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Most people have heard of resolutions for companies, but at certain times the Companies Act 1993 (the Act) requires companies to issue certificates. We were recently asked what certificates are, when they need to be issued, and how certificates differ from resolutions. These are great questions and we answer them here so more people can have the information.

Both resolutions and certificates are important for appropriate decision-making, due process, and to ensure good governance.

 

What is a resolution?

In meetings (or via email if a decision is needed outside of a meeting), decision-makers will typically discuss something and make a decision. A resolution is the record of that decision. Resolutions must be recorded in the minutes. Schedule 3 of the Act provides a good overview of what is required for board meetings. It is common for company constitutions to include more detail and process around company meeting obligations.

 

When are resolutions needed?

It is advisable to record all important director decisions as resolutions. One important situation requiring a resolution or contingent on approval by special resolution is when a company wishes to enter into a major transaction. This might relate to the acquisition or disposition of assets the value of which is more than half the value of the company’s assets before the acquisition or disposition.

Resolutions are also needed in many other situations, including when adopting a constitution, deciding on the consideration for which shares will be issued, or deciding to exercise an option to redeem a share.

 

What is a certificate?

A certificate is more formal in nature than a resolution and sets out information which directors certify as being true. Certificates are only required in certain situations.  Companies will make many more resolutions than they will issue certificates.

Certificates are typically required to be provided to the Companies Register where they will be publicly accessible. Anyone can do a search on an incorporated company. For example, a search of ‘documents’ for a large company will show many examples of certificates the company has provided to the registrar. The register promotes transparency and accountability, which is intended to help encourage good governance and discourage behaviour by directors that may harm shareholders.

 

When are certificates needed?

When certificates are required by the Act it is common that a resolution is needed first. For example, when directors are determining the consideration for the issue of shares they will vote and there will be a resolution. Only then are they able to sign a certificate and provide that to the Registrar.

Some other examples of when certificates are typically needed include:

  • When the board passes a resolution for the issue of options or convertible financial products, an offer to acquire shares, or for distributions to shareholders
  • When the company is amalgamating with another company
  • If the company has a listing agreement with a stock exchange, after the registration or a transfer of company shares
  • When a director is appointed or removed
  • If authorising a payment, benefit, loan, guarantee or contract to a director
  • If authorising liability insurance for directors or employees.

 

Consequences of not issuing certificates:

  • Fines of up to $5,000 apply for failure to comply with the obligations to provide certificates for shares or failure to sign a certificate of solvency when necessary
  • The company must keep a copy of all certificates for the last 7 years at its registered office
  • Shareholders and any authorised person are able to give notice in writing to view certificates.

 

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Many people mistakenly believe it is best to register a company to operate as a self-employed contractor. In reality, what is ‘best’, depends on your circumstances. We get asked a lot about these options so let’s look at a common misconception.

Isn’t registering a company best for limiting liability?

We tend to encourage entrepreneurs to set up companies. Registering a company creates a separate legal entity which means the company rather than the owner becomes liable if things go wrong. If you deal with multiple creditors this legal separation might be useful. However, company structures do not protect in all situations. If the owners are also managing the company as directors, they are still exposed to certain duties and liabilities as managers. Having a company structure could allow you to get investors in more easily as well – we discuss that in this article.

If you have few creditors and low risk generally, the idea of limiting liability may not be potential reason enough to register a company. Instead, if you are a sole trader it may be prudent to insure yourself against other industry-specific risks that might attach to you, for example, by taking out Professional Indemnity and Public Liability Insurance.

What are the other options?

Company or sole trader structures will work best for many people. However, we recommend thinking about the future, and how your circumstances might change. If you are likely to end up employing people, dealing with multiple creditors and managing complex inventory, it might be best to register as a company from the outset.

There are numerous options other than companies and sole trading, which is why we developed this useful comparison and our Startups Legal Handbook. We look beyond the obvious when we provide advice. We would be pleased to help you tease out your circumstances in more detail to help determine the best legal structure for you.

Should you require assistance, please feel free to contact Steven Moe stevenmoe@parryfield.com, Aislinn Moloy aislinnmolloy@parryfield.com, Michael Belay michaelbelay@parryfield.com, Sophie Tremewan sophietremewan@parryfield.com, Yang Su yangsu@parryfield.com, or Annemarie Mora annemariemora@parryfield.com at Parry Field Lawyers.

In New Zealand, directors may become liable for reckless trading (agreeing or causing or allowing the business of the company to be carried on in a manner likely to create a substantial risk of serious loss to the company’s creditors) per the Companies Act, earlier than the point of unavoidable insolvency.

Interestingly, the Supreme Court of the United Kingdom ruled for the first time in October 2022 on what triggers the directors’ duty to have regard for creditors’ interests ahead of shareholders interests (that is the company). The case is BTI 2014 LLC v Sequana SA and others.

The appellants argued that the directors of an insolvent company should be liable to creditors for the amount of the dividend it had paid almost ten years before. Importantly, the company was neither insolvent nor on the verge of insolvency at the time of the dividend.

The appeal was dismissed based on the common law rule in the case, West Mercia. The rule effectively means that the fiduciary duty of directors to act in good faith in the interests of a company is widened when insolvency is imminent. It is only when insolvent liquidation or administration is unavoidable that the shareholders cease to have any interest in the company, and creditors’ interests become paramount.

The United Kingdom court rejected the idea that this can occur earlier, for example, when there is a ‘real and not remote risk’ of insolvency, per some Australian authorities.

In Sequana Lord Briggs’s comments that shareholder interests should remain more important than creditors up to this tipping point are persuasive, after all, liquidation may not happen and insolvency may be temporary.

Conclusion

Currently the United Kingdom view of when director obligations to creditors are triggered differs from New Zealand and Australia, being when insolvent liquidation or administration are unavoidable. The case is relevant because New Zealand courts often consider the outcomes of cases in other common law jurisdictions, such as the United Kingdom and Australia. The findings of this case may or may not influence New Zealand law in the future.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation.

Please feel free to contact Steven Moe at stevenmoe@parryfield.com or Kris Morrison at krismorrison@parryfield.com should you require assistance.

 

Advertising your fundraising effort

Your business is thriving  and you need substantial additional capital to fund the next stage of your growth.  You have read up on the Financial Markets Conduct Act 2013 (“FMCA”) (available here) and would prefer to raise funds through one of the Schedule 1 exemptions from product disclosure statement requirements (discussed here).  Being proactive, you have already approached your close business associates, relatives, and employees while also taking full advantage of your statutory small offers limit, but it is still not enough.

You decide that it is time to widen the pool of potential investors – you need to reach the deeper financial resources of Wholesale Investors (discussed here) by advertising your offer to them.  But how do you that and what are some of the risks in advertising to Wholesale Investors?

 

Inserting a Disclaimer

To begin with, it is important to be open and honest with the people who come across your offer that your investment is only open to Wholesale Investors.  Doing so will avoid potential misunderstandings and hopefully prevent a flood of enquiries from people that will not qualify for the Wholesale Investor exemption.  We have seen offers include a disclaimer similar to the one below to highlight that the offer is only available to Wholesale Investors:

“DISCLAIMER: [These] offers are only open to investors who fall within the exclusions applicable to offers made to “wholesale investors” as set out in Schedule 1, clauses 3 (2)(a)-(c) and 3 (3)(a)-(b)(ii) of the Financial Markets Conducts Act 2013 (FMCA). You can obtain further information on FMCA requirements, and whether you come within the exclusions and their requirements at [our website]”

 

Promotional Conduct

Making it clear that your offer is only open to Wholesale Investors is just the first step.  You also need to ensure that your promotional efforts are not misleading or deceptive (see S19 of the FMCA).  The recent case of Du Val Capital Partners Limited v Financial Markets Authority [2022] NZHC 1529 offers some key takeaways in respect of the S19 fair dealing requirements:

  1. In assessing whether your offer may be misleading or deceptive, your target audience matters. In this regard, your choice of marketing channels is relevant: advertising your Wholesale Investor-restricted offer in social media and other online channels may be a factor in the Financial Markets Authority (“FMA”) determining that your offers were targeted at inexperienced investors.
  2. You cannot assume that because your offer is restricted to Wholesale Investors, your advertising audience will be more experienced and knowledgeable. Wholesale Investors are not all inherently more sophisticated than non-Wholesale Investors.
  3. If your promotional material is misleading, it cannot be saved by subsequently making more detailed materials available to investors.

 

Final Caution

The FMCA requires that an offeror know its target audience and engages with them openly and honestly.  This includes ensuring that promotional materials are not misleading or deceptive.  If you have any questions on fundraising, please feel free to reach out to us if you would like specific input on your context.  We have helped many companies with their fundraising efforts and each situation is unique.  You can contact Steven Moe stevenmoe@parryfield.com, Aislinn Molloy Aislinnmolloy@parryfield.com, Michael Belay michaelbelay@parryfield.com or Yang Su yangsu@parryfield.com at Parry Field Lawyers.

 

Introduction to the New Zealand Emissions Trading Scheme

Background and Operation of the New Zealand Emissions Trading Scheme

The New Zealand Emissions Trading Scheme (the “NZ ETS”) was introduced as a tool to combat climate change in Aotearoa New Zealand. It was created under a 2008 amendment to the Climate Change Response Act 2002 (the “Act”) with the purpose to help Aotearoa New Zealand meet its international greenhouse gas emissions obligations under the United Nations Framework Convention, the Kyoto Protocol and the Paris Agreement, and to meet its 2050 targets and emissions budgets.

The NZ ETS achieves its purpose by setting a requirement for businesses to measure their annual greenhouse gas emissions and report it to the Government. The NZ ETS broadly covers all of Aotearoa New Zealand’s emissions and includes the following sectors: forestry, agriculture, waste, synthetic gasses, industrial processes, liquid fossil fuels and stationary energy.

These sectors, excluding agriculture, also pay ‘the price for their emissions’ by having to acquire and then surrendering one New Zealand Unit (“NZUs”) to the Government for each one tonne of CO2 equivalent greenhouse gas they emit. The agriculture sector will be governed by a separate greenhouse gas levy system which will come into effect in 2025. Obligations under the NZ ETS are set high up the supply chain so consumers and smaller businesses are not directly caught by the NZ ETS obligations. Nevertheless, consumers do indirectly pay for emissions as the costs of NZUs are passed down the supply chain.

NZU’s

NZUs can enter the emission trading market in multiple ways. The Government controls two key methods by publicly auctioning NZUs and freely allocating NZUs to certain emissions-intensive and trade-exposed industries. The other main way that NZUs enter the emissions trading market is when participants in the NZ ETS ‘earn’ NZUs from the Government by growing forests and undertaking other activities that remove emissions. All NZUs can then be bought and sold between participants in the NZ ETS through the New Zealand Emissions Trading Register.

Non-Compliance with the NZ ETS

The Environment Protection Authority monitors compliance under the NZ ETS with strict liability offences resulting in fines for low-level non-compliance – please see here for a breakdown of fines. Prosecution is available where there is more serious non-compliance.

 

If you would like to know more about the statutory requirements for the New Zealand Emissions Trading Scheme, please do feel free to reach out to us.

 

The Limited Partnership regime was introduced fairly recently in New Zealand through the Limited Partnership Act 2008.  As such, limited partnerships may not be as familiar to Kiwi entrepreneurs and founders.  In this article, we highlight a few of the advantages and disadvantages of choosing a limited partnership for your business structure.  In our view, they represent a relatively simple structure which can really be useful in the right situation.

 

What is a Limited Partnership?

Limited partnerships are a corporate structure that combine some key features of companies (such as separate legal personality) and partnerships (such as tax pass-through treatment).  In a limited partnership, on entity is the general partner(s) who manage(s) the limited partnership (day to day running) while other investors are limited partners who act as silent partners (see diagram below).

This structure is often used by venture capitalists or fund managers as the corporate vehicle for investor partners to invest their funds.  For more information on the basic requirements of a limited partnership, along with a comparison of other structures, please see here.

Why choose a Limited Partnership?

Positive Comment
Liability is ring-fenced A limited partnership is a separate legal entity, and limited partners’ liability is restricted to contributed capital
Effective practical and legal control Only general partners may manage the affairs of the limited partnership
Tax pass-through treatment Tax consequences of the limited partnership pass directly to the partners
Privacy Identity of limited partners and contents of partnership agreement do not have to be publicised

 

Why wouldn’t I choose a Limited Partnership?

Drawback Comment
General partner is jointly liable with the limited partnership for the liabilities of the limited partnership Often addressed by choosing a limited liability company to act as general partner, providing liability ring-fencing
More involved set-up All limited partnerships require a written partnership agreement
Investors negotiate their rights and obligations E.g. Right to remove/appoint general partner(s), exit rights, pre-emptive rights
Financial Markets and Conducts Act 2013 A partnership interest in a limited partnership may be a financial product requiring FMCA compliance

We have helped many founders and companies structure their business and each situation is unique.  If you think a limited partnership may be a suitable option for your business, feel free to reach out if you would like specific input on your context.

If you enjoyed this content then we also have a guide for people doing business in New Zealand which you can download for free here.

 

 

 

 

 

 

 

 

 

 

 

 

 

There are many business structure options in New Zealand, including companies, partnerships and Trusts, and you want to be sure you are picking the right one. We frequently assist clients who are considering starting a business navigate the different business structure options to find what best suits their needs. The various business structure options each have their own pros and cons. What the best structure is for you will depend on your particular circumstance, desire and purpose.

The simple and easy structure which are well understood, such as a Company or Sole Trader, will work best for most businesses. If you are purpose driven, a Charitable Trust or Incorporated Society may be more appropriate. Increasingly we are also working with clients who want to merge both purpose and profits and for these clients we assist by creating unique dual structure approaches. In this article we have summarised the key points for the most common structures that are used in New Zealand. We are happy to meet and discuss options with you.

Two other critical points before we look at the options:

  • Get your strategy and purpose right before you decide on a legal entity type to use. Each one has positives and negatives so know what your end goal and the impact you want to see is first – after that look at which will help you get there.  They are each just tools for empowering you to have impact.
  • Second, we are offering legal thoughts on key elements of these structures but there are other considerations too – in particular always ensure you get great accounting and tax input on the financial side of these alternatives.

Now turning to the options:

Company
Who Owner = Shareholder
Manager = DirectorThe owners may also be the manager
Liability Is a separate legally recognised entity
Laws The Companies Act 1993 governs companies
Who signs The Director
If things go wrong Companies limit liability for the owner*
Key documents None required.
Can choose to adopt a constitution or shareholders agreement
Visibility Ownership and management is publicly visible on Companies Register
Difficulty to start Moderate

* There are certain limited circumstances when the owners of the company may be liable. If the owners are also managing the company as directors, they are exposed to certain liability as managers.

 

Sole Trader  
Who Owned and managed by ‘sole’ owner
Liability Not separate from entity
Laws No specific law governs sole traders
Who signs The owner
If things go wrong The owner is personally liable
Key documents None required
Visibility Private and not registered
Difficulty to start Easy

 

Partnerships
Who Owner = the Partners
Manager = the Partners manage
Liability Not separate from entity
Laws Partnership Law Act 2019
Who signs Partners
If things go wrong Owners are personally and jointly liable
Key documents None required
Can choose to have a Partnership Agreement
Visibility Private and not registered
Difficulty to start Moderate

* One owner can bind all owners.

 

Limited Partnership
Who Owner = Limited Partner
Manager = General Partner
Liability Is a separate legally recognised entity
Laws Limited Partnership Act 2008
Who signs The General Partner
If things go wrong The General Partner
Limit liability for the owner**
Key documents Requires a Limited Partnership Agreement
Visibility Private for the Limited Partners, public for General Partner
Difficulty to start High

* Each Limited Partner will account for tax in accordance with its individual tax position.

** If the owner participates in the management of the business, they will be liable.

 

Unincorporated Joint Venture
Who Owners = Partners
Management determined by the Joint Venture Agreement
Liability Not separate from entity
Laws Contract law, but no specific law governs Unincorporated Join Venture
Who signs Each partner
If things go wrong Partners separately liable or as decided by the Joint Venture Agreement*
Key documents None required
Can choose to have a Joint Venture Agreement
Visibility Private and not registered
Difficulty to start High

* Owner will account for tax in accordance with its individual tax position.

 

Trading Trust
Who Owner = settlor/donor gives assets (trust fund) to the Trading Trust on trust for the benefit of the beneficiary
Management = the Trustee Company,  manages the trust fund and pass on benefits to the beneficiary
Liability Not separate from entity, creates an equitable relationship
Laws Trusts Act 2019 and Companies Act 1993
Who signs The Trustee Company
If things go wrong The Trustee Company
Key documents Trust Deed
Visibility Private and not registered
Difficulty to start High

 

Charitable Trust
Who Owners = settlor/donor gives property (trust fund) to the Charitable Trust to benefit the community through charitable purposes
Management = Trustees manage the trust fund to advance the charitable purposes
Liability Is a separate legally recognised entity
Laws Trusts Act 2019 and Charitable Trust Act 1957
Who signs The Trustees
If things go wrong The Trustees
Key documents Trust Deed
Visibility Registered on Charitable Trust Register and if a registered charity on Charities Services
Difficulty to start Moderate

 

Incorporated Society 
Who Management = the Committee manages the funds to advance the purpose
Liability Is a separate legally recognised entity
Laws Incorporated Society Act 2022*
Who signs The Committee, but this depends on the Constitution
If things go wrong The Committee
Key documents Constitution
Visibility Registered on Incorporated Societies Register and if a registered charity on Charities Services
Difficulty to start Moderate

* This is a new Act which has recently come into force, for more information on the new Act and requirements see our Incorporated Societies Act 2022: Information Hub.

Co-operatives Companies
Who Owner = Members/shareholders
Governance = Directors
Liability Is a separate legally recognised entity
Laws Co-operative Companies Act 1996 and Companies Act 1993
Who signs The Directors
If things go wrong Companies limit liability for the owners
Key documents Constitution
Visibility Registered on Companies
Difficulty to start Moderate

For lots more information on co-operatives visit Cooperative Business New Zealand – https://nz.coop/

If you would like to discuss or set up the above-mentioned business structure or other commercial matters, you can contact:

What is a Wholesale Investor?

Companies need money, it is the fuel for the engine of their growth.  Very often they will get that money through issuing equity (shares to people who invest) or issuing debt (loans to people who provide finance).  If you do either of these activities you are offering a financial product and captured by the Financial Markets Authority and their rules which state you need to provide extensive disclosure documentation to those investing – unless an exemption applies.

In this article we want to talk about two critical exemptions which we see are commonly used.

Wholesale Investors

A wholesale investor is essentially a person or an organisation with enough previous investing experience that they do not require disclosure documentation. Their experience is often shown by their investment activity, wealth and/or income.  Wholesale investors can be exempted for all offers of financial products or only for some offers of financial products and the critical points to consider if you want to rely on this exemption are:

  • Is the investor an investment business, such as a financial adviser or a licensed insurer
  • Has the investor recently held or acquired financial products of aggregate value of over $1 million
  • What is the investor’s wealth – do their net assets exceed $5 million
  • Is the investor able and willing to certify that they are sufficiently experienced with the particular financial product you are offering
  • Is the investor subscribing for at least $750,000 worth of financial product

Crowdfunding

Another option is crowdfunding – using this exemption, you will have to work with an FMA licenced intermediary to raise the funds.  The licenced intermediary will offer your equity, debt or other financial products to investors for you.  You can use the crowdfunding exception in combination with other exclusions (such as the wholesale investor exclusion above and others which we touch on here), but there is a limit of $2 million in any 12-month period (which includes any ‘small offers’ in that time period).

The FMA has provided a helpful overview of various options and exemptions which you can access here.

We have helped many companies with their capital raising and each situation is unique so feel free to reach out if you would like specific input on your context.

From 16 August 2022, the Fair Trading Amendment Act 2021 will create new obligations that are particularly relevant for small businesses. This is a good opportunity to review your standard form contracts, business practices and policies to ensure you comply.

Unfair Contract Terms

The existing prohibition on unfair contract terms will be extended to include business-to-business contracts valued at up to $250,000 per year.

A term may be unfair where:

  • It would create a significant imbalance in rights between the parties; and
  • The term is not reasonably necessary to protect the legitimate interests of the party relying on it; and
  • One of the parties would suffer detriment (financial or otherwise) if the term was to be relied upon.

A court will also take into account the overall context of the contract and the extent to which the term is transparent.

The new legislation will not apply to contracts entered into before 16 August 2022 (unless renewed or varied from that date onwards). Insurance contracts will be exempt until 1 April 2025.

If a Court declares a term to be unfair, it will be an offence for a party to include, apply, enforce or rely on that term in a small trade contract. The offence is punishable by a fine of up to $200,000 for an individual or up to $600,000 for a body corporate.

If your business uses standard form templates that may be caught by these changes, you should review these to ensure compliance. For assistance with reviewing, please contact:

Christchurch CBD

PHONE: +64 3 348 8480
FAX: +64 3 348 6305

PHYSICAL ADDRESS:
Level 1, 60 Cashel Street
Christchurch 8013, New Zealand

POSTAL ADDRESS:
PO Box 744
Christchurch, 8140, New Zealand

Christchurch

PHONE: +64 3 348 8480
FAX: +64 3 348 6305

PHYSICAL ADDRESS:
1 Rimu Street, Riccarton,
Christchurch 8041, New Zealand

POSTAL ADDRESS:
PO Box 8020, Riccarton,
Christchurch, 8440, New Zealand

Rolleston

PHONE: +64 3 348 8480
FAX: +64 3 348 6305

PHYSICAL ADDRESS:
Level 1, 80 Rolleston Drive,
Rolleston, 7614, New Zealand

POSTAL ADDRESS:
PO Box 8020, Riccarton,
Christchurch, 8440, New Zealand

Hokitika

PHONE: +64 3 755 8673
FAX: +64 3 755 8073

PHYSICAL ADDRESS:
26 Weld Street,
Hokitika 7810, New Zealand

POSTAL ADDRESS:
PO Box 44,
Hokitika 7842, New Zealand

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