"44F When Court may make management banning orders

The Court may, on application by any person referred to in section 35(1)(a) to (g), make a management banning order against a person (A) if---

"(a) A has been convicted of an offence against either section 44 or section 44C or a pecuniary penalty order has been made against A under this Act for a contravention of the takeovers code; or

"(b) A has, while a director of an incorporated or unincorporated body,---

"(i) persistently contravened this Act, the Companies Act 1993, the Securities Markets Act 1988, the Securities Act 1978, or the takeovers code; or

"(ii) if the incorporated or unincorporated body has so contravened, persistently failed to take all reasonable steps to obtain compliance with those Acts or the code; or

"(c) A has been prohibited in an overseas jurisdiction from carrying on activities that the Court is satisfied are substantially similar to any of the activities referred to in section 44G in connection with a contravention of any law relating to takeovers.

"44G Terms of management banning orders

A management banning order may, for a period stated in the order of 10 years or less, prohibit or restrict the person (without the leave of the Court) from being a director or promoter of, or in any way (whether directly or indirectly) being concerned or taking part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand).

"44H Offence of contravening management banning order

An individual who acts in contravention of a management banning order under section 44F commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $100,000, or to both.

"44I Only one management banning order may be made for same conduct

If conduct by a person constitutes grounds for making an order under any 1 or more of section 44F of this Act, section 60A of the Securities Act 1978, section 43F of the Securities Markets Act 1988, and section 383 of the Companies Act 1993, proceedings may be brought against that person under any 1 or more of those provisions, but no person is liable to more than 1 order under those provisions for the same conduct.

"44J Persons automatically banned from management

"(1) This section applies to a person if the person has been convicted of an offence against either section 44 or section 44C or a pecuniary penalty order has been made against the person under this Act for a contravention of the takeovers code.

"(2) The person must not, for the period of 5 years after the conviction or making of the order (without the leave of the Court) be a director or promoter of, or in any way (whether directly or indirectly) be concerned or take part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand).

"(3) An individual who acts in contravention of this section commits an offence and is liable, on conviction on indictment to imprisonment for a term not exceeding 3 years or to a fine not exceeding $100,000, or to both.

"44K General provisions for bans and banning orders

"(1) The Registrar of the Court must, as soon as practicable after the making of a management banning order under section 44F,---

"(a) give notice to the Registrar of Companies and the Panel that the order has been made; and
"(b) give notice in the Gazette of the name of the person against whom the order is made and the period or dates for which the ban applies.

"(2) A person intending to apply for the leave of the Court under section 44G or section 44J must give to the Panel not less than 10 days' written notice of that person's intention to apply.

"(3) The Panel, and any other person that the Court thinks fit, may attend and be heard at the hearing of the application.

"Orders to preserve assets to satisfy claims

"44L When Court may prohibit payment or transfer of money, securities, or other property

"(1) This section applies if---

"(a) an investigation is being carried out under this Act in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Act or the takeovers code; or

"(b) a prosecution has begun against a person for a contravention of this Act; or

"(c) a civil proceeding has begun against a person under this Act.

"(2) The Court may, on application by the Panel or by an aggrieved person, make 1 or more of the orders listed in section 44M if the Court considers it necessary or desirable to do so for the purpose of protecting the interests of an aggrieved person.

"(3) In this section and section 44M,---

"aggrieved person means any person to whom a relevant person is liable

"associated persons are---

"(a) persons who are relatives within the meaning of the Income Tax Act 2004 or de facto partners; or

"(b) persons who are partners to whom the Partnership Act 1908 applies; or

"(c) bodies corporate that consist of substantially the same shareholders or are under the control of the same persons; or

"(d) a body corporate and a person who has the power, directly or indirectly, to exercise, or control the exercise of, the right to vote attached to 25% or more of the voting securities of the body corporate; or

"(e) a body corporate and a person who is a director or principal officer of the body corporate

"liable means liable, or may be or become liable, to pay money (whether in respect of a debt, by way of damages or compensation, or otherwise) or to account for securities or other property

"relevant person means a person referred to in subsection (1).

Compare: Section 1323(1), Corporations Act 2001 (Aust.)

"44M What orders may be made

"(1) The orders that may be made under section 44L are---

"(a) an order prohibiting the relevant person from transferring, charging, or otherwise dealing with money, securities, or other property held or controlled by the relevant person:

"(b) an order prohibiting a person who is indebted to the relevant person or to an associated person of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed:

"(c) an order prohibiting a person holding money, securities, or other property, on behalf of the relevant person, or on behalf of an associated person of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the securities or other property, to, or to another person at the direction or request of, the person on whose behalf the money, securities, or other property, is or are held:

"(d) an order prohibiting the taking or sending out of New Zealand by a person of money of the relevant person or of an associated person of the relevant person:

"(e) an order prohibiting the taking, sending, or transfer by a person of securities or other property of the relevant person, or of an associated person of the relevant person from a place in New Zealand to a place outside New Zealand (including the transfer of securities from a register in New Zealand to a register outside New Zealand):

"(f) an order requiring the relevant person, or any person holding money, securities, or other property on behalf of the relevant person or an associated person of the relevant person, to pay or transfer money, securities, or other property to a specified person to be held on trust pending determination of the investigation, prosecution, or civil proceeding:

"(g) an order appointing,---

"(i) if the relevant person is a natural person, a receiver or trustee, having any powers that the Court orders, of the property or of part of the property of that person; or

"(ii) if the relevant person is a body corporate, a receiver or receiver and manager, having any powers that the Court orders, of the property or of part of the property of that person:

"(h) if the relevant person is a natural person, an order requiring that person to deliver up to the Court his or her passport and any other documents that the Court thinks fit:

"(i) if the relevant person is a natural person, an order prohibiting that person from leaving New Zealand, without the consent of the Court.

"(2) A reference in subsection (1)(e) or (g) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example,---

"(a) as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or

"(b) in a fiduciary capacity.

"(3) An order may be expressed to operate for a specified period or until the order is discharged by a further order under this section.

Compare: Section 1323(1), (2A), (6), Corporations Act 2001 (Aust.)

"44N Interim orders

"(1) If an application is made to the Court for an order under section 44L, the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

"(2) The Court must not require the applicant or any other person, as a condition of granting an interim order under this section, to give an undertaking as to damages.

"(3) In determining an application for the grant of an interim order, the Court must not take into account that the applicant is not required to give an undertaking as to damages.

Compare: Section 1323(3), (4), Corporations Act 2001 (Aust.)

"44O Relationship with other law

"(1) Nothing in sections 44L to 44N affects the powers that the Court has apart from those sections.

"(2) This section has effect subject to the Insolvency Act 1967.

Compare: Section 1323(7), (8) Corporations Act 2001 (Aust.)

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