Q&A with Companies Registrar Mandy McDonald

With the implementation period for the Companies Amendment Act 2014 now coming to an end the Registrar of Companies, Mandy McDonald, expresses her thanks for the extra effort made to get the Act’s requirements in place.

Mandy Mcdonald

In this update, Ms McDonald also focuses on the final stage of the Disclose Register transition and gives an update on the definition for the term “live in New Zealand”.

Ms McDonald, the Companies Amendment Act is now in action, do you have any closing comments on this?

As you know, the Companies Amendment Act had a number of additional requirements that companies had to satisfy to remain registered in New Zealand. I want to thank everyone who’s had a part to play in getting these requirements in place. One of the goals of this Act is to strengthen the integrity of our registers, I feel confident this has been achieved and appreciate the extra effort made by everyone who’s helped to make this happen.

Previously, you have mentioned the transition for offers of financial products and managed investment schemes to the Disclose Register. As we near the final deadline what can those who are transitioning expect?

The deadline for registering existing and new offers and schemes on the Disclose Register is less than 12 weeks away. If you haven’t begun to transition your offers and schemes, you need to start now (see https://www.business.govt.nz/disclose/getting-started). This is required as part of the Financial Markets Conduct Act 2013 and it’s encouraging to see many managers and issuers getting their offers and schemes onto the Disclose Register. We have seen a significant increase in activity on the register since May.

There are a number of steps that issuers and managers have had to undertake, these include getting licensed by the Financial Markets Authority, setting up an organisational account on the Disclose Register and registering schemes and offers. The process can take some time and I’m happy to see more managers and issuers getting through this.

Our goal is to help make this transition as seamless as possible and our workshops and training sessions have been well attended. We’re happy to help where it’s required.

If you want help with any part of the Disclose Register, or the registration process, please call us on 0508 377 746 or email disclose@companies.govt.nz.

In the first quarter this year (see Law News Issue 4, 26 February 2016), you mentioned the term “live in New Zealand” is not defined in the Companies Act, and that your interpretation of the term was subject to a challenge in the High Court. Do you have an update on how this requirement is to be interpreted?

Yes, the appeal of my decision that a director did not live in New Zealand has been resolved. The appeal was successful and the Court found that the director did in fact “live in New Zealand” for the purposes of the Companies Act 1993.

The Court took no issue with my interpretation that a director will satisfy the ‘live in New Zealand’ requirement if he or she is present in New Zealand for more than 183 days in total in a 12 month period. Following the Court’s decision, if a director falls below this threshold, in deciding whether they live in New Zealand and obligations can be enforced against the company and the director, I will consider such matters as:

  • the actual time the director spends in New Zealand;
  • the director’s connection and ties to New Zealand; and
  • the manner of the director’s living when in New Zealand.

Persons intending to incorporate a new company will need to consider if at least one director will meet the “live in New Zealand” requirement (or the requirement to live in Australia if they are also a director of an Australian incorporated company). If this is doubtful then legal advice should be sought and consideration could be given to appointing an additional director who will meet the requirements, before the company is incorporated.

The guidelines on the “live in New Zealand” requirement for a director can be found on the Companies Register website https://www.business.govt.nz/companies/learn-about/starting-a-company/how-to-apply/director-details.

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