, or so nearly resembles that name as to be calculated to deceive, except where the company in existence is in the course of being dissolved and signifies its consent in such manner as the registrar requires; or

(ii) contains the words "Chamber of Commerce", unless the company is a company which is to be registered under a licence granted in pursuance of section 23 without the addition of the word "Limited" to its name;

(b) except with the consent of the Minister, no company shall be registered by a name which-

(i) contains the words "Royal" or "Imperial" or, in the opinion of the registrar, suggests, or is calculated to suggest, the patronage of Her Majesty or of any member of the Royal Family, or connection with the Government or any department thereof; or

(ii) contains the words "Municipal" or "Chartered" or, in the opinion of the registrar, suggests, or is calculated to suggest, connection with any municipality or other local authority or with any society or body incorporated by Royal Charter; or

(iii) contains the word "Co-operative"; or

(iv) contains the words "Building Society".

Change of name

22. (1) A company may, by special resolution and with the approval of the registrar signified in writing, change its name.

(2) (a) If, through inadvertence or otherwise, a company, on its first registration or on its registration by a new name, is registered by a name which, in the opinion of the registrar, is too like the name by which a company in existence is previously registered, the first-mentioned company may change its name with the sanction of the registrar and, if he so directs within 6 months of its being registered by that name, shall change it within a period of 6 weeks from the date of the direction or such longer period as the registrar may think fit to allow.

(b) If a company makes default in complying with a direction under this subsection, the company and every officer of the company who is in default shall be liable to a fine not exceeding $10 for every day during which the default continues.

(3) Where a company changes its name under this section, it shall, within 14 days, give to the registrar notice thereof and the registrar shall enter the new name on the register in place of the former name, and shall issue to the company a certificate of change of name, and shall notify such change of name in the Gazette.

(4) A change of name by a company under this section shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.

Power to dispense with "Limited" in name of charitable and other companies

23. (1) Where it is proved to the satisfaction of the Minister that an association about to be formed as a limited company is to be formed for promoting commerce, art, science, religion, charity or any other useful object, and intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Minister may, by licence, direct that the association may be registered as a company with limited liability, without the addition of the word "Limited" to its name, and the association may be registered accordingly and shall, on registration; enjoy all the privileges and (subject to the provisions of this section) be subject to all the obligations of limited companies.

(2) Where it is proved to the satisfaction of the Minister-

(a) that the objects of a company registered under this Act as a limited company are restricted to those specified in subsection (1) and to objects incidental or conducive thereto; and

(b) that, by its constitution, the company is required to apply its profits, if any, or other income in promoting its objects and is prohibited from paying any dividend to its members, the Minister may, by licence, authorize the company to make, by special resolution, a change in its name including or consisting of the omission of the word "Limited", and subsections (3) and (4) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section.

(3) A licence by the Minister under this section may be granted on such conditions and subject to such regulations as the Minister thinks fit, and those conditions and regulations shall be binding on the body to which the licence is granted, and (where the grant is under subsection (1)) shall, if the Minister so directs, be inserted in the memorandum and articles, or in 1 of those documents.

(4) An association or company to which a licence is granted under this section shall be excepted from the provisions of this Act relating to the use of the word "Limited" as any part of its name, the publishing of its name and the sending of lists of members to the registrar.

(5) The Minister may, upon the recommendation of the registrar, revoke a licence under this section and, upon revocation, the registrar shall enter in the register the word "Limited" at the end of the name of the association or company to which it was granted, and the association or company shall cease to enjoy the exemptions and privileges or, as the case may be, the exemptions granted by this section:

Provided that, before recommendation is made to the Minister, the registrar shall give to the association or company notice in writing of his intention, and shall afford it an opportunity of being heard in opposition to the revocation.

(6) Where an association or company in respect of which a licence under this section is in force alters the provisions of its memorandum with respect to its objects, the registrar may (unless he sees fit to recommend the revocation of the licence) recommend to the Minister the variation of the licence by making it subject to such conditions and regulations as the Minister may think fit, in lieu of or in addition to the conditions and regulations, if any, to which the licence was formerly subject.

(7) Where a licence granted under this section to an association or company the name of which contains the words "Chamber of Commerce" is revoked, the association or company shall, within a period of 6 weeks from the date of revocation or such longer period as the registrar may think fit to allow, change its name to a name which does not contain those words, and-

(a) the notice to be given under the proviso to subsection (5) to that association or company shall include a statement of the effect of the foregoing provisions of this subsection; and

(b) subsections (3) and (4) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section.

(8) If any association or company makes default in complying with the requirements of subsection (7), the association or company and every officer of the association or company who is in default shall be liable to a fine of not exceeding $100 for every day during which the default continues.

Division 6-General Provisions with Respect to Memorandum and Articles

Effect of memorandum and articles

24. (1) Subject to the provisions of this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by each member, and contained covenants on the part of each member to observe all the provisions of the memorandum and of the articles.

(2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company.

Provision as to memorandum and articles of companies limited by guarantee

25. (1) In the case of a company limited by guarantee and not having a share capital, and registered after 1 February 1914, every provision in the memorandum or articles or any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member shall be void.

(2) For the purpose of the provisions of this Act relating to the memorandum of a company limited by guarantee and of this section, every provision in the memorandum or articles, or in any resolution, of a company limited by guarantee and registered on or after the date aforesaid, purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital, notwithstanding that the nominal amount or number of the shares or interests is not specified thereby.

Alterations in memorandum or articles increasing liability to contribute to share capital not to bind existing members without consent

26. Notwithstanding anything in the memorandum or articles of a company, no member of the company shall be bound by an alteration made in the memorandum or articles after the date on which he became a member, if and so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company:

Provided that this section shall not apply in any case where the member agrees, in writing, either before or after the alteration is made, to be bound thereby.

Power to alter conditions in memorandum which could have been contained in articles

27. (1) Subject to the provisions of sections 26 and 212, any condition contained in a company's memorandum which could lawfully have been contained in articles of association instead of in the memorandum may, subject to the provisions of this section, be altered by the company by special resolution:

Provided that, if an application is made to the court for the alteration to be cancelled, it shall not have effect, except in so far as it is confirmed by the court.

(2) This section shall not apply where the memorandum itself provides for or prohibits the alteration of all or any of the said conditions, and shall not authorize any variation or abrogation of the special rights of any class of members.

(3) Subsections (2), (3), (4), (7) and (8) of section 10 (except paragraph (b) of the said subsection (2)) shall apply in relation to any alteration and to any application made under this section as they apply in relation to alterations and to applications made under that section.

(4) This section shall apply to a company's memorandum whether registered before or after 1 January 1984.

Copies of memorandum and articles to be given to members

28. (1) A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, subject to payment of $2 or such less sum as the company may specify.

(2) If a company makes default in complying with this section, the company and every officer of the company who is in default shall be liable for each offence to a fine not exceeding $20.

Issued copies of memorandum to embody alterations

29. *(1) Where an alteration is made in .the memorandum of a company, every copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration.

(2) If, where any such alteration has been made, the company, at any time after the date of the alteration, issues any copies of the memorandum which are not in accordance with the alteration, it shall be liable to a fine not exceeding $10 for each copy so issued, and every officer of the company who is in default shall be liable to the like penalty.

Division 7-Membership of Company

Definition of member

30. (1) The subscribers to the memorandum of a company shall be deemed to have agreed to become members of the company and, on its registration, shall be entered as members in its register of members.

(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.

Membership of holding company

31. (1) Except in the cases hereafter in this section mentioned, a body corporate cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void.

(2) Nothing in this section shall apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of business, which includes the lending of money.

(3) This section shall not prevent a subsidiary which was, immediately before 1 January 1984, a member of its holding company from continuing to be a member but, subject to subsection (2), the subsidiary shall have no right to vote at meetings of the holding company or any class of members thereof.

(4) Subject to subsection (2), subsections (1) and (3) shall apply in relation to a nominee for a body corporate which is a subsidiary, as if references in the said subsections (1) and (3) to such a body corporate included references to a nominee for it.

(5) In relation to a company limited by guarantee or unlimited which is a holding company, the reference in this section to shares, whether or not the company has a share capital, shall be construed as including a reference to the interest of its members as such, whatever the form of that interest.

Division 8-Private Companies

Meaning of "private company"

32. (1) For the purposes of this Act, "private company" means a company which by its articles-

(a) restricts the right to transfer its shares; and

(b) limits the number of its members to 50, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were, while in that employment and have continued, after the determination of that employment, to be, members of the company; and

(c) prohibits any invitation to the public to subscribe for any shares or debentures of the company.

(2) Where 2 or more persons hold 1 or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member. Consequences of default in complying with conditions constituting a company a private company

Consequences of default in complying with conditions constituting a company a private company

33. Where the articles of a company include the provisions which, under section 32, are required to be included in the articles of a company in order to constitute it a private company, but default is made in complying with any of those provisions, the company shall cease to be entitled to any privilege or exemption conferred on private companies under any of the, provisions of this Act, and thereupon the provisions of this Act shall apply to the company as if it not a private company:

Provided that the court, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that, on other grounds, it is just and equitable to grant relief, may, on the application of the company or any other person interested and on such terms and conditions as seem to the court just and expedient, order that the company be relieved from such consequences as aforesaid.

Statement in lieu of prospectus to be delivered to registrar by company on ceasing to be private company

34. (1) If a company, being a private company, alters its articles in such a manner that they no longer include the provisions which, under section 32, are required to be included in the articles of a company in order to constitute it a private company, the company shall, on and from the date of the alteration, cease to be a private company and shall, within a period of 14 days after the said date, deliver to the registrar for registration a statement in lieu of prospectus in the form and containing the particulars set out in Part I of the Third Schedule and, in the cases mentioned in Part II of that Schedule, setting out the reports specified therein, and the said Parts I and II shall have effect subject to the provisions contained in Part III of that Schedule:

Provided that a statement in lieu of prospectus need not be delivered under this subsection, if, within the said period of 14 days, a prospectus relating to the company, which complies with the Fourth Schedule, is issued and is delivered to the registrar as required by section 45.

(2) Every statement in lieu of prospectus delivered under subsection (1) shall, where the persons making any such report as aforesaid have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 5 of the Third Schedule, have endorsed thereon or attached thereto a written statement signed by those persons setting out the adjustments and giving the reasons therefor.

(3) If default is made in complying with subsection (1) or (2), the company and every officer of the company who is in default shall be liable to a default fine of $100.

(4) Where a statement in lieu of prospectus delivered to the registrar under subsection (1) includes any untrue statement, any person who authorized the delivery of the statement in lieu of prospectus for registration shall be guilty of an offence and liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1,000, or to both such imprisonment and fine, unless he proves either that the untrue statement was immaterial or that he had reasonable ground to believe and did, up to the time of the delivery for registration of the statement in lieu of prospectus, believe that the untrue statement was true.

(5) For the purposes of this section-

(a) a statement included in a statement in lieu of prospectus shall be deemed to be untrue, if it is misleading in the form and context in which it is included; and

(b) a statement shall be deemed to be included in a statement in lieu of prospectus, if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein. Division 9-Reduction of Number of Members Below Legal Minimum

Members severally liable for debts where business carried on with fewer than 7, or in case of private company 2, members

35. If, at any time, the number of members of a company is reduced, in the case of a private company, below 2, or, in the case of any other company, below 7, and it carries on business for more than 6 months while the number is so reduced, every person who is a member of the company during the time that it so carries on business after those 6 months and is cognizant of the fact that it is carrying on business with fewer than 2 members, or 7 members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.

Division 10-Contracts, etc.

Form of contracts

36. (1) Contracts on behalf of a company may be made as follows:

(a) a contract which, if made between private persons, would be, by law, required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied;

(b) a contract which, if made between private persons, would, by law, be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under its authority, express or implied.

(2) A contract made according to this section shall be effectual in law, and shall bind the company and its successors and all other parties thereto.

(3) A contract made according to this section may be varied or discharged in the same manner in which it is authorized by this section to be made.

Bills of exchange and promissory notes

37. A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company, if made, accepted or indorsed in the name of, or by or on behalf of, or on account of, the company by any person acting under its authority, express or implied.

Execution of deeds abroad

38. (1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place not situate in Fiji.

(2) A deed signed by such an attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal.

Power for company to have official seal for use abroad

39. (1) A company whose objects require or comprise the transaction of business outside Fiji may, if authorized by its articles, have for use, in any place outside Fiji, an official seal, which shall be a facsimile of the common seal of the company, with the addition on its face of the name of the place where it is to be used.

(2) A deed or other document to which an official seal is duly affixed shall bind the-company as if it had been sealed with the common seal of the company.

(3) A company having an official seal for use in any place outside Fiji may, by writing under its common seal, authorize any person appointed for the purpose in that place to affix the official seal to any deed or other document to which the company is party in that place.

(4) The authority of any such agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or, if no period is there mentioned, then until notice of the revocation or determination of the agent's authority has been given to the person dealing with him.

(5) The person affixing any such official seal shall, by writing under his hand, certify on the deed or other instrument to which the seal is affixed the date on which and the place at which it is affixed.

Authentication of documents

40. A document or proceeding requiring authentication by a company may be signed by a director, secretary or other authorized officer of the company, and need not be under its common seal.

PART III-SHARE CAPITAL AND DEBENTURES

Division 1-Prospectus

Dating of prospectus

41. A prospectus issued by or on behalf of a company or in relation to an intended company shall be dated, and that date shall, unless the contrary is proved, be taken as the date of publication of the prospectus.

Matters to be stated and reports to be set out in prospectus

42. (1) Every prospectus issued by or on behalf of a company, or by or on behalf of any person who is or has been engaged or interested in the formation of the company, shall state the matters specified in Part I of the Fourth Schedule and set out the reports specified in Part II of that Schedule, and the said Parts I and II shall have effect subject to the provisions contained in Part III of that Schedule.

(2) A condition requiring or binding an applicant for shares in or debentures of a company to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus, shall be void.

(3) It shall not be lawful to issue any form of application for shares in or debentures of a company, unless the form is issued with a prospectus which complies with the requirements of this section:

Provided that this subsection shall not apply, if it is shown that the form of application was issued either-

(i) in connection with a bona fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures; or (ii) in relation to shares or debentures which were not offered to the public.

(4) If any person acts in contravention of the provisions of subsection (3), he shall be liable to a fine not exceeding $1,000.

(5) In the event of non-compliance with or contravention of any of the requirements of this section, a director or other person responsible for the prospectus shall not incur any liability by reason of the non-compliance or contravention, if-

(a) as regards any matter not disclosed, he proves that he was not cognizant thereof; or

(b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part; or

(c) the non-compliance or contravention was in respect of matters which, in the opinion of the court dealing with the case, were immaterial or was otherwise such as ought, in the opinion of that court, having regard to all the circumstances of the case, reasonably to be excused:

Provided that, in the event of failure to include in a prospectus a statement with respect to the matters specified in paragraph 16 of the Fourth Schedule, no director or other person shall incur any liability in respect of the failure, unless it be proved that he had knowledge of the matters not disclosed.

(6) This section shall not apply-

(a) to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favor of other persons; or

(b) to the issue of a prospectus or form of application relating to shares or debentures which are or are to be, in all respects, uniform with shares or debentures previously issued, but, subject as aforesaid, this section shall apply to a prospectus or a form of application, whether issued on or with reference to the formation of a company or subsequently.

Provisions of section 42 not to limit any other liability

43. Nothing in section 42 shall limit or diminish any liability which any person may incur under the general law or this Act apart from that section.

Expert's consent to issue of prospectus containing statement by him

44. (1) A prospectus inviting persons to subscribe for shares in or debentures of a company and including a statement purporting to be made by an expert shall not be issued, unless-

(a) he has given and has not, before delivery of a copy of the prospectus for registration, withdrawn his written consent to the issue thereof with the statement included in the form and context in which it is included; and

(b) a statement that he has given and has not withdrawn his consent as aforesaid appears in the prospectus.

(2) If any prospectus is issued in contravention of this section, the company and every person who is knowingly a party to the issue thereof shall be liable to a fine not exceeding $1,000.

(3) In this section, "expert" includes engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him.

Registration of prospectus

45. (1) No prospectus shall be issued by or on behalf of a company or in relation to an intended company unless, on or before the date of its publication, there has been delivered to the registrar for registration a copy thereof signed by every person who is named therein as a director or proposed director of the company, or by his agent authorized in writing, and having endorsed thereon or attached thereto-

(a) any consent to the issue of the prospectus required by section 44 from any person as an expert; and

(b) in the case of a prospectus issued generally, also-

(i) a copy of any contract required by paragraph 14 of the Fourth Schedule to be stated in the prospectus, or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof; and

(ii) where the persons making any report required by Part II of that Schedule have made therein, or have, without giving the reasons, indicated therein, any such adjustments as are mentioned in paragraph 29 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor.

(2) The references in sub-paragraph (i) of paragraph (b) of subsection (1) to the copy of a contract required thereby to be endorsed on or attached to a copy of the prospectus shall, in the case of a contract wholly or partly in a language other than English, be taken as references to a copy of a translation of the contract in English, or a copy embodying a translation in English, of the parts in a language other than English, as the case may be, being a translation certified in the prescribed manner to be a correct translation.

(3) Every prospectus shall, on the face of it-

(a) state that a copy has been delivered for registration as required by this section; and

(b) specify, or refer to statements included in the prospectus which specify, any documents required by this section to be endorsed on or attached to the copy so delivered.

(4) The registrar shall not register a prospectus, unless it is dated and the copy thereof signed in manner required by this section and unless it has endorsed thereon or attached thereto the documents (if any) specified as aforesaid.

(5) If a prospectus is issued without a copy thereof being delivered under this section to the registrar or without the copy so delivered having endorsed thereon or attached thereto the required documents, the company, and every person who is knowingly a party to the issue of the prospectus, shall be liable to a fine not exceeding $10 for every day from the date of the issue of the prospectus until a copy thereof is so delivered with the required documents endorsed thereon or attached thereto.

Restriction on alteration of terms mentioned in prospectus or statement in lieu of prospectus

46. (1) A company limited by shares or a company limited by guarantee and having a share capital shall not, previously to the statutory meeting, vary the terms of a contract referred to in the prospectus, or statement in lieu of prospectus, except subject to the approval of the statutory meeting.

(2) This section shall not apply to a private company.

Civil liability for mis-statements in prospectus

47. (1) Subject to the provisions of this section, where a prospectus invites persons to subscribe for shares in or debentures of a company, the following persons shall be liable to pay compensation to all persons who subscribe for any shares or debentures on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement included therein, that is to say:-

(a) every person who is a director of the company at the time of the issue of the prospectus;

(b) every person who has authorized himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time;

(c) every person being a promoter of the company; and

(d) every person who has authorized the issue of the prospectus:

Provided that, where, under section 44, the consent of a person is required to the issue of a prospectus and he has given that consent, he shall not, by reason of his having given it, be liable under this subsection as a person who has authorized the issue of the prospectus, except in respect of an untrue statement purporting to be made by him as an expert.

(2) No person shall be liable under subsection (1), if he proves-

(a) that, having consented to become a director of the company, he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or

(b) that the prospectus was issued without his knowledge or consent, and that, on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or

(c) that, after the issue of the prospectus and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto and gave reasonable public notice of the withdrawal and of the reason therefor; or

(d) that-

(i) as regards every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, he had reasonable ground to believe, and did, up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true; and

(ii) as regards every untrue statement purporting to be a statement by an expert or contained in what purports to be a copy of or extract from a report or valuation of an expert, if fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation, and he had reasonable ground to believe, and did, up to the time of the issue of the prospectus, believe, that the person making the statement was competent to make it and that person had given the consent required by section 44 to the issue of the prospectus and had not withdrawn that consent before delivery of a copy of the prospectus for registration or, to the defendant's knowledge, before allotment there under; and

(iii) as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document:

Provided that this subsection shall not apply in the case of a person liable by reason of his having given a consent required of him by section 44 as a person who has authorized the issue of the prospectus in respect of an untrue statement purporting to be made by him as an expert.

(3) A person who, apart from this subsection would, under subsection (1), be liable, by reason of his having given a consent required of him by section 44, as a person who has authorized the issue of a prospectus in respect of an untrue statement purporting to be made by him as an expert shall not be so liable if he proves-

(a) that, having given his consent under section 44 to the issue of the prospectus, he withdrew it, in writing, before delivery of a copy of the prospectus for registration; or

(b) that, after delivery of a copy of the prospectus for registration and before allotment thereunder, he, on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal, and of the reason therefor; or

(c) that he was competent to make the statement and that he had reasonable ground to believe, and did, up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true.

(4) Where-

(a) the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorized or consented to the issue thereof; or

(b) the consent of a person is required under section 44 to the issue of the prospectus and he either has not given that consent or has withdrawn it before the issue of the prospectus, the directors of the company, except any without whose knowledge or consent the prospectus was issued, and any other person who authorized the issue thereof shall be liable to indemnify the person named as aforesaid or whose consent was required as aforesaid, as the case may be against all damages, costs and expenses to which he may be made liable by reason of his name having been inserted in the prospectus or of the inclusion therein of a statement purporting to be made by him as an expert, as the case may be, or in defending himself against any action or legal proceeding brought against him in respect thereof:

Provided that a person shall not be deemed, for the purposes of this subsection, to have authorized the issue of a prospectus by reason only of his having given the consent required by section 44 to the inclusion therein of a statement purporting to be made by him as an expert.

(5) For the purposes of this section-

(a) "promoter" means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company; and

(b) "expert" has the same meaning as in section 44.

Criminal liability for mis-statements in prospectus

48. (1) Where a prospectus issued on or after 1 January 1984 includes any untrue statement, any person who authorized the issue of the prospectus shall be guilty of an offence and liable to imprisonment for a term not exceeding 2 years, or to a fine not exceeding $1,000, or to both such imprisonment and fine, unless he proves either that the statement was immaterial or that he had reasonable grounds to believe, and did, up to the time of the issue of the prospectus, believe, that the statement was true.

(2) A person shall not be deemed, for the purpose of this section, to have authorized the issue of a prospectus by reason only of his having given the consent required by section 44 to the inclusion therein of a statement purporting to be made by him as an expert.

Document containing offer of shares or debentures for sale to be deemed prospectus

49. (1) Where a company allots or agrees to allot any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public, any document by which the offer for sale to the public is made shall, for all purposes, be deemed to be a prospectus issued by the company, and any written law as to the contents of prospectuses and to liability in respect of statements in and omissions from prospectuses, or otherwise relating to prospectuses, shall apply and have effect accordingly, as if the shares or debentures had been offered to the public for subscription and as if persons accepting the offer in respect of any shares or debentures were subscribers for those shares or debentures, but without prejudice to the liability, if any, of the persons by whom the offer is made, in respect of mis-statements contained in the document or otherwise in respect thereof.

(2) For the purposes of this Act, it shall, unless the contrary is proved, be evidence that an allotment of, or any agreement to allot, shares or debentures was made with a view to the shares or debentures being offered for sale to the public, if it is shown-

(a) that an offer of the shares or debentures or of any of them for sale to the public was made within 6 months after the allotment or agreement to allot; or

(b) that, at the date when the offer was made, the whole consideration to be received by the company in respect of the shares or debentures had not been so received.

(3) Section 42 as applied by this section shall have effect as, if it required a prospectus to state, in addition to the matters required by that section to be stated in a prospectus-

(a) the net amount of the consideration received or to be received by the company in respect of the shares or debentures to which the offer relates; and

(b) the place and time at which the contract under which the said shares or debentures have been or are to be allotted may be inspected, and section 45 as applied by this section shall have effect as though the persons making the offer were persons named in a prospectus as directors of a company.

(4) Where a person making an offer to which this section relates is a company or a firm, it shall be sufficient if the document aforesaid is signed on behalf of the company or firm by 2 directors of the company or not less than half of the partners, as the case may be, and any such director or partner may sign by his agent authorized in writing.

Interpretation of provisions relating to prospectuses

50. For the purpose of the foregoing provisions of this Part-

(a) a statement included in a prospectus shall be deemed to be untrue, if it is misleading in the form and context in which it is included; and

(b) a statement shall be deemed to be included in a prospectus, if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith. Division 2-Allotment

Prohibition of allotment unless minimum subscription received

51. (1) (a) No allotment shall be made of any share capital of a company offered to the public for subscription, unless the amount stated in the prospectus as the minimum amount which, in the opinion of the directors, must be raised by the issue of share capital in order to provide for the matters specified in paragraph 4 of the Fourth Schedule has been subscribed, and the sum payable on application for the amount so stated has been paid to and received by the company.

(b) For the purposes of this subsection, a sum shall be deemed to have been paid to and received by the company, if a cheque for that sum has been received in good faith by the company and the directors of the company have no reason for suspecting that the cheque will not be paid.

(2) The amount so stated in the prospectus shall be reckoned exclusively of any amount payable otherwise than in cash and is, in this Act, referred to as the "minimum subscription".

(3) The amount payable on application on each share shall not be less than 5 per cent of the nominal amount of the share.

(4) If the conditions aforesaid have not been complied with on the expiration of 60 days after the first issue of the prospectus, all money received from applicants for shares shall be forthwith repaid to them without interest, and, if any such money is not so repaid within 75 days after the issue of the prospectus, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of 5 per cent per annum from the expiration of the seventy fifth day:

Provided that a director shall not be liable, if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.

(5) Any condition requiring or binding any applicant for shares to waive compliance with any requirement of this section shall be void.

(6) This section, except subsection (3), shall not apply to any allotment of shares subsequent to the first allotment of shares offered to the public for subscription.

Prohibition of allotment in certain cases unless statement in lieu of prospectus delivered to Registrar

52. (1) A company having a share capital which does not issue a prospectus on or with reference to its formation, or which has issued such a prospectus but has not proceeded to allot any of the shares offered to the public for subscription, shall not allot any of its shares or debentures, unless, at least 3 days before the first allotment of either shares or debentures, there has been delivered to the registrar for registration a statement in lieu of prospectus signed by every person who is named therein as a director or a proposed director of the company or by his agent authorized in writing, in the form and containing the particulars set out in Part I of the Fifth Schedule and, in the case mentioned in Part II of that Schedule, setting out the reports specified therein, and the said Parts I and II shall have effect subject to the provisions contained in Part III of that Schedule.

(2) Every statement in lieu of prospectus delivered under subsection (1) shall, where the persons making any such report as aforesaid have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 5 of the Fifth Schedule, have endorsed thereon or attached thereto a written statement signed by those persons setting out the adjustments and giving the reasons therefor.

(3) This section shall not apply to a private company.

(4) If a company acts in contravention of subsection (1) or subsection (2), the company and every director of the company who knowingly and willfully authorizes or permits the contravention shall be liable to a fine not exceeding $200.

(5) Where a statement in lieu of prospectus delivered to the registrar under subsection (1) includes any untrue statement, any person who authorized the delivery of the statement in lieu of prospectus for registration shall be guilty of an offence and liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1,000, or to both such imprisonment and fine, unless he proves either that the untrue statement was immaterial or that he had reasonable grounds to believe, and did, up to the time of the delivery for registration of the statement in lieu of prospectus, believe, that the untrue statement was true.

(6) For the purposes of this section-

(a) a statement included in a statement in lieu of prospectus shall be deemed to be untrue, if it is misleading in the form and context in which it is included; and

(b) a statement shall be deemed to be included in a statement in lieu of prospectus, if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein.

Effect of irregular allotment

53. (1) An allotment made by a company to an applicant in contravention of the provisions of section 51 or section 52 shall be voidable at the instance of the applicant within 1 month after the holding of the statutory meeting of the company and not later, or, in any case where the company is not required to hold a statutory meeting, or where the allotment is made after the holding of the statutory meeting, within 1 month after the date of the allotment, and not later, and shall be so voidable, notwithstanding that the company is in course of being wound up.

(2) If any director of a company knowingly contravenes, or permits or authorizes the contravention of, any of the provisions of the said sections with respect to allotment, he shall be liable to compensate the company and the allottee respectively for any loss, damages or costs which the company or the allottee may have sustained or incurred thereby:

Provided that proceedings to recover any such loss, damages or costs shall not be commenced after the expiration of 2 years from the date of the allotment.

Applications for, and allotment of, shares and debentures

54. (1) (a) No allotment shall be made of any shares in or debentures of a company in pursuance of a prospectus issued generally and no proceedings shall be taken on applications made in pursuance of a prospectus so issued, until the beginning of the third day after that on which the prospectus is first so issued, or such later time (if any) as may be specified in the prospectus.

(b) The beginning of the said third day or such later time as aforesaid is hereafter in this Act referred to as the "time of the opening of the subscription lists".

(2) In subsection (1), the reference to the day on which the prospectus is first issued generally shall be construed as referring to the day on which it is first so issued as a newspaper advertisement:

Provided that, if it is not so issued as a newspaper advertisement before the third day after that on which is it first so issued in any other manner, the said reference shall be construed as referring to the day on which it is first so issued in any manner.

(3) The validity of an allotment shall not be affected by any contravention of the foregoing provisions of this section but, in the event of any such contravention, the company and every officer of the company who is in default shall be liable to a fine not exceeding $1,000.

(4) In the application of this section to a prospectus offering shares or debentures for sale, subsections (1), (2) and (3) shall have effect with the substitution of references to sale for references to allotment, and with the substitution for the reference to the company and every officer of the company who is in default of a reference to any person by or through whom the offer is made and who knowingly and willfully authorizes or per the contravention.

(5) An application for shares in or debentures of a company which is made in pursuance of a prospectus issued generally shall not be revocable until after the expiration of the third day after the time of the opening of the subscription lists, or the giving, before the expiration of the said third day, by some person responsible under section 47 for the prospectus, of a public notice having the effect under that section of excluding or limiting the responsibility of the person giving it.

(6) In reckoning, for the purposes of this section and of section 55, the third day after another day, any intervening day which is a Saturday or Sunday or which is a public holiday shall be disregarded, and, if the third day (as so reckoned) is itself a Saturday or Sunday or such a public holiday, there shall, for the said purposes, be substituted the first day thereafter which is none of them.

Allotment of shares and debentures to be dealt in on stock exchange

55. (1) Where a prospectus, whether issued generally or not, states that application has been or will be made for permission for the shares or debentures offered thereby to be dealt in on any stock exchange, any allotment made on an application in pursuance of the prospectus shall, whenever made, be void, if the permission has not been applied for before the third day after the first issue of the prospectus, or if the permission has been refused before the expiration of 3 weeks from the date of the closing of the subscription lists or such longer period not exceeding 6 weeks as may, within the said 3 weeks, be notified to the applicant for permission by or on behalf of the stock exchange.

(2) Where the permission has not been applied for as aforesaid, or has been refused as aforesaid, the company shall forthwith repay without interest all money received from applicants in pursuance of the prospectus, and, if any such money is not repaid within 8 days after the company becomes liable to repay it, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of 5 per cent per annum from the expiration of the eighth day:

Provided that a director shall not be liable, if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.

(3) All money received as aforesaid shall be kept in a separate bank account so long as the company may become liable to repay it under subsection (2); and, if default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine not exceeding $1,000.

(4) Any condition requiring or binding any applicant for shares or debentures to waive compliance with any requirement of this section shall be void.

(5) For the purposes of this section, permission shall not be deemed to be refused, if it is intimated that the application for it, though not at present granted, will be given further consideration.

(6) This section shall have effect-

(a) in relation to any shares or debentures agreed to be taken by a person underwriting an offer thereof by a prospectus, as if he had applied therefor in pursuance of the prospectus; and

(b) in relation to a prospectus offering shares for sale, with the following modifications, that is to say:-

(i) references to sale shall be substituted for references to allotment;

(ii) the persons by whom the offer is made, and not the company, shall be liable under subsection (2) to repay money received from applicants, and references to the company's liability under that subsection shall be construed accordingly; and

(iii) for the reference in subsection (3) to the company and every officer of the company who is in default there shall be substituted a reference to any person by or through whom the offer is made and who knowingly and willfully authorizes or permits the default.

Return as to allotments

56. (1) Whenever a company limited by shares or a company limited by guarantee and having a share capital makes any allotment of its shares, the company shall, within 60 days thereafter, deliver to the registrar for registration-

(a) a return of the allotments, stating the number and nominal amount of the shares comprised in the allotment, the names, addresses and descriptions of the allottees, and the amount, if any, paid or due and payable on each share; and

(b) in the case of shares allotted as fully or partly paid up otherwise than in cash, a contract in writing constituting the title of the allottee to the allotment, together with any contract of sale, or for services or other consideration in respect of which that allotment was made, such contracts being duly stamped, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted.

(2) Where such a contract as above-mentioned is not reduced to writing, the company shall, within 60 days after the allotment, deliver to the registrar for registration the prescribed particulars of the contract stamped with the same stamp duty as would have been payable if the contract had been reduced to writing, and those particulars shall be deemed to be an instrument within the meaning of the Stamp Duties Act. (Cap. 205)

(3) If default is made in complying with this section, every officer of the company who is in default shall be liable to a fine not exceeding $10 for every day during which the default continues.

Division 3-Commissions and Discounts, etc.

Power to pay certain commissions, and prohibition of payment of all other commissions, discounts, etc.

57. (1) It shall be lawful for a company to pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, if-

(a) the payment of the commission is authorized by the articles; and

(b) the commission paid or agreed to be paid does not exceed 10 per cent of the price at which the shares are issued or the amount or rate authorized by the articles, whichever is the less; and

(c) the amount or rate per cent of the commission paid or agreed to be paid is-

(i) in the case of shares offered to the public for subscription, disclosed in the prospectus; or

(ii) in the case of shares not offered to the public for subscription, disclosed in the statement in lieu of prospectus, or in a statement in the prescribed form signed in like manner as a statement in lieu of prospectus and delivered, before the payment of the commission, to the registrar for registration, and, where a circular or notice, not being a prospectus, inviting subscription for the shares is issued, also disclosed in that circular or notice; and

(d) the number of shares which persons have agreed for a commission to subscribe absolutely is disclosed in manner aforesaid.

(2) Save as aforesaid, no company shall apply any of its shares or capital money either directly or indirectly in payment of any commission, discount or allowance, to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, whether the shares or money be so applied by being added to the purchase money of any property acquired by the company or to the contract price of any work to be executed for the company, or the money be paid out of the nominal purchase money or contract price, or otherwise.

(3) Nothing in this section shall affect the power of any company to pay such brokerage as it has heretofore been lawful fox a company to pay.

(4) A vendor to, or promoter of, or other person who receives payment in money or shares from, a company shall have, and shall be deemed always to have had, power to apply any part of the money or shares so received in payment of any commission, the payment of which, if made directly by the company, would have been legal under this section.

(5) If default is made in complying with the provisions of this section relating to the delivery to the registrar of the statement in the prescribed form, the company and every officer of the company who is in default shall be liable to a fine not exceeding $50.

Prohibition of provision of financial assistance by company for purchase of or subscription for its own or its holding company's shares

58. (1) Subject as provided in this section, it shall not be lawful for a company to give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the company, or, where the company is a subsidiary company, in its holding company:

Provided that nothing in this section shall be taken to prohibit-

(i) where the lending of money is part of the ordinary business of a company, the lending of money by the company in the ordinary course of its business;

(ii) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase of, or subscription for, fully-paid shares in the company or its holding company, being a purchase or subscription by trustees of or for shares to be held by or for the benefit of employees of the company, including any director holding a salaried employment or office in the company;

(iii) the making by a company of loans to persons, other than directors, bona fide in the employment of the company with a view to enabling those persons to purchase or subscribe for fully-paid shares in the company or its holding company to be held by themselves by way of beneficial ownership;

(iv) the making by a private company of a loan to a shareholder or director with a view to enabling him to purchase shares in the company held by an existing shareholder or by a person entitled thereto by reason of the death or bankruptcy of a shareholder.

(2) If a company acts in contravention of this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding $2,000.

Division 4-Construction of References to Offering Shares or Debentures to the Public

Construction of references to offering shares or debentures to the public

59. (1) Any reference in this Act to offering shares or debentures to the public shall, subject to any provision to the contrary contained therein, be construed as including a reference to offering them to any section of the public, whether selected as members or debenture holders of the company concerned or as clients of the person issuing the prospectus or in any other manner, and references in this Act or in a company's articles to invitations to the public to subscribe for shares or debentures shall, subject as aforesaid, be similarly construed.

(2) Subsection (1) shall not be taken as requiring any offer or invitation to be treated as made to the public, if it can properly be regarded, in all the circumstances, as not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer or invitation, or otherwise as being a domestic concern of the persons making and receiving it, and, in particular-

(a) a provision in a company's articles prohibiting invitations to the public to subscribe for shares or debentures shall not be taken as prohibiting the making to members or debenture holders of an invitation which can properly be regarded as aforesaid; and

(b) the provisions of this Act relating to private companies shall be construed accordingly. Division 5-Issue of Shares at Premium and Discount and Redeemable Preference Shares

Application of premiums received on issue of shares

60. (1) Where a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called the "share premium account" and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid-up share capital of the company.

(2) The share premium account may, notwithstanding anything in subsection (1), be applied by the company in paying up unissued shares of the company to be issued to members of the company as fully-paid bonus shares, in writing off-

(a) the preliminary expenses of the company; or

(b) the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company, or in providing for the premium payable on redemption of any redeemable preference shares or of any debentures of the company.

(3) Where a company has, before 1 January 1984, issued any shares at a premium, this section shall apply as if the shares had been issued on or after that date:

Provided that any part of the premiums which has been so applied that it does not, at that date, form an identifiable part of the company's reserves within the meaning of the Seventh Schedule shall be disregarded in determining the sum to be included in the share premium account.

Powers to issue shares at a discount

61. (1) Subject as provided in this section, it shall be lawful for a company to issue at a discount shares in the company of a class already issued:

Provided that-

(i) the issue of the shares at a discount shall be authorized by resolution passed in general meeting of the company, and shall be sanctioned by the court; and

(ii) the resolution shall specify the maximum rate of discount at which the shares are to be issued; and

(iii) not less than 1 year shall, at the date of the issue, have elapsed since the date on which the company was entitled to commence business; and

(iv) the shares to be issued at a discount shall be issued within 1 month after the date on which the issue is sanctioned by the court or within such extended time as the court may allow.

(2) Where a company has passed a resolution authorizing the issue of shares at a discount, it may apply to the court for an order sanctioning the issue, and, on any such application, the court, if, having regard to all the circumstances of the case, it thinks proper so to do, may make an order sanctioning the issue on such terms and conditions as it thinks fit.

(3) (a) Every prospectus relating to the issue of the shares must contain particulars of the discount allowed on the issue of the shares or of so much of that discount as has not been written off at the date of the issue of the prospectus.

(b) If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

Power to issue redeemable preference shares

62. (1) Subject to the provisions of this section, a company limited by shares may, if so authorized by its articles, issue preference shares which are, or at the option of the company are to be liable, to be redeemed:

Provided that-

(i) no such shares shall be redeemed, except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;

(ii) no such shares shall be redeemed, unless they are fully paid;

(iii) the premium, if any, payable on redemption, must have been provided for out of the profits of the company or out of the company's share premium account before the shares are redeemed;

(iv) where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall, out of profits which would otherwise have been available for dividend, be transferred to a reserve fund, to be called the "capital redemption reserve fund", a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid-up share capital of the company.

(2) Subject to the provisions of this section, the redemption of preference shares there under may be effected on such terms and in such manner as may be provided by the articles of the company.

(3) The redemption of preference shares under this section by a company shall not be taken as reducing the amount of the company's authorized share capital.

(4) Where, in pursuance of this section, a company has redeemed or is about to redeem any preference shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued, and accordingly the share capital of the company shall not, for the purpose of any enactments relating to stamp duty, be deemed to be increased by the issue of shares in pursuance of this subsection:

Provided that, where new shares are issued before the redemption of the old shares, the new shares shall not, so far as relates to stamp duty, be deemed to have been issued in pursuance of this subsection, unless the old shares are redeemed within 1 month after the issue of the new shares.

(5) The capital redemption reserve fund may, notwithstanding anything in this section, be applied by the company in paying up unissued shares of the company to be issued to members of the company as fully paid bonus shares.

Division 6-Miscellaneous Provisions as to Share Capital

Power of company to arrange for different amounts being paid on shares

63. A company, if so authorized by its articles, may do any 1 or more of the following things:-

(a) make arrangements, on the issue of shares, for a difference between the shareholders in the amounts and times of payment of calls on their shares;

(b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up;

(c) pay dividend in proportion to the amount paid up on each share, where a larger amount is paid up on some shares than on others.

Reserve liability of limited company

64. A limited company may, by special resolution, determine that any portion of its share capital which has not been already called up shall not be capable of being called up, except in the event and for the purposes of the company being wound up, and thereupon that portion of its share capital shall not be capable of being called up, except in the event and for the purposes aforesaid.

Power of company limited by shares to alter its share capital

65. (1) A company limited by shares or a company limited by guarantee and having a share capital, if so authorized by its articles, may alter the conditions of its memorandum as follows, that is to say, it may-

(a) increase its share capital by new shares of such amount as it thinks expedient;

(b) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;

(c) convert all or any of its paid-up shares into stock, and reconvert that stock into paid-up shares of any denomination;

(d) subdivide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;

(e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.

(2) The powers conferred by this section shall be exercised by the company in general meeting.

(3) A cancellation of shares in pursuance of this section shall not be deemed to be a reduction of share capital within the meaning of this Act.

Notice to registrar of consolidation of share capital, conversion of shares into stock, etc.

66. (1) If a company having a share capital has-

(a) consolidated and divided its share capital into shares of larger amount than its existing shares; or

(b) converted any shares into stock; or

(c) reconverted stock into shares; or

(d) subdivided its shares or any of them; or

(e) redeemed any redeemable preference shares; or

(f) cancelled any shares, otherwise than in connection with a reduction of share capital under section 70, it shall, within 30 days after so doing, give notice thereof to the registrar specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock reconverted.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

Notice of increase of share capital

67. (1) Where a company having a share capital, whether its shares have or have not been converted into stock, has increased its share capital beyond the registered capital, it shall, within 30 days after the passing of the resolution authorizing the increase, give to the registrar notice of the increase, and the registrar shall record the increase.

(2) The notice to be given as aforesaid shall include such particulars as may be prescribed with respect to the classes of shares affected and the conditions subject to which the new shares have been or are to be issued, and there shall be forwarded to the registrar, together with the notice, a printed copy of the resolution authorizing the increase.

(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

Power of unlimited company to provide for reserve share capital on re-registration

68. An unlimited company having a share capital may, by its resolution for registration as a limited company in pursuance of this Act, do either or both of the following things, namely-

(a) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up, except in the event and for the purposes of the company being wound up;

(b) provide that a specified portion of its uncalled share capital shall not be capable of being called up, except in the event and for the purposes of the company being wound up. Power of company to pay interest out of capital in certain cases

69. Where any shares of a company are issued for the purpose of raising money to defray the expenses of the construction of any works or buildings or the provision of any plant which cannot be made profitable for a lengthened period, the company may pay interest on so much of that share capital as is, for the time being, paid up for the period and subject to the conditions and restrictions in this section mentioned, and may charge the sum so paid by way of interest to capital, as part of the cost of construction of the work or building, or the provision of plant:

Provided that-

(i) no such payment shall be made, unless it is authorized by the articles or by special resolution;

(ii) no such payment, whether authorized by the articles or by special resolution, shall be made without the previous sanction of the registrar;

(iii) before sanctioning any such payment, the registrar may, at the expense of the company, appoint a person to inquire and report to him as to the circumstances of the case, and may, before making the appointment, require the company to give security for the payment of the costs of the inquiry;

(iv) the payment shall be made only for such period as may be determined by the registrar, and that period shall, in no case, extend beyond the close of the half year next after the half-year during which the works or buildings have been actually completed or the plant provided;

(v) the rate of interest shall, in no case, exceed 5 per cent per annum or such other rate as the Minister may, for the time being, by notice in the Gazette, prescribe;

(vi) the payment of the interest shall not operate as a reduction of the amount paid up on the shares in respect of which it is paid.

Division 7-Reduction of Share Capital

Special resolution for reduction of share capital

70. (1) Subject to confirmation by the court, a company limited by shares or a company limited by guarantee and having a share capital may, if so authorized by its articles, by special resolution, reduce its share capital in any way and, in particular, without prejudice to the generality of the foregoing power, may-

(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or

(b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid-up share capital which is lost or unrepresented by available assets; or

(c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid-up share capital which is in excess of the wants of the company, and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.

(2) A special resolution under this section is in this Act referred to as a "resolution for reducing share capital".

Application to court for confirming order, objections by creditors, and settlement of list of objecting creditors

71. (1) Where a company has passed a resolution for reducing share capital, it shall apply by petition to the court for an order confirming the reduction.

(2) Where the proposed reduction of share capital involves either diminution of liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital, and, in any other case, if the court so directs, the following provisions shall have effect, subject nevertheless to subsection (3):-

(a) every creditor of the company who, at the date fixed by the court, is entitled to any debt or claim which, if that date were the commencement of the winding-up of the company, would be admissible in proof against the company, shall be entitled to object to the reduction;

(b) the court shall settle a list of creditors so entitled to object and, for that purpose, shall ascertain, as far as possible without requiring an application from any creditor, the names of those creditors and the nature and amount of their debts or claims, and may publish notices fixing a day or days within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the reduction;

(c) where a creditor entered on the list whose debt or claim is not discharged or has not determined does not consent to the reduction, the court may, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his debt or claim by appropriating, as the court may direct, the following amount- (i) if the company admits the full amount of the debt or claim, or, though not admitting it, is willing to provide for it, then the full amount of the debt or claim; (ii) if the company does not admit and is not willing to provide for the full amount of the debt or claim, or if the amount is contingent or not ascertained, then an amount fixed by the court after the like inquiry and adjudication as if the company were being wound up by the court.

(3) Where a proposed reduction of share capital involves either the diminution of any liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital, the court may, if, having regard to any special circumstances of the case, it thinks proper so to do, direct that subsection (2) shall not apply as regards any class or classes of creditors.

Order confirming reduction and powers of court on making such order

72. (1) The court, if satisfied, with respect to every creditor of the company who under section 71 is entitled to object to the reduction, that either his consent to the reduction has been obtained or his debt or claim has been discharged or has determined, or has been secured, may make an order confirming the reduction on such terms and conditions as it thinks fit.

(2) Where the court makes any such order, it may-

(a) if, for any special reason, it thinks proper so to do, make an order directing that the company shall, during such period, commencing on or at any time after the date of the order, as is specified in the order, add to its name as the last words thereof the words "and reduced"; and

(b) make an order requiring the company to publish, as the court directs, the reason for reduction or such other information in regard thereto as the court may think expedient with a view to giving proper information to the public, and, if the court thinks fit, the causes which led to the reduction.

(3) Where a company is ordered to add to its name the words "and reduced", those words shall, until the expiration of the period specified in the order, be deemed to be part of the name of the company.

Registration of order and minute of reduction

73. (1) The registrar, on production to him of an order of the court confirming the reduction of the share capital of a company, and the delivery to him of a copy of the order and of a minute approved by the court, showing, with respect to the share capital of the company, as altered by the order, the amount of the share capital, the number of shares into which it is to be divided, the amount of each share, and the amount, if any, at the date of the registration deemed to be paid up on each share, shall register the order and minute.

(2) On the registration of the order and minute, and not before, the resolution for reducing share capital as confirmed by the order so registered shall take effect.

(3) Notice of the registration shall be published in such manner as the court may direct.

(4) The registrar shall certify under his hand the registration of the order and minute, and his certificate shall be conclusive evidence that all the requirements of this Act with respect to reduction of share capital have been complied with, and that the share capital of the company is such as is stated in the minute.

(5) The minute, when registered, shall be deemed to be substituted for the corresponding part of the memorandum, and shall be valid and may be altered as if it had been originally contained therein.

(6) The substitution of any such minute as aforesaid for part of the memorandum of the company shall be deemed to be an alteration of the memorandum within the meaning of section 29.

Liability of members in respect of reduced shares

74. (1) In the case of a reduction of share capital, a member of the company, past or present, shall not be liable, in respect of any share, to any call or contribution exceeding in amount the difference, if any, between the amount of the share as fixed by the minute and the amount paid, or the reduced amount, if any, which is to be deemed to have been paid, on the share, as the case may be:

Provided that, if any creditor, entitled in respect of any debt or claim to object to the reduction of share capital, is, by reason of his ignorance of the proceedings for reduction, or of their nature and effect with respect to his claim, not entered on the list of creditors, and, after the reduction, the company is unable, within the meaning of the provisions of this Act with respect to winding-up by the court, to pay the amount of his debt or claim, then-

(i) every person who was a member of the company at the date of the registration of the order for reduction and minute shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he would have been liable to contribute if the company had commenced to be wound up on the day before the said date; and

(ii) if the company is wound up, the court, on the application of any such creditor and proof of his ignorance as aforesaid, may, if it thinks fit, settle accordingly a list of persons so liable to contribute, and make and enforce calls and orders on the contributories settled on the list, as if they were ordinary contributories in a winding-up.

(2) Nothing in this section shall affect the rights of the contributories among themselves.

Penalty for concealing name of creditor, etc.

75. In any officer of the company-

(a) willfully conceals the name of any creditor entitled to object to the reduction; or

(b) willfully misrepresents the nature or amount of the debt or claim of any creditor; or

(c) aids, abets or is privy to any such concealment or misrepresentation as aforesaid, he shall be liable to imprisonment for a term not exceeding 1 year or to a fine not exceeding $200, or to both such imprisonment and fine. Division 8-Variation of Shareholders' Rights

Rights of holders of special classes of shares

76. (1) If, in the case of a company the share capital of which is divided into different classes of shares, provision is made by the memorandum or articles for authorizing the variation of the rights attached to any class of shares in the company, subject to the consent of any specified proportion of the holders of the issued shares of that class or the sanction of a resolution passed at a separate meeting of the holders of those shares, and, in pursuance of the said provision, the rights attached to any such class of shares are at any time varied, the holders of not less in the aggregate than 15 per cent of the issued shares of that class, being persons who did not consent to or vote in favor of the resolution for the variation, may apply to the court to have the variation cancelled, and, where any such application is made, the variation shall not have effect unless and until it is confirmed by the court.

(2) An application under this section shall be made by petition within 30 days after the date on which the consent was given or the resolution was passed, as the case may be, and may be made on behalf of the shareholders entitled to make the application by such 1 or more of their number as they may appoint, in writing, for the purpose.

(3) On any such application, the court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in the application, may, if it is satisfied, having regard to all the circumstances of the case, that the variation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation, and shall, if not so satisfied, confirmed the variation.

(4) The decision of the court on any such application shall be final.

(5) The company shall, within 30 days after the making of an order by the court on any such application, forward a certified copy of the order to the registrar, and, if default is made in complying with this provision, the company and every officer of the company who is in default shall be liable to a default fine.

(6) In this section, "variation" includes abrogation, and "varied" shall be construed accordingly.

Division 9-Transfer of Shares and Debentures, Evidence of Title, etc.

Nature of shares

77. The shares or other interest of any member in a company shall be personal property transferable in manner provided by the articles of the company.

Numbering of shares

78. Each share in a company having a share capital shall be distinguished by its appropriate number:

Provided that, if, at any time, all the issued shares in a company, or all the issued shares therein of a particular class, are fully paid up and rank pari passu for all purposes, none of those shares need thereafter have a distinguishing number so long as it remains fully paid up and ranks pari passu, for all purposes, with all shares of the same class for the time being issued and fully paid up.

Transfer not to be registered except on production of instrument of transfer

79. Notwithstanding anything in the articles of a company, it shall not be lawful for the company to register a transfer of shares in or debentures of the company, unless a proper instrument of transfer has been delivered to the company:

Provided that nothing in this section shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in or debentures of the company has been transmitted by operation of law.

Transfer by personal representative

80. A transfer of the share or other interest of a deceased member of a company made by his personal representative shall, although the personal representative is not himself a member of the company, be as valid as if he had been such a member at the time of the execution of the instrument of transfer.

Registration of transfer at request of transferor

81. On the application of the transferor of any share or interest in a company, the company shall enter in its register of members the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee.

Notice of refusal to register transfer

82. (1) If a company refuses to register a transfer of any shares or debentures, the company shall, within 60 days after the date on which the transfer was lodged with the company, send to the transferee notice of the refusal.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

Certification of transfers

83. (1) The certification by a company of any instrument of transfer of shares in or debentures of the company shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show a prima facie title to the shares or debentures in the transferor named in the instrument of transfer, but not as a representation that the transferor has any title to the shares or debentures.

(2) Where any person acts on the faith of a false certification by a company made negligently, the company shall be under the same liability to him as if the certification had been made fraudulently.

(3) For the purposes of this section-

(a) an instrument of transfer shall be deemed to be certificated if it bears the words "certificate lodged" or words to the like effect;

(b) the certification of an instrument of transfer shall be deemed to be made by a company, if-

(i) the person issuing the instrument is a person authorized to issue certificated instruments of transfer on the company's behalf; and

(ii) the certification is signed by a person authorized to certificate transfers on the company's behalf or by any officer or servant either of the company or of a body corporate so authorized;

(c) a certification shall be deemed to be signed by any person, if-

(i) it purports to be authenticated by his signature or initials (whether handwritten or not); and

(ii) it is not shown that the signature or initials was or were placed there neither by himself nor by any person authorized to use the signature or initials for the purpose of certificating transfers on the company's behalf.

Duties of company with respect to issue of certificates

84. (1) (a) Every company shall, within 90 days after the allotment of any of its shares, debentures or debenture stock and within 90 days after the date on which a transfer of any such shares, debentures or debenture stock is lodged with the company, complete and have ready for delivery the certificates of all shares, the debentures and the certificates of all debenture stock allotted or transferred, unless the conditions of issue of the shares, debentures or debenture stock otherwise provide.

(b) For the purposes of this subsection, "transfer" means a transfer duly stamped and otherwise valid, and does not include such a transfer as the company is, for any reason, entitled to refuse to register and does not register.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

(3) If any company, on whom a notice has been served requiring the company to make good any default in complying with the provisions of subsection (1), fails to make good the default within 14 days after the service of the notice, the court may, on the application of the person entitled to have the certificates or the debentures delivered to him, make an order directing the company and any officer of the company to make good the default within such time as may be specified in the order, and any such order may provide that all costs of and incidental to the application shall be borne by the company or by any officer of the company responsible for the default.

Certificate to be evidence of title

85. A certificate, under the common seal of the company, specifying any shares held by any member shall be prima facie evidence of the title of the member to the shares.

Evidence of grant of probate

86. The production to a company of any document which is, by law, sufficient evidence of-

(a) probate of the will, or letters or certificate of administration of the estate, of a deceased person having been granted to some person; or

(b) the Public Trustee having undertaken administration of an estate under the Public Trustee Act, shall be accepted by the company, notwithstanding anything in its articles, as sufficient evidence of such grant or undertaking. (Cap. 64)

Issue and effect of share warrants to bearer

87. (1) A company limited by shares, if so authorized by its articles, may, with respect to any fully paid-up shares, issue under its common seal a warrant stating that the bearer of the warrant is entitled to the shares therein specified, and may provide, by coupons or otherwise, for the payment of the future dividends on the shares included in the warrant.

(2) Such a warrant as aforesaid is, in this Act, termed a "share warrant".

(3) A share warrant shall entitle the bearer thereof to the shares therein specified, and the shares may be transferred by delivery of the warrant.

Penalty for personation of shareholder

88. If any person falsely and deceitfully personates any owner of any share or interest in any company, or of any share warrant or coupon, issued in pursuance of this Act, and thereby obtains or endeavors to obtain any such share or interest or share warrant or coupon, or receives or endeavors to receive any money due to any such owner, as if the offender were the true and lawful owner, he shall be liable to imprisonment for a term not exceeding 7 years.

Offences in connection with share warrants

89. (1) If any person-

(a) with intent to defraud, forges or alters, or offers, utters, disposes of or puts off, knowing the same to be forged or altered, any share warrant or coupon, or any document purporting to be a share warrant or coupon, issued in pursuance of this Act; or

(b) by means of any such forged or altered share warrant, coupon or document, purporting as aforesaid, demands or endeavors to obtain or receive any share or interest in any company under this Act, or to receive any dividend or money payable in respect thereof, knowing the warrant, coupon or document to be forged or altered, he shall be guilty of an offence and liable to imprisonment for a term not exceeding 14 years.

(2) If any person, without lawful authority or excuse, proof whereof shall lie on him-

(a) engraves or makes on any plate, wood, stone or other material any share warrant or coupon purporting to be-

(i) a share warrant or coupon issued or made by any particular company in pursuance of this Act; or

(ii) a blank share warrant or coupon so issued or made; or

(iii) a part of such a share warrant or coupon; or

(b) uses any such plate; wood, stone or other material for the making or printing of any such share warrant or coupon, or of any such blank share warrant or coupon, or any part thereof respectively; or

(c) knowingly has in his custody or possession any such plate, wood, stone or other material, he shall be guilty of an offence and liable to imprisonment for a term not exceeding 7 years.

Division 10-Special Provisions as to Debentures

Provisions as to registers of debenture holders

90. (1) Every company which, on or after 1 January 1984, issues a series of debentures shall keep at the registered office of the company a register of holders of such debentures:

Provided that-

(i) where the work of making up such register is done at some office of the company other than the registered office, such register may be kept at such office; and

(ii) where the work of making up such register is, by arrangement by the company, undertaken by some person on behalf of the company, such register may be kept at the office of that person at which the work is done.

(2) Every company shall give notice to the registrar of the place where the register is kept and of any change in that place:

Provided that a company shall not be bound to give notice under this subsection, if the register has been kept at the registered office of the company.

Rights of debenture-holders and shareholders to inspect register of debenture-holders and to have copies of trust deed

91. (1) Every register of holders of debentures of a company shall, except when duly closed (but subject to such reasonable restrictions as the company may, in general meeting, impose so that not less than 2 hours in each day shall be allowed for inspection), be open to the inspection of the registered holder of any such debentures or any holder of shares in the company without fee, and of any other person on payment of a fee of 50 cents or such less sum as may be specified by the company.

(2) Every registered holder of debentures and every holder of shares in a company may require a copy of the register of the holders of debentures of the company or any part thereof on payment of 50 cents for every 100 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 50 cents or such less sum as may be specified by the company, or, where the trust deed has not been printed, on payment of 50 cents for every 100 words required to be copied.

(4) If inspection is refused, or a copy is refused or not forwarded, the company and every officer of the company who is in default shall be liable to a fine not exceeding $10, and further shall be liable to a default fine of $4.

(5) Where a company is in default as aforesaid, the 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 articles 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 30 days in any year, as may be therein specified.

Liability of trustees for debenture holders

92. (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) Subsection (1) 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 present and 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 (1) shall not operate-

(a) to invalidate any provision in force immediately before 1 January 1984, so long as any person then entitled to the benefit of that provision, or afterwards given the benefit thereof under subsection (4), 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 subsection (3), 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 present 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 the court.

Perpetual debentures

93. A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after 1 January 1984, 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.

Power to reissue redeemed debentures in certain cases

94. (1) Where, either before or after 1 January 1984, a company has redeemed any debentures previously issued, then-

(a) unless any provision to the contrary, whether express or implied, is contained in the articles or in any contract entered into by the company; or

(b) unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled, the company shall have, and shall be deemed always to have had, power to reissue the debentures, either by reissuing the same debentures or by issuing other debentures in their place.

(2) Subject to the provisions of section 95, on a reissue of redeemed debentures, the person entitled to the debentures shall have, and shall be deemed always to have had, the same priorities as if the debentures had never been redeemed.

(3) Where a company has, either before or after 1 January 1984, 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 company having ceased to be in debit whilst the debentures remained so deposited.

(4) The reissue of a debenture or the issue of another debenture in its place under the power by this section given to, or deemed to have been possessed by, a company, whether the reissue or issue was made before or after 1 January 1984, shall be treated as the issue of a new debenture for the purposes of stamp duty, but it shall not be so treated for the purposes of any provision limiting the amount or number of debentures to be issued:

Provided that any person lending money on the security of a debenture reissued under this section which appears to be duly stamped may give the debenture in evidence in any proceedings for enforcing his security without payment of the stamp duty or any penalty in respect thereof, unless he had notice or, but for his negligence, might have discovered, that the debenture was not duly stamped, but, in any such case, the company shall be liable to pay the proper stamp duty and penalty.

Saving, in case of reissue of debentures, of rights of certain mortgagees

95. Where any debentures which were redeemed before 1 May 1945 have been reissued after that day and before 1 January 1984, or are reissued on or after 1 January 1984, the reissue of the debentures shall not prejudice, and shall be deemed never to have prejudiced, any right or priority which any person would have had under or by virtue of any mortgage or charge created before 1 May 1945.

Specific performance of contracts to subscribe for debentures

96. A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.

Payment of certain debts out of assets subject to floating charge in priority to claims under the charge

97. (1) Where, either a receiver is appointed on behalf of the holders of any debentures of a company 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 company 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 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) The periods of time mentioned in the said provisions of Part VI shall be reckoned from the date of the appointment of the receiver or of possession being taken as aforesaid, as the case may be.

(3) Where the date referred to in subsection (2) occurred before 1 January 1984, subsections (1) and (2) shall have effect with the substitution, for references to the provisions of Part VI, of references to the provisions which, by virtue of subsection (9) of section 312, are deemed to remain in force in the case therein mentioned.

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

PART IV-REGISTRATION OF CHARGES

Division 1-Registration of Charges with Registrar

Registration of charges

98. (1) Subject to the provisions of this Part, every charge created after the fixed date by a company registered in Fiji and being a charge to which this section applies shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the original or a copy certified in the prescribed manner of the instrument, if any, by which the charge is created or evidenced, are delivered to or received by the registrar for registration within 42 days after the date of its creation, but without prejudice to any contract or obligation for repayment of the money thereby secured, and, when a charge becomes void under this section, the money secured thereby shall immediately become payable.

(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 company;

(c) a charge created or evidenced by an instrument which, if executed by an individual, would require registration as an instrument under the Bills of Sale Act; (Cap. 225.)

(d) a charge on real property, wherever situate, or any interest therein;

(e) a charge on book debts of the company;

(f) a floating charge on the undertaking or property of the company;

(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) In the case of a charge created out of Fiji comprising property situate outside Fiji, 42 days after the date on which the instrument or copy could, in due course of post, and if despatched with due diligence, have been received in Fiji, shall be substituted for 42 days after the creation of the charge, as the time within which the particulars and instrument or copy are to be delivered to the registrar.

(4) Where a charge is created in Fiji but comprises property outside Fiji, the instrument creating or purporting to create a charge or the copy thereof, as the case may be, may 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 place in which the property is situated.

(5) Where a negotiable instrument has been given to secure the payment of any book debts of a company, the deposit of the instrument for the purpose of securing an advance to the company 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 real property shall not, for the purposes of this section, be deemed to be an interest in real property.

(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 company, it shall, for the purposes of this section, be sufficient, if there are delivered to or received by the registrar within 42 days 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 authorizing 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 the deed containing the charge or a copy thereof certified in the prescribed manner, or, if there is no such deed, 1 of the debentures of the series:

Provided that, where more than 1 issue is made of debentures in the series, there shall be delivered to the registrar for registration, within 42 days after the date of its issue, 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 company to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the company, 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 company shall not, for the purposes of this subsection, be treated as the issue of the debentures at a discount.

(9) In this Part-

(a) "charge" includes mortgage;

(b) "the fixed date" means, in relation to the charges specified in paragraphs (a) to (f), both inclusive, of subsection (2), 1 February 1914 and, in relation to the charges specified in paragraphs (g) to (i), both inclusive, of that subsection, 1 May 1945;

(c) a charge shall be deemed to be created, in the case of an instrument creating a charge, on the date of the execution thereof by or on behalf of the company and, in the case of a charge created by deposit of title deeds, on the date of the deposit thereof.

Duty of company to register charges created by company

99. (1) It shall be the duty of a company to deliver to the registrar, for registration, the particulars of every charge created by the company and of the issues of debentures of a series, requiring registration under section 98, but registration of any such charge may be effected on the application of any person interested therein.

(2) Where registration is effected on the application of some person other than the company, that person shall be entitled to recover from the company the amount of any fees properly paid by him to the registrar on registration.

(3) If any company fails for a period of 42 days, or such extended period as the court may have ordered, to deliver to the registrar, for registration, the particulars of any charge created by the company, or of the issues of debentures of a series, requiring registration as aforesaid, then, unless the registration has been effected on the application of some other person, the company and every officer or other person who is a party to the default shall be liable to a default fine of $100.

Duty of company to register charges existing on property acquired

100. (1) Where, on or after 1 January, 1984, a company acquires any property which is subject to a charge of any such kind as would, if it had been created by the company after the acquisition of the property; have been required to be registered under this Part, the company shall cause the prescribed particulars of the charge, together with a copy (certified in the prescribed manner to be a correct copy) of the instrument, if any, by which the charge was created or evidenced, to be delivered to the registrar, for registration, within 42 days after the date on which the acquisition is completed:

Provided that, if the property is situate and the charge was created outside Fiji, 42 days after the date on which the copy of the instrument could in due course of post, and if despatched with due diligence, have been received in Fiji shall be substituted for 42 days after the completion of the acquisition as the time within which the particulars and the copy of the instrument are to be delivered to the registrar.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine of $100.

Certificate of registration of charge

101. The registrar shall give a certificate under his hand of the registration of any charge registered in pursuance of and within any period allowed under this Part, stating the amount thereby secured, and the certificate shall be conclusive evidence that the requirements of this Part as to registration have been complied with.

Endorsement of certificate of registration on debentures

102. (1) The company shall cause a copy of every certificate of registration given under section 101 to be endorsed on every debenture or certificate of debenture stock which is issued by the company, and the payment of which is secured by the charge so registered:

Provided that nothing in this subsection shall be construed as requiring a company 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 company before the charge was created.

(2) If any person knowingly and willfully authorizes or permits the delivery of any debenture or certificate of debenture stock which, under the provisions of this section, is required 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 $200.

Registration of satisfaction and release of property from charge

103. 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 part of the property or undertaking charged has been released from the charge or has ceased to form part of the company's property or undertaking, may register a memorandum of satisfaction in whole or in part, or of the fact that part of the property or undertaking has been released from the charge or has ceased to form part of the company's property or undertaking, as the case may be, and, where he registers a memorandum of satisfaction in whole, he shall, if required, furnish the company with a copy thereof.

Extension of time to register charges

104. The court, on being satisfied that the omission to register a charge within the time required by this Act, or that the omission or mis-statement of any particular with respect to any such charge or in a memorandum of satisfaction, 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 company, or that, on other grounds, it is just and equitable to grant relief, may, on the application of the company 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 mis-statement shall be rectified.

Registration of enforcement of security

105. (1) If any person obtains an order for the appointment of a receiver or manager of the property of a company, or appoints such a receiver or manager under any powers contained in any instrument, he shall, within 7 days from the date of the order or of the appointment under the said powers, give notice of the fact to the registrar.

(2) Where any person appointed receiver or manager of the property of a company under the powers contained in any instrument ceases to act as such receiver or manager, he shall, within 7 days of so ceasing, give the registrar notice to that effect.

(3) If any person makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding $10 for every day during which the default continues.

Division 2-Provisions as to Company's Register of Charges and as to Copies of Instruments Creating Charges

Copies of instruments creating charges to be kept by company

106. Every company shall cause a copy of every instrument creating any charge requiring registration under this Part to be certified in the prescribed manner and kept at the registered office of the company:

Provided that, in the case of a series of uniform debentures, a copy certified as aforesaid of 1 debenture of the series shall be sufficient.

Company's register of charges

107. (1) Every limited company shall keep, at the registered office of the company, a register of charges and enter therein all charges specifically affecting property of the company and all floating charges on the undertaking or any property of the company, 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 director, manager, or other officer of the company knowingly and willfully authorizes 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 $100.

Right to inspect copies of instruments creating charges and company's register of charges

108. (1) The copies of instruments creating any charge requiring registration under this Part with the registrar, and the register of charges kept in pursuance of section 107, shall be open during business hours (but subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day shall be allowed for inspection) to the inspection of any creditor or member of the company 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 50 cents for each inspection, as the company may specify.

(2) If inspection of the said copies or register is refused, any officer of the company refusing inspection, and every director and manager of the company authorizing or knowingly and willfully permitting the refusal, shall be liable to a fine not exceeding $10, and a further fine not exceeding $4 for every day during which the refusal continues, and the court may, by order, compel an immediate inspection of the copies or register.

PART V-MANAGEMENT AND ADMINISTRATION

Division 1-Registered Office and Name

Registered office of company

109. (1) A company shall, as from the day on which it begins to carry on business or as from the fourteenth day after the date of its incorporation, whichever is the earlier, have a registered office and a registered postal address to which all communications and notices may be addressed.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

Notification of situation of registered office and of change therein

110. (1) Notice of the situation of the registered office and the registered postal address, and of any change therein, shall be given within 14 days after the date of incorporation of the company or of the change, as the case may be, to the registrar for registration.

(2) The inclusion in the annual return of a company of a statement as to the situation of its registered office or as to its registered postal address shall not be taken to satisfy the obligations imposed by this section.

(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

Publication of name by company

111. (1) Every company-

(a) shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position, in easily legible roman letters; and

(b) shall have its name engraven or otherwise permanently marked in legible roman letters on its seal; and

(c) shall have its name mentioned in legible roman letters in all business letters of the company and in all notices and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills of parcels, invoices, receipts and letters of credit of the company.

(2) For the purposes of paragraphs (a) and (c) of subsection (1), it shall be lawful to use-

(a) the abbreviation "Co." or "Coy." in lieu of the word "Company" contained in the name of the company;

(b) the abbreviation "Ltd." in lieu of the word "Limited" contained in the name of the company;

(c) the symbol "&" in lieu of the word "and" contained in the name of the company; or

(d) any of those words in lieu of the corresponding abbreviation or symbol contained in the name of the company.

(3) If a company does not paint or affix its name in manner directed by this Act, the company and every officer of the company who is in default shall be liable to a fine not exceeding $10 and, if a company does not keep its name painted or affixed in manner so directed, the company and every officer of the company who is in default shall be liable to a default fine.

(4) If a company fails to comply with paragraph (b) or (r) of subsection (1), the company shall be liable to a fine not exceeding $100.

(5) If an officer of a company or any person on its behalf-

(a) uses or authorizes the use of any seal purporting to be a seal of the company whereon its name is not so engraven or marked as aforesaid; or

(b) issues or authorizes the issue of any business letter of the company or any notice or other official publication of the company, or signs or authorizes to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods, wherein its name is not mentioned in manner aforesaid; or

(c) issues or authorizes the issue of any bill of parcels, invoice, receipt or letter of credit of the company wherein its name is not mentioned in manner aforesaid, he shall be liable to a fine not exceeding $100, and shall further be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof, unless it is duly paid by the company.

Division 2-Statement of Amount of Paid-up Capital

Statement of amount of capital subscribed and amount paid up

112. (1) Where any notice, advertisement or other official publication of a company contains a statement of the amount of the authorized capital of the company, such notice, advertisement, or other official publication shall also contain a statement, in an equally prominent position and in equally conspicuous characters, of the amount of the capital which has been subscribed and the amount paid up.

(2) Any company which makes default in complying with the requirements of this section and every officer who is in default shall be liable to a fine not exceeding $100.

Division 3-Restrictions on Commencement of Business

Restrictions on commencement of business

113. (1) Where a company having a share capital has issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers, unless-

(a) shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription; and

(b) every director of the company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription; and

(c) no money is or may become liable to be repaid to applicants for any shares or debentures which have been offered for public subscription by reason of any failure to apply for or to obtain permission for the shares or debentures to be dealt in on any stock exchange; and

(d) there has been delivered to the registrar, for registration, a statutory declaration by a secretary or 1 of the directors, in the prescribed form, that the aforesaid conditions have been complied with.

(2) Where a company having a share capital has not issued a prospectus inviting the public to subscribe for its shares, or has issued a prospectus but has failed to raise the minimum subscription, the company shall not commence any business or exercise any borrowing powers, unless-

(a) there has been delivered to the registrar, for registration, a statement in lieu of prospectus; and

(b) every director of the company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash; and

(c) there has been delivered to the registrar, for registration, a statutory declaration by a secretary or 1 of the directors, in the prescribed form, that paragraph (b) of this subsection has been complied with.

(3) The registrar shall, on the delivery to him of the said statutory declaration, and, in the case of a company which is required by this section to deliver a statement in lieu of prospectus, of such a statement, certify that the company is entitled to commence business, and that certificate shall be conclusive evidence that the company is so entitled.

(4) Any contract made by a company before the date at which it is entitled to commence business shall be provisional only, and shall not be binding on the company until that date and, on that date, it shall become binding.

(5) Nothing in this section shall prevent the simultaneous offer for subscription or allotment of any shares and debentures or the receipt of any money payable on application for debentures.

(6) If any company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall, without prejudice to any other liability, be liable to a fine not exceeding $100 for every day during which the contravention continues.

(7) This section shall not apply to a private company.

Division 4-Register of Members

Register of members

114. (1) Every company shall keep a register of its members and enter therein the following particulars:-

(a) the names and postal addresses of the members, and, in the case of a company having a share capital, a statement of the shares held by each member, distinguishing each share by its number so long as the share has a number, and of the amount paid or agreed to be considered as paid on the shares of each member;

(b) the date at which each person was entered in the register as a member;

(c) the date at which any person ceased to be a member:

Provided that, where the company has converted any of its shares into stock, the register shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares specified in paragraph (a).

(2) The register of members shall be kept at the registered office of the company:

Provided that-

(i) if the work of making it up is done at another office of the company, it may be kept at that other office; and

(ii) if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, it may be kept at the office of that other person at which the work is done, so, however, that it shall not be kept at a place outside Fiji.

(3) Every company shall send notice to the registrar of the place where its register of members is kept and of any change in that place:

Provided that a company shall not be bound to send notice under this subsection where the register has, at all times since it came into existence or, in the case of a register in existence immediately before 1 January 1984, at all times since then, been kept at the registered office of the company.

(4) Where a company makes default in complying with subsection (1) or makes default for 14 days in complying with subsection (3), the company and every officer of the company who is in default shall be liable to a default fine.

Index of members

115. (1) Every company having more than 50 members shall, unless the register of members is in such a form as to constitute in itself an index, keep an index of the names of the members of the company and shall, within 14 days after the date on which any alteration is made in the register of members, make any necessary alteration in the index.

(2) The index, which may be in the form of a card index, shall, in respect of each member, contain a sufficient indication to enable the account of that member in the register to be readily found.

(3) The index shall be, at all times, kept at the same place as the register of members.

(4) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

Provisions as to entries in register in relation to share warrants

116. (1) On the issue of a share warrant, the company shall strike out of its register of members the name of the member then entered therein as holding the shares specified in the warrant as if he had ceased to be a member, and shall enter in the register the following particulars, namely:-

(a) the fact of the issue of the warrant;

(b) a statement of the shares included in the warrant, distinguishing each share by its number; and

(c) the date of the issue of the warrant.

(2) The bearer of a share warrant shall, subject to the articles of the company, be entitled, on surrendering it for cancellation, to have his name entered as a member in the register of members.

(3) The company shall be responsible for any loss incurred by any person by reason of the company entering in the register the name of a bearer of a share warrant in respect of the shares therein specified without the warrant being surrendered and cancelled.

(4) Until the warrant is surrendered, the particulars specified in subsection (1) shall be deemed to be the particulars required by this Act to be entered in the register of members, and, on the surrender, the date of the surrender shall be entered.

(5) Subject to the provisions of this Act, the bearer of a share warrant may, if the articles of the company so provide, be deemed to be a member of the company, within the meaning of this Act, either to the full extent or for any purpose defined in the articles,

Inspection of register and index

117. (1) Except when the register of members is closed under the provisions of this Act, the register, and index of the names, of the members of a company shall, during business hours (subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day be allowed for inspection), be open to the inspection of any member without charge and of any other person on payment of 50 cents, or such less sum as the company may specify, for each inspection.

(2) (a) Any member or other person may require a copy of the register, or of any part thereof, on payment of 50 cents or such less sum as the company may specify, for every 100 words or fractional part thereof required to be copied.

(b) The company shall cause any copy so required by any person to be sent to that person within a period of 14 days commencing on the day next after the day on which the requirement is received by the company.

(3) If any inspection required under this section is refused, or if any copy required under this section is not sent within the proper period, the company and every officer of the company who is in default shall be liable, in respect of each offence, to a fine not exceeding $4 and further to a default fine of $4.

(4) In the case of any such refusal or default, the court may, by order, compel an immediate inspection of the register and index or direct that the copies required shall be sent to the person requiring them.

Consequences of failure to comply with requirements as to register owing to agent's default

118. Where by virtue of paragraph (ii) of the proviso to subsection (2) of section 114, the register of members is kept at the office of some person other than the company and, by reason of any default of his, the company fails to comply with subsection (3) of that section, subsection (3) of section 115, or section 117 or with any requirements of this Act as to the production of the register, that other person shall be liable to the same penalties as if he were an officer of the company who was in default, and the power of the court under subsection (4) of section 117 shall extend to the making of orders against that other person and his officers and servants.

Power to close register

119. A company may, on giving notice by advertisement in some newspaper published and circulating in Fiji or in that area of Fiji in which the registered office of the company is situate, close the register of members for any time or times, not exceeding in the whole 30 days in each year.

Power of court to rectify register

120. (1) If-

(a) the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or

(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member, the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.

(2) Where an application is made under this section, the court may either refuse the application or may order rectification of the register and payment by the company of any damages sustained by any party aggrieved.

(3) On an application under this section, the court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members, or between members or alleged members on the one hand and the company on the other hand, and generally may decide any question necessary or expedient to be decided for rectification of the register.

(4) In the case of a company required by this Act to send a list of its members to the registrar, the court, when making an order for rectification of the register, shall, by its order, direct notice of the rectification to be given to the registrar.

Trusts not to be entered on register

121. No notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the registrar.

Register to be evidence

122. The register of members shall be prima facie evidence of any matters by this Act directed or authorized to be inserted therein.

Division 5-Branch Register

Power for company to keep branch register

123. (1) A company having a share capital may, if so authorized by its articles, cause to be kept in any part of the Commonwealth outside Fiji a branch register of members resident in that part of the Commonwealth (in this Act called a "branch register").

(2) The company shall give to the registrar notice of the situation of the office where any branch register is kept, and of any change in its situation, and, if it is discontinued, of its discontinuance, and any such notice shall be given within 1 month of the opening of the office or of the change or discontinuance, as the case may be.

(3) If default is made in complying with subsection (2), the company and every officer of the company who is in default shall be liable to a default fine.

Regulations as to branch register

124. (1) A branch register shall be deemed to be part of the company's register of members (in this section called the "principal register".)

(2) A branch register shall be kept in the same manner in which the principal register is, by this Act, required to be kept, except that the advertisement required by section 119 to be given before closing the register shall be inserted in some newspaper circulating in the area where the branch register is kept.

(3) The company shall-

(a) transmit to its registered office a copy of every entry in its branch register as soon as maybe after the entry is made; and

(b) cause to be kept at the place where the company's principal register is kept a duplicate of its branch register duly entered up from time to time, and every such duplicate shall, for all the purposes of this Act, be deemed to be part of the principal register.

(4) Subject to the provisions of this section with respect to the duplicate, the shares registered in a branch register shall be distinguished from the shares registered in the principal register, and no transaction with respect to any shares registered in a branch register shall, during the continuance of that registration, be registered in any other register.

(5) A company may discontinue to keep a branch register, and thereupon all entries in that register shall be transferred to the principal register.

(6) Subject to the provisions of this Act, any company may, by its articles, make such provisions as it may think fit respecting the keeping of branch registers.

(7) If default is made in complying with subsection (3), the company and every officer of the company who is in default shall be liable to a default fine; and where, by virtue of paragraph (ii) of the proviso to subsection (2)of section 114, the principal register is kept at the office of some person other than the company and ,by reason of any default of his ,the company fails to comply with paragraph(b) of subsection (3) of this section ,he shall be liable to the same penalty as if he were an officer of the company who was in default.

Stamp duty in case of transfer of shares registered in branch registers

125. An instrument of transfer of a share registered in a branch register be deemed to be a transfer of property situate out of Fiji, and, unless executed in any part of Fiji, shall be exempt from stamp duty chargeable in Fiji.

Provisions as to branch registers of Commonwealth companies kept in Fiji

126. If , by virtue of the law in force in any part of the Commonwealth, companies incorporated under that law have power to keep, in Fiji ,branch registers of their members resident in Fiji, the Minister may, by notice in Gazette , direct that subsection (2) of section 114, except the proviso thereto, in sections 117 and 120, shall, subject to any modifications and adaptations specified in the notice, apply to and in relation to any such branch registers kept in Fiji as they apply to and in relation to the registers of companies within the meaning of this Act.

Division 6-Annual Return

Annual return to be made by company having a share capital

127. (1) Every company having a share capital , once at least in every year, make a return containing, with respect to the registered office of the registered company, registers of members and debenture holders, shares in debentures, indebtedness ,past and present members and directors and secretary, the matters specified in Part I of the Sixth Schedule ,and the said return shall be in the form and shall be made up to the date set out in Part II of that Schedule or as near thereto as circumstances admit:

Provided that -

(i) a company need not make a return under this subsection either in the year of its incorporation or ,if it is not required by section 133 to hold an annual general meeting during the following year , in that year;

(ii) where the company has converted any of its shares into stock, the list referred to in paragraph 5 of Part I of the Sixth Schedule shall state the amount of stock held by each of the existing members instead of the amount of shares and the particulars relating to shares required by that paragraph;

(iii) the return may, in any year, if the return for either of the 2 immediately preceding years has given, as at the date of that return, the full particulars required by the said paragraph 5, give only such of the particulars required by that paragraph as relate to persons ceasing to be or becoming members since the date of the last return and to shares transferred the date or to changes as compared with that date in the amount of stock held by a member.

(2) In the case of a company keeping a branch register-

(a) references in paragraph (iii) of the proviso to subsection (1) to the particulars required by paragraph 5 of Part I of the Sixth Schedule shall be taken as not including any such particulars contained in the branch register, in so far as copies of the entries containing those particulars are not received at the registered office of the company before the date when the return in question is made; and

(b) where an annual return is made between the date when any entries are made in the branch register and the date when copies of those entries are received at the registered office of the company, the particulars contained in those entries, so far as relevant to an annual return, shall be included in the next or a subsequent annual return, as may be appropriate, having regard to the particulars include in that return with the respect to the company's register of members.

(3) If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a default fine.

(4) For the purposes of this section and of Part I of the Sixth Schedule, "director" and "officer" include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.

Annual return to be made by company not having a share capital

128. (1) Every company not having a share capital shall, once at least in every calendar year, make a return stating-

(a) the situation of the registered office of the company and the registered postal address thereof;

(b) in a case in which the register of members is, under the provisions of this Act, kept elsewhere than at the registered office, the address of the place where it is kept;

(c) in a case in which any register of holders of debentures of a company or part of any such register is, under the provisions of this Act, kept, in Fiji, elsewhere than at the registered office of the company, the address of the place where it is kept; and

(d) all such particulars with respect to the persons who, at the date of the return, are the directors of the company and any person who, at that date, is a secretary of the company as are, by this Act, required to be contained with respect to directors and secretaries, respectively, in the register of directors and secretaries of a company:

Provided that a company need not make a return under this subsection either in the year of is incorporation or, if it is not required by section 133 to hold an annual general meeting during the following year, in that year.

(2) There shall be annexed to the return a statement containing particulars of the total amount of the indebtedness of the company in respect of all mortgages and charges which are required to be registered with the registrar under this Act.

(3) If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a default fine.

(4) For the purposes of this section, "officer" and "director" include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.

Time for completion of annual return

129. (1) The annual return shall be completed within 42 days after the annual general meeting for the year, whether or not that meeting is the first or only ordinary general meeting, or the first or only general meeting, of the company in the year, and the company shall, within such period, deliver to the registrar a copy signed both by a director and by a secretary of the company.

(2) (a) If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a default fine.

(b) For the purposes of this subsection, "officer" includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act.

Documents to be annexed to annual return

130. (1) There shall be annexed to the annual return-

(a) a copy, certified both by a director and by a secretary of the company to be a true copy, of every balance sheet laid before the company general meeting during the period to which the return relates (including every document required by law to be annexed to the balance sheet); and

(b) a copy, certified as aforesaid, of the report of the auditors on, and of the report of the directors accompanying, each such balance sheet, and, where any such balance sheet or document required by law to be annexed thereto is in a foreign language, there shall be annexed to that balance sheet a translation in the English language of the balance sheet or document certified, in the prescribed manner, to be a correct translation.

(2) If any such balance sheet as aforesaid or document required by law to be annexed thereto did not comply with the requirements of the law as in force at the date of the audit with respect to the form of balance sheets or documents aforesaid, as the case may be, there shall be made such additions to and corrections in the copy as would have been required to be made in the balance sheet or document in order to make it comply with the said requirements, and the fact that the copy has been so amended shall be stated thereon.

(3) (a) If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a default fine.

(b) For the purposes of this subsection, "officer" includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act.

(4) This section shall not apply to a private company, unless any of its shares is held by a company which is not a private company or by a company which is a subsidiary of a company which is not a private company.

Certificates to be sent by private company with annual return

131. A private company shall send with the annual return required by section 127-

(a) a certificate signed by both a director and a secretary of the company that the company has not, since the date of the last return, or since, in the case of a first return, the date of incorporation of the company, issued any invitation to the public to subscribe for any shares or debentures of the company;

(b) where the annual return discloses the fact that the number of members of the company exceeds 50, also a certificate so signed that the excess consists wholly of persons who, under paragraph (b) of subsection (1) of section 32 are not to be included in reckoning the number of 50;

(c) where the company claims to be a private company to which section 130 does not apply, a certificate so signed in the prescribed form.

Division 7-Meetings and Proceedings

Statutory meeting and statutory report

132. (1) Every company limited by shares and every company limited by guarantee and having a share capital shall, within a period of not less than 1 month nor more than 3 months from the date at which the company is entitled to commence business, hold a general meeting of the members of the company, which shall be called the "statutory meeting".

(2) The directors shall, at least 14 days before the day on which the meeting is held, forward a report (in this Act referred to as the "statutory report") to every member of the company:

Provided that, if the statutory report is forwarded later than is required by this subsection, it shall, notwithstanding that fact, be deemed to have been duly forwarded if it is so agreed by all the members entitled to attend and vote at the meeting.

(3) The statutory report shall be certified by not fewer than 2 directors of the company and shall state-

(a) the total number of shares allotted, distinguishing shares allotted as fully or partly paid up otherwise than in cash, and stating, in the case of shares partly paid up, the extent to which they are so paid up, and, in either case, the consideration for which they have been allotted;

(b) the total amount of cash received by the company in respect of all the shares allotted, distinguished as aforesaid;

(c) an abstract of the receipts of the company and of the payments made there out, up to a date within 7 days of the date of the report, exhibiting under distinctive headings the receipts of the company from shares and debentures and other sources, the payments made there out, and particulars concerning the balance remaining in hand, and an account or estimate of the preliminary expenses of the company;

(d) the names, postal addresses and descriptions of the directors, auditors, if any, managers, if any, and secretary of the company; and

(e) the particulars of any contract the modification of which is to be submitted to the meeting for its approval, together with the particulars of the modification or proposed modification.

(4) The statutory report shall, so far as it relates to the shares allotted by the company, and to the cash received in respect of such shares, and to the receipts and payments of the company on capital account, be certified as correct by the auditors, if any, of the company.

(5) The directors shall cause a copy of the statutory report, certified as required by this section, to be delivered to the registrar, for registration, forthwith after the sending thereof to the members of the company.

(6) The directors shall cause a list showing the names and postal addresses of the members of the company, and the number of shares held by them respectively, to be produced at the commencement of the meeting and to remain open and accessible to any member of the company during the continuance of the meeting.

(7) The members of the company present at the meeting shall be at liberty to discuss any matter relating to the formation of the company, or arising out of the statutory report, whether previous notice has been given or not, but no resolution of which notice has not been given in accordance with the articles may be passed.

(8) The meeting may adjourn from time to time and, at any adjourned meeting, any resolution of which notice has been given in accordance with the articles, either before or subsequently to the former meeting, may be passed, and the adjourned meeting shall have the same powers as an original meeting.

(9) In the event of any default in complying with the provisions of this section, every director of the company who is knowingly and willfully guilty of the default, or, in the case of default by the company, every officer of the company who is in default shall be liable to a fine not exceeding $100.

(10) This section shall not apply to a private company.

Annual general meeting

133. (1) Every company shall, in each year, hold a general meeting as its annual general meeting in addition to any other meetings in that year, and shall specify the meeting as such in the notices calling it; and not more than 15 months shall elapse between the date of 1 annual general meeting of a company and that of the next:

Provided that, so long as a company holds its first annual general meeting within 18 months of its incorporation, it need not hold it in the year of its incorporation or in the following year.

(2) If default is made in holding a meeting of the company in accordance with subsection (1), the registrar may, on the application of any member of the company, call or direct the calling of a general meeting of the company and give such ancillary or consequential directions as the registrar thinks expedient, including directions modifying or supplementing, in relation to the calling, holding and conducting of the meeting, the operation of the company's articles; and it is hereby declared that the directions that may be given under this subsection include a direction that 1 member of the company present in person or by proxy shall be deemed to constitute a meeting.

(3) A general meeting held in pursuance of subsection (2) of this section shall, subject to any directions of the registrar, be deemed to be an annual general meeting of the company; but, where a meeting so held is not held in the year in which the default in holding the company's annual general meeting occurred, the meeting so held shall not be treated as the annual general meeting for the year in which it is held, unless, at that meeting, the company resolves that it shall be so treated.

(4) Where a company resolves that a meeting shall be so treated, a copy of the resolution shall, within 14 days after the passing thereof, be forwarded to the registrar for registration.

(5) If default is made in holding a meeting of the company in accordance with subsection (1), or in complying with any directions of the registrar under subsection (2), the company and every officer of the company who is in default shall be liable to a fine not exceeding $200 and, if default is made in complying with subsection (4), the company and every officer of the company who is in default shall be liable to a default fine of $4.

Convening of extraordinary general meeting on requisition

134. (1) The directors of a company, notwithstanding anything in its articles, shall, on the requisition of members of the company holding, at the date of the deposit of the requisition, not less than one-tenth of such of the paid-up capital of the company as, at the date of the deposit, carries the right of voting at general meetings of the company, or, in the case of a company not having a share capital, members of the company representing not less than one-tenth of the total voting rights of all the members having, at the said date, a right to vote at general meetings of the company, forthwith proceed duly to convene an extraordinary general meeting of the company.

(2) The requisition must state the objects of the meeting, and must be signed by the requisitionists and deposited at the registered office of the company, and may consist of several documents in like form each signed by 1 or more requisitionists.

(3) If the directors do not, within 21 days from the date of the deposit of the requisition, proceed duly to convene a meeting, the requisitionists, or any of them representing more than one-half of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held after the expiration of 3 months from the said date.

(4) A meeting convened under this section by the requisitionists shall be convened in the same manner, as nearly as possible, as that in which meetings are to be convened by directors.

(5) Any reasonable expenses incurred by the requisitionists by reason of the failure of the directors duly to convene a meeting shall be repaid to the requisitionists by the company, and any sum so repaid shall be retained by the company out of any sums due or to become due from the company by way of fees or other remuneration in respect of their services to such of the directors as were in default.

(6) For the purposes of this section, the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting, if they do not give such notice thereof as is required by section 143.

Length of notice for calling meetings

135. (1) (a) Any provision of a company's articles shall be void in so far as it provides for the calling of a meeting of the company (other than an adjourned meeting) by a shorter notice than 21 days.

(b) Every such notice shall be in writing.

(2) Save in so far as the articles of a company make other provision in that behalf (not being a provision avoided by subsection (1)), a meeting of the company (other than an adjourned meeting) may be called by 21 days' notice in writing.

(3) A meeting of a company shall, notwithstanding that it is called by shorter notice than that specified in subsection (2) or in the company's articles, as the case may be, be deemed to have been duly called, if it is so agreed-

(a) in the case of a meeting called as the annual general meeting, by all the members entitled to attend and vote thereat; and

(b) in the case of any other meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than 95 per cent in nominal value of the shares giving a right to attend and vote at the meeting, or, in the case of a company not having a share capital, together representing not less than 95 per cent of the total voting rights at that meeting of all the members.

General provisions as to meetings and votes

  1. The following provisions shall have effect in so far as the articles of the company do -not make other provision in that behalf:-

(a) notice of the meeting of a company shall be served on every member of the company in the manner in which notices are required to be served by Table A, and, for the purpose of this paragraph, "Table A" means that Table as for the time being in force;

(b) 2 or more members holding not less than one-tenth of the issued share capital or, if the company has not a share capital, not less than 5 percent in number of the members of the company may call a meeting;

(c) in the case of a private company, 2 members, and, in the case of any other company, 3 members, personally present shall be a quorum;

(d) any member elected by the members present at meeting may be chairman thereof;

(e) in the case of a company originally having a share capital, every member shall have 1 vote in respect of each share or each $20 of stock held by him, and, in any other case, every member shall have 1 vote. Power of court to order meeting

137. (1) If, for any reason, it is impracticable to call a meeting of a company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in manner prescribed by the articles or this Act, the court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and conducted in such manner as the court thinks fit and, where any such order is made, may give such ancillary or consequential directions as it thinks expedient; and it is hereby declared that the directions that may be given under this subsection include a direction that 1 member of the company present in person or by proxy shall be deemed to constitute a meeting.

(2) Any meeting called, held and conducted in accordance with an order under subsection (1) shall, for all purposes, be deemed to be a meeting of the company duly called, held and conducted.

Proxies

138. (1) Any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person (whether a member or not) as his proxy to attend and vote instead of him, and a proxy appointed to attend and vote instead of a member of a private company shall also have the same right as the member to speak at the meeting:

Provided that, unless the articles otherwise provide-

(i) this subsection shall not apply in the case of a company not having a share capital; and

(ii) a member of a private company shall not be entitled to appoint more than 1 proxy to attend on the same occasion; and

(iii) a proxy shall not be entitled to vote except on a poll.

(2) In every notice calling a meeting of a company having a share capital, there shall appear, with reasonable prominence, a statement that a member entitled to attend and vote is entitled to appoint a proxy or, where that is allowed, or more proxies to attend and vote instead of him, and that a proxy need not also be a member; and, if default is made in complying with this subsection as respects any meeting, every officer of the company who is in default shall be liable to a fine not exceeding $100.

(3) Any provision contained in a company's articles shall be void in so far as it would have the effect of requiring the instrument appointing a proxy, or any other document necessary to show the validity of, or otherwise relating to, the appointment of a proxy, to be received by the company or any other person more than 48 hours before a meeting or adjourned meeting in order that the appointment may be effective thereat.

(4) If, for the purpose of any meeting of a company, invitations to appoint as proxy a person or 1 of a number of persons specified in the invitations are issued at the company's expense to some only of the members entitled to be sent a notice of the meeting and to vote thereat by proxy, every officer of the company who knowingly and willfully authorizes or permits their issue as aforesaid shall be liable to a fine not exceeding $200:

Provided that an officer shall not be liable under this subsection by reason only of the issue to a member, at his request, in writing, of a form of appointment naming the proxy or of a list of persons willing to act as proxy, if the form or list is available, on request, in writing, to every member entitled to vote at the meeting by proxy.

(5) This section shall apply to meetings of any class of members of a company as it applies to general meetings of the company.

Rights to demand a poll

139. (1) Any provision contained in a company's articles shall be void in so far as it would have the effect either-

(a) of excluding the right to demand a poll at a general meeting on any question other than the election of the chairman of the meeting or the adjournment of the meeting; or

(b) of making ineffective a demand for a poll on any such question which is made either-

(i) by not fewer than 5 members having the right to vote at the meeting; or

(ii) by a member or members representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting; or

(iii) by a member or members holding shares in the company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all shares conferring that right.

(2) The instrument appointing a proxy to vote at a meeting of a company shall be deemed also to confer authority to demand or join in demanding a poll and, for the purposes of subsection (1), a demand by a person as proxy for a member shall be the same as a demand by the member.

Voting on a poll

140. On a poll taken at a meeting of a company or a meeting of any class of members of a company, a member entitled to more than 1 vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.

Representation of corporations at meetings of companies and of creditors

141. (1) A corporation, whether a company within the meaning of this Act or not, may-

(a) if it is a member of another corporation, being a company within the meaning of this Act, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company;

(b) if it is a creditor (including a holder of debentures) of another corporation, being a company within the meaning of this Act, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of this Act or of any rules made there under, or in pursuance of the provisions contained in any debenture or trust deed, as the case may be.

(2) A person authorized as aforesaid shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise, if it were an individual shareholder, creditor or holder of debentures of that other company.

Circulation of members' resolutions, etc.

142. (1) Subject to the following provisions of this section, it shall be the duty of a company, on the requisition in writing of such number of members as is hereinafter specified and (unless the company otherwise resolves) at the expense of the requisitionists:-

(a) to give to members of the company entitled to receive notice of the next annual general meeting notice of any resolution which may properly be moved and is intended to be moved at that meeting;

(b) to circulate to members entitled to have notice of any general meeting sent to them any statement of not more than 1,000 words with respect to the matter referred to in any proposed resolution or the business to be dealt with at that meeting.

(2) The number of members necessary for a requisition under subsection (1) shall be-

(a) any number of members representing not less than one-twentieth of the total voting rights of all the members having, at the date of the requisition, a right to vote at the meeting to which the requisition relates; or

(b) not fewer than 100 members holding shares in the company on which there has been paid up an average sum, per member, of not less than $200.

(3) Notice of any such resolution shall be given, and any such statement shall be circulated, to members of the company entitled to have notice of the meeting sent to them by serving a copy of the resolution or statement on each such member in any manner permitted for service of notice of the meeting, and notice of any such resolution shall be given to any other member of the company by giving notice of the general effect of the resolution in any manner permitted for giving him notice of meetings of the company:

Provided that the copy shall be served, or notice of the effect of the resolution shall be given, as the case may be, in the same manner and, so far as practicable, at the same time, as notice of the meeting and, where it is not practicable for it to be served or given at that time, it shall be served or given as soon as practicable thereafter.

(4) A company shall not be bound, under this section, to give notice of any resolution or to circulate any statement unless-

(a) a copy of the requisition signed by the requisitionists (or 2 or more copies which between them contain the signatures of all the requisitionists) is deposited at the registered office of the company:

(i) in the case of a requisition requiring notice of a resolution, not less than 6 weeks before the meeting; and

(ii) in the case of any other requisition, not less than 1 week before the meeting; and

(b) there is deposited or tendered with the requisition a sum reasonably sufficient to meeting the company's expenses in giving effect thereto:

Provided that, if, after a copy of a requisition requiring notice of a resolution has been deposited at the registered office of the company, an annual general meeting is called for a date 6 weeks or less after the copy has been deposited, the copy, though not deposited within the time required by this subsection, shall be deemed to have been properly deposited for the purposes thereof.

(5) The company shall also not be bound under this section to circulate any statement, if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs on an application under this section to be paid in whole or in part by the requisitionists, notwithstanding that they are not parties to the application.

(6) Notwithstanding anything in the company's articles, the business which may be dealt with at an annual general meeting shall include any resolution of which notice is given in accordance with this section and, for the purposes of this subsection, notice shall be deemed to have been so given, notwithstanding the accidental omission, in giving it, of 1 or more members.

(7) In the event of any default in complying with the provisions of this section, every officer of the company who is in default shall be liable to a fine not exceeding $1,000.

Special resolutions

143. (1) A resolution shall be a special resolution when it has been passed by a majority of not less than three-fourths of such members as, being entitled so to do, vote in person or, where proxies are allowed, by proxy, at a general meeting of which notice specifying the intention to propose the resolution as a special resolution has been duly given:

Provided that, if it is so agreed by a majority in number of the members having the right to attend and vote at any such meeting, being a majority together holding not less than 95 per cent in nominal value of the shares giving that right, or, in the case of, a company not having a share capital, together representing not less than 95 per cent of the total voting rights at that meeting of all the members, a resolution may be proposed and passed as a special resolution at a meeting of which less than 21 days' notice has been given.

(2) At any meeting at which a special resolution is submitted to be passed, a declaration of the chairman that the resolution is carried shall, unless a poll is demanded, be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favor of or against the resolution.

(3) In computing the majority on a poll demanded on the question that a special resolution be passed, reference shall be had to the number of votes cast for and against the resolution.

(4) For the purposes of this section, notice of a meeting shall be deemed to be duly given and the meeting to be duly held, when the notice is given and the meeting held in manner provided by this Act or the articles.

Resolutions requiring special notice

144. Where, by any provision hereafter contained in this Act, special notice is required of a resolution, the resolution shall not be effective, unless notice of the intention to move it has been given to the company not less than 28 days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice thereof, either by advertisement in a newspaper having an appropriate circulation or in any other mode allowed by the articles, not less than 21 days before the meeting:

Provided that, if, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date 28 days or less after the notice has been given, the notice, though not given within the time required by this subsection, shall be deemed to have been properly given for the purposes thereof.

Registration and copies of certain resolutions and agreements

145. (1) A printed or typewritten copy of every resolution or agreement to which this section applies shall, within 30 days after the passing or making thereof, be delivered to the registrar for registration.

(2) Where articles have been registered, a printed or typewritten copy of every such resolution or agreement for the time being in force shall be embodied in or annexed to every copy of the articles issued after the passing of the resolution or the making of the agreement.

(3) Where articles have not been registered, a printed or typewritten copy of every such resolution or agreement shall be forwarded to any member at his request on payment of 50 cents or such less sum as the company may direct.

(4) This section shall apply to-

(a) special resolutions;

(b) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose, unless they had been passed as special resolutions;

(c) resolutions or agreements which have been agreed to by all the members of some class of shareholders but which, if not so agreed to, would not have been effective for their purpose, unless they had been passed by some particular majority or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of shareholders, though not agreed to by all those members;

(d) resolutions requiring a company to be wound up voluntarily, passed under paragraph (a) of subsection (1) of section 272.

(5) If a company fails to comply with subsection (1), the company and every officer of the company who is in default shall be liable to a default fine of $4.

(6) If a company fails to comply with subsection (2) or subsection (3), the company and every officer of the company who is in default shall be liable to a fine not exceeding $2 for each copy in respect of which default is made.

(7) For the purposes of subsections (5) and (6), a liquidator of the company shall be deemed to be an officer of the company.

Resolutions passed at adjourned meetings

146. Where a resolution is passed at an adjourned meeting of-

(a) a company;

(b) the holders of any class of shares in a company;

(c) the directors of a company, the resolution shall, for all purposes, be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date. Minutes of proceedings of meetings of company and of directors

147. (1) Every company shall cause minutes of all proceedings of general meetings, and of all proceedings at meetings of its directors, to be entered in books kept for that purpose.

(2) Any such minute, if purporting to be signed by the chairman of the meeting at which the proceedings were had, or by the chairman of the next succeeding general meeting or meeting of directors, as the case may be, shall be evidence of the proceedings.

(3) Where, in accordance with the provisions of this section, minutes have been made of the proceedings at any general meeting of the company or meeting of directors then, until the contrary is proved, the meeting shall be deemed to have been duly held and convened, and all proceedings thereat to have been duly transacted, and all appointments of directors, managers or liquidators shall be deemed to be valid.

(4) If a company fails to comply with subsection (1), the company and every officer of the company who is in default shall be liable to a default fine.

Inspection of minute books

148. **(1)*** The books containing the minutes of proceedings of any general meeting of a company shall be kept at the registered office of the company, and shall, during business hours (subject to such reasonable restrictions as the company may by its articles or in general meeting impose, so that not less than 2 hours in each day be allowed for inspection), be open to the inspection of any member without charge.

(2) Any member shall be entitled to be furnished, within 14 days after he has made a request in that behalf to the company, with a copy of any such minutes as aforesaid at a charge not exceeding 50 cents for every 100 words.

(3) If any inspection required under this section is refused or if any copy required under this section is not sent within the proper time, the company and every officer of the company who is in default shall be liable in respect of each offence to a fine not exceeding $4 and further to a default fine of $4.

(4) In the case of any such refusal or default, the court may, by order, compel an immediate inspection of the books in respect of all proceedings of general meetings or direct that the copies required shall be sent to the persons requiring them.

Division 8-Accounts and Audit

Keeping of books of account

149. (1) Every company shall cause to be kept, in the English language, proper books of account with respect to-

(a) all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;

(b) all sales and purchases of goods by the company;

(c) the assets and liabilities of the company.

(2) For the purposes of this section, proper books of account shall be deemed not to have been kept with respect to the matters aforesaid, if there are not kept such books as are necessary to give a true and fair view of the state of the company's affairs and to explain its transactions.

(3) A company shall retain the books of account kept under this section, or under section 122 of the repealed Act, for a period of 7 years after the financial year to which they relate.

(4) The books of account shall be kept at the registered office of the company or, at such other place in Fiji as the directors think fit, and shall, at all times, be open to inspection by the directors.

(5) If any person, being a director of a company, fails to take all reasonable steps to secure compliance by the company with the requirements of this section, or has, by his own wilLful act, been the course of any default by the company there under, he shall, in respect of each offence, be liable to imprisonment for a term not exceeding 12 months or to a fine not exceeding $1,000 or to both:

Provided that-

(i) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by the company with the requirements of this section, it shall be a defense to prove that he had reasonable ground to believe, and did believe, that a competent and reliable person was charged with the duty of seeing that those requirements were complied with and was in a position to discharge that duty; and

(ii) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the court, the offence was committed willfully.

Profit and loss account and balance sheet

150. (1) The directors of every company shall, at some date not later than 18 months after the incorporation of the company and subsequently once at least in every calendar year, lay before the company in general meeting a profit and loss account or, in the case of a company not trading for profit, an income and expenditure account for the period, in the case of the first account, since the incorporation of the company, and, in any other case, since the preceding account, made up to a date not earlier than the date of the meeting by more than 9 months or, in the case of a company carrying on business or having interests abroad, by more than 12 months:

Provided that, if the registrar, for any special reason, thinks fit to do so, he may-

(i) in the case of any company, extend the period of 18 months aforesaid, and, in the case of any company and with respect to any year, extend the period of 9 and 12 months aforesaid; and

(ii) in the case of any company, permit the account to be laid before the company after the end of the calendar year.

(2) The directors shall cause to be made out in every calendar year, and to be laid before the company in general meeting, a balance sheet as at the date to which the profit and loss account or the income and expenditure account, as the case may be is made up.

(3) If any person, being a director of a company, fails to take all reasonable steps to comply with the provisions of this section, he shall, in respect of each offence, be liable to a fine not exceeding $1,000.

Provided that, in any proceedings against a person in respect of an offence under this section, it shall be a defense to prove that he had reasonable ground to believe, and did believe, that a competent and reliable person was charged with the duty of seeing that the provisions of this section were complied with and was in a position to discharge that duty.

General provisions as to contents and form of accounts

151. (1) Every balance sheet of a company shall give a true and fair view of the state-of-affairs of the company as at the end of its financial year, and every profit and loss account of a company shall give a true and fair view of the profit or loss of the company for the financial year.

(2) A company's balance sheet and profit and loss account shall comply with the requirements of the Seventh Schedule so far as applicable thereto.

(3) Save as expressly provided in the following provisions of this section or in Part III of the Seventh Schedule, the requirements of subsection (2) and the said Schedule shall be without prejudice either to the general requirements of subsection (1) or to any other requirements of this Act.

(4) The registrar may, on the application, or with the consent of a company's directors, modify, in relation to that company, any of the requirements of this Act as to the matters to be stated in a company's balance sheet or profit and loss account (except the requirements of subsection (1)) for the purpose of adapting them to the circumstances of the company.

(5) Subsections (1) and (2) shall not apply to a company's profit and loss account, if-

(a) the company has subsidiaries; and

(b) the profit and loss account is framed as a consolidated profit and loss account dealing with all or any of the company's subsidiaries as well as the company and-

(i) complies with the requirements of this Act relating to consolidated profit and loss accounts; and

(ii) shows how much of the consolidated profit or loss for the financial year is dealt with in the accounts of the company.

(6) If any person, being a director of a company, fails to take all reasonable steps to secure compliance, as respects any accounts laid before the company in general meeting, with the provisions of this section and with the other requirements of this Act as to the matters to be stated in accounts, he shall, in respect of each offence, be liable to imprisonment for a term not exceeding 12 months or to a fine not exceeding $1,000, or to both:

Provided that-

(i) in any proceedings against a person in respect of an offence under this section, it shall be a defense to prove that he had reasonable ground to believe, and did believe, that a competent and reliable person was charged with the duty of seeing that the said provisions or the said other requirements, as the case may be, were complied with and was in a position to discharge that duty; and

(ii) a person shall, not be sentenced to imprisonment for any such offence unless, the opinion of the court, the offence was committed willfully.

(7) For the purposes of this section and the following provisions of this Act, except where the context otherwise requires-

(a) any reference to a balance sheet or profit and loss account shall include any notes thereon or document annexed thereto giving information which is required by this Act and is thereby allowed to be so given; and

(b) any reference to a profit and loss account shall be taken, in the case of a company not trading for profit, as referring to its income and expenditure account, and references to profit or to loss and, if the company has subsidiaries, references to a consolidated profit and loss account shall be construed accordingly. Obligation to lay group accounts before holding company

152. (1) Where, at the end of its financial year, a company has subsidiaries, accounts or statements (in this Act referred to as "group accounts") dealing as hereinafter mentioned with the state-of-affairs and profit or loss of the company and the subsidiaries shall, subject to subsection (2), be laid before the company in general meeting when the company's own balance sheet and profit and loss account are so laid.

(2) Notwithstanding anything in subsection (1)-

(a) group accounts shall not be required where the company is, at the end of its financial year, the wholly owned subsidiary of another body corporate incorporated in Fiji; and

(b) group, accounts need not deal with a subsidiary of the company, if the company's directors are of opinion that-

(i) it is impracticable, or would be of no real value to members of the company, in view of the insignificant amounts involved, or would involve expense or delay out of proportion to the value to members of the company; or

(ii) the result would be misleading, or harmful to the business of the company or any of its subsidiaries; or

(iii) the business of the holding company and that of the subsidiary are so different that they cannot reasonably be treated as a single undertaking, and, if the directors are of such an opinion about each of the company's subsidiaries, group accounts shall not be required:

Provided that the approval of the registrar shall be required for not dealing in group accounts with a subsidiary on the ground that the result would be harmful, or on the ground of the difference between the business of the holding company and that of the subsidiary.

(3) If any person, being a director of a company, fails to take all reasonable steps to secure compliance as respects the company with the provisions of this section, he shall, in respect of each offence, be liable to a fine not exceeding $1,000,

Provided that, in any proceedings against a person in respect of an offence under this section, it shall be a defense to prove that he had reasonable ground to believe, and did believe, that a competent and reliable person was charged with the duty of seeing that the requirements of this section were complied with and was in a position to discharge that duty.

(4) For the purposes of this section, a body corporate shall be deemed to be the wholly owned subsidiary of another, it has no members except that other and that other's wholly owned subsidiaries and its or their nominees.

Form of group accounts

153. (1) Subject to subsection (2), the group accounts laid before a holding company shall be consolidated accounts comprising-

(a) a consolidated balance sheet dealing with the state-of-affairs of the company and all the subsidiaries to be dealt with in group accounts;

(b) a consolidated profit and loss account dealing with the profit or loss of the company and those subsidiaries.

(2) If the company's directors are of opinion that it is better, for the purpose-

(a) of presenting the same or equivalent information about the state-of-affairs and profit and loss of the company and those subsidiaries; and

(b) of so presenting it that it may be readily appreciated by the company's members, the group accounts may be prepared in a form other than that required by subsection (1) and, in particular, may consist of more than 1 set of consolidated accounts dealing respectively with the company and 1 group of subsidiaries and with other groups of subsidiaries or of separate accounts dealing with each of the subsidiaries, or of statements expanding the information about the subsidiaries in the company's own accounts, or any combination of those forms.

(3) The group accounts may be wholly or partly incorporated in the company's own balance sheet and profit and loss account.

Contents of group accounts

154. (1) The group accounts laid before a company shall give a true and fair view of the state-of-affairs and profit or loss of the company and the subsidiaries dealt with thereby as a whole, so far as concerns members of the company.

(2) Where the financial year of a subsidiary does not coincide with that of the holding company, the group accounts shall, unless the registrar, on the application or with the consent of the holding company's directors, otherwise directs, deal with the subsidiary's state-of-affairs as at the end of its financial year ending with or last before that of the holding company, and with the subsidiary's profit or loss for that financial year.

(3) Without prejudice to subsection (1), the group accounts, if prepared as consolidated accounts shall comply with the requirements of the Seventh Schedule, so far as applicable thereto and, if not so prepared, shall give the same or equivalent information:

Provided that the registrar may, on the application or with the consent of a company's directors, modify the said requirements in relation to that company for the purpose of adapting them to the circumstances of the company.

Financial year of holding company and subsidiary

155. (1) A holding company's directors shall ensure that, except where, in their opinion, there are good reasons against it, the financial year of each of its subsidiaries shall coincide with the company's own financial year.

(2) Where it appears to the registrar desirable for a holding company or a holding company's subsidiary to extend its financial year so that the subsidiary's financial year may end with, that of the holding company and, for that purpose, to postpone the submission of the relevant accounts to a general meeting from 1 calendar year to the next, the registrar may, on the application or with the consent of the directors of the company whose financial year is to be extended, direct that, in the ease of that company, the submission of accounts to a general meeting, the holding of an annual general meeting or the making of an annual return shall not be required in the earlier of the said calendar years.

Meaning of "holding company" and "subsidiary"

156. (1) For the purposes of this Act, a company shall, subject to the provisions of subsection (3), be deemed to be a subsidiary of another if, but only if-

(a) that other either-

(i) is a member of it and controls the composition of its board of directors; or

(ii) holds more than half in nominal value of its equity share capital; or

(b) the first-mentioned company is a subsidiary of any company which is that other's subsidiary.

(2) For the purposes of subsection (1), the composition of a company's board of directors shall be deemed to be controlled by another company if, but only if, that other company, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove the holders of all or a majority of the directorships; but, for the purposes of this provision, that other company shall be deemed to have power to appoint to a directorship with respect to which any of the following conditions is satisfied, that is to say:-

(a) that a person cannot be appointed thereto without the exercise in his favor by that other company of such a power as aforesaid; or

(b) that a person's appointment thereto follows necessarily from his appointment as director of that other company.

(3) In determining whether 1 company is a subsidiary of another-

(a) any shares held or power exercisable by that other in a fiduciary capacity shall be treated as not held or exercisable by it;

(b) subject to paragraphs (c) and (d), any shares held or power exercisable-

(i) by any person as a nominee for that other (except where that other is concerned only in a fiduciary capacity); or

(ii) by, or by a nominee for, a subsidiary of that other, not being a subsidiary which is concerned only in a fiduciary capacity, shall be treated as held or exercisable by that other;

(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned company or of a trust deed for securing any issue of such debentures shall, be disregarded;

(d) any shares held or power exercisable by, or by a nominee for, that other or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other, if the ordinary business of that other or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that, business.

(4) For the purposes of this Act, a company shall be deemed to be another's holding company if, but only if, that other is its subsidiary.

(5) In this section, "company" includes anybody corporate, and "equity share capital" means, in relation to a company, its issued share capital, excluding any part thereof which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution.

Signing of balance sheet

157. (1) Every balance sheet of a company shall be signed on behalf of the board by 2 of the directors of the company.

(2) In the case of a banking company, the balance sheet must be signed by a secretary or manager, if any, and, where there are more than 3 directors of the company, by at least 3 of those directors, and, where there are not more than 3 directors, by all the directors.

(3) When the total number of the directors of the company for the time being in Fiji is less than the number of directors whose signatures are required by this section, the balance sheet shall be signed by all the directors for the time being in Fiji or, if there is only 1 director for the time being in Fiji, by such director, but, in any such case, there shall be subjoined to the balance sheet a statement signed by such directors or director explaining the reason for non-compliance with the provisions of this section.

(4) If any copy of a balance sheet which has not been signed as required by this section is issued, circulated or published, the company and every officer of the company who is in default shall be liable to a fine not exceeding $100.

Accounts and auditors' report to be annexed to balance sheet

158. (1) The profit and loss account, and, so far as not incorporated in the balance sheet or profit and loss account, any group accounts laid before the company in general meeting, shall be annexed to the balance sheet, and the auditors' report, if any, shall be attached thereto.

(2) Any accounts so annexed shall be approved by the board of directors before the balance sheet is signed on their behalf.

(3) If any copy of a balance sheet is issued, circulated or published without having annexed thereto a copy of the profit and loss account or any group accounts required by this section to be so annexed, or without having attached thereto a copy of the auditors' report, if any, the company and every officer of the company who is in default shall be liable to a fine not exceeding $100.

Directors' report to be attached to balance sheet

159. (1) There shall be attached to every balance sheet laid before a company in general meeting a report by the directors with respect to the state of the company's affairs, the amount, if any, which they recommend should be paid by way of dividend, and the amount, if any, which they propose to carry to reserves within the meaning of the Seventh Schedule.

(2) The said report shall deal, so far as is material for the appreciation of the state of the company's affairs by its members and will not, in the directors' opinion, be harmful to the business of the company or of any of its subsidiaries, with any change during the financial year in the nature of the company's business, or in the company's subsidiaries, or in the classes of business in which the company has an interest, whether as member of another company or otherwise.

(3) If any person, being a director of a company, fails to take all reasonable steps to comply with the provisions of subsection (1), he shall, in respect of each offence, be liable to a fine not exceeding $1,000:

Provided that, in any proceedings against a person in respect of an offence under subsection (1), it shall be a defense to prove that he had reasonable ground to believe, and did believe, that a competent and reliable person was charged with the duty of seeing that the provisions of that subsection were complied with and was in a position to discharge that duty.

Right to receive copies of balance sheets and auditors' report

160. (1) A copy of every balance sheet, including every document required by law to be annexed thereto, which is to be laid before a company in general meeting, together with a copy of the auditors' report, if any, shall, not less than 21 days before the date of the meeting, be sent to every member of the company (whether he is or is not entitled to receive notices of general meetings of the company), every holder of debentures of the company (whether he is or is not so entitled) and all persons other than members or holders of debentures of the company, being persons so entitled:

Provided that-

(i) in the case of a company not having a share capital, this subsection shall not require the sending of a copy of the documents aforesaid to a member of the company who is not entitled to receive notices of general meetings of the company or to a holder of debentures of the company who is not so entitled;

(ii) this subsection shall not require a copy of those documents to be sent-

(a) to a member of the company or a holder of debentures of the company, being, in either case, a person who is not entitled to receive notices of general meetings of the company and of whose address the company is unaware;

(b) to more than 1 of the joint holders of any shares or debentures, none of whom are entitled to receive such notices; or

(c)in the case of joint holders of any shares or debentures, some of whom are and some of whom are not entitled to receive such notices, to those who are not so entitled; and

(iii) if the copies of the documents aforesaid are sent less than 21 days before the date of the meeting, they shall, notwithstanding that fact, be deemed to have been duly sent, if it so agreed by all the members entitled to attend and vote at the meeting.

(2) Any member of a company, whether he is or is not entitled to have sent to him copies of the company's balance sheets, and any holder of debentures of the company, whether he is or is not so entitled, shall be entitled to be furnished, on demand, without charge, with a copy of the last balance sheet of the company, including every document required by law to be annexed thereto, together with a copy of the auditors' report, if any, on the balance sheet.

(3) If default is made in complying with subsection (1), the company and every officer of the company who is in default shall be liable to a fine not exceeding $100, and if, when any person makes a demand for any document with which he is, by virtue of subsection (2), entitled to be furnished, default is made in complying with the demand within a reasonable period after the making thereof, the company and every officer of the company who is in default shall be liable to a default fine, unless it is proved that that person has already made a demand for and been furnished with a copy of the document.

(4) The foregoing provisions of this section shall not have effect in relation to a balance sheet of a private company laid before it before 1 January 1984, and the right of any person to be furnished with a copy of any such balance sheet and the liability of the company in respect of a failure to satisfy that right shall be the same as they would have been if this Act had not passed.

Appointment and remuneration of auditors

161. (1) Subject to section 162, every company shall, at each annual general meeting, appoint auditor or auditors to hold office from the conclusion of that, until the conclusion of the next, annual general meeting.

(2) Notwithstanding the provisions of subsection (1), at any annual general meeting, a retiring auditor, however appointed, shall be deemed to be reappointed without any resolution being passed, unless-

(a) he is not qualified for reappointment; or

(b) a resolution has been passed at that meeting appointing somebody instead of him or providing expressly that he shall not be reappointed; or

(c) he has given the company notice in writing of his unwillingness to be reappointed:

Provided that, where notice is given of an intended resolution to appoint some person or persons in place of a retiring auditor, and by reason of the death, incapacity or disqualification of that person or of all those persons, as the case may be, the resolution cannot be proceeded with, the retiring auditor shall not be deemed to be automatically reappointed by virtue of this subsection.

(3) Where, at an annual general meeting, no auditors are appointed or are deemed to be reappointed, the registrar may appoint a person to fill the vacancy.

(4) The company shall, within 7 days of the registrar's power under subsection (3) becoming exercisable, give him notice of that fact, and, if a company fails to give notice as required by this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

(5) Subject as hereinafter provided, the first auditors of a company may be appointed by the directors at any time before the first annual general meeting, and auditors so appointed shall hold of ice until the conclusion that meeting:

Provided that-

(i) the company may, at a general meeting, remove any such auditors and appoint in their place any other persons who have been nominated for appointment by any member of the company and of whose nomination notice has been given to the members of the company not less than 14 days before the date of the meeting; and

(ii) if the directors fail to exercise their powers under this subsection, the company in general meeting may appoint the first auditors, and thereupon the said powers of the directors shall cease.

(6) The directors may fill any casual vacancy in the office of auditor but, while any such vacancy continues, the surviving or continuing auditor or auditors, if any, may act.

(7) (a) the remuneration of the auditors of a company-

(i) in the case of an auditor appointed by the directors or by the registrar, may be fixed by, the directors or by the registrar as the case may be;

(ii) subject to sub paragraph (i), shall be fixed by the company in general meeting or in such manner as the company in general meeting may determine.

(b) For the purposes of this subsection, any sums paid by the company in respect of the auditors' expenses shall be deemed to be included in the expression "remuneration".

Operation of section 161 in relation to private companies

162. (1) Section 161 shall not apply to a private company, not being a private company which is required to comply with section 130, in respect of any annual general meeting, if, at or before that meeting, all the members of the company having the right to vote on that resolution pass a unanimous resolution that no auditor be appointed at that meeting.

(2) Every such resolution shall expire at the commencement of the next annual general meeting after the meeting to which it relates.

(3) Where a resolution under this section is passed-

(a) section 145 shall apply to the resolution;

(b) the registrar may, at any time before the next annual general meeting, if he thinks fit, on the application or with the consent of any member or creditor of the company, or of his own motion, appoint an auditor or auditors to hold office until the conclusion of the next annual general meeting;

(c) every balance sheet of the company prepared while the company has no auditor shall include a statement that the accounts have not been audited; and subsection (6) of section 151 shall apply in every case of failure to comply with this paragraph.

Provisions as to resolution relating to appointment and removal of auditors

163. (1) Special notice shall be required for a resolution at a company's annual general meeting appointing as auditor a person other than a retiring auditor or providing expressly that a retiring auditor shall not be reappointed.

(2) On receipt of notice of such an intended resolution as aforesaid, the company shall forthwith send a copy thereof to the retiring auditor (if any).

(3) Where notice is given of such an intended resolution as aforesaid and the retiring auditor makes, with respect to the intended resolution, representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so-

(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made; and

(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company), and, if a copy of the representations is not sent as aforesaid because received too late or because of the company's default, the auditor may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:

Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs, on an application under this section, to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application.

(4) Subsection (3) shall apply to a resolution to remove the first auditors by virtue of subsection (5) of section 161 as it applies in relation to a resolution that a retiring auditor shall not be reappointed.

Disqualifications for appointment as auditor

164. (1) A person or firm shall not be qualified for appointment as auditor of a company which is not a private company, or of a private company to which section 130 applies, unless he, or in the case of a firm, every partner in the firm, is the holder of a certificate of public practice issued by the Fiji Institute of Accountants.

(2) (a) None of the following persons shall be qualified for appointment as auditor of a company-

(i) an officer or servant of the company;

(ii) a person who is a partner of or in the employment of an officer or servant of the company;

(iii) a body corporate.

(b) References in this subsection to an officer or servant shall be construed as not including references to an auditor.

(3) A person shall also not be qualified for appointment as auditor of a company if he is, by virtue of subsection (2), disqualified for appointment as auditor of any other body corporate which is that company's subsidiary or holding company or a subsidiary of that company's holding company, or would be so disqualified, if the body corporate were a company.

(4) If any person who is not qualified so to act is appointed as auditor of a company, such person and the company and every officer in default shall each be liable to a fine not exceeding $400.

(5) This section shall not apply to the person who holds office as, or is for the time being exercising the powers and performing the duties of, the Auditor-General.

Auditors' report and right of access to books and to attend and be heard at general meetings

165. (1) The auditors shall make a report to the members on the accounts examined by them, and on every balance sheet, every profit and loss account and all group accounts laid before the company in general meeting during their tenure of office, and the report shall contain statements as to the matters mentioned in the Eighth Schedule.

(2) The auditors' report shall be read before the company in general meeting and shall be open to inspection by any member.

(3) Every auditor of a company shall have a right of access, at all times, to the books and accounts and vouchers of the company, and shall be entitled to require from the officers of the company such information and explanations as he thinks necessary for the performance of the duties of the auditors.

(4) The auditors of a company shall be entitled to attend any general meeting of the company and to receive all notices of and other communications relating to any general meeting which any member of the company is entitled to receive and to be heard at any general meeting which they attend on any part of the business of the meeting which concerns them as auditors.

Construction of references to documents annexed to accounts

166. References in this Act to a document annexed or required to be annexed to a company's accounts or any of them do not include the directors' report or the auditors' report:

Provided that any information which is required, by this Act, to be given in accounts, and is thereby allowed to be given in a statement annexed, may be given in the directors' report instead of in the accounts and, if any such information is so given, the report shall be annexed to the accounts and this Act shall apply in relation thereto accordingly, except that the auditors shall report thereon only so far as it gives the said information.

Division 9-Investigation by the Registrar

Investigation by registrar

167. (1) (a) Where the registrar has reasonable cause to believe that the provisions of this Act are not being complied with, or where, on perusal of any document which a company is required to submit to him under the provisions of this Act, he is of opinion that the document does not disclose a full and fair statement of the matters to which it purports to relate, he may, by a written order, call on the company concerned to produce all or any of the books of the company or to furnish, in writing, such information or explanation as he may specify in his order.

(b) Such books shall be produced and such information or explanation shall be furnished within such time as may be specified in the order.

(2) On receipt of an order under subsection (1), it shall be the duty of all persons who are or have been officers of the company to produce such books or to furnish such information or explanation, so far as lies within their power.

(3) If any such person refuses or neglects to produce such books or to furnish any such information or explanation he shall be liable to a fine not exceeding $100 in respect of each offence.

(4) If, after examination of such books or consideration of such information or explanation, the registrar is of the opinion that an unsatisfactory state-of-affairs is disclosed or that a full and fair statement has not been disclosed, the registrar shall report the circumstances of the case, in writing, to the court.

Division 10-Inspection

Investigation of company's affairs on application of members

168. (1) The court may appoint 1 or more competent inspectors to investigate the affairs of a company and to report thereon in such manner as the court directs-

(a) in the case of a company having a share capital, on the application either of not fewer than 200 members or of members holding not less than one-tenth of the shares issued;

(b) in the case of a company not having a share capital, on the application of not less than one-fifth in number of the persons on the company's register of members.

(2) The application shall be supported by such evidence as the court may require for the purpose of showing that the applicants have good reason for requiring the investigation, and the court may, before appointing an inspector, require the applicants to give security, to an amount not exceeding $1,000, for payment of the costs of the investigation.

Investigation of company's affairs in other cases

169. Without prejudice to its powers under section 168, the court-

(a) shall appoint 1 or more competent inspectors to investigate the affairs of a company and to report thereon in such manner as the court directs, if the company by special resolution declares that its affairs ought to be investigated by an inspector appointed by the court; and

(b) may do so, if it appears to the court upon a report from the registrar that there are circumstances suggesting-

(i) that the company's business is being conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose or in a manner oppressive of any part of its members or that it was formed for any fraudulent or unlawful purpose; or

(ii) that persons concerned with its formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members; or

(iii) that its members have not been given all the information with respect to its affairs which they might reasonably expect; or

(iv) that it is desirable so to do.

Power of inspectors to carry investigation into affairs of related companies

170. If an inspector appointed under either section 168 or section 169 to investigate the affairs of a company thinks it necessary for the purposes of his investigation to investigate also the affairs of any other body corporate which is or has, at any relevant time, been the company's subsidiary or holding company or a subsidiary of its holding company or a holding company of its subsidiary, he shall have power so to do, and shall report on the affairs of the other body corporate so far as he thinks the results of his investigation thereof are relevant to the investigation of the affairs of the first-mentioned company.

Production of documents and evidence on investigation

171. (1) It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of section 170 to produce to any inspector all books and documents of or relating to the company or, as the case may be, the other body corporate which are in their custody or power and otherwise to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give.

(2) An inspector may examine on oath the officers and agents of the company or other body corporate in relation to its business, and may administer an oath accordingly.

(3) If any officer or agent of the company or other body corporate refuses to produce to any inspector any book or document which it is his duty under this section so to produce, or refuses to answer any question which is put to him by an inspector with respect to the affairs of the company or other body corporate, as the case may be, the inspector may certify the refusal under his hand to the court, and the court may thereupon inquire into the case, and after hearing any witnesses who may be produced against or on behalf of the alleged offender and, after hearing any statement which may be offered in defense, punish the offender in like manner as if he had been guilty of contempt of the court.

(4) If an inspector thinks it necessary for the purpose of his investigation that a person whom he has no power to examine on oath should be so examined, he may apply to the court and the court may, if it sees fit, order that person to attend and be examined on oath before it on any matter relevant to the investigation and, on any such examination-

(a) the inspector may take part therein, either personally or by barrister and solicitor;

(b) the court may put such questions to the person examined as the court thinks fit;

(c) the person examined shall answer all such questions as the court may put or allow to be put to him, but may, at his own cost, employ a barrister and solicitor, who shall be at liberty to put to him such questions as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him, and notes of the examination shall be taken down in writing and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him:

Provided that, notwithstanding anything in paragraph (c), the court may allow the person examined such costs as, in its discretion, it may think fit, and any costs so allowed shall be paid as part of the expenses of the investigation.

(5) In this section, any reference to officers or to agents includes past, as well as present, officers or agents, as the case may be and, for the purposes of this section, "agents", in relation to a company or other body corporate, includes the bankers and barristers and solicitors of the company or other body corporate and any persons employed by the company or other body corporate as auditors, whether those persons are or are not officers of the company or other body corporate.

Inspector's report

172. (1) (a) An inspector may, and, if so directed by the court, shall, make interim reports to the court and, on the conclusion of the investigation, shall make a final report to the court.

(b) Any such report shall be written or, if the court so directs, printed.

(2) The court shall-

(a) forward a copy of any report made by an inspector to the company and to the registrar;

(b) if the court thinks fit, forward a copy thereof, on request and on payment of the prescribed fee, to any other person who is a member of the company or of any other body corporate dealt with in the report by virtue of section 170, or whose interests as a creditor of the company or any such other body corporate as aforesaid appear to the court to be affected;

(c) where any inspector is appointed under section 168, furnish, at the request of the applicants for the investigation, a copy to them, and may also cause the report to be printed and published. Proceedings on inspector's reports

173. (1) (a) If, from any report made under section 172, it appears to the court that any person has, in relation to the company or to any other body corporate whose affairs have been investigated by virtue of section 170, been guilty of any offence for which he is criminals liable, the court shall forward a copy of the report to the Director of Public Prosecutions, and, if the Director of Public Prosecutions considers that the case is one in which a prosecution ought to be instituted, he shall institute proceedings accordingly, and it shall be the duty of all officers and agents of the company, past and present (other than the defendant in the proceedings), to give to him all assistance in connection with the prosecution which they are reasonably able to give.

(b) Subsection (5) of section 171 shall apply, for the purposes of this subsection, as it applies for the purpose of that section.

(2) If, in the case of any body corporate liable to be wound up under this Act, it appears to the Attorney-General, from any such report as aforesaid, that it is expedient so to do by reason of any such circumstances as are referred to in sub paragraph (i) or sub paragraph (ii) of paragraph (b) of section 169, the Attorney-General may, unless the body corporate is already being wound up by the court, present a petition for it to be so wound up, if the court thinks it just and equitable that it should be wound up, or a petition for an order under section 212, or both.

(3) If, from any such report as aforesaid, it appears to the Attorney-General that proceedings ought, in the public interest, to be brought by any body corporate dealt with by the report for the recovery of damages in respect of any fraud, misfeasance or other misconduct in connection with the promotion or formation of that body corporate or the management of its affairs, or for the recovery of any property of the body corporate which has been misapplied or wrongfully retained, he may himself bring proceedings for that purpose in the name of the body corporate.

(4) The registrar shall indemnify the body corporate against any costs or expenses incurred by it in or in connection with any proceedings brought by virtue of subsection (3).

Expenses of investigation of company's affairs

174. (1) The expenses of and incidental to an investigation by an inspector appointed by the court under the foregoing provisions of this Act shall be defrayed in the first instance by the registrar, but the following persons shall, to the extent mentioned, be liable to repay the registrar:-

(a) any person who is ordered to pay damages or restore any property in proceedings brought by virtue of subsection (3) of section 173, may, in the same proceedings, be ordered to pay the said expenses to such extent as may be specified in the order;

(b) any body corporate in whose name proceedings are brought as aforesaid shall be liable to the amount or value of any sums or property recovered by it as a result of those proceedings;

(c) unless, as a result of the investigation, a prosecution is instituted by the Director of Public Prosecutions-

(i) any body corporate dealt with by the report, where the inspector was appointed otherwise than under paragraph (b) of section 169, shall be liable, except so far as the court otherwise directs; and

(ii) the applicants for the investigation, where the inspector was appointed under section 168, shall be liable to such extent (if any) as the court directs, and any amount for which a body corporate is liable by virtue of paragraph (b) of this subsection shall be a first charge on the sums or property mentioned in that paragraph.

(2) The report of an inspector appointed otherwise than under paragraph (b) of section 169 may, if he thinks fit, and shall, if the court so directs, include a recommendation as to the directions (if any) which he thinks appropriate, in the light of his investigation, to be given under paragraph (c) of subsection (1) of this section.

(3) For the purposes of this section, any costs or expenses incurred by the registrar in or in connection with proceedings brought by virtue of subsection (3) of section 173 (including expenses incurred by virtue of subsection (4) of that section) shall be treated as expenses of the investigation giving rise to the proceedings.

(4) Any liability to repay the registrar imposed by paragraphs (a) and (b) of subsection (1) shall, subject to satisfaction of the registrar's right to repayment, be a liability also to indemnify all persons against liability under paragraph (c) thereof, and any such liability imposed by paragraph (a) shall, subject as aforesaid, be a liability also to indemnify all persons against liability under paragraph (b); and any person liable under paragraph (a) or (b) or either subparagraph of paragraph (c) shall be entitled to contribution from any other person liable under the same paragraph or subparagraph, as the case may be, according to the amount of their respective liabilities there under.

Inspector's report to be evidence

175. A copy of any report of any inspector appointed under the foregoing provisions of this Act, authenticated by the seal of the company whose affairs have been investigated, shall be admissible in any legal proceedings as evidence of the opinion of the inspector in relation to any matter contained in the report.

Appointment and powers of inspectors to investigate ownership of company

176. (1) Where it appears to the registrar that there is good reason so to do, he may appoint 1 or more competent inspectors to investigate and report on the membership of any company, and otherwise with respect to the company, for the purpose of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence the policy of the company.

(2) The appointment of an inspector under this section may define the scope of his investigation, whether as respects the matter or the period to which it is to extend or otherwise, and, in particular, may limit the investigation to matters connected with particular shares or debentures.

(3) Where an application for an investigation under this section with respect to particular shares or debentures of a company is made to the registrar by members of the company, and the number of applicants or the amount of the shares held by them is not less than that required for an application for the appointment of an inspector under section 168, the registrar shall appoint an inspector to conduct the investigation, unless he is satisfied that the application is vexatious, and the inspector's appointment shall not exclude from the scope of his investigation any matter which the application seeks to have included therein, except in so far as the registrar is satisfied that it is unreasonable for that matter to be investigated:

Provided that the registrar may refuse to appoint an inspector under this subsection unless, in any case in which he considers it reasonable so to require, the applicants give sufficient security for the payment of the costs of the investigation.

(4) Subject to the terms of an inspector's appointment, his powers shall extend to the investigation of any circumstances suggesting the existence of an arrangement or understanding which, though not legally binding, is or was observed or likely to be observed in practice and which is relevant to the purposes of his investigation.

(5) For the purposes of any investigation under this section, sections 170 to 172 shall apply with the necessary modifications of references to the affairs of the company or to those of any other body corporate, so, however, that-

(a) the said sections shall apply in relation to all persons who are or have been, or whom the inspector has reasonable cause to believe to be or have been, financially interested in the success or failure, or the apparent success or failure, of the company or any other body corporate whose membership is investigated with that of the company, or able to control or materially to influence the policy thereof, including persons concerned only on behalf of others, as they apply in relation to officers and agents of the company or of the other body corporate, as the case may be; and

(b) the registrar shall not be bound to furnish the company or any other person with a copy of any report by an inspector appointed under this section or with a complete copy thereof, if he is of opinion that there is good reason for not divulging the contents of the report or of parts thereof, but shall keep a copy of any such report or, as the case may be, the parts of any such report, as respects which he is not of that opinion.

(6) (a) The expenses of any investigation under subsection (1) shall be defrayed by the registrar.

(b) The expenses of any investigation under subsection (3) shall be defrayed by the applicants, unless the registra certifies that it is a case in which he might properly have acted under subsection (1).

Power to require information as to persons interested in shares or debentures

177. (1) Where it appears to the registrar that there is good reason to investigate the ownership of any shares in or debentures of a company and that it is unnecessary to appoint an inspector for the purpose, he may require any person whom he has reasonable cause to believe-

(a) to be or to have been interested in those shares or debentures; or

(b) to act or to have acted in relation to those shares or debentures as the barrister and solicitor or agent of someone interested therein, to give him any information which he has or can reasonably be expected to obtain as to the present and past interests in those shares or debentures and the names and addresses of the persons interested and of any persons who act or have acted on their behalf in relation to the shares or debentures.

(2) For the purposes of this section, a person shall be deemed to have an interest in a share or debenture, if he has any right to acquire or dispose of the share or debenture or any interest therein or to vote in respect thereof, or if his consent is necessary for the exercise of any of the rights of other persons interested therein, or if other persons interested therein can be required or are accustomed to exercise their rights in accordance with his instructions.

(3) Any person who fails to give any information required of him under this section, or who, in giving any such information, makes any statement which he knows to be false in a material particular, shall be liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,000, or to both.

Power to impose restrictions on shares or debentures

178. (1) Where, in connection with an investigation under either section 176 or section 177, it appears to the registrar that there is difficulty in finding out the relevant facts about any shares (whether issued or to be issued), and that the difficulty is due wholly or mainly to the unwillingness of the persons concerned or any of them to assist the investigation as required by this Act, the registrar may, by order, direct that the shares shall, until further order, be subject to the restrictions imposed by this section.

(2) So long as any shares are directed to be subject to the restrictions imposed by this section-

(a) any transfer of those shares, or, in the case of unissued shares, any transfer of the right to be issued therewith and any issue thereof, shall be void; and

(b) no voting rights shall be exercisable in respect of those shares; and

(c) no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder thereof; and

(d) except in a liquidation, no payment shall be made of any sums due from the company on those shares, whether in respect of capital or otherwise.

(3) Where the registrar makes an order directing that shares shall be subject to the said restrictions, or refuses to make an order directing that shares shall cease to be subject thereto, any person aggrieved thereby may apply to the court, and the court may, if it sees fit, direct that the shares shall cease to be subject to the said restrictions.

(4) Any order (whether of the registrar or of the court) directing that shares shall cease to be subject to the said restrictions which is expressed to be made with a view to permitting a transfer of those shares may continue the restrictions mentioned in paragraphs (c) and (d) of subsection (2), either in whole or in part, so far as they relate to any right acquired or offer made before the transfer.

(5) Any person who-

(a) exercises or purports to exercise any right to dispose of any shares which, to his knowledge, are, for the time being, subject to the said restrictions or of any right to be issued with any such shares; or

(b) votes in respect of any such shares, whether as holder or proxy, or appoints a proxy to vote in respect thereof; or

(c) being the holder of any such shares, fails to notify of their being subject to the said restrictions any person whom he does not know to be aware of that fact but does know to be entitled, apart from the said restrictions, to vote in respect of those shares whether as holder or proxy, shall be liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,000, or to both.

(6) Where shares in any company are issued in contravention of the said restrictions, the company and every officer of the company who is in default shall be liable to a fine not exceeding $1,000.

(7) A prosecution shall not be instituted under this section, except by or with the consent of the Director of Public Prosecutions.

(8) This section shall apply in relation to debentures as it applies in relation to shares.

Saving for barristers and solicitors and bankers

179. Nothing in the foregoing provisions of this Part shall require disclosure to the court or to the registrar or to an inspector appointed by the court or the registrar-

(a) by a barrister and solicitor of any privileged communication made to him in that capacity, except as respects the name and address of his client; or

(b) by a company's bankers as such of any information as to the affairs of any of their customers other than the company.

Division 11-Directors and Other Officers

Directors

180. (1) Every company other than a private company shall have at least 3 directors and every private company shall have at least 2 directors.

(2) A person is incapable of being appointed as a director of a company, unless he is a natural person.

(3) In the case of a company other than a private company, at least 2 directors shall be persons who ordinarily reside in Fiji and, in the case of a private company, at, least 1 director shall be a person who ordinarily so resides.

(4) This section applies to a company whether registered before or after 1 January 1984.

(5) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding $500.

Secretary

181. (1) Every company shall have at least 1 secretary.

(2) A secretary of a company shall be appointed by the directors.

(3) A person is not capable of being a secretary of a company, unless the person is a natural person who has attained the age of 21 years.

(4) The secretary, or 1 of the secretaries, shall be a person who ordinarily resides in Fiji.

(5) Anything required or authorized to be done by or to a secretary may, if the office is vacant, or there is, for any other reason, no secretary capable of acting, be done by or to any assistant or deputy secretary or, if there is no assistant or deputy secretary capable of acting, by or to any officer of the company authorized generally or specially in that behalf by a resolution of the board of directors.

(6) A provision of this Act or of the memorandum or articles requiring or authorizing any act or thing to be done by or to a director and a secretary is not satisfied by its being done by or to the same person acting both as director and as, or in place of, a secretary.

(7) This section applies to a company whether registered before or after 1 January 1984.

(8) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding $400.

Validity of acts of directors

182. The acts of a director or manager shall be valid, notwithstanding any defect that may afterwards be discovered in his appointment or qualification.

Restrictions on appointment or advertisement of director

183. (1) A person shall not be capable of being appointed director of a company by the articles, and shall not be named as a director or proposed director of a company in a prospectus issued by or on behalf of the company, or as proposed director of an intended company in a prospectus issued in relation to that intended company, or in a statement in lieu of prospectus delivered to the registrar by or on behalf of a company, unless, before the registration of the articles or the publication of the prospectus or the delivery of the statement in lieu of prospectus, as the case may be, he has, by himself or by his agent authorized in writing-

(a) signed and delivered to the registrar, for registration, a consent, in writing, to act as such director; and

(b) either-

(i) signed the memorandum for a number of shares not less than his qualification, if any; or

(ii) taken from the company and paid or agreed to pay for his qualification shares, if any; or

(iii) signed and delivered to the registrar, for registration, an undertaking, in writing, to take from the company and pay for his qualification shares, if any; or

(iv) made and delivered to the registrar, for registration, a statutory declaration to the effect that a number of shares, not less than his qualification, if any, are registered in his name.

(2) Where a person has signed and delivered as aforesaid an undertaking to take and pay for his qualification shares, he shall, as regards those shares, be in the same position as if he had signed the memorandum for that number of shares.

(3) References in this section to the share qualification of a director or proposed director shall be construed as including only a share qualification required on appointment or within a period determined by reference to the time of appointment and references therein to qualification shares shall be construed accordingly.

(4) On the application for registration of the memorandum and articles of a company, the applicant shall deliver to the registrar a list of the persons who have consented to be directors of the company, and, if this list contains the name of any person who has not so consented, the applicant shall be liable to a fine not exceeding $100.

(5) This section shall not apply to-

(a) a company not having a share capital; or

(b) a private company; or

(c) a company which was a private company before becoming a public company; or

(d) a prospectus issued by or on behalf of a company after the expiration of 1 year from the date on which the company was entitled to commence business

Share qualifications of directors

184. (1) Without prejudice to the restrictions imposed by section 183, it shall be the duty of every director who is, by the articles of the company, required to hold a specified share qualification, and who is not already qualified, to obtain his qualification within 2 months after his appointment, or such shorter time as may be fixed by the articles.

(2) For the purpose of any provision in the articles requiring a director or manager to hold a specified share qualification, the bearer of a share warrant shall not be deemed to be the holder of the shares specified in the warrant.

(3) The office of director of a company shall be vacated, if the director does not, within 2 months from the date of his appointment, or within such shorter time as may be fixed by the articles, obtain his qualification, or if, after the expiration of the said period or shorter time, he ceases at any time to hold his qualification.

(4) A person vacating office under this section shall be incapable of being reappointed director of the company until he has obtained his qualification.

(5) If, after the expiration of the said period or shorter time, any unqualified person acts as a director of the company, he shall be liable to a fine not exceeding $10 for every day between the expiration of the said period or shorter time or the day on which he ceased to be qualified, as the case may be, and the last day on which it is proved that ire acted as a director.

Appointment of directors to be voted on individually

185. (1) At a general meeting of a company other than a private company, a motion for the appointment of 2 or more persons as directors of the company by a single resolution shall not be made, unless a resolution that it shall be so made has first been agreed to by the meeting without any vote being given against it.

(2) A resolution moved in contravention of this section shall be void, whether or not its being so moved was objected to at the time:

Provided that-

(a) this subsection shall not be taken as excluding the operation of section 182; and

(b) where a resolution so moved is passed, no provision for the automatic reappointment of retiring directors in default of another appointment shall apply.

(3) For the purposes of this section, a motion for approving a person's appointment or for nominating a person for appointment shall be treated as a motion for his appointment.

(4) Nothing in this section shall apply to a resolution altering the company's articles.

Removal of directors

186. (1) A company may, by ordinary resolution, remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him:

Provided that this subsection shall not, in the case of a private company, authorize the removal of a director holding office for life immediately before 1 January 1984, whether or not subject to retirement under an age-limit by virtue of the articles or otherwise.

(2) Special notice shall be required of any resolution to remove a director under this section or to appoint somebody instead of a director so removed at the meeting at which he is removed, and, on receipt of notice of an intended resolution to remove a director under this section, the company shall forthwith send a copy thereof to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting.

(3) Where notice is given of an intended resolution to remove a director under this section and the director concerned makes, with respect thereto, representations, in writing, to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so-

(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made; and

(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company) and, if a copy of the representations is not sent as aforesaid because received too late or because of the company's default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:

Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs on an application under this section to be paid in whole or in part by the director, notwithstanding that he is not a party to the application.

(4) A vacancy created by the removal of a director under this section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy.

(5) A person appointed director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the person in whose place he is appointed was last appointed a director.

(6) Nothing in this section shall be taken as depriving a person removed there under of compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director or as derogating from any power to remove a director which may exist apart from this section.

Minimum age for appointment of directors, and retirement of directors over age limit

187. (1) Subject to the provisions of this section, no person shall be capable of being appointed a director of a company which is subject to this section, if, at the time of his appointment, he has not attained the age of 21, or he has attained the age of 75.

(2) Subject as aforesaid, a director of a company which is subject to this section shall vacate his office at the conclusion of the annual general meeting commencing next after he attains the age of 75:

Provided that acts done by a person as director shall be valid, notwithstanding that it is afterwards discovered that his appointment had terminated by virtue of this subsection.

(3) Where a person retires by virtue of subsection (2), no provision for the automatic reappointment of retiring directors in default of another appointment shall apply; and if, at the meeting at which he retires, the vacancy is not filled, it may be filled as a casual vacancy.

(4) Subsection (2) shall not apply to a director who was in office immediately before 1 January 1984 so as to terminate his then appointment before the conclusion of the third annual general meeting commencing on or after that date, but shall apply so as to terminate it at the conclusion of that meeting, if he has attained the age of 75 before the commencement of the meeting.

(5) Nothing in the foregoing provisions of this section shall prevent the appointment of a director at any age, or require a director to retire at any time, if his appointment is or was made or approved by the company in general meeting, but special notice shall be required of any resolution appointing or approving the appointment of a director for it to have effect for the purposes of this subsection and the notice thereof given to the company and by the company to its members must state or must have stated, the age of the person to whom it relates.

(6) A person reappointed director on retiring by virtue of subsection (2), or appointed in place of a director so retiring, shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the retiring director was last appointed before his retirement; but, except as provided by this subsection, the retirement of a director out of turn by virtue of subsection (2) shall be disregarded in determining when any other directors are to retire.

(7) In the case of a company first registered on or after 1 January 1984, this section shall have effect subject to the provisions of the company's articles; and, in the case of a company first registered before that date-

(a) this section shall have effect subject to any alterations of the company's articles made on or after that date; and

(b) if, immediately before that date, the company's articles contained provision for retirement of directors under an age limit or for preventing or restricting appointments of directors over a given age, this section shall not apply to directors to whom that provision applies.

(8) A company shall be subject to this section, if it is not a private company or if, being a private company, it is the subsidiary of a body corporate incorporated in Fiji which is not a private company; and, for the purposes of any other section of this Act which refers to a company subject to this section, a company shall be deemed to be subject to this section, notwithstanding that all or any of the provisions thereof are excluded or modified by the company's articles.

Duty on directors to disclose age to company

188. (1) Any person who is appointed or, to his knowledge, proposed to be appointed director of a company, subject to section 187, at a time before he has attained the age of 21 or after he has attained any retiring age applicable to him as director either under this Act or under the company's articles, shall give notice of his age to the company:

Provided that this subsection shall not apply in relation to a person's reappointment on the termination of a previous appointment as director of the company.

(2) Any person who-

(a) fails to give notice of his age as required by this section; or

(b) acts as, director under any appointment which is invalid or has terminated by reason of his age, shall be liable to a fine not exceeding $10 for every day during which the failure continues or during which he continues to act as aforesaid.

(3) for the purposes of subsection (2), a person who has acted as director under an appointment which is invalid or has terminated shall be deemed to have continued so to act throughout the period from the invalid appointment or the date on which the appointment terminated, as the case may be, until the last day on which he is proved to have acted there under.

Provisions as to undischarged bankrupts acting as directors

189. (1) If any person who has been declared bankrupt or insolvent by a competent court in Fiji or elsewhere and has not received his discharge acts as director of, or directly or indirectly takes part in or is concerned in the management of, any company, except with the leave of the court, he shall be liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1,000, or to both.

(2) The leave of the court, for the purposes of this section, shall not be given, unless notice of intention to apply therefor has been served on the official receiver, and it shall be the duty of the official receiver, if he is of opinion that it is contrary to the public interest that any such application should be granted, to attend on the hearing of and oppose the granting of the application.

(3) In this section, "company" includes an unregistered company and a company incorporated outside Fiji which has an established place of business within Fiji, and "official receiver" means the official receiver in bankruptcy.

Power to restrain fraudulent persons from managing companies

190. (1) Where-

(a) a person is convicted of any offence in connection with the promotion, formation or management of a company; or

(b) in the course of winding-up a company, it appears that a person-

(i) has been guilty of any offence for which he is liable (whether he has been convicted or not) under section 324; or

(ii) has otherwise been guilty, while an officer of the company, of any fraud in relation to the company or of any breach of his duty to the company, the court may make an order that that person shall not, without the leave of the court, be a director of or in any way, whether directly or indirectly, be concerned or take part in the management of the company for such period, not exceeding 5 years, as may be specified in the order.

**(2)*** In subsection (1), "the court", in relation to the making of an order against any person by virtue of paragraph (a) thereof, includes the court before which he is convicted, as well as any court having jurisdiction to wind up the company, and, in relation to the granting of leave, means any court having jurisdiction to wind up the company as respects which leave is sought.

(3) A person intending to apply for the making of an order under this section by the court having jurisdiction to wind up a company shall give not less than 10 days' notice of his intention to the person against whom the order is sought and, on the hearing of the application, the last mentioned person may appear and himself give evidence or call witnesses.

(4) An application for the making of an order under this section by the court having jurisdiction to wind up a company may be made by the official receiver, or by the liquidator of the company or by a person who is or has been a member or creditor of the company; and, on the hearing of any application for an order under this section by the official receiver or the liquidator, or of any application for leave under this section by a person against whom an order has been made on the application of the official receiver or the liquidator, the official receiver or liquidator shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.

(5) An order may be made by virtue of sub paragraph (ii) of paragraph (b) of subsection (1), notwithstanding that the person concerned may be criminally liable in respect of the matters on the ground of which the order is to be made and, for the purposes of that sub paragraph (ii), "officer" includes any person in accordance with whose directions or instructions the directors of the company have been accustomed to act.

(6) If any person acts in contravention of an order made under this section, he shall, in respect of each offence, be liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1,000, or to both.

Prohibition of tax-free payments to directors

191. (1) It shall not be lawful for a company to pay a director remuneration (whether as a director or otherwise) free of income tax or any other tax on income, or otherwise calculated by reference to or varying with the amount of his income tax or any other tax on income, or to or with the rate of income tax, except under a contract which was in force 2 years before the appointed day and provides expressly, and not by reference to the articles, for payment of remuneration as aforesaid.

(2) Any provision contained in a company's articles, or in any contract other than such a contract as aforesaid, or in any resolution of a company or a company's directors, for payment to a director of remuneration as aforesaid shall have effect as if it provided for payment, as a gross sum subject to income tax and any other tax or income, of the net sum for which it actually provides.

(3) This section shall not apply to remuneration due before 1 January 1984 or in respect of a period before the appointed day.

Prohibition of loans to directors

192. (1) It shall not be lawful for a company to make a loan to any person who is its director or a director of its holding company, or to enter into any guarantee or provide any security in connection with a loan made to such a person as aforesaid by any other person:

Provided that nothing in this section shall apply either-

(i) to anything done by a company which is for the time a private company; or

(ii) subject to subsection (2), to anything done to provide a person with funds to meet expenditure incurred or to be incurred by him for the purposes of the company or for the purpose of enabling him properly to perform his duties as an officer of the company; or

(iii) in the case of a company whose ordinary business includes the lending of money or the giving of guarantees in connection with loans made by other persons, to anything done by the company in the ordinary course of that business; or

(iv) to any loan to a director or guarantee or security in connection with such loan, made, entered into or provided under the repealed Acts.

(2) Paragraph (ii) of the proviso to subsection (1) shall not authorize the making of any loan, or the entering into any guarantee, or the provision of any security, except either-

(a) with the prior approval of the company given at a general meeting at which the purposes of the expenditure and the amount of the loan or the extent of the guarantee or security, as the case may be, are disclosed; or

(b) on condition that, if the approval of the company is not given as aforesaid at or before the next following annual general meeting, the loan shall be repaid or the liability under the guarantee or security shall be discharged, as the case may be, within 6 months from the conclusion of that meeting.

(3) Where the approval of the company is not given as required by any such condition, the directors authorizing the making of the loan, or the entering into the guarantee, or the provision of the security, shall be jointly and severally liable to indemnify the company against any loss arising therefrom.

Approval of company requisite for payment by it to director for loss of office, etc.

193. (1) It shall not be lawful for a company to make to any director of the company any payment by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, without particulars with respect to the proposed payment (including the amount thereof) being disclosed to members of the company and the proposal being approved by the company in general meeting.

(2) Where a payment which is hereby declared to be illegal is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.

Approval of company requisite for any payment, in connection with transfer of its property to director for loss of office, etc.

194. (1) It shall not be lawful, in connection with the transfer of the whole or any part of the undertaking or property of a company, for any payment to be made to any director of the company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, unless particulars with respect to the proposed payment (including the amount thereof) have been disclosed to the members of the company and the proposal approved by the company in general meeting.

(2) Where a payment which is hereby declared to be illegal is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.

Duty of director to disclose payment for loss of office, etc., made in connection with transfer of shares in company

195. (1) Where, in connection with the transfer to any persons of all or any of the shares in a company, being a transfer resulting from-

(a) an offer made to the general body of shareholders;

(b) an offer made by or on behalf of some other body corporate with a view to the company becoming its subsidiary or a subsidiary of its holding company;

(c) an offer made by or on behalf of an individual with a view to his obtaining the right to exercise or control the exercise of not less than one-third of the voting power at any general meeting of the company; or

(d) any other offer which is conditional on acceptance to a given extent, a payment is to be made to a director of the company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, it shall be the duty of that director to take all reasonable steps to secure that particulars with respect to the proposed payment (including the amount thereof) shall be included in or sent with any notice of the offer made for their shares which is given to any shareholders.

(2) If-

(a) any such director fails to take reasonable steps as aforesaid; or

(b) any person who has been properly required by any such director to include the said particulars in or send them with any such notice as aforesaid fails so to do, he shall be liable to a fine not exceeding $50.

(3) If-

(a) the requirements of subsection (1) are not complied with in relation to any such payment as is herein mentioned; or

(b) the making of the proposed payment is not, before the transfer of any shares in pursuance of the offer, approved by a meeting summoned for the purpose of the holders of the shares to which the offer relates and of other holders of shares of the same class as any of the said shares, any sum received by the director on account of the payment shall be deemed to have been received by him in trust for any persons who have sold their shares as a result of the offer made, and the expenses incurred by him in distributing that sum amongst those persons shall be borne by him and not retained out of that sum.

(4) Where the shareholders referred to in paragraph (b) of subsection (3) are not all the members of the company and no provision is made by the articles for summoning or regulating such a meeting as is mentioned in that paragraph, the provisions of this Act and of the company's articles relating to general meetings of the company shall, for that purpose, apply to the meeting either without modifications or with such modifications as the registrar, on the application of any person concerned, may direct for the purpose of adapting them to the circumstances of the meeting.

(5) If, at a meeting summoned for the purpose of approving any payment as required by paragraph (b) of subsection (3), a quorum is not present and, after the meeting has been adjourned to a later date, a quorum is again not present, the payment shall be deemed, for the purposes of that subsection, to have been approved.

Provisions supplementary to sections 193, 194 and 195

196. (1) Where, in proceedings for the recovery of any payment as having, by virtue of subsections (1) and (2) of section 194 or subsections (1) and (3) of section 195, been received by any person in trust, it is shown that-

(a) the payment was made in pursuance of any arrangement entered into as part of the agreement for the transfer in question, or within 1 year before or 2 years after that agreement or the offer leading thereto; and

(b) the company or any person to whom the transfer was made was privy to that arrangement, the payment shall be deemed, except in so far as the contrary is shown, to be one to which the subsections apply.

(2) If, in connection with any such transfer as is mentioned in either section 194 or section 195-

(a) the price to be paid to a director of the company whose office is to be abolished or who is to retire from office for any shares in the company held by him is in excess of the price which could, at the time, have been obtained by other holders of the like shares; or

(b) any valuable consideration is 'given to any such director, the excess or the money value of the consideration, as the case may be, shall, for the purposes of that section, be deemed to have been a payment made to him by way of compensation for loss of office or as consideration for or in connection with his retirement from office.

(3) References in sections 193, 194 and 195 to payments made to any director of a company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, do not include any bona fide payment by way of damages for breach of contract or by way of pension in respect of past services and, for the purposes of this subsection, "pension" includes any superannuation allowance, superannuation gratuity or similar payment.

(4) Nothing in sections 194 and 195 shall be taken to prejudice the operation of any rule of law requiring disclosure to be made with respect to any such payments as are therein mentioned or with respect to any other like payments made to or to be made to the directors of a company.

Register of directors, shareholders, etc.

197. (1) Every company shall keep a register showing, as respects each director of the company, the number, description and amount of any shares in or debentures of the company or any other body corporate, being the company's subsidiary or holding company, or a subsidiary of the company's holding company, which are held by or in trust for him or of which he has any right to become the holder (whether on payment or not):

Provided that the register need not include shares in any body corporate which is the wholly-owned subsidiary of another body corporate, and, for this purpose, a body corporate shall be deemed to be the wholly-owned subsidiary of another if it has no members but that other and that other's wholly-owned subsidiaries and its or their nominees.

(2) Where any shares or debentures fall to be or cease to be recorded in the said register in relation to any director by reason of a transaction entered into on or after 1 January 1984 and while he is a director, the register shall also show the date of, and price or other consideration for the transaction:

Provided that, where there is an interval between the agreement for any such transaction and the completion thereof, the date shall be that of the agreement.

(3) The nature and extent of a director's interest or right in or over any shares or debentures recorded in relation to him in the said register shall, if he so requires, be indicated in the register.

(4) The company shall not, by virtue of anything done for the purposes of this section, be affected with notice of, or put upon inquiry as to, the rights of any person in relation to any shares or debentures.

(5) The said register shall, subject to the provisions of this section, be kept at the company's registered office and shall be open to inspection during business hours (subject to such reasonable restrictions as the company may by its articles or in general meeting impose, so that not less than 2 hours in each day be allowed for inspection) as follows:-

(a) during the period beginning 14 days before the date of the company's annual general meeting and ending 3 days after the date of its conclusion, it shall be open to the inspection of any member or holder of debentures of the company; and

(b) during that or any other period, it shall be open to the inspection of any person acting on behalf of the registrar, and, in computing the 14 days and the 3 days mentioned in this subsection, any day which is a Saturday or a Sunday or a public holiday shall be disregarded.

(6) Without prejudice to the rights conferred by subsection (5), the registrar may, at any time, require a copy of the said register, or any part thereof.

(7) The said register shall also be produced at the commencement of the company's annual general meeting and remain open and accessible during the continuance of the meeting to any person attending the meeting.

(8) If default is made in complying with subsection (7), the company and every officer of the company who is in default shall be liable to a fine not exceeding $100; and, if default is made in complying with subsection (1) or subsection (2), or if any inspection required under this section is refused of any copy required there under is not sent within a reasonable time, the company and every officer of the company who is in default shall be liable to a fine not exceeding $1,000 and further to a default fine of $10.

(9) In the case of any such refusal, the court may, by order, compel an immediate inspection of the register.

(10) For the purposes of this section-

(a) any person in accordance with whose directions or instructions the directors of a company are accustomed to act shall be deemed to be a director of the company; and

(b) a director of a company shall be deemed to hold, or to have an interest or right in or over, any shares or debentures, if a body corporate other than the company holds them or has that interest or right in or over them, and either-

(i) that body corporate or its directors are accustomed to act in accordance with his directions or instructions; or

(ii) he is entitled to exercise or control the exercise of one-third or more of the voting power at any general meeting of that body corporate.

Particulars in accounts of directors' salaries, pensions, etc.

198. (1) In any accounts of a company laid before it in general meeting, or in a statement annexed thereto, there shall, subject to and in accordance with the provisions of this section, be shown, so far as the information is contained in the company's books and papers or the company has the right to obtain it from the persons concerned-

(a) the aggregate amount of the directors' emoluments;

(b) the aggregate amount of directors' or past directors' pensions; and

(c) the aggregate amount of any compensation to directors or past directors in respect of loss of office.

(2) The amount to be shown under paragraph (a) of subsection (1)-

(a) shall include any emoluments paid to or receivable by any person in respect of his services as director of the company or in respect of his services as director of the company, as director of any subsidiary thereof or other wise in connection with the management of the affairs of the company or any subsidiary thereof; and

(b) shall distinguish between emoluments in respect of services as director, whether of the company or its subsidiary, and other emoluments, and, for the purposes of this section, "emoluments", in relation to a director, includes fees and percentages, any sums paid by way of expenses allowance in so far as those sums are charged to income tax, any contribution paid in respect of him under any pension scheme and the estimated money value of any other benefits received by him otherwise than in cash.

(3) The amount to be shown under paragraph (b) of subsection (1)-

(a) shall not include any pension paid or receivable under a pension scheme is such that the contributions there under are substantially adequate for the maintenance of the scheme , save, as aforesaid , shall include any pension paid or receivable in respect of any such other services of a director or past director

(b) shall distinguish between pensions in respect of services as director, whether of the company or its subsidiary, and other pensions, and, for the purposes of this section, "pension" includes any superannuation allowance, superannuation gratuity or similar payment, and "pension scheme" means a scheme for the provision of pensions in respect of services as director or otherwise which is maintained in whole or in part by means of contributions, and "contribution", in relation to a pension scheme, means any payment (including an insurance premium) paid for the purposes of the scheme by or in respect of persons rendering services in respect of which pensions will or may become payable under the scheme, except that it does not include any payment in respect of 2 or more persons, if the amount paid in respect of each of them is not ascertainable.

(4) The amount to be shown under paragraph (c) of subsection (1)-

(a) shall include any sums paid to or receivable by a director or past director by way of compensation for the loss of office as director of the company or for the loss, while director of the company or on or in connection with his ceasing to be a director of the company, of any other office in connection with the management of the company's affairs or of any office as director or otherwise in connection with the management of the affairs of any subsidiary thereof; and

(b) shall distinguish between compensation in respect of the office of director, whether of the company or its subsidiary, and compensation in respect of other offices, and, for the purposes of this section, references to compensation for loss of office shall include sums paid as consideration for or in connection with a person's retirement from office.

(5) The amounts to be shown under each paragraph of subsection (1)-

(a) shall include all relevant sums paid by or receivable from-

(i) the company; and

(ii) the company's subsidiaries; and

(iii) any other person, except sums to be accounted for to the company or any of its subsidiaries or, by virtue of section 195, to past or present members of the company or any of its subsidiaries or any class of those members; and

(b) shall distinguish, in the case of the amount to be shown under paragraph (c) of subsection (1), between the sums respectively paid by or receivable from the company, the company's subsidiaries and persons other than the company and its subsidiaries.

(6) The amounts to be shown under this section for any financial year shall be the sums receivable in respect of that year, whenever paid, or, in the case of sums not receivable in respect of a period, the sums paid during that year, so, however, that, where-

(a) any sums are not shown in the accounts for the relevant financial year on the ground that the person receiving them is liable to account therefor as mentioned in paragraph (a) of subsection (5), but the liability is thereafter wholly or partly released or is not enforced within a period of 2 years; or

(b) any sums paid by way of expenses allowance are charged to income tax after the end of the relevant financial year, those sums shall, to the extent to which the liability is released or not enforced or they are charged as aforesaid, as the case may be, be shown in the first accounts in which it is practicable to show them, or in a statement annexed thereto, and shall be distinguished from the amounts to be shown therein apart from this provision.

(7) Where it is necessary so to do for the purpose of making any distinction required by this section in any amount to be shown there under, the directors may apportion any payments between the matters in respect of which they have been paid or are receivable in such manner as they think appropriate.

(8) If, in the case of any accounts, the requirements of this section are not complied with, it shall be the duty of any auditors of the company by whom the accounts are examined to include in the report thereon, so far as they are reasonably able to do so, a statement giving the required particulars.

(9) In this section, any reference to a company's subsidiary-

(a) in relation to a person who is or was, while a director of the company, a director also, by virtue of the company's nomination, direct or indirect, of any other body corporate, shall, subject to paragraph (b), include that body corporate, whether or not it is or was in fact the company's subsidiary; and

(b) shall, for the purposes of subsections (2) and (3), be taken as referring to a subsidiary at the time the services were rendered, and, for the purposes of subsection (4), be taken as referring to a subsidiary immediately before the loss of office as director of the company.

Particulars in accounts of loans to officers, etc.

199. (1) The accounts which, in pursuance of this Act, are to be laid before every company in general meeting shall, subject to the provisions of this section, contain particulars showing-

(a) the amount of any loans made during the company's financial year to-

(i) any officer of the company; or

(ii) any person who, after the making of the loan, became, during that year, an officer of the company, by the company or a subsidiary thereof or by any other person under a guarantee from or on a security provided by the company or a subsidiary thereof (including any such loans which were repaid during that year); and

(b) the amount of any loans made in manner aforesaid to any such officer or person as aforesaid at any time before the company's financial year and outstanding at the expiration thereof.

(2) Subsection (1) shall not require the inclusion in accounts of particulars of-

(a) a loan made in the ordinary course of its business by the company or a subsidiary thereof, where the ordinary business of the company or, as the case may be, the subsidiary, includes the lending of money; or

(b) a loan made by the company or a subsidiary thereof to an employee of the company or subsidiary, as the case may be, if the loan does not exceed $4,000 and is certified by the directors of the company or subsidiary, as the case may be, to have been made in accordance with any practice adopted or about to be adopted by the company or subsidiary with respect to loans to its employees, not being, in either case, a loan made by the company under a guarantee from or on a security provided by a subsidiary thereof or a loan made by a subsidiary of the company under a guarantee from or on a security provided by the company or any other subsidiary thereof.

(3) If, in the case of any such accounts as aforesaid, the requirements of this section are not complied with, it shall be the duty of any auditors of the company by whom the accounts are examined to include in the report on the balance sheet of the company, so far as they are reasonably able to do so, a statement giving the required particulars.

(4) References in this section to a subsidiary shall be taken as referring to a subsidiary at the end of the company's financial year (whether or not a subsidiary at the date of the loan).

General duty to make disclosure for purposes of sections 197, 198 and 199

200. (1) It shall be the duty of any director of a company to give notice to the company of such matters relating to himself as may be necessary for the purposes of sections 197 and 198, and of section 199 except so far as it relates to loans made, by the company or by any other person under a guarantee from or on a security provided by the company, to an officer thereof.

(2) Any such notice given for the purposes of section 197 shall be in writing and, if it is not given at a meeting of the directors, the director giving it shall take reasonable steps to secure that it is brought up and read at the next meeting of directors after it is given.

(3) Subsection (1) shall apply-

(a) for the purposes of section 199, in relation to officers other than directors; and

(b) for the purposes of sections 198 and 199, in relation to persons who are or have, at any time during the preceding 5 years, been officers,

as it applies in relation to directors.

(4) Any person who makes default in complying with the foregoing provisions of this section shall be liable to a fine not exceeding $100.

Disclosure of interests in contracts, property, offices, etc.

201. (1) Subject to this section, a director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to his knowledge, declare the nature of his interest at a meeting of the directors of the company.

(2) The requirements of subsection (1) do not apply in any case where the interest of a director of a company consists only of being a member or creditor of a corporation that is interested in a contract or proposed contract with the first-mentioned company, if the interest of the director may properly be regarded as not being a material interest.

(3) A director of a company shall not be taken to be interested or to have been, at any time, interested in any contract or proposed contract by reason only-

(a) in a case where the contract or proposed contract relates to any loan to the company-that he has guaranteed or joined in guaranteeing the repayment of the loan or any part of the loan; or

(b) in a case where the contract or proposed contract has been or will be made with or for the benefit of or on behalf of a corporation that is a subsidiary or the holding company or a subsidiary of the holding company of the company-that he is a director of that corporation, and this subsection has effect not only for the purposes of this Act but also for the purposes of any other law, but does not affect the operation of any provision in the articles of the company.

(4) For the purposes of subsection (1), a general notice given to the directors of a company by a director to the effect that he is an officer or member of a specified corporation or a member of a specified firm and is to be regarded as interested in any contract that may, after the date of the notice, be made with that corporation or firm shall be deemed to be a sufficient declaration of interest in relation to any contract so made or proposed to be made, if-

(a) the notice states the nature and extent of the interest of the director in the corporation or firm;

(b) when the question of confirming or entering into the contract is first taken into consideration, the extent of his interest in the corporation or firm is not greater than is stated in the notice; and

(c) the notice is given at a meeting of the directors or the director takes reasonable steps to ensure that it is brought up and read at the next meeting of the directors after it is given.

(5) A director of a company who holds any office or possesses any property whereby, whether directly or indirectly, duties or interests might be created in conflict with his duties or interests as director shall, in accordance with subsection (6), declare at a meeting of the directors of the company the fact and the nature, character and extent of the conflict.

(6) The declaration shall be made at the first meeting of the directors held-

(a) after he becomes a director; or

(b) if already a director, after he commenced to hold the office or to possess the property,

as the case requires.

(7) A secretary of a company shall record every declaration under this section in the minutes of the meeting at which it was made.

(8) Except as provided in subsection (3), this section is in addition to, and not in derogation of, the operation of any rule of law or any provision in the articles restricting a director from having any interest in contracts with the company or from holding offices or possessing, properties involving duties or interests in conflict with his duties or interests as a director.

(9) Any director who fails to comply with the provisions with this section shall be liable to a fine not exceeding $1,000.

Register of directors and secretaries

*202. (1) Every company shall keep at its registered office a register of its directors and secretaries.

(2) The register shall specify, with respect to each director, his present forename and surname, any former forename or surname, his postal address, his nationality, his business occupation, if any, particulars of all other directorships held by him and, in the case of a company subject to section 187, the date of his birth:

Provided that it shall not be necessary for the register to contain particulars of directorships held by a director in companies of which the company is the wholly-owned subsidiary, or which are the wholly-owned subsidiaries either of the company or of another company of which the company is the wholly-owned subsidiary; and, for the purposes of this proviso-

(i) "company" includes any body corporate incorporated in Fiji; and

(ii) a body corporate shall be deemed to be the wholly-owned subsidiary of another if it has no members except that other and that other's wholly-owned subsidiaries and its or their nominees.

(3) The register shall specify, with respect to each secretary, his full name and address and other occupation, if any.

(4) The company shall, within the periods respectively mentioned in subsection (5), deliver to the registrar, for registration a return in the prescribed form containing the particulars specified in the said register and a notification in the prescribed form of any change among its directors or in its secretary or in any of the particulars contained in the register, specifying the date of the change.

(5) The periods referred to in subsection (4) are the following, namely:-

(a) the periods within which the said return is to be sent shall be a period of 14 days from the appointment of the first directors of the company; and

(b) the period within which the said notification of a change is to be sent shall be 14 days from the happening thereof:

Provided that, in the case of a return containing particulars with respect to any person who is the company's secretary on 1 January 1984, the period shall be 14 days from that date.

(6) The register to be kept under this section shall, during business hours (subject to such reasonable restrictions as the company may by its articles or in general meeting impose, so that not less than 2 hours in each day be allowed for inspection), be open to the inspection of any member of the company without charge and of any other person on payment of 50 cents, or such less sum as the company may specify, for each inspection.

(7) If any inspection required under this section is refused or if default is made in complying with subsection (1), subsection (2), subsection (3) or subsection (4), the company and every officer of the company who is in default shall be liable to a default fine.

(8) In the case of any such refusal, the court may, by order, compel an immediate inspection of the register.

Interpretation of section 202

203. For the purposes of section 202-

(a) a person in accordance with whose directions or instructions the directors of a company are accustomed to act shall be deemed to be a director and officer of the company;

(b) in the case of a peer or a person usually known by a title different from his surname, "surname" means that title;

(c) references to a former forename or surname do not include-

(i) in the case of a peer or a person usually known by a British title different from his surname, the name by which he was known previous to the adoption of or succession to the title;

(ii) in the case of any person, a former forename or surname, where that forename or surname was changed or disused before the person bearing the name attained the age of 18 years or has been changed or disused for a period of not less than 20 years; or

(iii) in the case of a married woman, the name or surname by which she was known previous to the marriage.

Limited company may have directors with unlimited liability

204. (1) In a limited company, the liability of the directors or managers, or of the managing director, may, if so provided by the memorandum, be unlimited.

(2) In a limited company in which the liability of a director or manager is unlimited, the directors and any managers of the company and the member who proposes a person for election or appointment to the office of director or manager, shall add to that proposal a statement that the liability of the person holding that office will be unlimited and, before the person accepts the office or acts therein, notice, in writing, that his liability will be unlimited shall be given to him by the following or 1 of the following persons, namely the promoters of the company, the directors of the company, any managers of the company and a secretary of the company.

(3) If any director, manager or proposer makes default in adding such a statement, or if any promoter, director, manager or secretary makes default in giving such a notice, he shall be liable to a fine not exceeding $200, and shall also be liable for any damage which the person so elected or appointed may sustain from the default, but the liability of the person elected or appointed shall not be affected by the default.

Special resolution of limited company making liability of directors unlimited

205. (1) A limited company, if so authorized by its articles, may, by special resolution, alter its memorandum so as to render unlimited the liability of its directors, managers or of any managing director.

(2) Upon the passing of any such special resolution the provisions thereof shall be as valid as if they had been originally contained in the memorandum.

Provisions as to assignment of office by directors

206. If, in the case of any company, provision is made by the articles or by any agreement entered into between any person and the company for empowering a director or manager of the company to assign his office as such to another person, any assignment of office made in pursuance of the said provision shall, notwithstanding anything to the contrary contained in the said provision, be of no effect unless and until it is approved by a special resolution of the company.

Division 12-Avoidance of Provisions in Articles or Contracts Relieving Officers from Liability

Provisions as to liability of officers and auditors

207. Subject as hereinafter provided, any provision, whether contained in the articles of a company or in any contract with a company or otherwise, for exempting any officer of the company or any person (whether an officer of the company or not) employed by the company as auditor from, or indemnifying him against, any liability which, by virtue of any rule of law, would otherwise attach to him in respect of any negligence, default, breach of duty or breach of trust of which he may be guilty in relation to the company, shall be void:

Provided that-

(i) nothing in this section shall operate 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; and

(ii) notwithstanding anything in this section, a company may, in pursuance of any such provision as aforesaid, indemnify any such officer or auditor against any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favor or in which he is acquitted or; the proceedings against him are discontinued or in connection with any application under section 403 in which relief is granted to him by the court. Division 13-Arrangements and Reconstructions

Power to compromise with creditors and members

208. (1) Where a compromise or arrangement is proposed between a company and its creditors or any class of them or between the company and its members or any class of them, the court may, on the application of the company or of any creditor or member of the company, or, in the case of a company being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members of the company or class of members, as the case may be, to be summoned in such manner as the court directs.

(2) If a majority in number representing three-fourths in value of the creditors or class of creditors or members or class of members, as the case may be, present and voting either in person or by proxy at the meeting, agree to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the court, be binding on all the creditors or the class of creditors, or on the members or class of members, as the case may be, and also on the company or, in the case of a company in the course of being wound up, on the liquidator and contributories of the company.

(3) An order made under subsection (2) shall have no effect until a certified copy of the order has been delivered to the registrar for registration, and a copy of every such order shall be annexed to every copy of the memorandum of the company issued after the order has been made, or, in the case of a company not having a memorandum, of every copy so issued of the instrument constituting or defining the constitution of the company.

(4) If a company makes default in complying with subsection (3), the company and every officer of the company who is in default shall be liable to a fine not exceeding $10 for each copy in respect of which default is made.

(5) In this section and in section 209, "company" means any company liable to be wound up under this Act, and "arrangement" includes a reorganization of the share capital of the company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both those methods.

Information as to compromises with creditors and members

209. (1) Where a meeting of creditors or any class of creditors or of members or any class of members is summoned under section 208, there shall-

(a) with every notice summoning the meeting which is sent to a creditor or member, be sent also a statement explaining the effect of the compromise or arrangement and, in particular, stating any material interests of the directors of the company, whether as directors or as members or as creditors of the company or otherwise, and the effect thereon of the compromise or arrangement, in so far as it is different from the effect on the like interests of other persons; and

(b) in every notice summoning the meeting which is given by advertisement, be included either such a statement as aforesaid or a notification of the place at which and the manner in which creditors or members entitled to attend the meeting may obtain copies of such a statement as aforesaid.

(2) Where the compromise or arrangement affects the rights of debenture holders of the company, the said statement shall give the like explanation as respects the trustees of any deed for securing the issue of the debentures as it is required to give as respects the company's directors.

(3) Where a notice given by advertisement includes a notification that copies of a statement explaining the effect of the compromise or arrangement proposed can be obtained by creditors or members entitled to attend the meeting, every such creditor or member shall, on making application in the manner indicated by the notice, be furnished by the company, free of charge, with a copy of the statement.

(4) Where a company makes default in complying with any requirement of this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding $1,000 and, for the purpose of this subsection, any liquidator of the company and any trustee of a deed for securing the issue of debentures of the company shall be deemed to be an officer of the company:

Provided that a person shall not be liable under this subsection, if that person shows that the default was due to the refusal of any other person, being a director or trustee for debenture holders, to supply the necessary particulars as to his interests.

(5) It shall be the duty of any director of the company and of any trustee for debenture holders of the company to give notice to the company of such matters relating to himself as may be necessary for the purposes of this section, and any person who makes default in complying with this subsection shall be liable to a fine not exceeding $100.

Provisions for facilitating reconstruction and amalgamation of companies

210. (1) Where an application is made to the court under section 208 for the sanctioning of a compromise or arrangement proposed between a company and any such persons as are mentioned in that section, and it is shown to the court that the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any 2 or more companies, and that, under the scheme, the whole or any part of the undertaking or the property of any company concerned in the scheme (in this section referred to as a "transferor company") is to be transferred to another company (in this section referred to as 'the "transferee company"), the court may, either by the order sanctioning the compromise or arrangement or by any subsequent order, make provision for all or any of the following matters:-

(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company;

(b) the allotting or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company, which, under the compromise or arrangement, are to be allotted or appropriated by that company to or for any person;

(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;

(d) the dissolution, without winding-up, of any transferor company;

(e) the provision to be made for any persons who, within such time and in such manner as the court directs, dissent from the compromise or arrangement;

(f) such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.

(2) Where an order under this section provides for the transfer of property or liabilities, that property shall, by virtue of the order, be transferred to and vest in, and those liabilities shall, by virtue of the order, be transferred to and become the liabilities of, the transferee company and, in the case of any property, if the order so directs, freed from any charge which is, by virtue of the compromise or arrangement, to cease to have effect.

(3) Where an order is made under this section, every company in relation to which the order is made shall cause a certified copy thereof to be delivered to the registrar, for registration within 14 days, after the making of the order, and, if default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

(4) In this section, "property" includes property, rights and powers of every description, and "liabilities" includes duties.

(5) Notwithstanding the provisions of subsection (5) of section 208, "company" in this section does not include any company other than a company within the meaning of this Act.

Power to acquire shares of shareholders dissenting from scheme or contract approved by majority

211. (1) Where a scheme or contract involving the transfer of shares or any class of shares in a company (in this section referred to as the "transferor company") to another company, whether a company within the meaning of this Act or not, (in this section referred to as the "transferee company") has, within 4 months after the making of the offer in that behalf by the transferee company, been approved by the holders of not less than nine-tenths in value of the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company or its subsidiary), the transferee company may, at any time within 2 months after the expiration of the said 4 months, give notice in the prescribed manner to any dissenting shareholder that it desires to acquire his shares and, when such a notice is given, the transferee company shall, unless, on, an application made by the dissenting shareholder within 1 month from the date on which the notice was given, the court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders are to be transferred to the transferee company:

Provided that, where shares in the transferor company of the same class or classes as the shares whose transfer is involved are already held as aforesaid to a value greater than one-tenth of the aggregate of their value and that of the shares (other than those already held as aforesaid) whose transfer is involved, the foregoing provisions of this subsection shall not apply, unless-

(a) the transferee company offers the same terms to all holders of the shares (other than those already held as aforesaid) whose transfer is involved, or, where those shares include shares of different classes, of each class of them; and

(b) the holders who approve the scheme or contract, besides holding not less than nine-tenths in value of the shares (other than those already held as aforesaid) whose transfer is involved, are not less than three-fourths in number of the holders of those shares.

(2) Where, in pursuance of any such scheme or contract as aforesaid, shares in a company are transferred to another company or its nominee, and those shares, together with any other shares in the first-mentioned company held by, or by a nominee for, the transferee company or its subsidiary at the date of the transfer, comprise or include nine-tenths in value of the shares in the first-mentioned company or of any class of those shares, then-

(a) the transferee company shall, within 1 month from the date of the transfer (unless on a previous transfer in pursuance of the scheme or contract it has already complied with this requirement), give notice of that fact in the prescribed manner to the holder of the remaining shares or of the remaining shares of that class, as the case may be, who have not assented to the scheme or contract; and

(b) any such holder may, within 3 months from the giving of the notice to him, require the transferee company to acquire the shams in question, and, where a shareholder gives notice under paragraph (b) of this subsection with respect to any shares, the transferee company shall be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders were transferred to it, or on such other terms as may be agreed or as the court, on the application, of either the transferee company or the shareholder, thinks fit to order.

(3) Where a notice has been given by the transferee company under subsection (1) and the court has not, on an application made by the dissenting shareholder, ordered to the contrary, the transferee company shall, on the expiration of 1 month from the date on which the notice has been given, or, if an application to the court by the dissenting shareholder is then pending; after that application has been, disposed of, transmit a copy of the notice to the transferor company, together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company, and pay or transfer to the transferor company the amount or other consideration representing the price payable by the transferee company for the shares which by, virtue of this section, that company is entitled to acquire, and the transferor company shall thereupon register the transferee company as the holder of those shares:

Provided that an instrument of transfer shall not be required for any share for which a share warrant is, for the time being, outstanding.

(4) Any sums received by the transferor company under this section shall be paid into a separate bank account, and any such sums and any other consideration so received shall be held by that company on trust for the several persons entitled to the shares in respect of which the said sums or other consideration were respectively received.

(5) In this section, "dissenting shareholder" includes a shareholder who has not assented to the scheme or contract and any shareholder who has failed or refused to transfer his shares to the transferee company, in accordance with the scheme or contract.

(6) In relation to an offer made by the transferee company to shareholders of the transferor company before 1 January 1984, this section shall have effect-

(a) with the substitution, in subsection (1), for the words "the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company or its subsidiary)", of the words "the shares affected" and with the omission of the proviso to that subsection;

(b) with the omission of subsection (2); and

(c) with the omission, in subsection (3), of the words "together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company" and of the proviso to that subsection.

Division 14-Minorities

Alternative remedy to winding-up in cases of oppression

212. (1) Any member of a company who complains that the affairs of the company are being conducted in a manner oppressive to some part of the members (including himself); or, in a case falling within subsection (2) of section 173, the Attorney-General, may make an application to the court, by petition, for an order under this section.

(2) If, on any such petition, the court is of opinion-

(a) that the company's affairs are being conducted as aforesaid; and

(b) that to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up; the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the company's affairs in future, or for the purchase of the shares of any members of the company by other members of the company or by the company and, in the case of a purchase by the company, for the reduction accordingly of the company's capital, or otherwise.

(3) Where an order under this section makes any alteration in or addition to any company's memorandum or articles, then, notwithstanding anything in any other provision of this Act but subject to the provisions of the order, the company concerned shall not have power, without the leave of the court, to make any further alteration in or addition to the memorandum or articles inconsistent with the provisions of the order; but, subject to the foregoing provisions of this subsection, the alterations or additions made by the order shall be of the same effect as if duly made by resolution of the company and the provisions of this Act shall apply to the memorandum or articles as so altered or added to accordingly.

(4) A certified copy of any order under this section altering or adding to, or giving leave to alter or add to, a company's memorandum or articles shall, within 14 days after the making thereof, be delivered by the company to the registrar, for registration; and, if a company makes default in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

(5) In relation to a petition under this section, section 345 shall apply as it applies in relation to a winding-up petition.

PART VI-WINDING-UP

Division 1-Preliminary

Subdivision A-Modes of Winding-up

Modes of winding-up

213. (1) The winding-up of a company may be either-

(a) by the court; or

(b) voluntary; or

(c) subject to the supervision of the court.

(2) The provisions of this Act with respect to winding-up apply, unless the contrary appears, to the winding-up of a company in any of those modes.

Subdivision B-Contributories

Liability as contributories of present and past members

214. (1) In the event of a company being wound up, every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities, and the costs, charges and expenses of the winding-up, and for the adjustment of the rights of the contributories among, themselves, subject to the provisions of subsection (2) and the following qualifications:-

(a) a past member shall not be liable to contribute, if he has ceased to be a member for 1 year or upwards before the commencement of the winding-up;

(b) a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he ceased to be a member;

(c) a past member shall not be liable to contribute, unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act;

(d) in the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member;

(e) in the case of a company limited by guarantee, no contribution shall, subject to the provisions of subsection (3), be required from any member exceeding the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up;

(f) nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of the policy or contract;

(g) a sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise shall not be deemed to be a debt of the company payable to that member in a case of competition between himself and any other creditor not a member of the company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.

(2) In the winding-up of a limited company, any director or manager, whether past or present, whose liability is, under the provisions of this Act, unlimited, shall, in addition to his liability (if any) to contribute as an ordinary member, be liable to make a further contribution as if he were, at the commencement of the winding-up, a member of an unlimited company:

Provided that-

(a) a past director or manager shall not be liable to make such further contribution, if he has ceased to hold office for a year or upwards before the commencement of the winding-up;

(b) a past director or manager shall not be liable to make such further contribution in respect of any debt or liability of the company contracted after he ceased to hold office;

(c) subject to the articles of the company, a director or manager shall not be liable to make such further contribution, unless the court deems it necessary to require that contribution in order to satisfy the debts and liabilities of the company and the costs, charges and expenses of the winding-up.

(3) In the winding-up of a company limited by guarantee which has a share capital, every member of the company shall be liable, in addition to the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up, to contribute to the extent of any sums unpaid on any shares held by him.

Definition of contributory

215. The term "contributory" means every person liable to contribute to the assets of a company in the event of its being wound up and, for the purposes of all proceedings for determining, and all proceedings prior to the final determination of, the persons who are to be deemed contributories, includes any person alleged to be a contributory.

Nature of liability of contributory

216. The liability of a contributory shall create a debt accruing due from him at the time when his liability commenced, but payable at the time when calls are made for enforcing the liability.

Contributories in case of death of member

217. (1) If a contributory dies, either before or after he has been placed on the list of contributories, his personal representatives shall be liable, in the due course of administration, to contribute to the assets of the company in discharge of his liability and shall be contributories accordingly.

(2) If the personal representatives make default in paying any money ordered to be paid by them, proceedings may be taken for administering the estate of the deceased contributory and for compelling payment there out of the money due.

Contributories in case of bankruptcy of member

218. If a contributory becomes bankrupt, either before or after he has been placed on the list of contributories-

(a) his trustee in bankruptcy shall represent him for all the purposes of the winding-up, and shall be a contributory accordingly, and may be called on to admit to proof against the estate of the bankrupt, or otherwise to allow to be paid out of his assets, in due course of law, any money due from the bankrupt in respect of his liability to contribute to the assets of the company; and

(b) there may be proved against the estate of the bankrupt the estimated value of his liability to future calls as well as calls already made.

Division 2-Winding-up by the Court

Subdivision A-Jurisdiction

Jurisdiction to wind up companies registered in Fiji

219. The Supreme Court shall have jurisdiction to wind up any company registered in Fiji.

Subdivision B-Cases in which Company may be Wound Up by Court

Circumstances in which company may be wound up by the court

220. A company may be wound up by the court, if-

(a) the company has, by special resolution, resolved that the company be wound up by the court;

(b) default is made in delivering the statutory report to the registrar or in holding the statutory meeting;

(c) the company does not commence its business within a year from its incorporation or suspends its business for a whole year;

(d) the number of members is reduced, in the case of a private company, below 2, or, in the case of any other company, below 7;

(e) the company is unable to pay its debts;

(f) the court is of opinion that it is just and equitable that the company should be wound up;

(g) in the case of a company incorporated outside Fiji and carrying on business in Fiji, winding-up proceedings have been commenced in respect of it in the country or territory of its incorporation or in any other country or territory in which it has established a place of business.

**Definition of inability to pay debts***

221. A company shall be deemed to be unable to pay its debts-

(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding $100 then due has served on the company, by leaving it at the registered office of the company, a demand under his hand requiring the company to pay the sum so due and the company has, for 3 weeks thereafter; neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor; or

(b) if execution or other process issued on a judgment, decree or order of any court in favor of a creditor of the company is returned unsatisfied in whole or in part; or

(c) if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.

Subdivision C-Petition for Winding-up and Effects Thereof

Provisions as to applications for winding-up

222. (1) An application to the court for the winding-up of a company shall be by petition presented, subject to the provisions of this section, either by the company or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories, or by all or any of those parties, together or separately:

Provided that-

(i) a contributory shall not be entitled to present a winding-up petition, unless-

(a) either the number of members is reduced, in the case of a private company, below 2, or, in the case of any other company, below 7; or

(b) the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least 6 months during the 18 months before the commencement of the winding-up, or have devolved on him through the death of a former holder; and

(ii) a winding-up petition shall not, if the ground of the petition is default in delivering the statutory report to the registrar or in holding the statutory meeting, be presented by any person except a shareholder, nor before the expiration of 14 days after the last day on which the meeting ought to have been held; and

(iii) the court shall not give a hearing to a winding-up petition presented by a contingent or prospective creditor, until such security for costs has been given as the court thinks reasonable and until a prima facie case for winding-up has been established to the satisfaction of the court; and

(iv) in a case falling within subsection (2) of section 173, a winding-up petition may be presented by the Attorney-General; and

(v) a petition for the winding-up of a company on the ground mentioned in paragraph (g) of section 220, may be presented by the official receiver, as well as by any other person authorized to do so under the provisions of this subsection, but the court shall not make a winding-up order on a petition presented by the official receiver, unless it is satisfied that the liquidator or provisional liquidator of the company in the country or territory where winding-up proceedings have been commenced in respect of it has, in the manner prescribed, required the official receiver to present the petition.

(2) Where a company is being wound up voluntarily or subject to supervision, a winding-up petition may be presented by the official receiver, as well as by any other person authorized in that behalf under the other provisions of this section, but the court shall not make a winding-up order on the petition, unless it is satisfied that the voluntary winding-up or winding-up subject to supervision cannot be continued with due regard to the interests of the creditors or contributories.

Power of court on hearing petition

223. (1) On hearing a winding-up petition, the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other order that it thinks fit, but the court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets or that the company has no assets.

(2) Where the petition is presented by members of the company as contributories on the ground that it is just and equitable that the company should be wound up, the court, if it is of opinion-

(a) that the petitioners are entitled to relief, either by winding-up the company or by some other means; and

(b) that, in the absence of any other remedy, it would be just and equitable that the company should be wound up, shall make a winding-up order, unless it is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.

(3) Where the petition is presented on the ground of default in delivering the statutory report to the registrar or in holding the statutory meeting, the court may-

(a) instead of making a winding-up order, direct that the statutory report shall be delivered or that a meeting shall be held; and

(b) order the costs to be paid by any persons who, in the opinion of the court, are responsible for the default. Power to stay or restrain proceedings against company

224. At any time after the presentation of a winding-up petition, and before a winding-up order has been made, the company, or any creditor or contributory, may-

(a) where any suit or proceeding against the company is pending in the Supreme Court or the Court of Appeal, apply to the court in which the suit or proceeding is pending for a stay of proceedings therein; and

(b) where any other suit or proceeding is pending against the company, apply to the court having jurisdiction to wind up the company to restrain further proceedings in the suit or proceeding, and the court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms as it thinks fit.

Avoidance of dispositions of property, etc. after commencement of winding-up

225. In a winding-up by the court, any disposition of the property of the company, including things in action, and any transfer of shares, or alteration in the status of the members of the company, made after the commencement of the winding-up, shall, unless the court otherwise orders, be void.

Avoidance of attachments, etc.

226. Where any company is being wound up by the court, any attachment, distress or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void.

Commencement of winding-up by the court

227. (1) Where, before the presentation of a petition for the winding-up of a company by the court, a resolution has been passed by the company for voluntary winding-up, the winding-up of the company shall be deemed to have commenced at the time of the passing of the resolution and, unless the court, on proof of fraud or mistake, thinks fit otherwise to direct, all proceedings taken in the voluntary winding-up shall be deemed to have been validly taken.

(2) In any other case, the winding-up of a company by the court shall be deemed to commence at the time of the presentation of the petition for the winding-up.

Subdivision D-Commencement of Winding-up

Subdivision E-Consequences of Winding-Up Order

Copy of order to be forwarded to registrar

228. On the making of a winding-up order, a copy of the order shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the registrar for registration.

Actions stayed on winding-up order

229. When a winding-up order has been made or an interim liquidator has been appointed under section 236, no action or proceeding shall be proceeded with or commenced against the company, except by leave of the court and subject to such terms as the court may impose.

Effect of winding-up order

230. An order for winding-up a company shall operate in favor of all the creditors and of all the contributories of the company as if made on the joint petition of a creditor and of a contributory.

Subdivision F-Official Receiver in Winding-Up

Official receiver in bankruptcy to be official receiver for winding-up purposes

231. (1) For the purposes of this Act, so far as it relates to the winding-up of companies by the court, "official receiver" means the official receiver attached to the court for bankruptcy purposes.

(2) Any such officer shall, for the purpose of his duties under this Act, be styled the official receiver.

Appointment of official receiver by court in certain cases

232. If, in the case of the winding-up of any company by the court, it appears to the court desirable; with a view to securing the more convenient and economical conduct of the winding-up, that some officer other than the person who would, by virtue of section 231, be the official receiver should be the official receiver for purposes of that winding-up, the court may appoint that other officer to act as official receiver in that winding-up, and the person so appointed shall be deemed to be the official receiver in that winding-up for all the purposes of this Act.

Statement of company's affairs to be submitted to official receiver

233. (1) When the court has made a winding-up order or appointed an interim liquidator under section 236, there shall, unless the court think fit to order otherwise and so orders, be made out and submitted to the official receiver a statement as to the affairs of the company in the prescribed form, verified by affidavit, and showing the particulars of its assets, debts and liabilities, the names, postal addresses and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given, and such further or other information as may be prescribed or as the official receiver may require.

(2) The statement shall be submitted and verified by 1 or more of the persons who are, at the relevant date, the directors and by a person who is, at that date, a secretary of the company, or by such of the persons hereinafter in this subsection mentioned as the official receiver, subject to the direction of the court, may require to submit and verify the statement, that is to say, persons-

(a) who are or have been officers of the company;

(b) who have taken part in the formation of the company at any time within 1 year before the relevant date;

(c) who are in the employment of the company, or have been in the employment of the company within the said year, and are, in the opinion of the official receiver, capable of giving the information required;

(d) who are or have been, within the said year, officers of or in the employment of a company which is, or within the said year was, an officer of the company to which the statement relates;

(e) who are, at the relevant date, the receivers or managers of the whole or substantially the whole of the company's property.

(3) The statement shall be submitted within 14 days from the relevant date or within such extended time as the official receiver or the court may, for special reasons, appoint.

(4) Any person making or concurring in making the statement and affidavit required by this section may be allowed and, if so allowed, shall be paid by the official receiver or provisional liquidator, as the case may be, out of the assets of the company such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the official receiver may consider reasonable, subject to an appeal to the court.

(5) If any person, without reasonable excuse, makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding $20 for every day during which the default continues.

(6) Any person stating himself, in writing, to be a creditor or contributory of the company shall be entitled, by himself or by his agent, at all reasonable times, on payment of the prescribed fee, to inspect the statement submitted in pursuance of this section, and to a copy thereof or extract therefrom.

(7) Any person untruthfully so stating himself to be a creditor or contributory shall be liable to fine not exceeding $40.

(8) In this section, "the relevant date" means, in a case where an interim liquidator is appointed, the date of his appointment and, in a case where no such appointment is made, the date of the winding-up order.

Report by official receiver

234. (1) In a case where a winding-up order is made, the official receiver shall, as soon as practicable after receipt of the statement to be submitted under section 233, or, in a case where the court orders that no statement shall be submitted, as soon as practicable after the date of the order, submit a preliminary report to the court-

(a) as to the amount of capital issued, subscribed and paid up, and the estimated amount of assets and liabilities; and

(b) if the company has failed, as to the causes of the failure; and

(c) whether, in his opinion, further inquiry is desirable as to any matter relating to the promotion, formation or failure of the company or the conduct of the business thereof.

(2) The official receiver may also, if he thinks fit, make a further report, or further reports, stating the manner in which the company was formed and whether, in his opinion, any fraud has been committed by any person in its promotion or formation or by any officer of the company in relation to the company since the formation thereof, and any other matters which, in his opinion, it is desirable to bring to the notice of the court.

(3) If the official receiver states in any such further report as aforesaid that, in his opinion, a fraud has been committed as aforesaid, the court shall have the further powers provided in section 266.

Subdivision G-Liquidators

Power of court to appoint liquidators

235. For the purpose of conducting the proceedings in winding-up a company and performing such duties in reference thereto as the court may impose, the court may appoint a liquidator or liquidators.

Appointment and powers of interim liquidator

236. (1) The court may appoint the official receiver to be the liquidator provisionally at any time after the presentation of a winding-up petition and before the making of a winding-up order.

(2) Where a liquidator (in this Act referred to as an "interim liquidator") is so appointed by the court, the court may limit and restrict his powers by the order appointing him.

Appointment, style, etc., of liquidators

237. The following provisions with respect to liquidators shall have effect on a winding-up order being made:-

(a) the official receiver shall, by virtue of his office, become the provisional liquidator and shall continue to act as such, until he or another person becomes liquidator and is capable of acting as such;

(b) the official receiver shall summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the court for appointing a liquidator in the place of the official receiver:

Provided that, where the court has dispensed with the settlement of a list of contributories, it shall not be necessary for the official receiver to summon a meeting of contributories;

(c) the court may make any appointment and order required to give effect to any such determination and, if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matter aforesaid, the court shall decide the difference and make such order thereon as the court may think fit;

(d) in a case where a liquidator is not appointed by the court, the official receiver shall be the liquidator of the company;

(e) the official receiver shall, by virtue of his office, be the liquidator during any vacancy;

(f) a liquidator shall be described, where a person other than the official receiver is liquidator, by the style of "the liquidator", and, where the official receiver is liquidator, by the style of "the official receiver and liquidator", of the particular company in respect of which he is appointed and not by his individual name.

Provisions where person other than official receiver is appointed liquidator

238. Where, in the winding-up of a company by the court, a person other than the official receiver is appointed liquidator, that person-

(a) shall not be capable of acting as liquidator, until he has notified his appointment to the registrar and given security, in the prescribed manner, to the satisfaction of the official receiver;

(b) shall give the official receiver such information and such access to and facilities for inspecting the books and documents of the company and generally such aid as may be requisite for enabling that officer to perform his duties under this Act.

General provisions as to liquidators

239. (1) A liquidator appointed by the court may resign or, on cause shown, be removed by the court.

(2) Where a person other than the official receiver is appointed liquidator, he shall receive such salary or remuneration by way of percentage or otherwise as the court may direct, and, if more such persons than 1 are appointed liquidators, their remuneration shall be distributed among them in such proportions as the court directs.

(3) A vacancy in the office of a liquidator appointed by the court shall be filled by the court.

(4) If more than 1 liquidator is appointed by the court, the court shall declare whether any act, by this Act required or authorized to be done by the liquidator, is to be done by all or any 1 or more of the persons appointed.

(5) Subject to the provisions of section 327, the acts of a liquidator shall be valid, notwithstanding any defects that may afterwards be discovered in, his appointment or qualification.

Custody of company's property

240. Where a winding-up order has been made or where an interim liquidator has been appointed, the liquidator or the interim liquidator, as the case may be, shall take into his custody or under his control all the property and things in action to which the company is or appears to be entitled.

Vesting of property of company in liquidator

241. Where a company is being wound up by the court, the court may, on the application of the liquidator, by order, direct that all or any part of the property of whatsoever description belonging to the company or held by trustees on its behalf shall vest in the liquidator by his official name, and thereupon the property to which the order relates shall vest accordingly, and the liquidator may, after giving such indemnity, if any, as the court may direct, bring or defend, in his official name, any action or other legal proceeding which relates to that property or which it is necessary to bring or defend for the purpose of effectually winding-up the company and recovering its property.

Powers of liquidator

*242.-(1) The liquidator in a winding-up by the court shall have power, with the sanction either of the court or of the committee of inspection-

(a) to bring or defend any action or other legal proceeding in the name and on behalf of the company;

(b) to carry on the business of the company, so far as may be necessary for the beneficial winding-up thereof;

(c) to appoint a barrister and solicitor to assist him in the performance of his duties;

(d) to pay any classes of creditors in full;

(e) to make any compromise, or arrangement with creditors, or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable;

(f) to compromise all calls and liabilities to calls, debts and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and contributory or alleged contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or the winding-up of the company, on such terms as may be agreed, and take any security for the discharge of any such call, debt, liability or claim and give a complete discharge in respect thereof.

(2) The liquidator in a winding-up by the court shall have power-

(a) to sell the real and personal property and things in action of the company by public auction or private contract, with power to transfer the whole thereof to any person or company or to sell the same in parcels;

(b) to do all acts and to execute, in the name and on behalf of the company, all deeds, receipts and other documents and, for that purpose, to use, when necessary, the company's seal;

(c) to prove, rank and claim in the bankruptcy, insolvency or sequestration of any contributory for any balance against his estate, and to receive dividends in the bankruptcy, insolvency or sequestration in respect of that balance, as a separate debt due from the bankrupt or insolvent, and rateably with the other separate creditors;

(d) to draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if the bill or note had been drawn, accepted, made or endorsed by or on behalf of the company in the course of its business;

(e) to raise, on the security of the assets of the company, any money requisite;

(f) to take out, in his official name, letters of administration for any deceased contributory, and to do, in his official name, any other act necessary for obtaining payment of any money due from a contributory or his estate which cannot be conveniently done in the name of the company and, in all such cases, the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or recover the money, be deemed to be due to the liquidator himself:

Provided that nothing in this paragraph shall be deemed to affect the rights, duties and privileges of the Public Trustee;

(g) to appoint an agent to do any business which the liquidator is unable to do himself;

(h) to do all such other things as may be necessary for winding-up the affairs of the company and distributing its assets.

(3) The exercise by a liquidator in a winding-up by the court of the powers conferred by this section shall be subject to the control of the court, and any creditor or contributory may apply to the court with respect to any exercise or proposed exercise of any of those powers.

Exercise and control of liquidator's powers

243. (1) Subject to the provisions of this Act, the liquidator of a company which is being wound up by the court shall, in the administration of the assets of the company and in the distribution thereof among its creditors, have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting or by the committee of inspection, and any directions given by the creditors or contributories at any general meeting shall, in case of conflict, be deemed to override any directions given by the committee of inspection.

(2) The liquidator may summon general meetings of the creditors or contributories for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors or contributories, by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or contributories as the case may be.

(3) The liquidator may apply to the court, in manner prescribed, for directions in relation to any particular matter arising under the winding-up.

(4) Subject to the provisions of this Act, the liquidator shall use his own discretion in the management of the estate and its distribution among the creditors.

(5) If any person is aggrieved by any act or decision of the liquidator, that person may apply to the court, and the court may confirm, reverse or modify the act or decision complained of, and make such order in the premises as it thinks just.

Books to be kept by liquidator

244. Every liquidator of a company which is being wound up by the court shall keep, in manner prescribed, proper books, in which he shall cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be prescribed, and any creditor or contributory may, subject to the control of the court, personally or by his agent inspect any such books.

Payments by liquidator to official receiver or into bank

245. (1) Every liquidator of a company which is being wound up by the court shall, in such manner and at such times as the official receiver shall direct, pay the money received by him to the official receiver for the credit of the Companies Liquidation Account, and the official receiver shall furnish him with a receipt for the money so paid:

Provided that, if the committee of inspection satisfy the court that, for the purpose of carrying on the business of the company or of obtaining advances, or for any other reason, it is for the advantage of the creditors or contributories that the liquidator should have an account with any bank, the court shall, on the application of the committee of inspection, authorize the liquidator to make his payments into and out of such bank as the committee may select, and thereupon those payments shall be made in the prescribed manner.

(2) If any such liquidator at any time retains for more than 10 days a sum exceeding $100, or such other amount as the court in any particular case authorizes him to retain, then, unless he explains the retention to the satisfaction of the court, he shall pay interest on the amount so retained in excess at the rate of 20 per cent per annum and shall be liable to disallowance of all or such part of his remuneration as the court may think just, and to be removed from his office; by the court, and shall be liable to pay any expenses occasioned by reason of his default.

(3) A liquidator of a company which is being wound up by the court shall not pay any sums received by him as liquidator into his private banking account.

Audit of liquidator's accounts

**246.* (1)** Every liquidator, other than the official receiver, of a company which is being wound up by the court shall, at such times as may be prescribed, but not less than twice in each year during his tenure of office, send to the official receiver, or as he directs, an account of his receipts and payments as liquidator.

(2) The account shall be in the prescribed form, shall be made in duplicate and shall be verified by a statutory declaration in the prescribed form.

(3) The official receiver shall cause the account to be audited, and, for the purpose of the audit, the liquidator shall furnish the official receiver with such vouchers and information as the official receiver may require, and the official receiver may, at any time, require the production of and inspect any books or accounts kept by the liquidator.

(4) When the account has been audited, 1 copy thereof shall be filed by the official receiver and the other copy shall be delivered to the court for filing, and each copy shall be open to the inspection of any person on payment of the prescribed fee.

(5) The liquidator shall cause a copy of the account, when audited, or a summary thereof, to be sent by post to each creditor and contributory within 30 days of the completion of the audit:

Provided that the official receiver may, in any case, dispense with compliance with this subsection.

Control over liquidators

247. (1) The official receiver shall take cognizance of the conduct of liquidators of companies which are being wound up by the court, and, if a liquidator does not faithfully perform his duties and duly observe all the requirements imposed on him by statute, rules or otherwise with respect to the performance of his duties, or if any complaint is made to the official receiver by any creditor or contributory in regard thereto, the official receiver shall inquire into the matter and take such action thereon as he may think expedient.

(2) The official receiver may, at any time, require any liquidator of a company which is being wound up by the court to answer any inquiry in relation to any winding-up in which he is engaged, and may, if the official receiver thinks fit, apply to the court to examine him or any other person on oath concerning the winding-up.

Release of liquidators

248. (1) When the liquidator of a company which is being wound up by the court has realized all the property of the company, or so much thereof as can, in his opinion, be realized without needlessly protracting the liquidation, and has distributed a final dividend, if any, to the creditors, and adjusted the rights of the contributories among themselves, and made a final return, if any, to the contributories, or has resigned, or has been removed from his office, the court shall, on his application, cause a report on his accounts to be prepared, and, on his complying with all the requirements of the court, shall take into consideration the report and any objection which may be urged by any creditor or contributory or person interested against the release of the liquidator, and shall either grant or withhold the release accordingly.

(2) Where the release of a liquidator is withheld, the court may, on the application of any creditor or contributory or person interested, make such order as it thinks just, charging the liquidator with the consequences of any act or default which he may have done or made contrary to his duty.

(3) An order of the court releasing the liquidator shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the company or otherwise in relation to his conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.

(4) Whether the liquidator has not previously resigned or been removed, his release shall operate as a removal of him from his office.

Subdivision H-Committees of Inspection

Meetings of creditors and contributories to determine whether committee of inspection shall be appointed

249. (1) When a winding-up order has been made by the court, it shall be the business of the separate meetings of creditors and contributories summoned for the purpose of determining whether or not an application should be made to the court for appointing a liquidator in place of the official receiver, to determine further whether or not an application is to be made to the court for the appointment of a committee of inspection to act with the liquidator and who are to be members of the committee if appointed.

(2) The court may make any appointment and order required to give effect to any such determination and, if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matters aforesaid, the court shall decide the difference and make such order thereon as the court may think fit.

Constitution and proceedings of committee of inspection

250. (1) A committee of inspection appointed in pursuance of this Act shall consist of creditors and contributories of the company, or persons holding general powers of attorney from creditors or contributories, in such proportions as may be agreed on by the meetings of creditors and contributories or as, in case of difference, may be determined by the court.

(2) The committee shall meet at such times as they from time to time appoint, and, failing such appointment, at least once a month, and the liquidator or any member of the committee may also call a meeting of the committee as and when he thinks necessary.

(3) The committee may act by a majority of their members present at a meeting, but shall not act unless a majority of the committee are present,

(4) A member of the committee may resign by notice in writing signed by him and delivered to the liquidator.

(5) If a member of the committee becomes bankrupt or compounds or arranges with his creditors or is absent from 5 consecutive meetings of the committee without the leave of those members who, together with himself, represent the creditors or contributories, as the case may be, his office shall thereupon become vacant.

*(6) A member of the committee may be removed by an ordinary resolution at a meeting of creditors, if he represents creditors, or of contributories, if he represents contributories, of which 21 days' notice has been given, stating the object of the meeting.

(7) On a vacancy occurring in the committee, the liquidator shall forthwith summon a meeting of creditors or of contributories, as the case may require, to fill the vacancy, and the meeting may, by resolution, reappoint the same or appoint another creditor or contributory to fill the vacancy:

Provided that, if the liquidator, having regard to the position in the winding-up, is of the opinion that it is unnecessary for the vacancy to be filled, he may apply to the court and the court may make an order that the vacancy shall not be filled, or shall not be filled, except in such circumstances as may be specified in the order.

(8) The continuing members of the committee, if not fewer than 2, may act, notwithstanding any vacancy in the committee.

**Powers of court where no committee of inspection

251. Where, in the case of a winding-up, there is no committee of inspection, the court may, on the application of the liquidator, do any act or thing or give any direction or permission which is, by this Act, authorized or required to be done or given by the committee:

Provided that, where the official receiver is the liquidator, he may do any such act or thing and give any such direction or permission without application to the court.

Subdivision I-General Powers of Court in Case of Winding-up by Court

Power to stay winding-up

252. (1) The court may, at any time after an order for winding-up, on the application either of the liquidator or the official receiver or any creditor or contributory, and on proof to the satisfaction of the court that all proceedings in relation to the winding-up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.

(2) On any application under this section, the court may, before making an order, require the official receiver to furnish to the court a report with respect to any facts or matters which are in his opinion relevant to the application.

(3) A copy of every order made under this section shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the registrar for registration.

Settlement of list of contributories and application of assets

253. (1) As soon as may be after making a winding-up order, the court shall settle a list of contributories, with power to rectify the register of members in all cases where rectification is required in pursuance of this Act, and shall cause the assets of the company to be collected, and applied in discharge of its liabilities:

Provided that, where it appears to the court that it will not be necessary to make calls on or adjust the rights of contributories, the court may dispense with the settlement of a list of contributories.

(2) In settling the list of contributories, the court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.

Delivery of property to liquidator

254. The court may, at any time after making a winding-up order, require any contributory for the time being on the list of contributories and any trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender or transfer forthwith, or within such time as the court directs, to the liquidator any money, property or books and papers in his hands to which the company is prima facie entitled.

Payment of debts due by contributory to company and extent to which set-off allowed

255. (1) The court may, at any time after making a winding-up order, make an order on any contributory for the time being on the list of contributories to pay, in manner directed by the order, any money due from him or from the estate of the person whom he represents to the company, exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Act.

(2) The court, in making such an order may-

(a) in the case of an unlimited company, allow to the contributory, by way of set-off, any money due to him or to the estate which he represents from the company on any independent dealing or contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit; and

(b) in the case of a limited company, make to any director or manager whose liability is unlimited or to his estate the like allowance.

(3) In the case of any company, whether limited or unlimited, when all the creditors are paid in full, any money due on any account whatever to a contributory from the company may be allowed to him by way of set-off against any subsequent call.

Power of court to make calls

256. (1) The court may, at any time after making a winding-up order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on all or any of the contributories for the time being on the list of the contributories, to the extent of their liability, for payment of any money which the court considers necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding-up, and for the adjustment of the rights of the contributories among themselves, and make an order for payment of any calls so made.

(2) In making a call, the court may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.

*Payment into bank of moneys due to company

257. (1) The court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into a specified bank or any branch thereof to the account of the liquidator instead of to the liquidator, and any such order may be enforced in the same manner as if it had directed payment to the liquidator.

(2) All moneys and securities paid or delivered into a specified bank or any branch thereof in the event of a winding-up by the court shall be subject in all respects to the orders of the court.

Order on contributory conclusive evidence

258. (1) An order made by the court on a contributory shall, subject to any right of appeal, be conclusive evidence that the money, if any, thereby appearing to be due or ordered to be paid is due.

(2) All other pertinent matters stated in the order shall be taken to be truly stated as against all persons and in all proceedings whatsoever.

Appointment of special manager

259. (1) Where the official receiver becomes the liquidator of a company, whether provisionally or otherwise, he may, if satisfied that the nature of the estate or business of the company, or the interests of the creditors or contributories generally, require the appointment of a special manager of the estate or business of the company other than himself, apply to the court, and the court may, on such application, appoint a special manager of the said estate or business to act during such time as the court may direct, with such powers, including any of the powers of a receiver or manager, as may be entrusted to him by the courts.

(2) The special manager shall give such security and account in such manner as the official receiver shall direct.

(3) The special manager shall receive such remuneration as may be fixed by the court.

Power to exclude creditors not proving in time

260. The court may fix, a time or times within which creditors are to prove their debts or claims or to be excluded from the benefit of any distribution made before those debts are proved.

Adjustment of rights of contributories

261. The court shall adjust the rights of the contributories among themselves and make an order for the distribution of any surplus among the persons entitled thereto.

Inspection of books by creditors and contributories

262. (1) The court may, at any time after making a winding-up order, make such order for inspection of the books and papers of the company by creditors and contributories as the court thinks just, and any books and papers of the company may be inspected by creditors or contributories accordingly, but not further or otherwise.

(2) Nothing in this section shall be taken as excluding or restricting any statutory rights of any department of the Government or of any officer thereof or of any person acting under the authority of any such department or officer.

Power to order costs of winding-up to be paid out of assets

263. The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the costs, charges and expenses incurred in the winding-up in such order of priority as the court thinks just.

Power to summon persons suspected of having property of company, etc.

264. (1) The court may, at any time after the appointment of an interim liquidator or the making of a winding-up order, summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the court deems capable of giving information concerning the promotion, formation, trade, dealings, affairs or property of the company.

(2) The court may examine him on oath concerning the matters aforesaid, either by word of mouth or on written interrogatories, and may reduce his answers to writing and require him to sign them.

(3) The court may require him to produce any books and papers in his custody or power relating to the company, but, where he claims any lien on books or papers produced by him, the production shall be without prejudice to that lien, and the court shall have jurisdiction, in the winding-up, to determine all questions relating to that lien.

(4) If any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, not having a lawful impediment (made known to the court at the time of its sitting and allowed by it), the court may cause him to be arrested and brought before the court for examination.

Attendance of officers of company at meetings of creditors, etc.

265. In the winding-up by the court of a company, the court shall have power to require the attendance of any officer of the company at any meeting of creditors or of contributories or of a committee of inspection for the purpose of giving information as to the trade, dealings, affairs or property of the company.

Power to order public examination of promoters and officers

266. (1) Where an order has been made for winding-up a company by the court, and the official receiver has made a further report under this Act stating that, in his opinion, a fraud has been committed by any person in the promotion or formation of the company or by any officer of the company in relation to the company since its formation, the court may, after consideration of the report, direct that that person or officer shall attend before the court on a day appointed by the court for that purpose and be publicly examine as to the promotion or formation or the conduct of the business of the company or as to his conduct and dealings as an officer thereof.

(2) The official receiver shall take part in the examination, and, for that purpose, may, if specially authorized by the court in that behalf employ a barrister and solicitor.

(3) The liquidator, where the official receiver is not the liquidator, and any creditor or contributory may also take part in the examination, either personally or by his barrister and solicitor.

(4) The court may put such questions to the person examined as the court thinks fit.

(5) The person examined shall be examined on oath and shall answer all such questions as the court may put or allow to be put to him.

(6) A person ordered to be examined under this section shall, at his own cost, before his examination, be furnished with a copy of the official receiver's report, and may, at his own cost, employ a barrister and solicitor, who shall be at liberty to put to him such questions as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him:

Provided that, if any such person applies to the court to be exculpated from any charges made or suggested against him, it shall be the duty of the official receiver to appear on the hearing of the application and call the attention of the court to any matters which appear to the official receiver to be relevant and, if the court, after hearing any evidence given or witnesses called by the official receiver, grants the application, the court may allow the applicant such costs as, in its discretion, it may think fit.

(7) Notes of the examination shall be taken down, in writing, and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him, and shall be open to the inspection of any creditor or contributory at all reasonable times.

(8) The court may, if it thinks fit, adjourn the examination from time to time.

Power to arrest absconding promoters, officers and contributories

267. The court, at any time either before or after making a winding-up order, on proof of probable cause for believing that any person or officer of the company mentioned in subsection (1) of section 266 or a contributory is about to quit Fiji or otherwise to abscond or to remove or conceal any of his property for the purpose of evading payment to calls or of avoiding examination respecting the affairs of the company, may cause him to be arrested and his books and papers and movable personal property to be seized and him and them to be safely kept until such times as the court may order.

Powers of court cumulative

268. Any powers by this Act conferred on the court shall be in addition to, and not in restriction of, any existing powers of instituting proceedings against any contributory or debtor of the company or the estate of any contributory or debtor, for the recovery of any call or other sums.

Delegation to liquidator of certain powers of court

269. Provision may be made by rules for enabling or requiring all or any of the powers and duties conferred and imposed on the court by this Act in respect of the following matters:-

(a) the holding and conducting of meetings to ascertain the wishes of creditors and contributories;

(b) the settling of lists of contributories and the rectifying of the register of members, where required, and the collecting and applying of the assets;

(c) the paying, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator;

(d) the making of calls;

(e) the fixing of a time within which debts and claims must be proved, to be exercised or performed by the liquidator as an officer of the court, and subject to the control of the court:

Provided that the liquidator shall not, without the special leave of the court, rectify the register of members, and shall not make any call without either the special leave of the court or the sanction of the committee of inspection. Dissolution of company

270. (1) When the affairs of a company have been completely wound up, the court, if the liquidator makes an application in that behalf, shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly.

(2) A copy of the order shall, within 14 days from the date thereof, be delivered by the liquidator to the registrar for registration.

(3) If the liquidator makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding $10 for every day during which he is in default.

Subdivision J-Appeals

**Appeals***

271. Subject to such conditions and limitations as may be prescribed by rules, an appeal shall lie to the Court of Appeal from any decision or order given or made by the Supreme Court in the exercise of the jurisdiction conferred upon it by section 219.

Division 3-Voluntary Winding-up

Subdivision A-Resolutions for, and Commencement of Voluntary Winding-up

Circumstances in which company may be wound up voluntarily

272. (1) A company may be wound up voluntarily-

(a) when the period, if any, fixed for the duration of the company by the articles expires, or the event, if any, occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily;

(b) if the company resolves, by special resolution, that the company be wound up voluntarily;

(c) the company resolves, by special resolution, to the effect that it cannot, by reason of its liabilities, continue its business, and that it is advisable to wind up.

(2) In this Act, "a resolution for voluntary winding-up" means a resolution passed under any of the provisions of subsection (1).

Notice of resolution to wind up voluntarily

273. (1) When a company has passed a resolution for voluntary winding-up, it shall, within 14 days after the passing of the resolution, give notice of the resolution by advertisement in the Gazette, and also in a newspaper published and circulating in Fiji.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine and, for the purposes of this subsection, the liquidator of the company shall be deemed to be an officer of the company.

Commencement of voluntary winding-up

274. A voluntary winding-up shall be deemed to commence at the time of the passing of the resolution for voluntary winding-up.

Subdivision B-Consequences of Voluntary Winding-up

Effect of voluntary winding-up on business and status of company

275. In case of a voluntary winding-up, the company shall, from the commencement of the winding-up, cease to carry on its business, except so far as may be required for the beneficial winding-up thereof:

Provided that the corporate state and corporate powers of the company shall, notwithstanding anything to the contrary in its articles, continue until it is dissolved.

Avoidance of transfers, etc., after commencement of voluntary winding-up

276. Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and any alteration in the status of the members of the company, made after the commencement of a voluntary winding-up, shall be void.

Subdivision C-Declaration of Solvency

Statutory declaration of solvency in case of proposal to wind up voluntarily

277.(1)** Where it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than 2 directors, the majority of the directors, may, at a meeting of the directors, make a declaration in the prescribed form to the effect that they have made a full inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company will be able to pay its debts in full within such period, not exceeding 12 months, from the commencement of the winding-up as may be specified in the declaration.

(2) A declaration made as aforesaid shall have no effect for the purposes of this Act unless-

(a) it is made within the 30 days immediately preceding the date of the passing of the resolution for winding-up the company and is delivered to the registrar, for registration, before that date; and

(b) it embodies a statement of the company's assets and liabilities as at the latest practicable date before the making of the declaration.

(3) Any director of a company making a declaration under this section, without having reasonable grounds for the opinion that the company will be able to pay its debts in full within the period specified in the declaration, shall be liable to imprisonment for a period not exceeding 12 months or to a fine not exceeding $2,000 or to both; and, if the company is wound up in pursuance of a resolution passed within the period of 30 days after the making of the declaration, but its debts are not paid or provided for in full within the period stated in the declaration, it shall be presumed, until the contrary is shown, that the director did not have reasonable grounds for his opinion.

(4) A winding-up in the case of which a declaration has been made and delivered in accordance with this section or section 277 of the repealed Companies Act is, in this Act, referred to as a "members' voluntary winding-up", and a winding-up in the case of which a declaration has not been made and delivered as aforesaid is in this Act referred to as a "creditors' voluntary winding-up".

(5) Subsections (1) to (3) shall not apply to a winding-up commenced before 1 January 1984.

Subdivision D-Provisions Applicable to a Members' Voluntary Winding-up

Provisions applicable to a members' winding-up

278. The provisions of sections 279 to 285 shall, subject to the provisions of section 285, apply in relation to a members' voluntary winding-up.

Power of company to appoint and fix remuneration of liquidators

279. (1) The company in general meeting shall appoint 1 or more liquidators for the purpose of winding-up the affairs and distributing the assets of the company, and may fix the remuneration to be paid to him or them.

(2) On the appointment of a liquidator, all the powers of the directors shall cease, except so far as the company in general meeting or the liquidator sanctions the continuance thereof.

Power to fill vacancy in office of liquidator

280. (1) If a vacancy occurs by death, resignation or otherwise in the office of liquidator appointed by the company, the company in general meeting may, subject to any arrangement with its creditors, fill the vacancy.

(2) For that purpose, a general meeting may be convened by any contributory or, if there were more liquidators than 1, by any continuing liquidator.

(3) The meeting shall be held in manner provided by this Act or by the articles, or in such manner as may, on application by any contributory or, by any continuing liquidator, be determined by the court.

Power of liquidator to accept shares, etc., as consideration for sale of property of company

281. (1) Where a company is proposed to be, or is in course of being, wound up voluntarily, and the whole or part of its business or property is proposed to be transferred or sold to another company, whether a company within the meaning of this Act or not (in this section called the "transferee company"), the liquidator of the first-mentioned company (in this section called the "transferor company") may, with the sanction of a special resolution of that company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, receive, in compensation or part compensation for the transfer or sale, shares, policies or other like interests in the transferee company for distribution among the members of the transferor company, or may enter into any other arrangement whereby the members of the transferor company may, in lieu of receiving cash, shares, policies or other like interests, or in addition thereto, participate in the profits of or receive any other benefits from the transferee company.

(2) Any sale or arrangement in pursuance of this section shall be binding on the members of the transferor company.

(3) If any member of the transferor company who did not vote in favour of the special resolution expresses his dissent therefrom in writing addressed to the liquidator, and left at the registered office of the company within 7 days after the passing of the resolution, he may require the liquidator either to abstain from carrying the resolution into effect or to purchase his interest at a price to be determined by agreement or by arbitration in accordance with the law relating to arbitration for the time being in force in Fiji.

(4) If the liquidator elects to purchase the member's interest, the purchase money shall be paid before the company is dissolved and be raised by the liquidator in such manner as may be determined by special resolution.

(5) A special resolution shall not be invalid, for the purposes of this section, by reason that it is passed before or concurrently with a resolution for voluntary winding-up or for appointing liquidators, but, if an order is made within a year for winding-up the company by or subject to the supervision of the court, the special resolution shall not be valid unless sanctioned by the court.

Duty of liquidator to call creditors' meeting in case of insolvency

282. (1) If, in the case of a winding-up commenced on or after 1 January 1984, the liquidator is, at any time, of opinion that the company will not be able to pay its debts in full within the period stated in the declaration under section 277, he shall forthwith notify the registrar accordingly and summon a meeting of the creditors, and shall lay before the meeting a statement of the assets and liabilities of the company.

**(2) If the liquidator fails to comply with this section, he shall be liable to a fine not exceeding $100.

Duty of liquidator to call general meeting at end of each year

283. (1) Subject to the provisions of section 285, in the event of the winding-up continuing for more than 1 year, the liquidator shall summon a general meeting of the company at the end of the first year from the commencement of the winding-up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the registrar may allow, and shall lay before the meeting an account of his acts and dealings and of the conduct of the winding-up during the preceding year.

(2) If the liquidator fails to comply with this section, he shall be liable to a fine not exceeding $50.

Final meeting and dissolution

284. (1) Subject to the provisions of section 285, as soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding-up, showing how the winding-up has been conducted and the property of the company disposed of, and thereupon shall call a general meeting of the company for the purpose of laying before it the account, and giving any explanation thereof.

(2) The meeting shall be called by advertisement in the Gazette, and in a newspaper published and circulating in Fiji, specifying the time, place and object thereof, and published 30 days at least before the meeting.

(3) Within 14 days after the meeting, the liquidator shall deliver to the registrar a copy of the account, and shall make a return to him of the holding of the meeting and of its date and, if the copy is not delivered or the return is not made in accordance with this subsection, the liquidator shall be liable to a fine not exceeding $10 for every day during which the default continues:

Provided that, if a quorum is not present at the meeting, the liquidator shall, in lieu of the return hereinbefore mentioned, make a return that the meeting was duly summoned and that no quorum was present thereat and, upon such a return being made, the provisions of this subsection as to the making of the return shall be deemed to have been complied with.

(4) The registrar, on receiving the account and either of the returns hereinbefore mentioned, shall forthwith register them and, (on the expiration of 3 months from the registration of the return, the company shall be deemed to be dissolved:

Provided that the court may, on the application of the liquidator or of any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.

(5) It shall be the duty of the person on whose application an order of the court under this section is made, within 7 days after the making of the order, to deliver to the registrar a certified copy of the order, for registration and, if that person fails so to do, he shall be liable to a fine not exceeding $10 for every day during which the default continues.

(6) If the liquidator fails to call a general meeting of the company as required by this section, he shall be liable to a fine not exceeding $100.

Alternative provisions as to annual and final meetings in case of insolvency

285. Where section 282 has effect, sections 294 and 295 shall apply to the winding-up to the exclusion of sections 283 and 284 as if the winding-up were a creditors' voluntary winding-up and not a members' voluntary winding-up:

Provided that the liquidator shall not be required to summon a meeting of creditors under section 294 at the end of the first year from the commencement of the winding-up, unless the meeting held under section 282 is held more than 3 months before the end of that year.

E-Provisions Applicable to a Creditors' Voluntary Winding-up

Provisions applicable to a creditors' winding-up

286. The provisions of sections 287 to 295 shall apply in relation to a creditors' voluntary winding-up.

Meeting of creditors

287. (1) The company shall cause a meeting of the creditors of the company to be summoned for the day, or the day next following the day, on which there is to be held the meeting at which the resolution for voluntary winding-up is to be proposed, and shall cause the notices of the said meeting of creditors to be sent by post to the creditors simultaneously with the sending of the notices of the said meeting of the company.

(2) The company shall cause notice of the meeting of the creditors to be advertised once in the Gazette and once at least in a newspaper published and circulating in Fiji.

(3) The directors of the company shall-

(a) cause a full statement of the position of the company's affairs, together with a list of the creditors of the company and the estimated amount of their claims, to be laid before the meeting of the creditors to be held as aforesaid; and

(b) appoint 1 of their number to preside at the said meeting.

(4) It shall be the duty of the director appointed to preside at the meeting of the creditors to attend the meeting and preside thereat.

(5) If the meeting of the company at which the resolution for voluntary winding-up is to be proposed is adjourned and the resolution is passed at an adjourned meeting, any resolution passed at the meeting of the creditors held in pursuance of subsection (1) shall have effect as if it had been passed immediately after the passing of the resolution for winding-up the company.

(6) If default is made-

(a) by the company in complying with subsections (1) and (2);

(b) by the directors of the company in complying with subsection (3);

(c) by any director of the company in complying with subsection (4), the company, directors or director, as the case may be, shall be liable to a fine not exceeding $200, and, in the case of default by the company, every officer of the company who is in default shall be liable to the like penalty.

Appointment of liquidator

288. The creditors and the company, at their respective meetings mentioned in section 287, may nominate a person to be liquidator for the purpose of winding-up the affairs and distributing the assets of the company and, if the creditors and the company nominate different persons, the person nominated by the creditors shall be liquidator and, if no person is nominated by the creditors, the person, if any, nominated by the company shall be liquidator:

Provided that, in the case of different persons being nominated, any director, member or creditor of the company may, within 7 days after the date on which the nomination was made by the creditors, apply to the court for any order either directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors or appointing some other person be liquidator instead of the person appointed by the creditors.

Appointment of committee of inspection

289. (1) The creditors at the meeting to be held in pursuance of section 287, or at any subsequent meeting, may, if they think fit, appoint not more than 5 persons to be members of a committee of inspection and, if such a committee is appointed, the company may, either at the meeting at which the resolution for voluntary winding-up is passed or at any time subsequently in general meeting, appoint such number of persons as they think fit to be members of the committee so, however, that the majority of the members of the committee shall be persons appointed by the creditors:

Provided that the creditors may, if they think fit, resolve that all or any of the persons so appointed by the company ought not to be members of the committee of inspection, and, if the creditors so resolve, the persons mentioned in the resolution shall not, unless the court otherwise directs, be qualified to act as members of the committee and, on any application to the court under this provision, the court may, if it thinks fit, appoint other persons to act as such members in place of the person mentioned in the resolution.

(2) Subject to the provisions of this section and to any rules made in this behalf, the provisions of section 250, except subsection (1) thereof, shall apply with respect to a committee of inspection appointed under this section as they apply with respect to a committee of inspection appointed in a winding-up by the court.

Fixing of liquidators' remuneration

290. The committee of inspection or, if there is no such committee, the creditors may fix the remuneration to be paid to the liquidator or liquidators.

Cesser of directors' powers on appointment of liquidator

291. On the appointment of a liquidator, all the powers of the directors shall cease, except so far as the committee of inspection, or, if there is no such committee, the creditors sanction the continuance thereof.

Power to fill vacancy in office of liquidator

292. If a vacancy occurs, by death, resignation or otherwise, in the office of a liquidator, other than a liquidator appointed by, or by the direction of, the court, the creditors may fill the vacancy.

Application of section 281 to a creditors' voluntary winding-up

293. The provisions of section 281 shall apply in the case of a creditors' voluntary winding-up as in the case of a members' voluntary winding-up, with the modification that the powers of the liquidator under the said section shall not be exercised, except with the sanction either of the court or of the committee of inspection in substitution for the sanction of a special resolution.

Duty of liquidator to call meetings of company and of creditors at end of each year

294. (1)** In the event of the winding-up continuing for more than 1 year, the liquidator shall summon a general meeting of the company and a meeting of the creditors at the end of the first year from the commencement of the winding-up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the registrar may allow, and shall lay before the meetings an account of his acts and dealings and of the conduct of the winding-up during the preceding year.

(2) If the liquidator fails to comply with this section, he shall be liable to a fine not exceeding $50.

Final meeting and dissolution

295. (1) As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding-up, showing how the winding-up has been conducted and the property of the company disposed of, and thereupon shall call a general meeting of the company and a meeting of the creditors of the purpose of laying the account before the meetings and giving any explanation thereof.

(2) Each such meeting shall be called by advertisement in the Gazette and in a newspaper published and circulating in Fiji, specifying the time, place and object thereof, and published 30 days at least before the meeting.

(3) Within 14 days after the date of the meetings, or, if the meetings are not held on the same date, after the date of the later meeting, the liquidator shall deliver to the registrar a copy of the account, and shall make a return to hire of the holding of the meetings and of their dates and, if the copy is not delivered or the return is not made in accordance with this subsection, the liquidator shall be liable to a fine not exceeding $10 for every day during which the default continues:

Provided that, if a quorum is not present at either such meeting, the liquidator shall, in lieu of the return herein before mentioned, make a return that the meeting was duly summoned and that no quorum was present thereat and, upon such a return being made, the provisions of this subsection as to the making of the return shall, in respect of that meeting, be deemed to have been complied with.

(4) The registrar, on receiving the account and, in respect of each such meeting, either of the returns herein before mentioned, shall forthwith register them and, on the expiration of 3 months from the registration thereof, the company shall be deemed to be dissolved:

Provided that the court may, on the application of the liquidator or of any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.

(5) It shall be the duty of the person on whose application an order of the court under this section is made, within 7 days after the making of the order, to deliver to the registrar a certified copy of the order, for registration and, if that person fails so to do, he shall be liable to a fine not exceeding $10 for every day during which the default continues.

(6) If the liquidator fails to call a general meeting of the company or a meeting of the creditors as required by this section, he shall be liable to a fine not exceeding $100.

Subdivision F-Provisions Applicable to every Voluntary Winding-up

Provisions applicable to every voluntary winding-up

296. The provisions of section 297 to 304 shall apply to every voluntary winding-up, whether a members' or a creditors' winding-up.

Distribution of property of company

297. Subject to the provisions of this Act as to preferential payments, the assets of a company shall, on its winding-up, be applied in satisfaction of its liabilities, pari passu, and, subject to such application, shall, unless the articles otherwise provide, be distributed among the members according to their rights and interests in the company.

Powers and duties of liquidator in voluntary winding-up

298. (1) The liquidator may-

(a) in the case of a members' voluntary winding-up, with the sanction of a special resolution of the company, and, in the case of a creditors' voluntary winding-up, with the sanction of the court or the committee of inspection or (if there is no such committee) a meeting of the creditors, exercise any of the powers given by paragraphs (d), (e) and (f) of subsection (1) of section 242 to a liquidator in a winding-up by the court;

(b) without sanction, exercise any of the other powers by this Act given to the liquidator in a winding-up by the court;

(c) exercise the power of the court, under this Act, of settling a list of contributories, and the list of contributories shall be prima facie evidence of the liability of the persons named therein to be contributories;

(d) exercise the power of the court of making calls;

(e) summon general meetings of the company for the purpose of obtaining the sanction of the company by special resolution or for any other purpose he may think fit.

(2) The liquidator shall pay the debts of the company and shall adjust the rights of the contributories among themselves.

(3) When several liquidators are appointed, any power given by this Act may be exercised by such 1 or more of them as may be determined at the time of their appointment, or, in default of such determination, by any number not less than 2.

Power of court to appoint and remove liquidator in voluntary winding-up

299. (1) If, from any cause whatever, there is no liquidator acting, the court may appoint a liquidator.

(2) The court may, on cause shown, remove a liquidator and appoint another liquidator.

Notice by liquidator of his appointment

300. (1) The liquidator shall, within 14 days after his appointment, publish in the Gazette and deliver to the registrar, for registration, a notice of his appointment in the form prescribed.

(2) If the liquidator fails to comply with the requirements of this section, he shall be liable to a fine not exceeding $10 for every day during which the default continues.

Arrangement; when binding on creditors

301. (1) Any arrangement entered into between a company about to be, or in the course of being, wound up and its creditors shall, subject to the right of appeal under this section, be binding on the company, if sanctioned by a special resolution, and on the creditors, if acceded to by three-fourths in number and value of the creditors.

(2) Any creditor or contributory may, within 30 days from the completion of the arrangement, appeal to the court against it, and the court may thereupon, as it thinks just, amend, vary or confirm the arrangement.

Power to apply to court to have questions determined or powers exercised

302. (1) The liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding-up of a company, or to exercise, as respects the enforcing of calls or any other matter, all or any of the powers which the court might exercise if the company were being wound up by the court.

(2) The court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just.

(3) A copy of an order made by virtue of this section staying the proceedings in the winding-up shall forthwith be delivered by the company, or otherwise as may be prescribed, to the registrar for registration.

Costs of voluntary winding-up

303. All costs, charges and expenses properly incurred in the winding-up, including the remuneration of the liquidator, shall be payable out of the assets of the company in priority to all other claims.

Saving for rights of creditors and contributories

304. The voluntary winding-up of a company shall not bar the right of any creditor or contributory to have it wound up by the court but, in the case of an application by a contributory, the court shall be satisfied that the rights of the contributories will be prejudiced by a voluntary winding-up.

Division 4-Winding-up Subject to Supervision of Court

Power to order winding-up subject to supervision

305. When a company has passed a resolution for voluntary winding-up, the court may make an order that the voluntary winding-up shall continue but subject to such supervision of the court, and with such liberty for creditors, contributories, or others to apply to the court, and generally on such terms and conditions, as the court thinks just.

Effect of petition for winding-up subject to supervision

306. A petition for the continuance of a voluntary winding-up subject to the supervision of the court shall, for the purpose of giving jurisdiction to the court over actions, be deemed to be a petition for winding-up by the court.

Application of sections 225 and 226 to winding-up subject to supervision

307. A winding-up subject to the supervision of the court shall, for the purposes of sections 225 and 226 be deemed to be a winding-up by the court.

Power of court to appoint or remove liquidators

308. (1) Where an order is made for a winding-up subject to supervision, the court may, by that or any subsequent order, appoint an additional liquidator.

(2) A liquidator appointed by the court under this section shall have the same powers, be subject to the same obligations, and in all respects stand in the same position, as if he had been duly appointed in accordance with the provisions of this Act with respect to the appointment of liquidators in a voluntary winding-up.

(3) The court may remove any liquidator so appointed by the court or any liquidator continued under the supervision order and fill any vacancy occasioned by the removal, or by death or resignation.

Effect of supervision order

309. (1) Where an order is made for a winding-up subject to supervision, the liquidator may, subject to any restrictions imposed by the court, exercise all his powers, without the sanction or intervention of the court, in the same manner as if the company were being wound up voluntarily:

Provided that none of the powers specified in paragraphs (d), (e) and (f) of subsection (1) of section 242 shall be exercised by the liquidator except with the sanction of the court or, in a case where, before the order, the winding-up was a creditors' voluntary winding-up, with the sanction of the court or the committee of inspection, or (if there is no such committee) a meeting of the creditors.

(2) A winding-up subject to the supervision of the court is not a winding-up by the court for the purpose of the provisions of this Act specified in Ninth Schedule, but, subject as aforesaid, an order for a winding-up subject to supervision shall, for all purposes, be deemed to be an order for winding-up by the court:

Provided that, where the order for winding-up subject to supervision was made in relation to a creditors' voluntary winding-up in which a committee of inspection had been appointed, the order shall be deemed to be an order for winding-up by the court for the purpose of section 250, except subsection (1) thereof, except in so far as the operation of that section is excluded in a voluntary winding-up by general rules.

Division 5-Provisions Applicable to Every Mode of Winding-up

Subdivision A-Proof and Ranking of Claims

Debts of all descriptions may be proved

310. In every winding-up (subject, in the case of insolvent companies, to the application, in accordance with the provisions of this Act, of the law of bankruptcy) all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.

Application of bankruptcy rules in winding-up of insolvent companies

*311. In the winding-up of an insolvent company, the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable and to the valuation of annuities and future and contingent liabilities as are in force, for the time being, under the law of bankruptcy with respect to the estates of persons adjudged bankrupt, and all persons who, in any such case, would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding-up and make such claims against the company as they respectively are entitled to by virtue of this section.

Preferential payments

312. (1) Notwithstanding the provisions of any other written law, in the winding-up of a company, there shall be paid in priority to all other debts-

(a) all Crown taxes and local rates due from the company at the relevant date and having become due and payable within 12 months next before that date, not exceeding in the whole 1 year's assessment and all Crown taxes legally withheld by the company from payments made by it to employees, members, and others;

(b) all Crown rents not more than 1 year in arrear;

(c) all wages or salary (whether or not earned wholly or in part by way of commission) of any clerk or servant (not being a director) in respect of services rendered to the company during 4 months next before the relevant date and all wages (whether payable for time or for piece work) of any workman or laborer in respect of services so rendered;

(d) unless the company is being wound up voluntarily merely for the purposes of reconstruction or amalgamation with another company, or unless the company has, at the commencement of the winding-up, under any contract with insurers, rights capable of being transferred to and vested in the workman, all amounts due in respect of any compensation or liability for compensation under the Workmen's Compensation Act, being amounts which have accrued before the relevant date; (Cap. 94.)

(e) unless the company is being wound up voluntarily merely for the purposes of reconstruction or amalgamation with another company, all amounts due in respect of contributions payable during the period of 12 months immediately preceding the relevant date by the company as the employer of any person under the Fiji National Provident Fund Act. (Cap. 219.)

(2) Notwithstanding anything in paragraph (c) of subsection (1), the sum to which priority is to be given under that paragraph shall not, in the case of any claimant, exceed $600:

Provided that, where a claimant under the said paragraph (c) is a laborer in husbandry who has entered into a contract for the payment of a portion of his wages in a lump sum at the end of the year of hiring, he shall have priority in respect of the whole of such sum, or a part thereof, as the court may decide to be due under the contract, proportionate to the time of service up to the relevant date.

(3) Where any compensation under the Workmen's Compensation Act is a weekly payment, the amount due in respect thereof shall, for the purposes of paragraph (d) of subsection (1), be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed, if the employer made an application for that purpose under the said Act. (Cap. 94.)

(4) Where any payment has been made to any clerk, or servant (not being a director) or to any workman or laborer in the employment of a company, on account of wages or salary, out of money advanced by some person for that purpose, the person by whom the money was advanced shall, in a winding-up, have a right of priority in respect of the money so advanced and paid, up to the amount by which the sum in respect of which the clerk, servant, workman or laborer would have been entitled to priority in the winding-up has been diminished by reason of the payment having been made.

(5) The foregoing debts shall-

(a) rank equally among themselves and be paid in full, unless the assets are insufficient to meet them, in which case, they shall abate in equal proportions; and

(b) so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over the claims of holders of debentures under any floating charge created by the company, and be paid accordingly out of any property comprised in or subject to that charge.

(6) Subject to the retention of such sums as may be necessary for the costs and expenses of the winding-up, the foregoing debts shall be discharged forthwith so far as the assets are sufficient to meet them.

(7) In the event of a landlord. or other person distraining or having distrained on any goods or effects of the company within 6 months next before the date of a winding-up order, the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on, or the proceeds of the sale thereof:

Provided that, in respect of any money paid under any such charge, the landlord or other person shall have the same rights or priority as the person to whom the payment is made.

(8) For the purposes of this section-

(a) any remuneration in respect of a period of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the company during that period;

(b) "the relevant date" means- (i) in the case of a company ordered to be wound up compulsorily, the date of the appointment (or first appointment) of an interim liquidator, or, if no such appointment was made, the date of the winding-up order, unless, in either case, the company had commenced to be wound up voluntarily before that date; and (ii) in any case where sub paragraph (i) does not apply, the date of the passing of the resolution for the winding-up of the company.

(9) This section shall not apply in the case of a winding-up, where the relevant date as defined in subsection (7) of section 260 of the repealed Companies Act occurred before 1 January 1984, and, in such a case, the provisions relating to preferential payments which would have applied if this Act had not been enacted shall be deemed to remain in full force.

Subdivision B- Effect of Winding-up on Antecedent and other Transactions

Fraudulent preference

313. (1) Any transfer, conveyance, mortgage, charge, delivery of goods, payment, execution or other act relating to property made or done by or against a company within 6 months before the commencement of its winding-up which, had it been made or done by or against an individual within 6 months before the presentation of a bankruptcy petition on which he is adjudged bankrupt, would be deemed in his bankruptcy a fraudulent preference shall, in the event of the company being wound up, be deemed a fraudulent preference of its creditors and be void accordingly.

(2) Any transfer, conveyance or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void to all intents.

Liabilities and rights of certain fraudulently preferred persons

314. (1) Where anything made or done on or after 1 January 1984 is void under section 313 as a fraudulent preference of a person interested in property mortgaged or charged to secure the company's debt, then (without prejudice to any rights or liabilities arising apart from this provision) the person preferred shall be subject to the same liabilities, and shall have the same rights, as if he had undertaken to be personally liable as surety for the debt to the extent of the mortgage or charge on the property or the value of his interest, whichever is the less.

(2) The value of the said person's interest shall be determined as at the date of the transaction constituting the fraudulent preference, and shall be determined as if the interest were free of all encumbrances other than those to which the mortgage or charge for the company's debt was then subject.

(3) (a) On any application made to the court with respect to any payment on the ground that the payment was a fraudulent preference of a surety or guarantor, the court shall have jurisdiction to determine any questions with respect to the payment arising between the person to whom the payment was made and the surety or guarantor and to grant relief in respect thereof, notwithstanding that it is not necessary so to do for the purposes of the winding-up and, for that purpose, may give leave to bring in the surety or guarantor as a third party as in the case of an action for the recovery of the sum paid.

(b) This subsection shall apply, with the necessary modifications, in relation to transactions other than the payment of money as it applies in relation to such payments.

Effect of floating charge

315. Where a company is being wound up, a floating charge on the undertaking or property of the company created within 12 months of the commencement of the winding-up shall, unless it is proved that the company ,immediately after the creation of the charge, was solvent, be invalid, except to the amount of any cash paid to the company at the time of or subsequently to the creation of, and in consideration for, the charge, together with interest on that amount at the rate of 6 per cent per annum or such other rate as may for the time being be prescribed:

Provided that, in relation to a charge created more than 6 months before 1 January 1984, this section shall have effect with the substitution, for the words "12 months", of the words "6 months".

Disclaimer of onerous property in case of company wound up

316. (1) Where any part of the property of a company which is being wound up consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts or of any other property that is unsaleable, or not readily salable, by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the liquidator of the company, notwithstanding that he has endeavored to sell or has taken possession of the property or exercised any act of ownership in relation thereto, may, with the leave of the court and subject to the provisions of this section, by writing signed by him, at any time within 12 months after the commencement of the winding-up or such extended period as may be allowed by the court, disclaim:

Provided that, where any such property has not come to the knowledge of the liquidator within 1 month after the commencement of the winding-up, the power under this section of disclaiming the property may be exercised at any time within 12 months after he has become aware thereof or such extended period as may be allowed by the court.

(2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interest and liabilities of the company, and the property of the company, in or in respect of the property disclaimed, but shall not, except so far as is necessary for the purpose of releasing the company and the property of the company from liability, affect the rights or liabilities of any other person.

(3) The court, before or on granting leave to disclaim, may require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such other order, in the matter as the court thinks just.

(4) The liquidator shall not be entitled to disclaim any property under this section in any case where an application in writing has been made to him by any persons interested in the property requiring him to decide whether he will or will not disclaim and the liquidator has not, within a period of 28 days after the receipt of the application or such further period as may be allowed by the court, given notice to the applicant that he intends to apply to the court for leave to disclaim, and, in the case of a contract, if the liquidator, after such an application as aforesaid, does not, within the said period or further period, disclaim the, contract, the company shall be deemed to have adopted it.

(5) The court may, on the application of any person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the company, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise as the court thinks just, and any damages payable under the order to any such person may be proved by him as a debt in the winding-up.

(6) The court may, on an application by any person who either claims any interest in any disclaimed property or is under any liability not discharged by this Act in respect of any disclaimed property, and on hearing any such persons as it thinks fit, make an order for the vesting of the property in, or the delivery of the property to, any persons entitled thereto, or to whom it may seem just that the property should be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the court thinks just and, on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose:

Provided that, where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favor of any person claiming under the company, whether as under lessee or as mortgagee, except upon the terms of making that person-

(i) subject to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property at the commencement of the winding-up; or

(ii) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date, and, in either event (if the case so requires), as if the lease had comprised only the property comprised in the vesting order, and any mortgagee or under lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is willing to accept an order upon such terms, the court shall have power to vest the estate and interest of the company in the property in any person liable either personally or in a representative character, and either alone or jointly with the company, to perform the lessee's covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the company.

(7) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the company to the amount of the injury, and may accordingly prove the amount as a debt in the winding-up.

Restriction of rights of creditor as to execution or attachment in case of company being wound up

317. (1) Where a creditor has issued execution against the real or personal property of a company or has attached any debt due to the company, and the company is subsequently wound up, he shall not be entitled to retain the benefit of the execution or attachment against the liquidator in the winding-up of the company, unless he has completed the execution or attachment before the commencement of the winding-up:

Provided that-

(i) where any creditor has had, notice of a meeting having been called at which a resolution for voluntary winding-up is to be proposed, the date on which the creditor so had notice shall, for the purposes of the foregoing provision, be substituted for the date of the commencement of the winding-up;

(ii) a person who purchases in good faith, under a sale by order of the court, any personal property of a company on which an execution has been levied shall, in all cases, acquire a good title thereto against the liquidator; and

(iii) the rights conferred by this subsection on the liquidator may be set aside by the court in favor of the creditor, to such extent and subject to such terms as the court may think fit.

(2) For the purposes of this section, an execution against personal property shall be taken to be completed by seizure and sale, and an attachment of a debt shall be deemed to be completed by receipt of the debt, and an execution against real property shall be deemed to be completed by seizure and, in the case of an equitable interest, by the appointment of a receiver.

(3) In this section and in section 318, "personal property" includes all chattels personal.

Duties of court as to goods taken in execution

318. (1) Subject to the provisions of subsection (3), where any personal property of a company is taken in execution, and, before the sale thereof or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the court that an interim liquidator has been appointed or that a winding-up order has been made or that a resolution for voluntary winding-up has been passed, the court shall, on being so required, deliver the personal property, including any money seized or received in part satisfaction of the execution, to the liquidator, but the costs of the execution shall be a first charge on the personal property so delivered, and the liquidator may sell the same, or a sufficient part thereof, for the purpose of satisfying that charge.

(2) Subject to the provisions of subsection (3), where, under an execution in respect of a decree for a sum exceeding $40, the personal property of a company is sold or money is paid in order to avoid sale, the court shall deduct the costs of the execution from the proceeds of the sale or the money paid and retain the balance for 14 days, and, if within that time, notice is served on the court of a petition for the winding-up of the company having been presented or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding-up of the company and an order is made or a resolution is passed, as the case may be, for the winding-up of the company, the court shall pay the balance to the liquidator, who shall be entitled to retain it as against the execution creditor.

(3) The rights conferred by this section on the liquidator may be set aside by the court in favor of the creditor, to such extent and subject to such terms as the court thinks fit.

Subdivision C-Offences Antecedent to or in Course of Winding-up

Offences by officers of companies in liquidation

319. (1) If any person, being a past or present officer of a company which, at the time of the commission of the alleged offence, is being wound up, whether by or under the supervision of the court or voluntarily, or is subsequently ordered to be wound up by the court or subsequently passes a resolution for voluntary winding-up-.

(a) does not, to the best of his knowledge and belief, fully and truly discover to the liquidator all the property, real and personal of the company, and how and to whom and for what consideration and when the company disposed of any part thereof, except such part as has been disposed of in the ordinary way of the business of the company; or

(b) does not deliver up to the liquidator, or as he directs, all such part of the real and personal property of the company as is in his custody or under his control, and which he is required by law to deliver up; or

(c) does not deliver up to the liquidator, or as he directs, all books and papers belonging to the company and which he is required by law to deliver up; or

(d) within 12 months next before the commencement of the winding-up, or at any time thereafter, conceals any part of the property of the company to the value of $20 or upwards, or conceals any debt due to or from the company; or

(e) within 12 months next before the commencement of the winding-up, or at any time thereafter, fraudulently removes any part of the property of the company to the value of $20 or upwards; or

(f) makes any material omission in any statement relating to the affairs of the company; or

(g) knowing or believing that a false debt has been proved by any person under the winding-up, fails, for the period of a month, to inform the liquidator thereof; or

(h) after the commencement of the winding-up, prevents the production of any book or paper affecting or relating to the property or affairs of the company; or

(i) within 12 months next before the commencement of the winding-up, or at any time thereafter, conceals, destroys, mutilates or falsifies, or is privy to the concealment, destruction, mutilation or falsification of, any book or paper affecting or relating to the property or affairs of the company; or

(j) within 12 months next before the commencement of the winding-up, or at any time thereafter, makes, or is privy to the making of, any false entry in any book or paper affecting or relating to the property or affairs of the company; or

(k) within 12 months next before the commencement of the winding-up, or at any time thereafter, fraudulently parts with, alters or makes any omission in, or is privy to the fraudulent parting with, altering or making any omission in, any document affecting or relating to the property or affairs of the company; or

(l) after the commencement of the winding-up, or at any meeting of the creditors of the company within 12 months next before the commencement of the winding-up, attempts to account for any part of the property of the company by fictitious losses or expenses; or

(m) has, within 12 months next before the commencement of the winding-up, or at any time thereafter, by any false representation or other fraud, obtained any property for or on behalf of the company on credit which the company does not subsequently pay for; or

(n) within 12 months next before the commencement of the winding-up, or at any time thereafter, under the false pretense that the company is carrying on its business, obtains on credit, for or on behalf of the company, any property which the company does not subsequently pay for; or

(o) within 12 months next before the commencement of the winding-up, or at any time thereafter, pawns, pledges or disposes of any property of the company which has been obtained on credit and has not been paid for, unless such pawning, pledging or disposing is in the ordinary way of the business of the company; or

(p) is guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to the affairs of the company or to the winding-up; or

(q) has, within 12 months next before the commencement of winding-up, been privy to the carrying on of the business of the company, knowing that the company was unable to pay its debts; or

(r) has been privy to the contracting by the company of any debt provable in the liquidation, without having, at the time when the debt was contracted, any reasonable or probable ground of expectation (proof whereof shall lie on him) that the company would be able to pay that debt,

he shall, in the case of the offences mentioned respectively in paragraphs (m), (n) and (o), be liable to imprisonment for a term not exceeding 5 years and, in the case of any other offence, shall be liable to imprisonment for a term not exceeding 3 years:

Provided that it shall be a good defense to a charge under any of paragraphs (a), (b), (c), (d), (f), (n), (o), (q) and (r), if the accused proves that he had no intent to defraud, and to a charge under any of paragraph (h), (i) and (j), if he proves that he had no intent to conceal the state of affairs of the company or to defeat the law.

(2) Where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under paragraph (o) of subsection (1), every person who takes in pawn or pledge or otherwise receives the property, knowing it to be pawned, pledged or disposed of in such circumstances as aforesaid, shall be liable to be punished in the same way as if he had been convicted of an offence under subsection (1) of section 347 of the Penal Code. (Cap. 17.)

(3) For the purposes of this section, "officer" includes any person in accordance with whose directions or instructions the directors of a company have been accustomed to act.

Penalty for falsification of books

320. If any officer or contributory of any company being wound up destroys, mutilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the company, with intent to defraud or deceive any person, he shall be liable to imprisonment for a term not exceeding 7 years.

Fraud by officers of companies which have gone into liquidation

321. (1) If any person, being, at the time of the commission of the alleged offence, an officer of a company which is subsequently ordered to be wound up by the court or subsequently passes a resolution for voluntary winding-up-

(a) has, by false pretenses or by means of any other fraud, induced any person to give credit to the company;

(b) with intent to defraud creditors of the company, has made or caused to be made any gift or transfer of or charge on, or has caused or connived at the levying of any execution against, the property of the company;

(c) with intent to defraud creditors of the company, has concealed or removed any part of the property of the company since, or within 2 months before, the date of any unsatisfied judgment or order for payment of money obtained against the company, he shall be liable to imprisonment for a term not exceeding 2 years.

(2) For the purposes of this section, "officer" includes any person in accordance with whose directions or instructions the directors of a company have been accustomed to act.

Officers of company failing to account for loss of part of company's property

322. (1) If any person, being a past or present officer of a company which is being wound up under the provisions of this Act, on being required by the official receiver at any time, or in the course of his examination by the court under the provisions of section 266, to account for the loss of any substantial part of the company's property incurred within a period of a year next preceding the commencement of the winding-up, fails to give a satisfactory explanation of the manner in which such loss occurred, he shall be liable to imprisonment for a term not exceeding 3 years.

(2) A prosecution shall not be instituted against any person under this section, except by or with the consent of the Director of Public Prosecutions.

Liability where proper accounts not kept

323. (1) If, in the course of the winding-up of a company, it is shown that proper books of account were not kept by the company at any time during the period of 2 years immediately preceding the commencement of the winding-up, or the period between the incorporation of the company and the commencement of the winding-up, whichever is the shorter, every officer of the company who is in default shall, unless he shows that he acted honestly and that, in the circumstances in which the business of the company was carried on, the default was excusable, be liable on conviction to imprisonment for a term not exceeding 3 years.

(2) For the purpose of this section, a company shall be deemed not to have kept proper books of account, if it has not kept such books or accounts as are required to be kept by subsection (2) of section 149.

Responsibility for fraudulent trading of persons concerned

324. (1) (a) If, in the course of the winding-up of a company, it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the court, on the application of the official receiver, or the liquidator or any creditor or contributory of the company, may, if it thinks proper so to do, declare that any persons who were knowingly parties to the carrying on of the business in manner aforesaid shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.

(b) On the hearing of an application under this subsection, the official receiver or the liquidator, as the case may be, may himself give evidence or call witnesses.

(2) (a) Where the court makes any such declaration, it may give such further directions as it thinks proper for the purpose of giving effect to that declaration and, in particular, may make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from the company to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of the company held by or vested in him, or any company or person on his behalf, or any person claiming as assignee from or through the person liable or any company or person acting on his behalf, and may, from time to time, make such further order as may be necessary for the purpose of enforcing any charge imposed under this subsection.

(b) For the purpose of this subsection, "assignee" includes any person to whom or in whose favor, by the directions of the person liable, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.

(3) Where any business of a company is carried on with such intent or for such purpose as is mentioned in subsection (1) of this section, every person who was knowingly a party to the carrying on of the business in manner aforesaid shall be liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1,000, or to both.

(4) The provisions of this section shall have effect, notwithstanding that the person concerned may be criminally liable in respect of the matters on the ground of which the declaration is to be made and, where the declaration under subsection (1) is made, the declaration shall be deemed to be a final decree within the meaning of paragraph (g) of subsection (1) of section 3 of the Bankruptcy Act. (Cap. 48.)

Power of court to assess damages against delinquent directors, etc.

325. (1) If, in the course of winding-up a company, it appears that any person who has taken part in the formation or promotion of the company, or any past or present director, manager or liquidator, or any officer of the company, has misapplied or retained or become liable or accountable for any money or property of the company, or been guilty of an misfeasance or breach of trust in relation to the company, the court may, on the application of the official receiver, or of the liquidator, or of any creditor or contributory, examine into the conduct of the promoter, director, manager, liquidator or officer, and compel him to repay or restore the money or property or any part thereof respectively, with interest at such rate as the court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust as the court thinks just.

(2) The provisions of this section shall have effect, notwithstanding that the offence is one for which the offender may be criminally liable.

(3) Where an order for payment of money is made under this section, the order shall be deemed to be a final decree within the meaning of paragraph (g) of subsection (1) of section 3 of the Bankruptcy Act. (Cap. 48.)

Prosecution of delinquent officers and members of company

326. (1) If it appears to the court, in the course of a winding-up by, or subject to the supervision of, the court, that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, the court may, either on the application of any person interested in the winding-up or of its own motion, direct the liquidator to refer the matter to the Director of Public Prosecutions.

(2) If it appears to the liquidator, in the course of a voluntary winding-up, that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall forthwith report the matter to the Director of Public Prosecutions and shall furnish to the Director of Public Prosecutions such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator and relating to the matter in question, as the Director of Public Prosecutions may require.

(3) Where any report is made under subsection (2) to the Director of Public Prosecutions, he may, if he thinks fit, refer the matter to the official receiver for further inquiry, and the official receiver shall thereupon investigate the matter and may, if he thinks it expedient, apply to the court for an order conferring on him for the purpose, with respect to the company concerned, all such powers of investigating the affairs of the company as are provided by this Act in the case of a winding-up by the court.

(4) If it appears to the court, in the course of a voluntary winding-up, that any past or present officer, or any member, of the company has been guilty as aforesaid, and that no report with respect to the matter has been made by the liquidator to the Director of Public Prosecutions under subsection (2), the court may, on the application of any person interested in the winding-up, or of its own motion, direct the liquidator to make such a report and, on a report being made accordingly, the provisions of this section shall have effect as though the report had been made in pursuance of the provisions of subsection (2).

Subdivision D-Supplementary Provisions as to Winding-up

Disqualification for appointment as liquidator

327. A body corporate shall not be qualified for appointment as liquidator of a company, whether in winding-up by or under the supervision of the court or in a voluntary winding-up, and-

(a) any appointment made in contravention of this provision shall be void; and

(b) any body corporate which acts as liquidator of a company shall be liable to a fine not exceeding $200.

Corrupt inducement affecting appointment as liquidator

328. Any person who gives, or agrees or offers to give, to any member or creditor of a company any valuable consideration with a view to securing his own appointment or nomination, or to securing or preventing the appointment or nomination of some person other than himself, as the company's liquidator shall be liable to a fine not exceeding $1,000.

Enforcement of duty of liquidator to make returns, etc.

329. (1) If any liquidator who has made any default in filing, delivering or making any return, account or other document, or in giving any notice which he is by law required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to-do so, the court may, on an application made to the court by any contributory or creditor of the company, or by the registrar, make an order directing the liquidator to make good the default within such time as may be specified in the order.

(2) Any such order may provide that all costs of and incidental to the application shall be borne by the liquidator.

(3) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a liquidator in respect of any such default as aforesaid.

Notification that a company is in liquidation

330. (1) Where a company is being wound up, whether by or under the supervision of the court or voluntarily, every invoice, order for goods or business letter issued by or on behalf of the company or a liquidator of the company, or a receiver or manager of the property of the company, being a document on or in which the name of the company appears, shall contain a statement that the company, is in liquidation.

(2) If default is made in complying with this section, the company and any of the following persons who knowingly and willfully authorizes or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine not exceeding $100.

Exemption of certain documents from stamp duty on winding-up of companies

331. *(1)** In the case of a winding-up by the court, or of a creditors' voluntary winding-up of a company-

(a) every assurance relating solely to freehold or leasehold property or to any mortgage, charge or other encumbrance on, or to any estate, right or interest in, any real or personal property, which forms part of the assets of the company and which, after the execution of the assurance, either at law or in equity, is or remains part of the assets of the company; and

(b) every power of attorney, proxy paper, writ, order, certificate, affidavit, statutory declaration, bond or other instrument or writing relating solely to the property of any company which is being so wound up or to any proceeding under any such winding-up, shall be exempt from stamp duty.

(2) In subsection (1), "assurance" includes deed, conveyance, grant, transfer, assignment and surrender.

Books of company to be evidence

332. Where a company is being wound up, all books and papers of the company and of the liquidators shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.

Disposal of books and papers of company

333. (1) When a company has been wound up and is about to be dissolved, the books and papers of the company and of the liquidators may be disposed of as follows, that is to say:-

(a) in the case of a winding-up by or subject to the supervision of the court, in such way as the court directs; or

(b) in the case of a members' voluntary winding-up, in such way as the company, by special resolution, directs; or

(c) in the case of a creditors' voluntary winding-up, in such way as the committee of inspection or, if there is no such committee, as the creditors of the company may direct.

(2) Subject to the other provisions of this section, after 5 years from the dissolution of the company, no responsibility shall rest on the company, the liquidators, or any person to whom the custody of the books and papers has been committed, by reason of any book or paper not being forthcoming to any person claiming to be interested therein.

(3) Provision may be made by rules to prevent, for any period not exceeding 5 years from the dissolution of the company, the destruction of the books and papers of a company which has been wound up, and for enabling any creditor or contributory of the company to appeal from any direction so given.

(4) If any person acts in contravention of any rules made for the purposes of this section, he shall be liable to a fine not exceeding $200.

Information as to pending liquidations

334. (1) If, where a company is being wound up, the winding-up is not concluded within 1 year after its commencement, the liquidator shall, at such intervals as may be prescribed, until the winding-up is concluded, deliver to the registrar a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation.

(2) If a liquidator fails to comply with this section, he shall be liable to a fine not exceeding $100 for each day during which the default continues.

Unclaimed assets to be paid to Companies Liquidation Account

335. (1) If, where a company is being wound up, it appears, either from any statement delivered to the registrar under section 334 or otherwise, that a liquidator has in his hands or under his control any money representing unclaimed or undistributed assets of the company which have remained unclaimed or undistributed for 6 months after the date of their receipt, or any money held by the company in trust in respect of dividends or other sums due to any person as a member of the company, the liquidator shall forthwith pay the said money to the official receiver for the credit of the Companies Liquidation Account, and shall be entitled to a receipt for the money so paid, and that receipt shall be an effectual discharge to him in respect thereof.

(2) For the purpose of ascertaining and getting in any money payable in pursuance of this section, the like powers may be exercised, and by the like authority, as are exercisable under section 132 of the Bankruptcy Act, for the purposes of ascertaining and getting in the sums, funds and dividends referred to in that section. (Cap. 48.)

(3) Any person claiming to be entitled to any money paid in pursuance of this section may apply to the official receiver for payment thereof and the official receiver may, on a certificate by the liquidator that the person claiming is entitled, pay to that person the sum due.

(4) Any person dissatisfied with the decision of the official receiver in respect of a claim made in pursuance of this section may appeal to the court.

Resolutions passed at adjourned meetings of creditors and contributories

336. Where a resolution is passed at an adjourned meeting of any creditors or contributories of a company, the resolution shall, for all purposes, be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.

Subdivision E-Supplementary Powers of Court

Meetings to ascertain wishes of creditors or contributories

337. (1) The court may, as to all matters relating to the winding-up of a company, have regard to the wishes of the creditors or contributories of the company, as proved to it by any sufficient evidence, and may, if it thinks fit, for the purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held and conducted in such manner as the court directs, and may appoint a person to act as chairman of any such meeting and to report the result thereof to the court.

(2) In the case of creditors, regard shall be had to the value of each creditor's debt.

(3) In the case of contributories, regard shall be had to the number of votes conferred on each contributory by this Act or the articles.

Swearing of affidavits and declarations

338. (1) Any affidavit or declaration required to be sworn or made under the provisions, or for the purposes, of this Part may be sworn or made in Fiji, or elsewhere within the Commonwealth, before any court, judge or person lawfully authorized to take and receive affidavits or statutory declarations, or before a Fiji consular officer in any place outside the Commonwealth.

(2) All courts and all persons acting judicially in Fiji shall take judicial notice of the seal or stamp or signature, as the case may be, of any such court, judge, person, consul, vice-consul or pro-consul, attached, appended or subscribed to any such affidavit or declaration, or to any other document to be used for the purposes of this Part.

Subdivision F-Provisions as to Dissolution

Power of court to declare dissolution of company void

*339. (1) Where a company has been dissolved, the court may, at any time within 2 years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the court to be interested, make an order, upon such terms as the court thinks fit, declaring the dissolution to have been void and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.

(2) It shall be the duty of the person on whose application the order was made, within 7 days after the making of the order or such further time as the court may allow, to deliver to the registrar, for registration, a certified copy of the order and, if that person fails so to do, he shall be liable to a fine not exceeding $10 for every day during which the default continues.

Registrar may strike defunct company off register

340. (1) Where the registrar has reasonable cause to believe that a company is not carrying on business or in operation, he may send to the company, by post, a letter inquiring whether the company is carrying on business or in operation.

(2) If the registrar does not, within 30 days of sending the letter, receive any answer thereto, he shall, within 14 days after the expiration of the said period of 30 days, send to the company, by registered post, a letter referring to the first letter, and stating that no answer thereto has been received, and that, if an answer is not received to the second letter within 30 days from the date thereof, a notice will be published in the Gazette with a view to striking the name of the company off the register.

(3) If the registrar, either receives an answer to the effect that the company is not carrying on business or in operation, or does not, within 30 days after sending the second letter, receive any answer, he may publish in the Gazette, and send to the company, by post, a notice that, at the expiration of 3 months from the date of the notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved:

Provided that the registrar shall not be required to send the letters referred to in subsections (1) and (2) in any case where the company itself or any director or secretary of the company has requested him to strike the company off the register or has notified him that the company is not carrying on business.

**(4)*** If, in any case where a company is being wound up, the registrar has reasonable cause to believe, either that no liquidator is acting, or that the affairs of the company are fully wound up, and the returns required to be made by the liquidator have not been made for a period of 6 consecutive months, the registrar shall publish in the Gazette and send to the company or the liquidator, if any, a like notice as is provided in subsection (3).

(5) At the expiration of the time mentioned in the notice, the registrar may, unless cause to the contrary is previously shown by the company, or the liquidator, as the case may be, strike the name of the company off the register, and shall publish notice thereof in the Gazette and, on the publication in the Gazette of this notice, the company shall be dissolved:

Provided that-

(i) the liability, if any, of every director, officer and member of the company shall continue and may be enforced as if the company had not been dissolved; and

(ii) nothing in this subsection shall affect the power of the court to wind up a company the name of which has been struck off the register.

(6) If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register, the court, on an application made by the company or member or creditor before the expiration of 10 years from the publication in the Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation, or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register and, upon a certified copy of the order being delivered to the registrar, for registration, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.

(7) A notice to be sent under this section to a liquidator may be addressed to the liquidator at his last known place of business, and a letter or notice to be sent under this section to a company may be addressed to the company at its registered postal address or, if no postal address has been registered, to the care of some officer of the company, or, if there is no officer of the company whose name and address are , known to the registrar, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum.

Property of dissolved company to be bona vacantia

341. Where a company is dissolved, all property and rights whatsoever vested in or held in trust for the company immediately before its dissolution (including leasehold property, but not including property held by the company in trust for any other person) shall, subject and without prejudice to any order which may, at any time, be made by the court under section 339 or section 340, be deemed to be bona vacantia, and shall accordingly belong to the Crown.

Power of Crown to disclaim title to property vesting under section 341

342. (1) Where any property vests in the Crown under section 341, the Crown's title thereto under that section may be disclaimed by a notice signed by the Attorney-General.

(2) Where a notice of disclaimer under this section is executed as respects any property, that property shall be deemed not to have vested in the Crown under section 341, and subsections (2) and (6) of section 316 shall apply in relation to the property as if it had been disclaimed under subsection (1) of section 316 immediately before the dissolution of the company.

(3) The right to execute a notice of disclaimer under this section may be waived by or on behalf of the Crown, either expressly, or by taking possession or other act evincing that intention.

(4) A notice of disclaimer under this section shall be of no effect, unless it is executed within 12 months of the date on which the vesting of the property as aforesaid came to the notice of the Attorney-General, or, if an application, in writing, is made to the Attorney-General by any person interested in the property requiring him to decide whether he will or will not disclaim, within a period of 3 months after the receipt of the application, or such further period as may be allowed by the court which would have had jurisdiction to wind up the company if it had not been dissolved.

(5) A statement in a notice of disclaimer of any property under this section that the vesting of the property came to the notice of the Attorney-General on a specified date or that no such application as aforesaid was received by him with respect to the property before a specified date shall, until the contrary is proved, be sufficient evidence of the fact stated.

(6) A notice of disclaimer under this section shall be delivered to the registrar for registration by him, and copies thereof shall be published in the Gazette and sent to any persons who have given the Attorney-General notice that they claim to be interested in the property.

Subdivision G-Companies Liquidation Account

Companies Liquidation Account

343. An account, to be called the "Companies Liquidation Account", shall be kept by the official receiver with the National Bank of Fiji, or such other bank as may be prescribed, and all moneys received by the official receiver in respect of proceedings under this Act in connection with the winding-up of companies shall be paid to that account.

Investment of surplus funds; Companies Contingency Fund

344. (1) Whenever the cash balance standing to the credit of the Companies Liquidation Account is in excess of the amount which, in the opinion of the official receiver, is required for the time being to answer demands in respect of companies' estates, the official receiver may invest the amount not so required, or any part thereof, in any investment authorized by law for the investment of trust funds or may place the same, or any part thereof, on fixed deposit with the National Bank of Fiji, or such other bank as may be prescribed.

(2) Whenever any part of the money so invested or placed on deposit is, in the opinion of the official receiver, required to answer any demand in respect of companies' estates, the official receiver shall raise such sums as may be required by the sale of such part of the said securities or by withdrawing such amount from deposit as may be necessary and shall repay such sums to the Companies Liquidation Account.

(3) The dividends and interest accruing from any money so invested or placed on deposit shall be paid by the official receiver to the credit of a separate account, to be called the "Companies Contingency Fund" to be kept by him at the National Bank of Fiji, or such other bank as may be prescribed.

(4) Where it appears that it is in the public interest so to do, and that other funds are not available or properly chargeable, the court may, on the application of the registrar or of the official receiver, authorize the registrar or the official receiver to use money from the Companies Contingency Fund to meet expenditure which the court considers to be necessary or advisable to incur for the purpose of enabling the registrar or the official receiver, as the case may be, to carry out more efficiently the provisions of, and his duties under, this Act, and, without prejudice to the generality of the foregoing, for the purpose of enabling the registrar to meet any indemnity or to pay any expenses which he is required, by this Act, to meet or to pay.

(5) Where an application is made by the registrar under subsection (4), the court shall consult the official receiver before granting the application; and, if the application is granted, then the official receiver shall pay to the registrar, out of the Companies Contingency Fund, the amount authorized by the court.

Subdivision H-Rules and Fees

Rules and fees for winding-up

345. (1) The Minister may make rules for carrying into effect the objects of this Act, so far as relates to the winding-up of companies, and, without prejudice to the generality of the foregoing power, for providing for any matter or thing which, by this Act, is to be or may be provided for by rules.

(2) There shall be paid in respect of proceedings under this Act, in relation to the winding-up of companies, such fees as the Minister may prescribe by rules made under subsection (1).

(3) No rules which are in the nature of rules of court shall be made under this section, except after obtaining the advice of the Chief Justice.

PART VII-RECEIVERS AND MANAGERS

Disqualification of body corporate for appointment as receiver

346. A body corporate shall not be qualified for appointment as receiver of the property of a company, and any body corporate which acts as such a receiver shall be liable to a fine not exceeding $200.

Disqualification of undischarged bankrupt from acting as receiver or manager

347. (1) If any person, being an undischarged bankrupt, acts as receiver or manager of the property of a company on behalf of debenture holders, he shall, subject to subsection (2), be liable to imprisonment for a term not exceeding 2 years or a fine not exceeding $1,000, or to both.

**(2) Subsection (1) shall not apply to a receiver or manager where-

(a) the appointment under which he acts and the bankruptcy were both before the appointed day; or

(b) he acts under an appointment made by order of the court. Power to appoint official receiver as receiver for debenture holders or creditors

348. Where an application is made to the court to appoint a receiver on behalf of the debenture holders or other creditors of a company which is being wound up by the court, the official receiver may be so appointed.

Receivers and managers appointed out of court

349. (1) A receiver or manager of the property of a company appointed under the powers contained in any instrument may apply to the court for directions in relation to any particular matter arising in connection with the performance of his functions and, on any such application, the court may give such directions, or may make such order declaring the rights of persons before the court or otherwise, as the court thinks just.

(2) A receiver or manager of the property of a company appointed as aforesaid shall, to the same extent as if he had been appointed by order of a court, be personally liable on any contract entered into by him in the performance of his functions, except in so far as the contract otherwise provides, and entitled in respect of that liability to indemnity out of the assets; but nothing in this subsection shall be taken as limiting any right to indemnity which he would have apart from this subsection, or as limiting his liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.

(3) This section shall apply whether the receiver or manager was appointed before or after 1 January 1984, but subsection (2) shall not apply to contracts entered into before the appointed day.

Notification that receiver or manager appointed

350. (1) Where a receiver or manager of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver or manager or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement that a receiver or manager has been appointed.

(2) If default is made in complying with the requirements of this section, the company and any of the following persons who knowingly and wilLfully authorizes or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine not exceeding $50.

Power of court to fix remuneration on application of liquidator

351. (1) The court may, on an application by the liquidator of a company, by order, fix the amount to be paid by way of remuneration to any person who, under the powers contained in any instrument, has been appointed as receiver or manager of the property of the company.

(2) The power of the court under subsection (1) shall, where no previous order has been made with respect thereto under that subsection-

(a) extend to fixing the remuneration for any period before the making of the order or the application therefor; and

(b) be exercisable, notwithstanding that the receiver or manager has died or ceased to act before the making of the order or the application therefor; and

(c) where the receiver or manager has been paid or has retained for his remuneration for any period before the making of the order any amount in excess of that so fixed for that period, extend to requiring him or his legal representatives to account for the excess or such part thereof as may be specified in the order:

Provided that the power conferred by paragraph (c) shall not be exercised as respects any period before the making of the application for the order, unless, in the opinion of the court, there are special circumstances making it proper for the power to be so exercised.

(3) The court may, from time to time, on an application made either by the liquidator or by the receiver or manager, vary or amend an order made under subsection (1).

(4) This section shall apply whether the receiver or manager was appointed before or after 1 January 1984, and to periods before, as well as to periods after, the appointed day.

Provisions as to information where receiver or manager appointed

352. (1) Where a receiver or manager of the whole or substantially the whole of the property of the company (hereafter in this section and in section 353 referred to as the "receiver") is appointed on behalf of the holders of any debentures of the company secured by a floating charge, then, subject to the provisions of this section and section 353-

(a) the receiver shall forthwith send notice to the company of his appointment; and

(b) there shall, within 14 days after receipt of the notice, or such longer period as may be allowed by the court or by the receiver, be made out and submitted to the receiver, in accordance with section 353, a statement in the prescribed form as to the affairs of the company; and

(c) the receiver shall, within 2 months after receipt of the said statement, send-

(i) to the registrar and to the court, a copy of the statement and of any comments he sees fit to make thereon and, in the case of the registrar, also a summary of the statement and of his comments (if any) thereon; and

(ii) to the company, a copy of any such comments as aforesaid or, if he does not see fit to make any comment, a notice to that effect; and

(iii) to any trustees for the debenture holders on whose behalf he was appointed and, so far as he is aware of their addresses, to all such debenture holders, a copy of the said summary.

(2) The receiver shall, within 2 months, or such longer period as the court may allow, after the expiration of the period of 12 months from the date of his appointment and of every subsequent period of 12 months, and within 2 months, or such longer period as the court may allow, after he ceases to act as receiver or manager of the property of the company, send to the registrar, to any trustees for the debenture holders of the company on whose behalf he was appointed, to the company and (so far as he is aware of their addresses) to all such debenture holders an abstract in the prescribed form showing his receipts and payments during that period of 12 months or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract related up to the date of his so ceasing, and the aggregate amounts of his receipts and of his payments during all preceding periods since his appointment.

(3) Where the receiver is appointed under the powers contained in any instrument, this section shall have effect-

(a) with the omission of the references to the court in subsection (1); and

(b) with the substitution for the references to the court in subsection (2) of references to the registrar, and, in any other case, references to the court shall be construed as referring to the court by which the receiver was appointed. (4) (a) Subsection (1) shall not apply in relation to the appointment of a receiver or manager to act with an existing receiver or manager or in place of a receiver or manager dying or ceasing to act, except that, where that subsection applies to a receiver or manager who dies or ceases to act before it has been fully complied with, the references in paragraphs (b) and (c) thereof to the receiver shall (subject to subsection (5)) include references to his successor and to any continuing receiver or manager.

(b) Nothing in this subsection shall be taken as limiting the meaning of the expression "the receiver" where used in, or in relation to, subsection (2).

*(5) This section and section 353 shall apply where the company is being wound up, notwithstanding that the receiver or manager and the liquidator are the same person, but with any necessary modifications arising from that fact.

(6) Nothing in subsection (2) shall be taken to prejudice the duty of the receiver to render proper accounts of his receipts and payments to the persons to whom, and at the times at which, he may be required to do so apart from that subsection.

(7) If the receiver makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding $10 for every day during which the default continues.

Special provisions as to statement submitted to receiver

353. (1) The statement as to the affairs of a company required by section 352 to be submitted to the receiver (or his successor) shall show, as at the date of the receiver's appointment, the particulars of the company's assets, debts and liabilities, the names, postal addresses and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given and such further or other information as may be prescribed.

(2) The said statement shall be submitted by, and be verified by affidavit by, 1 or more of the persons who are, at the date of the receiver's appointment, the directors and by a person who is, at that date, a secretary of the company, or by such of the persons hereafter in this subsection mentioned as the receiver (or his successor), subject to the direction of the court, may require to submit and verify the statement, that is to say, persons-

(a) who are or have been officers of the company;

(b) who have taken part in the formation of the company at any time within 1 year before the date of the receiver's appointment;

(c) who are in the employment of the company, or have been in the employment of the company within the said year, and are, in the opinion of the receiver, capable of giving the information required;

(d) who are or have been within the said year officers of or in the employment of a company which is, or within the said year was, an officer of the company to which the statement relates.

(3) Any person making the statement and affidavit shall be allowed, and shall be paid by the receiver (or his successor) out of his receipts, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the receiver (or his successor) may consider reasonable, subject to an appeal to the court.

(4) Where the receiver is appointed under the powers contained in any instrument, this section shall have effect with the substitution for references to the court of references to the registrar or official receiver and for references to an affidavit of references to a statutory declaration; and, in any other case, references to the court shall be construed as referring to the court by which the receiver was appointed.

(5) If any person, without reasonable excuse, makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding $20 for every day during which the default continues.

(6) References in this section to the receiver's successor shall include a continuing receiver or manager.

Delivery to registrar of accounts of receivers and managers

354. (1) Except where subsection (2) of section 352 applies, every receiver or manager of the property of a company who has been appointed under the powers contained in any instrument shall, within 1 month, or such longer period as the registrar may allow, after the expiration of the period of 6 months from the date of his appointment and of every subsequent period of 6 months, and within 1 month after he ceases to act as receiver or manager; deliver to the registrar, for registration, an abstract in the prescribed form showing his receipts and his payments during that period of 6 months or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract related up to the date of his so ceasing, and the aggregate amount of his receipts and of his payments during all preceding periods since his appointment.

(2) Every receiver or manager who makes default in complying with the provisions of this section shall be liable to a fine not exceeding $10 for every day during which the default continues.

*Enforcement of duty of receivers and managers to make returns, etc.

355. (1) If any receiver or manager of the property of a company-

(a) having made default in filing, delivering or making any return, account or other document, or in giving any notice, which a receiver or manager is, by law, required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so; or

(b) having been appointed under the powers contained in any instrument, has, after being required, at any time, by the liquidator of the company so to do, failed to render proper accounts of his receipts and payments and to vouch the same and to pay over to the liquidator the amount properly payable to him, the court may, on an application made for the purpose, make an order directing the receiver or manager, as the case may be, to make good the default, within such time as may be specified in the order.

(2) In the case of any such default as is mentioned in paragraph (a) of subsection (1), an application for the purposes of this section may be made by any member or creditor of the company or by the registrar and, in the case of any such default as is mentioned in paragraph (b) of that subsection, the application shall be made by the liquidator and, in either case, the order may provide that all costs of and incidental to the application shall be borne by the receiver or manager, as the case may be.

(3) Nothing in this section shall be taken to prejudice the operation of any provision of this Act imposing penalties on receivers in respect of any such default as is mentioned in subsection (1).

Construction of references to receivers and managers

356. It is hereby declared that, except where the context otherwise requires-

(a) any reference in this Act to a receiver or manager of the property of a company, or to a receiver thereof, includes a reference to a receiver or manager, or (as the case may be) to a receiver, of part only of that property and to a receiver only of the income arising from that property or from part thereof; and

(b) any reference in this Act to the appointment of a receiver or manager under powers contained in any instrument includes a reference to an appointment made under powers which, by virtue of any written law, are implied in and have effect as if contained in an instrument.

PART VIII-APPLICATION OF ACT TO COMPANIES FORMED OR REGISTERED UNDER THE REPEALED ACTS

Application of Act to companies formed and registered under the repealed Acts

357. This Act shall apply to existing companies

(a) in the case of a limited company, other than a company limited by guarantee, as if the company had been formed and registered under this Act as a company limited by shares;

(b) in the case of a company limited by guarantee, as if the company had been formed and registered under this Act as a company limited by guarantee; and

(c) in the case of a company other than a limited company, as if the company had been formed and registered under this Act as an unlimited company:

Provided that any reference, express or implied, to the date of registration shall be construed as a reference to the date at which the company was registered under that one of the repealed Acts under which such company was registered. PART IX-WINDING-UP OF UNREGISTERED COMPANIES

Meaning of unregistered company

358. For the purposes of this Part, "unregistered company" includes any partnership, any association and any company, with the following exceptions-

(a) a company registered under any of the repealed Acts or under this Act;

(b) a partnership, association or company which consists of fewer than 8 members and is not a partnership, association or company, formed outside Fiji;

(c) a co-operative society registered under the Co-operative Societies Act. (Cap. 250.)

Winding-up of unregistered companies

359. (1) Subject to the provisions of this Part, any unregistered company may be wound up under this Act and all the provisions of this Act with respect to winding-up shall apply to an unregistered company, with the exceptions and additions mentioned in the following provisions of this section.

(2) No unregistered company shall be wound up under this Act voluntarily or subject to the supervision of the court.

(3) The circumstances in which an unregistered company may be wound up are as follows:-

(a) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding-up its affairs;

(b) if the company is unable to pay its debts;

(c) if the court is of opinion that it is just and equitable that the company should be wound up.

(4) An unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts-

(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding $100 then due, has served on the company, by leaving at its principal place of business or by delivering to a secretary or some director, manager or officer of the company, or by otherwise serving in such manner as the registrar may approve or direct, a demand under his hand requiring the company to pay the sum so due, and the company has, for 30 days after the service of the demand, neglected to pay the sum or to secure or compound for it to the satisfaction of the creditor;

(b) if any action or other proceeding has been instituted against any member for any debt or demand due, or claimed to be due, from the company, or from him in his character of member or partner, and notice, in writing, of the institution of the action or proceeding having been served on the company by leaving the same at its principal place of business, or by delivering it to a secretary, or some director, manager or officer of the company, or by otherwise serving the same in such manner as the court may approve or direct, the company has not, within 14 days after service of the notice, paid, secured or compounded for the debt or demand, or procured the action or proceeding to be stayed or indemnified the defendant to his reasonable satisfaction against the action or proceeding, and, against all costs, damages and expenses to be incurred by him by reason of the same;

(c) if execution or other process issued on a judgment, decree or order obtained in any court in favor of a creditor against the company, or any member thereof as such, or any person authorized to be sued as nominal defendant on behalf of the company, is returned unsatisfied; or

(d) if it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts. Foreign companies may be wound up although dissolved

360. Where a company incorporated outside Fiji which has been carrying on business in Fiji ceases to carry on business in Fiji, it may be wound up as an unregistered company under this Part, notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country in which it was incorporated.

Contributories in winding-up of unregistered company

361. (1) In the event of an unregistered company being wound up, every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members among themselves, or to pay or contribute to the payment of the costs and expenses of winding-up the company, and every contributory shall be liable to contribute to the assets of the company all sums due from him in respect of any such liability as aforesaid.

(2) In the event of the death, bankruptcy or insolvency of any contributory, the provisions of this Act with respect to the legal representatives and heirs of deceased contributories and to the trustees of bankrupt or insolvent contributories shall apply.

Power of court to stay or restrain proceedings

362. The provisions of this Act with respect to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding-up and before the making of a winding-up order shall, in the case of an unregistered company, where the application to stay or restrain is by a creditor, extend to action and proceedings against any contributory of the company.

Actions stayed on winding-up order

363. Where an order has been made for winding-up an unregistered company, no action or proceeding shall be proceeded with or commenced against any contributory of the company in respect of any debt of the company, except by leave of the court, and subject to such terms as the court may impose.

Provisions of Part IX cumulative

364. The provisions of this Part with respect to unregistered companies shall be in addition to and not in restriction of any provisions here in before in this Act contained with respect to winding-up companies by the court, and the court or liquidator may exercise any powers or do any act in the ease of unregistered companies which might be exercised or done by it or him in winding-up companies formed and registered under this Act:

Provided that an unregistered company shall not, except in the event of its being wound up, be deemed to be a company under this Act and then only to the extent provided by this Part.

Saving for winding-up under the repealed Acts

365. Nothing in this Part shall affect the operation of any written law which provides for any partnership, association or company being wound up, or being wound up as a company or as an unregistered company, under any of the repealed Acts.

PART X-COMPANIES INCORPORATED OUTSIDE FIJI**

Division 1-Provisions as to Establishment of Place of Business in Fiji

Application of sections 367 to 376

366. (1) Sections 367 to 376 shall apply to all foreign companies, that is to say, companies incorporated outside Fiji which, on or after 1 January 1984, establish a place of business within Fiji, and companies incorporated outside Fiji which have, before that date established a place of business within Fiji and continue to have a place of business within Fiji on and after that date.

(2) A foreign company shall not be deemed to have a place of business in Fiji solely on account of its doing business through an agent in Fiji at the place of business of the agent.

Documents, etc., to be delivered to registrar by foreign companies carrying on business in Fiji

367. (1) Foreign companies which, on or after 1 January 1984, establish a place of business within Fiji shall, within 30 days of the establishment of the place of business, deliver to the registrar for registration-

(a) a certified copy of the charter, statutes or memorandum and articles of the company or other instrument constituting or defining the constitution of the company, and, if the instrument is not written in the English language, a certified translation thereof;

(b) a list of its directors, containing particulars with respect to its directors that are equivalent to the particulars that are required by this Act to be contained in the register of the directors and secretaries of a company incorporated under this Act;

(c) a statement of all subsisting charges created by the company, being charges of the kinds set out in subsection (2) of section 98 and not being charges comprising solely property situate outside Fiji;

(d) the names and postal addresses of some 1 or more persons resident in Fiji authorized to accept, on behalf of the company, service of process and any notices required to be served on the company; and

(e) the full address of the registered or principal office of the company.

(2) If any charge, being a charge which ought to have been included in the statement required by paragraph (c) of subsection (1), is not so included, it shall be void as regards property in Fiji against the liquidator and any creditor of the company. Certificate of registration and power to hold land

368. (1) Where a foreign company has delivered to the registrar the documents and particulars mentioned in section 367, the registrar shall, if such documents and particulars are so delivered on or after 1 January 1984, certify under his hand that the company has complied with the provisions of the said section; and such certificate, and any certificate given by the registrar of companies before that date that a foreign company has delivered to him the documents and particulars required by any provisions of any of the repealed Acts corresponding to the said section and to the like effect, shall be conclusive evidence that the company is registered as a foreign company for the purposes of this Act.

(2) Where a foreign company has, on or after 1 January 1984, delivered to the registrar the documents and particulars mentioned in section 367, it shall have the same power to hold land in Fiji as if it were a company incorporated under this Act.

(3) Where a foreign company has, before 1 January 1984, delivered to the registrar of companies the documents and particulars required by any provision of any of the repealed Acts corresponding to section 367 of this Act and to the like effect, it shall, subject to the provisions of that one of the repealed Acts in accordance with which such documents and particulars were so delivered and of this Act, have the same power to hold land in Fiji as if it were a company incorporated under this Act.

Returns to be delivered to registrar by foreign company

369. (1) If any alteration is made in-

(a) the charter, statutes or memorandum and articles of a foreign company or any such instrument as aforesaid; or

(b) the directors of a foreign company; or

(c) the names or postal addresses of the persons authorized to accept service on behalf of a foreign company; or

(d) the address of the registered or principal office of a foreign company, the company shall, within 60 days, deliver to the registrar, for registration, a return containing the prescribed particulars of the alteration.

(2) Where, in the case of a company to which this Part applies-

(a) a winding-up order is made by; or

(b) proceedings substantially similar to a voluntary winding-up of the company under this Act are commenced in, a court of the country in which such company was incorporated, the company shall, within 30 days of the date of the making of such order or the commencement of such proceedings, as the case may be, deliver to the registrar a return containing the prescribed particulars relating to the making of such order or the commencement of such proceedings and shall cause the prescribed advertisements in relation thereto to be published. Registration of charges created by foreign companies

370. The provisions of Part IV shall extend to charges on property in Fiji which are created, and to charges on property in Fiji which is acquired, on or after 1 January 1984, by a foreign company which has an established place of business in Fiji.

Accounts of foreign company

371. (1) Every foreign company shall, in every calendar year, make out a balance sheet and profit and loss account and, if the company is a holding company, group accounts, in such form, and containing such particulars and including such documents, as, under the provisions of this Act (subject, however, to any prescribed exceptions), it would, if it had been a company within the meaning of this Act, have been required to make out and lay before the company in general meeting, and deliver copies of those documents to the registrar for registration:

Provided that a foreign company shall not be obliged to comply with the provisions of this section, if-

(i) it was incorporated in the Commonwealth; and

(ii) it would, had it been incorporated in Fiji, have been exempt from the provisions of section 130 by virtue of subsection (4) of that section; and

(iii) in every calendar year, there is delivered to the registrar, for registration, a certificate signed by a director and the secretary of the company verifying the conditions requisite for such exemption.

(2) If any such document as is mentioned under subsection (1) is not written in the English language, there shall be annexed to it a certified translation thereof.

Obligation to state name of foreign company, whether limited and country where incorporated

372. Every foreign company shall-

(a) in every prospectus inviting subscriptions for its shares or debentures in Fiji, state the country in which the company is incorporated; and

(b) conspicuously exhibit, in easily legible roman letters, on every place where it carries on business in Fiji, the name of the company and the country in which the company is incorporated; and

(c) cause the name of the company and of the country in which the company is incorporated to be stated, in legible roman letters, in all bill-heads and letter paper, and in all notices and other official publications of the company; and

(d) if the liability of the members of the company is limited, cause notice of that fact to be stated in the English language, in legible roman letters, in every such prospectus as aforesaid and in all bill-heads, letter paper, notices and other official publications of the company in Fiji and to be affixed on every place where it carries on its business.

Service on foreign company

**373.*** Any process or notice required to be served on a foreign company shall be sufficiently served if addressed to any person whose name has been delivered to the registrar under the foregoing provisions of this Part and left at or sent by registered post to the address which has been so delivered:

Provided that-

(i) where any such company makes default in delivering to the registrar the name and address of a person resident in Fiji who is authorized to accept on behalf of the company service of process or notices; or

(ii) if, at any time, all the persons whose names and addresses have been so delivered are dead or have ceased so to reside, or refuse to accept service on behalf of the company, or for any reason cannot be served, any process or notice may be served on the company by leaving it at or sending it by registered post to any place of business established by the company in Fiji.

Cessation of business by foreign company and striking off register

374. (1) If any foreign company ceases to have a place of business in Fiji, it shall forthwith give notice, in writing, of the fact to the registrar for registration and, as from the date on which notice is so given, the obligation of the company to deliver any document to the registrar shall cease and the registrar shall strike the name of the company off the register.

(2) Where the registrar has reasonable cause to believe that a foreign company has ceased to have a place of business in Fiji, he may send, by registered post, to the person authorized to accept service on behalf of the company and, if more than 1, to all such persons, a letter inquiring whether the company is maintaining a place of business in Fiji.

(3) If the registrar receives an answer to the effect that the company has ceased to have a place of business in Fiji or does not, within 3 months receive any reply, he may strike the name of the company off the register.

Penalties

375. If any foreign company fails to comply with any of the foregoing provisions of this Part, the company and every officer or agent of the company who knowingly and willfully authorizes or permits the default shall be liable to a fine not exceeding $200 or, in the case of a continuing offence, $20 for every day during which the default continues.

Interpretation of sections 367 to 375

376. For the purposes of the foregoing provisions of this Part-

"director", in relation to a company, includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act;

"place of business" includes a share transfer or share registration office;

"prospectus" has the same meaning as when used in relation to a company incorporated under this Act.

Division 2-Prospectuses

Dating of prospectus and particulars to be contained therein

377. (1) It shall not be lawful for any person to issue, circulate or distribute in Fiji any prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside Fiji, whether the company has or has not established, or, when formed, will or will not establish a place of business in Fiji, unless the prospectus is dated and-

(a) contains particulars with respect to the following matters-

(i) the instrument constituting or defining the constitution of the company;

(ii) the legislation or provisions having the force of legislation, by or under which the incorporation of the company was effected;

(iii) an address in Fiji where the said instrument, enactments or provisions, or copies thereof, and, if the same are in a language other than English, an English translation thereof certified in the prescribed manner, can be inspected;

(iv) the date on which and the country in which the company was incorporated;

(v) whether the company has established a place of business in Fiji, and, if so, the address of its principal office in Fiji;

(b) subject to the provisions of this section, states the matters specified in Part I of the Fourth Schedule and sets out the reports specified in Part II of that Schedule, subject always to the provisions contained in Part III of that Schedule:

Provided that the provisions of sub paragraphs (i), (ii) and (iii) of paragraph (a) shall not apply in the case of a prospectus issued more than 2 years after the date at which the company is entitled to commence business, and, in the application of Part I of the Fourth Schedule for the purposes of this subsection, paragraph 2 thereof shall have effect with the substitution, for the references to the articles, of a reference to the constitution of the company.

(2) Any condition requiring or binding an applicant for shares or debentures to waive compliance with any requirement imposed by virtue of paragraph (a) or paragraph (b) of subsection (1), or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus, shall be void.

(3) It shall not be lawful for any person to issue to any person in Fiji a form of application for shares in or debentures of such a company or intended company as is mentioned in subsection (1), unless the form is issued with a prospectus which complies with this part of this Act and the issue whereof in Fiji does not contravene the provisions of section 378:

Provided that this subsection shall not apply, if it is shown that the form of application was issued in connection with a bona fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures.

(4) In the event of non-compliance with or contravention of any of the requirements imposed by paragraphs (a) and (b) of subsection (1), a director or other person responsible for the prospectus shall not incur any liability by reason of the non-compliance or contravention, if-

(a) as regards any matter not disclosed, he proves that he was not cognizant thereof; or

(b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part; or

(c) the non-compliance or contravention was in respect of matters which, in the opinion of the court dealing with the case, were immaterial or were otherwise such as ought, in the opinion of that court, having regard to all the circumstances of the case, reasonably to be excused:

Provided that, in the event of failure to include in a prospectus a statement with respect to the matters contained in paragraph 16 of the Fourth Schedule, no director or other person shall incur any liability in respect of the failure, unless it be proved that he had knowledge of the matters not disclosed.

(5) This section-

(a) shall not apply to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to re