Company Law Reform (Transitional Provisions) Act

Link to law: http://www.palemene.ws/new/wp-content/uploads/01.Acts/Acts%202006/Company_Law_Reform_Transitional_Provisions_Act_2006_-_Eng.pdf
Published: 2006

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Arrangement of Provisions
1. Short title
2. Commencement
3. Acts amended
4. Transitional provisions
5. Regulations
Schedule – Acts amended

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2006, No. 17
AN ACT to amend various Acts consequent upon the
enactment of the Companies Act 2001 and certain other
Acts and provide for certain transitional and savings
arrangements. [04th
December 2006]
BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:
1. Short title - This Act may be cited as the Company Law
Reform (Transitional Provisions) Act 2006.

2. Commencement-(1) This Act comes into force on the
commencement of the Companies Act 2001.
(2) Notice of commencement of this Act shall be published
in Samoan and English in the Savali and one other newspaper
circulating in Samoa.
2006, No.17 Company Law Reform 13
(Transitional Provisions) Act

3. Acts amended - The Acts specified in the Schedule are
amended in the manner indicated in that Schedule.
4. Transitional provisions-(l) Every reference in any
enactment to a company incorporated under the Companies Act
1955 or to which that Act applies is, unless the context
otherwise requires, to be read as including a company registered
under the Companies Act 2001 or to which that Act applies.
(2) Every reference in any enactment to a provision of the
Companies Act 1955 is, unless the context otherwise requires,
to be read and construed as a reference to the corresponding
provision of the Companies Act 2001 or the Receiverships Act
2006 or the Securities Act 2006, as the case may be.
5. Regulations-(1) Subject to subsection (2), the Head of
State, acting on the advice of Cabinet, may make regulations
prescribing transitional and savings provisions relating to the
coming into force of the Companies Act 2001 or the
Receiverships Act 2006 or the Securities Act 2006, as the case
may be, and any such regulations may provide that, during a
specified transitional period and subject to any conditions that
are specified in the regulations:
(a) specified provisions of any of those Acts amended by
this Act do not apply in the circumstances
specified in the regulations; or
(b) specified provisions of any of those Acts amended
by this Act apply with any modifications that
may be set out in the regulations in the
circumstances specified in .the regulations.
(2) Any regulations under subsection (1) must be made
before the close of the transition period (as defined in section
333(7) of the Companies Act 2001), and any regulations so
made expire on a date specified in the regulations that is not
later than 2 years after the date on which the regulations are
made.

14 Company Law Reform 2006, No.17
(Transitional Provisions) Act
SCHEDULE
s.3

Acts amended

Insurance Act 1976
Insert after section 6(1)(c):

“(d) if the applicant is a company registered under the
Companies Act 2001:
(i) the shareholders of the applicant must
not agree to the financial statements of the
applicant being completed more than 5
months after the balance date of the
applicant; and
(ii) the rules of the applicant must require
an auditor to be appointed.”

Insert after section 8:

“8A Interpretation - In sections 8A, 8B, and 8C of this Act,
unless the context otherwise requires:
“company”:
(a) means a company within the meaning of the
Companies Act 1955 or the Companies Act 2001,
as the case may be; and
(b) includes an overseas company;
“director”, in relation to:
(a) a company, includes:
(i) any person occupying the position of
director by whatever name called; and
(ii) a person in accordance with whose
instructions the persons occupying the
position of directors of the company are
accustomed to act;
(b) an overseas company, includes an agent, officer, or
employee responsible in Samoa for the business
of the overseas company;
2006, No.17 Company Law Reform 15
(Transitional Provisions) Act

“net assets”, in relation to a company, means net assets clear
of all claims or demands or other liabilities for the time
being due or pending or enforceable against the
company, not being contingent liabilities arising out of
or in relation to the insurance business of the company;
“overseas company” means a company incorporated outside
Samoa;
“shareholder” includes a member of a company within the
meaning of the Companies Act 1955.

8B Net assets required for companies carrying on
insurance business-(1) Subject to the exceptions set out in
subsection (2), a company must not carry on insurance business
in Samoa if its net assets are less than $100,000.
(2) The exceptions referred to in subsection (1) are as
follows:
(a) a company whose net assets are not less than $50,000
may carry on insurance business in Samoa, but
only for a period of 8 months from the date of its
registration, after which time the company must
not carry on insurance business in Samoa if its
net assets are less than $100,000:
(b) despite anything to the contrary in subsection (1) or
paragraph (a), a company whose net assets are
not less than $50,000 may carry on the business
of insuring the property of its shareholders.
(3) If a company carries on insurance business in
contravention of subsections (1) or (2):
(a) the shareholders of the company are liable for all
obligations incurred or entered into by the
company during the time of the contravention
despite any limitation of liability in any other
enactment or in the rules or equivalent document
of the company; and
(b) the company commits an offence and is liable on
conviction to a fine not exceeding 100 penalty
units; and

16 Company Law Reform 2006, No.17
(Transitional Provisions) Act

(c) every director of the company commits an offence
and is liable on conviction to a fine not
exceeding 100 penalty units.
(4) It is a defence to a director charged with an offence
against subsection (3)(c) if the director proves that -
(a) the director did not, and could not reasonably have
been expected to, know of the contravention; or
(b) the director took all reasonable steps to ensure that
the requirements of that subsection would be
complied with.

8C Application for shares not to be contained in
proposal for insurance-(1) A form of proposal for insurance
that contains or appears to be an application for membership of,
or shares in, a company must not be issued by or on behalf of
the company.
(2) If any person makes a proposal for insurance to a
company, the company must not allot shares to that person or
admit that person as a member or shareholder without first
receiving an application for membership or shares that is
contained in a document separate from the proposal for
insurance.
(3) If a company does not comply with this section:
(a) the company commits an offence and is liable on
conviction to a fine not exceeding 100 penalty
units; and
(b) every director of the company commits an offence
and is liable on summary conviction to a fine not
exceeding 100 penalty units.
(4) It is a defence to a director charged with an offence
against subsection (3)(b) if the director proves that:
(a) the company took all reasonable and proper steps to
ensure that the requirements of this section
would be complied with; or
(b) the director took all reasonable steps to ensure that
the company complied with the requirements of
this section; or
2006, No.17 Company Law Reform 17
(Transitional Provisions) Act

(c) in the circumstances, the director could not have
reasonably been expected to take steps to ensure
that the company complied with the require-
ments of this section.
(5) Nothing in this section affects the validity of a policy of
insurance or an admission to membership, or an allotment of
shares, of a company.”
Repeal section 10 and insert the following:

10 Interpretation - In sections l0A to 10C, unless the
context otherwise requires:
“company” means a company within the meaning of the
Companies Act 1955 or the Companies Act 2001, as the
case may be;
“insurance company” means any company, overseas
company, or other body corporate or unincorporate, that
is or has been carrying on insurance business in Samoa;
“overseas company” means a company incorporated outside
Samoa.

10A Courts orders for contravention of insurance
company’s licence, etc-(1) The Minister may apply to the
Supreme Court for any of the orders specified in subsection (2)
if it is proved by the Minister to the satisfaction of the Supreme
Court that an insurance company:
(a) has contravened any condition of the insurance
company’s licence; or
(b) has failed or refused to comply with any direction or
other requirement of this Act or any regulation
made under this Act; or
(c) is likely to be unable to fulfil any of the obligations
incurred by the insurance company in the course
of its insurance business.
(2) The orders referred to in subsection (1) are as follows:
(a) an order that the licence of the insurance company be
cancelled;
18 Company Law Reform 2006, No.17
(Transitional Provisions) Act

(b) an order that the licence of the insurance company be
suspended until, on further application to the
Supreme Court by the insurance company, the
insurance company satisfies the Supreme Court
that the suspension should be revoked;
(c) an order that the insurance company be wound up or
put into liquidation.

10B Insurance companies that are wound up or put into
liquidation-(1) Subject to subsection (2), subpart 3 of Part 9 of
the Companies Act 2001 applies, with the necessary
modifications, to an insurance company to which a liquidator is
appointed on the application of the Minister under section
10A(2)( c) as if references to:
(a) a company registered or incorporated under the
Companies Act 2001 included a reference to an
insurance company; and
(b) a director included references to any person
occupying the position of a director by whatever
name called; and
(c) shareholders or to persons entitled to surplus assets
under the rules of a company and the Companies
Act 2001, were references to persons that the
Supreme Court may determine to be justly
entitled to any surplus assets after the
satisfaction of the claims of all creditors.
(2) If the Supreme Court makes an order appointing a
liquidator of an insurance company, the Supreme Court may
make the appointment on any conditions that it thinks fit, and
may limit or exclude the exercise of any power that would
otherwise be conferred on the liquidator under the Companies
Act 2001.
(3) Regulations made under the Companies Act 2001 may
regulate the practice and procedure to be followed in respect of
the liquidation of an insurance company on the application of
the Minister under section 10A(2)(c).
2006, No.17 Company Law Reform 19
(Transitional Provisions) Act

(4) Despite anything to the contrary in the Companies Act
2001, no insurance company that is liable under any life policy
may be put into liquidation by:
(a) a special resolution of those shareholders entitled to
vote on the question; or
(b) the directors of the company on the occurrence of an
event specified in the rules or equivalent
document of the insurance company.

10C Evidential matters concerning Court orders under
section 10A-(1) Despite any other Act or rule of law, the
following are admissible as evidence at the hearing of an
application under section 10A(1):
(a) a report prepared by a person in relation to an
inspection carried out by that person under section
9(a);
(b) a report by an auditor under section 9(b);
(c) any information provided to the Minister under
section 9(c);
(d) any accounts, books, papers, records or other
documents lodged with the Minister under any
regulations made under this Act or kept or
prepared under sections 129 and 130 of the
Companies Act 2001, as the case may be.
(2) At a hearing of an application under section 10A(1),
evidence that an insurance company was unable to fulfil its
obligations at the end of the period to which the most recent
audited statement of financial position of the insurance
company provided to the Minister under section 9(a) or under
any regulations made under this Act or prepared under section
130 of the Companies Act 2001, as the case may be, is evidence
that the insurance company continues to be unable to fulfil its
obligations unless the contrary is proved by the insurance
company.”
20 Company Law Reform 2006, No.17
(Transitional Provisions) Act


Stamp Duty Ordinance 1932
Insert after section 3(3):

“(4) To avoid doubt, no stamp duty shall be charged in
respect of any application for incorporation of a company
under the Companies Act 2001, or in respect of any rules of
incorporation adopted by a company under that Act,
whether at the time of incorporation or otherwise.”

Add to the List of Exemptions in paragraph 1 of the Schedule,
after paragraph (d):

“(e) Company Charges -
(i) any charge document within the
meaning of clause 1 of Schedule 1 of the
Companies Act 2001 applies;
(ii) any priority document within the
meaning of clause 1 of Schedule 1 of the
Companies Act 2001;
(iii) any alteration document within the
meaning of clause 1 of Schedule 1 of the
Companies Act 2001.
Nothing in this paragraph exempts a mortgage of land,
variation of priority of mortgage of land, or a variation or
release of a mortgage of land from liability for duty.”

Repeal paragraph 9 of the Schedule.

Add to the List of Exemptions, in paragraph 11 of the Schedule
after paragraph (d):

“(e) Company Charges -
(i) any charge document within the
meaning of clause 1 of Schedule 1 of the
Companies Act 2001:


2006, No.17 Company Law Reform 21
(Transitional Provisions) Act

(ii) any priority document within the
meaning of clause 1 of Schedule 1 of the
Companies Act 2001:
(iii) any alteration document within the
meaning of clause 1 of Schedule 1 of the
Companies Act 2001.
Nothing in this paragraph exempts a mortgage, variation of
priority of mortgage, or a variation or release of a mortgage
from liability for duty.”


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The Company Law Reform (Transitional Provisions) Act 2006 is
administered in the Ministry of Commerce, Industry and Labour.






















Printed by tle Clerk of the Legislative Assembly,
by authority of the Legislative Assembly.