INDEPENDENT STATE OF PAPUA NEW GUINEA.
No. 1 of 1998.
Companies Regulation 1998
ARRANGEMENT OF SECTIONS.
1. Interpretation.
2. Forms.
3. Particulars prescribed by forms.
4. Directions in forms.
5. Fees.
6. Documents to be submitted to Registrar.
7. Time for submission of documents.
8. Signature and certification of documents submitted to Registrar.
9. Certification of documents.
10. Requirements in respect to registration documents to be submitted by overseas company.
11. Translation of documents.
12. Details of shareholders.
13. Prescribed information for annual returns.
14. Fee for inspecting company records.
15. Registration of common terms and provisions for charges.
16. Prescribed amount.
17. Amendment of liquidator’s decision in relation to claim.
18. Trade discounts.
19. Periodical payments.
20. Employees’ claims.
21. Notice to creditors to claim.
22. Failure to claim by day fixed for claims.
23. Failure to establish priority by day fixed for claims.
24. Dividends in respect of rejected claims.
25. Costs of proceedings relating to a liquidator’s decision on claim.
26. Place of Meetings.
27. List of creditors or shareholders.
28. Creditors entitled to vote.
29. Admission and rejection of claims by chairman of meeting of creditors for purposes of voting.
30. Cases in which creditors may not vote.
31. Votes of secured creditors.
32. Appointment of liquidator, etc., as proxy.
33. Liquidator not to solicit for proxies.
34. Irregularity in notice of proxy.
35. Disqualification from voting.
36. Use of proxies by liquidator’s nominee.
37. Restrictions relating to remuneration.
38. Liquidator’s charges.
39. Restriction on purchase of company’s assets by liquidator or liquidation committee.
40. Restriction on purchase of goods or services from persons connected with liquidator.
41. Liquidation committee not to obtain benefit.
42. Transmission of documents and property to liquidator’s successor.
43. Fees, expenses and remuneration of vacating liquidator.
44. Initial report of liquidator.
45. Six monthly report of liquidator.
46. Defect in appointment not to invalidate acts of liquidator.
47. Deposit of company funds.
48. Investment of funds.
49. Liquidator carrying on business.
50. Service.
51. Commission payable to Registrar.
52. General penalty.
53. Prescribed information for registration of overseas company.
54. Prescribed information for annual return of overseas company.
55. Financial statements of overseas company to be audited.
56. Registrar may extend transitional period.
57. Deeming provisions applying to reregistered companies.
Companies Regulation 1998
Made under the Companies Act 1997 to come into effect on 1 March 1998.
Dated 200 .
PART I. – PRELIMINARY.
1. INTERPRETATION.
(2) Except so far as the contrary intention appears in this Regulation, Section 2 of the Act applies for the purposes of this Regulation.
(3) In this Regulation, unless the contrary intention appears, “agent” means the person named in a notice of appointment lodged under Section 386(2)(e) or 389(1)(d) of the Act, or the agent or public officer appointed under any corresponding previous law.
PART II. – FORMS AND FEES.
2. FORMS.
(2) A form that is submitted to the Registrar shall be in the format prescribed in this Regulation, unless the Registrar approves otherwise.
3. PARTICULARS PRESCRIBED BY FORMS.
4. DIRECTIONS IN FORMS.
5. FEES.
(2) The fees set out in Schedule 2 may include fees payable for submitting a document to the Registrar after the time limit prescribed by the Act or this Regulation.
(3) The Registrar may waive, in whole or in part, and on such terms and conditions as he thinks fit, the payment of any fees or amounts prescribed in this Regulation under Section 411 of the Act, by any person or class of persons.
PART III. – GENERAL PROVISIONS RELATING TO FORMS AND OTHER DOCUMENTS.
6. DOCUMENTS TO BE SUBMITTED TO REGISTRAR.
(a) it shall be on paper of medium weight and good quality, and of international A4 size, unless the Registrar approves otherwise;
(b) it shall be typewritten or printed in type of a size not less than 9 point times, or be handwritten in block capitals, and be clearly legible;
(c) it shall bear the original signature of each person required to sign the document, and photocopies, facsimiles or carbon copies will not be registered by the Registrar, unless otherwise approved by the Registrar or the document is signed in a manner or by a means approved by the Registrar;
(d) the name of the person signing the document shall be typewritten or printed in type of a size not less than 9 point times, or be handwritten in block capitals under the signature of that person, and be clearly legible;
(e) it shall have margins of not less than 25mm on the left-hand or inner side of the page and not less than 10mm on all other sides of the page;
(f) where it comprises two or more sheets, the sheets shall be bound together by a suitable fastener placed in the top left-hand corner;
(g) it shall have endorsed–
(i) at the top right-hand side of the first page, the registered company number allotted by the Registrar to the company or overseas company to which the document relates; and
(ii) on the first page, the name of the company or overseas company to which the document relates; and
(iii) on the first page, the title of the document (being, where the document is a form prescribed by this Regulation, the same as the heading to the form); and
(iv) at the foot of the first page, the name, postal address and telephone number of the person by, or on whose behalf, the document is submitted; and
(v) at the foot of the first page the following words–
“Submitted to the Office of the Registrar on:.”
(2) Where the Registrar is of the opinion that a document submitted to him–
(a) contains matter contrary to law; or
(b) by reason of any omission or misdescription has not been duly completed; or
(c) does not comply with the requirements of the Act or this Regulation; or
(d) contains an error, alteration or erasure,
he may refuse to register or receive the document, and the document shall be deemed not to have been submitted, and the Registrar may request that the document be appropriately amended or completed and re-submitted, or that a fresh document be submitted in its place.
(3) A document which is submitted under the Act or this Regulation is deemed not to have been submitted unless it is accepted and registered by the Registrar.
(4) Except with the special leave of the Registrar, granted upon such terms and conditions as the Registrar thinks fit, no document submitted shall be registered by the Registrar where it does not comply with this section.
7. TIME FOR SUBMISSION OF DOCUMENTS.
(a) within one month; or
(b) in the case of a document required to be lodged by an overseas company, within such further period as the Registrar in special circumstances allows,
after the happening of the event to which the document relates.
8. SIGNATURE AND CERTIFICATION OF DOCUMENTS SUBMITTED TO REGISTRAR.
(a) a director or secretary of the company or overseas company; or
(b) in relation to an application for registration, a proposed director or secretary; or
(c) in the case of a document relating to an overseas company, the agent of the overseas company in Papua New Guinea or, where the agent is a company a director or secretary of that company.
9. CERTIFICATION OF DOCUMENTS.
(2) An annexure to a form, or a document submitted with a form, must–
(a) have an identifying mark; and
(b) be endorsed with the following words:–
“This is the annexure of (insert the number of pages) pages marked (insert an identifying mark) referred to in the (insert a description of the form) signed by (insert the name of each person signing the form) and dated (insert the date of signing).; and”
(c) be signed by each person signing the form to which the document is annexed; and
(d) have each page numbered consecutively.
10. REQUIREMENTS IN RESPECT TO REGISTRATION DOCUMENTS TO BE SUBMITTED BY OVERSEAS COMPANY.
(a) where any change or alteration is made in the name of the overseas company, the overseas company shall submit to the Registrar, at the time when notice of the change or alteration is lodged with the Registrar–
(i) a copy of the certificate of its incorporation or registration issued in its place of incorporation or origin, or a document of similar effect (being a certificate or document evidencing the change or alteration); or
(ii) where there is no such certificate or document, a certified copy of the instrument effecting the change or alteration;
(b) where any change or alteration is made in the constitution, charter, statute, memorandum, articles or other instrument of the overseas company, a copy of which has been previously submitted by the overseas company under Section 386(2) of the Act, the overseas company shall submit to the Registrar, at the time when notice of the change or alteration is submitted to the Registrar–
(i) a copy of the instrument effecting the change or alteration; or
(ii) a copy of the constitution, charter, statute, memorandum, articles or other instrument as changed or altered.
11. TRANSLATION OF DOCUMENTS.
(a) Ambassador;
(b) High Commissioner;
(c) Minister;
(d) Head of Mission;
(e) Commissioner;
(f) Charge d’Affairs;
(g) Counsellor, Secretary or Attache at an Embassy, High Commission, Legation or other post;
(h) Consul-General;
(i) Consul;
(j) Pro-Consul;
(k) Trade Commissioner;
(l) Consular Agent.
(2) For the purposes of the Act, a certified translation is a translation that–
(a) in the case of a translation made outside Papua New Guinea–
(i) is certified by an official to whom the custody of the original instrument, certificate, contract or document is committed, being an official holding or purporting to hold an office corresponding to that of the Registrar in the place in which the corporation is formed or incorporated; or
(ii) is certified by a notary public or a public translator duly admitted and sworn as such in accordance with the law of the place in which the corporation is formed or incorporated; or
(iii) is certified by a diplomatic or consular officer of Papua New Guinea in the place in which the corporation is formed or incorporated; or
(b) in the case of a translation made within Papua New Guinea, is certified by a person approved by the Registrar,
to be a correct translation into the English language.
(3) Before accepting a translation, the Registrar may require the person submitting the translation to furnish to him such evidence as the Registrar thinks sufficient, of the ability of the person by whom the translation was made to make the translation.
12. DETAILS OF SHAREHOLDERS.
(a) the residential address of the shareholder, or where a body corporate, the address of the registered office; and
(b) if a natural person, the date of birth of the shareholder; and
(c) the nationality of the shareholder, or where a body corporate, the country of incorporation.
13. PRESCRIBED INFORMATION FOR ANNUAL RETURNS.
(a) the total number of shares of the company on issue; and
(b) the date of birth of each shareholder in the company; and
(c) the class of shares held by each shareholder; and
(d) the name and address of any auditor appointed by the company.
14. FEE FOR INSPECTING COMPANY RECORDS.
PART IV. – CHARGES.
15. REGISTRATION OF COMMON TERMS AND PROVISIONS FOR CHARGES.
“common memorandum” means a document that contains provisions, terms or covenants that are incorporated into, or applicable to all charges, or a particular class or type of charge executed in favour of a specific chargee;
“charge” means a charge to which Part XIII of the Act applies;
“chargee” means a person who is entitled to a charge.
(2) The Registrar may register, on such terms and conditions as he thinks fit, a common memorandum in relation to a person, and the registered common memorandum may be incorporated, by reference to its registered number, into a document evidencing or creating a charge under which that person is the chargee.
(3) Upon registration, a common memorandum shall form part of the register.
PART V. – LIQUIDATIONS.
Division 1.
Statutory Demand.
16. PRESCRIBED AMOUNT.
Division 2.
Claims.
17. AMENDMENT OF LIQUIDATOR’S DECISION IN RELATION TO CLAIM.
18. TRADE DISCOUNTS.
19. PERIODICAL PAYMENTS.
(2) Nothing in Subsection (1) shall affect the right of the lessor of the property to claim rent that accrues on or after the commencement of liquidation.
20. EMPLOYEES’ CLAIMS.
(2) A schedule setting out the names of the employees, and the amounts severally due to them, shall be attached to the claim.
(3) Any claim made in compliance with this section shall have the same effect as if separate claims had been made by each of the employees.
21. NOTICE TO CREDITORS TO CLAIM.
(2) The liquidator shall give public notice of the day fixed in accordance with Subsection (1).
22. FAILURE TO CLAIM BY DAY FIXED FOR CLAIMS.
(2) A creditor who makes a claim after the day fixed in accordance with Section 21 of this Regulation and whose claim is admitted shall be entitled to receive the benefit of any distribution from which the creditor was previously excluded where any assets remain, or, in the opinion of the liquidator, are likely to remain, available for distribution.
23. FAILURE TO ESTABLISH PRIORITY BY DAY FIXED FOR CLAIMS.
(2) The liquidator may, in making any distribution after the claim is admitted, make an assumption as to the priority that the claim may have and accord the creditor the benefit of the distribution accordingly.
(3) A creditor who establishes the priority of his claim after the day fixed in accordance with Section 21 of this Regulation shall be entitled to receive the benefit of any distribution from which the creditor was previously excluded (if any), where any assets remain, or, in the opinion of the liquidator, are likely to remain, available for distribution.
24. DIVIDENDS IN RESPECT OF REJECTED CLAIMS.
(2) Where no notice of an application under Section 332(1)(b) of the Act has been given within the time specified in the applicable rules of the Court, or if no time period is specified, then within one month, the liquidator shall exclude all claims which have been rejected from participation in the dividend.
25. COSTS OF PROCEEDINGS RELATING TO A LIQUIDATOR’S DECISION ON CLAIM.
(a) allow any costs of any creditor to be added to his claim; and
(b) allow any costs of any party to be paid out of the assets of the company, such costs being deemed to be expenses of the liquidator; and
(c) order any costs to be paid by any party to the proceedings.
Division 3.
Proceedings at Meetings.
26. PLACE OF MEETINGS.
27. LIST OF CREDITORS OR SHAREHOLDERS.
(a) in the case of a meeting of creditors–
(i) the name of each creditor present or represented; and
(ii) whether the creditor has made a claim, and the amount of the claim; and
(iii) whether the creditor has filed a proxy or is present in person; and
(iv) the total number of creditors present or represented; and
(b) in the case of a meeting of shareholders–
(i) the name of each shareholder present or represented; and
(ii) the number of shares issued to that shareholder; and
(iii) the number of votes that the shareholder may exercise according to the constitution of the company; and
(iv) whether the shareholder has filed a proxy or is present in person; and
(v) the total number of shareholders present or represented.
(2) A record required under Subsection (1) which has been signed as correct by the person chairing or convening the meeting is prima facie evidence of the details set out in the record.
28. CREDITORS ENTITLED TO VOTE.
(a) the liquidator has admitted the claim wholly or in part either for payment or for voting purposes; or
(b) the chairman of the meeting of creditors allows the person to vote in accordance with Section 29 of this Regulation.
29. ADMISSION AND REJECTION OF CLAIMS BY CHAIRMAN OF MEETING OF CREDITORS FOR PURPOSES OF VOTING.
(2) Where a chairman is uncertain whether a claim may be admitted or rejected, he shall allow the creditor to vote subject to the vote being declared invalid in the event of the claim being rejected for the purpose of voting.
30. CASES IN WHICH CREDITORS MAY NOT VOTE.
(a) any claim that is subject to a contingency, or that is for damages, or that is, for some other reason, of an uncertain amount unless the value of the claim has been estimated by the liquidator or determined by the Court in accordance with Section 355 of the Act; or
(b) a debt on, or secured by a current bill of exchange or promissory note held by him unless the creditor treats the liability to him thereon of every person who is liable thereon antecedently to the company, and who has not been adjudged bankrupt, as a security in his hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his claim.
31. VOTES OF SECURED CREDITORS.
(a) for the whole debt, where he surrenders the charge to the liquidator for the general benefit of creditors; or
(b) in respect of the balance of the debt, where he values the charge and claims as an unsecured creditor under Section 353(4) of the Act for the balance due; or
(c) in respect of the balance of the debt, where he realises property subject to a charge and claims as an unsecured creditor under Section 353(3)(a) of the Act for any balance due after deducting the net amount realised.
(2) Subject to the Act, where a secured creditor votes in respect of the creditor’s whole debt, the creditor shall be taken to have surrendered his charge.
(3) A secured creditor who is not entitled to vote may, with the leave of the liquidator, attend and speak at a meeting of creditors.
Division 4.
Proxies.
32. APPOINTMENT OF LIQUIDATOR, ETC., AS PROXY.
33. LIQUIDATOR NOT TO SOLICIT FOR PROXIES.
(2) Without limiting the orders that a Court may make, where a liquidator has not complied with Subsection (1), the Court may–
(a) order that the liquidator shall not be entitled to his remuneration; and
(b) make an order removing the liquidator from office; and
(c) make an order declaring any transaction entered into by the liquidator to be void or overturning any vote, and granting such consequential relief as the Court thinks fit.
(3) For the purposes of this section, the term “l(fā)iquidator” includes a person who has been, or may be, nominated for appointment as a liquidator in place of the person already holding office as liquidator.
34. IRREGULARITY IN NOTICE OF PROXY.
35. DISQUALIFICATION FROM VOTING.
(2) Any person who holds a proxy to vote for the appointment of a liquidator may use the proxy to vote in favour of the appointment of himself as liquidator where it is not inconsistent with the terms of the proxy to do so.
36. USE OF PROXIES BY LIQUIDATOR’S NOMINEE.
(2) The liquidator shall be responsible for, and bound by, all acts, omissions, conduct or decisions of his nominee.
(3) Nothing in this section authorizes the person nominated to vote in a manner that would be in contravention of Section 35 of this Regulation if the liquidator had acted under the proxy personally.
Division 5.
Liquidators and Liquidation Committees.
37. RESTRICTIONS RELATING TO REMUNERATION.
(2) A liquidator shall not make any arrangement for giving up, whether in whole or in part, his remuneration to any person.
38. LIQUIDATOR’S CHARGES.
(2) Where a liquidator is a lawyer or accountant, he may contract that the remuneration for his services as liquidator shall include all professional services.
39. RESTRICTION ON PURCHASE OF COMPANY’S ASSETS BY LIQUIDATOR OR LIQUIDATION COMMITTEE.
(2) The Court may set aside any purchase made contrary to this section, and grant such consequential relief as it thinks fit.
(3) The Court may give its leave under Subsection (1) on such terms and conditions as it thinks fit.
40. RESTRICTION ON PURCHASE OF GOODS OR SERVICES FROM PERSONS CONNECTED WITH LIQUIDATOR.
(2) The Court may give its leave under Subsection (1) on such terms and conditions as it thinks fit.
(3) The Court may disallow or recover any benefit made contrary to the provisions of this section.
41. LIQUIDATION COMMITTEE NOT TO OBTAIN BENEFIT.
(a) derive any benefit from any transaction arising out of the assets of the company; or
(b) receive out of the assets of the company any payment for services rendered by him in connection with the administration of the assets, or for any goods supplied by him to the liquidator for, or on account of the company.
(2) Where the leave of the Court is sought in respect of any payment for services, leave shall only be given where the services performed are of a special nature, and the order shall specify the nature of the services for which leave is given.
(3) Except with the leave of the Court, no remuneration shall, under any circumstances, be paid to a member of a liquidation committee for services rendered by him in the discharge of the duties attaching to his office as a member of the committee.
(4) The Court may disallow or recover any benefit or payment made contrary to the provisions of this section.
(5) The Court may give its leave under this section on such terms and conditions as it thinks fit.
42. TRANSMISSION OF DOCUMENTS AND PROPERTY TO LIQUIDATOR’S SUCCESSOR.
(a) books, records, or documents of the company; and
(b) other property of the company; and
(c) all claims; and
(d) accounts and records of the liquidation,
in his possession, or under his control to the new liquidator.
43. FEES, EXPENSES AND REMUNERATION OF VACATING LIQUIDATOR.
(2) Where there are no available assets of the company from which to pay the vacating liquidator’s fees, expenses, and remuneration at the time the person vacates the office of liquidator, then the new liquidator shall pay such fees, expenses, and remuneration from the assets of the company as soon as it is practicable.
Division 6.
Miscellaneous Liquidation Provisions.
44. INITIAL REPORT OF LIQUIDATOR.
(a) the full names of the company officers; and
(b) the number of shares on issue by the company; and
(c) if the company has failed, the preliminary opinion of the liquidator as to the causes of the failure of the company; and
(d) whether, in the opinion of the liquidator, further inquiry is desirable as to any matter relating to the promotion, formation or failure of the company or the conduct of the business of the company; and
(e) the estimated amount of the assets and liabilities of the company; and
(f) any other information which, in the opinion of the liquidator, a creditor or shareholder would reasonably require.
45. SIX MONTHLY REPORT OF LIQUIDATOR.
(a) in relation to the liquidator–
(i) his full name; and
(ii) his office address and postal address; and
(iii) his telephone and facsimile number, and any other address for electronic communication; and
(b) the date of commencement of the liquidation; and
(c) an account of receipts and payments for the applicable period and an aggregate amount of receipts and payments during all preceding periods, and a statement of the position in the winding up; and
(d) details of dividends declared in respect of creditors during the winding up; and
(e) the estimated date of completion of the winding up; and
(f) details of any remuneration and expenses paid to the liquidator for the applicable period and an aggregate amount paid to the liquidator during all preceding periods; and
(g) the estimated amount of the assets and liabilities of the company; and
(h) any other information which, in the opinion of the liquidator, a creditor or shareholder would reasonably require.
46. DEFECT IN APPOINTMENT NOT TO INVALIDATE ACTS OF LIQUIDATOR.
47. DEPOSIT OF COMPANY FUNDS.
(a) a bank account to the credit of the company; or
(b) a trust account at a bank.
48. INVESTMENT OF FUNDS.
(2) All dividends, interest, and other profits from investments under this section shall from time to time as received be paid into the bank account or trust account kept by the liquidator under Section 47 of this Regulation.
49. LIQUIDATOR CARRYING ON BUSINESS.
50. SERVICE.
(2) Where the methods of service specified by the Act or the National Court Rules do not apply, then documents shall be served on persons in accordance with Section 435 of the Act as if the person is a creditor or shareholder.
PART VI. – MISCELLANEOUS.
51. COMMISSION PAYABLE TO REGISTRAR.
52. GENERAL PENALTY.
Penalty: A fine not exceeding K5,000.00.
53. PRESCRIBED INFORMATION FOR REGISTRATION OF OVERSEAS COMPANY.
(a) where the overseas company is carrying on, or intending to carry on business in Papua New Guinea, the date of commencement of carrying on business; and
(b) the principal activities, if any, of the overseas company; and
(c) the following information relating to the directors of the overseas company:–
(i) the residential and postal address of each director;
(ii) the date of birth of each director;
(iii) the nationality of each director; and
(d) the following information relating to the resident agent of the overseas company:–
(i) the residential address or address of the registered office, whichever is applicable, and the postal address of each resident agent;
(ii) the date of birth of each resident agent who is a natural person;
(iii) the nationality or country of incorporation, whichever is applicable, of each resident agent.
54. PRESCRIBED INFORMATION FOR ANNUAL RETURN OF OVERSEAS COMPANY.
(a) whether the overseas company carried on business in the country since the date of the last annual return, or in the case of the first annual return of the overseas company, the date of registration under the Act; and
(b) the principal activities of the overseas company; and
(c) the following information relating to the ten largest shareholders of the overseas company:–
(i) the name and residential address or address of the registered office, whichever is applicable, of each shareholder;
(ii) the number and class of shares held by each shareholder;
(iii) the date of birth of each shareholder who is a natural person;
(iv) the nationality or country of incorporation, whichever is applicable, of each shareholder; and
(d) the number of part time and full time employees of the overseas company in the country.
55. FINANCIAL STATEMENTS OF OVERSEAS COMPANY TO BE AUDITED.
(2) For the purposes of this section, the term “auditor’s report”, in relation to an overseas company, means a report by a person qualified for appointment as an auditor in accordance with Section 193 of the Act.
(3) The provisions of Section 200 of the Act shall apply, with such modifications as may be necessary, to the auditor’s report, as if the overseas company were a reporting company within the meaning of that section.
(4) An overseas company need not comply with this section if it is a overseas company that is, or is of a class that is, exempted from the requirements of this section by the Registrar by notice in the National Gazette.
PART VII. – TRANSITIONAL PROVISIONS.
56. REGISTRAR MAY EXTEND TRANSITIONAL PERIOD.
57. DEEMING PROVISIONS APPLYING TO REREGISTERED COMPANIES.
(a) any person holding office as a secretary of the company immediately before the company was deemed to be registered is a secretary of the company; and
(b) any person holding office as a manager of the company immediately before the company was deemed to be registered is a director of the company.
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