Section 286 — Companies Act 1993: Orders to enforce liquidator's duties

286 Orders to enforce liquidator's duties (1) An application for an order under this section may be made by— (a) A liquidator: (b) A person seeking appointment as a liquidator: (c) A liquidation committee: (d) A creditor, shareholder, other entitled person, or a director of the company in liquidation: (e) A receiver appointed in relation to property of the company in liquidation: (f) If the liquidator is a chartered accountant, the President of the Institute of Chartered Accountants of New Zealand: (g) If the liquidator is a barrister and solicitor or a solicitor, the President of the New Zealand Law Society: (h) An Official Assignee. (2) No application may be made to a Court by a person other than a liquidator in relation to a failure to comply unless notice of the failure to comply has been served on the liquidator not less than 5 working days before the date of the application and, as at the date of the application, there is a continuing failure to comply. (3) If the Court is satisfied that there is, or has been, a failure to comply, the Court may— (a) Relieve the liquidator of the duty to comply wholly or in part; or (b) Without prejudice to any other remedy which may be available in relation to a breach of duty by the liquidator, order the liquidator to comply to the extent specified in the order. (4) A Court may, in relation to a person who fails to comply with an order made under subsection (3) of this section, or is or becomes disqualified under section 280 of this Act to become or remain a liquidator,— (a) Remove the liquidator from office; or (b) Order that the person may be appointed and act, or may continue to act, as liquidator, notwithstanding the provisions of section 280 of this Act. (5) If the Court is satisfied that a person is unfit to act as a liquidator by reason of persistent failures to comply or the seriousness of a failure to comply,— (a) the Court must make a prohibition order; and (b) the period of the order is a matter for the discretion of the Court but the Court may make a prohibition period for an indefinite period. (6) A person to whom a prohibition order applies must not— (a) Act as a liquidator in a current or other liquidation; or (b) Act as a receiver in a current or other receivership. (7) Evidence that, on 2 or more occasions,— (a) A Court has made an order to comply under this section in respect of the same person; or (b) An application for an order to comply under this section has been made in respect of the same person and that in each case the person has complied after the making of the application and before the hearing,— is, in the absence of special reasons to the contrary, evidence of persistent failures to comply for the purposes of this section. (8) In making an order under this section a Court may, if it thinks fit,— (a) Make an order extending the time for compliance; or (b) Impose a term or condition; or (c) Make an ancillary order. (9) A copy of every order made under subsection (5) of this section must, within 10 working days of the order being made, be delivered by the applicant to the Official Assignee for New Zealand who must keep it on a file indexed by reference to the name of the liquidator concerned. Subsection (1)(f) was amended, as from 1 October 1996, by section 23 Institute of Chartered Accountants of New Zealand Act 1996 (1996 No 39), by substituting the words “ Institute of Chartered Accountants of New Zealand ” for the words “ New Zealand Society of Accountants ” . Section 286(5): substituted, on 1 November 2007, by section 26(1) of the Companies Amendment Act 2006 (2006 No 56). Section 286(7): amended, on 1 November 2007, by section 26(2) of the Companies Amendment Act 2006 (2006 No 56).