Registration of Business Names Act 2013

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Registration of Business Names Act 2013


Act 18 of 2013

C
T

REGISTRATION OF BUSINESS NAMES

ACT 2013





Registration of Business Names Act 2013 Arrangement of Sections





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Act 18 of 2013 Page 3




C
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REGISTRATION OF BUSINESS NAMES ACT 2013

Arrangement of Sections

Section

1 Short title and commencement............................................................................... 5
2 Interpretation .......................................................................................................... 5
3 Business name to be registered .............................................................................. 6
4 Exceptions to registration requirements ................................................................. 7
5 Registration by Nominee ....................................................................................... 8
6 Manner and Particulars of Registration ................................................................. 8
7 Effect of registration .............................................................................................. 9
8 Registration of changes .......................................................................................... 9
9 Consequences for noncompliance .......................................................................... 9
10 Register to be kept ............................................................................................... 10
11 Office of the Registrar ......................................................................................... 12
12 Notices from the Registrar ................................................................................... 12
13 Cessation of business .......................................................................................... 12
14 Removal from register by Registrar action .......................................................... 13
15 Duration and renewal of registration ................................................................... 13
16 Public inspection of documents registered .......................................................... 14
17 Publication of true names..................................................................................... 14
18 Service of legal documents .................................................................................. 14
19 Evidentiary matters .............................................................................................. 15
20 Registrar’s powers of inspection .......................................................................... 15
21 Regulations .......................................................................................................... 15
22 Repeal, savings and transitional ........................................................................... 16




Registration of Business Names Act 2013 Section 1





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C
T

REGISTRATION OF BUSINESS NAMES ACT 2013

Act 18 of 2013

AN ACT TO REPLACE THE REGISTRATION OF BUSINESS NAMES

ACT 2002

I assent,

TUPOU VI,

5
th
November 2013.

BE IT ENACTED by the King and Legislative Assembly of Tonga in the

Legislature of the Kingdom as follows:

1 Short title and commencement

(1) This Act may be cited as the Registration of Business Names Act 2013.

(2) This Act shall come into force on a date specified by the Minister by Notice

published in the Gazette

2 Interpretation

(1) In this Act unless the context otherwise requires-

“business” includes, but is not limited to, engaging in wholesale or retail

trade, the practice of a profession or occupation, soliciting or procuring

business from a person in the country, and provision of services, whether or

not for profit;

“business name” means a name other than the true name of a sole proprietor,

partnership, firm, company, incorporated society, other registered entity or

unincorporated collection of persons or entities, under which it conducts

business or holds itself out for business in the country, whether or not the

business is conducted for profit;

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“company” means any company formed or incorporated inside or outside the

country, and registered with the Registrar under the Companies Act 1995 (as

amended);

“firm” means an unincorporated body of persons (whether consisting solely

of individuals or of registered entities or partly of individuals and partly of

registered entities) associated together for the purpose of carrying on business,

whether or not for profit;

"initials" includes any recognized abbreviation of a name of a natural

individual;

"Minister" means the Minister responsible for the administration of this Act;

“Ministry” means the Ministry of Commerce, Tourism and Labour;

“person” means a natural individual, firm, partnership, company, overseas

company, incorporated society, other registered entity or unincorporated

collection of natural individuals or other entities;

“register” means the register of business names kept under this Act;

“registrant” means any person or persons that file an application for a

certificate of business name registration and thereafter any person or persons

listed on the certificate of business name registration as an owner of the

business name;

“Registrar" means the person appointed as Registrar of Business Names

under section 13 of this Act;

“signature” means in relation to any document to be submitted to or

produced from the Registrar, a tangible indication of assent to the document

to which it is attached, which need not be an original ink signature on paper

and may consist of entry of the signer’s name in an electronic form or a faxed

signature;

“true name” means: for a natural person, a name that includes the current

full name or the first name (or initial thereof) and surname of the natural

person; for a domestic company, the name on the current certificate of

incorporation; for a foreign company, the name on the current certificate of

registration; for an incorporated society or other publicly registered entity, the

name on the current registration document; for an unregistered partnership,

firm or other unregistered entity or association, a name that includes the name

of every partner or member.

3 Business name to be registered

(1) Any person or persons who intend to transact business in the country under a

business name shall, before beginning to transact business under the name,

obtain from the Registrar a certificate of business name registration.

Registration of Business Names Act 2013 Section 4





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(2) Any business name may be registered so long as the business name to be

registered:

(a) is not misleading, deceptive or offensive on its face;

(b) is not identical or almost identical to the name of another active local or

foreign company, association, business group, previously registered

active business name or active reservation of name;

(c) if the use of which would contravene any law or enactment; or

(d) does not seriously mislead the public about the nature of the business.

(3) A person or persons may conduct business under more than one business

name, provided that the use of multiple business names is not calculated to

mislead the public about the activities being conducted.

(4) A separate certificate of business name registration shall be obtained for each

business name used.

(5) Where a business name that could not be registered under this Act without

contravention of this section is registered through inadvertence or otherwise,

the Registrar shall send a notice to the registrant at the place shown in the

register as the principal place where business is carried on under that name

stating that the Registrar will cancel the registration of that name on the

expiration of a period of not less than one month from the date of the notice.

The registrant may file a certificate for a new business name or an amendment

changing the improperly issued business name. If the registrant fails to file an

amendment, then the Registrar shall cancel the registration of that business

name.

(6) The Registrar shall forgive any fee payable in respect of an application for the

registration of a new business name or an amendment of the existing name for

which a notice under subsection (5) was delivered to the registrant.

4 Exceptions to registration requirements

(1) Where the business is carried on by a trustee in bankruptcy or a receiver or

manager appointed by any court, registration under this Act shall not be

necessary.

(2) A purchase or acquisition of property by two or more persons as joint tenants

or tenants in common is not of itself to be deemed carrying on a business

under this Act whether or not the owners share any profits arising from the

sale thereof.

(3) Where the business is being carried on by a personal representative of a

deceased registrant solely for the purposes of winding up and closing the

business, an application for registration under this Act shall not be required of

the personal representative.

(4) Where the business conducted solely related to the hawking or selling of -

(a) fish;

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(b) agricultural produce; or

(c) native articles,

which are the produce of, or articles of Tonga, then registration under this Act shall

not be necessary.

5 Registration by Nominee

Where a person having a place of business within Tonga carries on the business

wholly or primarily as nominee or trustee of or for another person or other persons

that are the beneficial owners of the business, or acts as an agent for any person, the

true name of the person that is the beneficial owner of the business name shall be

registered in the manner provided by this Act and the regulations hereunder.

6 Manner and Particulars of Registration

(1) An application for a certificate of business name registration shall be

submitted to the Registrar prior to the commencement of business and shall be

on the prescribed form and accompanied by the prescribed application fee.

(2) The application shall include:

(a) the business name as it is to be used in the transaction of business;

(b) the true name and business address of each person who has an

ownership or other control interest in the business to be transacted

under the business name, provided:

(i) if the registrant is an entity registered with the Registrar of

Companies then only the name and registration number shall be

indicated;

(ii) if the registrant is a partnership or unregistered organization, the

true name and business address of each partner and managing

person shall be indicated;

(iii) if a person who has an ownership or other control interest in the

business is not resident in the country, then a copy of their

passport shall be provided.

(c) identification of the registrant as a natural individual, partnership, firm,

incorporated company, incorporated society, any other incorporated

entity or unincorporated entity, joint venture or other collection of

natural individuals;

(d) the principal business address at which business is to be conducted

under the business name, and if there are additional addresses at which

business is conducted under the same business name, all such addresses

shall be indicated;

(e) a general description of the type of business to be transacted under the

business name;

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(f) the date or proposed date of commencement of business in the country

under the business name, which date may not be more than three

months after the date of application for registration;

(g) the signature of an authorised person for the registrant; and

(h) such other particulars as set forth in the regulations.

7 Effect of registration

(1) Upon the issuance of a certificate of business name registration, the registrant

may conduct business under the business name.

(2) The issuance of a certificate of business name registration does not relieve a

registrant of any other obligation under the laws of the Kingdom.

(3) The issuance of a certificate of business name does not create a separate legal

entity.

8 Registration of changes

(1) If the identity or business address of any registrant changes, or if any address

at which business is conducted under the business name changes, or if the

certificate of business name registration becomes misleading in any other

way, the registrant shall, within 10 working days thereafter, register an

amendment of the certificate of business name registration in a form

prescribed by the Registrar together with the prescribed fee.

(2) The amendment shall include:

(a) the business name to which the amendment relates;

(b) the registration number of the certificate of business name registration

to be amended;

(c) a statement of the respect in which the certificate of business name

registration is to be amended; and

(d) the signature of an authorised person for the registrant.

9 Consequences for noncompliance

(1) Non-compliance with the registration requirements of this Act shall be held to

include, but not be limited to:

(a) the failure to obtain a certificate of business name registration when

required to do so;

(b) providing or authorizing the providing of false, misleading or

incomplete information in an application for certificate of business

name or amendment thereto;

(c) the failure to identify a beneficial owner of a business as required under

section 6 of this Act; or

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(d) the failure to amend a certificate of business name registration when

required to do so.

(2) Any person who transacts business in the country under a business name

without having complied with the requirements of this Act shall not be

entitled to maintain any legal action in the courts of this country until the

person has obtained a certificate of business name registration.

(3) Noncompliance with this Act does not operate to void an agreement,

transaction or act of any person.

(4) Any person who suffers a loss because of another person's noncompliance

with the requirements of this Act shall be entitled to recover for their loss in

the amount of the loss, and attorney fees and costs incurred in connection with

recovery for the loss suffered.

(5) When the Registrar reasonably determines that a person may be carrying on

business in noncompliance with this Act, the Registrar shall send a notice to

such person requiring them to cease and desist from carrying on business until

such time as the person is in compliance with this Act. If the noncompliance

with this Act continues for more than five (5) days after receipt of the notice

from the Registrar, the person is liable hereunder –

(a) for a first act of noncompliance to a fine not exceeding $20 per day the

noncompliance continues; or

(b) for a second or subsequent act of noncompliance, to a fine of an amount

not exceeding $100 per day that the noncompliance continues and,

upon conviction, to a term of imprisonment for a period not exceeding

1 month.

(6) A person commits a separate offence if their noncompliance with this Act was

intentionally committed to deceive or defraud the public in any manner and

shall be liable upon conviction to a fine not exceeding $10,000 or

imprisonment for a term not exceeding 1 year, or both.

(7) Where a person guilty of an offence against this Act is–

(a) a corporation; or

(b) a person who purported to act for or on behalf of a corporation,

each director or other officer of the corporation who was knowingly a party to

the offence is also guilty of the offence.

10 Register to be kept

(1) The business names register may be kept in such manner as the Registrar

thinks fit including, either wholly or partly, by means of a device or facility –

(a) that records or stores information electronically or by other means; and

(b) that permits the information so recorded or stored to be readily

inspected or reproduced in usable form.

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(2) Documents may be submitted to the Registrar in any media permitted by the

Registrar, including electronic media.

(3) On receipt of a document for registration under this Act, the Registrar shall -

(a) subject to subsection (4), register the document in the register; and

(b) give written advice of the registration to the person from whom the

document was received.

(4) If a document received by the Registrar for registration under this Act -

(a) is not in the prescribed form, if any;

(b) does not comply with this Act or regulations made under this Act;

(c) is not printed or typewritten;

(d) where the register is kept wholly or partly by means of an electronic

device or facility, is not in a form that enables particulars to be entered

directly by electronic or other means in the device or facility;

(e) has not been properly completed; or

(f) contains material that is not clearly legible -

the Registrar may refuse to register the document, and in that event, shall

request either -

(i) that the document be appropriately amended or completed and

submitted for registration again; or

(ii) that a fresh document be submitted in its place.

(5) For the purposes of this Act, a document is registered when the document

itself or its particulars are entered into the registry.

(6) Neither registration nor refusal of registration of a document by the Registrar

affects, or creates a presumption as to the validity or invalidity of the

document or the correctness or otherwise of the information contained therein.

(7) The Registrar may, on evidence which to the Registrar appears sufficient,

correct an error in an entry in the register or in a certificate of business name

registration.

(8) When correcting an error under this section, the Registrar shall not eliminate

or render illegible the original words, and shall indicate in the register the date

upon which the correction was made.

(9) An entry or certificate corrected under this section has the same validity and

effect as though the error had not been made.

(10) The Registrar may accept and register a statement lodged to correct an error

in, or to supply a particular omitted from, a statement previously lodged and

registered and, in that event, the statement previously lodged and that lodged

under this section shall be read as one and shall both be incorporated with and

form part of the register.

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11 Office of the Registrar

(1) The chief executive officer of the Ministry shall be the Registrar responsible

for the issuing of business name certificates under this Act.

(2) The chief executive officer may delegate, in writing, any of his powers under

this Act to one or more officers in the Ministry.

12 Notices from the Registrar

(1) A notice that the Registrar is required or permitted by this Act to give shall be

given in writing and in a manner that the Registrar considers appropriate in

the circumstances.

(2) Without limiting subsection (1), the Registrar may give notice in writing to

any person by-

(a) having it delivered to that person;

(b) posting it, or delivering it by courier, to that person at that person’s last

known address;

(c) sending it by facsimile machine to a telephone number used by that

person for transmission of documents by facsimile;

(d) sending it to an email address if such an email address has been

provided to the Registrar by a registrant; or

(e) having it published in a newspaper or other publication in circulation in

the area where that person lives or is believed to live.

(3) A document that -

(a) appears to be a copy of a notice given by the Registrar; and

(b) is certified by the Registrar, or by a person authorised by the Registrar,

as having been derived from a device or facility that records or stores

information electronically or by other means,

shall be admissible in legal proceedings as a copy of the notice.

13 Cessation of business

(1) If any registrant ceases to carry on business it shall be the duty of the

registrant to deliver to the Registrar a notice of cessation of business in the

prescribed form within one month from the date of cessation of carrying on

business.

(2) If the registrant is an individual and if such individual is deceased, it shall be

the duty of the personal representative to deliver to the Registrar a notice of

cessation within one month from the date of cessation of carrying on business.

(3) The Registrar may on reasonable grounds being shown extend the time to

deliver a notice of cessation of business as the Registrar thinks fit.

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(4) On receipt of the notice under subsection (3), the Registrar shall remove the

business name from the register.

(5) If any person whose duty it is to give such notice fails to do so within such

time or any extension thereof, such person shall, in addition to any other fees

payable to the Registrar, be charged a late fee as may be prescribed in the

regulations.

14 Removal from register by Registrar action

(1) Where the Registrar has reasonable cause to believe that any registrant under

this Act is not carrying on business the Registrar may send to the registrant a

notice that, unless an answer is received to such notice within 10 working

days from the date thereof, the business name shall be removed from the

register.

(2) If having sent notice under subsection (1) the Registrar either receives an

answer from the registrant to the effect that the firm or individual is not

carrying on business or does not within one 10 working days after sending the

notice receive an answer, the Registrar may remove the business name from

the register.

15 Duration and renewal of registration

(1) Subject to this Act, the certificate of business name registration remains in

force for a period of one year, but the registration may from time to time be

renewed by lodging with the Registrar, at any time within the period of one

month before the expiry of the registration, a statement of renewal in the

prescribed form signed by an authorised person and accompanied by the

prescribed fee.

(2) Before the expiration of the certificate of business name, but not earlier than

two months before the expiration, the Registrar may deliver to the registrant a

notice of expiration containing the date on which the registration is due to

expire.

(3) The failure by the Registrar to deliver a notice of expiration shall not relieve

the registrant from the duty to file a statement of renewal.

(4) If a statement of renewal is submitted after its due date, then in addition to the

regular filing fee, the statement shall be accompanied by an additional late

filing fee as prescribed in the regulations. If a statement has not been filed

within two months of its due date, then the business name shall be cancelled

by the Registrar.

(5) If after cancellation of a business name under this section a registrant may file

an application for reinstatement of business name notice and pay the

prescribed filing fee together with all additional late fees and penalties as

prescribed in the regulations, then the Registrar shall reinstate the business

name. A business name reinstated pursuant to this section shall be deemed to

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have remained valid for any period in which it was cancelled for the failure to

file the statement of renewal in a timely manner. In no event shall an

application for reinstatement be permitted where the statement of renewal has

not been filed within two months of the date it was due.

(6) Where the certificate of business name registration has expired, the Registrar

shall not accept for registration from any person or persons, other than the

registrant, a company or business name that is identical with that cancelled

business name, or that in the opinion of the Registrar so nearly resembles it as

to be calculated to deceive, until the expiration of two months after the expiry

of the certificate of business name registration.

16 Public inspection of documents registered

(1) Any person may inspect the documents filed with the Registrar on payment of

such fees as may be prescribed for each inspection and any person may

require a certificate of the registration of any business name, or a copy of or

extract from the registered statement to be certified by the Registrar, and there

shall be paid for such certificate of registration, certified copy or extract such

fees as may be prescribed.

(2) The Registrar may make the register or any part thereof available to the public

via electronic means.

17 Publication of true names

(1) Where a business name is registered under this Act, the registrant shall ensure

that the business name so registered shall be clearly stated:

(a) in every written communication sent by, or on behalf of, the business;

and

(b) in every document issued or signed by, or on behalf of, the business

that evidences or creates a legal obligation of the registrant.

(2) The business name shall at all times be displayed in a conspicuous position at

every place at which business is carried on under that name.

(3) A registrant commits an offence for noncompliance with this section unless

such registrant proves that he took reasonable steps to ensure compliance and

shall be liable upon conviction to a fine not exceeding $10,000 or

imprisonment for a term not exceeding six months, or both.

18 Service of legal documents

Service of writs, summonses, complaints and other legal documents and instruments

on any registrant or registrants acting in such capacity under a business name

registered under this Act shall be made in accordance with the applicable law

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governing service of legal documents on the particular type of registrant to be

served.

19 Evidentiary matters

A document purporting to be–

(a) a certificate of business name registration issued under this Act;

(b) a copy of or extract from the register, or a copy of or extract from a document

forming part of the register, issued under this Act;

(c) a certificate issued under this Act; or

(d) a combination of two or more of the certificates, copies or extracts referred to

in paragraphs (a), (b) and (c),

is, in all courts and before all persons having authority to hear, receive and examine

evidence, prima facie evidence of any matter contained or set out in the certificate,

copy or extract.

20 Registrar’s powers of inspection

(1) The Registrar may, by written notice, require any person to furnish within a

period of not less than ten days as specified in such notice, or within such

further period as the Registrar (before the expiration of that period) allows,

such information as appears to the Registrar to be reasonably necessary to

enable the Registrar to ascertain whether or not a person–

(a) is carrying on business alone or in association with other persons under

a business name that has not been registered as required under this Act;

or

(b) has failed to lodge with the Registrar an amendment to an existing

certificate of business name registration as required under this Act.

(2) A person required under subsection (1) to furnish information to the Registrar

who, within the period specified in the notice, or within such further period as

the Registrar allows, fails to furnish such information as is within their power

to furnish, or furnishes any information which to their knowledge is false or

misleading, commits an offence and shall be liable upon conviction to a fine

not exceeding $100 for each day the noncompliance continues or

imprisonment for a term not exceeding six months, or both.

21 Regulations

The Minister may, with the consent of Cabinet make regulations concerning any of

the following matters but not limited to-

(a) fees, late fees and penalties payable under this Act;

(b) forms to be used under this Act;

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(c) duties to be performed by the Registrar under this Act; and

(d) generally the conduct and regulation of registration under this Act and any

matters incidental thereto, including the maintenance of the registry in any

media deemed appropriate by the Registrar.

22 Repeal, savings and transitional

(1) The Registration of Business Names Act 2002 is hereby repealed.

(2) Every existing registrant shall apply for re-registration under this Act no later

than 3 months from the date of the commencement of this Act.

(3) Any existing business name that is not re-registered under this Act pursuant to

subsection (2) will be removed from the register.

(4) The re-registration of an existing business name under this section does not–

(a) create a new legal entity;

(b) affect the property, rights, liabilities or obligations of the registrant; or

(c) affect proceedings by or against the registrant.

(5) An application for re-registration of an existing business name shall be made

to the Registrar in the prescribed form.

(6) If the business name does not appear on the existing register, the registrant

shall provide evidence to the Registrar that the company is in existence in

order to re-register. A certificate of business name registration previously

issued by the Registrar shall serve as conclusive evidence of the existence of

the business name to be re-registered.

(7) As soon as the Registrar receives an application for re-registration the

Registrar shall:

(a) if the business name is not entered on the register, enter it on the

register; and

(b) issue a certificate of re-registration of business name in the prescribed

form.






Passed by the Legislative Assembly this 22
nd

day of August 2013.

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