NIUE LAWS, VOLUME 1

NIUE LAWS

TAU FAKATUFONO-TOHI A NIUE

LEGISLATION AS AT DECEMBER 2006

VOLUME 1 TOHI 1

CONSTITUTION

STATUTES

A – COMPANIES

GOVERNMENT OF NIUE, ALOFI

2006

Copyright 2006 All rights reserved

Enquiries concerning the copyright material

should be addressed to the

Crown Law Office, Alofi, Niue

Compiled in the Faculty of Law, Victoria University of Wellington

by Professor AH Angelo with the assistance of Nicola Scott

Printed by Stylex Print, Palmerston North, New Zealand

FAKATUFONO NIUE FOREWORD

It is with considerable pride that I present this consolidated collection of the laws of

Niue to the Speaker and Members of the Assembly, to the members of the Niue

Public Service, to my colleagues in Government, and to the people of Niue.

This is the first ever statement of Niue's identity through a collection of its contemporary law. Following the enactment of the Constitution in 1974, most of our laws continued in their pre-1974 form without adaptation to the changed status of Niue. The passage of time has shown many of those laws to be irrelevant, inappropriate or difficult of interpretation.

We now have in these volumes a statement which reflects our current situation: the references are to Niue officials and to Niue institutions. We now have a clear basis from which to move for reform of our laws.

Members of the Assembly need no longer be in doubt as to what is the law of Niue and what is not. To the extent that what is in. these volumes is considered inappropriate to Niue in the 21st century, it is for Government, the Members of Assembly, and the nation as a whole to make reforms to reflect what is appropriate.

Getting to this stage has been made possible by grants of assistance from NZAID and by the volunteer effort of many people both in Niue and in New Zealand. I wish to record our sincere thanks to those who have participated in this project and contributed to its success. To name a few: Togia Sioneholo who oversaw the initiation of the Niue Legislation Review, to Peleni Talagi who guided the major law revision Bills through the legislative process, to Sinahemana Hekau who has managed the project through to its completion, and to Professor Angelo and his team.

The laws in these volumes have been prepared and printed under the Reprint of Statutes Act 1991 and, consistent with Cabinet decision, have the status accorded by that Act

I commend this collection of laws of Niue to all concerned with the administration

- a....w_

of Niue, and celebrate it as a signal of our nationhood.

Niue Laws 2006 Voll

CONTENTS

Foreword ................................................................................................................ iii

Editorial Note ........................................................................................................ xi

VOLUME ONE

PART 1 – LEGISLATION TABLES

Table of Constitutional Instruments .................................................................. xv

Table of Acts in Force ........................................................................................... xvii

Chronological Table of Statutes .......................................................................... xxxi

Table of Subsidiary Legislation in Force ............................................................ xlv

Chronological Table of Subsidiary Legislation ................................................. lv

CONSTITUTIONAL INSTRUMENTS
Constitution of Niue ............................................................................................. 1
Ko e Fakatufono-Tohi Fakave A Niue ................................................................ 29
Niue Constitution Act 1974 ................................................................................. 63
Letters Patent Constituting the Office of Governor-General of New Zealand 65
Seal of New Zealand Proclamation .................................................................... 71

ACTS

Administration Act 1969 ...................................................................................... 73

Adoption Act 1955 ................................................................................................ 99

Agriculture Quarantine Act 1984 ....................................................................... 103

Appropriation (Annual) Act 2006 ...................................................................... 111

Arbitration Act 1908 ............................................................................................. 117

Arbitration Amendment Act 1938 ...................................................................... 123

Arbitration Clauses (Protocol) and the Arbitration (Foreign Awards)

Act 1933 ............................................................................................................. 129

Archives Act 1992 ................................................................................................. 135

Arms Act 1975 ....................................................................................................... 141

Assembly Members’ Superannuation Act 1984 ............................................... 151

Atomic Energy Act 1945 ...................................................................................... 153

Aviation Crimes Act 1973 .................................................................................... 159

Bills of Exchange Act 1908 ................................................................................... 167

Broadcasting Act 1989 .......................................................................................... 195

Building Code Act 1992 ....................................................................................... 207

Business Licence Act 1997 ................................................................................... 215

Carriage by Air Act 1992 ...................................................................................... 223

Census Act 1971 .................................................................................................... 227

Chattels Transfer Act 1924 ................................................................................... 233

Cheques Act 1960 .................................................................................................. 257

Child Allowance Act 1995 ................................................................................... 259

Citizenship Act 1977 ............................................................................................. 263

Civil Aviation Act 1999 ......................................................................................... 283

Civil List Act 1999 ................................................................................................. 305

Commissions of Inquiry Act 1968 ...................................................................... 309

Communications Act 1989 ................................................................................... 313

Companies Act 2006 ............................................................................................. 325

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Niue Laws 2006 Vol 1

VOLUME TWO

Constitutional Polls Act 1977 .................................................................................. 585
Consular Privileges and Immunities Act 1971 ..................................................... 587
Continental Shelf Act 1964 ...................................................................................... 613
Crimes against Internationally Protected Persons and Hostages Act 1984 ...... 617
Crown Proceedings Act 1950 .................................................................................. 625
Customs Act 1966 ..................................................................................................... 641
Customs Tariff Act 1982 ........................................................................................... 717
Deaths by Accidents Compensation Act 1952 ...................................................... 719
Departure Tax Act 1996 ............................................................................................ 727
Development Investment Act 1992 ........................................................................ 729
Diplomatic Privileges and Immunities Act 1968 .................................................. 743
Dogs Act 1966 ............................................................................................................ 761
Domestic Fishing Act 1995 ...................................................................................... 769
Education Act 1989 ................................................................................................... 777
Electric Power Supply Act 1960 .............................................................................. 793
Entry, Residence and Departure Act 1985 ............................................................. 799
Environment Act 2003 .............................................................................................. 809
Extradition Act 1965 ................................................................................................. 821
Film and Public Entertainment Act 1979 ............................................................... 823
Financial Transactions Reporting Act 2006 ........................................................... 837
Fireworks Act 1958 ................................................................................................... 859
Food Control Act 1981 .............................................................................................. 861
Fugitive Offenders Act 1881 .................................................................................... 869
General Agreement on Tariffs and Trade Act 1948 .............................................. 871
General Laws Act 1968 ............................................................................................. 873
Geneva Conventions Act 1958 ................................................................................ 877
Government Loans Act 1980 ................................................................................... 885
Guardianship Act 1968 ............................................................................................. 891
Income Tax Act 1961 ................................................................................................. 901
Incorporated Societies Act 1908 .............................................................................. 965
Inquest Act 1964 ........................................................................................................ 977
International Finance Agreements Act 1961 ......................................................... 989
International Finance Agreements Amendment Act 1966 .................................. 995
Interpretation Act 2004 ............................................................................................. 999
Land Act 1969 .......................................................................................................... 1009
Liquor Act 1975 ....................................................................................................... 1025
Manufactured Goods Tax Act 1964 ...................................................................... 1031
Marine Insurance Act 1908 .................................................................................... 1035
Mercantile Law Act 1908 ....................................................................................... 1059
Merchandise Marks Act 1954 ................................................................................ 1073
Mining Act 1977 ...................................................................................................... 1085
Minors’ Contracts Act 1969 ................................................................................... 1097
Misuse of Drugs Act 1975 ...................................................................................... 1103
Misuse of Drugs Act 1998 ...................................................................................... 1103
Mosquito Control Act 1980 .................................................................................... 1105
Mutual Assistance in Criminal Matters Act 1998 ............................................... 1107
vi

VOLUME THREE

National Disaster Relief Fund Act 1980 ............................................................... 1133
New Zealand Representative Act 1981 ................................................................ 1135
Niue Act 1966 .......................................................................................................... 1139
Niue Amendment Act 1968 (No 2) ....................................................................... 1231
Niue Assembly Act 1966 ........................................................................................ 1253
Niue Bank Act 1994 ................................................................................................ 1297
Niue Certification Authority Act 1978 ................................................................. 1333
Niue Cultural Council Act 1986 ............................................................................ 1335
Niue Development Bank Act 1993 ....................................................................... 1339
Niue Development Bonds Act 1994 ..................................................................... 1355
Niue Flag Act 1975 .................................................................................................. 1365
Niue Philatelic and Numismatic Act 1996 .......................................................... 1367
Niue Trust Fund Act 2004 ...................................................................................... 1371
Occupiers Liability Act 1962 ................................................................................. 1373
Partnership Act 1908 .............................................................................................. 1377
Partnership Application Act 1994 ......................................................................... 1391
Pensions and Benefits Act 1991 ............................................................................. 1399
Pesticides Act 1991 .................................................................................................. 1405
Pig Control Act 1998 ............................................................................................... 1411
Price Control on Imported Goods for Resale in Niue Act 1975 ....................... 1417
Proceeds of Crime Act 1998 ................................................................................... 1421
Property Law Act 1952 ........................................................................................... 1459
Public Emergency Act 1979 ................................................................................... 1487
Public Health Act 1965 ........................................................................................... 1491
Public Notaries Act 1998 ........................................................................................ 1511
Public Revenues Act 1959 ...................................................................................... 1513
Public Service Savings and Loan Society Act 1980 ............................................ 1525
Race Relations Act 1972 ......................................................................................... 1535
Reprint of Statutes Act 1991 .................................................................................. 1543
Royal Titles Act 1974 .............................................................................................. 1545
Sale of Goods Act 1908 ........................................................................................... 1547
Seal of New Zealand Act 1977 .............................................................................. 1563
Territorial Sea and Exclusive Economic Zone Act 1997 .................................... 1565
Terrorism Suppression and Transnational Crimes Act 2006 ............................ 1587
Tourist Authority Act 1995 .................................................................................... 1607
Transport Act 1965 .................................................................................................. 1615
Trustee Act 1956 ...................................................................................................... 1651
Trustee Companies Act 1994 ................................................................................. 1699
Trusts Act 1994 ........................................................................................................ 1701
United Nations Act 1946 ........................................................................................ 1729
Village Councils Act 1967 ...................................................................................... 1731
Visiting Forces Act 1939 ......................................................................................... 1747
Water Resources Act 1996 ...................................................................................... 1753
Wildlife Act 1972 ..................................................................................................... 1767
Wills Act 1837 .......................................................................................................... 1771
Wills Act Amendment Act 1852 ............................................................................ 1779
Wreck and Salvage Act 1968 .................................................................................. 1781
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Niue Laws 2006 Vol 1

VOLUME FOUR

CONSTITUTION OF NIUE

Niue Assembly Standing Orders .......................................................................... 1
Public Service Regulations .................................................................................... 26

AGRICULTURE QUARANTINE ACT 1985

Animal Quarantine (Disease Control) Regulations ........................................... 49
Agricultural Quarantine Phytosanitary Certificates (Fees) Regulations ........ 52
Animal Quarantine (Fees) Regulations ............................................................... 52
Agricultural Quarantine (Prevention of Animal Disease) Regulations .......... 53
Plant Quarantine Regulations ............................................................................... 57

ARMS ACT 1974

Arms Registration (Fees) Regulations ................................................................. 67

BROADCASTING ACT 1989

Broadcasting Regulations ...................................................................................... 69

BUILDING CODE ACT 1992 .............................................................................. 73

BUSINESS LICENCE ACT 1997

Business Licence Regulations ............................................................................... 75

CHATTELS TRANSFER ACT 1924

Chattels Transfer Fees Regulations ...................................................................... 77

CHILD ALLOWANCE ACT 1995

Child Allowance (Fees) Regulations .................................................................... 79

CIVIL AVIATION ACT 1999 ............................................................................... 81

COMMUNICATIONS ACT

Radio Regulations ................................................................................................... 83
Telephone Regulations ........................................................................................... 108

CUSTOMS ACT 1966

Customs Regulations ............................................................................................. 123
Export Licences Regulations ................................................................................. 157
Export Prohibition Regulations ............................................................................ 160
Import Prohibition (Insecticides) Order .............................................................. 161
Import Prohibition (Offensive Weapons) Order ................................................ 161
Port and Service Tax Regulations ......................................................................... 162

CUSTOMS TARIFF ACT 1982

Customs Tariff (General Amendments) Regulations ........................................ 163
Customs Tariff (Reduction and Elimination of Tariffs) Regulations ............... 164

DEPARTURE TAX ACT 1996

Departure Travel Tax Regulations ........................................................................ 167

DIPLOMATIC PRIVILEGES AND IMMUNITIES ACT 1968 ..................... 169

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Contents

DOGS ACT 1966

Dogs (Fees) Regulations ........................................................................................ 171

DOMESTIC FISHING ACT 1995

Domestic Fishing Regulations .............................................................................. 173

ENTRY, RESIDENCE AND DEPARTURE TAX ACT 1985

Entry, Residence and Departure Regulations ..................................................... 179

ENVIRONMENT ACT 2003

Biosafety (Genetically Modified Organisms) Regulations ............................... 183

EXTRADITION ACT 1965 ................................................................................... 197

FILM AND PUBLIC ENTERTAINMENT ACT 1979

Film and Public Entertainment (Fees) Regulations ........................................... 199

GENERAL LAWS ACT 1968

Maritime Security Regulations ............................................................................. 201

INCORPORATED SOCIETIES ACT 1908

Incorporated Societies Regulations ...................................................................... 233

LIQUOR ACT 1975

Liquor (Breweries) Regulations ............................................................................ 237

MISUSE OF DRUGS ACT 1975 .......................................................................... 243

NIUE ACT 1966

Audit Regulations ................................................................................................... 245
Births and Deaths Registration Regulations ....................................................... 252
Co-operative Societies Regulations ...................................................................... 268
Dental Regulations ................................................................................................. 283
Gaming (Fees) Regulations ................................................................................... 284
High Court Rules .................................................................................................... 285
Land Court Rules .................................................................................................... 309
Land Registration Regulations ............................................................................. 327
Marriage Regulations ............................................................................................. 337
Penal Manual ........................................................................................................... 344
Sea Carriage of Goods Act 1940 ............................................................................ 364

NIUE BANK ACT 1994

Niue Bank Regulations .......................................................................................... 371

PARTNERSHIP ACT 1908

Partnership Amendment Fees Regulations ........................................................ 375

PARTNERSHIP APPLICATION ACT 1994

Partnership Amendment Forms Regulations ..................................................... 377

PENSIONS AND BENEFITS ACT 1991

Pensions and Benefits Regulations ...................................................................... 381
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Niue Laws 2006 Vol 1

PUBLIC HEALTH ACT 1965

Notifiable Disease Notice ...................................................................................... 383

PUBLIC REVENUES ACT 1959

Treasury Rules ......................................................................................................... 385

TERRITORIAL SEA AND EXCLUSIVE ECONOMIC ZONE ACT 1997

Whale Sanctuary Regulations ............................................................................... 391

TRANSPORT ACT 1965

Transport (Fees) Regulations ................................................................................. 393

TRUSTEE ACT 1956

Trustees’ Commission Rules ................................................................................. 395

TRUSTEE COMPANIES ACT 1994 .................................................................... 399

UNITED NATIONS ACT 1946

United Nations Sanctions (Terrorism Suppression and Afghanistan
Measures) Regulations ........................................................................................... 401

VISITING FORCES ACT 1939

Visiting Forces (Commonwealth Deserters and Absentees) Order ................. 405
Visiting Forces Order .............................................................................................. 405
Visiting Forces (Penal Arrangements) Order ...................................................... 406
Visiting Forces (Relative Ranks) Regulations ..................................................... 407

WILDLIFE ACT 1972

Wildlife Protected Species Notice ......................................................................... 411
x

EDITORIAL NOTE

This is the first ever presentation of the law of Niue in a consolidated form. There have been earlier collections of the legislation of Niue, but most have been partial in the sense that they did not include all of the legislation. Even the major collection of 1990 was a reproduction of texts rather than an edited contemporary statement of the Niue law. None of the earlier collections had statutory authority.
Since 1990, the occasional collections of enacted legislation have enabled reasonable access to the law of Niue. What has been lacking has been a post-self-determination statement of the law of Niue in a consolidated and up-to-date form with all the editing necessary to take account of the separation from the Cook Islands, the impact of the 1974 Constitution, and the post-1974 devolutions of authority and changes in the names of public service positions.
The groundwork for an official statement of the law of Niue was laid in 1991 with the passing of the Reprint of Statutes Act 1991. Further action, however, was not taken until 2001 with the establishment of a Legislation Review Project. This review had the task of addressing those areas of Niue law where the ordinary legislation was incompatible with the Constitution, where regulations were ultra vires current statutes, and where existing law had ceased to be relevant because of changes of circumstance in Niue.
The review priority was to establish a clear statement of the existing operative law. To that end, a new Interpretation Act was prepared and passed by the Niue Assembly in 2004 and, reflecting the initial results of the review, the Legislation (Correction of Errors and Minor Amendments) Act 2004 was also promulgated. These Acts were followed by the Minor Amendments No 2 Act 2006.
The support of the Assembly, by its clearing away of the incorrect, the obsolete, and the removal of ambiguities, meant an accessible set of the laws could be published. The present volumes are the result. They provide the basis for a thorough-going reform of the legislation of Niue in areas given priority by the Government.
The research done for the review disclosed a number of anomalies which have mostly been attended to by amending legislation or reform legislation since 2003. Some anomalies remain and these are under active consideration by the Government as part of its legislation programme.
Of particular historical interest in Niue law has been the interrelationship of the law of Niue and the law of New Zealand. Until 1974, much of the legislation for Niue came in the form of Acts of the New Zealand Parliament. Most of those Acts were either not adapted to the Niue circumstance, or were inadequately adapted. The result was a system of some awkwardness and uncertainty. Most of the uncertainties have now been resolved by Niue legislative action: In some cases by adapting the law to the Niue administrative structures, in other cases by making clear whether the legislation was a long arm jurisdiction of New Zealand or whether the statute was a law of Niue. Additionally, there were a number of examples of New Zealand statutes being extended to Niue as Niue law by way of subsidiary enactment. The Marine Pollution Act 1974 and the Sea Carriage of Goods Act 1940 are examples of this pattern. They both now appear as subsidiary
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Niue Laws 2006 Vol 1

legislation made under the Niue Act 1966. This is apparently anomalous because it is subsidiary legislation which is designated as an Act and which, in the case of the Marine Pollution Act 1974, is legislation which has subsidiary legislation of its own. For the future therefore, the Niue Government may alter these laws by way of regulation or, alternatively, the Assembly may repeal them and replace them with a new statute. The matter was complicated between 1974 and 2004 by the fact that the general regulation-making power in the Niue Act 1966 was abrogated at the time of self-government. It was therefore necessary to amend the Niue Act
1966 to insert a new regulation-making power.
Exceptionally, some legislation has not been reproduced in these volumes. Where that is the case, the text is annotated at the appropriate page. The prime examples of omissions are Acts which deal with treaty arrangements. In such cases, the texts are not of everyday relevance to the operation of the legal system and are readily available for public access on the internet. Other examples of omissions are those substantial bodies of law which deal in detail with particular areas of administration: The National Building Code (available from the Director of Works), the Customs Tariff (available from the Revenue Manager, Customs) and the Sanitary Regulations of the WHO (available in their latest form on the internet).
In former times, a number of laws of Niue included the word ‘Niue’ in their title, presumably to distinguish that piece of legislation from similar legislation in another part of the Realm of New Zealand. In this collection, the word ‘Niue’ has usually been omitted and each of the Acts affected now appears under its key word in the appropriate alphabetical place eg the Dogs Act, the Fireworks Act, the General Laws Act, the Inquest Act, the Manufactured Goods Tax Act, the Public Health Act, the Transport Act, and the Village Councils Act.
This collection has been prepared under the Reprint of Statutes Act 1991 and aims to present the law using a uniform layout and uniform formulae.
Reform of the law of Niue and improvements for its accessibility will build on this publication and continue in the context of the Legislation Review Project.
AH Angelo
NM Scott
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PART 1

LEGISLATION TABLES

Niue Laws 2006 Voll

xiv

TABLE OF CONSTITUTIONAL INSTRUMENTS

This table lists the key texts of the Niue Constitution as at 1 December 2006.

Title Instrument

Amendment

Constitution of Niue Schedule to 1974/42 (NZ)

1992/162

Niue Constitution Act 1974 1974/42 (NZ) Letters Patent constituting the Office of SR 1983/225

Governor-General of New Zealand SR 1987/8

SR 2006/224

Seal of New Zealand Proclamation SR 1977/29

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Niue Laws 2006 Voll

xvi

TABLE OF ACTS IN FORCE

This table lists the statutes in force in Niue as at December 2006.

Unless indicated by ‘G’, ‘(NZ)’, ‘SR’, or otherwise, references are to Niue statutes.’‘ G 1970, III, 2318’ indicates the New Zealand Gazette, 1970, vol III, p 2318.

Title Main Instrument

Amendments

Administration Act 1969 1969/52 (NZ)

1970/45 (NZ)

1972/43 (NZ)

1972/130 (NZ)

1973/47 (NZ)

2004/270

Adoption Act 1955 (ss 16(1), 16(2), 20(6) only) 1955/93 (NZ)

[Niue Amendment Act (No 2) 1968 (NZ), ss 99, 100]

Agriculture Quarantine Act 1984 1984/99

1989/136

2004/270

Appropriation (Annual) Act 2006 2006/277

Arbitration Act 1908 1908/8 (NZ)

1915/13 (NZ)

1952/27 (NZ)

2004/270

Arbitration Amendment Act 1938 1938/6 (NZ)

2004/270

Arbitration Clauses (Protocol) and the 1933/4 (NZ) Arbitration Foreign Awards) Act 1933 1957/44 (NZ)

2004/270

Archives Act 1992 1992/166

Arms Act 1975 1975/4

1998/234

cp reg 2005/1

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Niue Laws 2006 Vol 1

Assembly Members’ Superannuation Act 1984 1984/96

Atomic Energy Act 1945	1945/41 (NZ)
[s 3]	1957/12 (NZ)
1957/87 (NZ)
1961/54 (NZ)
1961/68 (NZ)
1964/27 (NZ)
1971/25 (NZ)
1976/26
1977/30
2004/270
Aviation Crimes Act 1973	1973/82
1993/173
1999/250
2004/270
Bills of Exchange Act 1908	1908/15 (NZ)
1946/40 (NZ)
1960/17 (NZ)
1963/75 (NZ)
1971/21 (NZ)
2004/270
Broadcasting Act 1989	1989/132
1997/225
2004/270
2006/279
Building Code Act 1992	1992/165
2006/279
Business Licence Act 1997	1997/216
Carriage by Air Act 1967	1967/151 (NZ)
[s 3(2)]	1968/39 (NZ)
1971/52 (NZ)
1972/43 (NZ)
1973/6 (NZ)
1974/43 (NZ)
2004/270
2006/279
Census Act 1971	1971/68
1976/21
2004/270
2006/279

xviii

Table of Acts

Chattels Transfer Act 1924

1924/49 (NZ)

G 1925 II 1517

G 1925 III 3055

G 1925 III 3353

1925/21 (NZ)

G 1926 II 1805

G 1928 II 2465

G 1930 II 1509

1931/34 (NZ)

G 1933 III 2734

G 1935 III 2275

1936/58 (NZ)

SR 1938/49

1939/39 (NZ)

1940/18 (NZ)

SR 1940/311

1943/20 (NZ)

1945/40 (NZ)

SR 1950/68

1952/25 (NZ)

SR 1953/45

1953/79 (NZ)

SR 1953/149

1954/50 (NZ)

SR 1954/78

SR 1955/148

SR 1956/146

SR 1957/33

SR 1960/85

1961/75 (NZ)

SR 1962/7

SR 1962/47

1963/78 (NZ)

1964/27 (NZ)

SR 1965/26

1967/60 (NZ)

SR 1968/87

1969/71 (NZ)

SR 1969/110

SR 1969/253

1970/29 (NZ)

SR 1970/244

1971/147 (NZ)

1972/130 (NZ)

1973/52 (NZ)

2004/270

2006/279

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Niue Laws 2006 Vol 1

Cheques Act 1960	1960/17 (NZ)
2004/270
Child Allowance Act 1995	1995/203
2004/272
Citizenship Act 1977	1977/61 (NZ)
[s 29; art 36 Constitution]
Civil Aviation Act 1999	1999/250
2006/279
Civil List Act 1999	1999/248
2001/255
2004/265
Communications Act 1989	1989/131
2000/251
Commissions of Inquiry Act 1968	1968/50
2004/270
Companies Act 2006	2006/275
Reg 2006/2
Constitutional Polls Act 1977	1977/28
1992/161
Consular Privileges and Immunities Act 1971	1971/11 (NZ)
[s 12]	1974/43 (NZ)
2004/270
Continental Shelf Act 1964	1964/28 (NZ)
[s 9]	1964/27 (NZ)
1965/11 (NZ)
1972/4 (NZ)
1974/43 (NZ)
2004/270
Crimes against Internationally Protected	1984/86
Persons and Hostages Act 1984

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Table of Acts

Crown Proceedings Act 1950

Customs Act 1966

Customs Tariff Act 1982

Deaths by Accidents Compensation Act 1952

1950/54 (NZ)

1952/35 (NZ)

1952/51 (NZ)

1952/56 (NZ)

1956/47 (NZ)

1958/61 (NZ)

1961/68 (NZ)

1962/19 (NZ)

1962/120 (NZ)

1963/38 (NZ)

1964/27 (NZ)

1969/74 (NZ)

1972/130 (NZ)

2004/270

1966/19 (NZ)

1964/27 (NZ)

1967/1 (NZ)

1967/137 (NZ)

1968/31 (NZ)

1968/39 (NZ)

1969/137 (NZ)

1970/28 (NZ)

1970/137 (NZ)

1971/38 (NZ)

1971/42 (NZ)

1972/7 (NZ)

1973/6 (NZ)

1973/110 (NZ)

1974/4 (NZ)

1974/18 (NZ)

1982/77

2004/270

2006/279

1982/77

1988/129

1992/164/s4

1952/35 (NZ)

1961/6 (NZ)

1964/40 (NZ)

1969/18 (NZ)

1972/43 (NZ)

2004/270

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Niue Laws 2006 Vol 1

Departure Tax Act 1996 1996/212

Development Investment Act 1992 1992/164

Diplomatic Privileges and Immunities Act 1968 1968/36 (NZ)

[s 25(1)] 1969/78 (NZ)

1971/11 (NZ)

1971/96 (NZ)

1974/43 (NZ)

2004/270

Dogs Act 1966 1966/35

1966/39

1982/79

1974/93

2004/270

Domestic Fishing Act 1995 1995/199

Education Act 1989 1989/130

1997/229

Electric Power Supply Act 1960 1960/6

2004/270

Entry, Residence and Departure Act 1985 1985/106

1989/142

1995/201

Environment Act 2003 2003/264

2006/279

Extradition Act 1965 1965/44 (NZ)

[Niue Act, s 320] 1964/27 (NZ)

1966/39 (NZ)

1967/54 (NZ)

1967/75 (NZ)

1969/17 (NZ)

1969/76 (NZ)

1969/78 (NZ)

1970/27 (NZ)

SR 1970/240

1972/137 (NZ)

1973/82

1975/116 (NZ)

1984/86

1998/242

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Table of Acts

Film and Public Entertainment Act 1979	1979/45
1984/95
1992/169
2004/270
Financial Transactions Reporting Act 2006	2006/278
Fireworks Act 1958	1958/56
Food Control Act 1981	1981/70
Fugitive Offenders Act 1881	44 & 45 Vict, c 69 (UK)
[Crimes against Internationally Protected	5 & 6 Geo 5, c 39 (UK)
Persons and Hostages Act 1984, s 16]	SR & O 1922/77 (UK)
1976/2 (NZ)
General Agreement on Tariffs and Trade	1948/1 (NZ)
Act 1948	1961/57 (NZ)
1966/19 (NZ)
General Laws Act 1968	1968/52
2004/267
Geneva Conventions Act 1958	1958/19 (NZ)
[s 10]	1961/68 (NZ)
1964/27 (NZ)
1964/70 (NZ)
1965/1 (NZ)
1969/78 (NZ)
1971/53 (NZ)
1974/43 (NZ)
Government Loans Act 1980	1980/56
Guardianship Act 1968	1968/63
2004/270
2006/279
Income Tax Act 1961	1961/9
1964/20
1965/29
1967/46
1977/31
1978/41
1984/83
1987/118
1988/126
1992/164/s4

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Niue Laws 2006 Vol 1

1994/177 1994/181/s7 1998/238 1999/247 2004/270
Incorporated Societies Act 1908	1908/212 (NZ) 1920/50 (NZ) 1922/27 (NZ) 1930/17 (NZ) 1951/38 (NZ) 1953/80 (NZ) 1964/27 (NZ) 1965/88 (NZ) 1971/43 (NZ) 1971/51 (NZ) 2004/270
International Finance Agreements Act 1961	1961/3 (NZ) 1966/25 (NZ)
Interpretation Act 2004	2004/269
Inquest Act 1964	1964/23 1975/13
Land Act 1969	1969/57 1977/30 1984/94 2004/269 2004/270
Liquor Act 1975	1975/2 1980/53 1991/150 1997/226 1998/239
Manufactured Goods Tax Act 1964	1964/21 1967/47 1969/58 1971/69 1981/69 2004/270
Marine Insurance Act 1908	1908/112 (NZ) 1960/11 (NZ)

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Table of Acts

Mercantile Law Act 1908

Merchandise Marks Act 1954

Mining Act 1977

Minors’ Contracts Act 1969

Misuse of Drugs Act 1975

[s 41; Niue Act, s 689A]

Misuse of Drugs Act 1998

Mosquito Control Act 1980

Mutual Assistance in Criminal Matters Act 1998

National Disaster Relief Fund Act 1980

New Zealand Representative Act 1981

Niue Act 1966

[s 3]

1908/117 (NZ)

1922/25 (NZ)

1938/6 (NZ)

1948/66 (NZ)

1950/65 (NZ)

2004/270

1954/43 (NZ)

1954/76 (NZ)

SR 1955/101

1961/68 (NZ)

1961/123 (NZ)

1964/27 (NZ)

1972/107 (NZ)

2004/270

1977/30

1969/41 (NZ)

1970/88 (NZ)

1970/137 (NZ)

1971/111 (NZ)

1972/95 (NZ)

2004/270

1975/116 (NZ)

1998/243

1980/63

2004/270

1998/244

2006/276

1980/61

1981/69

1966/38 (NZ)

1964/27 (NZ)

1967/38 (NZ)

1968/15 (NZ)

1968/132 (NZ)

1969/16 (NZ)

1969/17 (NZ)

xxv

Niue Laws 2006 Vol 1

1969/205 (NZ)

1969/232 (NZ)

1970/15 (NZ)

1971/66

1971/143 (NZ)

1974/43 (NZ)

1974/110 (NZ)

1975/2

1975/5

1975/9

1975/116 (NZ)

SR 1975/279

1976/26

1976/30 (NZ)

1976/122 (NZ)

1977/1 (NZ)

1977/29

1977/61 (NZ)

1980/59

1982/76

1983/128 (NZ)

1984/91

1984/98

1986/31 (NZ)

1989/131

1989/133

1989/134

1991/153

1996/207

1996/214

1997/219

1998/232

1999/246

2004/269

2004/270

2005/273

2006/278

2006/279

Niue Amendment (No. 2) Act 1968

Niue Assembly Act 1966

1968/132 (NZ)

2004/270

1966/33

1975/7

1982/79

1992/168

2004/270

xxvi

Table of Acts
Niue Bank Act 1994	1994/177
2006/278
2006/279
Niue Certification Authority Act 1978	1978/36
Niue Cultural Council Act 1986	1986/109
Niue Development Bank Act 1993	1993/189
1996/208
Niue Development Bonds Act 1994	1994/181
1994/194
2006/279
Niue Flag Act 1975	1975/16
2006/279
Niue Philatelic and Numismatic Act 1996	1996/206
2003/262
Niue Trust Fund Act 2004	2004/266
Occupiers Liability Act 1962	1962/31 (NZ)
2004/270
Partnership Act 1908	1908/139 (NZ)
1947/60 (NZ)
1965/124 (NZ)
2004/270
2006/279
Partnership Application Act 1994	1994/180
Pensions and Benefits Act 1991	1991/157
1995/202
2001/256
2004/271
Pesticides Act 1991	1991/158
Pig Control Act 1998	1998/231
Price Control on Imported Goods for Resale	1975/5
in Niue Act 1975	1991/152
2004/270

xxvii

Niue Laws 2006 Vol 1

Proceeds of Crime Act 1998

Property Law Act 1952

Public Emergency Act 1979

Public Health Act 1965

Public Notaries Act 1998

Public Revenues Act 1959

Public Service Savings and Loan Society Act 1980

Race Relations Act 1972

1998/245

1952/51 (NZ)

1953/4 (NZ)

1955/94 (NZ)

1956/61 (NZ)

1957/39 (NZ)

1958/37 (NZ)

1959/31 (NZ)

1963/60 (NZ)

1964/27 (NZ)

1965/16 (NZ)

1967/111 (NZ)

1968/101 (NZ)

1969/16 (NZ)

1969/52 (NZ)

1970/137 (NZ)

1971/51 (NZ)

1971/121 (NZ)

2004/270

1979/51

1965/24

1980/63

1980/64

1996/209

2004/270

1998/236

1959/1

1974/89

1989/138

1989/144

1990/144

1991/159

2004/269

2004/270

2006/279

1980/55

2004/270

1972/77

2004/270

2006/279

xxviii

Table of Acts

Reprint of Statutes Act 1991	1991/154 2004/270
Royal Titles Act 1974 [s 3]	1974/1 (NZ)
Sale of Goods Act 1908	1908/168 (NZ) 1956/23 (NZ) 1961/98 (NZ) 1969/41 (NZ) 1971/80 (NZ)
Seal of New Zealand Act 1977 [s 7]	1977/1 (NZ)
Territorial Sea and Exclusive Economic Zone Act 1997	1997/220 2006/279 2006/281
Terrorism Suppression and Transnational Crimes Act 2006	2006/280
Tourist Authority Act 1995	1995/200 1997/224 2003/263
Transport Act 1965	1965/30 1976/24 1977/33 1982/79 1990/148 1990/149 1996/213 1997/221 2004/270
Trustee Act 1956	1956/61 (NZ) 1956/63 (NZ) 1957/36 (NZ) 1957/37 (NZ) 1960/101 (NZ) 1962/107 (NZ) 1963/21 (NZ) 1963/46 (NZ) 1964/9 (NZ) 1964/27 (NZ) 1964/74 (NZ)

xxix

Niue Laws 2006 Vol 1

1965/22 (NZ)
1965/7 (NZ)
1968/24 (NZ)
1968/43 (NZ)
1969/16 (NZ)
1969/52 (NZ)
1969/110 (NZ)
1970/5 (NZ)
1971/51 (NZ)
1971/137 (NZ)
1974/8 (NZ)
1974/15 (NZ)
1974/19 (NZ)
SR 1974/109
2004/270
Trustee Companies Act 1994	1994/183
Trusts Act 1994	1994/182
1994/194
United Nations Act 1946	1946/7 (NZ)
[s 4]	1961/68 (NZ)
1964/27 (NZ)
2001/257
2004/270
Village Councils Act 1967	1967/41
2004/270
Visiting Forces Act 1939	1939/36 (NZ)
[s 7]	1957/32 (NZ)
1961/68 (NZ)
1961/107 (NZ)
1971/52 (NZ)
2004/270
Water Resources Act 1996	1996/209
2006/279
Wildlife Act 1972	1972/74
Wills Act 1837	1 Will IV (UK)
Wills Act Amendment Act 1852	15 & 16 Vict, c 24 (UK)
Wreck and Salvage Act 1968	1968/53
2004/270

xxx

CHRONOLOGICAL TABLE OF STATUTES

This table lists the statutes enacted by the Island Council of Niue from 1916 to

1959, by the Niue Island Assembly from 1959 to 1974, and by the Niue Assembly

from 19 October 1974 to 1 December 2006. It records how the enactments have

been affected by subsequent legislation and lapse of time.

All references are to Acts of the Niue Assembly unless indicated by (NZ).

Year
No.	Title	Status
1916
1	Copra	Repealed by 1969/60
2	Traders’ Hours of Business	Repealed by 1958/55
3	Fish Protection	Repealed by 1965/32
4	Traffic Regulation	Repealed by 1950/41
5	Dog Registration	Repealed by 1966/35
6	Aid to Revenue	Repealed by 1945/36
1917
7	Aid to Revenue	Amended 1916/6
8	Road-Cleaning	Repealed by 1965/30
9	Coconut Plantations	Repealed by 1926/27
1918
10	Sales of Coconuts Prohibition	Repealed by 1969/60
11	Emigration	Repealed by 1923/19
12	Sanitation	Repealed by 1965/24
1919
13	Education Regulations Extension	Disallowed1
14	Suppression of Immorality	Repealed by 1968/52
15	Public Health	Repealed by 1965/24
1920
16	Aid to Revenue Continuance	Repealed by 1945/36
17	Traders’ Hours of Business	Amended 1916/2

1Disallowed by the Governor-General pursuant to the Cook Islands Act 1915 (NZ), s 88, by notice published in the New

Zealand Gazette 20 May 1920, 1567.

xxxi

Niue Laws 2006 Vol 1

1923
18	Aid to Revenue Continuance	Repealed by 1945/36
19	Emigration Repeal	Spent
20	Water-Supply	Repealed by 1965/24
21	Fish Protection	Disallowed2
22	Debt Limitation	Repealed by 1967/43
1924
23	Daylight-Saving	Repealed by 1926/25
1926
24	Aid to Revenue Continuance	Repealed by 1945/36
25	Daylight-Saving Repeal	Spent
26	Water-Supply	Amended 1923/20
27	Planting of Lands	Repealed by 1963/18
1927
28	Traders’ Hours of Business	Amended 1916/2
29	Permit	Repealed by 1969/55
30	Traffic Regulation	Amended 1916/4
1931
31	Aid to Revenue Continuance	Repealed by 1945/36
1936
32	Aid to Revenue Continuance	Repealed by 1945/36
1941
33	Aid to Revenue Continuance	Repealed by 1945/36
1943
34	Fish Protection	Amended 1916/3
35	Fish Protection (No 2)	Amended 1916/3
1945
36	Aid to Revenue	Repealed by 1956/52
1949
37	Cinematograph	Repealed by 1979/45
38	Traders’ Hours of Business	Amended 1916/2
1950
39	Curfew	Repealed by 1950/40
40	Curfew	Repealed by 1968/52
41	Motor Vehicles	Repealed by 1965/30

2Disallowed by the Governor-General pursuant to the Cook Islands Act 1915 (NZ), s 88, by notice published in the New

Zealand Gazette 27 September 1923, 2516.

xxxii

Chronological Table of Statutes

42	Bicycle Traffic	Repealed by 1965/30
43	Methylated Spirits	Repealed by 1965/24
44	Mosquito Control	Repealed by 1965/24
1955
45	Copra	Amended 1916/1
46	Contagious and Infectious Diseases	Repealed by 1965/24
47	Manufacture and Sale of Food	Repealed by 1965/24
1956
48	Permit	Amended 1927/29
49	Motor Vehicles	Amended 1950/44
50	Livestock	Repealed by 1967/44
51	Bicycle Traffic	Amended 1950/42
52	Aid to Revenue	Repealed by 1965/25
53	Manufacture and Sale of Food	Amended 1955/47
1958
54	Public Holidays	Repealed by 1961/11
55	Traders’ Hours of Business	Repealed by 1965/27
56	Fireworks
57	Dog Registration	Amended 1916/5
58	Aid to Elderly People	Repealed by 1965/25
1959
59	Building Permits	Repealed by 1992/165
60	Motor Vehicles	Amended 1950/41
1	Public Revenues
2	Appropriation	Repealed by 1959/5
3	Public Entertainments	Repealed by 1960/8
4	Building Permits	Amended 1959/59
5	Appropriation	Expired
1960
6	Electric Power Supply
7	Appropriation	Expired
8	Public Entertainments	Repealed by 1979/45
1961
9	Income Tax
10	Aid to Revenue	Amended 1957/52
11	Public Holidays	Repealed by 2004/269
12	Appropriation	Expired
1962
13	Liquor Control	Repealed by 1975/2
14	Appropriation	Expired
14A	Supplementary Appropriation	Expired

xxxiii

Niue Laws 2006 Vol 1

15	Purchase Tax	Repealed by 1964/21
16	Export Duty	Repealed by 1971/71
1963
17	(Bill not passed)
18	Planting of Land	Repealed by 2004/270
19	Appropriation	Expired
19A	Supplementary Appropriation	Expired
1964
20	Income Tax	Amended 1961/9
21	Manufactured Goods Tax
22	Appropriation	Expired
23	Inquest
1965
24	Public Health
25	Aid to Revenue Tax	Repealed by 1984/83
26	Appropriation	Expired
27	Hours of Business	Repealed by 1997/216
28	Immigration	Repealed by 1985/106
29	Income Tax	Amended 1961/9
30	Transport
31	Cinematograph	Amended 1949/37
32	Fish Protection	Repealed by 1995/199
1966
33	Assembly
34	Civil List	Repealed by 1968/51
35	Dogs
36	Development	Repealed by 1984/94
37	Appropriation	Expired
38	Development	Amended 1966/69
39	Dogs	Amended 1966/35
1967
40	Regulations	Repealed by 2004/269
41	Village Councils
42	Immigration	Amended 1965/28
43	Debt Limitation	Repealed by 1971/65
44	Impounding	Repealed by 1998/233
45	Aid to Revenue Tax	Amended 1965/25
46	Income Tax	Amended 1961/9
47	Manufactured Goods Tax	Amended 1964/21
48	Appropriation	Expired

xxxiv

Chronological Table of Statutes

1968
49	Appropriation	Expired
50	Commissions of Inquiry
51	Civil List	Repealed by 1972/79
52	General Laws
53	Wreck and Salvage
1969
54	Supplementary Appropriation	Expired
55	Departure	Repealed by 1985/106
56	Appropriation	Expired
57	Land
58	Manufactured Goods Tax	Amended 1964/21
59	Development	Amended 1966/36
60	Copra	Repealed by 2006/279
1970
61	Supplementary Appropriation	Expired
62	Tourist Board	Repealed by 1995/200
63	Appropriation	Expired
1971
64	Business Licences	Repealed by 1997/216
65	Credit Restriction	Repealed by 2004/270
66	Housing	Repealed by 1993/189
67	Supplementary Appropriation	Expired
68	Census
69	Manufactured Goods Tax	Amended 1964/21
70	Appropriation	Expired
71	Export Duty Repeal	Spent
72	Copra	Amended 1969/60
1972
73	Supplementary Appropriation	Expired
74	Wildlife
75	Appropriation	Expired
76	Copra	Amended 1969/60
77	Race Relations
78	Appropriation	Expired
79	Civil List Repeal	Spent
80	Appropriation	Expired
1973
81	Appropriation Order	Expired
82	Aviation Crimes
83	Appropriation	Expired

xxxv

Niue Laws 2006 Vol 1

1974
84	Appropriation	Expired
85	Referendum	Spent
86	Appropriation	Expired
87	Pensions and Benefits	Repealed by 1985/102
88	(Bill not passed)
89	Public Revenues	Amended 1959/1
90	Polynesian Airlines Shareholding	Repealed by 2004/270
91	Airlines Agency Corporation	Repealed by 1996/212
92	Hurricane Housing Forgiveness of Debt	Spent
93	Animal Importation	Repealed by 1984/99
1	Honey Company Dissolution	Spent
1975
2	Liquor
3	Supplementary Appropriation	Expired
4	Arms
5	Price Control on Imported Goods for Resale
in Niue
6	Civil List	Repealed by 1975/17
7	Niue Assembly	Amended 1966/33
8	Aid to Revenue Tax	Repealed by 1984/83
9	Niue	Amended 1966/38 (NZ)
10	Supplementary Appropriation	Expired
11	Housing	Repealed by 1993/189
12	Appropriation	Expired
13	Inquest	Amended 1964/23
14	Public Holidays	Amended 1961/11
15	Aid to Revenue Tax	Repealed by 1984/83
16	Niue Flag
17	Civil List	Repealed by 1975/18
18	Civil List	Repealed by 1980/65
19	Pensions and Benefits	Repealed by 1985/102
1976
20	Supplementary Appropriation	Expired
21	Assembly Census	Amended 1971/68
22	Pensions and Benefits	Repealed by 1985/102
23	Appropriation	Expired
24	Transport	Amended 1965/30
25	Civil List	Repealed by 1980/65
26	Atomic Energy	Amended 1945/41 (NZ)
1977
27	Supplementary Appropriation	Expired
28	Constitutional Polls
29	Territorial Sea and Fishing Zone	Repealed by 1978/38

xxxvi

Chronological Table of Statutes

30	Mining
31	Income Tax	Amended 1961/9
32	Appropriation	Expired
33	Transport	Amended 1965/30
34	Pensions and Benefits	Repealed by 1985/102
35	Civil List	Repealed by 1980/65
1978
36	Niue Certification Authority
37	Supplementary Appropriation	Expired
38	Territorial Sea and Exclusive Economic Zone	Repealed by 1997/220
39	Aid to Revenue Tax	Repealed by 1984/83
40	Appropriation	Expired
41	Income Tax	Amended 1961/9
42	Civil List	Repealed by 1975/18
1979
43	Supplementary Appropriation	Expired
44	Appropriation	Expired
45	Film and Public Entertainment
46	Appropriation	Expired
47	Civil List	Repealed by 1975/18
48	Pensions and Benefits	Amended 1974/87
49	New Zealand Laws
50	Air Travel Tax	Repealed by 1996/212
51	Public Emergency
1980
52	Appropriation	Expired
53	Liquor	Amended 1975/2
54	Sunday Fishing Prohibition	Repealed by 1995/199
55	Public Service Savings and Loan Society
56	Government Loans
57	Appropriation (No 2)	Expired
58	Supplementary Appropriation	Expired
59	Niue	Amended 1966/38(NZ)
60	Housing	Repealed by 1993/189
61	National Disaster Relief Fund
62	Civil List	Repealed by 1980/65
63	Mosquito Control
64	Public Health	Amended 1965/24
65	Civil List	Repealed by 1997/228
66	Safety at Sea	Repealed by 1995/199
1981
67	Supplementary Appropriation	Expired
68	Appropriation	Expired

xxxvii

Niue Laws 2006 Vol 1

69	New Zealand Representative
70	Food Control
71	Pensions and Benefits	Repealed by 1985/102
72	Civil List	Amended 1980/65
73	Supplementary Appropriation	Expired
1982
74	Credit Restriction	Amended 1971/65
75	Appropriation	Expired
76	Niue	Amended 1966/38 (NZ)
77	Customs Tariff
78	Pensions and Benefits	Repealed by 1985/102
79	Statutes	Spent
80	Civil List	Amended 1980/65
81	Constitutional Provisions	Repealed by 2004/270
1983
82	Development Fund	Repealed by 1993/189
83	Income Tax	Amended 1961/9
84	Appropriation	Expired
85	Air Travel Tax	Amended 1980/50
86 Crimes against Internationally Protected Persons and Hostages
87	Appropriation (No 2)	Expired
88	Pensions and Benefits	Repealed by 1985/102
89	Appropriation (No 3)	Expired
1984
90	Territorial Sea and Exclusive Economic Zone	Amended 1978/38
91	Niue	Amended 1966/38 (NZ)
92	Civil List	Amended 1980/65
93	Development Fund	Amended 1983/82
94	Niue Development Board Dissolution	Spent
95	Film and Public Entertainment	Amended 1979/45
96	Assembly Members Superannuation
97	Appropriation	Expired
98	Niue (No 2)	Amended 1966/38 (NZ)
99	Agriculture Quarantine
100	Appropriation	Expired
1985
101	Supplementary Appropriation	Expired
102	Pensions and Benefits	Repealed by 1991/157
103	Civil List	Amended 1980/65
104	Appropriation	Expired
105	Fish Protection	Amended 1916/3
106	Entry, Residence and Departure

xxxviii

Chronological Table of Statutes

107	Supplementary Appropriation	Expired
108	Civil List Amendment (No 2)	Amended 1980/65
1986
109	Niue Cultural Council
110	Appropriation	Expired
111	Civil List	Amended 1980/65
112	Appropriations (No 2)	Expired
113	Pensions and Benefits	Amended 1985/102
114	Civil List (No 2)	Amended 1980/65
115	Banking
116	(Bill not passed)
117	Supplementary Appropriation	Expired
118	Income Tax	Amended 1961/9
1987
119	Appropriation	Expired
120	Decimal Currency	Amended 1964/27 (NZ)
121	Civil List	Amended 1980/65
122	Credit Restriction	Amended 1971/65
123	Territorial Sea and Exclusive Economic Zone	Amended 1978/38
1988
124	Unauthorised Expenditure	Spent
125	Supplementary Appropriation	Expired
126	Income Tax	Amended 1961/9
127	Civil List	Amended 1980/65
128	Appropriation	Expired
129	Niue Customs Tariff	Amended 1982/77
1989
130	Education
131	Communications
132	Broadcasting
133	Niue	Amended 1966/38 (NZ)
134	Niue	Amended 1966/38 (NZ)
135	Supplementary Appropriation	Expired
136	Agriculture Quarantine	Amended 1984/99
137	Appropriation	Expired
138	Public Revenues	Amended 1959/1
139	Public Revenues (Write Offs)	Spent
140	(Bill not passed)
141	Civil List	Amended 1980/65
142	Entry, Residence and Departure	Amended 1985/106

xxxix

Niue Laws 2006 Vol 1

1990
143	Supplementary Appropriation	Spent
144	Public Revenues	Amended 1959/1
145 146	Public Revenues (Validation of Unappropriated Expenditure) Appropriation (Annuan( �/p>	Spent Expired
147	Civil List	Amended 1980/65
148	Transport	Amended 1965/30
149	Transport (No 2)	Amended 1965/30
1991
150	Liquor	Amended 1975/2
151	Development Fund	Amended 1983/82
152	Price Control of Imported Goods	Amended 1795/5
153	Niue	Amended 1966/38 (NZ)
154	Reprint of Statutes
155 156	Appropriations (Validation of Unauthorised Expenditure) Appropriation (Annuan( �/p>	Expired Expired
157	Pensions and Benefits
158	Pesticides
159	Public Reserves	Amended 1959/1
1992
160	Niue Fish Protection	Repealed by 1995/199
161	Constitutional Polls	Amended 1977/28
162	Constitutional (No 1)	Amended 1974/42 (NZ)
163	Appropriation (Annuan( �/p>	Expired
164	Development Investment
165	Building Code
166	Archives
167 168	Appropriation (Validation of Unappropriated Expenditure) Niue Assembly	Expired Amended 1966/30
169	Film and Public Entertainment	Amended 1979/45
170	International Air Services Licensing	Repealed by 1992/171
171	Air Services Licensing	Repealed by 2004/270
1993
172	Air Travel Tax	Amended 1980/50
173	Aviation Crimes	Amended 1973/82
174	Appropriation (Annuan( �/p>	Expired
175 176	Appropriation (Validation of Unappropriated Expenditure) Civil List	Expired Amended 1980/65

xl

Chronological Table of Statutes

1994
177	Niue Bank
178	Off-Shore Insurance	Repealed 2006/275
179	Off-Shore Banking	Repealed by 1997/227
180	Partnership	Amended 1908/139 (NZ)
181	Niue Development Bonds
182	Trusts
183	Trustee Companies
184	International Business Companies
185	Off-Shore Centre (Miscellaneous Provisions)	Repealed by 2006/275
186	Public Notaries	Repealed by 1998/236
187	International Business Companies	Amended 1994/184
188	Off-Shore Centre (Miscellaneous Provisions)	Amended 1994/185
189	Niue Development Bank
190	Appropriation (Annuan( �/p>	Expired
191	Civil List	Amended 1980/65
192	Supplementary Appropriation	Spent
193 194	Off-Shore Centre (Miscellaneous Provisions) (No 2) Niue Development Bonds Amendment and	Amended 1994/185 Amended 1994/181
195	Ancillary Provisions Off-Shore Insurance	Amended 1994/178
196	Off-Shore Banking	Amended 1994/179
1995
197 198	Appropriation (Validation of Unappropriated Expenditure) Appropriation (Annuan( �/p>	Expired Expired
199	Domestic Fishing
200	Tourist Authority
201	Entry, Residence and Departure	Amended 1985/106
202	Pensions and Benefits	Amended 1985/102
203	Child Allowance
1996
204	Supplementary Appropriation
205	Civil List	Amended 1980/65
206	Niue Philatelic and Numismatic
207	Niue	Amended 1966/38 (NZ)
208	Niue Development Bank	Amended 1994/189
209	Water Resources
210	Appropriation (Annuan( �/p>	Expired
211	Appropriation (Annuan( �/p>	Expired
212	Departure Tax
213	Niue Transport	Amended 1965/30
214	Niue	Amended 1966/38 (NZ)
215	International Business Companies	Amended 1994/184

xli

Niue Laws 2006 Vol 1

1997
216	Business Licence
217	Public Revenues (Write Off)	Spent
218	Supplementary Appropriation	Spent
219	Niue (No 2)	Amended 1968/132 (NZ)
220	Territorial Sea and Exclusive Economic Zone
221	Niue Transport	Amended 1965/30
222 223	Appropriation (Validation of Unappropriated Expenditure) Appropriation (Annuan( �/p>	Expired Expired
224	Niue Tourist Authority	Amended 1995/200
225	Broadcasting	Amended 1989/132
226	Liquor	Amended 1975/2
227	International Banking	Repealed by 2002/258
228	Civil List	Repealed by 1998/230
229	Education	Amended 1989/130
1998
230	Civil List	Repealed by 1999/248
231	Pig Control
232	Niue (Animals)	Amended 1966/38 (NZ)
233	Niue Island Impounding (Repean( �/p>	Spent
234	Arms	Amended 1975/4
235	International Business Companies	Amended 1994/184
236	Public Notaries
237	Appropriation (Annuan( �/p>	Expired
238	Income Tax	Amended 1969/9
239	Liquor	Amended 1975/2
240 241	Appropriation (Validation of Unappropriated Expenditure) International Business Companies	Expired Amended 1994/184
242	(No 2) Extradition	Amended 1965/44 (NZ)
243	Misuse of Drugs
244	Mutual Assistance in Criminal Matters
245	Proceeds of Crime
1999
246	Niue	Amended 1966/38 (NZ)
247	Income Tax	Amended 1961/9
248	Civil List
249	Appropriation (Annuan( �/p>	Expired
250	Civil Aviation	Amended 1973/82
2000
251	Communications	Amended 1989/131
252	Appropriation (Annuan( �/p>	Expired
253	Financial Transactions Reporting	Repealed by 2006/278

xlii

Chronological Table of Statutes

2001
254	Appropriation (Annuan( �/p>	Expired
255	Civil List	Amended 1999/248
256	Pensions and Benefits	Repealed by 2004/271
257	United Nations	Amended 1946/7 (NZ)
2002
258	International Banking Repeal	Spent
259	Appropriation (Annuan( �/p>	Expired
2003
260	Appropriation (Annuan( �/p>	Expired
261 262	Appropriation (Validation of Unappropriated Expenditure) Niue Philatelic and Numismatic	Expired Amended 1996/206
263	Niue Tourist Authority	Amended 1995/200
264	Environment
2004
265	Civil List	Amended 1999/248
266	Niue Trust Fund
267	Niue Island General Laws	Amended 1968/52
268	Appropriation (Annuan( �/p>	Expired
269	Interpretation
270 271	Legislation (Correction of Errors and Minor Amendments) Pensions and Benefits	Spent Amended 1991/157
272	Child Allowance	Amended 1995/203
2005
273	Niue	Amended 1966/38 (NZ)
274	Appropriation (Annuan( �/p>
2006
275	Companies
276	Mutual Assistance	Amended 1998/244
277	Appropriation (Annuan( �/p>
278	Financial Transactions Reporting
279	Minor Amendments	Spent

280 Terrorism Suppression and Transnational Crime

281 Territorial Sea Amended 1997/220

xliii

Niue Laws 2006 Voll

xliv

TABLE OF SUBSIDIARY LEGISLATION IN FORCE

This table lists the subsidiary legislation in force in Niue as at December 2006. Unless otherwise indicated by ‘G’, ‘(NZ)’, or ‘SR’, references are to Niue statutes

and subsidiary legislation. ‘G 1970, III, 2318’ indicates the New Zealand Gazette,

1970, vol III, p 2318.

EMPOWERING INSTRUMENT

Title Main Instrument Amendments

CONSTITUTION OF NIUE

Niue Assembly Standing Orders 1998 2004

Public Service Regulations 2004/4

AGRICULTURE QUARANTINE ACT 1985

Agricultural Quarantine (Prevention of Animal 1991/4

Disease) Regulations

Agricultural Quarantine Phytosanitary 1993/1

Certificates (Fees) Regulations

Animal Quarantine (Disease Control) 1991/2

Regulations

Animal Quarantine (Fees) Regulations 1991/3

Plant Quarantine Regulations 1985

ARMS ACT 1974

Arms Registration (Fees) Regulations 2005/1

BROADCASTING ACT 1989

Broadcasting Regulations 1989/1

BUILDING CODE ACT 1992

National Building Code 1990

BUSINESS LICENCE ACT 1997

Business Licence Regulations 1997/5

xlv

Niue Laws 2006 Vol 1

CHATTELS TRANSFER ACT 1924
Chattels Transfer (Customary Hire Purchase) G 1925, II, 1517 Orders1 G 1925, III, 3055 G 1925, III, 3353 G 1926, II, 1805 G 1928, II, 2465 G 1930, II, 1509 G 1933, III, 2734 G 1935, II, 2273 SR 1938/49 SR 1940/311 SR 1950/68 SR 1953/45 SR 1954/78 SR 1955/148 SR 1956/146 SR 1957/33 SR 1960/85 SR 1962/7 SR 1962/47 SR 1965/26 SR 1968/87 SR 1969/110 SR 1969/253
Chattels Transfer Fees Regulations	SR 1967/270
CHILD ALLOWANCE ACT 1995
Child Allowance (Fees) Regulations	2004/3
CIVIL AVIATION ACT 1999
Civil Aviation Rules	1999/250/s52
COMMUNICATIONS ACT 1989
Radio Regulations	SR 1972/128
Telephone Regulations	SR 1968/25
CUSTOMS ACT 1966
Customs Regulations	SR 1968/169	SR 1969/196 SR 1970/189 SR 1970/241 SR 1971/258 SR 1972/238 SR 1973/66 SR 1974/154

1Seventh Schedule of the Chattels Transfer Act 1924 (NZ) incorporates all Orders made up until this consolidation.

xlvi

Chronological Table of Summary Legislation

Export Licences Regulations Export Prohibition Regulations Import Prohibition (Insecticides) Order Import Prohibition (Offensive Weapons)	SR 1966/90 SR 1953/179 SR 1964/188 SR 1972/223	SR 1972/239 SR 1973/175
Order
Niue Port of Entry Order 1995	SR 1960/129	1974/80 (NZ) 1995/4
Port and Service Tax Regulations	SR 1952/177
CUSTOMS TARIFF ACT 1982 Customs Tariff Regulations	1988/2	1996/2
		2006/1
Customs Tariff (Cigarettes and Tobacco) Regulations	1991/5
Customs Tariff (General Amendments) Regulations	1996/2	1997/3
DEPARTURE TAX ACT 1996 Departure Travel Tax Regulations	2002/1
DIPLOMATIC PRIVILEGES AND IMMUNITIES ACT 1968 (NZ)
Diplomatic Privileges Consular Immunities Regulations	SR 1969/136	1974/43 (NZ)
Diplomatic Immunities (Western Samoan	SR 1967/110	1974/43 (NZ)
Trade and Development Commissioner) Order

Diplomatic Privileges (Commonwealth SR 1973/99

Secretariat) Order

Diplomatic Privileges (Customs SR 1963/69

Co-operation) Council) Order

Diplomatic Privileges (FAO) Order SR 1959/52 SR 1961/14

SR 1967/96

Diplomatic Privileges (IAEA) Order SR 1960/162

xlvii

Niue Laws 2006 Vol 1

Diplomatic Privileges (ICAO) Order	SR 1959/53
Diplomatic Privileges (ICJ) Order	SR 1959/61
Diplomatic Privileges (ILO) Order	SR 1959/54
Diplomatic Privileges (IMCO) Order	SR 1960/141	SR 1961/67 SR 1969/66
Diplomatic Privileges (INTELSAT) Order	SR 1972/10
Diplomatic Privileges (ITU) Order	SR 1959/55
Diplomatic Privileges (New Zealand-United States Educational Foundation) Order	SR 1970/45
Diplomatic Privileges (SEATO) Order	SR 1961/18
Diplomatic Privileges (South Pacific Bureau for Economic Cooperation) Order	SR 1973/34
Diplomatic Privileges (South Pacific Commission) Order	SR 1959/56
Diplomatic Privileges (UNESCO) Order	SR 1959/57
Diplomatic Privileges (United Nations) Order SR 1959/51	SR 1965/18
Diplomatic Privileges (UPU) Order	SR 1959/58
Diplomatic Privileges (WHO) Order	SR 1959/59	SR 1961/66
Diplomatic Privileges (WMO) Order	SR 1959/60
DOGS ACT 1966 Dog Registration (Fees) Regulations	2005/2
DOMESTIC FISHING ACT 1995 Domestic Fishing Regulations	1996/1
ENTRY, RESIDENCE AND DEPARTURE TAX ACT 1985 Entry, Residence and Departure Regulations 1997/2
ENVIRONMENT ACT Biosafety (Genetically Modified Organisms) 2006/4 Regulations	–

xlviii

Chronological Table of Summary Legislation

EXTRADITION ACT 1965 Extradition and Fugitive Offenders Orders3
Albania	G 1927, III, 2874	G 1928, II,1433
Argentina	G 1894, I, 669
Australia	G 1926, I, 77
Austria	G 1874, 416	G 1902, II,2633 G 1935, III, 2845
Belgium	G 1902, I, 1158	G 1907, II, 2924 G 1911, II, 3406
Bolivia	G 1899, I, 11
Brazil	G 1874, 175
British Solomon Islands	G 1926, I, 77
Chile	G 1898, II, 1669
Colombia	G 1890, I, 351
Cuba	G 1905, II, 1898
Czechoslovakia	G 1927, I, 359	G 1927, III, 2915
Ecuador	G 1886, II, 1248
Estonia	G 1926, II, 2602	G 1927, II, 1455
Fiji	G 1926, I, 77
Finland	G 1925, II, 2176	G 1925, III, 3411
France	G 1878, II, 1137	G 1910, I, 749
German Colonies	G 1895, I, 772
Germany	G 1872, 739	G 1920, III, 3059
Gilbert and Ellice Islands (Kiribati and Tuvalu)	G 1926, I, 77

3These Orders were made under the Extradition Act 1965 (NZ) before 19 October 1974. In respect of possible extradition involving any of the countries listed it is necessary to check both whether the relevant treaty applies to Niue and whether extradition is available in respect of the particular offence.

xlix

Greece	Niue Laws 2006	Vol 1 G 1912, I, 1418
Guatemala		G 1887, II, 933	G 1914, II, 4082
Hungary		G 1874, 416	G 1902, II, 2633 G 1938, I, 902 SR 1940/10
Iceland		G 1873, 575	SR 1940/69
India		G 1904, II, 1967
Iraq		G 1934, III, 3358
Italy		G 1873, 445, 507
Latvia		G 1926, I, 429, 610
Liberia		G 1894, I, 825
Lithuania		G 1927, II, 2537	G 1928, II, 2485
Luxembourg		G 1881, I, 863
Mexico		G 1889, II, 810
Monaco		G 1892, II, 1215
Nauru		G 1926, I, 77
Netherlands		G 1899, I, 762
New Zealand		G 1926, I, 77	SR 1941/185
Nicaragua		G 1906, II, 2099
Norway		G 1874, I, 8	G 1907, II, 2995, 3138
Panama		G 1907, II, 3136
Papua		G 1926, I, 77
Paraguay		G 1911, II, 3158
Peru		G 1907, II, 2324
	l

Chronological Table of Summary Legislation

Poland	G 1935, III, 3365
Portugal	G 1894, I, 822	G 1933, II, 2081 G 1933, III, 2484
Romania	G 1894, II, 1264
Russia	G 1887, I, 720
Salvador	G 1883, I, 352
San Marino	G 1900, II, 1302
Serbia	G 1901, II, 2036
Spain	G 1879, I, 324	G 1889, II, 939, 947
Sweden	G 1874, 8	G 1907, II, 3138
Switzerland	G 1881, I, 412	G 1905, II, 1996 G 1936, I, 278
Thailand	G 1912, I, 193
Tonga	G 1883, I, 352
Tunis	G 1890, II, 876
USA	SR 1970/240
Uruguay	G 1885, I, 724	G 1892, I, 522
Western Samoa	G 1921, I, 92	G 1926, I, 77
FILM AND PUBLIC ENTERTAINMENT ACT 1979 Film and Public Entertainment (Fees) 2005/3 Regulations
GENERAL LAWS ACT 1968 Maritime Security Regulations	2004/2
INCORPORATED SOCIETIES ACT 1908 Incorporated Societies Regulations	SR 1938/34	SR 1954/41 SR 1957/254 SR 1967/265

li

Niue Laws 2006 Vol 1

LIQUOR ACT 1975
Liquor (Breweries) Regulations	1992/2
MISUSE OF DRUGS ACT 1975
Misuse of Drugs Regulations4	SR 1977/37	SR 1977/135
NIUE ACT 1966
Airport Charges Regulations	1992/1
Audit Regulations	SR 1970/103	1974/43 (NZ)
Births and Deaths Registration	1984	1995/5
Regulations
Co-operative Societies Regulations	SR 1953/106	SR 1957/53
G 1955, II, 1346
Dental Regulations	SR 1970/104	1974/43 (NZ)
Gaming (Fees) Regulations	2005/4
High Court Rules 1916	SR 1962/204	1962/72
	(Reprint)	1975/4
1975/5
1991/8
Land Court Rules	SR 1969/126	SR 1969/205
1974/43 (NZ)
1995/6
2005/273
Land Registration Regulations	SR 1969/169	SR 1969/205
SR 1972/52
2005/273
Marine Pollution Act 1974	SR 1972/143	1974/14 (NZ)
SR 1974/142
Oil in Navigable Waters (Prohibited Sea	SR 1971/103	1972/4 (NZ)
Areas)Regulations
Oil in Navigable Waters (Records, Transfer SR 1971/104	1972/4 (NZ)
and Enforcement of Convention Order)
Regulations
4See Cabinet Minutes 204 of 1976 and 70 to 1977.

lii

Chronological Table of Summary Legislation

Oil in Navigable Waters (Ships’ SR 1971/105 1972/4 (NZ) Equipment) Regulations

Marriage Regulations SR 1970/249

Penal Manual 2006/3

Sea Carriage of Goods Act 1940 1940/31 (NZ) SR 1946/19 (in part only) [s 14] 1961/68 (NZ)

1962/100(NZ)

1964/27(NZ)

1968/17(NZ)

2004/270

2006/279

NIUE BANK ACT 1994

Niue Bank Regulations 1994/1

PARTNERSHIP ACT 1908

Partnership Amendment Fees Regulations 1994/4

PARTNERSHIP APPLICATION ACT 1994

Partnership Amendment Forms Regulations 1995/2

PENSIONS AND BENEFITS ACT 1991

Pensions and Benefits Regulations 1998/7

PUBLIC HEALTH ACT 1965

International Sanitary Regulations 1951

Public Health (Notifiable Diseases) Notice 1991/6

PUBLIC REVENUES ACT 1959

Niue Treasury Rules 1960 1961

TERRITORIAL SEA AND EXCLUSIVE ECONOMIC ZONE ACT 1997

Niue Whale Sanctuary Regulations 2003/1

TRANSPORT ACT 1965

Transport (Fees) Regulations 2005/5

TRUSTEE ACT 1956

Trustees’ Commission Rules SR 1961/81

TRUSTEE COMPANIES ACT 1994

Trustee Companies Regulations 1994/5

liii

Niue Laws 2006 Vol 1

UNITED NATIONS ACT 1946 United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations	2004/5
VISITING FORCES ACT 1939 (NZ) Visiting Forces (Commonwealth Deserters and Absentees) Order	SR 1969/81
Visiting Forces Order	SR 1966/33
Visiting Forces (Penal Arrangement) Order	SR 1963/61

Visiting Forces (Relative Ranks) Regulations SR 1971/223

WILDLIFE ACT 1972

Wildlife Protected Species Notice 1991/9

liv

CHRONOLOGICAL TABLE OF SUBSIDIARY LEGISLATION

This table lists the subsidiary legislation made in Niue from 1990 to 1 December 2006.

Year
No.	In Force	Title			Status
1990
1	01.12.90	Pensions and Benefits	Repealed by 1992/4
1991
1	01.07.91	Niue (Gambling)	Repealed by 2005/4
2	01.09.91	Animal Quarantine (Disease Contron( �/p>
3	01.09.91	Animal Quarantine (Fees)
4	01.09.91	Agriculture Quarantine (Prevention of
Animal Disease)
5	03.09.91	Niue Customs Tariff (Cigarettes and
Tobacco)
6	01.10.91	Public Health (Notifiable Diseases)
7	02.03.92	Transport (Annual Licence Fees)		Repealed by 2005/5
8	01.12.91	Rules of the High Court
9	19.11.91	Wildlife Protected Species
1992
1	01.04.92	Niue Airport Charges
2	22.09.92	Liquor (Breweries)
3	20.08.92	Pensions and Benefits	Repealed by 1993/2
1993
1	01.07.93	Agricultural Quarantine Phytosanitary
Certificate (Fees)
2	01.11.93	Pensions and Benefits	Repealed by 1998/2
1994
1	08.06.94	Niue Bank
2	08.06.94	Off-Shore Banking	Repealed by Act 1997/227
3	08.06.94	Off-Shore Insurance	Repealed by Act 2006/275
4	08.06.94	Partnership Amendment Fees
5	08.06.94	Trustee Companies

lv

Niue Laws 2006 Vol 1

1995
1	01.07.95	Off-Shore Banking	Repealed by Act 1997/227
2	01.07.95	Partnership Amendment Forms
3	19.09.95	Niue Act Revocations	Spent
4	19.09.95	Customs	Spent
5	01.07.95	Births and Deaths	Amended 1984
6	01.07.95	High Court of Niue Land Division
(Fees)
1996
1	05.03.96	Domestic Fishing
2	01.01.97	Niue Customs Tariff (General	Amended by 1997/3
Amendments)
1997
1	14.01.97	Departure Travel Tax	Repealed by 2002/1
2	14.01.97	Entry, Residence and Departure
3	14.01.97	Niue Customs Tariff (General
Amendments)
4	05.12.97	Niue Customs (Temporary Waiver)	Spent
5	04.01.97	Business Licence
1998
1	31.12.98	Child Allowance	Repealed by 1998/6
2	01.07.98	Pensions and Benefits	Repealed by 1998/7
3	20.01.98	International Banking (Fees)
4	01.07.98	Niue Customs (Temporary Waiver)	Spent
5	03.11.98	Niue Customs Tariff (Miscellaneous
Transactions and Commodities)
6	01.01.99	Child Allowance (No 1)	Repealed by 2004/3
7	13.10.98	Pensions and Benefits
1999
1	15.06.99	Niue Customs (Temporary Waiver)	Spent
2002
1	15.10.02	Departure Travel Tax
2003
1	14.05.02	Niue Whale Sanctuary
2004
1	08.01.04	Public Emergency	Spent
2	01.07.04	Maritime Security
3	01.07.04	Child Allowance (Fees)
4	15.07.04	Public Service

lvi

Chronological Table of Summary Legislation

5	23.11.04	UN Sanctions (Terrorism Suppression
and Afghanistan Measures)
2005
1	24.06.03	Arms Registration (Fees)
2	24.06.03	Dogs (Fees)
3	24.06.03	Film and Public Entertainment
4	24.06.03	Gaming (Fees)
5	24.06.03	Transport (Fees)
2006
1	01.01.05	Customs Tariff
2	01.08.06	Companies Act Commencement	Spent
3	26.09.06	Penal Manual
4	04.07.06	Biosafety

lvii

lviii Niue Laws 2006 Voll

1

THE CONSTITUTION OF NIUE

The Making of Laws

28 Power to make laws

29 Introduction of Bills, etc, into Niue

Assembly

30 Restrictions with regard to financial

measures

31 [Repealed]

32 Special provisions with regard to measures

affecting the Niue Public Service

33 Special provisions with regard to measures

affecting Niuean land

34 When Bills become law

35 Power of the Niue Assembly to repeal or

amend this Constitution

36 New Zealand Parliament not to legislate for

Niue, and New Zealand subordinate

legislation not to apply to Niue, except with

consent

The Seal of Niue

15 Seal of Niue

PART II

THE LEGISLATIVE GOVERNMENT OF NIUE

The Niue Assembly

16 Niue Assembly

17 Nationality and residential qualifications of

electors and candidates

18 Public servants may become candidates or

be elected

19 Members disqualified from becoming

public servants or interested in

Government contracts

20 Speaker of Niue Assembly

21 Members to take Oath of Allegiance

22 Procedure of Niue Assembly

23 Languages

24 Privileges of Niue Assembly and its

members

25 Remuneration of Premier, other Ministers,

other members of the Niue Assembly, and

the Speaker

26 Dissolution of the Niue Assembly

27 Clerk of the Niue Assembly

PART III THE JUDICIARY

The High Court of Niue

37 High Court established

38 Jurisdiction of Divisions of the High Court

39 Judges of the High Court

40 Acting Chief Justice of the High Court

41 Temporary Judges

Appointment, Tenure of Office and Salaries of Judges

42 Appointment of Judges

43 Tenure of office of Judges

44 Salaries of Judges

45 Removal of Judges from office

Commissioners of the High Court

46 Commissioners of the High Court

47 Temporary Commissioners

48 Jurisdiction of Commissioners of the High

Court

49 Remuneration of Commissioners of the

High Court

50 Removal of Commissioners from office

Justices of the Peace

51 Justices of the Peace

2 Niue Laws 2006 Vol 1

Court of Appeal

52 Court of Appeal established

53 Number of Judges

54 Judges not to sit on appeals from own

decision

55 Determination of Court of Appeal

55A Jurisdiction of Court of Appeal

55B Transmission of order of Court of Appeal

Oath of Allegiance and Judicial Oath

55C Oath of Allegiance and Judicial Oath

PART IV

THE PUBLIC REVENUES OF NIUE

56 Legislative control of public revenue and

expenditure

57 Niue Government Account

58 Annual estimates and appropriations

59 Cabinet to supervise expenditure

60 Audit

PART V

HEALTH, EDUCATION AND OTHER SOCIAL SERVICES

61 Health, education, and other social services

PART VI

THE NIUE PUBLIC SERVICE

62 Niue Public Service

63 Secretary to the Government

Niue Public Service Commission

64 Niue Public Service Commission

65 Acting members of Commission

66 Procedure of Commission

67 Delegation of powers

Management of Niue Public Service

68 Functions and powers of Commission

69 Appointments to Niue Public Service

Reports and Recommendations to Assembly

70 Commission to make certain reports and

recommendations to Assembly

PART VII TRANSITIONAL PROVISIONS

71 Existing law to continue

72-80 [Spent]

81 Seal of Niue

PART VIII INTERPRETATION

82 Interpretation

3

THE CONSTITUTION OF NIUE

PART I
THE EXECUTIVE GOVERNMENT OF NIUE

1 Executive authority vested in the Crown

The executive authority of Niue is vested in Her Majesty the Queen in right
of New Zealand, and the Governor-General of New Zealand is accordingly the
representative of Her Majesty the Queen in relation to Niue.

The Cabinet

2 Cabinet of Ministers of Niue

(1) There shall be a Cabinet of Ministers of Niue (hereinafter referred to as
the Cabinet) which shall consist of the Premier of Niue (who shall be a member of
the Niue Assembly) and 3 other members of the Niue Assembly.
(2) Subject to this Constitution, the executive authority of Niue may be
exercised on behalf of Her Majesty by the Cabinet, which shall have the general
direction and control of the executive government of Niue and shall have such
other functions and powers as are conferred on it by law.

3 Ministers to be collectively responsible

(1) The members of the Cabinet (hereinafter referred to as Ministers) shall
be collectively responsible to the Niue Assembly.
(2) Subject to Article 7 of this Constitution, the Ministers shall continue in
office until their successors are appointed pursuant to Article 5(2) of this
Constitution.

4 Premier of Niue

(1) There shall be a Premier of Niue, who shall be elected to that office by
an absolute majority of the members present and voting at a meeting of the Niue
Assembly.
(2) The Niue Assembly shall proceed to elect the Premier at the first meeting
of the Assembly after a general election and also in each of the following
circumstances –
(a) If the Premier ceases to be a member of the Assembly for any reason
other than the dissolution thereof; or
(b) If the Premier tenders his resignation by writing under his hand
addressed to the Speaker or is deemed to have tendered his
resignation pursuant to Article 6(3) or Article 7(3) of this
Constitution.

5 Appointment of Ministers after election of Premier

(1) As soon as practicable after his election to that office, the Premier elect
shall nominate to the Speaker, with their consent, 3 other members of the Niue
Assembly for appointment as Ministers.
(2) Upon receiving those nominations, the Speaker shall appoint as
Ministers the Premier elect and the members so nominated.
(3) Appointment under subclause (2) of this Article shall be made by the
Speaker by instrument under the Seal of Niue.
4 Niue Laws 2006 Vol 1
(4) If the Premier elect has not within 7 days after but excluding the date of his election to that office submitted to the Speaker his nominations for appointments to the Cabinet pursuant to this Article, his election to that office shall have no effect, and, subject to Article 26(1)(d) of this Constitution, a meeting of the Niue Assembly shall be held as soon as practicable for the purpose of again electing a Premier.

6 Vote of confidence in Cabinet

(1) At any meeting of the Niue Assembly –
(a) The Premier, or another Minister acting on behalf of the Premier,
may give notice of his intention to move a vote of confidence in the
Cabinet, either generally or on any measure proposed by the Cabinet
for adoption by the Assembly;
(b) Any 4 or more members of the Assembly who are not Ministers
may give notice of their intention to move a vote of no confidence
in the Cabinet.
(2) Any motion of which notice is given under subclause (1) of this Article
shall be voted on at a meeting of the Niue Assembly held not earlier than 5 days
nor later than 10 days after but excluding the date of the giving of the notice.
(3) If the motion of confidence is lost, or, as the case may be, the motion of
no confidence is carried, the Premier shall be deemed to have tendered his
resignation from his office at the expiration of 5 days after but excluding the date
of the meeting of the Niue Assembly, unless before the expiration of that period
he requests the Speaker to dissolve the Assembly.

7 Vacation of office by Ministers

(1) Any Minister, other than the Premier, shall vacate his office if –
(a) His appointment to that office is revoked by the Speaker, acting on
the request of the Premier, by instrument under the Seal of Niue; or
(b) He ceases to be a member of the Niue Assembly for any reason
other than the dissolution thereof; or
(c) He resigns his office by writing under his hand delivered to the
Speaker.
(2) Within 7 days after the occurrence of any vacancy in the office of
Minister, other than the Premier, the Premier shall nominate to the Speaker, with
the consent of the member, a member of the Niue Assembly for appointment as a
Minister, and the Speaker shall by instrument under the Seal of Niue appoint the
member so nominated.
(3) If the Premier does not, within 7 days after but excluding the date of
the occurrence of a vacancy in the office of a Minister, other than the Premier,
nominate a Minister pursuant to subclause (2) of this Article, he shall be deemed
to have tendered his resignation from his office as Premier at the expiration of
that period of 7 days.

8 Temporary Ministers

(1) Whenever it appears to the Premier that any Minister will, by reason of
illness or absence from Niue, be unable to discharge his functions in Niue for a
period of 7 days or longer, the Premier shall nominate to the Speaker, with the
consent of the member, a member of the Niue Assembly for appointment as a
temporary Minister, and the Speaker shall, by instrument under the Seal of Niue,
appoint that member accordingly.

Constitution of Niue 5

(2) Every such temporary Minister shall be appointed in place of the Minister who is unable to discharge his functions in Niue, and, subject to subclause (3) of this Article, shall hold office, as if he had been appointed under Article 5 of this Constitution.
(3) Every such temporary Minister, unless he sooner vacates his office pursuant to Article 7 of this Constitution, shall remain in office until the Minister in whose place he is appointed is again able to discharge his functions in Niue.

9 Acting Premier

(1) Whenever, by reason of illness or absence from Niue, the Premier is
temporarily prevented from discharging his functions in Niue, the Speaker, acting
on the request of the Cabinet, may, by instrument under the Seal of Niue, appoint
another Minister to discharge the functions of Premier until such time as the
Premier is capable of again discharging his functions or has vacated his office.
(2) Where the Premier dies or tenders his resignation to the Speaker after a
dissolution of the Niue Assembly and before the appointment of the Ministers
after the general election following that dissolution, the Speaker, acting on the
request of the Cabinet, shall, by instrument under the Seal of Niue, appoint another
Minister to discharge the functions of Premier until the Ministers are appointed
after that general election.

10 Official oath

Every Minister shall, before assuming the functions of his office, take and
subscribe before the Speaker the following oath –
I,........., being chosen and accepted as Premier of Niue (or a Minister), swear by
Almighty God that I will to the best of my judgment, at all times when thereto
required, freely give my counsel and advice for the good management of the affairs
of Niue, and that I will not directly or indirectly reveal such matters as may be
debated in the Cabinet or any committee of the Cabinet and committed to my
secrecy, but that I will in all such things be a true and faithful Premier of Niue (or
Minister). So help me God.

11 Allocation of responsibilities to Ministers

(1) The Premier shall from time to time, by writing under his hand
countersigned by the Clerk of the Cabinet and published in the Niue Gazette, allocate
to any Minister (including himself) the primary responsibility for any Department
or function of Government, and may from time to time in like manner vary any
such allocation.
(2) The Premier shall have the primary responsibility for any Department
or function of Government in respect of which, for the time being, no allocation
under subclause (1) of this Article is in effect.

12 Meetings of Cabinet

(1) No business shall be transacted at any meeting of the Cabinet unless at
least 3 Ministers are present.
(2) The Cabinet shall not be disqualified for the transaction of business by
reason only that there is a vacancy among its members, or that, in any case where
Article 8 of this Constitution applies, no appointment has been made pursuant to
that Article. No proceedings of the Cabinet shall be questioned on the ground that
some person who acted as a Minister in relation to those proceedings was not
qualified so to act.
6 Niue Laws 2006 Vol 1
(3) Notice of every meeting of the Cabinet and a copy of every paper to be considered at that meeting shall be given to each Minister, and to the Secretary to the Government.
(4) The Secretary to the Government shall have the right to attend any meeting of the Cabinet and to speak on any matter under consideration by the Cabinet, and he shall so attend if required to do so by the Premier.
(5) The decision of the Cabinet on any matter shall be taken only by the
Ministers present at a meeting of the Cabinet.
(6) Subject to this Article, the Cabinet shall regulate its own procedure in
such manner as it thinks fit.

13 Rules, other enactments, and decisions of Cabinet

Any rule or other enactment of the Cabinet shall have effect, and any other
decision of the Cabinet shall be duly authenticated, when that rule or other
enactment, or the record of that decision, has been signed by the Premier, whether
or not he was present at the meeting of the Cabinet at which the rule or other
enactment or decision was made, and by the Clerk of the Cabinet.

14 Clerk of the Cabinet

There shall be an officer of the Niue Public Service to be called the Clerk of
the Cabinet, who shall be responsible for arranging the business for, and keeping
the minutes of, meetings of the Cabinet, and for conveying decisions of the Cabinet
to the appropriate person or authority, and shall perform with respect to the Cabinet
such secretarial and other functions as may be required.

15 Seal of Niue

The Seal of Niue

(1) There shall be a Public Seal of Niue (in this Constitution referred to as the Seal of Niue), to be in such form or forms as the Cabinet from time to time approves.
(2) The Seal of Niue shall be in the custody of the Speaker.
(3) The Seal of Niue may be used by the Speaker for the authentication of
any public document in relation to the Government of Niue or for the execution
of any document required by law to be executed under the Seal of Niue.
(4) Judicial notice shall be taken of the Seal of Niue in all Courts.
PART II
THE LEGISLATIVE GOVERNMENT OF NIUE

The Niue Assembly

16 Niue Assembly

(1) There shall be in and for Niue a legislative Assembly to be called the
Niue Assembly.
(2) The Niue Assembly shall consist of –
(a) The Speaker; and
(b) Twenty members to be elected by secret ballot under a system of
universal suffrage in the following manner –
(i) Fourteen members, each of whom shall represent a village
constituency, shall be elected by the electors of that constituency;
(ii) Six members shall be elected by the persons qualified to be
electors of Niue voting on a common roll, which, for the purpose
of electing those members, shall comprise the rolls of the several
village constituencies.

Constitution of Niue 7

(3) Subject to this Article and to Articles 17, 18, 19, 24 and 25 of this Constitution, the boundaries of village constituencies, the qualifications and disqualification of electors and of candidates, the mode of electing members of the Niue Assembly, and the terms and conditions of their membership shall be as prescribed by law:
Provided that –
(a) There shall be 14 village constituencies; and
(b) Every person qualified to be an elector for the election of members
of the Niue Assembly shall be entitled to vote in one, and one only,
village constituency; and
(c) Any determination or redetermination of the boundaries of any
village constituency shall, so far as practicable, having due regard
to local community interest, be made in accordance with the
principle that the number of electors in that village constituency
should not be substantially greater or smaller than the number of
electors in any other village constituency.
(4) Unless the context otherwise requires, every reference in this
Constitution to a member of the Niue Assembly shall be construed as a reference
to a member elected pursuant to subclause (2)(b) of this Article, and shall, in any
case where the Assembly has been dissolved, be read as a reference to a person
who was a member of the Assembly immediately before that dissolution.

17 Nationality and residential qualifications of electors and candidates

(1) Without limiting the provisions of any law prescribing any additional
qualifications, a person shall be qualified to be an elector for the election of members
of the Niue Assembly, or to be a candidate at any such election, if, and only if, that
person –
(a) Is either –
(i) a New Zealand citizen; or
(ii) a Permanent Resident of Niue as defined by Act; and,
(b) Has at some period resided continuously in Niue for not less than
3 years; and
(c) Has been ordinarily resident in Niue throughout the period of 12
months immediately preceding an application for enrolment as an
elector or, as the case may be, nomination as a candidate.
(2) For the purposes of this Article, a person shall be deemed to be ordinarily
resident in Niue if, and only if –
(a) He is actually residing in Niue; or
(b) Having been actually resident in Niue with the intention of residing
there indefinitely, he is outside Niue but has, and has had ever since
he left Niue, an intention to return and reside there indefinitely:
Provided that any person who has been outside Niue continuously for any
period of more than 3 years shall be deemed not to have such an intention, unless
during the whole or substantially the whole period of that absence he was
undergoing a course of education or of technical training or instruction, or was in
the service of the Government of Niue.

18 Public servants may become candidates or be elected

(1) Employees of the Niue Public Service who become candidates for
election as members of the Niue Assembly shall be granted leave of absence for
the purposes of their candidature in accordance with such terms and conditions
as may be prescribed by law.
8 Niue Laws 2006 Vol 1
(2) If any such employee is elected as a member of the Assembly, he shall, on being declared so elected, be deemed to have been granted leave of absence without salary from his employment in the Niue Public Service for the period during which he is a member.

19 Members disqualified from becoming public servants or interested in

Government contracts

The seat of any member of the Niue Assembly shall become vacant –
(a) If he becomes an employee of the Niue Public Service, or, being an
employee of that Service at the time of his election, he accepts paid
employment in that Service, or;
(b) If he otherwise becomes interested in the execution or enjoyment
of any contract under which any public money is payable, except
to such extent as may be permitted by law.

20 Speaker of Niue Assembly

(1) The Speaker of the Niue Assembly shall be elected to that office by an
absolute majority of the members present and voting at a meeting of the Niue
Assembly.
(2) Only a person who is qualified for election as a member of the Niue
Assembly may be elected as Speaker.
(3) If any person elected as Speaker is, at the time of that election, a member
of the Niue Assembly, he shall vacate his office as a member when he enters upon
the duties of the office of Speaker.
(4) The election of the Speaker shall take place, before the despatch of any
other business, at the first meeting of the Assembly after each general election,
and, at a meeting of the Assembly called for that purpose, as soon as possible after
any vacancy in the office of Speaker has occurred.
(5) Before a person who has been elected Speaker enters upon the duties
of his office, he shall take and subscribe before the Clerk of the Niue Assembly at
a meeting of the Assembly the Oath of Allegiance prescribed in Article 21 of this
Constitution, and the provisions of that Article shall apply with the necessary
modifications as if the references therein to a member were a reference to the
Speaker.
(6) The Speaker may resign his office by writing under his hand addressed
and delivered to the Clerk of the Niue Assembly, and shall vacate his office –
(a) On the entry into office of a new Speaker elected when the Assembly
first meets after a general election; or
(b) If he ceases to be qualified for election as a member of the Assembly;
or
(c) If he becomes a candidate at any election of a member or members
of the Assembly.
(7) If at any meeting of the Assembly the Speaker is absent or the office of
Speaker is vacant, the members of the Assembly present at that meeting shall
elect one of their number, not being a Minister, to preside over that meeting until
the Speaker is again present, or, as the case may be, until a Speaker has been
elected and has entered upon the duties of his office.
(8) If, at any time when the Assembly is not meeting, the Speaker is, by
reason of illness or absence from Niue, temporarily prevented from performing
his functions, or the office of Speaker is vacant, then, until the Assembly again
meets, or, as the case may be, the Speaker is again able to perform his functions,
those functions shall be performed by a member of the Assembly, not being a

Constitution of Niue 9

Minister, who has presided over a meeting of the Assembly pursuant to subclause (7) of this Article. If more than one member of the Assembly is so qualified and is available to perform the functions of the Speaker, those functions shall be performed by the member who most recently presided over a meeting of the Assembly, pursuant to that subclause.
(9) If it appears that no person is, for the time being, qualified and available
to perform the functions of the Speaker –
(a) A meeting of the Assembly shall be called as soon as possible, and
the Clerk of the Niue Assembly shall perform such of the functions
of the Speaker as are required to be performed for the purpose of
enabling that meeting to be held, and the provisions of Article 22(6)
of this Constitution shall not apply to that meeting; or
(b) In any case where the Assembly has been dissolved and the ensuing
general election has not taken place, a meeting of those persons
who were members of the Assembly immediately before its
dissolution shall be called as soon as possible for the purpose of
electing one of their number to perform the functions of the Speaker
until the Speaker is again able to perform his functions, or, as the
case may be, the new Assembly first meets; and the Clerk of the
Niue Assembly shall do everything necessary to ensure that the
meeting is called and to certify to the result of the election. The
person elected shall, for the purpose of subclauses (7) and (8) of
this Article, be deemed to be a person who has presided over a
meeting of the Assembly.
(10) Every document, including the certificate on any Bill, signed by the
Speaker in the performance of his functions shall be countersigned by the Clerk of
the Niue Assembly, and, where pursuant to this Article, any such document or
certificate is signed by a member performing the functions of the Speaker, it shall
be so stated on the document or in that certificate.

21 Members to take Oath of Allegiance

Except for the purpose of enabling this Article to be complied with and for
the election of a Speaker, no member of the Niue Assembly shall be permitted to
sit or vote therein until he has taken and subscribed the following oath before the
Speaker namely:
I,..........................., swear by Almighty God that I will be faithful and bear true
allegiance to Her (or His) Majesty [Specify the name of the reigning Sovereign, as thus:

Queen Elizabeth the Second, Her (or His) heirs and successors according to law, and

that I will justly and faithfully carry out my duties as member of the Niue Assembly.
So help me God.

22 Procedure of Niue Assembly

(1) The Niue Assembly shall meet at such places and at such times as the
Speaker, acting on the request of the Premier, from time to time appoints in that
behalf:
Provided that, if more than 6 weeks has elapsed since the time of the last meeting
of the Assembly, any 4 or more members of the Assembly who are not Ministers
may request the Speaker to appoint a place and time for a meeting of the Assembly,
and the Speaker shall appoint a place and time in that behalf, such time to be not
earlier than 5 days nor later than 10 days after but excluding the date of the making
of the request.
10 Niue Laws 2006 Vol 1
(2) The Speaker shall preside at every meeting of the Niue Assembly at which he is present.
(3) Except where this Constitution otherwise provides, every question before the Niue Assembly shall be decided by a majority of the votes of the members present.
(4) Subject to any law requiring any member of the Assembly to refrain
from voting on any matter concerning a contract in whose execution and enjoyment
he is interested, every member present when any question is put to the Niue
Assembly shall vote thereon.
(5) The Speaker or other presiding officer shall not have a casting vote and
the Speaker shall not have a deliberative vote, but a member presiding in place of
the Speaker shall have a deliberative vote.
(6) Subject to Article 20(9)(a) of this Constitution, no business shall be
transacted at any meeting of the Niue Assembly if the number of members then
present, including any member presiding in place of the Speaker, is less than 10.
(7) The powers of the Niue Assembly shall not be affected by any vacancy
in its membership.
(8) No Bill shall be passed unless it has been read 3 times in the Assembly.
(9) Any Bill or other business before the Assembly at its dissolution shall
lapse.
(10) Subject to this Constitution, the Niue Assembly may from time to time
make Standing Orders for the regulation and orderly conduct of its proceedings and the despatch of business.

23 Languages

(1) The Speaker or any member of the Niue Assembly may speak in the
Assembly either in the Niuean language or in the English language:
Provided that the Clerk of the Niue Assembly shall, at the request of the
Speaker or of any member made through the Speaker, arrange for the remarks of
the Speaker or of any member to be translated into the English language or the
Niuean language, as the case may be.
(2) Every Bill introduced into the Niue Assembly and every Act shall be in
the Niuean language and also in the English language:
Provided that the Assembly may, by resolution, determine that any Bill or
Act shall be in the Niuean language or English language only.
(3) The records of proceedings in the Niue Assembly or in Committees
thereof shall be in the Niuean language, and such of those records as are specified
in the Standing Orders of the Assembly or as the Assembly may by resolution
determine shall also be in the English language.
(4) The Niuean version and the English version of this Constitution and,
subject to subclause (5) of this Article, the Niuean version and the English version
of any record of proceedings in the Niue Assembly or any Committee thereof and
of any enactment shall be equally authentic:
Provided that if in any case there is any apparent discrepancy between any
provision of the Niuean version and of the English version of this Constitution or
of any such record or of any enactment, then, in construing that provision, regard
shall be made to all the circumstances that tend to establish the true intent and
meaning of that provision.
(5) In the case of any record of proceedings in the Niue Assembly or any
Committee thereof the Assembly may by resolution determine, and in the case of
any enactment it may be expressly provided, that where there is any conflict
between the Niuean version and the English version of any such record or of any
such enactment, one version only, being either the Niuean version or the English
version, shall prevail.

Constitution of Niue 11

24 Privileges of Niue Assembly and its members

(1) The validity of any proceedings in the Niue Assembly or in any
Committee thereof, and the validity of any certificate duly given by the Speaker
under Article 34 or Article 35 of this Constitution shall not be questioned in any
Court.
(2) Neither the Speaker nor any member or officer of the Niue Assembly in whom powers are vested for the regulation of procedure or the conduct of business or the maintenance of order shall in relation to the exercise by him of any of those powers be subject to the jurisdiction of any Court.
(3) Neither the Speaker nor any member of the Niue Assembly nor any person entitled to speak therein shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Assembly or in any Committee thereof.
(4) No person shall be liable to any proceedings in any Court in respect of the publication by or under the authority of the Niue Assembly of any report, paper, vote, or proceeding.
(5) Subject to this Article, the privileges of the Niue Assembly and of the Committees thereof and the privileges of members and the Speaker of the Assembly and of the persons entitled to speak therein may be determined by Act; and any such Act may define offences relating to breach of privilege or contempt of the Assembly, and may make provision for the trial and punishment of such offences by the High Court, but not otherwise.

25 Remuneration of Premier, other Ministers, other members of the Niue

Assembly, and the Speaker

(1) The Niue Public Service Commission may from time to time, and shall
when there is a general alteration of the levels of remuneration of employees of
the Niue Public Service, report and make recommendations to the Assembly as to
the levels of remuneration and other entitlements of the Premier, other Ministers,
the members of the Assembly who are not Ministers, and the Speaker.
(2) The Premier, the other Ministers, the members of the Niue Assembly
who are not Ministers, and the Speaker may receive such remuneration and
allowances and such other benefits as may be prescribed by Act.
(3) If, in the opinion of the Speaker, any Bill, or any amendment to any
Bill, deals with a matter to which this Article relates, that Bill or that amendment
may not be introduced unless –
(a) There is before the Assembly a report and recommendations made
by the Niue Public Service Commission pursuant to this Article;
and
(b) The issues raised by that Bill or by that amendment are, in the
opinion of the Speaker, substantially similar to those considered in
the Commission’s report and recommendations.

26 Dissolution of the Niue Assembly

(1) The Speaker shall, by notice in the Niue Gazette dissolve the Niue
Assembly –
(a) At the expiration of 3 years from the date of the last preceding
general election, if it has not been sooner dissolved;
(b) At any time after the expiration of 2 years and 9 months from the
date of the last preceding general election, if the Premier so requests;
(c) If, pursuant to Article 6(3) of this Constitution, the Premier requests
him to dissolve the Assembly;
12 Niue Laws 2006 Vol 1
(d) If a new election of Premier has been held pursuant to Article 5(4) of this Constitution and that new election has become of no effect pursuant to that subclause.
(2) There shall be a general election of the members of the Niue Assembly at such time, being not less than 4 weeks nor more than 6 weeks after the date of every dissolution of the Assembly, as the Speaker shall, at the request of the Premier, appoint, or, if the Premier makes no such request within 7 days of any dissolution, as the Speaker, acting in his own discretion, shall appoint, by notice in the Niue Gazette.

27 Clerk of the Niue Assembly

(1) There shall be an officer of the Niue Public Service to be called the
Clerk of the Niue Assembly, who shall be responsible for –
(a) Arranging the business and keeping the records of the proceedings
of the Niue Assembly; and
(b) Arranging for the signing of documents and giving of certificates
by the Speaker, whenever any signature or certification by the
Speaker is required pursuant to this Constitution or to any
enactment, and keeping the records of all documents and certificates
so signed or given.
(2) The Clerk of the Niue Assembly shall perform with respect to the
Speaker and to the members of the Assembly such secretarial and other functions
as may be required.

28 Power to make laws

The Making of Laws

(1) Subject to this Constitution, the Niue Assembly may make laws for the peace, order, and good government of Niue.
(2) The powers of the Niue Assembly shall extend to the making, in relation
to Niue, of laws having extraterritorial operation, that is to say, affecting or
concerning any person or matter or thing outside Niue or any act done or omitted
outside Niue.
(3) Without limiting the generality of the powers conferred by this Article,
those powers shall include the power to repeal or revoke or amend or modify or
extend, in relation to Niue, any law in force in Niue.
(4) Except to the extent to which it is inconsistent with this Constitution,
no Act and no provision of any Act shall be deemed to be invalid solely on the
ground that it is inconsistent with any law in force in Niue.

29 Introduction of Bills, etc, into Niue Assembly

Subject to this Constitution and to the Standing Orders of the Niue
Assembly, any member of the Assembly may introduce any Bill or propose any
motion for debate in or present any petition to the Assembly, and the same shall
be considered and disposed of in accordance with the Standing Orders.

30 Restrictions with regard to financial measures

Except with the recommendation or consent of the Premier or another
Minister acting on behalf of the Premier, the Niue Assembly shall not proceed
upon any Bill (including an amendment to any Bill) which, in the opinion of the
Speaker, would dispose of or charge any of the public revenues of Niue, or revoke
or alter, otherwise than by way of reduction, any disposition thereof or charge
thereon, or impose or alter or abolish any toll, rate, due, fee, fine, or tax.

Constitution of Niue 13

31 [Repealed]

32 Special provisions with regard to measures affecting the Niue Public

Service

(1) The Niue Assembly shall not proceed upon any Bill or upon an
amendment to any Bill, after its introduction, if, in the opinion of the Speaker, that
Bill or that amendment makes provision concerning –
(a) The pay, allowances, discipline, control and management of the
Niue Public Service; or
(b) The appointment, promotion, transfer, retirement, removal,
suspension, and dismissal of employees of the Niue Public Service,
including the review of or appeals against any decisions in relation
thereto –
unless the Assembly has before it a report, made by the Niue Public Service
Commission pursuant to this Article, on the legal, constitutional, and policy issues
raised by that Bill or by that amendment.
(2) If, pursuant to this Article, the Assembly by resolution decides to request
the Niue Public Service Commission to report in relation to a Bill or to an
amendment, the Speaker shall cause to be sent to the Niue Public Service
Commission a copy of that resolution, and an account of the Assembly’s discussions
thereon, together with a copy of that Bill, or as the case may be, of that amendment
and of the Bill to which it relates; but, if the Assembly takes a contrary decision,
the Bill or the amendment to which that decision relates shall lapse.
(3) When, pursuant to this Article, the Assembly has received the report of
the Niue Public Service Commission in relation to a Bill or an amendment to a
Bill, and a new or revised amendment is thereafter introduced, the requirements
of this Article shall not apply in relation to that new or revised amendment, unless,
in the opinion of the Speaker, it raises legal, constitutional, or policy issues which
were not raised by the previous request to that Commission or by its report.

33 Special provisions with regard to measures affecting Niuean land

(1) The Niue Assembly shall not proceed upon any Bill or upon an
amendment to any Bill, after its introduction, if in the opinion of the Speaker, that
Bill or that amendment makes provision concerning –
(a) The customary title to Niuean land; or
(b) The alienation of Niuean land; or
(c) The purchase, taking, or other acquisition of Niuean land for any
public purpose; or
(d) [Repealed]
unless the Assembly has before it a report, made by a Commission of Inquiry,
having such powers and authority to summon witnesses and to receive evidence
as are conferred on a Commission of Inquiry by law, on the legal, constitutional,
and policy issues raised by the Bill or by that amendment.
(2) If the Assembly by resolution decides that any Bill or amendment to
which this Article applies is worthy of consideration by a Commission of Inquiry
pursuant to this Article, the Cabinet shall as soon as possible consider whether
and in what manner it should act to enable effect to be given to the Assembly’s
decision; but, if the Assembly takes a contrary decision in relation to any such Bill
or amendment, that Bill or that amendment shall lapse.
(3) Whenever the Assembly has by resolution decided that any Bill or
amendment to which this Article applies is worthy of consideration by a
Commission of Inquiry pursuant to this Article –
14 Niue Laws 2006 Vol 1
(a) The Cabinet may establish a Commission of Inquiry with appropriate terms of reference, or may make any necessary alteration in the terms of reference of a Commission of Inquiry already established to inquire into any matter affecting Niuean land; and the Premier shall as soon as possible inform the Assembly of any arrangement that has been made by the Cabinet to enable effect to be given to the Assembly’s decision; and
(b) Whenever it appears that such an arrangement has been made by the Cabinet, the Speaker shall cause to be sent to the Commission of Inquiry designated by the Cabinet for the purpose of considering the Bill or the amendment to which the Assembly’s resolution relates a copy of that resolution and an account of the Assembly’s discussions thereon, together with a copy of the Bill or, as the case may be, a copy of the amendment and of the Bill to which it relates, and the Commission of Inquiry shall, pursuant to this Article, in due course make its report to the Assembly.
(4) When, pursuant to this Article, the Assembly has received the report of a Commission of Inquiry in relation to a Bill or to an amendment to a Bill and a new or revised amendment is thereafter introduced, the requirements of this Article shall not apply in relation to that new or revised amendment, unless, in the opinion of the Speaker, it raises legal, constitutional, or policy issues which were not raised by the previous report of that Commission of Inquiry.
(5) In this Article –
“alienation” in relation to Niuean land, means the making or grant of any
transfer, sale, gift, lease, licence, easement, profit, mortgage, charge,
encumbrance, trust, or other disposition, whether absolute or limited,
and whether legal or equitable; and includes a contract to make any
such alienation; and also includes the surrender or variation of a lease,
licence, easement, or profit and the variation of the terms of any other
alienation as hereinbefore defined;
“customary title” means title in accordance with the customs and usages
of Niue;
“Niuean land” means land in Niue vested in the Crown but held by Niueans
according to the customs and usages of Niue; and includes any land
granted by the Crown in fee simple before the 1st day of April 1916 and
any customary land declared to be Niuean freehold land or native
freehold land by an order of any Court before the 1st day of November
1969.

34 When Bills become law

(1) Subject to the requirements of Article 35 of this Constitution in those
cases to which that Article applies, a Bill shall become law if, and only if – (a) It has been passed by the Niue Assembly; and
(b) The Speaker, being satisfied that it has been passed in accordance
with this Constitution and with the Standing Orders of the
Assembly, has endorsed on a copy of the Bill a certificate of
compliance with the requirements of this Article, and has, in the
presence of the Clerk of the Niue Assembly, signed that certificate
and sealed that copy with the Seal of Niue, and inscribed thereon
the date of that signing and sealing; and
(c) The Clerk of the Niue Assembly has, in the presence of the Speaker,
countersigned the certificate on that copy of the Bill.

Constitution of Niue 15

(2) A Bill which becomes law in accordance with the requirements of this
Article, shall be an Act of the Niue Assembly.
(3) Subject to its provisions, an Act shall come into force on the date of its
certification and sealing.

35 Power of the Niue Assembly to repeal or amend this Constitution

(1) A Bill repealing or amending or modifying or extending any of the
provisions of the Niue Constitution Act 1974 or of this Constitution or making
any provision inconsistent with any of those provisions shall become law if, and
only if –
(a) It has been passed by the Niue Assembly in compliance with the following requirements –
(i) On both the final reading, and on the reading which preceded it, the Bill receives the affirmative votes of not less than two- thirds of the total membership of the Assembly, as provided in Article 16(2)(b) of this Constitution; and
(ii) The vote on the final reading takes place at least 13 weeks after but excluding the day of the vote on the reading which preceded it; and
(b) It has thereafter been submitted to a poll, conducted in a manner prescribed by law, of the persons who at the time of that poll were entitled to vote as electors at a general election of members of the Niue Assembly, and has at that poll received the support –
(i) In the case of any Bill repealing or amending or modifying or
extending any of the provisions of sections 2 to 9 of the Niue
Constitution Act 1974 or of Articles 1 and 69 of this Constitution
or of this Article, by two-thirds of the votes validly cast; and
(ii) In any other case, of a majority of the votes validly cast; and
(c) The Speaker, being satisfied that it has been passed in accordance
with this Constitution and with the standing Orders of the
Assembly, has endorsed on a copy of the Bill a certificate of
compliance with the requirements of this Article, and has, in the
presence of the Clerk of the Niue Assembly, signed that certificate
and sealed that copy with the Seal of Niue, and inscribed thereon
the date of that signing and sealing; and
(d) The Clerk of the Niue Assembly has, in the presence of the Speaker,
countersigned the certificate on that copy of the Bill.
(2) A Bill which becomes law in accordance with the requirements of this
Article shall be part of this Constitution and shall be described as a constitutional
amendment.
(3) Subject to its provisions, a constitutional amendment shall come into
force on the date of its certification and sealing.

36 New Zealand Parliament not to legislate for Niue, and New Zealand subordinate legislation not to apply to Niue, except with consent

(1) No Act, and no provision of any Act, of the Parliament of New Zealand passed on or after Constitution Day shall extend to Niue as part of the law of Niue, unless –
(a) The passing of that Act or the making of that provision, so far as it extends to Niue, has been requested and consented to by resolution of the Niue Assembly; and
16 Niue Laws 2006 Vol 1
(b) It is expressly declared in that Act that the Niue Assembly has requested and consented to the enactment of that Act or of that provision.
(2) No subordinate legislation made after Constitution Day pursuant to any Act of the Parliament of New Zealand shall extend to Niue as part of the law of Niue unless –
(a) At the date of its making, the Act pursuant to which that subordinate legislation was made extends to Niue as part of the law of Niue; and
(b) The extension to Niue of that subordinate legislation has been requested and consented to by the Cabinet of Ministers of Niue; and
(c) It is expressly declared in that subordinate legislation that the Cabinet of Ministers of Niue has requested and consented to that extension.
(3) Any Act of the Parliament of New Zealand which, pursuant to this Article, extends to Niue as part of the law of Niue, shall have the same force and effect as if it were an Act of the Niue Assembly.
(4) In this Article the term “subordinate legislation” means any Order in
Council, Proclamation, regulations, rules, or other subordinate legislation.
PART III THE JUDICIARY

The High Court of Niue

37 High Court established

(1) There shall be a Court of record, to be called the High Court of Niue,
for the administration of justice in Niue.
(2) Except as provided in this Constitution or by law, the High Court shall
have all such jurisdiction (both criminal jurisdiction, and civil jurisdiction including
jurisdiction in relation to land) as may be necessary to administer the law in force
in Niue.
(3) There shall be 3 Divisions of the High Court, namely –
(a) A Civil Division;
(b) A Criminal Division; and
(c) A Land Division.
(4) A Judge of the High Court may exercise any of the jurisdiction and
powers of a Judge of any Division.
(5) Subject to the subclauses (1), (2), (3) and (4) of this Article and to Article
38, each Judge of the High Court, or any 2 or more Judges, may, at any time in
Niue or beyond Niue, exercise all the powers of the High Court.

38 Jurisdiction of Divisions of the High Court

(1) Each Division of the High Court shall hear and determine –
(a) Such proceedings as are, under or by virtue of any enactment, to be
heard and determined by that Division;
(b) Such other proceedings as may from time to time be determined by
the Chief Justice, either generally or in any particular proceedings
or classes of proceedings.
(2) The Land Division shall have all the jurisdiction and powers in relation
to land that immediately before the commencement of this Article were conferred
on the Land Court of Niue, and shall have such other jurisdiction as may be
conferred on it by enactment.

Constitution of Niue 17

39 Judges of the High Court

(1) The High Court shall consist of one or more Judges, each of whom
shall be appointed under the provisions of this Constitution.
(2) If only one Judge is so appointed, he shall be the Chief Justice of Niue,
but if more than one Judge is appointed, one of them shall be appointed as the
Chief Justice of Niue.
(3) A person shall not be qualified for appointment as a Judge of the High
Court under this Article, unless he possesses such qualifications as may, subject to
this Constitution, be prescribed by Act.

40 Acting Chief Justice of the High Court

Where any vacancy exists in the office of Chief Justice, or it appears that
the Chief Justice is, for any reason, for the time being unable to perform the
functions of his office, those functions may be performed by another Judge of the
High Court, and if there is more than one such Judge who is able to perform those
functions, then by the Judge who is senior in terms of the date of his appointment
to that office, and that Judge may continue to perform those functions until a new
Chief Justice is appointed, or, as the case may be, until the Chief Justice is again
able to perform the functions of his office.

41 Temporary Judges

The Cabinet may at any time appoint any person of any age who is otherwise
qualified for appointment to hold office as Chief Justice or as another Judge for
such time, not exceeding one year, as is specified in the warrant of appointment.

Appointment, Tenure of Office, and Salaries of Judges

42 Appointment of Judges

The Chief Justice and other Judges of the High Court shall be appointed as
follows –
(a) The Chief Justice of the High Court shall be appointed by the Governor-General, acting on the advice of Cabinet tendered by the Premier;
(b) The other Judges of the High Court shall be appointed by the Governor-General, acting on the advice of Cabinet tendered by the Chief Justice of the High Court and the Minister of Justice.

43 Tenure of office of Judges

(1) Except in the case of an appointment made under Article 41, no person
who has attained the age of 68 years shall be appointed to or continue to hold
office as the Chief Justice or other Judge of the High Court.
(2) Nothing done by the Chief Justice or other Judge of the High Court in
the performance of his functions shall be deemed to be invalid by reason only that
he has reached the age at which he is required by this Article to retire or that his
term has expired, as the case may be.
(3) The Chief Justice or any other Judge of the High Court may resign his
office in writing under his hand addressed to the Governor-General.

44 Salaries of Judges

(1) The salaries of the Chief Justice and other Judges of the High Court
shall be determined by Act and shall be a charge on the Niue Government Account.
(2) The salaries of those Judges shall not be diminished during their period
of office, unless as part of a general reduction of salaries applied proportionately
to all persons whose salaries are determined by enactment.
18 Niue Laws 2006 Vol 1

45 Removal of Judges from office

(1) The Chief Justice and any other Judge of the High Court shall not be
removed from office except by the Governor-General acting on the advice of
Cabinet tendered by the Premier and given in accordance with a recommendation
contained in a resolution of the Niue Assembly.
(2) The only ground upon which the Chief Justice and any other Judge
may be removed from office is that of inability to discharge the functions of his
office (whether arising from infirmity of body or mind or from any other cause) or
misbehaviour.

Commissioners of the High Court

46 Commissioners of the High Court

(1) Cabinet may appoint Commissioners of the High Court of Niue, who
shall hold office for such time as shall be specified in their warrants of appointment.
(2) No person who has attained the age of 68 years or who is a Member of
the Niue Assembly shall be appointed to or continue to hold office as a
Commissioner of the High Court.
(3) Subject to subclause (2), the office of Commissioner of the High Court
may with the approval of the Public Service Commission be held concurrently
with any office in the Niue Public Service, or any other position or employment,
but a Commissioner of the High Court who is a member of the Niue Public Service
shall not in the exercise of his functions be under the control of the Niue Public
Service Commission.
(4) Nothing done by a Commissioner of the High Court in the performance
of his functions shall be deemed to be invalid by reason only that he has reached
the age at which he is required by this Article to retire, or that his term of office has
expired.
(5) A Commissioner of the High Court may resign by writing under his
hand addressed to the Premier.

47 Temporary Commissioners

The Cabinet may at any time appoint any person of any age who is otherwise
qualified for appointment to hold office as a Commissioner of the High Court for
such time, not exceeding one year, as is specified in his warrant of appointment.

48 Jurisdiction of Commissioners of the High Court

(1) A Commissioner of the High Court shall possess and may exercise such
of the functions of a Judge of the High Court (whether judicial or administrative,
but excluding those vested exclusively in the Chief Justice) as may be prescribed
by Act, either generally or with respect to any particular Commissioner or
Commissioners of the High Court, and all references in any enactment to a Judge
of the High Court shall be construed as applying to a Commissioner of the High
Court within the limits of the jurisdiction conferred on him.
(2) An Act may provide for appeals from a Commissioner of the High Court
to a Judge of that Court.

49 Remuneration of Commissioners of the High Court

(1) Commissioners of the High Court shall receive such salaries and
allowances as may from time to time be prescribed by enactment; but if any
Commissioner is appointed on terms which do not require him to devote the whole
of his time to performing the duties of that office, he shall receive by way of salary
and allowances, the amount that is appropriate, having regard to the extent of the
duties performed by him and to the terms and conditions of his appointment.

Constitution of Niue 19

(2) The salaries of Commissioners shall be a charge on the Niue
Government Account.
(3) During the term of office of any Commissioner, his salary may be
increased whether to take account of any increase in general levels of remuneration
or for any other reason, but his salary shall not during the term of his office be
reduced, unless as part of a general reduction of salaries applied proportionately
to all persons whose salaries are determined by enactment.

50 Removal of Commissioners from office

(1) A Commissioner of the High Court shall not be removed from office
except by Cabinet, acting in accordance with a recommendation of the Chief Justice.
(2) The only ground upon which a Commissioner may be removed from
office is that of inability to discharge the functions of his office (whether arising
from infirmity of body or mind or from any other cause) or of misbehaviour.

51 Justices of the Peace

Justices of the Peace

(1) The Cabinet may appoint Justices of the Peace for Niue, who shall hold office for such time as may be prescribed in their warrants of appointment.
(2) Any two Justices of the Peace for Niue, acting together, shall possess and may exercise in Niue any of the functions that are by law conferred generally on Commissioners of the High Court; and Article 48 of this Constitution, with the necessary modifications shall apply as if references therein to a Commissioner of the High Court were a reference to any two Justices of the Peace for Niue; but this subclause shall not apply in the case of any Justice of the Peace who is a member of the Niue Assembly or who has attained the age of 68 years.
(3) A Justice of the Peace for Niue shall not be removed from office except
by Cabinet acting in accordance with a recommendation of the Chief Justice.
(4) Justices of the Peace shall receive, in respect of any duties they perform,
such remuneration as may from time to time be prescribed by enactment.

Court of Appeal

52 Court of Appeal established

(1) There shall be a Court of Appeal of Niue, which shall be a superior
Court of record.
(2) Subject to articles 53 and 54, the Judges of the Court of Appeal shall
be –
(a) The Chief Justice and other Judges of the High Court who shall be a member of the Court by virtue of their office; and
(b) Such other persons, possessing such qualifications as shall be prescribed by Act, as may from time to time be appointed by the Governor-General acting on the advice of the Cabinet tendered to him by the Premier.
(3) The Chief Justice shall be the President of the Court of Appeal, but in
his absence the Judge present who is highest in seniority shall preside.
(4) Judges of the Court of Appeal shall take seniority according to their
respective dates of their first appointment as Judges whether of the High Court or
of the Court of Appeal or of any Court in any place outside Niue.
(5) An appointment under paragraph (b) of subclause (2) of this Article
shall be for a period of time or for the trial or hearing of one or more particular
causes or matters, as may be specified in the instrument of appointment.
20 Niue Laws 2006 Vol 1

53 Number of Judges

(1) Any three Judges of the Court of Appeal may at any time in Niue or
beyond Niue, exercise all the powers of the Court: Provided that the Court may
have its judgment delivered by any one of the Court’s members who is available,
and, if there is no such member, then through the Registrar of the Court of Appeal.
(2) The judgment of the Court of Appeal shall be in accordance with the
opinion of the majority of the Judges present.

54 Judges not to sit on appeals from own decision

A Judge of the Court of Appeal shall not sit on the hearing of an appeal
from any decision made by him or by a Court on which he sat as a member.

55 Determination of Court of Appeal

(1) Except as provided in subclause (2) of this Article, or as may be provided
by enactment, the determination of the Court of Appeal shall be final.
(2) Nothing in this Article shall limit the right of Her Majesty in Council,
upon the petition of any person aggrieved by any decision of the Court of Appeal
to admit that person’s appeal therefrom upon such conditions as Her Majesty in
Council shall think fit to impose.

55A Jurisdiction of Court of Appeal

(1) Subject to the provisions of this Constitution, the Court of Appeal shall
have jurisdiction to hear and determine any appeal from a judgment of the High
Court.
(2) Subject to the provisions of this Constitution, and such time limits as may be prescribed by enactment within which an appeal shall be commenced, and except where under any Act a judgment of the High Court is declared to be final, an appeal shall lie to the Court of Appeal from a judgment of the High Court –
(a) As of right, if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of this Constitution;
(b) As of right, from any conviction by the High Court in the exercise of its criminal jurisdiction whereby the appellant has been sentenced to death or to imprisonment for life or for such term, or to such fine, and from any such sentence (not being a sentence fixed by law) as shall be prescribed by Act;
(c) As of right, when the matter in dispute on the appeal amounts to
not less than such value as shall be prescribed by Act;
(d) With the leave of the High Court in any other case, if in the opinion
of that Court the question involved in the appeal is one which by
reason of its general or public importance, or of the magnitude of
the interest affected, or for any other reason, ought to be submitted
to the Court of Appeal for decision;
(e) In such other cases as may be prescribed by Act.
(3) Notwithstanding anything in subclause (2) of this Article, and except
where under any Act a judgment of the High Court is declared to be final, the
Court of Appeal may, in any case in which it thinks fit and at any time, grant
special leave to appeal to that Court from any judgment of the High Court, subject
to such conditions as to security for costs and otherwise as the Court of Appeal
thinks fit.
(4) In this Article the term “judgment” includes any judgment, decree,
order, writ, declaration, conviction, sentence, or other determination.

Constitution of Niue 21

55B Transmission of order of Court of Appeal

The determination of the Court of Appeal on any appeal from the High
Court shall be transmitted to the Registrar of the High Court by the Registrar of
the Court of Appeal under the seal of the Court of Appeal, and judgment shall
thereupon be entered by the High Court in conformity with that determination,
or such other proceedings by way of a new trial or otherwise shall be taken in the
High Court as are required by that determination.

Oath of Allegiance and Judicial Oath

55C Oath of Allegiance and Judicial Oath

(1) The Chief Justice, and other Judges of the High Court, and every Judge
of the Court of Appeal, and every Commissioner, and Justice of the Peace for
Niue, shall, as soon as may be after his acceptance of office, take and subscribe the
following oaths –
(a) An Oath of Allegiance in the following form –
“I,....................................., swear by Almighty God that I will be faithful and bear
true allegiance to Her (or His) Majesty [Specify the name of the reigning Sovereign,
as thus: Queen Elizabeth the Second] as the Head of State of Niue, Her (or His)
heirs, and successors, in accordance with the Constitution and the law. So help me
God”;
(b) The Judicial Oath in the following form –
“I,....................................., swear by Almighty God that I will well and truly serve
Her (or His) Majesty (Specify as above) as the Head of State of Niue, Her (or His)
heirs, and successors in accordance with the Constitution and the law, in the office
of.....................................; and I will do right to all manner of people, without fear
or favour, affection or ill will. So help me God.”
(2) The oaths required to be taken by this Article shall be taken before the
following persons –
(a) In the case of the Chief Justice, before the Governor-General;
(b) In the case of any other Judge of the High Court, or any Judge of
the Court of Appeal, before the Governor-General or before the Chief
Justice;
(c) In the case of the Commissioner of the High Court or a Justice of
the Peace, before the Chief Justice or any Judge of the High Court,
or the Speaker of the Niue Assembly.
(3) If any person mentioned in this Article declines or neglects, when the
oaths required to be taken by him under this Article are duly tendered, to take
those oaths, he shall if he has already entered on his office vacate the same, and if
he has not entered on the same be disqualified from entering on the same; but no
person shall be compelled in respect of the same appointment to the same office
to take any oath more than once: Provided that no proceedings before any such
person may be questioned in any Court solely on the ground that that person
failed to take the oaths prescribed by this Article.
PART IV
THE PUBLIC REVENUES OF NIUE

56 Legislative control of public revenue and expenditure

(1) No taxes shall be imposed except by law.
(2) All revenue received by the Government of Niue shall be paid into an
appropriate public fund or account; and every such fund or account, unless established by existing law, shall be established by or pursuant to Act.
(3) All expenditure of public money, unless authorised by existing law, shall be authorised by Act.
22 Niue Laws 2006 Vol 1

57 Niue Government Account

(1) There shall be a Niue Government Account.
(2) All taxes and other revenues and money raised or received by the
Government of Niue shall be paid into the Niue Government Account unless
required or permitted by law to be paid into any other public fund or account.

58 Annual estimates and appropriations

(1) Except as provided in Article 59(4)(b) of this Constitution or where
authorised by a specific appropriation contained in any existing law or in any
Act, all expenditure of public money in any financial year shall be charged to
votes specified in the Appropriation Act and in accordance with the estimates for
that year.
(2) Each Appropriation Act shall relate to one financial year, and shall lapse
at the end of that year.

59 Cabinet to supervise expenditure

(1) It shall be the responsibility of the Cabinet to make proposals to the
Assembly as to the projected levels of public revenue and of public expenditure
in each financial year, and as to all other budgetary matters. In particular, the
Premier or another Minister shall introduce or take responsibility in the Assembly
for all Bills relating to financial measures, and for the submission of a detailed
statement of estimated expenditure in respect of each financial year.
(2) The Cabinet shall also be accountable to the Assembly for all public
expenditure, and for relating such expenditure to the appropriations made by the
Assembly pursuant to Article 58 of this Constitution, or to any discretion to approve
expenditure pursuant to subclause (4) of this Article, and shall lay the accounts
for each financial year before the Assembly.
(3) Any delegation by the Cabinet, whether or not to be one or more of its
own members, of the power to approve public expenditure shall, subject to existing
law, be made by or pursuant to Act, and shall be without prejudice to the generality
of the Cabinet’s continuing responsibilities under this Article.
(4) Subject to such lower limits and such restrictions as may from time to
time be prescribed by any enactment, the Cabinet may approve the expenditure
of such sums as it considers necessary –
(a) In anticipation of provision to be made in the Appropriation Act
for any financial year; but the total amount issued and paid under
this paragraph in relation to any vote in any financial year shall not
exceed the unexpended balance of the corresponding vote in the
Appropriation Act for the preceding financial year, together with
an amount equal to one-fourth of that vote, and all money so spent
shall be included in the estimates for that year; or
(b) Where, during the period between the passing of the Appropriation
Act for any financial year and the end of that financial year, it is
desirable that money should be expended in excess of or without
the appropriation of the Niue Assembly, but the total amount of all
sums issued and paid under this paragraph in any financial year
shall not exceed 11/2 percent of the total amount of all sums
appropriated by the Appropriation Act for that financial year.
(5) All expenditure made under subclause (4)(b) of this Article shall be
charged as unauthorised expenditure to the appropriate fund or account.
(6) A statement of the unauthorised expenditure for any financial year shall
be included in the accounts for that year laid before the Assembly.

Constitution of Niue 23

60 Audit

(1) The Audit Office of New Zealand shall be the auditor of the Niue
Government Account and of all other public funds or accounts, and of the accounts
of all Departments and Offices of executive government, and of such other public
or statutory authorities or bodies as may be provided by law.
(2) The Audit Office shall, at least once annually, prepare and forward to
the Speaker of the Niue Assembly for presentation to the Assembly a report
containing such information as is required to be submitted by any enactment,
together with such other information relating to the Niue Government Account,
or to such other funds or accounts which under this Constitution or under any
enactment are required to be audited by the Audit Office, as that office considers
desirable.
PART V
HEALTH, EDUCATION AND OTHER SOCIAL SERVICES

61 Health, education and other social services

(1) The Cabinet shall be responsible for establishing and maintaining in
Niue such hospitals and other institutions and for providing such other services
as it considers necessary for the public health.
(2) The Cabinet shall be responsible for establishing and maintaining in
Niue such public schools and for making such other provision as it considers
necessary to provide educational opportunities for the people of Niue.
(3) The Cabinet shall be responsible for establishing and maintaining such
other institutions and services and for making such other provision as it considers
necessary to provide a reasonable standard of living for the people of Niue and to
secure their economic, social, and cultural welfare.
(4) Nothing in this Article shall be construed as limiting the powers
conferred on the Cabinet by Article 2 of this Constitution to exercise on behalf of
Her Majesty the executive authority of Niue.

62 Niue Public Service

PART VI
THE NIUE PUBLIC SERVICE
(1) There shall be a Niue Public Service comprising such employees as may be necessary to assist the Cabinet in exercising the executive authority of Niue and to perform such other functions or exercise such powers as may be prescribed by law.
(2) Except as provided in subclause (4) of this Article, no person shall be
employed in the service of the Government of Niue unless he is an employee of
the Niue Public Service.
(3) Except as may otherwise be provided by Act, employment by a public
corporation or other statutory authority or public body constituted under the law
of Niue shall, for the purposes of this Article, be considered as employment in the
service of the Government of Niue.
(4) Subclause (2) of this Article shall not apply to service remunerated by
way of fees or commission only, or honorary service, or service as –
(a) A Judge or Commissioner of the High Court or a Justice of the Peace
for Niue, or any other judicial officer appointed by or pursuant to
existing law or Act; or
(b) A Minister, or any other member or the Speaker of the Niue
Assembly; or
(c) A member of the Niue Public Service Commission.
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63 Secretary to the Government

(1) There shall be an officer of the Niue Public Service to be called the
Secretary to the Government, who shall be the permanent head of the Niue Public
Service and the chief administrative officer of the Government of Niue.
(2) In addition to the other functions and powers conferred upon him by
law, the Secretary to the Government shall be responsible to the Cabinet for the
general direction of the work of all departments and offices of the executive
government. The head of each Department or office shall account for the work of
that Department or office to the Secretary to the Government, as well as to the
Minister primarily responsible for that Department or office or, as the case may
be, for the function performed by that Department or office.
(3) Notwithstanding anything in Article 69(2) of this Constitution, the Niue
Public Service Commission shall consult the Premier and shall obtain the
concurrence of the Cabinet before it appoints any person to be Secretary to the
Government.
(4) Notwithstanding anything in any enactment, no appeal by any
employee of the Niue Public Service shall lie against the promotion or appointment
of any person to the office of Secretary to the Government.

Niue Public Service Commission

64 Niue Public Service Commission

(1) There shall be a Public Service Commission for Niue, to be called the
Niue Public Service Commission.
(2) The Commission shall consist of 3 members who shall be appointed by
the Cabinet.
(3) The Chairman of the Commission shall be appointed by the Cabinet
from amongst the members of the Commission.
(4) Each member of the Commission, and the Chairman, shall be appointed
for a term of 3 years but may from time to time be reappointed.
(5) Each member of the Commission shall receive such salary allowances
and benefits as the Cabinet determines from time to time.
(6) A member of the Commission may resign his office at any time by
written notice to the Premier, or may be removed from office by the Cabinet on
the ground that he is unable to discharge the functions of his office (whether by
reason of infirmity of body or mind or from any other cause) or misbehaviour.

65 Acting members of Commission

(1) In the event of the incapacity, by reason of illness or absence or any
other cause, of any member of the Commission, the Cabinet may appoint a person
to act in place of that member during that incapacity.
(2) Any person acting in place of a member of the Commission pursuant
to this Article shall be deemed for all purposes to be a member of the Commission,
and no appointment of any such person, and no act done by him in his capacity as
a member of the Commission shall in any proceedings be questioned on the ground
that the occasion for his appointment had not arisen or had ceased.

66 Procedure of Commission

(1) At all meetings of the Niue Public Service Commission, 2 members
shall form a quorum.
(2) The Commission shall have power to invite such other persons as it
thinks fit to assist in its deliberations.
(3) At least 2 members of the Commission shall concur in any decision of
the Commission.

Constitution of Niue 25

(4) Any matter which may be decided by the Commission at a meeting may also be decided by a minute of the Commission signed by all the members. (5) Subject to this Constitution, the Commission shall regulate its own
procedure.

67 Delegation of powers

(1) Without prejudice to its continuing responsibility for the organisation
and management of the Niue Public Service, the Commission may from time to
time, either generally or particularly, delegate any of its powers in relation to the
Niue Public Service (including this power of delegation) to any of its members or
any other person or to the Secretary to the Government.
(2) Subject to any general or special directions given by the Commission, a
person to whom any powers are so delegated may exercise those powers in the
same manner and with the same effect as if they had been conferred on him directly
by enactment and not by delegation.
(3) Every person purporting to act pursuant to any delegation under this
Article shall, in the absence of proof to the contrary, be presumed to be acting in
accordance with the terms of the delegation.
(4) Any delegation under this section may be made to a specified person
or to persons of a specified class, or may be made to the holder for the time being
of a specified office.
(5) The delegation of any powers under this section shall not prevent the
exercise of those powers by the Commission or by any person making the
delegation.

Management of Niue Public Service

68 Functions and powers of Commission

(1) The Niue Public Service Commission shall be the employing authority
for the Niue Public Service, and, subject to this Constitution, shall have the general
oversight and control of its organisation and management, and shall be responsible
for reviewing the efficiency and economy of all departments and offices of the
executive government.
(2) Subject to this Constitution and to any enactment, the Commission may
prescribe and determine the terms and conditions of employment of members of
the Niue Public Service, and may issue such instructions or exercise such other
powers as may be necessary to enable it to perform the functions and carry out
the duties described in this Constitution or conferred on it by law.
(3) In the performance or exercise of its functions, powers, and duties in
relation to the Niue Public Service, the Commission may conduct such inquiries
and investigations as it considers necessary, and, for the purpose of conducting
any such inquiry or investigation, the Commission shall have such powers and
authority to summon witnesses and to receive evidence as are conferred on a
Commission of Inquiry by law.
(4) Except as provided in Article 69(2) of this Constitution, the Commission
shall be responsible to the Cabinet for the carrying out of its duties and the
performance and exercise of its functions and powers, and the Commission shall,
as necessary, inform and advise the Cabinet in relation to any matter affecting the
Niue Public Service.
(5) The Commission shall as soon as practicable after the 31st day of March
in each year furnish to the Cabinet a report on the state of the efficiency and
economy of the Niue Public Service and on the work of the Commission for the
year ending with that date. A copy of that report shall be laid before the Niue
Assembly.
26 Niue Laws 2006 Vol 1

69 Appointments to Niue Public Service

(1) All employees of the Niue Public Service shall be appointed by the
Niue Public Service Commission and, subject to this Constitution and to any
enactment, shall hold office on such terms and conditions as may from time to
time be prescribed or determined by the Commission.
(2) In all matters relating to decisions about individual employees (whether
they relate to the appointment, promotion, demotion, transfer, disciplining, or
cessation of employment of any employee or any other matter) the Commission
shall not receive any direction from the Cabinet, but shall act independently.
(3) In establishing and revising the terms and conditions of employment
in the Niue Public Service, the factors to be taken into account shall include –
(a) The need for the Niue Public Service to recruit and retain an efficient
staff, and, in particular, to provide varied careers and adequate
advancement for Niueans with special skills;
(b) The need to afford reasonable opportunities of employment in Niue
for the people of Niue, and in so doing to have regard to the
employment opportunities and levels of remuneration available in
New Zealand;
(c) The need to act consistently with Government economic and social
policy, bearing in mind that the terms and conditions of employment
in the Niue Public Service are a major element in the general well­
being of Niue.
(4) The pay and allowances of employees of the Niue Public Service shall
be paid from the Niue Government Account out of money appropriated by the
Niue Assembly.

Reports and Recommendations to Assembly

70 Commission to make certain reports and recommendations to Assembly

(1) Pursuant to Article 25 of this Constitution, the Niue Public Service
Commission shall from time to time consider whether circumstances require the
making of a report and recommendations to the Assembly as to the levels of
remuneration and other entitlements of the Premier, the other Ministers, the
members of the Assembly who are not Ministers, and the Speaker, and the
Commission shall make such a report and recommendations, whenever there is a
general alteration of the levels of remuneration of employees of the Niue Public
Service.
(2) The Commission shall send to the Speaker any report and
recommendations made under subclause (1) of this Article.
(3) Whenever, pursuant to Article 32 of this Constitution, the Niue Public
Service Commission is requested to report on the legal, constitutional, and policy
issues raised by any Bill or amendment, it shall as soon as possible, and in any
case within one month after receiving the papers relating to the Bill or amendment,
respond to that request, either by furnishing its report to the Speaker, or, if it requires
further time or information before forming a final opinion, by making that known
to the Speaker.

Constitution of Niue 27

PART VII TRANSITIONAL PROVISIONS

71 Existing law to continue

Subject to this Constitution –
(a) The existing law shall, until repealed, and subject to any amendment
thereof, continue in force on and after Constitution Day;
(b) All rights, obligations, and liabilities arising under the existing law
shall continue to exist on and after Constitution Day, and shall be
recognised, exercised, and enforced accordingly.

72-80 [Spent]

81 Seal of Niue

Until the Cabinet approves a different form or forms, the Seal of Niue
established by Article 15 of this Constitution shall be in the form or forms approved
by the Executive Committee for the Seal of Niue established by section 7 of the
Niue Act 1966 (as substituted by section 3 of the Niue Amendment Act 1971).

82 Interpretation

PART VIII INTERPRETATION
(1) In this Constitution, unless the context otherwise requires –
“Act” means an Act of the Niue Assembly, as that term is used in Article 34
of this Constitution;
“Cabinet” means the Cabinet of Ministers of Niue established by Article 2
of this Constitution;
“Chief Justice” means the Chief Justice of the High Court of Niue appointed
under Article 42 of this Constitution; and includes any other Judge of
the High Court authorised under Article 40 of this Constitution to
perform the office or exercise any function of the Chief Justice;
“Clerk of the Cabinet” means the Clerk of the Cabinet appointed pursuant
to Article 14 of this Constitution;
“Clerk of the Niue Assembly” means the Clerk of the Niue Assembly
appointed pursuant to Article 27 of this Constitution;
“Constitution” means this Constitution; and includes the Act of the
Parliament of New Zealand intituled the Niue Constitution Act 1974;
and also includes any constitutional amendment, as that term is used
in Article 35 of this Constitution, when that constitutional amendment
has come into force;
“Constitution Day” means the date on which this Constitution comes into
force;
“Court of Appeal” means the Court of Appeal of Niue established by Article
52 of this Constitution;
“enactment” means –
(a) Any Act of the Niue Assembly and any Ordinance; and any
regulation, rule, bylaw, or other instrument of a like nature made
pursuant to any such Act or Ordinance;
(b) Any Act of the Parliament of New Zealand which extends to Niue
as part of the law of Niue; and any Order in Council, Proclamation,
regulation, rule, ministerial warrant, bylaw, or instrument of a like
nature, made pursuant to any Act to which this paragraph applies,
if that Order in Council, Proclamation, regulation, rule, ministerial
28 Niue Laws 2006 Vol 1
warrant, bylaw, or other instrument extends to Niue as part of the law of Niue;
“existing law” means any law in force in Niue immediately before Constitution Day; and includes any enactment passed or made before Constitution Day and coming into force on or after Constitution Day; “High Court” means the High Court of Niue established by Article 37 of
this Constitution;
“Judge” in relation to the High Court, means any Judge of that Court
including the Chief Justice;
“law” means any law for the time being in force in Niue; and includes this
Constitution and any enactment;
“Member of the Niue Assembly,” or “Member” used in relation to the Niue
Assembly, means any person elected as a member of the Assembly
pursuant to Article 16 of this Constitution; but does not include the
Speaker; and, in any case where the Assembly has been dissolved, shall
have the extended meaning given to that term by subclause (4) of that
Article;
“Minister” means a member of the Cabinet; and includes the Premier; and
also includes any member of the Niue Assembly appointed as a
temporary Minister pursuant to Article 8 of this Constitution;
“Niue Assembly” or “Assembly” means the Niue Assembly established
by Article 16 of this Constitution;
“Niue Public Service” means the Niue Public Service established by Article
62 of this Constitution;
“Niue Public Service Commission” or “Commission” means the Niue Public
Service Commission established by Article 64 of this Constitution;
“Ordinance” means an Ordinance of the Niue Island Assembly or of the
Island Council of Niue;
“Premier” means the member of the Niue Assembly elected as Premier
pursuant to Article 4 of this Constitution after he has been appointed
as a Minister pursuant to Article 5 of this Constitution; and includes
the Minister discharging the functions of Premier pursuant to subclause
(1) or subclause (2) of Article 9 of this Constitution;
“Secretary to the Government” means the Secretary to the Government of
Niue appointed pursuant to Article 63 of this Constitution;
“Speaker” means the Speaker of the Niue Assembly elected pursuant to
Article 20 of this Constitution; and includes any member of the Niue
Assembly performing the functions of Speaker pursuant to that Article.
(2) Where in this Constitution any person is required to subscribe an
oath, he shall be permitted, if he so desires to comply with that requirement by
making and subscribing an affirmation, and the form of oath prescribed by this
Constitution shall be appropriately modified accordingly.
(3) Where under this Constitution the holder of any office is an employee
of the Niue Public Service, any reference to the holder of that office shall be
construed as including, to the extent of his authority, a reference to any other
employee of the Niue Public Service for the time being authorised to exercise or
perform all or any of the powers, duties, and functions of that office.
29

Ko e Fakatufono -Tohi Fakave A Niue

VEHEVEHEAGA

VALA 1 24 Tau mena ataina ki ai e Fono Ekepule Niue

KO E FAKATUFONO PULE FAKATONU A NIUE mo e tau Ekepule ha ha i ai

1 Pule Malolo faka-Fakatufono kua 25 Palepale he Palemia, Tau Ikipule, tau

Fakave ki loto he malolo faka- Ekepule he Fono Ekepule Niue mo e

Patuiki Fakatonu Fono

26 Tukuaga he Fono Ekepule Niue

Ko e Fono He Tau Ikipule 27 Fakamau Kupu he Fono Ekepule Niue

2 Ko e Fono He Tau Ikipule a Niue

3 Tau Ikipule kua taha ni e totouaga Ko e Talagaaga he tau Fakatufono-tohi

he ha lautolu a tau malolo kotofa 28 Malolo Kotofa ke taute fakatufono tohi

4 Palemia ha Niue 29 Tukuaga he tau Fakatufono-tohi

5 Kotofaaga he tau Ikipule he mole e fifiliaga Fakalatalata mo e falu a mena kehekehe ki

he Palemia mua he Fono Ekepule Niue

6 Viliaga falanaki ke he Fono he Tau Ikipule 30 Tau fakakaupaaga pauaki ke lata mo e tau

7 Fakaotiaga he tau Kotofaaga he tau Ikipule vahega fekau faka tupe

8 Tau Hukui Ikipule 31 [Uta kehe]

9 Hagai Palemia 32 Tau tauteaga fifili hagaao ke he tau mena

10 Omonuo fakamooli kua lauia ai e Kau Gahua Fakatufono a

11 Tufatufaaga he tau gahua kotofa ke he tau Niue

Ikipule 33 Tau tauteaga fifili ma e tau tauteaga kua

12 Tau Fonoaga he Fono He Tau Ikipule lauia ai e tau vala kelekele Niue

13 Tau Poakiaga, falu a la fono mo e tau 34 Ko e magaaho ka fakamooli ai e tau

fifiliaga he Fono He Tau Ikipule Fakatufono-tohi Fakalatalata ke eke mo tau

14 Fakamau Kupu he Fono He Tau Ikipule Fakatufono-Tohi

35 Pule Malolo ha ha he Fono Ekepule Niue

Fakamailoga a Niue ke uta kehe po ke fakahui e Fakatufono­

15 Fakamailoga a Niue tohi Fakave nai

36 Nakai maeke e Fono Ekepule (Palemene)

VALA II Niu Silani ke talaga e tau fakatufono-tohi

KO E FONO TAUTE FAKATUFONO-TOHI A NIUE ma Niue, mo e nakai maeke ke fakagahua

Ko e Fono Ekepule Niue e tau la fono-tohi Niu Silani a to talia ki ai

16 Fono Ekepule Niue

17 Higoa he motu mo e talahauaga he tau VALA III

nonofoaga he tau tagata vili mo e tau tagata KO E FAAHI GAHUA FAKAFILIAGA

fakatu ke vili ki ai Ko e Fakafiliaga Lahi a Niue

18 Tau tagata gahua fakatufono kua maeke ke 37 Ko e fakatuaga he Fakafiliaga Lahi

fakatu vili po ke fifili ki ai 38 Tau Fakafili mo e tau Komisina Fakafili he

19 Tau Ekepule kua nakai talia ke eke mo tau Fakafiliaga Lahi

tagata gahua he Fakatufono po ke fia 39 Tau Malolo Fakafili ha ha he tau Komisina

manako ke he falu gahua Fakatufono Fakafili he Fakafiliaga Lahi

20 Fakatonu Fono he Fono Ekepule

21 Tau Ekepule ke eke e Omonuo he mahani Ko e Fakafiliaga Fonua Niue

	Fakamooli	40	Fakatuaga he Fakafiliaga Fonua
22	Fakaholoaga gahua he Fono Ekepule Niue	41	Tau Fakafili mo e tau Komisina Fakafili he
23	Tau vagahau		Fakafiliaga Fonua

30 Niue Laws 2006 Vol 1

42 Tau malolo Fakafili ha ha he tau Komisina

Fakafili he Fakafiliaga Fonua

Ko e Fakafiliaga Fonua Tokoluga a Niue

43 Fakafiliaga Fonua Tokoluga a Niue

44 Tau Fakafili he Fakafiliaga Fonua Tokoluga

Kotofaaga, Magahala he Kotofaaga, mo e tau

Palepale he tau Fakafili mo e tau Komisina Fakafili

45 Kotofaaga he tau Fakafili mo e tau

Komisina Fakafili

46 Magahala he Kotofaaga he tau Fakafili mo

e tau Komisina Fakafili

47 Tau Fakafili mo e tau Komisina Fakafili

Hukui

48 Hukui Iki Fakafili Lahi he Fakafiliaga Lahi

mo e Hukui Iki Fakafili Lahi he Fakafiliaga

Fonua

49 Utakeheaga he tau Fakafili mo e tau

Komisina Fakafili mai he tau kotofaaga

50 Tau Palepale he tau Fakafili mo e tau

Komisina Fakafili

Tau Ole mai he Fakafiliaga Lahi ke liu Fakafili

51 Ole he Fakafiliaga Lahi ke liu fakafili ke he

Fakafiliaga Ole Liu Fakafili a Niu Silani

52 Fakafanoaga he Poakiaga he Fakafiliaga

Ole Liu Fakafili ke lata mo e ole liu fakafili

Tau Lagomatai Fakafili

53 Tau Lagomatai Fakafili

Omonuo he Mahani Fakamooli mo e Omonuo

54 Omonuo he Mahani Fakamooli mo e

Omonuo Faka-Fakafiliaga

Talahauaga mai he Iki Fakafili Lahi ke lata mo e a falu a Fakatufono-tohi Fakalatalata

55 Iki Fakafili Lahi ke fai talahauaga ke lata mo e falu a Fakatufono-tohi Fakalatalata

55A Malolo Pule Fakafiliaga Liu Fakafili

55E Utaaga he tau Poakiaga Tohi he Fakafiliaga

Liu Fakafili

55I Omonuo he Mahani Fakamooli mo e

Omonuo Faka-Fakafiliaga

VALA IV

TAU TUPE MOUA HA NIUE

56 Levekiaga Faka-Fakatufono he tau tupe

moua mo e tau tupe fakamole

57 Fakaputuaga Tupe he Fakatufono Niue

58 Fakalatalataaga mo e Tufatufaaga he tau

tupe ma e tau taha

59 Ko e Fono He Tau Ikipule ke kitekite e

fakamoleaga he tau tupe

60 Siviaga he tau tupe

VALA V

FAAHI MALOLO TINO, FAAHI GAHUA FAKAAKO MO

E FAAHI FIAFIA TINO

61 Faahi Malolo Tino, Faahi Gahua Fakaako

mo e Faahi Fiafia Tino

VALA VI

KO E KAU GAHUA FAKATUFONO NIUE

62 Kau Gahua Fakatufono Niue

63 Tohi Kupu he Fakatufono

Kau Pule Gahua Niue

64 Kau Pule Gahua Niue

65 Tau Tagata Hukui he Kau

66 Puhala Gahua he Kau

67 Ko e foakiaga he tau malolo kotofa

Gahuahuaaga he Kau Gahua Fakatufono Niue

68 Tau gahua mo e tau malolo kotofa he Kau

69 Tau kotofaaga ke he Kau Gahua Fakatufono

Niue

Tau Fakailoaaga mo e Pulega atu ke he Fono

Ekepule

70 Ko e tau fakailoaaga mo e tau pulega atu

he Kau Pule Gahua ke he Fono Ekepuke

VALA VII

TAU FAKATOKATOKAAGA MA E MATUTAKIAGA

71 Ke fakatumau e tau Fakatufono-tohi a Niue

72-80 Ko e falu vala he tohi fakave nei kua nakai

tuai fakaaoga

81 Ko e Fakamailoga a Niue

VALA VIII FAKAMAAMAAGA

82 Fakamaamaaga

31

FAKATUFONO-TOHI FAKAVE

VALA I
KO E FAKATUFONO PULE FAKATONU A NIUE

1 Pule Malolo faka-fakatufono kua fakave ki loto he malolo faka-Patuiki

Ko e pule malolo faka-fakatufono a Niue kua fakave ke he Patuiki Fifine
Lilifu ke he tonuhia a Niu Silani, ti ko e Kovana Lahi Niu Silani ko ia kua talahau
ai ko e hukui he Patuiki Fifine Lilifu ke lata ai mo Niue.

Ko e Fono He Tau Ikipule

2 Fono He Tau Ikipule a Niue

(1) To ha ha i ai e taha Fono He Tau Ikipule a Niue, (kua talahau ai pehe ko
e Fono He Tau Ikipule) ti ki a ha ha i ai e Palemia a Niue (ko ia ni ko e taha ekepule
he Fono Ekepule) mo e toko 3 foki e ekepule mai he Fono Ekepule Niue.
(2) Ke lata mo e Fakatufono-tohi Fakave nai, ko e pule malolo faka­
fakatufono a Niue to maeke ke faka-gahua ai he Fono He Tau Ikipule ma e higoa
he Patuiki Lilifu, ha kua ha i ai e tau fakatonuaga katoatoa mo e levekiaga pule
malolo faka-fakatufono ha Niue mo e taute e falu a gahua mo e tau malolo kotofa,
tuga he toka i loto he tau fakatufono-tohi.

3 Tau Ikipule kua taha ni e totouaga he ha lautolu a tau malolo kotofa

(1) Ko lautolu he Fono He Tau Ikipule (kua fakahigoa ai ko e tau Ikipule)
to taha ni a lautolu ke he mahani faka-fehagai mo e falanaki atu ke he Fono Ekepule
Niue.
(2) A to kehe kaeke ko e muitua ke he Matakupu 7 he Fakatufono-tohi Fakave nai, ko e tau Ikipule ki a fakatumau ai a lautolu he kotofaaga a to kotofa ai e tau hukui ha lautolu ke lata mo e Matakupu 5 (2) he Fakatufono-tohi Fakave nai.

4 Palemia ha Niue

(1) To ha ha i ai e taha Palemia ha Niue, ko ia ne fifili ai ke he numela
tokologa he tau Ekepule kua nakai taumaleku e tokologa mai ia lautolu e tau
Ekepule kua ha ha i ai ke he fono he Fono Ekepule Niue mo e eke vili ai i loto he
fonoaga.
(1) Ko e poakiaga ke he Fono Ekepule Niue ke fifili e Palemia he fonoaga
fakamua he Fono Ekepule, he mole e viliaga lahi mo e pihia foki he tau magaaho
kehekehe nai.
(a) Ka fakaoti e kotofaaga Ekepule he Palemia he Fono Ekepule, ha ko
e taha kakano kehe ka e nakai ko e tukuaga he Fono Ekepule; po ke
(e ) Ka eke ke tuku atu he Palemia haana a tohi fakaoti kotofa, kua
taute e tohi ia ti tuku atu ai ke he Fakatonu Fono po ke kaeke kua
fakaoti tuai ke lata mo e Matakupu 6 (3) po ke Matakupu 7(3) he
Fakatufono-tohi Fakave nai.

5 Kotofaaga he tau Ikipule he mole e fifiliaga he Palemia

(1) Ko e magaaho tote ia ni he mole e fifiliaga haana ke he kotofaaga, ko ia
e Palemia fifili, kua poaki nei ki a ia ke fakatu higoa ke he Fakatonu Fono, ha kua
talia e lautolu, toko 3 e tau ekepule he Fono Ekepule Niue ke lata mo e tau kotofaaga
Ikipule.
(1) Ka moua e ia e tau higoa fakatutu na, ko ia e Fakatonu Fono, kua poaki
nei kia ia ke kotofa mo tau Ikipule e Palemia fifili mo e tau ekepule ne kua fakatu
higoa ki ai.
32 Niue Laws 2006 Vol 1
(2) Ko e tau kotofaaga ne eke ai i lalo he vala kupu (2) he Matakupu nai, to taute ai he Fakatonu Fono ke he mahani he tohi kua taute ai i lalo he Fakamailoga a Niue.
(3) Kaeke ke nakai eke ai he Palemia fifili, ke he tau aho ne 7, ka e nakai totou e aho ne fifili ai a ia ke he kotofaaga, e poaki ke tuku atu e ia ke he Fakatonu Fono e tau higoa fakatutu haana ma e tau kotofaaga ke he Fono He Tau Ikipule ke lata mo e Matakupu nai, ti ko e haana a fifiliaga ke he kotofaaga na to nakai tuai nofo ai ha malolo, ti kia fakahoko vave e taha fono he Fono Ekepule Niue ke liu foki fifili ai e Palemia, mo e onoono atu ke he Matakupu 26 (1) (o) he Fakatufono­ tohi Fakave nai.

6 Viliaga falanaki ke he Fono He Tau Ikipule

(1) He ha Fonoaga he Fono Ekepule Niue –
(a) Ko e Palemia po ke taha Ikipule kua eke mo hukui he Palemia, kua
maeke ia ia, ke taute taha fakailoaaga hagaao ke he haana manatu
ke pulega e taha viliaga falanaki ke he Fono He Tau Ikipule ke taute
pauaki po ke taha mena taute kua pulega ki ai e Fono He Tau Ikipule
ke talia ki ai e Fono Ekepule;
(e) Ko e toko 4 po ke tokologa atu foki e tau ekepule he Fono Ekepule,
ko lautolu nakai ko e tau Ikipule, kua maeke ia lautolu ke taute
taha fakailoaaga he ha lautolu a manatu ke pulega e taha viliaga
kua faka-hagaao ko e nakai fai falanakiaga e Fono Ekepule ke he
Fono He Tau Ikipule.
(2) Ko e ha kupu pulega ne fai fakailoaaga kua eke ai i lalo he vala kupu
(1) he Matakupu nai kua poaki ia ke vili ki ai i loto he taha fonoaga he Fono
Ekepule Niue ne kua fono ai he vaha loto he nakai tote hifo e 5 a tau aho po ke
lakafia e 10 e tau aho he mole, ka e nakai lafi ki ai e aho ne eke ai e fakailoaaga.
(3) Kaeke kua kaumahala e kupu pulega kua fai falanakiaga, po ke tuga ni
he pulega ki ai kua kautu tuai e kupu pulega nakai fai falanakiaga, ti ko ia e
Palemia kua talahau pehe ai kua fakaoti tuai e ia haana a kotofaaga he mole e 5 e
tau aho,ka e nakai lafi ki ai ai e aho ne fono ai e Fono Ekepule Niue, a to kehe ka
nakai la katoa e tau aho na ti ko ia e Palemia kua ole atu kehe Fakatonu Fono ke
tuku e Fono Ekepule ka e taute e viliaga lahi.

7 Fakaotiaga he tau kotofaaga he tau Ikipule

(1) Ko e taha he tau Ikipule, ka e nakai ko e Palemia, kua poaki nai kia ia ke
toka haana a gahua kaeke­
(a) Ko e haana a kotofaaga ke he haana gahua na kua uta ke he tuai he
Fakatonu Fono ke he mahani he tohi ha ko e ole atu he Palemia he
taha tohi kua fakamailoga aki e Fakamailoga a Niue; po ke
(e) Kua okioki tuai a ia mai he kotofaaga ekepule he Fono Ekepule
Niue ha ko e ha kakano kehe ka e nakai ka tuku e Fono Ekepule; po
ke
(i) Kua fakaoti tuai e ia haana a gahua ke he taha tohi kua tohi ke he
matalima tohi haana mo e tuku atu ke he Fakatonu Fono.
(2) He vaha loto he 7 e aho he mole ne tokanoa ai e taha pu gahua he taha
Ikipule, ka e nakai ko e Palemia,ko ia e Palemia he mogoia ke pulega fakatu higoa
ekepule ha kua talia he ekepule na, ki a ia e Fakatonu Fono, ko e ekepule mai he
Fono Ekepule ke kotofa ai ke eke mo taha Ikipule, ti ko ia e Fakatonu Fono kua
poaki ki ai, ke kotofa e ekepule ia ne kua fakatu higoa ki ai ke eke mo Ikipule, ke
he taha tohi kua fakamailoga aki e Fakamailoga a Niue.

Ko e Fakatufono-Tohi Fakave A Niue 33

(3) Kaeke ke nakai fakailoa ai he Palemia he vaha loto he tau aho ne 7 he mole, ka e nakai lafi ki ai e aho ne tokanoa ai e pu gahua he taha Ikipule, ka e nakai ko e Palemia, ke pulega kotofa ai taha mo Ikipule ke lata mo e vala kupu (2) he Matakupu nai, to talahau ai pehe kua fakaoti tuai e ia haana a kotofaaga ko e Palemia he oti e magaaho ko e 7 e tau aho na.

8 Tau Ikipule Hukui

(1) Kaeke kua kitia ai he Palemia kua nakai maeke he ha Ikipule, ha kua
gagao po ke fano kehe ai mai i Niue, ke taute ai e haana a tau gahua kotofa i Niue
ke he magahala ko e 7 e tau aho po ke leva atu foki, ko e Palemia, kua poaki ki ai
ke pulega fakatu higoa atu kehe Fakatonu Fono ke eke mo Ikipule Hukui e taha
ekepule he Fono Ekepule Niue, ke he haana taliaaga, ti ka e poaki ai nai ke he
Fakatonu Fono ke kotofa ai e ekepule na ke he taha tohi kua eke ai i lalo he
Fakamailoga a Niue tuga he pulega ke eke pihia.
(2) Ko e ha Ikipule Hukui leveki pehe na, ki a kotofa ai ke hukui e Ikipule
ne kua nakai maeke ke taute e haana a tau gahua kotofa i Niue, ka e muitua ke he
vala kupu (3) he Matakupu nei, kia gahua ai a ia tuga mo e mena kua kotofa
pauaki ni a ia i lalo he Matakupu 5 he Fakatufono-tohi Fakave nai.
(3) Ko e ha kotofaaga Ikipule Hukui Leveki, a to kehe ai ni kaeke kua toka
e ia haana kotofa ke lata mo e Matakupu 7 he Fakatufono-tohi Fakave nai, to
tumau a ia ke he kotofaaga a to maeke he Ikipule ne hukui e ia ke liu taute e haana
a tau gahua kotofa i Niue.

9 Palemia Hukui Leveki

(1) Ko e ha magaaho ni, ha ko e gagao po ke fano ke he mai i Niue e Palemia,
ti nakai maeke ai a ia ke eke ai haana a tau gahua kotofa i Niue, ko e Fakatonu
Fono, ha kua ole atu e Fono He Tau Ikipule, to maeke ia ia ke he taha tohi kua tohi
ai i lalo he Fakamailoga a Niue, ke kotofa e taha Ikipule ke taute e tau gahua
kotofa he Palemia a to hoko mai e magaaho kua maeke ai he Palemia ke liu taute
haana a tau gahua kotofa, po ke kua fano kehe tuai a ia mai he haana a kotofaaga.
(2) Ha kua mate tuai e Palemia, po ke kua tuku atu tuai e ia ke he Fakatonu
Fono e haana manatu fakaoti e kotofaaga haana he mole atu e tuku he Fono Ekepule
Niue ka e fakahoko e viliaga lahi, mo e fakamua to kotofa ai e tau Ikipule he mole
e viliaga lahi, mo e fakamua to kotofa ai e tau Ikipule he mole e viliaga lahi ne mui
mai he tukuaga na, ko ia e Fakatonu Fono, ha kua ole atu he Fono He Tau Ikipule,
kua poaki ai nai ke taute e ia ke ha taha tohi kua eke ai i lalo he Fakamailoga a
Niue, ke kotofa e taha Ikipule ke taute e tau gahua kotofa he Palemia a to hoko e
magaaho ke kotofa ai e tau Ikipule he mole atu e viliaga lahi na.

10 Omonuo Fakamooli

Ko e tau Ikipule taki tokotaha oti, fakamua to eke ai e tau gahua kotofa he
haana a kotofaaga, to taute ai e ia e omonuo nai ki mua he Fakatonu Fono.
Ko au ko, kua fifili tuai au mo e talia ai ke eke mo Palemia a Niue (po ke Ikipule) kua omonuo nai au ke he Atua Malolo oti kana to eke e au ke he haaku a fifiliaga tonu kua mua ue atu, ke he tau magaaho oti kua lata ke pihia ai, to foaki mo e fakamakai e au haaku a tau fakatonuaga oti ke moua mai e levekiaga mitaki he tau gahua he motu ko Niue, mo e to nakai fakakite fakatonu e au po ke ha puhala kehe e tau mena kua lata ke tutala galo ki ai i loto he Fono He Tau Ikipule po ke taha Komiti he Fono He Tau Ikipule mo e tuku mai ai ke he haaku a mahani galo, to eke au ke he tau mena oti pehe na mo Palemia mitaki mo e fakamooli ha Niue (po ke Ikipule). Ko e mena ia kia lagomatai mai au ma Atua na e.
34 Niue Laws 2006 Vol 1

11 Tufatufaaga he tau gahua kotofa ke he tau Ikipule

(1) Ko e Palemia kia eke ai, mai he taha magahala ke he taha magahala, ke
he taha tohi kua tohia ai he lima haana mo e fakamooli ai e higoa he Fakamau
Kupu he Fono He Tau Ikipule mo e lolomi ai i loto he Kasete Niue, e tufatufaaga
he tau gahua kotofa ke he ha Ikipule (lafi ki ai foki a ia) e taha levekiaga gahua he
ha Faahi Gahua Fakatufono po ke tau gahua he Fakatufono mo e maeke ai ke he
puhala taha ia ke fakakehekehe e ha tufatufaaga pehe na.
(2) Ko e Palemia ka ha ha i ai e tonuhia poaki ke taute e ha gahua leveki ke
lata mo e ha Faahi Gahua he Fakatufono po ke ha fekau he Fakatufono kaeke ko e
tau gahua ia kua nakai tufa po ke nakai la tufa tuga ne talahau ai he vala kupu (1)
he Matakupu nai.

12 Tau Fono he Fono He Tau Ikipule

(1) To nakai maeke ke taute ai ha gahua i loto he ha fonoaga he Fono He
Tau Ikipule a to ha ha i ai e toko 3 e tau Ikipule i loto he fonoaga.
(2) To nakai maeke ke tiaki po ke uta kehe e ha tauteaga he Fono He Tau
Ikipule mai he tau tauteaga he tau gahua ha kua pehe ko e fai taha ia lautolu kua
nakai la kotofa, po ke ha mena kua lakafia atu ke he Matakupu 8 he Fakatufono
tohi Fakave nei, ti nakai fai kotofaaga kua taute ai ke lata mo e Matakupu na. To
nakai fai gahua faka fonoaga he Fono He Tau Ikipule ke huhu hagaao pehe kua
nakai aoga ha kua fai tagata hukui i loto he Fono ne gahua tuga ni ko e taha
Ikipule ka e nakai lata ke ha ha i ai e talahauaga ko e hukui mooli.
(3) Ko e tau Fakailoaga he tau fonoaga takitaha oti mo e taha lagaki he tau
pepa fono oti ka tutala ki ai he fonoaga na, kua poaki ai nei ke tufa atu ke he tau
Ikipule takitaha mo e Tohi Kupu he Fakatufono.
(4) Ko e Tohi Kupu he Fakatufono to ha ha ia ia e tonuhia ke fakalataha
atu ke he ha fonoaga he Fono He Tau Ikipule mo e maeke ke vagahau ai ke he ha
mena kua tutala ki ai e Fono, mo e kua nakai maeke a ia ke noa nakai fakalataha
atu a ia kaeke kua manako e Palemia ki ai.
(5) Koe fifiliaga he Fono He Tau Ikipule ke he ha mena tutala to maeke ke
taute ni he tau Ikipule kua ha ha i ai he fonoaga he Fono He Tau Ikipule.
(6) Mo e fakatatai atu ke he Matakupu nai, to maeke ni he Fono He Tau
Ikipule ke utauta ha lautolu a tau tauteuteaga kupu mo e tau fakatokaaga puhala
gahua ke he ha puhala kua manatu a lautolu kua lata.

13 Tau Poakiaga, falu a la fono, mo e tau fifiliaga he Fono He Tau Ikipule

Ko e ha poakiaga po ke ha tauteaga faka fakatufono-tohi kua eke ai he
Fono He Tau Ikipule mo e tau fakamauaga he ha fifiliaga he Fono He Tau Ikipule
to maeke ni ke fakamau mo e taofi tonu ki ai ka eke kua fakamooli ai he Palemia
e ha poakiaga, falu a tauteaga faka fakatufono po ke fakamauaga he fifiliaga na,
pete ni po kua ha ha i ai a ia po ke nakai ha ha i ai i loto he fonoaga he Fono He Tau
Ikipule ne eke po ke taute ai e poakiaga po ke taha fakatufono po ke fifiliaga, mo
e fakamooli ai foki he Fakamau Kupu he Fono He Tau Ikipule.

14 Fakamau Kupu he Fono He Tau Ikipule

Kua poaki ai nei ke ha ha i ai e taha tagata gahua he Kau Gahua Fakatufono
Niue ke fakahigoa ai ko e Fakamau Kupu he Fono He Tau Ikipule, ko ia ke lago ki
ai e gahua ke fakatokatoka e tau mena taute, mo e fakamau e tau kupu tutala he
tau fonoaga he Fono He Tau Ikipule mo e fakafano e tau fifiliaga fakamau he Fono
He Tau Ikipule ke he tau tagata kua lata ke fakafano ki ai po ke tau kotofaaga faka
fakatufono, mo e maeke foki ke taute mo e mah`fii lilifu atu ke he Fono He Tau
Ikipule e tau gahua faka-fakamau kupu mo e falu foki he tau gahua kua lata ke
taute ai.

Ko e Fakatufono-Tohi Fakave A Niue 35

15 Fakamailoga a Niue

Fakamailoga a Niue

(1)To ha ha i ai e taha Fakamailoga faka-Fakatufono Niue (i loto he Fakatufono-tohi Fakave nai kua fakahigoa ai ko e Fakamailoga a Niue), ke he taha talagaaga po ke tau talagaaga kua talia ki ai e Fono He Tau Ikipule mai he taha magahala ke he taha magahala.
(2) To toka ai ke he levekiaga he Fakatonu Fono e Fakamailoga a Niue.
(3) Ko e Fakamailoga a Niue to maeke ke fakaaoga ai he Fakatonu Fono ke
lata mo e fakamooliaga tohi matalima he ha tohi faka-fakatufono kua hagaao ke
he Fakatufono Niue po ke tauteaga he ha tohi kua taute ai faka-fakatufono tohi ke
eke ai i lalo he Fakamailoga a Niue.
(4) Ki a mailoga ai he faka-fakafiliaga e Fakamailoga a Niue i loto he tau
Fakafiliaga oti.
VALA II
KOE FONO TAUTE FAKATUFONO-TOHI A NIUE

Ko e Fono Ekepule Niue

16 Fono Ekepule Niue

(1) Kua poaki ai nei ke ha ha i ai i Niue ma Niue e taha Fono taute
fakatufono-tohi ke fakahigoa ai ko e Fono Ekepule Niue.
(2) Kua poaki ai nei ke ha ha he Fono Ekepule Niue –
(a) Ko e Fakatonu Kupu; mo e
(e) Toko uafulu e tau ekepule ke fifili ai he taha vili galo i lalo he puhala
viliaga fakalalolagi katoa ke he puhala nai;
(i) Toko hogofulu-ma-fa e tau ekepule, takitaha a lautolu ke eke
mo hukui ha tau maaga, ti fifili ni he tau tagata vili he maaga a
lautolu takitaha ia;
(ii) Toko ono e tau ekepule ke fifili he tau tagata oti he motu ko
Niue kua tonuhia ke vili, ti eke ai ke lata mo e fifiliaga ia lautolu
e tau ekepule ia, to vili he tau tagata ne tohia ki loto he tau
pepa fakamau higoa tagata vili he tau maaga oti a lautolu na.
(3) Ka e nakai noa mo e muitua atu ke he Matakupu nai, pihia mo e tau
Matakupu 17, 18, 19, 24 mo e 25 he Fakatufono-tohi Fakave nai, ko e tau katofia he
tau maaga ke lata mo e mahani he viliaga, ko e tonuhia mo e nakai tonuhia he tau
tagata vili mo e tau tagata fakatutu ke vili ki ai, ko e puhala ke fifili aki e tau
ekepule he Fono Ekepule Niue, mo e fakatokatokaaga mo e tau tauteaga he ha
lautolu a tau kotofaaga to tuga ni he fakakite mai ai faka-fakatufono tohi:
Ka e to eke ai pehe –
(a) To ha ha i ai 14 e tau maaga ke lata mo e mahani he viliaga; mo e
(e) Ko e tau tagata takitokotaha oti kua tonuhia ke eke mo tagata vili
ma e viliaga he tau ekepule he Fono Ekepule Niue to lata ni ke vili
i loto he taha, ti taha maka ni, e maaga; mo e
(i) Ha fifiliaga po ke liu fai fifiliaga ke he tau katofia he ha maaga to
maeke ia ke taute ke he mena kua maeke ki ai, mo e kitekiteaga ke
lata mo e gahuahuaaga mitaki he tau mena kua aga ki ai e tau tagata
vili he ha maaga, mo e kua lata ke onoono atu fakamatafeiga ke he
mena ne pehe ki a nakai lakafia atu mamao e tokologa po ke tote
hifo lahi e toko gahoa ke he numela tagata vili he ha maaga ke he.
(4) A to kehe ai ni kaeke kua hagaao kehe e kakano kupu, ko e tau
talahauaga takitaha he Fakatufono-tohi Fakave nai hagaao ke he taha ekepule he
36 Niue Laws 2006 Vol 1
Fono Ekepule Niue ko e haana kakano ko e fakahagaao ke he taha ekepule ne fifili ke lata mo e vala kupu (2) (e) he Matakupu nai, ti kaeke ko e talahauaga hagaao ke he taha tagata he Fono Ekepule fakamua he nofo ia ti tuku e Fono Ekepule ka e fakahoko e vili, kua hagaao pihia foki e kupu nei.

17 Tohiaaga ke he motu mo e tau talahauaga ke moua e tonuhia ke eke mo tagata vili mo e tagata fakatu mo vili ekepule

(1) To nakai fai fakakaupaaga e tau poakiaga he ha fakatufono ne tohia ai e falu a tonuhia lafi atu ke moua he tagata e fakaataaga ke eke a ia mo tagata vili ke he viliaga he Fono Ekepule ha Niue, po ke ke fakatu ke eke mo tagata ke vili ki ai, he ha viliaga ekepule, to maeke ni kaeke ko e tagata ia –
(a) (i) Ko e tagata Niu Silani; po ke
(ii) Ko e tagata nofomau i Niue ke tuga ne tohia ai he Fakatufono­
tohi; mo e
(e) Ko e tagata kua fai magahala ne nofomau ai a ia i Niue ke molea e
3 e tau tau; mo e
(i) Ko e tagata nofo i Niue kua katoa e 12 e mahina kamata mai he aho
ne taute ai e tohi ole ke eke mo tagata vili po ke kamata he aho ne
fakatu mo tagata ke vili mo ekepule.
(2) Ke lata mo e kakano he Matakupu nai, ko e taha tagata to maeke ke
talahau ai ko e tagata nofo mau i Niue kaeke, mo e kaeke hokoia ni –
(a) Ko ia kua nofo mooli i Niue; po ke
(e) Nukua nofo mooli a ia i Niue mo e manatu ke nofo ni mo e ai fai
amanakiaga ke nofo he taha motu po ke kautu kehe, po ke kua
nofo a ia i tua a Niue ka e kua tali mai he toka e ia a Niue, ko e
manatu ke liu mo e nofo ai ke he leva nakai fai amanakiaga ke kehe
mai he haana a nofo tumau ai:
Ka e kaeke kua ha ha i ai e ha tagata kua nofo kehe mai i Niue ke he ha magahala
kua molea e 3 e tau tau, to talahau ai kua nakai fai manatu pihia (ke nofo i Niue),
a to kehe ni kaeke ko e magahala katoa ia po ke katoatoa he magahala ia ne nofo
kehe ai pihia ha ko e fano he fakaakoaga po ke falu gahua fakaako, po ke i loto he
fekafekauaga he Fakatufono Niue.

18 Tau tagata gahua Fakatufono kua maeke ke fakatu vili po ke fifili ki ai

(1) Ko e ha tagata gahua he kau Gahua Fakatufono Niue kua fakatu higoa
vili ke eke mo ekepule he Fono Ekepule Niue, to maeke ke foaki atu ki a ia e
magahala ke fano kehe mai he haana a gahua ke he muituaaga kua lata moe haana
manako ke he kotofaaga ka e muitua ai ke he tau tauteaga mo e tau fakatokatokaaga
faka fakatufono-tohi.
(2) Kaeke ko e ha tagata gahua pehe na kua fifili ai mo ekepule he Fono
Ekepule, to maeke ai a ia, ha kua fifili tuai, ke talahau kua foaki atu tuai ki a ia e
magahala ke fano kehe ai mai he haana a gahua mo e nakai fai palepale ke moua
e ia mai he haana a fekafekauaga i loto he kau Gahua Fakatufono Niue he magahala
kua nofo higoa ekepule ai a ia.

19 Tau Ekepule kua nakai talia ki ai ke eke mo tau tagata gahua he

Fakatufono po ke fia manako ke he falu a gahua faka-Fakatufono

Ko e nofoa he ha ekepule he Fono Ekepule Niue kua poaki nai ke tokanoa ai –
(a) Kaeke kua eke a ia mo taha tagata gahua he kau Gahua Fakatufono
Niue, po ke ko ia ko e taha kua gahua tuai he gahuaaga ia he
magaaho ne fifili ai a ia ti talia e ia e fekafeakuaga palepale ia i loto
he fekafekauaga ia; po ke

Ko e Fakatufono-Tohi Fakave A Niue 37

(e ) Ka e kaeke foki kua fai mena aoga ke he mahani he tau mena moua ne moua ia ke he tauteaga po ke fakamakai lahi ke he ha gahua kua maeke ke moua palepale mai he tau tupe he Fakatufono, ka e kehe ai kaeke kua hokotia atu pihia ha kua fakaata ai faka Fakatufono­ tohi.

20 Fakatonu Fono he Fono Ekepule Niue

(1) Ko e kotofaaga Fakatonu Fono he Fono Ekepule Niue kua poaki pehe
ke fifili ai a ia ke he kotofaaga na e lautolu e tau ekepule kua tokologa lahi ha ha he fonoaga mo e taute ai e vili i loto he Fono Ekepule Niue.
(2) Ko e taha tagata ni kua tonuhia ke vili ki ai ke eke mo e ekepule he
Fono Ekepule Niue kua lata ke fifili mo Fakatonu Fono.
(3) Kaeke ko e ha tagata kua fifili ai mo Fakatonu Fono, he magaaho ne
taute ai e viliaga na, ko e ekepule a ia he Fono Ekepule Niue, ti ko e poaki nai ke
toka e ia e haana a kotofa ko e ekepule, he mogo ke hu atu ai a ia ke he tau gahua
kua toka ai ke he kotofaaga he Fakatonu Fono.
(4) Ko e fifiliaga he Fakatonu Fono kua poaki ai nai ke taute ai fakamua to
taute ai e ha gahua kehe ha fonoaga fakamua he Fono Ekepule he mole e tau
viliaga lah¢¸oti, mo e, he taha fonoaga he ha Fono Ekepule kua ui pauaki ma e
fekau na he mogo ia ni kua tokanoa ai e kotofaaga Fakatonu Fono.
(5) Ko e tagata kua fifili ai ke eke mo Fakatonu Fono, ko e fakamua to
kamata gahua ai a ia he haana a tau gahua kotofa, ko e poakiaga ki a ia ke taute
mo e eke ai e ia i mua he Fakamau Kupu he Fono Ekepule Niue i loto he taha
fonoaga he Fono Ekepule Niue e Omonuo he Mahani Fakamooli ne fakakite mai
he Matakupu 21 he Fakatufono-tohi FakavE nai, mo e tau talahauaga ha ha he
Matakupu na to lata ia foki fakalataha mo e tau fakahuihuiaga ke tuga mo e mena
ko e tau talahauaga ha ha i ai kua hagaao ia ke he taha ekepule, ka ko e hagaao
foki ke he Fakatonu Fono.
(6) To maeke he Fakatonu Fono he ha magaaho ni ke fakaoti e haana a
gahua ke he taha tohi he matalima haana mo e tuku atu ke he Fakamau Kupu he
Fono Ekepule Niue, ti ki a toka e ia haana a kotofa –
(a) He huaga atu he Fakatonu Fono fifili foou he magaaho ka fono
fakamua ai e Fono Ekepule he mole atu taha Viliaga Lahi; po ke
(e ) Kaeke kua fakaoti a ia nakai tuai tonuhia ke lata mo e mahani he
viliaga ke moua e tau ekepule he Fono Ekepule; po ke
(i) Kaeke kua eke tuai a ia mo taha tagata fakatu higoa ki ai ke he
viliaga he taha ekepule po ke tau ekepule ma e Fono Ekepule.
(7) Kaeke kua nakai ha ha i ai e Fakatonu Fono he taha fonoaga he Fono
Ekepule, po ke tokanoa ai e kotofaaga he Fakatonu Fono, ko e tau Ekepule he
fonoaga na, ke fifili e lautolu e taha mai ia lautolu, ka e nakai ko e taha Ikipule, ke
takitaki e fonoaga na, a to maeke he Fakatonu Fono pauaki ke liu fakalataha ai, po
ke a to hoko e magaaho ke fifili ai e Fakatonu Fono mo e hu atu ai a ia ke he haana
a tau gahua kotofa he haana kotofaaga.
(8) Kaeke he ha magaaho kua nakai fai fono ai e Fono Ekepule, ko e
Fakatonu Fono, ha kua gagao po ke fano kehe mai i Niue, mo e nakai maeke
fakaku ia ia ke taute e haana a tau gahua, ko e tau gahua ia to maeke ai ke taute ai
he taha Ekepule he Fono, nakai ko e taha Ikipule, kua takitaki ai e fonoaga he
Fono ke lata mo e Vala Kupu (7) he Matakupu nei. Ka molea e tokotaha e Ekepule
kua tutonuhia mo e ataina ke eke e tau gahua he Fakatonu Fono, ko e tau gahua ia
to taute ai he Ekepule ne fakamuiaki e takitaki ke he taha Fono he Fono Ekepule
ke lata mo e vala kupu na.
38 Niue Laws 2006 Vol 1
(9) Kaeke kua kitia ko e nakai fai tagata kua tonuhia ke taute e gahua he
Fakatonu Fono
(a) Kua poaki ai nai ke ui fakamafiti e taha fono he Fono Ekepule, ti ko
e Fakamau Kupu he Fono Ekepule Niue, ke taute e ia e tau gahua
kotofa he Fakatonu Fono, tuga he manako ke eke ai ke lata ke maeke
ai e fonoaga na ke fakahoko, ti ko e tau talahauaga he Matakupu
22(6) he Fakatufono-tohi Fakave, to nakai fakaaoga ai ke he fonoaga
na; po ke
(e ) Kaeke kua tigahau e Fono Ekepule he tuku ke maeke he taha viliaga
lahi ke fakahoko ka e nakai la fakahoko ia e viliaga lahi ia, kua
poaki ai nai pehe ke fakahoko fakamafiti ai e taha fono he tau tagata
ne talahau ko e tau ekepule he Fono Ekepule fakamua to tuku e
Fono Ekepule ke lata mo e viliaga lahi ke fifili taha mai ia lautolu
ke taute e tau gahua he kotofaaga Fakatonu Fono ke he tau magahala
kua nakai maeke ai he Fakatonu Fono kotofa pauaki ke taute e tau
gahua ia, po ke, ke lata mo e magahala tokanoa to liu e Fono Ekepule
foou ke fakahoko e fonoaga fakamua, ti ko e Fakamau Kupu he
Fono Ekepule Niue ke lago ki ai e tau fekau oti kua hagaao ke he
uiaga he taha fono motuhia pihia, mo e ko ia foki ke fakamooli e
fakamauaga he fono hagaao ke he fifiliaga he taha ke taute a tau
gahua he Fakatonu Fono. Ko e tagata ka fifili ke taute e tau gahua
ia to talahau ai pehe, ke lata mo e tau vala kupu (7) mo e (8) he
Matakupu nei, ko ia taha he tau tagata ne kua takitaki e taha fonoaga
he Fono Ekepule.
(10) Ko e tau pepa oti, fakalataha mo e ha fakamooliaga ke he ha Fakatufono
Fakalatalata, ka fakamooli he Fakatonu Fono ke he matalima tohi haana ke lata
mo e tauteaga he haana a matagahua, ki a nakai noa mo e fakamooli ai foki he
Fakamau Kupu he Fono Ekepule ke he haana matalima tohi, ti kaeke ko e tau
pepa kua fakamooli ai he taha Ekepule ne taute e kotofaaga he Fakatonu Fono, ki
a tohi ai fakalataha he fakamooliaga he tau pepa ia ko e pihia e tauteaga.

21 Tau Ekepule ke taute e Omonuo he Mahani Fakamooli

A to kehe ni ke lata mo e gahua ke maeke ai e Matakupu nai ke fakatatai
mo e fifiliaga he Fakatonu Fono, to nakai fai ekepule he Fono Ekepule Niue kua
maeke ke fakaata ke nofo po ke vili ai i loto he Fono Ekepule a to taute fakamua e
ia e omonuo na i lalo ki mua he Fakatonu Fono pehe:
Ko au ko,…………………………………….kua omonuo nai au ke he Higoa he Atua Malolo Ue Atu pehe, to mahani fakamooli au mo e fua e mahani pipiki mau mooli ke he Patuiki Fifine (po ke Taane) Lilifu
[ talahau e higoa he Patuiki kua pule ai, tuga he pehe Patuiki Fifine ko Elisapeta ke Uaaki ] mo e Haana a tau hukui mo e tau ohi, ke lata mo e fakatufono-tohi, mo e to taute e au haaku a tau gahua kotofa ko e taha Ekepule he Fono Ekepule Niue mo e mahani tonu mo e fakamooli. Ko e mena ia ki a lagomatai mai au, ma Atua na e.

22 Fakaholoaga Gahua he Fono Ekepule Niue

(1) Ko e Fono Ekepule Niue kua poaki nai ke fakalataha ai ke fono ke he
ha mena mo e he ha magaaho kua fifili ki ai he Fakatonu Fono ke lata mo e ole atu
he Palemia ki a ia ke eke pihia mai he taha magaaho kua fifili ke lata mo e mena ia:
Ka e kaeke kua mole atu e 6 e tau faahi tapu mai he fonoaga fakahiku he
Fono Ekepule, ti ko e toko 4 po ke tokologa atu foki e tau ekepule he Fono Ekepule,

Ko e Fakatufono-Tohi Fakave A Niue 39

nakai ko lautolu ko e tau Ikipule, to maeke ke ole atu ke he Fakatonu Fono ke kotofa e taha mena mo e magaaho ke fai fono ai e Fono Ekepule, ti ko e Fakatonu Fono to maeke ia ia ke kotofa e mena mo e magaaho ke lata mo e ole ia, ko e magaaho ke nakai tote hifo he 5 e tau aho po ke nakai leva ke molea e 10 e tau aho ka e ai totou e aho ne taute ai e ole.
(2) Ko e Fakatonu Fono kua poaki nai ke takitaki e ia e tau fonoaga takitaha
oti he Fono Ekepule ne kua ha ha i ai a ia.
(3) A to kehe ai ni kaeke kua fakatoka kehe pauaki he Fakatufono-tohi
Fakave nai, ko e tau kupu huhu po ke tau fekau oti kua tuku ki mua he Fono
Ekepule Niue ke fifili ki ai kua poaki ai nai ko e fakamau ke he mena ne fifili ki ai
ke he loga he tau vili he tau Ekepule kua ha ha he fonoaga mo e vili ki ai.
(4) Ka e kehe ni kaeke ko e muitua atu ke he ha fakatufono-tohi, kaeke ko
e fai fakatufono-tohi hagaao ke he fakakaupaaga ke he ha ekepule ke nakai fakaata
ke fai vili kaeke ko e fekau ke he taha mena taute ke he puhala taute maveheaga
tohi ne kua ha ha i ai ko ia ko e ekepule ne fai mena aoga ke moua e ia ha ko e
tauteaga pihia, ko e poaki ha nai ke taute vili e tau ekepule oti ne ha ha i loto he ha
fonoaga he Fono Ekepule ke lata mo e tau fekau oti ne tuku ke vili ki ai.
(5) Ko e Fakatonu Fono po ke taha tagata kua takitaki e fono to nakai fai
vili fakaoti fekau ke eke e ia, ti nakai fai vili pauaki e Fakatonu Fono, ka ko e
ekepule kua takitaki e fono ma e higoa he Fakatonu Fono to fai vili pauaki ke eke
e ia.
(6) A to kehe ke lata mo e Matakupu 20(9) (a) he Fakatufono-tohi Fakave nai, to nakai fai gahua ke taute ai he ha fonoaga he Fono Ekepule Niue kaeke kua ha ha i ai e tau ekepule ne fakalataha atu ke he fonoaga ko e tote hifo he toko 10 a lautolu, totou ki ai foki he numela ia e ha ekepule kua takitaki e fono ma e higoa he Fakatonu Fono.
(7) Ko e tau malolo pule he Fono Ekepule Niue to nakai lauia ai ha kua
pehe ko e taha nofoa ekepule kua tokanoa.
(8) To nakai maeke e ha Fakatufono Fakalatalata ke fakamooli ai, a to totou
laga 3 ai i loto he Fono Ekepule.
(9) Ko e ha Fakatufono Fakalatalata po ke ha fekau ne kua ha ha i mua he
Fono Ekepule he magaaho ka tuku ai e Fono Ekepule ke lata mo e fakahokoaga he
taha viliaga lahi kua pehe ke fakaoti noa mo e tiaki ai.
(10) Mo e muitua atu ke he Fakatufono-tohi Fakave nai, ko e Fono
Ekepule to maeke ai mai he taha magahala ke he taha magahala ke taute e taha
Tohi He Tau Poakiaga Fakaholoaga Fono ke lata mo e fakatokatokaaga mo e
fakahakohakoaga mitaki he tau fakaholoaga he tau gahua po ke tau fono.

23 Tau Vagahau

(1) Ko e Fakatonu Fono po ke ha ekepule he Fono Ekepule Niue to maeke
ke vagahau ai ke he vagahau faka-niue po ke vagahau faka-Peritania :
Ka e ko e poakiaga ke he Fakamau Kupu he Fono Ekepule ke taute e tau
fakatokaaga kua lata, ka ole he Fakatonu Fono, po ke he ha ekepule kua ole ai ke
he Fakatonu Fono, ke fakatoka pehe ko e tau vagahau he Fakatonu Fono po ke ha
vagahau he ha ekepule ke liliu ke he vagahau faka-Peritania po ke liliu ke he
vagahau faka-Niue, ko e mena fe ni kua lauia ai.
(2) Ko e tau Fakatufono Fakalatalata oti kua tuku ki mua he Fono Ekepule
Niue mo e tau Fakatufono-tohi oti kua poaki nai ke tohia ai ke he vagahau faka-
Niue mo e pihia foki ke he vagahau faka-Peritania.
Ka e maeke kaeke ko e Fono Ekepule ne manako, ha ko e taha kupu pulega kua
fakamau, ke fakatoka ni pehe ko e ha Fakatufono Fakalatalata po ke Fakatufono­
tohi to maeke ke tohia ai ke he vagahau faka-Niue hokoia po ke vagahau faka-
Peritania hokoia ni.
40 Niue Laws 2006 Vol 1
(3) Ko e fakamauaga he tau kupu fono i loto he Fono Ekepule po ke i loto he tau Komiti ha ha i ai, kua poaki nai ai ke tohia ai ke he vagahau faka-Niue ti ko e tau fakamauaga pehe na tuga he fakakite mai ai he Tohi He Tau Poakiaga Fakaholoaga Fono he Fono Ekepule po ke ha kua maeke ha ko e taha kupu pulega he Fono Ekepule ke fakatoka ke maeke foki ke tohia ke he vagahau faka-Peritania. (4) Ko e liliuaga ke he vagahau faka-Niue mo e liliuaga ke he vagahau
faka-Peritania he Fakatufono-tohi Fakave nai, a to kehe kaeke ko e muitua ke he vala kupu (5) he Matakupu nai, ko e liliuaga ke he vagahau faka-Niue mo e liliuaga ke he vagahau faka-Peritania he ha fakamauaga he tau kupu fono i loto he Fono Ekepule po ke ha Komiti ha ha i ai mo e ha fakatufono-tohi to maeke ke tatai ni e aoga ha laua :
Ka e, kaeke kua pehe, he ha mena kua kitia tonu ai e nakai fetataiaki he vaha loto
he ha talahauaga ha ha he liliuaga ke he vagahau faka-Niue mo e liliuaga ke he
vagahau faka-Peritania he Fakatufono-tohi Fakave nai, po ke he ha fakamauaga
po ke he ha fakatufono-tohi ne kua ha ha i ai kua tauteute e talahauaga na, to fai
kitekiteaga ke he tau mena oti kua pehe to fakatupu ai e manatu mooli mo e
kakano he talahauaga na.
(5) Ko e ha mena kua lauia ai e ha fakamauaga he tau kupu tutala he Fono
ekepule Niue po ke he ha Komiti kua ha ha i ai, ko e Fono Ekepule to maeke, ha
ko e taha kupu pulega ke fakatoka ai mo e kaeke ko e ha fakatufono-tohi to taute
fakamooli pehe, kaeke kua ha ha i ai e ha fekehekeheaki he vaha loto he liliuaga
ke he vagahau faka-Niue mo e liliuaga ke he vagahau faka-Peritania he ha
fakamauaga pehe na po ke ha fakatufono-tohi, to taha ni e liliuaga ka talahau ko
e mooli mo e tonu, ko e vagahau faka-Niue po ke liliuaga ke he vagahau faka-
Peritania ke maeke ke fakatumau ki ai.

24 Tau mena ataina ki ai e Fono Ekepule Niue mo e tau ekepule ha ha i ai

(1) Ko e malolo mo e tonu ha ha i ai he ha tauteaga i loto he Fono Ekepule
Niue, po ke i loto he ha Komiti ha ha i ai, mo e malolo he ha tohi fakamooli kua foaki atu he Fakatonu Fono i lalo he Matakupu 34 po ke Matakupu 35 ha ha he Fakatufono-tohi Fakave nai, to nakai maeke ke fai kupu huhu ki ai e ha Fakafiliaga. (2) To nakai maeke he Fakatonu Fono, po ke ha ekepule, po ke ha tagata
gahua he Fono Ekepule Niue kua tuku atu ki ai e tau malolo pule ke fakatonutonu e fakaholoaga po ke mahani he tauteaga he tau gahua, po ke levekiaga he puhala hako, to nakai lauia ai, ha ko e tauteaga e ia he tau malolo pule na, ke he ha Fakafiliaga.
(3) To nakai maeke he Fakatonu Fono, po ke ha ekepule he Fono Ekepule Niue ne kua ha ha i ai e tonuhia ke vagahau ai i loto he fono ke lata mo e ha tauteaga he fono, ke lauia he ha Fakafiliaga hagaao ke he ha mena kua talahau ai po ke ha viliaga kua taute e ia i loto he Fono Ekepule po ke ha Komiti ha ha i ai. (4) To nakai fai tagata ke lauia ai he ha tauteaga i loto he ha Fakafiliaga
kaeke ko e taha mena kua hagaao ke he ha fakailoaga lolomi he lomiaga fakapuloa i lalo he malolo pule he Fono Ekepule Niue he ha fakailoaga, he ha pepa, he viliaga po ke ha tutalaaga ke he mahani he fono.
(5) Mo e muitua atu ke he Matakupu nai, ko e tau mena ataina ki ai e Fono Ekepule Niue mo e tau Komiti ha ha i ai mo e tau mena ataina ki ai e tau ekepule mo e Fakatonu Fono he Fono Ekepule mo e tau tagata kua fakaataina ke vagahau i loto he tau Fonoaga, to fakamau ia ke he taha Fakatufono-tohi, ti ko e ha Fakatufono-tohi pihia to maeke ai, ka e kehe ai ni ka lauia ai ha mena he Matakupu
31 he Fakatufono Fakave nai, ke fakakite fakatonu e tau holifono hagaao ke he
holia he ataina po ke ai fakalilifu ke he Fono Ekepule, mo e maeke ai ke taute e tau
fakatokaaga ke lata mo e fakalilifuaga mo e fakahala he tau holifono pehe na i loto
he Fakafiliaga Lahi ka e nakai ko e ha puhala kehe.

Ko e Fakatufono-Tohi Fakave A Niue 41

25 Palepale he Palemia, Tau Ikipule ne toe tau tau ekepule ne toe he Fono

Ekepule Niue mo e Fakatonu Fono

(1) Ko e kau pule gahua Fakatufono Niue to maeke, mai he taha magahala
ke he taha magahala, mo e kua poaki ai ke, kaeke kua ha ha i ai e taha hikihikiaga
he tau tutuaga he tau palepale he Kau Gahua Fakatufono Niue, ke fakailoa mo e
fai talahauaga pulega ke he Fono Ekepule ke lata mo e tau tutuaga he tau palepale
mo e falu a palepale kua lata ke moua ai he Palemia, tau Ikipule ne toe, tau ekepule
he Fono Ekepule ka e nakai ko e tau Ikipule, mo e Fakatonu Fono.
(2) Ko e Palemia mo e tau Ikipule ne toe, tau ekepule he Fono Ekepule
Niue ne nakai ko e tau Ikipule, mo e Fakatonu Fono kua pehe to maeke ke moua
e lautolu e tau palepale, tau palepale lafi ki luga mo e falu a mena kehekehe ne
kua lata ke moua ha ko e tau kotofaaga ia ke tuga ka fakakite mai ai he taha
Fakatufono-tohi.
(3) Kaeke, ha ko e manatu he Fakatonu Fono, ko e ha Fakatufono
Fakalatalata, po ke ha fakahuiaga ke he ha Fakatufono Fakalatalata, kua hagaao
ke he taha mena kua hagaao ki ai e Matakupu nai, ti ko e Fakatufono Fakalatalata
na, po ke fakahuiaga na, to nakai maeke ke tuku ki mua he fono a to­
(a) Ha ha i ai i mua he Fono Ekepule e taha fakailoaaga mo e talahauaga
pulega mai he Kau Pule Gahua Fakatufono Niue ke lata mo e
Matakupu nai, mo e
(e ) Ko e kakano he kupu ne talahau ai i loto he Fakatufono Fakalatalata
na, po ke fakahuiaga na, ke he manatu he Fakatonu Fono, kua
hagaao tatai ni mo e tau mena kua fifili ki ai he fakailoaaga he Kau
Pule Gahua mo e tau talahauaga pulega he Kau ha ha i ai.

26 Tukuaga he Fono Ekepule Niue

(1) Ko e Fakatonu Fono kua poaki nai ki a ia, ke he taha fakailoaga i loto he
Kasete Niue, ke tuku e Fono Ekepule Niue ka e fakahoko taha viliaga lahi kaeke –
(a) Kua katoa ai e 3 e tau tau mai he aho ne taute ai e viliaga lahi, kaeke
kua nakai la tuku ai fakamua to hoko ke he 3 e tau tau ia;
(e) mai he aho ne hoko ai e viliaga lahi kua mole ki tua, kaeke kua
manako pihia ki ai e Palemia;
(i) Kaeke, ha ko e muitua ke he Matakupu 6 (3) he Fakatufono-tohi
Fakave nai, ko e Palemia ne ole ki a ia ke tuku e Fono Ekepule ka e
fakahoko taha viliaga lahi;
(o) Kua taute ai e taha viliaga foou he Palemia ke lata mo e Matakupu
5 (4) he Fakatufono-tohi Fakave nai, ti nakai moua mai he viliaga
foou na, e tuaga aoga po ke fai kakano ke lata mo e vala kupu na.
(2) Ko e poaki a nai ke eke ai e taha viliaga lahi ke lata mo e mouaaga he
tau ekepule he Fono Ekepule Niue he ha magaaho, ke nakai tote hifo ai he 4 e tau
faahi tapu po ke molea ai e 6 e tau faahi tapu he mole atu e aho ne tuku ai e Fono
Ekepule, tuga he poaki ai nei ke he Fakatonu Fono, ha ko e ole he Palemia, ke
kotofa, po ke kaeke ko e Palemia kua nakai taute ai e ia e ha ole pehe na he ha
magaaho to molea ai ko e 7 e tau aho mai he aho ne tuku ai e Fono Ekepule, tuga
he taute ai he Fakatonu Fono ke he haana ni a manatu, ke kotofa ai, ke he taha
fakailoaaga i loto he Kasete Niue.
42 Niue Laws 2006 Vol 1

27 Fakamau Kupu he Fono Ekepule Niue

(1) To ha ha i ai e taha tagata gahua he kau Gahua Fakatufono Niue ke
fakahigoa ai ko e Fakamau Kupu he Fono Ekepule Niue, ko ia kua poaki nai ki ai
ke leveki mo e fua e tau gahua ke –
(a) Fakatokatoka e tau gahua mo e leveki e tau fakamauaga he tau
tutalaaga mo e toka e tau fakamauaga he tau mena tutala he Fono
Ekepule Niue; mo e
(e ) Fakatokatoka, ke lata mo e fakamooli matalima tohi he tau tohi mo
e tuku atu e tau tohi fakamooli mai he Fakatonu Fono kaeke ko e
ha magaaho kua lata ke fai higoa fakamooli po ke ha fakamooliaga
kua lata ke eke he Fakatonu Fono ke lata mo e ha talahauaga he
Fakatufono-tohi Fakave nai po ke ha fakatufono-tohi, mo e leveki e
tau pepa oti mo e tau tohi fakamooli kua fakamooli ai po ke foaki.
(2) Ko e Fakamau Kupu he Fono Ekepule Niue kua poaki nai ki a ia ke eke
mo e mahani kua tonu ki mua he Fakatonu Fono mo e ke he tau ekepule he Fono
Ekepule e tau gahua fakamau mena oti mo e falu a gahua ke tuga ka manako ki ai.

Ko e Talagaaga he Tau Fakatufono-tohi

28 Malolo kotofa ke taute fakatufono-tohi

(1) Ka e muitua ke he Fakatufono-tohi Fakave nei, maeke e Fono Ekepule
Niue ke taute Fakatufono-tohi ma e fakatupuaga he mafola, holo tonuhia mo e
mitaki he Fakatufono ma Niue.
(2) Ko e malolo kotofa he Fono Ekepule Niue kua maeke ke hokotia ia foki
ke fakaholo atu e taute fakatufono-tohi ke lata mo e falu a mena i fafo ha Niue;
pehe e mena ia, ko e tau fakatufono-tohi ke lauia po ke hagaao atu ke he ha tagata
po ke ha mena i fafo ha Niue po ke ha mena kua taute i fafo ha Niue.
(3) Mo e nakai fakakaupa e tau malolo kotofa katoa ne toka i loto he
Matakupu nei, ko e tau malolo kotofa ia to hokotia atu foki ke he malolo ke
moumou po ke utakehe, po ke fakahui po ke fakafoou po ke lalafi ki luga, ke lata
mo Niue, e ha Fakatufono-tohi ha ne fakagahua ai i Niue po kua hagaao tonu ki
Niue.
(4) A to kehe ai ni kaeke ko e nakai muitua ke he taha mena he Fakatufono­ tohi Fakave nai, nakai maeke e ha Fakatufono-tohi ke pehe kua nakai aoga ha ko e nakai o tatai mo e tau fakatufono-tohi ne fakagahua i Niue.

29 Tukuaga he tau Fakatufono Fakalatalata mo e falu mena kehekehe ki loto he Fono Ekepule Niue

Ka nakai kehe mai mo e Fakatufono-tohi Fakave nei po ke tau Poakiaga Fakaholoaga Fono he Fono Ekepule Niue, maeke e ha Ekepule he Fono Ekepule ke tuku e ha Fakatufono Fakalatalata po ke ha tohi kupu pulega ke fakatutala fetoko ki ai, po ke tuku e ha ole ke he Fono Ekepule, ko e tau mena ia to pulega ni ki ai mo e taute ai e taha fakaotiaga ke lata mo e tau Poakiaga Fakaholoaga Fono.

30 Tau fakakaupaaga pauaki ke lata mo e tau vahega fekau faka Tupe

A to kehe ai ni kaeke ko e moua mai ha ko e pulega po ke taliaaga he
Palemia, po ke taha Ikipule ne eke pihia ha ko e taute ma e higoa he kotofaaga he
Palemia, to nakai maeke e Fono Ekepule Niue ke fai fifiliaga ke he ha Fakatufono
Fakalatalata (lafi ki ai e ha fakahuiaga ke he ha Fakatufono Fakalatalata) kaeke,
kua kitia he Fakatonu Fono kua lauia ai ha fakaaoga unuhake ki luga he ha tupe
he tau tupe fafati ke totogi i Niue po ke utakehe, po ke hiki, po ke ka pehE ai ko e
tau fafati tukuhau, fakahala tupe, po ke ha tupe tukuhau fafati ke totogi he tau
vahega kehekehe a to kehe ni kaeke ko e tukuhifo ki lalo he ha mena totogi he tau
mena kehekehe.

Ko e Fakatufono-Tohi Fakave A Niue 43

31 (Uta Kehe)

32 Tau fakatokaaga fifili pauaki hagaao ke he tau mena kua lauia ai e Kau

Gahua Fakatufono Niue

(1) To nakai maeke he Fono Ekepule Niue ke fakatutala e ha Fakatufono
Fakalatalata po ke ha fakahuiaga fakalatalata ke he ha Fakatufono Fakalatalata he
mole e tukuatuaga fakamua ke he Fono kaeke, ke he manatu he Fakatonu Fono,
ko e Fakatufono Fakalatalata na po ke fakahuiaga na, kua fai fakatokaaga ke lauia
ai e tau mena nai –
(a) Tau totogi, tau tupe lafi ki luga, tau hatakiaga, tau puhala ke takitaki
aki, po ke tau puhala ke lata mo e fakaholoaga he gahua he Kau
Gahua Fakatufono Niue, po ke
(e ) Tau kotofaaga, fakaholo hake he tau kotofaaga, hikihikiaga he tau
kotofaaga, faka okioki mo e gahua, utakehe e gahua, fakaoti fakaku
e gahua, mo e fakaotiaga he kotofaaga ha lautolu mai he Kau Gahua
Fakatufono Niue, lafi ki ai e liu kikite, po ke tau ole liu fifili, hagaao
ia ke he mena kua lauia ai a to moua ki mua he Fono Ekepule e taha
fakailoaaga talahauaga, mai he Kau Pule Gahua Fakatufono Niue
ha ko e muitua ke he Matakupu nei, hagaao ke he tonuhia he mahani
faka-fakatufono, tonuhia he mahani faka-fakatufono-tohi fakave
po ke ha fakatokaaga faka fakatufono kua lauia ai he Fakatufono
Fakalatalata, po ke ha fakahuiaga fakalatalata.
(2) Kaeke, ha ko e muitua ke he Matakupu nai, kua fifili e Fono Ekepule
ha ko e tauteaga ke he taha kupu pulega kua talia ke ole ke he Kau Pule Gahua
Fakatufono Niue ke fai fakailoaaga talahauaga hagaao ke he taha Fakatufono
Fakalatalata, po ke taha fakahuiaga fakalatalata, ko e poaki nai ke he Fakatonu
Fono ke kitia kua fakafano ke he Kau Pule Gahua Fakatufono Niue e taha lagaki
he kupu pulega na, fakalataha mo e taha talahauaga fakamaamaaga he tutalaaga
he Fono Ekepule he mena na, fakalataha mo e taha lagaki he Fakatufono
Fakalatalata na, po ke ha fakahuiaga fakalatalata ke he Fakatufono Fakalatalata
kua hagaao ki ai; ka e kaeke kua nakai pihia e fifiliaga he Fono Ekepule, ko e
Fakatufono Fakalatalata po ke fakahuiaga fakalatalata na, kua pehe ai kua nakai
fai aoga ti ki a tiaki ai.
(3) Kaeke, ha ko e muitua ke he Matakupu nei, ke moua he Fono Ekepule
e fakailoaaga mai he kau Pule Gahua Fakatufono Niue hagaao ke he Fakatufono
Fakalatalata, po ke ha fakahuiaga fakalatalata ke he he Fakatufono Fakalatalata, ti
moua mai ai ha ko e mena ia e ha fakafoouaga he ha Fakatufono Fakalatalata kua
tuku atu, ko e talahauaga he Matakupu nai kua nakai lata ke liu ui atu foki ke he
kau Pule Gahua ke liu fai talahauaga foki, a to kehe ni ka manatu e Fakatonu
Fono kua lauia ai e talahauaga tonuhia ke he mahani faka-fakatufono, tonuhia he
mahani faka fakatufono-tohi fakave, po ke ha fakatokaaga faka fakatufono ka e
nakai la moua mai he oleaga fakamua ke he Kau ia e taha fakailoaaga kua hagaao
tonu ke he taha lauiaaga kua laga mai he fakafoouaga ia.
44 Niue Laws 2006 Vol 1

33

Niue

Tau tauteaga fifili pauaki ma e tau tauteaga kua lauia ai e tau vala kelekele

(1) Ko e Fono Ekepule Niue to nakai maeke ke fakatutala e ha Fakatufono
Fakalatalata, po ke ha fakahuiaga fakalatalata ke he ha Fakatufono Fakalatalata ka mole e tukuaga fakamua ke he Fono kaeke kua manatu e Fakatonu Fono pehe ko e Fakatufono Fakalatalata, po ke fakahuiaga fakalatalata kua lauia ai e tau fakatokatokaaga ke he tau mena nai –
(a) Ko e fakaveaga he tonuhia ke he ha kelekele Niue; po ke
(e) Ko e foakiaga kua kehe he ha kelekele Niue; po ke
(i) Ko e fakatauaga, uta, po ke ha puhala kehe foki ke moua ai ha
kelekele Niue ke lata mo e ha fakaaogaaga ma e tau tagata oti
a to moua ki mua he Fono Ekepule e ha fakailoaaga ne taute ai he taha Kau
Kumikumi ne ha ha i ai e tau malolo kotofa ke ui atu ke he tau fakamooli mo e ke
moua e tau talahauaga tuga kua ha ha i ai ke he Kau Kumikumi ha ko e tau
fakamauaga fakatufono-tohi ke lata mo e talahauaga faka fakatufono, po ke tonuhia
he mahani faka fakatufono-tohi fakaveaga, po ke ha fakatokaaga faka fakatufono,
kaeke kua fai lauiaaga e tau vahega mena pihia i loto he Fakatufono Fakalatalata,
po ke fakahuiaga fakalatalata na.
(2) Kaeke, ke he taha kupu fakamau he Fono Ekepule kua fifili, hagaao ke
he ha Fakatufono Fakalatalata po ke ha fakahuiaga fakalatalata kua lauia ai e
Matakupu nei, kua lata ke fai kumikumi ki ai e taha Kau Kumikumi ke lata mo e
Matakupu nei, ko e poaki nai ke he Fono he tau Ikipule ke fakamafiti ke fifili ko e
lata nakai, ti taute e puhala ke gahua ai ke lata mo e manako he Fono Ekepule kua
fakamau ki ai; ka e kaeke kua nakai muitua e Fono Ekepule ke he puhala ia hagaao
ke he ha Fakatufono Fakalatalata po ke ha fakahuiaga, to tiaki ai e Fakatufono
Fakalatalata po ke fakahuiaga na mo e talahau ai kua nakai aoga e mena ia.
(3) Ko e ha magaaho kua fai talahauaga fakamau ai e Fono Ekepule ke lata
mo e ha Fakatufono Fakalatalata po ke ha fakahuiaga fakalatalata, ha ko e muitua
ke he Matakupu nei, kua lata ke pulega po ke kua pehe e hagaaoaga ke kumikumi
ki ai e taha Kau Kumikumi ke lata mo e Matakupu nei –
(a) To maeke ke he fifiliaga he Fono he tau Ikipule ke fakatu e taha
Kau Kumikumi mo e tuku atu ke he kau ia e tau talahauaga fakave
ke lata mo e gahua, po ke taute e falu a hikihikiaga kua tonuhia ki
ai ke he tau fakaveaga ke lata mo e gahua he Kau Kumikumi ne
fakatu tuai ke lata mo e kumikumiaga ke he mena kua lauia ai e ha
fakaveaga he tau kelekele Niue; ti ko e poakiaga nai kua lago ke he
Palemia ke fakailoa atu mafiti ke he Fono Ekepule e ha
fakatokatokaaga ne taute he Fono he tau Ikipule ke fakatautonu
aki e tau talahauaga fakamau ke he fifiliaga he Fono Ekepule; mo e
(e ) Ka moua mai e talahauaga ia mai he Fono he tau Ekepule, ko e
poaki nai kua lago ke he Fakatonu Fono ke fakafano ke he Kau
Kumikumi ne fakatu he Fono he tau Ikipule ke lata mo e gahua kua
poaki ki ai ke maeke ke moua mai e taha talahauaga ke he
Fakatufono Fakalatalata po ke he fakahuiaga fakalatalata hagaao
ke he talahauaga fakamau he Fono Ekepule, e taha lagaki he
talahauaga fakamau he Fono Ekepule, lafi ki ai e taha lagaki he
Fakatufono Fakalatalata po ke he lagaki he fakahuiaga fakalatalata
ke he Fakatufono Fakalatalata kua lauia ai, ti ko e Kau Kumikumi,
ke lata mo e Matakupu nei, ne kua poaki nai ke taute e fakailoaaga
mo e tuku atu ai ke he Fono Ekepule.

Ko e Fakatufono-Tohi Fakave A Niue 45

(4) Kaeke, ha ko e muitua ke he Matakupu nei, kua moua ai he Fono Ekepule e fakailoaaga mai he Kau Kumikumi hagaao ke he ha Fakatufono Fakalatalata po ke ha fakahuiaga fakalatalata ke he ha Fakatufono Fakalatalata ti pehe kua moua mai ai e taha fakafoouaga po ke ha fakahuiaga fakafoou, ti pehe ai kua nakai lauia ke he kupu poaki ne pehe ke moua mai taha talahauaga he Kau Kumikumi, a to kehe ni ka manatu e Fakatonu Fono kua lauia ai e ha talahauaga kua tonuhia ke he mahani hako faka-fakatufono, tonuhia ke he mahani hako faka fakatufono-tohi fakave po ke ha fakatokaaga faka fakatufono, kaeke kua nakai hokotia e talahauaga fakamua he fakailoaaga mai he Kau Kumikumi ke he mena ia ne manatu e Fakatonu Fono ki ai.
(5) Ha he Matakupu nei ko e –
“Foakiaga kua Kehe”, hagaao ke he tau kelekele Niue, ko e haana kakano
ko e ha vala fonua fakatoka kehe ha ko e foakiaga hiki, fakafua tupe,
foaki fakalofa, foaki nofo totogi, foaki laiseni, foaki ha ko e tonuhia ke
fakaaoga he falu, foaki ke moua e polofita, foaki fakamaveheaga
kaitalofa, foaki faka totogi kaitalofa, lauia ha kua nakai tokanoa e
kelekele, foaki fai falanakiaga ke leveki ma e taha po ke ha puhala foaki
kehe foki ni ko e katoatoa po ke fai fakakaupa, ha ko e faka –fakatufono
po ke talahau ko e tonuhia; lafi ai foki pihia kaeke ko e pulega faka­
konotuleke ke foaki kua kehe; mo e lafi ki ai e ha liuakiaga po ke
hikihikiaga he ha vala kelekele po ke fakakehekeheaga he ha foaki
totogi, foaki laiseni, foaki ma e kaitalofa po ke foaki moua polofita po
ke ha foaki fakakehe ke lata mo e foakiaga he ha vala kelekele ke he ha
puhala kua fakakite ai nei:
“Fakaveaga he tau vala kelekele ke he mahani fakamotu” ko e kakano ko e
fakamauaga ke lata ia mo e mahani fakamotu ke he tonuhia he fonua
pihia mo e fakaaogaaga he tau vala kelekele i Niue:
“Tau Kelekele Niue”, kakano ko e tau vala kelekele Niue ne fakave ke he
Foufou he Patuiki kua talahau ko e Fakatufono ka e toka ke he pule he
tau Niue ke lata mo e mahani mo e fakaaogaaga fakamotu; lafi ki ai e
ha fonua kua tonuhia mai he foakiaga he Fakatufono to hoko e aho 1 ia
Apelila 1916 mo e ha fonua Niue kua fakahigoa ai ko e tau fonua kua
tohi ke he higoa tagata kua ha ha i ai e poakiaga he ha Fakafiliaga to
hoko e aho 1 ia Novema 1969.

34 Ko e magaaho ka fakamooli ai e tau Fakatufono Fakalatalata ke eke mo tau Fakatufono-tohi

(1) A to kehe ni kaeke ko e talahauaga he Matakupu 35 he Fakatufono-tohi Fakave nei, hagaao ke he tau mena kua tonuhia ke he Matakupu ia, to maeke ni e tau Fakatufono Fakalatalata ke eke mo Fakatufono-tohi, kaeke, mo e kaeke ni –
(a) Kua talia ai he Fono Ekepule Niue; mo e
(e) Kua tonuhia ke he manatu he Fakatonu Fono kua talia mo e muitua
ke he tau fakatokaaga he Fakatufono-tohi Fakave nei mo e tau
Poakiaga Fakave ma e Fakaholoaga Fono he Fono Ekepule, ti kua
fakamooli ai ke he matalima tohi haana i mua he Fakamau Kupu
he Fono Ekepule Niue, e taha fakamooliaga ki loto he taha lagaki
he Fakatufono Fakalatalata mo e fakamailoga aki e Fakamailoga a
Niue, mo e pehe kua muitua e tauteaga ke he puhala ne talahau he
Matakupu nei ke muitua ki ai ti tohia ai e aho ne fakamooli mo e
fakamailoga ai; mo e
46 Niue Laws 2006 Vol 1
(i) Kua fakamooli foki he Fakamau Kupu he Fono Ekepule Niue ke he matalima tohi haana i mua he Fakatonu Fono e lagaki he Fakatufono Fakalatalata na ne fakamooli he Fakatonu Fono ne toka ai e fakamooliaga kua talahau ai.
(2) Ko e ha Fakatufono Fakalatalata kua eke mo fakatufono-tohi ke tuga mo e tau talahauaga he Matakupu nei, to eke ia mo Fakatufono-tohi he Fono Ekepule Niue.
(3) A to kehe ni ka fakakite tonu i loto he ha Fakatufono-tohi, ko e tau Fakatufono-tohi oti ke kamata fakagahua ai Niue he aho ne fakamooli matalima ai mo e tuku aki ai e fakamailoga a Niue.

35 Malolo kotofa he Fono Ekepule Niue ke uta kehe po ke fakahui e

Fakatufono-tohi Fakave nei

(1) Ko e ha Fakatufono Fakalatalata ke uta kehe po ke fakahui, po ke
fakafoou, po ke fakalaulahi, e ha Matakupu po ke ha vala kupu he Matapatu
Fakatufono-tohi Fakave a Niue 1974, po ke Fakatufono-tohi Fakave nei, po ke
taute ai ha fakatokaaga kua nakai fetataiaki mo e ha talahauaga na, to maeke ni ke
eke ai mo fakatufono-tohi, ka eke, mo e ka eke hokoia ni –
(a) Kua talia ai he Fono Ekepule ke he puhala kua muitua ke he tau
fakatokaaga nai;
(i) He totouaga fakahiku mo e totouaga to hoko e totouaga ia he
ha Fakatufono Fakalatalata, kua moua e tau vili talia ke he
numela katoa kua nakai tote hifo he ua e mena ke tolu aki he
tau numela Ekepule katoatoa he Fono Ekepule tuga ne talahau
ai he Matakupu 16(2) (b) he Fakatufono-tohi Fakave nei; mo e
(ii) Ko e vili ke eke ke lata mo e totou fakahiku ki a nakai taute a to
Katoa e 13 e tau faahi tapu he mole, ka e nakai lafi ki ai e aho ne
eke ai ke he vili ke lata mo e aho totouaga ne taute to hoko e
totouaga fakahiku; mo e
(e) Kua oti ia ti kua tuku atu ai ke he viliaga, kua taute ai ke he puhala
fakatoka faka-fakatufono-tohi, he tau tagata he magaaho he viliaga
na kua tonuhia ke vili, ko e tau tagata vili he viliaga lahi he tau
Ekepule he Fono Ekepule Niue, ti ha ha he viliaga na e omoiaga
talia
(i) Kaeke ko e ha Fakatufono Fakalatalata kua utakehe po ke
fakahui po ke fakafoou po ke fakalaulahi e taha he tau
fakaveaga he tau Matakupu 2 ke he 9 he Matapatu Fakatufono­
tohi Fakave a Niue 1974 po ke tau Matakupu 1 mo e 69 he
Fakatufono-tohi Fakave nei, po ke Matakupu nei, kua lata ke
hokotia ke he ua e mena ke tolu aki e loga he tau vili hako ne
vili; mo e
(ii) Kaeke ko e tau mena ke he ne nakai talahau he vala kupu 35(1)
(b) (i) ti muitua ni ke he loga he tau vili hako ne moua; mo e
(i) Kaeke kua talia he Fakatonu Fono pehe kua fakamooli tuai ke he
tau puhala kua muitua ke lata mo e Fakatufono-tohi Fakave nei mo
e Tau Poakiaga Fakave ma e Fakaholoaga Fono he Fono Ekepule
Niue, ti fakamooli he Fakatonu Fono taha lagaki he Fakatufono
Fakalatalata e taha talahauaga fakamooli kua talahau ai pehe kua
muitua e tauteaga ke he talahauaga he Matakupu nei, mo e kua eke
ai e ia pihia ki mua he Fakamau Kupu he Fono Ekepule Niue ke he
matalima tohi haana e tohi fakamooli na, ti fakamau fakamailoga e
lagaki na aki e Fakamailoga a Niue mo e tohi ai i luga e aho ne
fakamooli mo e fakamau fakamailoga ai; mo e

Ko e Fakatufono-Tohi Fakave A Niue 47

(o) Ko e Fakamau Kupu he Fono Ekepule Niue, kua eke, i mua he Fakatonu Fono, e fakamooli foki ke he matalima tohi haana e talahauaga fakamooli i loto he lagaki na he Fakatufono Fakalatalata.
(2) Ko e ha Fakatufono Fakalatalata kua eke mo fakatufono-tohi ke lata mo e tau talahauaga he Matakupu nai to talahau mo e totou ai ko e taha vala he Fakatufono-tohi Fakave nei mo e maeke ai ke talahau ko e fakahuiaga faka fakatufono-tohi fakave.
(3) A to ke he ni ka talahau pauaki i loto, ko e fakahuiaga faka fakatufono­ tohi fakave to kamata fakagahua ai he aho ne taute ai e talahauaga fakamooli mo e fakamau fakamailoga ai.

36 Nakai maeke e Fono Ekepule (Palemene) Niu Silani ke talaga e tau fakatufono-tohi ma Niue, mo e nakai maeke ke fakagahua e ha la fono Niu Silani a to moua e talia ki ai

(1) To nakai maeke e ha Fakatufono-tohi, po ke ha fakatokaaga he ha Fakatufono-tohi he Fono Ekepule (Palemene) Niu Silani ne fakamooli ai he aho, po ke he ha aho kua mole e Aho Fakatokatokaaga he Pule Fakamotu, ke pehe kua maeke ke hokotia e fakaaogaaga ki Niue, po ke pehe kua eke ko e taha vala he fakatufono-tohi a Niue, a to pehe ai –
(a) Ko e fakamooliaga he Fakatufono-tohi po ke taha tauteaga he ha fakatokaaga na , ke lata ke hokotia e fakaaogaaga ki Niue, kua oti tuai he ole fakamua atu ki ai mo e talia ha ko e taha kupu pulega fakamau he Fono Ekepule Niue ke eke pihia; mo e
(e ) Kua oti tuai he talahau fakamahino i loto he ha Fakatufono-tohi
pihia kua pehe ko e Fono Ekepule Niue kua ole atu tuai mo e talia
ki ai ke eke pihia ke lata mo e talagaaga he Fakatufono-tohi na po
ke he fakatokaaga kua ha ha i ai.
(2) To nakai fai fakatufono lafi ne kua taute ai he mole e Aho
Fakakatoatoaaga he Pule Fakamotu, ha ko e muitua ke he Fakatufono-tohi he
Fono Ekepule (Palemene) a Niu Silani, kua maeke ke fakaaoga ki Niue, po ke eke
mo taha vala he tau Fakatufono-tohi a Niue, a to pehe ai –
(a) He aho ka taute ai, ko e Fakatufono-tohi ne moua mai ai e ataina po
ke hagaaoaga ke he talagaaga he fakatufono lafi ko e mena fita ni e
fakatufono-tohi ia he totou ko e taha vala he tau fakatufono-tohi a
Niue; mo e
(e) Ko e fakaaogaaga ki Niue he fakatufono lafi, ko e mena ole mo e
talia fakamua ki ai e Fono he tau Ikipule a Niue; mo e
(i) Kua fakailoa fakamahino ki ai i loto na, pehe, ko e fakatufono lafi
na ne ole mo e talia ki ai e Fono he tau Ikipule a Niue ke lata mo e
tauteaga na.
(3) Koe ha Fakatufono-tohi he Fono Ekepule (Palemene) Niu Silani kua
fakaaoga ki Niue ha ko e tauteaga he Matakupu nei to tatai e fakagahuaaga mo e
haana a aoga ke tuga ni ko e fakatufono-tohi he Fono Ekepule Niue.
(4) Ha ha he Matakupu nei e Kupu, ‘fakatufono lafi” ko e kakano pehe ko
e ha Poakiaga he Kanesila, Fakapuloaaga, tau poakiaga-tohi, tau la fono-tohi mo
e falu a fakatufono lafi.
48 Niue Laws 2006 Vol 1
VALA III FAKAFILIAGA

Fakafiliaga Lahi ha Niue

37 Ko e Fakatuaga he Fakafiliaga Lahi

(1) To ha ha i ai e fakamauaga he fakafiliaga ke fakahigoa ko e Fakafiliaga
Lahi ha Niue, ke fakagahuahua e tau fifiliaga tonu i Niue.
(2) A to ke he ai ni, ke tuga ne tohia ai i loto he Tohi Fakave nei po ke mata
fakatufono, ko e Fakafiliaga Lahi ke ha ha i ai katoatoa he tau fakagahuahuaaga
he tau fakafiliaga kua aofia ai e tau (fakafiliaga holifono ke he tau mata fakatufono,
fakafiliaga tonuhia faka-tagata mo e fakafiliaga kelekele) ke maeke ai ke
fakagahuahua e tau fakatufono i Niue.
(3) To vevehe 3 pehe nai e Fakafiliaga Lahi –
(a) Fakafiliaga ha ko e tonuhia he tagata;
(b) Fakafiliaga holifono ke he tau fakatufono;
(c) Fakafiliaga kelekele.
(4) To maeke he Iki Fakafili he Fakafiliaga Lahi ke fakaaoga e ha malolo fakafiliaga mo e ha malolo pule ha ha ia ia ke he ha fakafiliaga ne tolu.
(5) Muitua ke he (1), (2), (3), mo e (4) he Matakupu nai mo e Matakupu 38, ko e tau Iki Fakafili taki toko taha he Fakafiliaga Lahi, po ke toko 2 po ke tokologa atu foki, maeke ia lautolu ia he ha magaaho i Niue po ke i fafo i Niue ke fakaaoga e tau malolo pule he Fakafiliaga Lahi.

38 Malolo Pule Fakafiliaga he tau La Fakafiliaga he Fakafiliaga Lahi

(1) Ko e tau La Fakafiliaga he Fakafiliaga Lahi ke fakanogonogo mo e fifili
fakamitaki –
(a) E tau fakafiliaga ke tuga mo e tau poakiaga he ha fakatufono tohi,
ke muitua mo e fifili fakamitaki;
(e) Ko e falu a fakafiliaga pihia mai he taha magahala ke he taha
magahala ke toka ke he fifiliaga he Iki Fakafili Lahi ke he taha vala
ni he fifiliaga po ke fakafiliaga katoa, po ke ha fakafiliaga taute
fakamahao, po ke ha vahega fakafiliaga.
(2) To ha ha he Fakafiliaga Kelekele e tau malolo fakafiliaga oti mo e, tau
malolo pule oti ke he ha fekau kelekele, ko e tau fekau ia ne tutupu to hoko e
kamataaga he Matakupu nai ka e nakai la fai tauteaga ia ki loto he Fakafiliaga
Kelekele ha Niue, ko e mena ia to maeke foki ke moua e falu malolo fakafiliaga
pihia ke fakafili e tau fekau nai ka foaki atu he fakatufono tohi.

39 Tau Iki Fakafili he Fakafiliaga Lahi

(1) To ha ha i ai he Fakafiliaga Lahi toko taha po ke tokologa e tau Iki
Fakafili, lautolu oti ia to fifili ai i lalo hifo he malolo he tau poakiaga he Tohi
Fakave nei.
(2) Kaeke ke tokotaha ni e Iki Fakafili ka fifili ko ia ni ko e Iki Fakafili Lahi
ha Niue, ka e, kaeke ke tokologa ka fifili taha mai ia lautolu ia ka fifili ke eke mo
Iki Fakafili Lahi ha Niue.
(3) To nakai fai tagata ke moua e kotofaaga ko e Iki Fakafili he Fakafiliaga
Lahi i lalo hifo he Matakupu nai, a to moua fakamua e ia e taha tohi paase tuga ne
talahau ai he Tohi Fakave nei mo e tohia ai i loto he mata fakatufono tohi.

Ko e Fakatufono-Tohi Fakave A Niue 49

40 Hukui Iki Fakafili Lahi he Fakafiliaga Lahi

Kaeke ke tokanoa ha pu gahua he Ofisa he Iki Fakafili Lahi, po ke ka kitia
ai kua fai kakano aoga ati kua nakai maeke ai he Iki Fakafili Lahi ke taute haana
tau gahua kotofa, ka ko e tau gahua kotofa ia na maeke foki ke taute he taha Iki
Fakafili he Fakafiliaga Lahi, ti kaeke ko e mena maeke he falu Iki Fakafili foki ke
taute e tau gahua kotofa ia, koe mena ia ko e Iki Fakafili ne kua leva haana gahua
ke he kotofaaga Iki Fakafili ko ia ka lago ki ai e kotofaaga Hukui Iki Fakafili Lahi
a to fifili mo e kotofa ai e Iki Fakafili Lahi foou, po ke, a to maeke he Iki Fakafili
Lahi ke liu taute haana tau gahua kotofa.

41 Tau Iki Fakafili nakai gahua mau

To maeke he Fono Ekepule he ha magaaho ke fifili mo e kotofa ai ha tagata
mo e nakai fai kaupaaga e tau tau moui ne kitia kua lata tonu mo e kotofaaga he
Iki Fakafili Lahi, po ke taha Iki Fakafili ke moua e kotofaaga ia ke nakai molea e
taha tau tuga ne tohia ai he tohi kotofaaga gahua.

Fifiliaga, leva he nofo he kotofaaga, mo e tau totogi he tau Iki Fakafili.

42 Fifiliaga he tau Iki Fakafili

Ko e Iki Fakafili Lahi mo e falu Iki Fakafili he Fakafiliaga Lahi to fifili ni ke
he puhala nai:
(a) Ko e Iki Fakafili Lahi he Fakafiliaga Lahi to fifili ai he Kavana Lahi,
to taute e fifiliaga ia ha ko e taliaaga mai he Fono Ikipule mo e
omoiaga he Palemia;
(e) Ko e Iki Fakafili he Fakafiliaga Lahi to fifili ai he Kavana Lahi, to
taute e fifiliaga ia ha ko e taliaaga mai he Fono Ikipule ma e omoiaga
he Iki Fakafili Lahi he Fakafiliaga Lahi mo e Ikipule he Faahi Fakafili.

43 Leva he nofo he kotofaaga Iki Fakafili

(1) To kehe ni kaeke ko e kotofaaga fifili i lalo hifo he Matakupu 41, ha kua
talahau pehe e matakupu ia nakai fai tagata ne kua katoa e 68 e tau tau he moui ke
fifili ke he kotofaaga nai, po ke fakatumau ke he kotofaaga ko e Iki Fakafili Lahi
po ke taha Iki Fakafili foki he Fakafiliaga Lahi.
(2) To nakai fai fifiliaga ke pehe kua nakai tonu ka taute he Iki Fakafili lahi
po ke taha Iki Fakafili he Fakafiliaga Lahi he tau magaaho ka taute ai e ia haana
tau gahua kotofa, pete ni ke pehe kua hoko tuai haana tau tau ke fakaoti ai moe
gahua tuga ne talahau he Matakupu nai, po ke haana tau tau kotofa kua oti tuai.
(3) Ko e Iki Fakafili Lahi po ke taha Iki Fakafili he Fakafiliaga Lahi maeke
ia ia ke tohi ke he haana matalima tohi e haana tohi ke fakaoti moe kotofaaga, tohi
atu ke he Kavana Lahi.

44 Tau totogi he tau Iki Fakafili

(1) Ko e tau totogi he Iki Fakafili Lahi mo e falu Iki Fakafili he Fakafiliaga
Lahi to muitua ni ke he Fakatufono-tohi, mo e to totogi mai he Tokaaga Tupe he
Fakatufono Niue.
(2) Ko e tau totogi he tau Iki Fakafili ia to nakai tuku hifo he ha magaaho he
nonofo ai a lautolu he tau kotofaaga, a to maeke ni ke tuku hifo kaeke ko e tuku
hifo ia kua lauia ai e tau totogi oti ha lautolu ne moua ha ko e muituaaga ke he
fakatufono-tohi.
50 Niue Laws 2006 Vol 1

45 Fakaoti e Kotofaaga he tau Iki Fakafili

(1) Ko e Iki fakafili lahi mo e falu Iki fakafili he Fakafiliaga Lahi to nakai
maeke ke fakaoti mai he tau kotofaaga, ko e maeke ni ka moua mai e fakailoaaga
ke fakaoti mai he Kavana Lahi ha koe taliaaga he Fono Ikipule mo e omoiaga he
Palemia mo e fakamooliaga he Fono Ekepule Niue he fonoaga ne talia oti ki ai a
lautolu.
(2) Ko e taha ni e kakano ne kua maeke ai ke fakaoti ai e Iki Fakafili lahi
mo e ha Iki Fakafili he Fakafiliaga lahi ka hoko ke he tuaga kua nakai tuai maeke
he Iki Fakafili ke taute haana tau gahua kotofa, (tupu mai ha kua nakai malolo e
tino, po ke nakai malolo e manamanatuaga po ke ha mena tupu kia ia) po ke
mahani fakahanoa.

46 Tau Komisina Fakafili he Fakafiliaga lahi

(1) Ko e Fono Ikipule ka fifili e tau Komisina Fakafili he Fakafiliaga lahi ha
Niue, to gahua ai a lautolu ke he tau tau tuga ne tohia ai he ha lautolu a tau tohi
fakamooliaga ke he kotofaaga.
(2) To nakai fai tagata kua katoa e 64 e tau tau he moui, po ke ko e ekepule
he Fono Ekepule Niue ka fifili ke he kotofaaga nai po ke fakatumau ke nofo ai he
kotofaaga nai.
(3) Muitua ke he (2) he Matakupu nai, ko e kotofaaga Komisina Fakafili he
Fakafiliaga Lahi ka ko e tagata gahua to maeke ni e tagata ia ke fakatumau ke he
haana kotofaaga kaeke ke moua e fakamooliaga mai he Kau Pule Gahua, po ke
tagata gahua ke he ha gahua, ko e mena ia kaeke ko e Komisina Fakafili ko e
tagata gahua he kau gahua he tau kau gahua he Fakatufono to nakai maeke ia ia
he magaaho ke fakaaoga ai haana tau malolo kotofa faka-Komisina Fakafili ke
nofo ki lalo he puipuiaga he Kau Pule Gahua he Fakatufono Niue.
(4) To nakai fai fakafiliaga ka taute he Komisina Fakafili he Fakafiliaga
Lahi he magaaho ka taute ai e ia haana tau malolo kotofa ke pehe kua nakai tonu
ha kua hoko ke he tau tau kua lata ke fakaoti ai mo e kotofaaga ke tuga ne tohia ai
he Matakupu nai, po ke ko e tau tau fafati he kotofaaga ke gahua ai kua molea
tuai.
(5) Ko e Komisina Fakafili he Fakafiliaga Lahi maeke ia ia ke tohi ke he haana matalima tohi e haana tohi fakaoti gahua mo e taatu ke he Palemia.

47 Tau Komisina Fakafili nakai gahua mau

Maeke he Fono Ikipule he ha magaaho ke fifili ha tagata mo e nakai fai
kaupaaga e tau he moui ne kua kitia kua lata mo e kotofaaga ko e Komisina Fakafili
he Fakafiliaga lahi ke nakai molea e taha e tau tuga ne tohia he tohi fakamooliaga
gahua.

48 Malolo Pule he tau Komisina Fakafili he Fakafiliaga Lahi

(1) Maeke he Komisina Fakafili he Fakafiliaga Lahi ke moua e malolo pule
ke fakagahuahua haana tau gahua kotofa ko e Iki Fakafili he Fakafiliaga Lahi (ko
e malolo ia ko e malolo faka fakafiliaga po ke malolo ke he tau puhala gahua, ka e
nakai aofia ai e tau malolo pule ne foaki ke he Iki Fakafili Lahi) tuga ne tohia ai he
fakatufono hagaao ke he tau Komisina Fakafili oti po ke fakamahao ni ke he
tokotaha e Komisina Fakafili he Fakafiliaga Lahi, mo e, ko e tau talahauaga ne
tohia ai he ha fakatufono tohi hagaao ke he Iki Fakafili he Fakafiliaga Lahi ne
maeke ke fakamooli aki kua hagaao foki e tau talahauaga ia ke he Komisina Fakafili
he Fakafiliaga Lahi, ka e fakakaupa mai ni ke he malolo pule ne foaki age ki a ia.
(2) Ko e fakaataaga moua mai he Komisina he Fale Hopo Lahi ke liu hafagi
mai he Iki Fakafili he Fale Hopo ia.

Ko e Fakatufono-Tohi Fakave A Niue 51

49 Tau Palepale he tau Komisina Fakafili he Fakafiliaga Lahi

(1) Ko e tau Komisina Fakafili he Fakafiliaga lahi ke moua e tau totogi mo
e tau totogi lafi he tau magahala takitaha tuga ne tohia ai he fakatufono-tohi; ka e
kaeke ke fifili ha Komisina Fakafili ke he kotofaaga nai ke he tuaga nakai gahua
mau, to moua ni e ia e totogi mo e totogi lafi fakalata ke he tau magaaho ne gahua
ai a ia he haana a tau gahua kotofa tuga ne fifili a ia ki ai.
(2) Ko e tau totogi he tau Komisina Fakafili to moua mai he tokaaga tupe
he Fakatufono Niue.
(3) Ko e tau tau fafati ka gahua ai e Komisina Fakafili he haana kotofaaga
to maeke he haana totogi ke holo hake kaeke kua fai holo hake e tau totogi po ke
kakano ni kua lata ke holo hake ai, ka e nakai maeke ke fai magaaho ke holo hifo
ai he tau tau ne fafati ke gahua ai a ia ke he haana kotofaaga, a to maeke ni kaeke
ko e holo hifo e tau totogi oti po ke holo hifo taha he tau totogi ha lautolu oti ne
totogi ha ko e muituaaga ke he fakatufono-tohi.

50 Fakaoti e Kotofaaga Komisina Fakafili

(1) To nakai maeke e Komisina Fakafili he Fakafiliaga Lahi ke fakaoti mai
he haana kotofaaga. Ka ko e Fono Ikipule ni ke maeke ke fakaoti e kotofaaga ia ha
ko e pulega ne tuku atu he Iki Fakafili Lahi ke he Fono Ikipule.
(2) Ko e kakano ni ke maeke ai e Komisina Fakafili ke fakaoti mai mo e
haana kotofaaga kaeke kua nakai maeke ia ia ke taute haana tau gahua kotofa
(tupu mai ha kua nakai malolo e tino po ke nakai mitaki e manamanatuaga po ke
ha mena ni ne tupu ki a ia) po ke mahani fakahanoa.

51 Tau Fakafili he Mafola

Tau Fakafili

(1) Ko e Fono Ikipule ke fifili e tau Fakafili he mafola ma Niue, to gahua ai a lautolu ia ke he tau tau tuga ne tohia ai he tau tohi fakamooliaga gahua.
(2) Ko e tokoua e tau Fakafili he mafola ma Niue ka gahua tokoua, mo e ha
ha ia laua e malolo ke fakagahua i Niue e ha gahua kotofa ne foaki atu he mata­
fakatufono ke he tau Komisina Fakafili he Fakafiliaga Lahi, ti pihia ni mo e tau
fakafoouaga tuga ne tohia ai he Matakupu 48 he tohi Fakave nai, mo e fakahagaao
foki e tau fakafoouaga ia ke he tau kotofa he tau Komisina Fakafili he Fakafiliaga
Lahi, mo e ke fakaaoga foki ke he ha tokoua e fakafili he mafola ma Niue; ka e
nakai hagaao e matakupu nai ke he ha Fakafili he mafola ma Niue ne gahua ekepule
he Fono Ekepule ha Niue po ko ia kua katoa e 68 e tau tau he moui.
(3) To nakai maeke e Fakafili he mafola ma Niue ke fakaoti mo e haana
kotofaaga a to moua e poakiaga ke fakaoti mai he Fono Ikipule ha ko e pulega mai
he Iki Fakafili Lahi.
(4) Ko e tau Fakafili he Mafola ke moua a tau palepale ha lautolu fakalata
ke he ha gahua kotofa ha lautolu ne gahua ki ai. Ko e tau palepale nai to muitua ni
ke he tau magahala takitaha tuga ne tohia ai he fakatufono-tohi.

Fakafiliaga Liu fakafili

52 Fakatu e Fakafiliaga Liu Fakafili

(1) To ha ha i ai e Fakafiliaga Liu Fakafili ha Niue mo e to fakamau ai ko e
Fakafiliaga kua mua he tokoluga moe malolo.
(2) Muitua ke he Matakupu 53 moe 54 ko e tau Iki Fakafili he Fakafiliaga
Liu Fakafili.
(a) Ko e Iki Fakafili lahi mo e falu Iki Fakafili he ha Fakafiliaga Lahi ko
lautolu ia ko e tau hukui kua fifili ke he Fakafiliaga nai ha ko ha
lautolu a tau mahani fakamooli mo e fakauka kua lata tonu ko e
kotofaaga; mo e
52 Niue Laws 2006 Vol 1
(e ) Falu vahega tagata pehe nai kua lata tonu mo e kotofaaga ke tuga ne tohia ai he Fakatufono Tohi, to fifili ai a lautolu ia he Kavana Lahi ha ko e taliaaga he Fono Ikipule mo e omoiaga he Palemia.
(3) Ko e Iki Fakafili Lahi e takitaki he Fakafiliaga Liu Fakafili, ka e kaeke ke nakai ha ha i ai a ia ko e taha Iki fakafili ne kua leva haana gahua mo e motua ka hukui a ia.
(4) Ko e tau Iki Fakafili he Fakafiliaga Liu Fakafili to uta e tau tutuaga ha lautolu he tau kotofaaga ke he leva he gahua, kamata totou he aho ne kamata gahua ai he Fakafiliaga Lahi po ke kamata gahua he Fakafiliaga Liu Fakafili po ke ha fakafiliaga he ha motu i fafo i Niue.
(5) Ko e ha kotofaaga ne fifili i lalo hifo he palatafa (e) he (2) he matakupu nai ke fai magaaho ke tuku age ke fakamahani ai ke he fakafiliaga po ke fai magaaho ke tuku age ke fakanogonogo ke he taha fakafiliaga, ke tuga ne tohia ai he tohi fakamooliaga gahua.

53 Katoa he tau Iki fakafili

(1) Ko e toko 3 e Iki Fakafili he Fakafiliaga Liu Fakafili ke gahua fakalataha
he ha magaaho i Niue po ke i fafo i Niue, mo e, fakagahua ai e tau malolo pule ne
ha ha i ai he Fakafiliaga. Ka e maeke ni kaeke kua fita e fifiliaga fakaoti he
Fakafiliaga he moua he taha hukui ne kua ha ha i ai he magaaho tonu ia he
fakafiliaga, ka e kaeke ke nakai moua ha hukui to puhala atu ai e fifiliaga ia he
Fakafiliaga he Fakamau Kupu Lahi he Fakafiliaga Liu Fakafili.
(2) Ko e fifiliaga he Fakafiliaga Liu fakafili ke falanaki ni ke he manatu kua
tokologa ki ai e tau Iki Fakafili ne ha ha i ai he fakafiliaga.

54 Nakai maeke e Iki Fakafili ne taute e fifili he Fakafiliaga ke ha ha i ai a ia he Fakafiliaga Liu Fakafili ke liu fifili haana fifiliaga

Ko e Iki Fakafili he Fakafiliaga Liu Fakafili to nakai maeke ia ia ke ha ha i ai ke liu fakafili e ha fifiliaga ne taute e ia, po ke Fakafiliaga ne nofo ai a ia ko e taha Iki Fakafili.

55 Ko e fifiliaga he Fakafiliaga Liu Fakafili

(1) A to ke he ai ni ke tuga ne tohia ai he (2) he Matakupu nai, po ke tuga
ne tohia ai he fakatufono tohi, ko e fifiliaga he Fakafiliaga Liu Fakafili ko e fifiliaga
fakaoti ni a ia.
(2) To nakai fai talahauaga i loto he Matakupu nai ke taofi aki e tonuhia he
Patuiki ne ha ha ia ia ne lalago e ha tagata, kaeke kua nakai fiafia e ha tagata ke he
fifiliaga he Fakafiliaga Liu Fakafili kua lata ke taatu e nakai fiafia ia he tagata ke
he taha fakafiliaga ne kua kitia e ia kua lata ke uta ki ai.

55A Malolo Pule Fakafiliaga Liu Fakafili

(1) Muitua ke he tau poakiaga he Tohi Fakave nei, ko e Fakafiliaga Liu
Fakafili ke ha ha i ai e malolo pule ke fanogonogo mo e fifili e ha ole ke liu fakafili
e fifiliaaga he Fakafiliaga Lahi.
(2) Muitua ke he tau poakiaga he Tohi Fakave nei mo e tau magaaho ke
taute ai e ole liu fakafili tuga ne tohia ai he Fakatufono Tohi, a to kehe ai ni kaeke
kua tohia ai he ha fakatufono tohi kua eke ni e fifiliaga ia he Fakafiliaga Lahi mo
e fifiliaga fakaoti, ti ko e ole ke liu fakafili kua nakai tuai talia he Fakafiliaga Liu
Fakafili ke liu fifili e fifiliaga, he Fakafiliaga Lahi –
(a) Ke lata mo e mooli, kaeke kua fakamooli he Fakafiliaga Lahi ko e
fakafiliaga ne taute kua mamafa lahi ni ke he fifiliaga he mata
fakatufono mo e to lauia ai foki e ha poakiaga he Tohi Fakave nei.

Ko e Fakatufono-Tohi Fakave A Niue 53

(e) Ke lata mo e mooli, ko e ha fakahala ka fafati he Fakafiliaga Lahi ha ko e fakagahuahuaaga he tau malolo faka-fakafiliaga ke lata mo e holifono he tagata ne ole ke liu fakafili ha kua fafati ke fakahala mate po ke fakahala tuku ke he fale puipui a to hoko kehe aho ka mate ai, po ke ha vahega fakahala (kua nakai tohia he mata fakatufono) ka e tuga ka tohia ai he Fakatufono Tohi;
(i ) Ke lata mo e mooli kaeke kua nakai fai kakano aoga e matakupu ne fetoko ki ai e ole liu fakafili ke tuga ne tohia ai he Fakatufono Tohi;
(o) Kaeke ke toka ni ke he taliaaga he Fakafiliaga Lahi ke lata mo e falu
fakafiliaga, ti kaeke kua manatu e Fakafiliaga ia ko e matakupu ne
lago ki ai e ole ke liu fakafili ko e matakupu aoga mae tau tagata
oti, po ke aoga ni mo lautolu ne aofia ai, po ke ha kakano aoga ne
kua lata ai ke ta atu e matakupu ke fakafili he Fakafiliaga Liu
Fakafili.
(u) Ko e falu he tau mena tutupu kua fai fakamaamaaga ke lata mo e
fakatufono.
(3) Ke nakai fai mena ke taofi aki e (2) he Matakupu nai, a to kehe ai ni kaeke ke tohia ai he ha Fakatufono Tohi kua eke ni e fifiliaga he Fakafiliaga Lahi mo fifiliaga fakaoti, ka e maeke he Fakafiliaga Liu Fakafili ke lata mo e ha fekau ne manatu e Fakafiliaga ia kua lata ke talia pauaki ni ke tuku atu e ole ke liu fakafili he Fakafiliaga Lahi e fifiliaga ne taute he Fakafiliaga Lahi, ka muitua ke he tau tauteaga pehe nai kua lata ni ke moua e peehi ke puipui ke lata mo e tau tupe ke fakamole ke he kitiaaga kua manatu e Fakafiliaga Liu Fakafili kua lata.
(4) Ko e taha vala he matafakatufono kua ai tohia kehe vagahau Niue.

55E Utaaga he tau Poakiaga Tohi he Fakafiliaga Liu Fakafili

Ko e fifiliaga he Fakafiliaga Liu Fakafili ke he ha Liu Fakafili mai he
Fakafiliaga Lahi to taatu ke he Fakamau Kupu Lahi he Fakafiliaga Liu Fakafili.
Ko e Poakiaga Tohi ia kua fakamau fakamailoga ai he Fakafiliaga Liu Fakafili. Ti
koe fifiliaga ia to tohi fakamau ai he Fakafiliaga Lahi po ke tohi fakamau ai mo e
taha fakaholoaga fakafiliaga foou, po ke toka ni ke he fifiliaga he Fakafiliaga Lahi
tuga ne fifili ki ai.

55I Omonuo he Mahani Fakamooli mo e Omonuo Faka-Fakafiliaga

(1) Ko e Iki Fakafili Lahi moe falu Iki Fakafili he Fakafiliaga Lahi mo e tau
Iki Fakafili oti he Fakafiliaga Liu Fakafili, mo e tau Komisina Fakafili oti, mo e tau
Fakafili he Mafola ha Niue, ko e magaaho ka talia ai ke he kotofaaga to taute ai e
tau omonuo nai:
(a) Hanai e omonuo he mahani fakamooli –
Ko au ko kua omonuo nei au ke he Atua Malolo mua ue atu, to fekafekau au moe tua fakamooli, mo e toto mau e mahani tonu moe fakalilifu ki a ia e Patuiki (Hanai kua fakahigoa ai mo e haana Pule Malolo: Ko e Patuiki ko Elisapeta II) ko ia ko e Ulu he Fakatufono Niue, fakalataha mo e haana tau ohi mo e haana tau hukui ke lata mo e Tohi Fakave mo e Fakatufono he kautu. Ko e mena ia ki a lagomatai mai au ma Atua na e.
54 Niue Laws 2006 Vol 1
(b) Hanai e Omonuo Faka-Fakafiliaga
Ko au ko .kua omonuo nei au ke he Atua Malolo mua ue atu to fekafekau au mo e loto mo e mahani fakamooli ki a ia e Lilifu koe Patuiki (Hanai kua fakahigoa ai mo e haana Pule Malolo: Ko e Patuiki ko Elisapeta II) ko ia ko e Ulu he Fakatufono Niue fakalataha mo e haana tau ohi mo e haana tau hukui ke lata mo e Tohi Fakave mo e fakatufono he Kautu.
Ko e mena ia ki a lagomatai mai au ma Atua na e.
(2) Ko e tau omonuo ka taute ha ko e poakiaga he Matakupu nai to taute ai
ki mua ia lautolu nai –
(a) Ko e Iki Fakafili Lahi to taute ai ki mua he Kavana Lahi;
(e) Ke he falu Iki Fakafili he Fakafiliaga Lahi po ke ha Iki Fakafili he
Fakafiliaga Liu Fakafili to taute ai ki mua he Kavana Lahi po ke ki
mua he Iki Fakafili Lahi;
(i) Ke he tau Komisina Fakafili he Fakafiliaga Lahi, po ke tau Fakafili
he Mafola to taute ai ki mua he Iki Fakafili Lahi po ke ki mua he ha
Iki Fakafili he Fakafiliaga Lahi, po ke ki mua he Fakatonu Fono he
Fono Ekepule Niue.
(3) Ko e ha tagata ne kua fakatonu he Matakupu nai ke taute e omonuo ka
e fakatikai e ia mo e nakai talia e ia ke omonuo ka kua fita a ia he talia e kotofoaga,
ko e magaaho ia ni ke uta kehe ai e kotofoaaga mai ia ia, ka e nakai maeke ha
tagata ke fakaohooho ke omonuo lagaua ke he taha ni e kotofoaga: ka kua lata ke
nakai fai tauteaga ke he ha tagata pihia a to tuku ke he Fakafiliaga ke huhu ki ai
ko e ha ne nakai talia ai e ia ke taute e omonuo tuga ne tohia ai he Matakupu nai.
VALA IV
TAU TUPE MOUA HA NIUE

56 Levekiaga Faka-Fakatufono-tohi he tau tupe moua mo e tau tupe

fakamole

(1) To nakai maeke ke fai tukuhau ka fakatu ai, a to fai talahauaga i loto he
ha Fakatufono – tohi.
(2) Ko e tau tupe moua oti he Fakatufono Niue ki a tuku atu ki loto he
fakaputuaga tupe he kautu po ke ha fakamauaga tupe; ko e tupe oti ia po ke tau
fakamauaga tupe ia, to totogi ni a to kehe ka tohi ai i loto he fakatufono – tohi kua
fakagahua ai, to taute ni tuga ne fakatoka ai he Fakatufono – tohi.
(3) Ko e tau fakamoleaga oti he tau tupe he kautu to taute ke lata moe
poakiaga he fakatufono- tohi tigahau he fakagahua po ke poakiaga he ha
fakatufono – tohi ka taute pauaki.

57 Fakaputuaga Tupe he Fakatufono Niue

(1) To ha ha i ai e taha Fakaputuaga Tupe he Fakatufono Niue.
(2) Ko e tau tupe tukuhau oti mo e falu a tupe moua mo e tau tupe ne
kumi mo e moua he Fakatufono Niue ki a totogi atu ia ke he Fakaputuaga Tupe he
Fakatufono Niue, a to kehe ai ka fakaata ai faka-fakatufono-tohi ke totogi atu ke
he ha fakaputuaga tupe kehe he kautu.

58 Fakalatalataaga mo e Tufatufaaga he tau tupe ma e tau taha

(1) A to kehe ai ni kaeke kua ha ha he Matakupu 59 (4) (e) he Fakatufono –
tohi Fakave nei po ke kua fakaata mai ai i loto he taha la fono fakatufono-tohi po
ke he ha Fakatufono-tohi ka taute pauaki, ko e tau tupe fakamole oti mai he
Fakaputuaga Tupe he Fakatufono Niue to muitua ni tuga ke he tau fakatokaaga
ne talahau ai he Fakatufono – tohi Fakalatalata Tupe ma e tau ia.
(2) Ko e Fakatufono-tohi Fakalatalata Tupe to fakagahua ni ke lata mo e
taha e tau, mo e fakaoti ni haana a aoga he tau na.

Ko e Fakatufono-Tohi Fakave A Niue 55

59 Ko e Fono He Tau Ikipule ke kitekite e fakamoleaga he tau tupe

(1) Ko e Fono Ikipule kua lago ki ai e poakiaga ke tuku ke he Fono Ekepule
e tau fakalatalataaga fakakaupa he tau tupe moua he kautu mo e tau tupe fakamole
he kautu he tau taha, a to pihia ai foki ke he falu a fekau hagaao ke he tupe. Ko e
Palemia po ke taha Ikipule ke tuku ki mua po ke fakailoa ke he Fono Ekepule e ha
Fakatufono – tohi Fakalatalata hagaao atu ia ke he ha fekau hagaao ke he tupe mo
e ha fakalatalata tupe kua amanaki ke fakamole ke lata moe tau taha.
(2) Ko e Fono He Tau Ikipule kua lago ki ai gahua mo e falanaki atu ki lalo
he Fono Ekepule hagaao ke he tau fakamauaga tonu he tau tupe fakamole ke
fakataitai atu ke he tau fatifatiaga ne taute ai he Fono Ekepule ke lata moe
Matakupu 58 he Fakatuono – tohi Fakave nei, po ke ha fakaataaga ke fakamooli e
tau tupe fakamole ke lata moe vala kupu (4) he Matakupu nei, mo e ko e tau
fakamauaga tupe ke ma e tau taha to tuku ai ke he Fono Ekepule.
(3) Ko e ha fakaataaga malolo pule foaki mai he Fono He Tau Ikipule, ko e
tokotaha po ke tokologa ha lautolu e ha malolo ke fakamooli e ha tupe fakamole
ke lata mo e ha fakatufono-tohi ne fakagahua ai he mogo ia mo e taute ai ke lata
mo e Fakatufono-tohi ka e nakai ha ha i ai ha kehekeheaga mai he gahua mo e
falanakiaga auloa he Fono He Tau Ikipule ke he gahuaaga tumau i lalo he
Matakupu nei.
(4) Ke lata moe tau fakakaupaaga tuku hifo he tau magahala takitaha tuga
ne toka ai he ha fakatufono-tohi po ke la fono-tohi ko e Fono he tau Ikipule ke
fakamooli e fakamoleaga he tau tupe kua manatu kua lata –
(a) Ke taute taha fakatokaaga amanaki he Fakatufono- tohi Fakalatalata
Tupe ma e ha tau taha; ka ko e tau tupe katoatoa ne tufa mo e totogi
ai i lalo he palatafa nei he fakatatai atu ai ke he ha vahega gahua he
tau taha, ki a nakai molea e tau fatifati tupe ne nakai fakamole he
Fakatufono-tohi Fakalatalata tupe he tau kua mole, lafi ki ai e taha
e mena ke fa-aki he vahega gahua ia, ti ko e tau tupe ki a lafi
fakalataha e totouaga ke he fakalatalataaga ma e tau ia.
(e) Ko e magahala he vahloto to fakamooli e Fakatufono-tohi
Fakalatalata Tupe moe fakaotiaga he tau taha kua maeke e tau tupe
ia ke fakamole ke molea, mo e nakai fai fakamooli ke moua mai he
Fono Ekepule, ka koe tau tupe oti ne foaki mo e totogi ai he palatafa
nei he ha tau taha ki a nakai molea e taha mo e hafa e pasene he tau
tupe katoa oti ne fatifati ai i loto he Fakatufono-tohi Fakalatalata
Tupe he tau ia.
(5) Ko e ha tupe fakamole ne fakagahua ki lalo he fakaataaga he Matakupu
(4) (e) he Matakupu nei, to tohia ai ko e tau tupe fakamole mo e nakai fakaata ti
totou ko e fakamoleaga mai he taha fatifatiaga kua lata tonu ai.
(6) Ko e fakailoaaga he tupe fakamole ne nakai fai fakaataaga ma e tau ia to
lalafi atu ia ke he fakailoaaga tupe ma e tau ia mo e tuku atu ai ke he Fono Ekepule.

60 Siviaga he tau Tupe

(1) Ko e Faahi Gahua Sivi Tupe ha Niu Silani ke eke mo Sivi Tupe he
Fakaputuaga Tupe he Fakatufono Niue mo e tau fakaputuaga tupe oti he tau Faahi
Gahua Fakatufono mo e tau Ofisa he fakatufono pule fakatonu mo e falu matakau
fakatu faka fakatufono kua lauia ai i lalo he ha fakatufono-tohi.
(2) To lagataha he tau e taute e fakailoaaga mo e fakailoa atu he Faahi
Gahua Sivi Tupe ke he Fakatonu Fono he Fono Ekepule Niue ke tuku ke he Fono
Ekepule e fakailoaaga ne toka ai ha talahauaga tuga ne poaki ai he ha fakatufono­
tohi lafi ki ai foki mo e falu a fakailoaaga hagaao ia ke he tau Fakaputuaga Tupe
he Fakatufono po ke falu he tau vahega tupe kua tohia ai i lalo he Fakatufono –
tohi Fakave nei po ke i lalo he ha fakatufono –tohi kua lata ke sivi ai he Faahi
Gahua Sivi Tupe kaeke kua kitia kua lata ke taute pihia.
56 Niue Laws 2006 Vol 1
VALA V
FAAHI GAHUA MALOLO TINO, GAHUA FAKAAKO MO E FAAHI FIAFIA MOUI TINO

61 Faahi Gahua Malolo Tino, Faahi Gahua Fakaako mo e Faahi Fakafiafia

he Moui Tino

(1) To ha ha he Fono he Tau Ikipule e lauiaaga malolo ke fakatu mo e
fakatumau i Niue e levekiaga he tau fale gagao mo e falu matakau mo e foaki atu
e falu e fekafekeauaga ke lata ma e tau malolo tino he tau tagata.
(2) Ha ha foki he Fono He Tau Ikipule e lauiaaga malolo ke fakatu i Niue
mo e fakatumau i Niue e levekiaga he tau aoga mo e taute ai e falu a fakamauaga
kua lata ia ma e foakiaga he tau fakaakoaga mitaki ma e tau tagata Niue.
(3) Ha ha he Fono He Tau Ikipule e lauiaaga malolo ke fakatu mo e
fakatumau i Niue falu he tau matakau mo e falu gahua ke taute e falu a mena kua
lata ma e tau nonofoaga he tau tagata i Niue ke fakatumau e leveki he tau puhala
moua mena, fiafia mo e fakatumauaga he tau mahani motu.
(4) Nakai fai mena he Matakupu nai kua maeke ke fakakaupa aki e tau
malolo ha he Fono he Tau Ikipule ne toka he Matakupu 2 he Fakatufono-tohi-
Fakave nei, ke fakagahua ma e higoa haana he Patuiki Fifine, kua pule Fakatonu
i Niue.
VALA VI
KO E KAU GAHUA FAKATUFONO NIUE

62 Kau Gahua Fakatufono Niue

(1) To ha ha i ai e Kau Gahua Fakatufono Niue kua ha ha i ai e tau tagata
gahua ke maeke ke lagomatai e Fono He Tau Ikipule ke gahua e tau gahua kotofa
i Niue mo e taute ai e falu a gahua mo e falu a malolo pule fakatonu, ne moua ha
ko e fakatokaaga he ha fakatufono-tohi.
(2) A to kehe ni kaeke ke toka i loto he vala kupu (4) he Matakupu nei, to
nakai maeke ha tagata ke gahua ma e Fakatufono Niue a to pehe ko ia ko e tagata
gahua he Kau Gahua Fakatufono Niue.
(3) A to kehe ai ni kaeke kua fai talahauaga kehe he taha Fakatufono-tohi
ko e gahua ma e taha matakau, po ke ha matakau fakatu faka-fakatufono, po ke
ha matakau kua fakatu ai i lalo he taha fakatufono-tohi a Niue, ke lata mo e
Matakupu nei, kua talahau pehe kua gahua he gahua he Fakatufono Niue.
(4) Nakai hagaao e vala kupu (2) he Matakupu nei ke lauia ai ha gahua
kua totogi faka-konotuleke mai he tau tupe totogi palepale, po ke ha gahua taute
noa, po ke ha gahua he –
(a) Fakafili po ke Komisina Fakafili he Fakafiliaga Lahi, po ke ha
Lagomatai Fakafili ma Niue, po ke ha tagata gahua faka fakafiliaga
ne kotofa po ke ke lata mo e taha la fono – tohi ne fakagahua po ke
taha Fakatufono tohi; po ke
(b) Ha Ikipule po ke taha Ekepule, po ke Fakatonu Fono he Fono
Ekepule; po ke
(c) Taha tagata he Kau Pule Gahua Ha Niue.

63 Tohi Kupu he Fakatufono

(1) To ha ha i ai taha ke kotofa mai he Kau Gahua Fakatufono Niue ke
fakahigoa ai ko e Tohi Kupu he Fakatufono, ko ia ko e ulu gahua mau he Kau
Gahua Fakatufono Niue mo e ko e takitaki lahi he tau gahua taute he Fakatufono
Niue.
(2) Ke lalafi atu ke he falu he haana a tau gahua mo e tau malolo kotofa ne talahau mai he ha fakatufono – tohi, ko e Tohi Kupu he Fakatufono to gahua a ia mo e falanaki atu ke he Fono He Tau Ikipule ke lata ma e tau fakatonutonuaga he

Ko e Fakatufono-Tohi Fakave A Niue 57

tau gahua he tau faahi gahua oti mo e tau ofisa he Fakatufono pule fakatonu. Ko e tau ulu he tau Faahi Gahua po ke ofisa kua lago ki ai e fakaholoaga mitaki mo e tonu he tau gahua he Faahi Gahua ia po ke ofisa ia, mo e falanakai atu ki lalo he Tohi Kupu he Fakatufono, a to pihia atu foki e falanakiaga ia ki lalo he Ikipule he Faahi Gahua ia, po ke ofisa, po ke ha fekau i lalo he haana levekiaga.
(3) Nakai fai talahauaga he Matakupu 69 (2) he Fakatufono-tohi Fakave
nei ke tauhele atu ke he tonuhia he Kau Pule Gahua Niue, ke kumi atu mo e
fakatonu atu ke he Palemia ke maeke ke moua mai e taliaaga he Fono He Tau
Ikipule, to maeke ke kotofa e ha tagata ke eke mo Tohi Kupu he Fakatufono.
(4) Nakai fai fakatufono-tohi po ke la fono-tohi ke maeke ai e ha ole liu
fifili he ha tagata gahua he Kau Gahua Fakatufono Niue ke tuku hagaao atu ia ke
he ha fakaholo ki luga po ke kotofaaga he ha tagata kua fifili ke he kotofaaga he
Tohi Kupu he Fakatufono.

64 Kau Pule Gahua he Fakatufono Niue

(1) To ha ha i ai e Matakau Kau Pule Gahua ma Niue to fakahigoa e Matakau
ia koe Kau Pule Gahua he Fakatufono Niue.
(2) To toko 3 a lautolu ka fifili he Fono Ikipule ke eke mo tau hukui.
(3) Ko e takitaki ha lautolu to fifili foki he Fono Ikipule mai ia lautolu
tokotolu.
(4) Ko e Takitaki mo e tau hukui to gahua ai a lautolu ke he 3 e tau, ka e
maeke foki a lautolu mai he tau magahala takitaha ke liu fifili.
(5) Ko e tau hukui oti to moua e tau totogi, tau tupe lafi mo e tau tupe
lagomatai ka fifili he Fono Ikipule he tau magahala takitaha.
(6) Maeke ke hukui ke fakaoti haana kotofaaga he ha magaaho ke he tohi
taatu ke he Palemia, po ke uta kehe he Fono Ikipule a ia mai he kotofoaga, kakano
ha kua nakai tuai maeke ia ia ke taute haana tau gahua kotofa (ha kua nakai malolo
e tino po ke manamanatuaga po ke ha kakano foki) po ke mahani fakahanoa.

65 Tau Hukui lagomatai he Kau Pule Gahua

(1) Ko e magaaho ka iloa ai kua nakai tuai maeke he ha hukui he Kau Pule
Gahua ke taute haana gahua ha kua gagao, po ke fano kehe mo e motu po ke ha
mena tupu, ko e Fono Ikipule ka fifili taha ke lagomatai e gahua he hukui ia he tau
magaaho ne nakai maeke ai ia ia ke taute haana gahua.
(2) Ti ko e ha tagata ka fifili ke lagomatai e gahua he hukui he Kau Pule
Gahua tuga ne tohia ai he Matakupu nai, to moua e ia e tonuhia ke he tau mena
oti he hukui he Kau Pule Gahua, mo e ko e kotofaaga he ha tagata pehe nai, mo e
ko e ha gahua ka taute e ia ko e hukui he Kau Pule Gahua to nakai maeke he ha
fonoaga ke huhu haana kotofoaaga ha kua nakai iloa po ke kua fakaoti.

66 Puhala gahua he Kau

(1) Ka tokoua e tagata he Kau Pule Gahua Niue kua maeke tuai ke fakahoko
e fono, he ha magaaho ka fono ai.
(2) To maeke e Kau ke uiina taha kua kitia kua lata ke lagomatai ke
lagomatai atu ke he tau fakatutalaaga he fono.
(3) Ki a tokoua e tagata he Kau ka tatai e tau manatu pulega he Kau to
maeke he ha fifiliaga ke fai kakano po ke aoga.
(4) Ko e ha mena ka pulega ki ai e Kau he ha fonoaga, po ke ha fifiliaga
foki kua taute ke he tau kupu fakamau he Kau ti fakamooli matalima tohi ai e
lautolu oti i loto he Kau, to pehe ai kua aoga e tau tauteaga ia.
(5) Ke lafi atu ke he tau fakatokaaga he Fakatufono–tohi Fakave nei to
fakatoka ni he Kau haana e tau puhala taute gahua.
58 Niue Laws 2006 Vol 1

67 Ko e Foakiaga he tau Malolo Kotofa

(1) Mo e nakai tauhele atu ke he poakiaga ma e fakaholoaga tumau he
gahua he Kau Gahua Fakatufono Niue, ko e Kau Pule Gahua Niue, mai he taha
magahala ke he taha magahala, kua maeke ke foaki e falu he haana a tau malolo
kotofa ke lata ma e Kau Gahua Fakatufono Niue (lafi atu ki ai e malolo kotofa nei)
ke he taha he Kau po ke taha tagata kehe po ke ke he Tohi Kupu he Fakatufono.
(2) Ke lata mo e ha fakatonuaga ne tuku mai he Kau ko e ha tagata kua
foaki ki ai e malolo kotofa to gahua ni a ia ki ai, ke pehe kua taute e haana a gahua
ke tuga ni ko e tohia ai pauaki he ha fakatufono – tohi po ke ha la fono-tohi pauaki
ki a ia, ka e nakai ko e malolo kotofa ne foaki ki a ia.
(3) Ko e ha tagata ne kua talahau kua gahua a ia ke lata mo e malolo kotofa
ne foaki age ki a ia i lalo he Matakupu nei, to pehe ai kua gahua ni a ia ke tuga mo
e talahauaga ia, mo e nakai fai talahauaga kua kehe a to kehe ni ka fai fakakiteaga
fakamooli ne talahau ai ko e kehe.
(4) Ko e foakiaga he ha malolo kotofa i lalo he vala kupu nei to taute ni e
ia, po ko lautolu, po ke ha vahega kua fakakite tonu ke taute e gahua ia, po ke
pihia foki kia taha kua fakakite tonu e kotofoaaga.
(5) Ko e foakiaga he ha malolo kotofa i lalo he vala kupu nei to nakai maeke
ke tauhele atu ke he tonuhia ha i ai he taha, po ke Kau, ne foaki e malolo kotofa ia,
ke taute e gahua kua tonuhia ki ai.

Gahuahuaaga mo e Levekiaga he Kau Gahua Fakatufono Niue

68 Tau Gahua mo e tau Malolo Kotofa he Kau

(1) Ko e Kau Pule Gahua Niue to eke ia mo kau ke fakagahua e tau tagata
ma e Kau Gahua Fakatufono Niue, ti, fakalataha mo e muitua ke he Fakatufono –
tohi Fakave nei, to ha ha i ai e malolo katoa ke leveki mo e puipui e haana a
gahuahuaaga, mo e ha ha i ai foki e levekiaga mo e holoaga mitaki he tau gahua
he tau faahi gahua oti mo e tau ofisa he fakatufono pule fakatonu.
(2) Ke lafi atu ke he tau tauteaga Fakave he Fakatufono-tohi Fakave nei po
ke ha la fono-tohi, to maeke he Kau Pule ke fakakite e tau fakatokatokaaga ke lata
ma e fakagahuahuaaga he tau tagata he Kau Gahua Fakatufono Niue, mo e to
fakafano e tau fakatonutonuaga po ke fakagahua e tau malolo kotofa ke lata ia ke
taute aki e tau gahua tuga ne toka ai he Fakatufono-tohi Fakave nei po ke tuga ne
toka ai i loto he ha fakatufono-tohi.
(3) Ha koe tauteaga he tau gahua mo e fakaaogaaga he tau malolo kotofa
kua toka ai hagaao ia ke he Kau Gahua Fakatufono Niue, ko e Kau Pule Gahua
kua ataina ke taute e tau kumikumiaga he ha vahega he tau vahega kumikumi
fekau kaeke kua manatu kua lata ke eke pihia,mo e ke lata mo e ha kumikumiaga
pihia, ko e tonuhia mo e malolo kua talahau nai kua ha ha he Kau Pule ia, ke ui
poaki kia lautolu kua lata ke fai fakakiteaga talahau fakamooli mo e ke moua e
tau talahauaga fakamooli tuga ne toka ai ke he ha Kau Kumikumi ha ko e ha
fakatufono – tohi.
(4) A to kehe ni kaeke ko e muitua ke he Matakupu 69 (2) he Fakatufono
Fakave nei, to gahua e Kau mo e falanaki atu ke he Fono He Tau Ikipule ke lata ia
mo e tauteaga ke he haana tau gahua mo e fakaaogaaga he tau malolo kotofa ha i
ai, ti ko e Kau kua poaki ai nai ke fakailoa atu po ke fakatonu atu ke he Fono He
Tau Ikipule, kaeke kua lata, e ha mena kua lauia ai e tau Kau Gahua Fakatufono
Niue.
(5) Ko e Kau ka mole e aho 31 ia Mati he tau tau oti, kua poaki nei ki ai ke tuku atu fakamafiti ke he Fono He Tau Ikipule e fakailoaaga hagaao ke he holo mitaki he gahua he Kau Gahua Fakatufono Niue ke lata mo e tau taha ne fakaoti ai he aho ia. Ko e lagaki he fakailoaaga ia ki a tuku atu foki ke he Fono Ekepule Niue.

Ko e Fakatufono-Tohi Fakave A Niue 59

69 Tau Kotofaaga ke he Kau Gahua Fakatufono Niue

(1) Ko e tau tagata gahua oti he Kau Gahua Fakatufono Niue to kotofa ni
he Kau Pule Gahua Niue, ka e muitua atu ke he Fakatufono – tohi Fakave nei moe
ha la fono –tohi po ke fakatufono – tohi, to gahua ni a lautolu ke he tau fakatonuaga
mo e tau fakatokatokaaga kua taute he Kau.
(2) Ko e tau mena oti po ke tau talahauaga hagaao ke he tau tagata gahua
takitaha (hagaao ke he kotofaaga, holo ki luga e kotofa, tuku hifo e kotofa, hiki e
kotofa, hatakiaga, fakaoti kotofa, po ke taha mena kehe) to nakai falanaki e Kau
ke he ha fakatonu pule mai he Fono He Tau Ikipule, ka e to gahua ni e Kau ke
taute e tau mena ia kua fakamau ki ai mo e tu ke he tuaga tu-tokotaha.
(3) Ko e ha fakatuaga mo e liu fakafoouaga he tau fakatokatokaaga gahua
po ke fanoaga he tau palepale he Kau Gahua Fakatufono Niue, ko e tau mena fifili
ki ai, ki a lafi ki ai e tau mena nei –
(a) Ke lata mo e tonuhia he Kau Gahua Fakatufono Niue ke fakatumau
e gahuaaga mitaki ke he tau gahua, kua lata ke kitia ko e holo tatai
e puke tagata gahua mo e tau gahua ke taute, ti mua atu e aoga ke
kitekite makutu atu ke kitia ko e tau vahega gahua kehekehe kua
loga ke lata mo e tau Niue iloilo mo e makaka he gahua.
(e ) Ko e manako ke fakaata e tau pu gahua ke maeke ke fakagahua aki
e tau tagata Niue ha ko lautolu ko e tau tagata Niue, ti kua lata ke
muitua e tauteaga ia mo e onoono fakatatai atu fakamakutu ke he
loga he tau gahua i Niu Silani pihia mo e tau fafatiaga totogi.
(i) Ko e manako ke gahua mo e falanaki fakatatai atu ke he tau
hagaaoaga he fakatupuaga ki mua he moui mitaki mo e monuina
he motu ne fakatoka he Fakatufono mo e manatu ko e tau
fakatokatokaaga gahua he Kau Gahua Fakatufono Niue ko e mena
ke mitaki ai ni a Niue.
(4) Ko e tau totogi mo e tau tupe lafi ki luga he tau tagata gahua he Kau
Gahua Fakatufono Niue to totogi mai ni he Fakaputuaga Tupe he Fakatufono
Niue, ko e tau tupe ne fakaata mai he Fono Ekepule ke fakamole.

70 Ko e Kau Pule ke taute fakailoaaga mo e tau pulega ke he Fono Ekepule

(1) Ke lata mo e Matakupu 25 he Fakatufono-tohi Fakave nei, ko e poaki
nei ke he Kau Pule Gahua Niue, he tau magahala takitaha, ka kitia kua lata, ke
tuku atu e fakailoaaga mo e ha pulega ke he Fono Ekepule, hagaao ia ke he tuaga
he tau totogi mo e falu a tupe moua he Palemia, tau Ikipule ne toe mo e tau Ekepule
ne nakai ko e tau Ikipule mo e Fakatonu Fono, ti ko e Kau Pule Gahua ka taute e
Fakailoaaga mo e tau pulega kaeke kua ha ha i ai e ha hikihikiaga he tuaga he tau
totogi he Kau Gahua Fakatufono Niue.
(2 Ko e Kau Pule Gahua kua poaki nai ki ai ke tuku atu ke he Fakatonu
Fono e ha fakailoaaga po ke ha pulega tuga ne toka ai he vala kupu (1) he Matakupu
nei.
(3) Ka e kaeke, ke lata mo e Matakupu 32 he Fakatufono-tohi Fakave nei, kua lata e Kau Pule Gahua Niue ke tuku e ha fakailoaaga hagaao ke he tonuhia faka-fakatufono, po ke faka fakatufono-tohi Fakave, po ke ha fakatokaaga faka fakatufono ne talahau mai he Fakatufono Fakalatalata po ke fakahuiaga fakalataha he vahloto he magaaho kua fafati nei ke kaupa mai he taha e mahina mai he aho ne tuku ai e ole ke moua mai e fakailoaaga ke he Fakatonu Fono, po ke ka manako ki ai, ke moua mai e falu a fakailoaaga lafi a to fakailoa ke he Fakatonu Fono e fakailoaaga fakahiku.
60 Niue Laws 2006 Vol 1
VALA VII
TAU FATOKATOKAAGA MA E MATUTAKIAGA HE FAKATUFONO

71 Fakatumau e tau fakatufono-tohi tuai ke lata mo e Fakatufono-tohi Fakave

Mo e muitua ai ke he Fakatufono–tohi Fakave nei –
(a) Ko e tau fakatufono –tohi he mogonei to fakatumau ni ke fakaaoga
ka hoko po ke molea e Aho Fakakatoatoaaga he Pule Fakamotu a
to utakehe po ke fakahui ai.
(b) Ko e tau tonuhia, tau mena mo e tau fekau lata ke taute po ke tau
kaitalofa, i lalo he tau fakatufono-tohi he mogonei to tumau ni ka
hoko po ke molea e Aho Fakakatoatoaaga he Pule Fakamotu, to
tumau ni ke mailoga mo e fakagahua ni pihia.

72 – 80 Koe falu vala he tohi fakave nei kua nakai tuai fakaaoga

81 Fakamailoga a Niue

A to talia la he Fono He Tau Ikipule ke talaga po ke taute e taha Fakamailoga
foou, ko e Fakamailoga a Niue ne talahau mai he Matakupu 15 he Fakatufono –
tohi Fakave nei, ko e talaga ia kua talia ki ai e Fono Komiti Fakatufono ke eke mo
fakamailoga a Niue ne fakatu ai he Matakupu 7 he Matapatu Fakatufono–tohi
Niue 1966 (mo e ha ne toka ai he Matakupu 3 he Matapatu Fakatufono–tohi Fakahui
ha Niue 1971).

82 Fakamaamaaga

VALA VIII FAKAMAAMAAGA
(1) He Fakatufono–tohi Fakave nei, a to kehe ai ni ka talahau pauaki ko e kehe, ko e –
“Aho Fakakatoatoaaga he Pule Fakamotu”, kakano ko e aho ne kamata fakagahua ai e Fakatufono-tohi Fakave nei.
“Fakafili”, ke lata mo e Fakafiliaga Lahi, kakano ko e ha Fakafili he
Fakafiliaga Lahi ia, lafi ki ai e Iki Fakafili Lahi.
“Fakafiliaga Lahi”, kakano ko e Fakafiliaga Lahi a Niue ne fakatu ai i lalo
hifo he Matakupu 37 he Tohi Fakave nei.
“Fakafiliaga Liu Fakafili”, kakano ko e Fakafiliaga Liu Fakafili ha Niue ne
fakatu ai i lalo hifo he Matakupu 52 he Tohi Fakave nei.
“Fakamau Kupu he Fono Ekepule”, kakano ko e Fakamau Kupu he Fono
Ekepule Niue ne kotofa ai i lalo he Matakupu 27 he Fakatufono-tohi
Fakave nei.
“Fakamau Kupu he Fono He Tau Ikipule”, kakano ko e Fakamau Kupu he
Fono He Tau Ikipule ha Niue ne kotofa ai i lalo he Matakupu 14 he
Fakatufono-tohi Fakave nei.
“Fakatufono-tohi”, kakano ko e ha Fakatufono – tohi he Fono Ekepule
Fakave ha Niue tuga ne toka ai he Matakupu 34 he Fakatufono-tohi
Fakave nei.
“Fakatufono-tohi Fakave”, kakano ko e Fakatufono-tohi Fakave nei, lafi ki
ai e Matapatu Fakatufono-tohi he Fono Ekepule (Palemene) Niu Silani
ne fakahigoa ko e Matapatu Fakatufono-tohi Fakave ha Niue 1974; lafi
ki ai e ha fakahuiaga fakafakatufono-tohi fakave, tuga ne fakaaoga ai
he Matakupu 35 he Fakatufono-tohi Fakave nei, he magaaho ka
fakamooli e ha fakahuiaga ia mo e fakagahua ai.

Ko e Fakatufono-Tohi Fakave A Niue 61

“Fakatufono-tohi”, po ke “La Fakatufono-tohi” –
(a) Kakano ko e ha Fakatufono-tohi he Fono Ekepule mo e ha la
fakatufono-tohi; ha poakiaga, la fono po ke ha mena ni kua taute ai
i lalo he ha Fakatufono-tohi po ke ha la fakatufono-tohi.
(e) Ko e ha Matapatu Fakatufono-tohi he Fono Ekepule (Palemene)
Niu Silani kua hokotia foki e fakagahua ki Niue ke eke mo taha
vala he tau fakatufono-tohi a Niue po ke ha Poakiaga mai he
Kanesila, Fakapuloaaga, poakiaga, la fakatufono-tohi, tohi kotofa
faka-Ikipule, la fono po ke ha mena pihia tuga ne taute ha koe
muitua ke he ha Fakatufono-tohi tuga ne talahau he palatafa nai,
kaeke ko e tau mena oti ia kua pehe kua fakagahua ko e taha vala
he tau Fakatufono-tohi a Niue.
“Fono He Tau Ikipule”, ko e kakano ko e Fono He Tau Ikipule a Niue ne
fakatu he Matakupu 2 he Fakatufono tohi Fakave nei.
“Iki Fakafili Lahi” ko e kakano ko e Iki Fakafili Lahi he Fakafiliaga Tokoluga
ha Niue kua kotofa ai i lalo hifo he matakupu 42 he Tohi Fakave mo e
putoia ai falu he tau Iki Fakafili he Fakafiliaga Tokoluga kua fakamooli
ai he matakupu 40 he Tohi Fakave ke he haana kotofaaga gahua poke
taute ai falu he tau gahua he Iki Fakafili Lahi.
“Tau Fakatufono Mogonei”, kakano ko e tau Fakatufono–tohi oti ne
fakagahua ai i Niue to hoko e Aho Fakakatoatoaaga he Pule Fakamotu;
lafi ki ai e ha fakatufono – tohi ne fakamooli po ke eke mo e fakagahua
ai fakamua po ke mole e Aho Fakakatoatoaaga he Pule Fakamotu.
“Fakatufono-tohi, kakano ko e ha fakatufono-tohi ni ne fakagahua ai i Niue
lafi ki ai e Fakatufono-tohi Fakave nei mo e ha la fakatufono-tohi.
“Ekepule he Fono Ekepule”, po ke “Ekepule”, kua fakaaoga ia ke lata mo e
Fono Ekepule Niue, kakano ko e ha tagata kua fifili ke eke mo Ekepule
he Fono Ekepule ke lata moe Matakupu 16 he Fakatufono – tohi Fakave
nei; ka e nakai koe Fakatufono Fono; mo e ka pehe kua tuku e Fono
Ekepule to fakahoko atu ia ke lata mo e kakano he vala kupu (4) he
Matakupu ia.
“Ikipule”, koe kakano ko e ha Ikipule he Fono He Tau Ikipule; lafi ki ai e
Palemia ; lafi ki ai ha Ekepule he Fono Ekepule ne kotofa mo Ikipule
Hukui leveki ke lata mo e Matakupu 8 he Fakatufono-tohi Fakave nei.
“Fono Ekepule Niue” po ke “Fono”, ko e Fono Ekepule a Niue ne fakatu ai
he Matakupu 16 he Fakatufono-tohi Fakave nei.
“Kau Gahua Fakatufono Niue”, ko e Kau Gahua Fakatufono Niue ne fakatu
ai i lalo he Matakupu 62 he Fakatufono-tohi Fakavei nei.
“Kau Pule Gahua Fakatufono Niue” po ke “Kau Pule Gahua”, kakano ko e
Kau Pule Gahua Fakatufono Niue ne fakatu he Matakupu 64 he
Fakatufono-tohi Fakave nei.
“La fakatufono-tohi”, kakano ko e ha Fakatufono-tohi he Fono Ekepule he
Motu ko Niue po ke Fono Tufono he Motu ko Niue.
“Palemia”, ko e kakano ko e Ekepule he Fono Ekepule ne fifili ke eke mo
Palemia ke lata mo e Matakupu 4 he Fakatufono-tohi Fakave nei he
mole atu e fifiliaga haana ke eke mo Ikipule ke lata mo e Matakupu 5
he Fakatufono-tohi Fakave nei; lafi ki ai e Ikipule ne fifili ke taute e tau
gahua he Palemia ke lata mo e vala kupu (1) po ke vala kupu (2) he
Matakupu 9 he Fakatufono-tohi Fakave nei.
“Tohi Kupu he Fakatufono”, kakano ko e Tohi Kupu he Fakatufono ne
kotofa he Matakupu 63 he Fakatufono-tohi Fakave nei.
62 Niue Laws 2006 Vol 1
“Fakatonu Fono”, kakano ko e Fakatonu Fono he Fono Ekepule Niue ne fifili ke lata mo e Matakupu 20 he Fakatufono–tohi Fakave nei; lafi ki ai e ha Ekepule he Fono Ekepule Niue kua fifili ke taute e gahua he Fakatonu Fono ke lata mo e Matakupu ia.
(2) I loto he Fakatufono–tohi Fakave nei ko e ha tagata kua lata ke omonuo, to maeke ke talia a ia, ka manako ki ai, ke taute fakamooliaga ka e nakai ko e omonuo ne, taute ai he Fakatufono–tohi Fakave nei, ti hiki ni e tau kupu fakatoka he omonuoaga ke lata ni mo e mena ka fakamooli ki ai.
(3) I loto he Fakatufono–tohi Fakave nei ko e ha tagata kua ha ha i ai e
kotofa i loto he Kau Gahua Fakatufono Niue, ko e ha talahauaga ki a ia ne toka ai
e kotofaaga ia, ki a taute ni e ia e kotofaaga ia lafi ki ai e malolo kotofa ke taute e
tau gahua oti he kotofaaga ia.
63

NIUE CONSTITUTION ACT 1974

1974/42(NZ) – 19 October 1974

1	Short title	7	Economic and administrative assistance
2	Application to Niue	8	Co-operation between New Zealand and
3	Niue to be self-governing		Niue
4	Constitution of Niue	9	New Zealand Representative
5	British nationality and New Zealand
	citizenship			SCHEDULES
6	External affairs and defence

An Act to make provision for self-government by the people of Niue, and to provide a constitution for Niue

1 Short title

This Act is the Niue Constitution Act 1974.

2 Application to Niue

This Act shall extend to Niue as part of the law of Niue.

3 Niue to be self-governing

Niue shall be self-governing.

4 Constitution of Niue

(1) The Constitution set out in its Niuean language version in the First
Schedule to this Act and in its English language version in the Second Schedule
shall be the Constitution of Niue (in this Act called the Constitution), and shall be
the supreme law of Niue.
(2) Where the Constitution provides that any New Zealand Court or
Department of Government or statutory authority shall perform any function or
exercise any power in relation to Niue, that Court, or, as the case may be, the
officers of that Department or the members and staff of that authority are by this
Act authorised and required to perform that function or exercise that power in
accordance with the Constitution.

5 British nationality and New Zealand citizenship

Nothing in this Act or in the Constitution shall affect the status of any person
as a British subject or New Zealand citizen by virtue of the British Nationality and
New Zealand Citizenship Act 1948.
64 Niue Laws 2006 Vol 1

6 External affairs and defence

Nothing in this Act or in the Constitution shall affect the responsibilities of
Her Majesty the Queen in right of New Zealand for the external affairs and defence
of Niue.

7 Economic and administrative assistance

It shall be a continuing responsibility of the Government of New Zealand
to provide necessary economic and administrative assistance to Niue.

8 Co-operation between New Zealand and Niue

Effect shall be given to the provisions of section 6 and 7 of this Act, and to
any other aspect of the relationship between New Zealand and Niue which may
from time to time call for positive co-operation between New Zealand and Niue,
after consultation between the Prime Minister of New Zealand and the Premier of
Niue, and in accordance with the policies of their respective Governments; and, if
it appears desirable that any provision be made in the law of Niue to carry out
these policies, that provision may be made in the manner prescribed in the
Constitution, but not otherwise.

9 New Zealand Representative

(1) There shall be appointed under the State Services Act 1962 a New
Zealand Representative in Niue.
(2) The New Zealand Representative shall be stationed in Niue, and shall
be the representative of the Government of New Zealand in Niue.

–––––––––––––––––––– SCHEDULES

SCHEDULE 1

[The Constitution of Niue (Niuean Language Version) – this is reproduced earlier

in this volume.]

–––––––––––––– SCHEDULE 2

[The Constitution of Niue (English Language Version) – this is reproduced earlier

in this volume.]

65

LETTERS PATENT CONSTITUTING THE

OFFICE OF GOVERNOR-GENERAL OF NEW ZEALAND

1983/225

1	Office	of	Governor-General	and	11	Exercise of Prerogative of Mercy
	Commander-in-Chief constituted		12	Administrator of the Government
2	Appointment of Governor-General and	13	Oaths to be taken by Administrator of the
	Commander-in-Chief			Government
3	Governor-General’s powers and authorities	14	Powers and authorities of Governor­
4	Manner in which Governor-General’s		General not abridged
	powers and authorities are to be executed	15	[Revoked]
5	Publication	of	Governor-General’s	16	Ministers to keep Governor-General
	Commission					informed
6	Oaths to be taken by Governor-General	17	Ministers and others to obey, aid, and assist
7	Constitution of Executive Council			Governor-General
8	Membership of Executive Council		18	Power reserved to Her Majesty to revoke,
9	Quorum of Executive Council			alter, or amend the present Letters Patent
10	Appointment of Members of Executive	19	Present Letters Patent to have effect as law
Council, etc

ELIZABETH R
ELIZABETH THE SECOND, by the Grace of God Queen of New Zealand and Her Other Realms and Territories, Head of the Commonwealth, Defender of the Faith:
To all to whom these presents shall come, Greeting:

Recites Letters Patent of 11 May 1917

WHEREAS by certain Letters Patent under the Great Seal of the United
Kingdom bearing date at Westminster the 11th day of May 1917, His late Majesty
King George the Fifth constituted, ordered and declared that there should be a
Governor-General and Commander-in-Chief in and over the Dominion of New
Zealand:

Recites Letters Patent of 18 December 1918

AND WHEREAS by certain Letters Patent under the Great Seal of the United
Kingdom bearing date at Westminster the 18th day of December 1918, His late
Majesty King George the Fifth made other provision for the publication and the
coming into operation of the said Letters Patent bearing date the 11th day of May
1917, in lieu of the provision made in the Fifteenth Clause thereof:

Recites Royal Instructions of 11 May 1917

AND WHEREAS at the Court at St. James’s on the 11th day of May 1917,
His late Majesty King George the Fifth caused certain instructions under the Royal
Sign Manual and Signet to be given to the Governor-General and Commander-in-
Chief:
66 Niue Laws 2006 Vol 1

Recites Dormant Commission of 23 July 1917

AND WHEREAS at the Court at St. James’s on the 23rd day of July 1917,
His late Majesty King George the Fifth caused a Dormant Commission to be passed
under the Royal Sign Manual and Signet, appointing the Chief Justice or the Senior
Judge for the time being of the Supreme Court of New Zealand, to administer the
Government of New Zealand, in the event of the death, incapacity, or absence of
the Governor-General and Commander-in-Chief and of the Lieutenant-Governor
(if any):

Recites Approval by Executive Council of draft of new Letters Patent

AND WHEREAS, by Order in Council bearing date at Wellington the 26th
day of September 1983, Our Governor-General and Commander-in-Chief of New
Zealand, acting by and with the advice and consent of the Executive Council of
New Zealand, has requested the issue of new Letters Patent revoking and
determining the sad Letters Patent bearing date the 11th day of May 1917, the said
Letters Patent bearing date the 18th day of December 1918, the said Instructions,
and the said Dormant Commission, and substituting in place of the revoked
documents other provision in the form of the draft of new Letters Patent set out in
the First Schedule to that Order in Council:

Recites Application of Letters Patent, Royal Instructions, and Dormant

Commission to Cook Islands and Niue

AND WHEREAS the said Letters Patent bearing date the 11th day of May
1917, the said Letters Patent bearing date the 18th day of December 1918, the said
Instructions, and the said Dormant Commission extend to the self-governing state
of the Cook Islands and to the self governing state of Niue as part of the law of the
Cook Islands and of Niue, respectively:

Recites Approval by Government of Cook Islands and Government of Niue of draft of new Letters Patent. Effects Revocations

AND WHEREAS approval of the said draft of new Letters Patent has been signified on behalf of the Government of the Cook Islands and the Government of Niue:
NOW, THEREFORE, We do by these presents revoke and determine the said Letters Patent bearing date the 11th day of May 1917, the said Letters Patent bearing date the 18th day of December 1918, the said Instructions, and the said Dormant Commission, but without prejudice to anything lawfully done thereunder, and We do hereby declare that the persons who are members of the body known as the Executive Council of New Zealand immediately before the coming into force of these Our Letters Patent shall be members of Our Executive Council hereby constituted as though they had been appointed thereto under these Our Letters Patent.
AND WE do declare Our will and pleasure as follows –

1 Office of Governor General and Commander-in-Chief constituted

(1) We do hereby constitute, order, and declare that there shall be, in and
over Our Realm of New Zealand, which comprises – (a) New Zealand; and
(b) The self-governing state of the Cook Islands; and
(c) The self-governing state of Niue; and
(d) Tokelau; and
(e) The Ross Dependency, –

Letters Patent 67

a Governor-General and Commander-in-Chief who shall be Our representative in Our Realm of New Zealand, and shall have and may exercise the powers and authorities conferred on him by these Our Letters Patent, but without prejudice to the office, powers or authorities of any other person who has been or may be appointed to represent Us in any part of Our Realm of New Zealand and to exercise powers and authorities on Our behalf.

2 Appointment of Governor-General and Commander-in-Chief

And We do hereby order and declare that Our Governor-General and
Commander-in-Chief (hereinafter called Our Governor-General) shall be
appointed by Us, by Commission under the Seal of New Zealand, and shall hold
office during Our pleasure.

3 Governor-General’s powers and authorities

And We do hereby authorise and empower Our Governor-General, except
as may be otherwise provided by law –
(a) To exercise on Our behalf the executive authority of Our Realm of
New Zealand, either directly or through officers subordinate to Our
Governor-General; and
(b) For greater certainty, but not so as to restrict the generality of the
foregoing provisions of this clause, to do and execute in like manner
all things that belong to the office of Governor-General including
the powers and authorities hereinafter conferred by these Our
Letters Patent.

4 Manner in which Governor-General’s powers and authorities are to be executed

Our Governor-General shall do and execute all the powers and authorities of the Governor-General according to –
(a) The tenor of these Our Letters Patent and of such Commission as may be issued to Our Governor-General under the Seal of New Zealand; and
(b) Such laws as are now or shall hereafter be in force in Our Realm of
New Zealand or in any part thereof.

5 Publication of Governor-General’s Commission

Every person appointed to fill the office of Governor-General shall, before
entering on any of the duties of the office, cause the Commission appointing him
to be Governor-General to be publicly read, in the presence of the Chief Justice, or
some other Judge of the High Court of New Zealand, and of Members of the
Executive Council thereof.

6 Oaths to be taken by Governor-General

Our Governor-General shall, immediately after the public reading of the
Commission appointing him, take –
(a) The Oath of Allegiance in the form for the time being prescribed by
the law of New Zealand; and
(b) The Oath for the due execution of the Office of Governor-General
in the form following –
I, [name], swear that, as Governor-General and Commander-in-Chief
of the Realm of New Zealand, comprising New Zealand; the self­
68 Niue Laws 2006 Vol 1
governing states of the Cook Islands and Niue; Tokelau; and the Ross Dependency, I will faithfully and impartially serve Her [or His] Majesty [specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Queen of New Zealand [or King of New Zealand], Her [or His] heirs and successors, and the people of the Realm of New Zealand, in accordance with their respective laws and customs. So help me God.
which Oaths the Chief Justice or other Judge in whose presence the Commission is read is hereby required to administer.

7 Constitution of Executive Council

And We do by these presents constitute an Executive Council to advise Us
and Our Governor-General in the Government of Our Realm of New Zealand.

8 Membership of Executive Council

The Executive Council shall consist of those persons who, having been
appointed to the Executive Council from among persons eligible for appointment
under the Constitution Act 1986, are for the time being Our responsible advisers.

9 Quorum of Executive Council

The Executive Council shall not proceed to the despatch of business unless
two Members at the least (exclusive of any Member presiding in the absence of
Our Governor-General) be present throughout the whole of the meeting at which
any such business is despatched, except that in a situation of urgency or emergency,
members may be present by any method of communication that allows each
member to participate effectively during the whole of the meeting.

10 Appointment of Members of Executive Council, etc

And We do hereby authorise and empower Our Governor-General, from
time to time in Our name and on Our behalf, to constitute and appoint under the
Seal of New Zealand, to hold office during pleasure, all such Members of the
Executive Council, Ministers of the Crown, Commissioners, Diplomatic or
Consular Representatives of New Zealand, Principal Representatives of New
Zealand in any other country or accredited to any international organisation, and
other necessary Officers as may be lawfully constituted or appointed by Us.

11 Exercise of Prerogative of Mercy

And We do further authorise and empower Our Governor-General, in Our
name and on Our behalf, to exercise the prerogative of mercy in Our Realm of
New Zealand, except in any part thereof where, under any law now or hereafter
in force, the prerogative of mercy may be exercised in Our name and on Our
behalf by any other person or persons, to the exclusion of Our Governor-General;
and for greater certainty but not so as to restrict the authority hereby conferred,
Our Governor-General may –
(a) Grant, to any person concerned in the commission of any offence
for which he may be tried in any court in New Zealand or in any
other part of Our said Realm to which this clause applies or to any
person convicted of any offence in any such court, a pardon, either
free or subject to lawful conditions; or
(b) Grant, to any person, a respite, either indefinite or for a specified
period, of the execution of any sentence passed on that person in
any court in New Zealand or in any other part of Our said Realm to
which this clause applies; or

Letters Patent 69

(c) Remit, subject to such lawful conditions as he may think fit to impose, the whole or any part of any such sentence or of any penalty or forfeiture otherwise due to Us on account of any offence in respect of which a person has been convicted by any court in New Zealand or in any other part of Our said Realm to which this clause applies.

12 Administrator of the Government

Whenever the Office of Governor-General is vacant, or the holder of the
Office is for any reason unable to perform all or any of the functions of the Office,
We do hereby authorise, empower, and command the Chief Justice of New Zealand
to perform the functions of the Office of Governor-General. If, however, there is
for the time being no Chief Justice able to act as Governor-General, then the next
most senior Judge of the New Zealand judiciary who is able so to act is so
authorised, empowered, and commanded. The Chief Justice or the next most
senior Judge, while performing all or any of the functions of the Office of Governor-
General, is to be known as the Administrator of the Government; and in these
Our Letters Patent every reference to Our Governor-General includes, unless
inconsistent with the context, a reference to Our Administrator of the Government.

13 Oaths to be taken by Administrator of the Government

The said Chief Justice or next most senior Judge of the New Zealand
judiciary shall, on the first occasion on which he is required to act as Administrator
of the Government and before entering on any of the duties of the office of
Governor-General, take the Oaths hereinbefore directed to be taken by Our
Governor-General, which Oaths, with such modifications as are necessary, shall
be administered by some other Judge of the High Court of New Zealand, in the
presence of not less than two Members of the Executive Council.

14 Powers and authorities of Governor-General not abridged

While Our Administrator of the Government is performing all or any of
the functions of the office of Governor-General, the powers and authorities of
Our Governor-General shall not be abridged, altered, or in any way affected,
otherwise than as We may at any time hereafter think proper to direct.

15 [Revoked SR 2006/224]

16 Ministers to keep Governor-General informed

Our Ministers of the Crown in New Zealand shall keep Our Governor-
General fully informed concerning the general conduct of the Government of
Our said Realm, so far as they are responsible therefor, and shall furnish Our
Governor-General with such information as he may request with respect to any
particular matter relating to the Government of Our said Realm.

17 Ministers and others to obey, aid, and assist Governor-General

Our Ministers of the Crown and other Officers, civil and military, and all
other inhabitants of Our Realm of New Zealand, shall obey, aid, and assist Our
Governor-General in the performance of the functions of the office of Governor-
General.
70 Niue Laws 2006 Vol 1

18 Power reserved to Her Majesty to revoke, alter, or amend the present

Letters Patent

And We do hereby reserve to Ourselves, Our heirs and successors, full
power and authority from time to time to revoke, alter, or amend these Our Letters
Patent as to Us or them shall seem meet.

19 Present Letters Patent to have effect as law

And We do further declare that these Our Letters Patent shall take effect as
part of the law of Our Realm of New Zealand...
IN WITNESS WHEREOF We have caused these Our Letters to be made Patent, and for the greater testimony and validity thereof We have caused the Seal of New Zealand to be affixed to these presents, which We have signed with Our Regal Hand.
GIVEN the 28th day of October in the Year of Our Lord One Thousand Nine
Hundred and Eighty-three and in the 32nd Year of Our Reign.
By Her Majesty’s Command.
71

SEAL OF NEW ZEALAND PROCLAMATION 1977

ELIZABETH R
A PROCLAMATION
WHEREAS there has been passed in the present Session of the Parliament of New Zealand the Seal of New Zealand Act 1977, by which Act the assent of the Parliament of New Zealand was given to the establishment, by Proclamation, by Us and Our Successors of a seal to be known as the Seal of New Zealand for use in relation to New Zealand and all other territories for whose foreign relations Her Majesty’s Government in New Zealand is responsible: And whereas the Government of the Cook Islands and the Government of Niue have concurred in the proposals for the establishment of that Seal:
Now therefore We do hereby proclaim as follows:

1 Title

This Proclamation may be cited as the Seal of New Zealand Proclamation
1977.

2 Establishment of Seal of New Zealand

There shall be a Seal to be known as the Seal of New Zealand for use in
relation to New Zealand and all other territories for whose foreign relations Our
Government in New Zealand is responsible.

3 Use of Seal

(1) The Seal of New Zealand shall be used, in accordance with the Seal of
New Zealand Act 1977, by Us and Our Successors and by the Governor-General.
(2) This Proclamation shall have effect –
(a) Notwithstanding anything contained in Our Warrant bearing date
the 29th day of June 1959; and
(b) Notwithstanding anything contained in the Letters Patent dated
the 11th day of May 1917 and the Instructions passed thereunder.

4 Design and style of Seal

The Seal mentioned in Our said Warrant bearing date the 29th day of June
1959, an impression of which seal is set out in the Schedule hereto, shall be and is
hereby adopted by Us as the Seal of New Zealand.

SCHEDULE [Not reproduced]

72 Niue Laws 2005 Voll

73

ADMINISTRATION ACT 1969

1969/52 (NZ) – 1 January 1971

to real estate

31 Payment of claims where estate

insufficient

32 Administration suits

33 Debts under deeds and simple

contracts to stand in equal degree

34 Charges on property

35-36 [Repealed]

37 Liability of specific devise or bequest

where estate is insufficient

38 Proving executors may exercise powers

39 Interest on legacies and annuities

40 No right of retainer by administrator

41 Rights and liabilities of administrator

42 Liability of agent of administrator

43 Administrator ’s right to distrain

44 Administrator may be required to

exhibit inventory

45 Protection of person acting on

administration

46-48 [Repealed]

49 Following of assets

50 Freedom to exercise remedies

51 Restriction on following assets

52 Liability of person fraudulently

obtaining or retaining estate of

deceased

Powers and Procedure of Court

53 Direction to executor to prove or

renounce

54 Production of instruments purporting

to be testamentary

55 Continuance of legal proceedings

56 Question of fact may be tried by a jury

57 Practice of Court in its administration

jurisdiction

58 [Repealed]

59 Power to make rules

Caveats

60 Caveat may be lodged

61 Where a caveat lodged, Court may

grant order nisi

74 Niue Laws 2006 Vol 1

Miscellaneous Provisions

62 [Repealed]

63 Administration granted to trustee

companies

64-66 [Repealed]

67 Other Acts providing for payment

without administration

68 Bondsmen and sureties deemed to be

trustees

PART 2

ADMINISTRATION GRANTED OUT OF NIUE

69 Interpretation

70 Estate of person dying abroad not to vest

without administration

71 Resealing of probate

72 Seal not to be affixed till fees are paid

and administration bond effected

73 No probate granted out of Niue to be

evidence unless resealed

To consolidate and amend certain enactments relating to the administration of the estates of deceased persons

1 Short title

This is the Administration Act 1969.

2 Interpretation

(1) In this Act –
“administration” means probate of the will of a deceased person, and
includes letters of administration of the estate of a deceased person,
granted with or without a will annexed, for general, special, or limited
purposes, and in the case of a trustee corporation includes an order to
administer and an election to administer;
“administrator” means any person to whom administration is granted, and
includes a trustee corporation in any case where it is deemed to be an
executor or administrator by reason of having filed an election to
administer;
“Commonwealth” means the Commonwealth of Nations, and includes
every territory for whose international relations the Government of any
country of the Commonwealth is responsible;
“Commonwealth country” means a country that is a member of the
Commonwealth, and includes every territory for whose international
relations the Government of that country is responsible;
“estate” means real and personal property of every kind, including things
in action;
“intestate” includes a person who leaves a will but dies intestate as to some
beneficial interest in his real or personal estate;
“personal chattels”, in relation to any person who has died, means all
vehicles, boats, and aircraft and their accessories, garden effects, horses,
stable furniture and effects, domestic animals, plate, plated articles,
linen, china, glass, books, pictures, prints, furniture, jewellery, articles

Administration Act 1969 75

of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors, and consumable stores, which immediately before his death were owned by him or in which immediately before his death he had an interest as grantor under an instrument by way of security, or under an agreement that would have been such a hire purchase agreement if the purchaser were not engaged in the trade or business of selling goods of the same nature or description as the goods referred to in the agreement, but does not include any chattels used exclusively or principally at the death of the deceased for business purposes or money or securities for money;
“real estate” means lands, tenements, and hereditaments, corporeal or incorporeal, and whether in possession, reversion, remainder, or expectancy, and any estate or interest in them or any of them, whether freehold or chattel interests, and any possibility, right, or title of entry or action in or concerning them or any of them;
“Registrar” means the Registrar of the High Court; “Rules” means rules made under the authority of this Act; “securities” includes stocks, funds, shares and convertible notes; “will” includes a codicil.
(2) References to a child or issue living at the death of any person include a child or issue who is conceived but not born at the death but who is subsequently born alive.

3 Act to bind Crown

This Act binds the Government.

4 [Spent]

PART 1
ADMINISTRATION BY ADMINISTRATOR

Grant of Administration

5 Probate jurisdiction

(1) The Court shall continue to have jurisdiction and authority in relation
to the granting and revoking of probate of wills and letters of administration with
or without a will annexed of the estates of deceased persons, and in regard to the
hearing and determining of proceedings relating to testamentary matters and
matters relating to the estates of deceased persons.
(2) Without restricting subsection (1) or any other enactment, the Court
shall have jurisdiction to make a grant of probate or letters of administration in
respect of a deceased person, whether or not the deceased person left any estate in
Niue or elsewhere, and whether or not the person to whom the grant is made is in
Niue.

6 Discretion of Court as to person to whom administration is granted

(1) (a) In granting letters of administration with or without a will annexed,
or an order to administer with or without a will annexed, in respect
of the estate of any deceased person or any part of it, the Court
shall have regard to the rights of all persons interested in the estate
of the deceased person or the proceeds of sale of it, and, in particular,
administration with a will annexed may be granted to a devisee or
legatee, and any such administration may be limited in any way
the Court thinks fit.
76 Niue Laws 2006 Vol 1
(b) Subject to subsection (2) where the deceased died wholly intestate as to his estate, administration shall be granted to some one or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose.
(2) Where by reason of the insolvency of the estate or other special circumstances the Court thinks it necessary or expedient to do so, it may –
(a) Grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration;
(b) Grant probate to one or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.
(3) A grant may be made under subsection (2) notwithstanding that any person excluded from the grant would be competent to take it.
(4) Before determining to exclude from any such grant any person who, apart from this section, would by law be entitled to, or be included in, the grant, and wishes to have, or to be so included in, the grant, the Court shall have regard to his competency and solvency, his ability effectively to administer the estate, the rights of all persons interested in the estate, and any changes in circumstances between the making of the will (if any) and the time when the Court is asked to make the grant.

7 Administration pending legal proceedings

(1) Where any legal proceedings touching the validity of the will of a
deceased person, or for obtaining, recalling, or revoking any grant of
administration, are pending, the Court may grant administration of the estate of
the deceased to a temporary administrator, who shall, until he is discharged or
removed under section 21, have all the rights and powers of a general administrator,
other than the right of distributing the balance of the estate remaining after payment
of debts, funeral and testamentary expenses, duties, and fees, and every such
temporary administrator shall be subject to the immediate control of the Court
and act under its direction.
(2) The Court may, out of the estate of the deceased, grant to a temporary
administrator appointed under this section reasonable remuneration.

8 Grant of special administration where administrator is out of Niue

(1) (a) If at any time after the death of a person any administrator of his
estate is residing out of Niue, the Court may, on the application of
any creditor or person interested in the estate, grant to him or some
other person special administration of the estate of the deceased in
such form and with such powers as the Court may direct or approve.
(b) Unless the Court otherwise directs, every grant of special
administration shall continue until the administrator to whom the
grant is made is discharged or removed under section 21.
(2) While a grant of special administration of the estate of a deceased person
remains in force the previously subsisting administration of that estate shall be
deemed to be suspended, and the administrator shall not be liable for acts and
things done by the administrator under the grant of special administration.
(3) The Court may, for the purpose of any legal proceedings to which the
administrator under the special administration is a party, order the transfer into
Court of any money or securities belonging to the estate, and all persons shall
obey any such order.

Administration Act 1969 77

(4) If the administrator capable of acting as such returns to and resides within the jurisdiction of the Court while any legal proceedings to which a special administrator is a party are pending, the administrator who so returns may be made a party to the legal proceedings and the Court may order that the costs of and incidental to the special administration and the legal proceedings shall be paid by such person and out of such fund as it may specify.
(5) Nothing in this section shall restrict section 21.

9 Administration during minority of executor

(1) Where a person who is sole executor of a will is at the date of the
testator ’s death a minor who is not entitled to a grant of probate under subsection
(3), administration with the will annexed may be granted to such person as the
Court thinks fit, until the minor becomes entitled to and obtains a grant of probate
to him; and on his attaining full age or sooner becoming entitled to a grant of
probate under that subsection and not before, probate of the will may be granted
to him.
(2) Where a testator by his will appoints a person who at his death is a
minor who is not entitled to a grant of probate under subsection (3) to be an
executor, the appointment shall not operate to transfer any interest in the estate of
the deceased to the minor or to constitute him an administrator for any purpose,
unless and until probate is granted to him under this section.
(3) Where a testator by his will appoints a person who is a minor to be an
executor, probate of the will may be granted to the person if, at the date of the
grant –
(a) The person has attained full age; or
(b) The person has attained the age of 18 years and is or has been
married.
(4) A minor to whom probate is granted under subsection (3) (b) shall have
the same rights, powers, duties, and obligations as executor as he would have if
he were of full age, and shall be liable accordingly for his acts and omissions as
executor.

10 Administration with will annexed

Where the Court grants administration of the estate of a deceased person
with the will annexed, the will of the deceased shall be performed and observed
in like manner as if probate of it had been granted to an executor.

11 Cesser of right of executor to prove

(1) Where a person appointed executor by a will –
(a) Survives the testator but dies without having been granted probate
of the will; or
(b) Is cited to take out probate of the will and does not appear to the
citation; or
(c) Renounces probate of the will, his rights in respect of the
executorship shall wholly cease, and the representation to the
testator and the administration of the testator ’s estate shall devolve
and be committed as if that person had not been appointed executor.
(2) (a) Where a person is appointed by a will to be both executor and trustee
and his rights in respect of the executorship wholly cease under
subsection (1), his rights in respect of the trusteeship shall also
wholly cease and the trusteeship shall devolve or be determined as
if he had not been appointed as trustee.
78 Niue Laws 2006 Vol 1
(b) Nothing in paragraph (a) shall prevent his subsequent appointment as trustee.

12 Withdrawal of renunciation

(1) Notwithstanding section 11, an executor who has renounced probate
may be permitted by the Court to withdraw the renunciation and prove the will.
(2) Where an executor who has renounced probate has been permitted to
withdraw the renunciation and prove the will –
(a) The probate shall take effect and be deemed always to have taken
effect without prejudice to the previous acts and dealings of and
notices to any other person to whom administration has been
granted, and a memorandum of the subsequent probate shall be
endorsed on the original grant of administration;
(b) His rights (if any) in respect of the trusteeship shall revive except
so far as the Court otherwise orders.

13 Executor of executor represents original testator

(1) (a) An executor of a sole or last surviving executor of a testator shall
be the executor of that testator.
(b) A person who does not prove the will of his testator shall be deemed
not to be an executor notwithstanding his appointment as such by
the will, and in the case of an executor who on his death leaves
surviving him some other executor of his testator who at the time
of the testator ’s death has not proved but who afterwards proves
the will of that testator, paragraph (a) shall cease to apply when
probate to the surviving executor is granted.
(2) So long as the chain of representation is unbroken, the last executor in
the chain is the executor of every preceding testator.
(3) The chain of representation is broken by –
(a) The failure to leave a will; or
(b) The failure of a testator to appoint an executor; or
(c) The failure to obtain probate of a will,
but is not broken by a temporary grant of administration if probate is subsequently
granted.
(4) Every person in the chain of representation to a testator –
(a) Has the same rights in respect of the estate of that testator as the
original executor would have had if living; and
(b) Is, to the extent to which the estate of that testator has come to his
hands, answerable as if he were an original executor.

14 [Repealed]

15 Administration bond

(1) (a) Every person to whom a grant of administration (other than the
probate of a will) is made shall, previously to the issue of it, execute
a bond to the Registrar to enure for the benefit of the Registrar for
the time being, with 2 sureties approved by the Court, conditioned
for duly collecting, getting in, and administering the estate of the
deceased, which bond shall be in such form as may be prescribed
by rules.

Administration Act 1969 79

(b) It shall not be necessary for any trustee, corporation or any person obtaining administration to the use or for the benefit of Her Majesty, to execute any such bond, and in any case in which the Court is willing to dispense with sureties under subsection (2) it may dispense with the bond.
(2) In every case in which a bond is required under subsection (1), the
bond shall be in a penalty equal to the amount under which the estate of the
deceased is sworn, if that amount does not exceed 20,000 dollars, and shall be in a
penalty of 20,000 dollars where the amount exceeds that sum; but the Court may
dispense with one or both of the sureties, or direct that the penalty be reduced in
amount, and may also if it thinks fit direct that more bonds than one be given, so
as to limit the liability of any surety to such amount as the Court thinks reasonable.
(3) The bond required under subsection (2) shall relate to both real and
personal estate.
(4) The Court may in place of a bond, accept a security in favour of the
Registrar of any corporation or guarantee society approved by Cabinet.
(5) Every such security shall be in such form and under such regulations
as the rules direct.

16 Proceedings if condition of bond broken

The Court may, on being satisfied that the condition of any such bond or
security has been broken, order the Registrar to assign the bond or security to
some person to be named in the order and that person or his administrator may
thereupon sue upon the bond or security in his own name as if the bond or security
had been originally given to him, and shall be entitled to recover thereon as trustee
for all persons interested the full amount recoverable in respect of any breach of
the condition of the bond or security.

17 Administration as evidence

Every administration of a will or with a will annexed shall be evidence of
that will upon all questions concerning real estate in the same manner and to the
same extent as in questions concerning personal estate, and every administration
shall, in the absence of proof to the contrary, be sufficient evidence of the death
and the date of the death of the testator or intestate.

18 Certificates of administration

(1) Subject to subsection (2) at any time after the grant of the relevant
administration the Registrar may, on the request of the administrator, issue under
his hand and seal such number of certificates of administration, in the form set
out in the Schedule, as may be required.
(2) [Repealed by 2004/270]
(3) (a) Every such certificate shall, in the absence of proof to the contrary,
be sufficient evidence of the death and the date of death of the
testator or intestate and of the grant of administration to the
administrator for all purposes including registering the
administrator as proprietor of any estate or interest in any land or
of any securities issued by or property in any bank or company or
body or association.
(b) No bank or company or body or association to which any such
certificate is produced shall be concerned to inquire concerning the
trusts on which the administrator holds any such land or securities
or property, or as to the authority to transfer or deal with the same.
80 Niue Laws 2006 Vol 1
(4) The fee payable to the Registrar in respect of each such certificate shall be $1 or such other amount as may be prescribed by the Cabinet.

19 Proceedings where executor neglects to prove will

(1) In any case where any executor named in a will neglects or refuses to
prove the will, or to renounce probate of it, within 3 months from the death of the
testator, the Court may, upon the application of any other executor or executors or
of any person interested in the estate or of any creditor of the testator, grant an
order nisi calling upon the executor who so neglects or refuses to show cause why
probate of the will should not be granted to that executor alone or with any other
executor or executors or, in the alternative, why administration should not be
granted to the applicant or some other person.
(2) Upon proof (whether by affidavit or otherwise) of service of the order,
or upon the Court dispensing with service of the order, if the executor who is so
called upon does not appear or upon cause being shown, the Court may make
such order for the administration of the estate, and as to costs, as appears just.

20 [Repealed by 2004/170]

21 Discharge or removal of administrator

(1) Where an administrator is absent from Niue for 12 months without
leaving a lawful attorney, or desires to be discharged from the office of
administrator, or becomes incapable of acting as administrator or unfit to so act,
or where it becomes expedient to discharge or remove an administrator, the Court
may discharge or remove that administrator, and may appoint any person to be
administrator in his place, on such terms and conditions in all respects as the
Court thinks fit.
(2) The administrator so removed or discharged shall, from the date of
that order, cease to be liable for acts and things done after that date.
(3) Upon any administrator being discharged or removed as aforesaid
(whether or not any such administrator is appointed) all the estate and rights of
the previous administrator or administrators which were vested in him or them
as such shall become and be vested in the continuing administrator or
administrators (including any administrator appointed under subsection (1) who
shall have the same powers, authorities, discretions, and duties, and may in all
respects act, as if he or they had been originally appointed as the administrator or
administrators.
(4) This section shall, with all necessary modifications, extend to the case
where an administrator dies, and the powers and authorities hereby conferred
may be exercised and shall take effect accordingly.
(5) Nothing in this section shall restrict section 8.

Administering of Estates

22 Interim vesting of estate where no executor appointed

(1) Subject to this Act and any other Act, where a person dies without
leaving a will that effectively appoints an executor, his estate shall, until
administration is granted in respect of it, vest in the Crown in the same manner
and to the same extent as formerly in England in the case of personal property it
vested in the ordinary.
(2) While any estate remains vested in the Crown under this section, the
Crown Proceedings Act 1950 shall apply to the service on the Crown of notices
and documents relating to the estate as if they related to civil proceedings instituted
against the Crown.

Administration Act 1969 81

23 Executor not to act while another administrator is in office

Subject to this Act and any other Act, where administration has been granted
in respect of any part of the estate of a deceased person, and is not for the time
being suspended, no person other than the administrator of that part of the estate
shall have power to bring an action or otherwise act as administrator of the
deceased person in respect of the estate comprised in or affected by the grant until
the grant has been recalled or revoked.

24 Estate to vest in administrator

(1) (a) Immediately upon the grant of administration of the estate of any
deceased person, all the estate then unadministered of that person,
whether held by him beneficially or held by him in trust, shall vest
in the administrator to whom the administration is granted for all
the estate therein of that person.
(b) Nothing in paragraph (a) shall affect the earlier vesting in an
executor by operation of law.
(2) The title of every administrator to any part of the estate of a deceased
person shall relate back to and be deemed to have arisen immediately upon the
death of the deceased person, as if there had been no interval of time between the
death and the grant of administration.
(3) If there are concurrently more administrators than one of any part of
the estate that part shall vest in them as joint tenants.

25 How estate to be held by administrator

Subject to this Act, the administrator shall hold –
(a) The estate of any person who dies or who has died leaving a will
according to the trusts and dispositions of the will, so far as the will
affects that estate;
(b) The estate of any person who dies intestate as to that estate under
Part 3.

26 Estate to be assets for payment of debts

The whole of the estate of every deceased person shall be assets in the
hands of his administrator for the payment of all duties and fees payable under
any Act imposing or charging duties or fees on the estates of deceased persons,
and for the payment in the ordinary course of administration of his debts and of
debts properly incurred by his administrator; and for those purposes the
administrator may, in as full and effectual a manner in law as the testator or intestate
could have done in his lifetime, sell, lease (with or without an optional or
compulsory purchasing clause), or mortgage (with or without a power of sale),
the estate, or any part of it.

27 Power of sale on intestacy

(1) On the death of a person intestate as to any real or personal estate, his
administrator shall have power to sell that real estate and to call in, sell, and convert
into money such part of that personal estate as may not consist of money, with
power to postpone the sale, calling in, and conversion for such a period as the
administrator, without being liable to account, may think proper, and so that, unless
required for purposes of administration owing to want of other assets, personal
chattels be not sold under this section except for special reason.
(2) This section shall have effect notwithstanding that the administrator
has ceased to hold the real or personal estate as administrator and holds it as
trustee.
82 Niue Laws 2006 Vol 1
(3) Where the deceased leaves a will this section shall have effect subject to the will.

28 Method of sale or lease

(1) Sections 14 to 18 of the Trustee Act 1956 shall, so far as they are applicable
and with any necessary modifications, apply to any sale or lease under sections
26 and 27 of this Act as if the sale or lease were under sections 14 to 18 of the
Trustee Act 1956.
(2) Nothing in this section shall restrict the term of any lease which may
be granted under section 26.
(3) Land of any value may be sold or leased under section 26, or may be
sold under section 27 without the consent of the Court.

29 Administrator to represent real estate

In all actions concerning the real estate of a deceased person, his
administrator shall represent his real estate and the persons interested in it in the
same manner and to the same extent as, in actions concerning personal estate, the
administrator represents that estate and the persons interested in it.

30 Rights and duties of administrator as to real estate

The administrator of any deceased person shall have the same rights and
be subject to the same duties and liabilities with respect to the real estate of that
person as he has and is subject to with respect to the personal estate of that person,
and shall perform the duties imposed on the administrator by any Act imposing
or charging duties or fees or liabilities on the estates of deceased persons.

31 Payment of claims where estate insufficient

Where the estate of any deceased person is insufficient to pay his debts,
funeral, and testamentary expenses in full, it shall be lawful for the administrator
to apply that estate under the priorities that would be applicable if it were being
administered under Part 17 of the Insolvency Act 1967 (NZ), without the
administrator being under any obligation to have recourse to that Part or to
administer that estate under it and any surplus shall be held for the person or
persons lawfully entitled.

32 Administration suits

(1) [Repealed by 2004/270]
(2) In any action or other proceeding for the administration by the Court
of the estate of any deceased person, no court shall have jurisdiction to order or
allow payment of costs out of the estate to the party responsible for the
commencement or continuance of the action or proceeding, unless the Court first
certifies that there were reasonable grounds for the action being commenced or
continued, and then only to the extent to which the continuance was necessary.

33 Debts under deeds and simple contracts to stand in equal degree

(1) Subject to this Act and any other Act, in the administration of the estate
of every person who has died no debt or liability of the person shall be entitled to
any priority or preference by reason merely that it arises under a bond, deed, or
instrument under seal; but all the creditors of that person shall be treated as
standing in equal degree and be paid accordingly out of the assets of the deceased
person, whether those assets are legal or equitable.

Administration Act 1969 83

(2) Nothing in subsection (1) shall prejudice or affect any lien, charge, mortgage, or other security which any creditor may hold or be entitled to for payment of his debt or liability.

34 Charges on property

(1) (a) Where a person dies possessed of, or entitled to, or under a general
power of appointment by his will disposes of, an interest in property,
or where an interest in property passes by survivorship on the death
of a person, and at the time of his death the interest is charged with
the payment of money, whether by way of mortgage, charge, or
otherwise, and the deceased has not by will, deed, or other
document signified a contrary or other intention, the interest so
charged shall, as between the different persons claiming through
the deceased, be primarily liable for payment of all amounts charged
thereon; and every part of the said interest, according to its value,
shall bear a proportionate part of the amounts charged on the whole.
(b) Where a person dies possessed of or entitled to an interest in any
personal chattels that passes under the will or on the intestacy of
the person to the person’s husband or wife, nothing in this
subsection shall apply to that interest in those personal chattels.
(2) Such a contrary or other intention shall not be deemed to be signified –
(a) By a general direction for payment of debts or of all the debts of the
testator out of his personal estate, or his residuary real and personal
estate, or his residuary real estate, or his residuary personal estate;
or
(b) By a charge of debts upon any such estate –
unless that intention is further signified by words expressly or by necessary
implication referring to all or some part of the charge on the interest in property.
(3) Nothing in this section shall affect the right of a person entitled to the
payment with which the interest in property is charged to obtain payment or
satisfaction out of the other assets of the estate or otherwise.

35-36 [Repealed by 2004/270]

37 Liability of specific devise or bequest where estate is insufficient

If any testator ’s estate primarily liable for the payment of his debts is
insufficient for that purpose, each of his specifically devised or bequeathed estates
(if more than one) shall be liable to make good the deficiency, in the proportion
that the value of each of those estates bears to the aggregate value of the specifically
devised or bequeathed estates of the testator.

38 Proving executors may exercise powers

Where probate is granted to one or some of 2 or more persons named as
executors, whether or not power is reserved to the others or other to prove, all the
powers which are conferred by law or by the will on the administrator may be
exercised by the proving executor or executors for the time being, and shall be as
effectual as if all the persons named as executors had concurred in it.

39 Interest on legacies and annuities

(1) In any case where a legacy is charged upon both land and chattels,
unless the will otherwise provides, interest shall be payable on the legacy and be
a charge on the land and chattels under the rules of law that would apply if the
legacy were charged upon the land only.
84 Niue Laws 2006 Vol 1
(2) While interest is payable on any legacy or on any arrears of an annuity, under the will or instrument under which the legacy or annuity is payable or any enactment or rule of law, unless the will or instrument otherwise provides or the Court otherwise orders, the interest on the legacy or arrears of the annuity shall be payable at the rate for the time being prescribed by Cabinet, and while no such regulation is in force at the rate of 5 percent per annum.
(3) Where an administrator (under any power conferred on him in that behalf) appropriates any property in or towards satisfaction of any legacy (other than an annuity), the legatee shall be entitled to the income from the property so appropriated, and interest shall not be payable out of any other part of the estate on so much of the legacy as has been satisfied by the appropriation.

40 No right of retainer by administrator

No person, being a creditor in his own right or as a trustee of any estate of
which he is administrator, shall, by virtue of his office as administrator, have any
right of retainer in priority to the other creditors of the estate in respect of any
debt due to him; but every such creditor or administrator shall rank with other
creditors, but without prejudice to any preferential claim or security which as a
creditor he might have been able to enforce if he had not been the administrator.

41 Rights and liabilities of administrator

Every person to whom administration of the estate of a deceased person is
granted, other than an executor, shall, subject to the limitations contained in the
grant, have the same rights and liabilities and be accountable in like manner as if
he were the executor of the deceased.

42 Liability of agent of administrator

No person appointed an administrator upon an application made by him
as the attorney or agent for an administrator absent from Niue, shall be liable to
account or pay money, or transfer property, to any one in respect of his
administratorship excepting only to the administrator whose attorney or agent
he was, or to any person who, after his appointment as administrator upon an
application so made, is appointed administrator of the same estate.

43 Administrator’s right to distrain

(1) An administrator may distrain for arrears of a rentcharge due or
accruing to the deceased in his lifetime on the land affected or charged with it, so
long as the land remains in the possession of the person liable to pay the rentcharge
or of the persons deriving title under him, and in like manner as the deceased
might have done had he been living.
(2) An administrator may distrain upon land for arrears of rent due or
accruing to the deceased in like manner as the deceased might have done had he
been living. Any such arrears may be distrained for after the termination of the
lease or tenancy as if the term or interest had not determined, if the distress is
made –
(a) Within 6 months after the termination of the lease or tenancy; and
(b) During the continuance of the possession of the lessee or tenant
from whom the arrears were due.
(3) The enactments relating to distress for rent shall apply to any distress
made under subsection (2).

Administration Act 1969 85

44 Administrator may be required to exhibit inventory

Every administrator shall, when required by the Court so to do, exhibit on
oath in the Court a true and perfect inventory and account of the estate of the
deceased, and the Court shall have power to require administrators to bring in
inventories.

45 Protection of persons acting on administration

(1) Every administrator or person who makes any payment or disposition
or assumes any liability, or who permits any payment or disposition to be made,
or who does any act, or who permits any act to be done, in good faith under an
administration shall, notwithstanding any defect or circumstances whatsoever
affecting the validity of the administration or its subsequent revocation, have the
same indemnity and protection in so doing and in respect of all commission and
remuneration earned by him in so doing, as he would if the administration were
valid and not revoked.
(2) Where an administration is revoked, all payments and dispositions
made in good faith to an administrator before the revocation shall be valid
discharges to the person making the same; and the administrator who acted under
the revoked administration may retain and reimburse himself out of the estate
that comes into his hands in respect of any acts, payments, dispositions, liabilities,
commission, and remuneration in respect of which he is indemnified as aforesaid
or which the person to whom administration is afterwards granted might have
properly made.
(3) Nothing in subsection (1) shall affect or prejudice the rights of any
person entitled to any money or property that has been the subject of a payment
or disposition to which that subsection relates against any person (other than the
administrator in that capacity) to whom the payment or disposition has been made,
but the person so entitled shall have the same remedy against the person (other
than the administrator in that capacity) to whom the payment or disposition was
made as he would have had against the administrator if the payment or disposition
had not been made.
(4) Nothing in this section shall restrict section 51.

46-48 [Repealed by 2004/270]

49 Following of assets

(1) In any case where an administrator or trustee has made a distribution
of any assets forming part of the estate of any deceased person or subject to any
trust and there is nothing in any Act to prevent the distribution from being
disturbed, the Court may –
(a) Make, subject to such terms and conditions as it thinks fit, in respect
of any interest in any such assets that is for the time being retained
by the person to whom those assets were distributed or his
administrator or any person who has received any interest in those
assets from either of them otherwise than in good faith and for full
valuable consideration an order on any claim to which section 35
of the Trustee Act 1956 applies, or an order requiring the transfer of
payment of any such interest in any such assets to the administrator
of the deceased or the trustee or to any person who under any
enactment or rule of law has a right to follow the assets;
(b) Order that any person to whom any assets were so distributed or
his administrator shall pay to any applicant for an order on any
86 Niue Laws 2006 Vol 1
claim to which section 35 of the Trustee Act 1956 applies, or to the administrator of the deceased or the trustee or to any person who under any enactment or rule of law has a right to follow the assets a sum not exceeding the net value of the assets at the date of the distribution, or in a case where full valuable consideration has not been given a sum not exceeding the amount by which that net value exceeds the value of the consideration at that date, together (if the Court thinks equitable) with interest on it from that date until the date of the order at such rate as the Court may specify;
(c) Order that any person who has received any interest in any such assets from the person to whom they were distributed or his administrator, otherwise than in good faith and for full valuable consideration, shall pay to any applicant for an order on any claim to which section 35 of the Trustee Act 1956 applies, or to the administrator of the deceased or the trustee, or to any person who under any enactment or rule of law has a right to follow the assets, a sum not exceeding the net value of that interest at the date of the distribution, or in a case where full valuable consideration has not been given a sum not exceeding the amount by which that net value exceeds the value of the consideration at that date, together (if the Court thinks equitable) with interest on it from that date until the date of the order at such rate as the Court may specify;
(d) In making any such order fix such terms and conditions as the Court thinks fit and for the purpose of giving effect to any such order, make such further order as it thinks fit.
(2) The remedies given to any person by subsection (1) are in addition to all other rights and remedies (if any) available to that person, and nothing in that subsection shall restrict any such other rights and remedies.
(3) Subject to subsection (4), no application for an order under subsection
(1) shall be heard by the Court –
(a) [Repealed by 2004/270]
(b) In the case of an application to which section 50 (b) (i) applies, unless
that application is made within 1 year after the satisfaction by the
administrator or trustee of any claim in respect of any right or
remedy against him;
(c) In any other case, unless the application for an order under
subsection (1) is made within the time within which the applicant
could have enforced his claim in respect of the estate without special
leave of the Court if the assets had not been distributed:
Provided that, with the special leave of the Court, the application may be
heard by the Court on an application made within the time within which the
applicant could have enforced his claim in respect of the estate with special leave
of the Court if the assets had not been distributed.
(4) Notwithstanding subsection (3), in any case where an administrator or
trustee has made a distribution of any assets forming part of the estate of any
deceased person or subject to any trust, and any person who is entitled to apply
for an order under subsection (1) has, within the time specified in subsection (3),
made an application to the Court for an order on any claim to which section 35 of
the Trustee Act 1956 applies, and that person was not aware of the distribution at
the time when he made that application, that person or any other person on whose
behalf that application is deemed to be made, may apply to the Court under
subsection (1), and the application may be heard by the Court after the expiration

Administration Act 1969 87

of the period prescribed by subsection (3) if it is made within 6 months after the date on which that person first became aware of the distribution.

50 Freedom to exercise remedies

Notwithstanding any rule of law to the contrary, in any case where an
administrator or trustee has made a distribution of any assets forming part of the
estate of any deceased person or subject to any trust –
(a) Any person may exercise the remedies (if any) given to him by
section 49 (1) and all other rights and remedies available to him
(including all rights which he may have to follow assets and any
money or property into which they have been converted) without
first exercising the rights and remedies (if any) available to him
against the administrator or the trustee in consequence of the
making of the distribution;
(b) If any person exercises any right or remedy available against the
administrator or the trustee in consequence of the distribution of
any such assets, the administrator or trustee may –
(i) apply to the Court for any order which may be made under
section 49 (1);
(ii) in any proceedings against him in respect of the exercise of
any such right or remedy, by leave of the Court and in
accordance with the rules of court relating to such notices, issue
a third party notice against any person against whom he may
apply for an order under subparagraph (i).

51 Restriction on following assets

In any case where an administrator or trustee has made a distribution of
any assets forming part of the estate of any deceased person or subject to any
trust, relief (whether under section 49 (1) or in equity or otherwise) against any
person other than the administrator or trustee or in respect of any interest of any
such person in any assets so distributed and in any money or property into which
they have been converted, may be denied wholly or in part, if –
(a) The person from whom relief is sought received the assets or interest
in good faith and has altered his position in the reasonably held
belief that the distribution was properly made and would not be
set aside; and
(b) In the opinion of the Court it is inequitable to grant relief or to grant
relief in full, as the case may be.

52 Liability of person fraudulently obtaining or retaining estate of deceased

If any person other than the administrator, to the defrauding of creditors
or without full valuable consideration, obtains or receives or holds any part of the
estate of a deceased person or effects the release of any debt or liability due to the
estate of the deceased, he shall be charged as executor in his own wrong to the
extent of the estate received or coming into his hands, or the debt or liability
released, after deducting –
(a) Any debt for valuable consideration and without fraud due to him
from the deceased person at the time of his death which might
properly be retained by an administrator; and
(b) Any payment made by him which might properly be made by an
administrator.
88 Niue Laws 2006 Vol 1

Powers and Procedure of Court

53 Direction to executor to prove or renounce

The Court shall have power to direct any person named as executor in a
will to prove or renounce probate of the will, and (subject to this Act and any
other enactment and the Rules) to do such other things as it thinks fit concerning
the granting and revocation of administration, and the hearing and determination
of proceedings relating to testamentary matters and matters relating to the estates
of deceased persons.

54 Production of instruments purporting to be testamentary

The Court may, whether any suit or other proceeding is or is not pending
with respect to any administration, order any person to produce any paper or
writing, being or purporting to be testamentary, which may be shown to be in the
possession or under the control of that person; and if it is not shown that any such
paper or writing is in the possession or under the control of any person, but it
appears that there are reasonable grounds for believing that he has knowledge of
any such paper or writing, the Court may direct that person to attend for the
purpose of being examined in open court, or upon interrogatories, respecting the
same; and that person shall be bound to answer any such questions or
interrogatories, and, if so ordered, to produce and bring in any such paper or
writing, and shall be subject to the like process of contempt in case of default in
not attending or in not answering any such questions or interrogatories, or not
bringing in any such paper or writing, as he would have been subject to in case he
had been a party to a suit in the Court and had made any such default; and the
costs of any such suit or proceeding shall be in the discretion of the Court.

55 Continuance of legal proceedings

If, while any legal proceeding is pending in any court by or against an
administrator to whom a temporary administration has been granted, that
administration is revoked, the Court may order that the proceeding be continued
by or against the new administrator in like manner as if the same had been
originally commenced by or against him, but subject to such conditions and
variations, if any, as that court directs.

56 Question of fact may be tried by a jury

(1) If any question of fact arises in any proceeding under this Act, the Court
may cause the same to be tried by a jury before the Court itself, or before any
Judge of the Court, and may settle an issue for that purpose.
(2) In every such case the subsequent proceedings in respect of that issue
shall be the same as if it had been settled in an ordinary action.

57 Practice of Court in its administration jurisdiction

The practice of the Court in regard to administration shall, except where
otherwise provided, be regulated, so far as the circumstances of the case will admit,
by the practice of the Court.

58 [Repealed by 2004/270]

Administration Act 1969 89

59 Power to make rules

Cabinet may make rules of Court, including rules –
(a) Prescribing the forms of administration;
(b) Prescribing the practice in obtaining a grant of administration, and
the procedure and practice of the Court and the duties of the
Registrar;
(c) Regulating the procedure and practice of the Court with respect to
non-contentious or common form probate business;
(d) Regulating the procedure and practice of the Court with respect to
contentious probate business;
(e) Regulating the practice and procedure of the Court in relation to
the resealing of probates or letters of administration under Part 2,
and in particular for the purpose of imposing upon persons
applying under it for the resealing of probates or letters of
administration, or relieving any such persons from, any
requirements that may be imposed upon persons applying to the
Court for original grants of probate or letters of administration;
(f) Prescribing orders of priority among applicants for administration
which shall apply unless the Court in special circumstances
otherwise directs;
(g) Generally for carrying the provisions of this Act into effect.

60 Caveat may be lodged

Caveats

(1) Any person may lodge with the Registrar a caveat against any application for administration at any time previous to the granting of administration, and every such caveat shall set forth the name of the person lodging it, and an address within Niue at which notices may be served on him.
(2) Every such caveat shall, unless application for administration is sooner
made, lapse upon the expiration of one year from the date of the lodging of the
caveat.
(3) (a) Any such caveat may be withdrawn by the caveator at any time by
notice in writing lodged with the Registrar.
(b) A copy of every such notice shall be served on any person who has
applied for administration or to whom an order nisi, under section
61 has been granted.
(4) Nothing in this section shall prevent any person who has lodged a caveat
from lodging a subsequent caveat, whether or not any caveat previously lodged
has lapsed or been withdrawn.

61 Where a caveat lodged, Court may grant order nisi

In every case where a caveat has been lodged and has neither lapsed nor
been withdrawn, the following provisions shall apply –
(a) The Court may, upon application on behalf of the person applying
for administration, supported by affidavits upon which, if there
had been no caveat, administration would have been granted, make
an order nisi for the grant of administration to the person applying,
and every such order shall name a time and place for showing cause
against the same, and the Court may enlarge any such order;
(b) Every such order nisi, and every order enlarging the same, shall be
served on the caveator by delivering a copy of the same at the
address mentioned in his caveat;
90 Niue Laws 2006 Vol 1
(c) If before the day named in the order nisi or the day to which the order is enlarged the caveat is withdrawn, the order nisi may be made absolute at any time thereafter;
(d) In any case to which paragraph (c) does not apply, if on the day named in the order nisi, or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the Court may order –
(i) that the order nisi be made absolute or discharged; or
(ii) that the application for administration be made in solemn form,
and any order made under subparagraph (i) or (ii) may be with or
without costs as may be just, and, if the Court so directs, those costs
may be paid out of the estate;
(e) Upon the hearing of the order nisi the parties may, subject to the
Rules, verify their cases in whole or in part by affidavit, but so that
the deponent in every such affidavit shall, on the application of the
opposite party, be subject to be cross-examined by or on behalf of
the opposite party orally in open court, and after cross-examination
may be re-examined orally in open court by or on behalf of the
party by whom the affidavit was filed.

Miscellaneous Provisions

62 [Repealed by 2004/270]

63 Administration granted to trustee companies

(1) No grant of probate of the will of any deceased person or letters of
administration of the estate of a deceased person, either with or without a will
annexed, shall be made to any company unless the company is expressly authorised
by an Act to apply for and obtain the grant.
(2) A grant of probate or letters of administration to a syndic of a company
shall be deemed to be a grant to that company; and where a power is granted to a
company or to the directors of a company by will to nominate any person as
executor of the will, a grant to a person so nominated shall be deemed to be a
grant to the company.
(3) Nothing in this section shall –
(a) Prevent the grant of probate of the will of any deceased person to
any company or to a syndic of the company in any case where the
company is appointed as executor of the will and the actual
document providing for the appointment was made before 1
January 1963;
(b) Prevent the grant of probate of the will of any deceased person to
any person nominated as executor of the will by a company or the
directors of a company pursuant to a power granted by any
testamentary instrument, if the actual document granting the power
was made before 1 January 1963;
(c) Prevent the resealing in Niue of probate or letters of administration
granted to a company in any other country;
(d) Affect any grant of probate or letters of administration subsisting
at 1 January 1971.

64-66 [Repealed by 2004/270]

Administration Act 1969 91

67 Other Acts providing for payment without administration

Nothing in this Act shall affect the powers of any person or body to make
any payment to, or register any person to be, the owner of any property under
any enactment authorising the payment of money belonging to the estate of a
deceased person without requiring administration of the estate to be obtained.

68 Bondsmen and sureties deemed to be trustees

Every person who, in the capacity of bondsman or surety for another,
receives money or other property belonging to the estate of any deceased person
shall be deemed to be a trustee within the meaning of the Trustee Act 1956 in
respect of that money or property, and may under that Act apply for relief and to
be discharged from the custody of the money or property.

69 Interpretation

PART 2
ADMINISTRATION GRANTED OUT OF NIUE
(1) For the purposes of this Part “probate or letters of administration” includes an exemplification of any probate or letters of administration, or a duplicate of it sealed with the seal of the court granting the same, or a copy certified as correct by or under the authority of the court granting the same, and also includes an exemplification or a copy certified by or under the authority of any court, or a duplicate sealed under the seal of any court, of any instrument which is filed in or issued out of that court and which within the jurisdiction of that court operates to make any person the administrator of any property of a deceased person as if probate or letters of administration had been granted to him by that court.
(2) The filing in or the issuing out of any court of any instrument which operates to make any person an administrator in the manner described in subsection (1) shall be deemed to be equivalent to the granting of probate or letters of administration by that court to that person.

70 Estate of person dying abroad not to vest without administration

(1) Estate in Niue belonging to any person who dies abroad shall not vest
in any person under any bequest or devise, or under an intestacy, or by inheritance,
until administration of that estate is obtained in Niue; or, if probate or letters of
administration of the estate have been granted in any place out of Niue, unless
the probate or letters of administration are resealed in Niue as provided in this
Part.
(2) Upon the estate in Niue becoming legally vested under this section, the legal estate shall vest as from the time of the death of the person from whom it is obtained.

71 Resealing of probate

(1) Where any probate or letters of administration granted in a competent
court in any country are produced to and a copy deposited with the Registrar of
the Court the probate or letters of administration may be sealed with the seal of
the Court, and shall have the like force and effect and have the same operation in
Niue, and every executor and administrator thereunder shall perform the same
duties and be subject to the same liabilities, as if the probate or letters of
administration had been originally granted by the Court.
(2) Nothing in this section shall prevent the Court from making an
independent grant of administration in Niue.
92 Niue Laws 2006 Vol 1

72 Seal not to be affixed till fees are paid and administration bond effected (1) The seal of the Court shall not be affixed to any probate or letters of administration granted in any Commonwealth country (other than Niue) or in the Republic of Ireland, or by a competent court in any other country, so as to give operation as if the grant had been made by the Court, until all such fees have been paid as would have been payable if the probate or letters of administration had been originally granted by the Court ; and, further, no such letters of administration shall be so sealed until such bond is entered into as would have been required if

the letters had been originally granted by the Court:
(2) The Court may if it thinks fit dispense with the bond or reduce the
amount of the penalty thereunder.
(3) Where letters of administration are at any time granted to any Public
Trustee or other like public official of any Commonwealth country (other than
Niue) or of the Republic of Ireland or of any other country to which section 71 is
declared to apply, it shall not be necessary, upon the resealing in Niue of the letters
of administration, for the Public Trustee or other official, as the case may be, to
execute any such bond.

73 No probate granted out of Niue to be evidence unless resealed

Probate or letters of administration granted in any place out of Niue shall
not be received in evidence of the title of any person to any estate in Niue until the
probate or letters of administration are resealed in Niue as provided in this Part.

74 Effect of sections 70 and 73

Nothing in sections 70 and 73 shall restrict any other enactment relating to
the payment or devolution of any estate without administration.
PART 3
DISTRIBUTION OF INTESTATE ESTATES

75-76 [Repealed by 2004/270]

77 Succession on intestacy

Where any person dies intestate as to any real or personal estate, that estate
shall be distributed in the manner or be held on the trusts mentioned in this section,
namely –
(a) If the intestate leaves a husband or wife, the surviving husband or wife shall take the personal chattels absolutely and, in addition, the residue of the estate shall stand charged with the payment of a sum of $12,000 to the surviving husband or wife with interest on it from the date of the death until paid or appropriated, at the rate from time to time prescribed by or under section 39, and, subject to providing for that sum and the interest on it, the residue of the estate shall be held –
(i) if the intestate leaves issue, in trust as to one-third for the
surviving husband or wife absolutely, and as to the other two-
thirds on the statutory trusts for the issue of the intestate;
(ii) if the intestate leaves no issue, in trust as to two-thirds for the
surviving husband or wife absolutely, and as to the other one-
third if the intestate leaves both parents, in trust for the father
and mother in equal shares absolutely or, if the intestate leaves
only one parent, in trust for the surviving father or mother
absolutely;

Administration Act 1969 93

(iii) if the intestate leaves no issue or parent, in trust for the surviving husband or wife absolutely;
(b) If the intestate leaves issue but no husband or wife, the estate shall be held on the statutory trusts for the issue of the intestate;
(c) If the intestate leaves no husband or wife or issue but a parent or parents, the estate shall be held in trust for the parents in equal shares if they both survive the intestate but if only one of them survives the intestate for that one;
(d) If the intestate leaves no husband or wife or issue or parent, the
estate shall be held in trust for the following persons living at the
death of the intestate, and in the following order and manner,
namely:
Firstly, on the statutory trusts for the brothers and sisters (whether
of full or of half blood) of the intestate; but if no person takes an
absolutely vested interest under such trusts; then
Secondly, in trust for the grandparents of the intestate and, if more
than one survive the intestate, in equal shares; but if there is no
member of this class; then
Thirdly, on the statutory trusts for the uncles and aunts of the
intestate, being brothers and sisters (whether of full or of half blood)
of a parent of the intestate;
(e) In default of any person taking an absolute interest under the
foregoing provisions, the estate shall belong to the Crown as bona

vacantia, and in place of any right to escheat; and the Crown may

(without prejudice to any other powers), out of the whole or any
part of the property devolving on it, provide for dependants,
whether kindred or not, of the intestate, and other persons for whom
the intestate might reasonably have been expected to make
provision.

78 Statutory trusts in favour of issue and other classes of relatives

(1) Where the estate of any intestate, or any part of it, is directed to be held
on the statutory trusts for the issue of the intestate, the same shall be held upon the following trusts, namely –
(a) In trust, in equal shares if more than one, for all or any the children
or child of the intestate, living at the death of the intestate, who
attain full age or marry under that age, and for all or any of the
issue living at the death of the intestate who attain full age or marry
under that age of any child of the intestate who predeceases the
intestate, the said issue to take through all degrees, according to
their stocks, in equal shares if more than one, the share which their
parent would have taken if living at the death of the intestate, and
so that no issue shall take whose parent takes an absolutely vested
interest:
Provided that if any person capable of taking under this paragraph
(including this proviso) dies before taking an absolutely vested
interest leaving any child or children who shall be living at the
expiration of 21 years from the death of the intestate or who shall
sooner attain full age or marry under that age, that child or those
children shall take, in equal shares if more than one, the share which
his, her, or their parent would have taken if he or she had not so
died;
94 Niue Laws 2006 Vol 1
(b) The statutory power of advancement, and the statutory provisions which relate to maintenance, education, and benefit, and the accumulation of surplus income, shall apply, and when a person becomes entitled to a vested share or interest under the statutory trusts, that person shall be entitled on attaining the age of 18 years or sooner marrying to give a valid receipt for his share or interest;
(c) The administrator may permit any minor who has a vested or contingent interest in any personal chattels to have the use and enjoyment of the chattels in such manner and subject to such conditions (if any) as the administrator may consider reasonable, and without being liable to account for any consequential loss.
(2) If the trusts in favour of the issue of the intestate fail by reason of no
child or other issue attaining an absolutely vested interest –
(a) The estate of the intestate and the income of it and all statutory
accumulations, if any, of the income, or so much of it as may not
have been paid or applied under any power affecting the same,
shall go, devolve, and be held under this Act as if the intestate had
died without leaving issue living at the death of the intestate;
(b) References in this Act to the intestate “leaving no issue” shall, subject
to this section, be construed as “leaving no issue who attain an
absolutely vested interest”;
(c) References in this Act to the intestate “leaving issue” or “leaving a
child or other issue” shall, subject to this section, be construed as
“leaving issue who attain an absolutely vested interest”.
(3) Where under this Act the estate of an intestate or any part of it is directed
to be held on the statutory trusts for any class of the relatives of the intestate,
other than issue of the intestate, the same shall be held on trusts corresponding to
the statutory trusts for the issue of the intestate as if those trusts were repeated
with the substitution of references to the members or member of that class for
references to the children or child of the intestate.

79 Application to cases of partial intestacy

(1) Where any person dies leaving a will effectively disposing of part of
his estate this Part, shall have effect in respect of the part of his estate not so disposed of, subject to the will and subsection (2).
(2) Where the deceased leaves a husband or wife who acquires a beneficial interest under the will of the deceased, the references in section 77 to a sum of
$12,000 payable to a surviving husband or wife, and to interest on that sum, shall
be taken as references to that sum diminished by the value of the beneficial interest
at the date of death, and to interest on that sum as so diminished, and, accordingly,
where the value exceeds that sum, section 77 shall have effect as if references to
that sum and to interest were omitted.
(3) References in subsections (1) or (2) to a beneficial interest acquired under
a will shall be construed –
(a) As including a reference to a beneficial interest acquired by virtue
of the exercise by the will of a general power of appointment, but
not a special power of appointment;
(b) As not including a reference to a beneficial interest in any personal
chattels.
(4) For the purposes of this section the administrator may ascertain and
fix the value of the beneficial interest under section 28 of the Trustee Act 1956, and
no action shall lie against the administrator if he distributes the estate in accordance
with the value that he has honestly and reasonably so fixed.

Administration Act 1969 95

80 [Repealed by 2004/270]

PART 4
MISCELLANEOUS PROVISIONS

81 Right of successor on intestacy to disclaim

(1) Subject to this section, where a successor has become entitled under
this Act to an interest as a beneficiary in the whole or any part of the real and
personal property which passes on the intestacy of any person –
(a) The successor may, by deed delivered to the intestate person’s
administrator, disclaim that interest if at the date of the disclaimer
he has attained full age and is of sound mind;
(b) The Court may, by order, disclaim the interest on behalf of the
successor or authorise the disclaimer of the interest by or on behalf
of the successor if at the date of the disclaimer the successor has not
attained full age or is not of sound mind.
(2) No disclaimer under this section shall be valid unless –
(a) The disclaimer is made by the successor in his lifetime; and
(b) The disclaimer relates to the whole of the successor ’s interest as a
beneficiary in the real and personal property which passes on the
intestacy of the person, including property which any other person
has disclaimed under this section; and
(c) The disclaimer is made within one year after the date of the first
grant in Niue of administration in respect of the estate or will of the
intestate person or within such extended period as may be allowed
by the Court.
(3) No disclaimer under this section shall be valid if –
(a) The successor has entered into enjoyment of the whole or any part
of the interest to which he has become entitled as aforesaid; or
(b) The successor has transferred, assigned, mortgaged, settled, or
otherwise disposed of that interest or of any part of it or of any
property which would include that interest or any part of it if it
were not disclaimed, or has covenanted or agreed to do any such
thing; or
(c) There is any valuable consideration for the disclaimer; or
(d) The disclaimer provides for any assignment of the disclaimed
interest or in any manner provides who is to be entitled to that
interest; or
(e) The successor is bankrupt when the disclaimer is made.
(4) Every disclaimer under this section shall be irrevocable.
(5) Where a disclaimer which complies with all the requirements of this
section has been made by or on behalf of any successor and the disclaimer is not
void and does not become void by reason of its being deemed under section 82 to
be a transfer of the disclaimed interest –
(a) The property which passes on the intestacy of the person shall be
distributed, and estate duty in his estate shall be assessed, as if the
successor had died immediately before the intestate person leaving
only such issue (if any) as the successor would have left if he had
died immediately before the intestate person;
(b) The successor shall be deemed for all purposes neither to have
become entitled to nor to have disposed of the disclaimed interest
or any part of it.
96 Niue Laws 2006 Vol 1
(6) Nothing in this section shall affect any right which any successor may have to disclaim any property apart from this section.
(7) Every disclaimer under this section shall be deemed to be made at the first point of time when everything has been done in respect of the disclaimer which is necessary to comply with the requirements of this section and of any order of the Court which relates to the disclaimer and is made under this section.

82 Effect of bankruptcy on disclaimer

(1) Where a successor disclaims the interest as a beneficiary to which he is
entitled in any real or personal property which passes on the intestacy of any
person, or disclaims any interest as a beneficiary in any real or personal property
to which he is entitled under the will of a deceased person, then, for the purposes
of any rule of law relating to the protection of creditors –
(a) The successor shall be deemed to have accepted the disclaimed
interest; and
(b) The disclaimer shall be deemed to be a transfer of the disclaimed
interest by the successor to the person or persons who become
entitled to it in consequence of the disclaimer.
(2) Where any such successor has disclaimed any such interest in any
property and there is no possibility of the disclaimer being void or voidable
otherwise than by reason of its being deemed to be a transfer of the disclaimed
interest, the deceased person’s administrator may distribute the disclaimed interest
or any part of it as if there were no possibility of the disclaimer being or becoming
void or voidable by reason of its being deemed to be a transfer of the disclaimed
interest if, at the date of the distribution –
(a) The successor is not bankrupt; and
(b) The administrator has no reason to believe that the successor is
about to become bankrupt; and
(c) The administrator has no reason to believe that the disclaimer is
void or voidable or is about to become void or voidable by reason
of its being deemed to be a transfer of the disclaimed interest.
(3) No action shall lie against any such administrator by reason of his
distributing any disclaimed interest as aforesaid or by reason of his having failed
to make any inquiry as to whether the successor was about to become bankrupt
or as to whether the disclaimer was void or voidable or about to become void or
voidable by reason of its being deemed to be a transfer of the disclaimed interest;
but nothing in this subsection or in subsection (2) shall affect any right which any
person may have to follow and recover any property to which the disclaimer relates.

83 [Spent]

84 [Repealed by 2004/270]

Administration Act 1969 97

SCHEDULE Section 18

Certificate of Administration

In the High Court of Niue

In the estate of , of

Under section 18 of the Administration Act 1969, I hereby certify that, on the

day of 20 , probate of the will [or letters of

administration in the estate]* of the above-named deceased who died on or

Registrar.

*In the case of a limited or special grant the exact nature of the grant should be shown.

98 Niue Laws 2006 Vol 1

99

ADOPTION ACT 1955

1955/93 – 27 October 1955

1 This is the Adoption Act 1955.

2-15 –

16 Effect of adoption order

(1) Every adoption order shall confer the surname of the adoptive parent
on the adopted child, with such first or Christian name as the Court, on the
application of the person who is applying for the adoption order, may fix.
(2) Upon an adoption order being made, the following shall have effect for
all purposes, whether civil, criminal, or otherwise, but subject to the provisions of
any enactment which distinguishes in any way between adopted children and
children other than adopted children, namely –
(a) The adopted child shall be deemed to be the child of the adoptive
parent, and the adoptive parent shall be deemed to be the parent of
the child, as if the child had been born to that parent in lawful
wedlock:
Provided that, where the adopted child is adopted by his mother
either alone or jointly with her husband, the making of the adoption
order shall not prevent the making of an affiliation order or
maintenance order, or of an application for an affiliation order or
maintenance order, in respect of the child;
(b) The adopted child shall be deemed to cease to be the child of his
existing parents (whether his natural parents or his adoptive parents
under any previous adoption), and the existing parents of the
adopted child shall be deemed to cease to be his parents, and any
existing adoption order in respect of the child shall be deemed to
be discharged under section 20:
Provided that, where the existing parents are the natural parents, this
paragraph shall not apply for the purposes of any enactment relating to forbidden
marriages or to the crime of incest;
(c) The relationship to one another of all persons (whether the adopted
child, the adoptive parent, the existing parents, or any other persons)
shall be determined under this subsection so far as they are
applicable;
(d) The foregoing provisions shall not apply for the purposes of any
deed, instrument, will, or intestacy, or affect any vested or contingent
right of the adopted child or any other person under any deed,
instrument, will, or intestacy, where the adoption order is made
after the date of the deed or instrument or after the date of the death
of the testator or intestate, as the case may be, unless in the case of
a deed, instrument, or will, express provision is made to that effect;
100 Niue Laws 2006 Vol 1
(e) The adoption order shall not affect the race, nationality, or citizenship of the adopted child;
(f) The adopted child shall acquire the domicile of his adoptive parent or adoptive parents, and the child’s domicile shall thereafter be determined as if the child had been born in lawful wedlock to the said parent or parents:
Provided that nothing in this paragraph shall affect the domicile of origin of the child;
(g) In any case where the adoption order was made before the adopted
child attained the age of 3 years, the child’s domicile of origin shall
be deemed to be the domicile which he first acquired under
paragraph (f) upon the making of the adoption order, but nothing
in this Act shall affect the domicile of origin of an adopted child in
any other case;
(h) Any existing appointment as guardian of the adopted child shall
cease to have effect;
(i) Any affiliation order or maintenance order in respect of the adopted
child and any agreement (not being in the nature of a trust) which
provides for payments for the maintenance of the adopted child
shall cease to have effect:
Provided that, where the adopted child is adopted by his mother either
alone or jointly with her husband, the order or agreement shall not cease to have
effect by reason of the making of the adoption order:
Provided also that nothing shall prevent the recovery of any arrears which
are due under any order or agreement at the date on which it ceases to have
effect.

17-19 –

20 Adoption order discharged

Upon an adoption order being discharged –
(a) The relationship to one another of all persons (whether the adopted
child, the adoptive parents, the natural parents, the guardians of
the child at the date of the adoption order or adoption, or any other
persons) shall be determined as if the adoption order or adoption
had not been made; and any appointment as guardian of the
adopted child which was made while the adoption order or
adoption was in force shall cease to have effect:
Provided that the discharge of the order or adoption shall not affect
anything lawfully done or the consequences of anything unlawfully
done while the order or adoption was in force;
(b) No change in the child’s domicile shall occur by reason only of the
discharge; but, where during the infancy of the child any natural
parent resumes custody of the child to whom the discharged order
or adoption related, the domicile of the child shall be determined
as if neither the discharged order or adoption nor any prior adoption
order or adoption in respect of the child had been made;
(c) Any affiliation order, maintenance order, or agreement for payment
of maintenance which ceased to have effect under section 16 (2) (i)
have effect under its terms:
Provided that nothing in this paragraph shall cause the order or
agreement to have any effect in respect of the period while the
adoption order or adoption remained in force:

Adoption Act 1955

101
Provided also that notice of the discharge of the adoption order or adoption shall be served on every person who is bound by the affiliation order, maintenance order, or agreement, but nothing in this proviso shall restrict the effect of the affiliation order, maintenance order, or agreement between the date of the discharge of the adoption order or adoption and the service of notice of the discharge;
(d) For the purposes of any other deed or instrument (except a will) made while the order or adoption was in force, or of the will or intestacy of any testator or intestate who died while the order or adoption was in force, or of any vested or contingent right of the adopted child or any other person under any such deed, instrument, will or intestacy, the order or adoption shall be deemed to continue in force.

102 Niue wws 2006 Vol 1

103

AGRICULTURE QUARANTINE ACT 1984

1984/99 – 12 February 1985

1 Short title 16 Control of arrivals from overseas

2 Interpretation 17 Duty of Officers

3 Act to bind Crown

PART 3

PART 1 DISEASE CONTROL

ADMINISTRATION 17A Duty to notify disease

4 Appointment of Quarantine Officers 17B Power to declare Infected Place

5 Powers of Quarantine Officers 17C Disease Control Area

6 Rights of entry 17D Powers of Director to destroy

7 Liability for Crown expense 18 Emergency powers

8 Obstructing or hindering Quarantine 19 Diseases and pests in crops for export

Officer

9 Protection of Quarantine Officer PART 4

REGULATIONS

PART 2 20 Regulations

IMPORTATION

10 Quarantine Stations PART 5

11 Restrictions on importation MISCELLANEOUS

12 Importations for research 21 Dispatch of animal or plant material to

13 Seizure and disposal Niue

14 Duty to prevent material being landed 22 False declarations and documents

15 Material illegally introduced may be 23 Offences

seized

24–25 [Spent]

To make provision for the protection of plants and animals

1 Short title

This is the Agriculture Quarantine Act 1984.

2 Interpretation

In this Act –
“animal” means any living or dead stage of any member of the animal
kingdom and includes the egg or semen or larva or embryo or the
carcase of or tissue derived from an animal;
“animal product” means any part of an animal and any product that is
wholly or partly derived from an animal or any part of an animal, being
a part of an animal or a product that has not been treated or sterilised
to the stage where it is rendered free from any viable form of any
organism capable of causing disease;
104 Niue Laws 2006 Vol 1
“biological product” means any material, vaccine, chemical, hormone, enzyme, tissue or other thing derived from any animal, plant or organism;
“conveyance” means any kind of vehicle which may travel by land, sea or air and includes a cargo container;
“declaration” means a written statement concerning any animal, animal
product, plant or plant material or any other goods restricted or
prohibited under this Act;
“Director” means the Director of Agriculture and includes the Deputy;
“disease” means any unhealthy condition in any animal or plant suspected
of being caused by an organism, and includes diseases transmissible
from animals to man;
“diseased” means affected or has been affected by any disease, or as a result
of diagnostic test or tests, is judged to have been affected by any disease
or exposed to the causal agent of any disease; and in relation to any
animal product or plant material that it has been derived from a diseased
animal or plant;
“goods” means any movable property involving a quarantine hazard;
“import” means to introduce into Niue from any place outside of Niue
whether by sea or air;
“infected” in relation to any animal or animal product or plant material
means that it has been in direct or indirect contact with a diseased animal
or plant or any place or vicinity or goods or thing which is suspected to
be carrying or harbouring a disease or pest;
“land” includes any area, field, farm, garden, orchard, nursery, hothouse,
shadehouse, cool store, dwellinghouse, shop, building, room or other
place or premises and references to land extend to and include any
harbour, highway, road, wharf, port or airport;
“organism” means any micro-organism, virus, bacterium, fungus,
protozoon, parasite or other organism; and includes any dead,
inactivated attenuated or genetically modified form of any such micro­
organism, bacterium, fungus, protozoon, parasite or other organism;
“Quarantine Officer” means any officer appointed under section 4 and
includes an assistant;
“quarantine station” means any area established by section 10(1);
“packing material” includes items not necessarily of animal or plant origin
but which have been enclosed with the consignment during transport;
“permit” means a document issued by the Director indicating the conditions
under which animals, animal products, plant, plant material and goods
may be imported;
“pest” means any organism pestilent to animals or plants, and includes
weed pests and insect pests;
“plant” means all species, varieties and types of vegetation or parts of them
whether living or not and includes stems, branches, tubers, bulbs,
culture, corms, stocks, budwood, cuttings, layers, slips, suckers, roots,
leaves, flowers, fruit, seeds and any other plant growth and includes a
dead plant;
“plant material” includes any fruit, seed, spore and portion or product of
any plant unless, by any manufacturing process, it has been rendered
free from all diseases and pests and has been made incapable of carrying
any disease or pest;

Agriculture Quarantine Act 1984

105
“port” includes seaport, airport and post office;
“refuse” means any garbage or waste material, rubbish or packing whether
or not of animal or plant origin;
“soil” includes earth, water, peat, compost, sand, clay and any other
substance capable of supporting plant life or transmitting disease or
pest whether or not used or intended to be used as a growing medium
or in any process of manufacture, or as a ballast or for any purpose
whatsoever;
“treatment” means any form of operation including disinfection and
disinfestation to ensure removal sterilisation or killing of any animal
or plant, pest or disease by such means as are deemed most appropriate
and includes destruction.

3 Act to bind Crown

This Act binds the Government.
PART 1
ADMINISTRATION

4 Appointment of Quarantine Officers

There shall be appointed by the Niue Public Service Commission such
Quarantine Officers as may be necessary for the purposes of this Act.

5 Powers of Quarantine Officers

(1) Every Quarantine Officer may for the purposes of this Act detain, open,
inspect, examine, sample, submit for diagnostic examination, direct reshipment,
direct removal to a quarantine area, remove for treatment, treat any animal, animal
product, plant material, beneficial organism, disease, pest, soil, package, packing
material, article of luggage or other thing.
(2) No Quarantine Officer shall direct reshipment or destroy or otherwise
dispose of anything under this section unless with the concurrence of the Director
and that the owner or the importer is invited to witness destruction.

6 Rights of entry

Every Quarantine Officer may, for the purposes of this Act and on producing
(if so required) due evidence of his appointment, enter at any time upon any land
dwelling or into any conveyance.

7 Liability for Crown expense

If any person by failing to comply with or acting contrary to this Act, causes
a Quarantine Officer or an employee in the Public Service to incur an expense that
he would not otherwise have incurred, that person shall reimburse the Government
for the full amount of that expense reasonably and properly incurred and that
amount shall be recoverable from that person as a debt due to the Crown.

8 Obstructing or hindering Quarantine Officer

Every person commits an offence who directly or indirectly obstructs,
hinders, interrupts, threatens, or assaults any Quarantine Officer or any assistant
of a Quarantine Officer in the performance of his duty under this Act.

9 Protection of Quarantine Officer

A Quarantine Officer shall not be liable for any loss or damage resulting
from the exercise of powers conferred by this Act unless the loss or damage is
caused otherwise than in the reasonable exercise of those powers.
106 Niue Laws 2006 Vol 1

10 Quarantine Stations

PART 2
IMPORTATION
(1) The Cabinet may at any port or place in Niue by notice in the Gazette set apart and define any land under its control as a quarantine station for the detention or treatment of animals, animal products, plants or plant material and may vary, alter, redefine or abolish any such quarantine station.
(2) The Director may from time to time give directions on the regulation management and control of quarantine stations and the disposal treatment or destruction of animals, animal products, plants or plant material while in the quarantine station; and may by any such direction specify any treatment that can also include the time during which any animal, animal product, plant or plant material intended to be introduced into Niue shall remain in a quarantine station.

11 Restrictions on importation

(1) No person shall import or introduce any animal, animal product, plant,
plant material or organism or biological product or goods or packing material,
into Niue –
(a) Without the written permit of the Director; or
(b) In contravention of any regulations made under this Act.
(2) Every such permit shall be subject to such conditions as may be specified
in the permit and in any regulations made under this Act.
(3) Any such permit may be revoked or varied at any time by the Director.

12 Importation for research

Notwithstanding anything in this Act, the Director may, for the purpose of
scientific research or experiment and subject to such terms and conditions as he
thinks fit, permit the importation into Niue of any animal, animal product, plant
or plant material or organism or biological product or goods not otherwise eligible
for importation into Niue.

13 Seizure and disposal

Where any animal, animal product, plant or plant material or organism or
biological product is found by a Quarantine Officer on any conveyance and the
animal, animal product, plant or plant material or organism or biological product
is not being imported or introduced into Niue under this Act the animal, animal
product, plant or plant material or organism or biological product, shall be deemed
to be smuggled; and unless the Director directs that it be retained on the ship or
aircraft and reshipped therewith, the animal, animal product, plant or plant
material or organism or biological product shall be seized and destroyed and no
compensation shall be payable in respect of it.

14 Duty to prevent materials being landed

The owner, charterer, agent, master or captain of any conveyance arriving
in Niue shall –
(a) Prevent any animal, animal product, plant or plant material or
organism or biological product from being landed from that
conveyance unless permitted by the Director; and
(b) If so required by the Director enter into a bond for such amount not
exceeding $1,000 as the Quarantine Officer may require to secure
due compliance with this section.

Agriculture Quarantine Act 1984

107

15 Material illegally introduced may be seized

Any animal, animal product, plant or plant material or organism or
biological product or goods introduced into Niue contrary to this Act, may, together
with anything else that may have been in contact, be seized by a Quarantine Officer
and may be treated as the Director thinks fit.

16 Control of arrivals from overseas

(1) No person arriving in Niue by any conveyance from any country shall
leave that conveyance or any wharf or airport to which that conveyance may come
without first completing a baggage declaration form regarding any animal, animal
product, plant or plant material or organism or biological product or goods which
he wishes to bring into Niue.
(2) No person shall remove or cause to be removed from any conveyance
arriving in Niue from any country, or from any wharf or airport to which that
conveyance may come, any animal , animal products, plant, plant material, or
organism or biological product or goods without the permission of a Quarantine
Officer.

17 Duty of Officers

It shall be the duty of all officers of the Post Office and of the Customs
respectively to assist in carrying out the provisions of section 15 and to prevent
the introduction into Niue of anything contrary to this Act, and for that purpose
they may, in respect of anything so introduced or attempted to be introduced or
brought, exercise all the powers confirmed by the Communications Act 1989 in
the case of postal articles posted in breach of that Act, and by the Customs Act
1966 in the cause of uncustomed or prohibited goods.

17A Duty to notify disease

PART 3
DISEASE CONTROL
It shall be the duty of any owner or person in charge of any animal or plant to notify as soon as practicable a Quarantine Officer, Livestock Officer, or other competent person if he suspects the presence of disease or pests in the animal or plant and if so directed, to hold for examination the carcase of any animal which has died.

17B Power to declare Infected Place

(1) A Quarantine Officer, Livestock Officer or other authorised person may,
if he suspects that any animal or plant is diseased or infected, declare the land or
premises on which the animal or plant is kept and any other land in the
neighbourhood which may be specified to be an Infected Place.
(2) Whilst the declaration of an infected place is in effect, no animal or
plant may be introduced and no animal, animal product, animal manure, plant,
plant material, fitting, fodder, goods or thing may be removed from that Infected
Place except by permission of a Quarantine Officer, Livestock Officer or other
authorised person and under such conditions as may be specified.
(3) Any declaration of an infected place may be revoked at any time by a
Quarantine Officer, Livestock Officer or other authorised person; and the force of
any such declaration shall in any case, unless sooner renewed lapse 3 months
after the date of that declaration.
108 Niue Laws 2006 Vol 1

17C Disease Control Area

(1) Whilst an infected place continues to exist the Director may designate
an area around and including the infected place or the whole of Niue, to be a
Disease Control Area.
(2) Whilst a Disease Control Area is in effect, the Director may by public
notice or radio or television announcement direct that, subject to such conditions
he may impose or exemptions he may give, no animal, animal product, animal
excreta, plant, plant material, fodder, fittings, goods or other things as may be
specified may be moved out of, or into, or within the Disease Control Area without
the permission of a Quarantine Officer, Livestock Officer or other authorised
person.

17D Powers of Director to destroy

The Director may, with the approval of the Minister of Agriculture cause
steps to be taken to destroy any diseased or infected animals or plants or animals
or plants suspected of being diseased or infected, for the purposes of eradicating
or controlling a disease, or preventing its spread.

18 Emergency powers

(1) Cabinet may declare by proclamation that a state of agriculture
emergency exists throughout all or any part or parts of Niue under the Public
Emergency Act 1979, and while that state of emergency continues Cabinet may
direct that such measures be taken as it or any person authorised by Cabinet may
specify as necessary for the purpose of preventing the establishment of the serious
disease or pest in Niue or any part of Niue or eradicating it from Niue or any part
of Niue.
(2) The Cabinet may pay to the owner of any animal, animal product, plant
or plant material or any other goods destroyed as an emergency measure an amount
by way of compensation equal to the fair market value of it, fixed as at the time of
the inspection that results in the destruction of the animal, animal product, plant,
plant material or other goods, such compensation shall be ascertained by arbitration
under the Arbitration Act 1908.

19 Diseases and pests in crops for export

(1) If the Quarantine Officer has reason to believe that any disease or pest
is present or which contravenes the regulations of the importing country in any
animal, animal product, plant, plant material or goods which a person intends to
export he may by notice in writing direct that person not to export all or such
portion of the animal, animal product, plant or plant material or such portion of
the goods as the Quarantine Officer may decide.
(2) Any person who contrary to any such notice exports any animal, animal
product, plant, plant material or goods commits an offence.

20 Regulations

PART 4
REGULATIONS
The Cabinet may make regulations for the purpose of carrying out this Act and without in any way limiting the generality of the foregoing –
(a) Providing for the treatment or seizure and destruction of any animal, animal products, plants, plant material or goods that are diseased or infected or suspected of being diseased or infected;

Agriculture Quarantine Act 1984

109
(b) Prescribing the powers and duties of Quarantine Officers;
(c) Providing for the eradication and prevention of the spread of any
disease or pests;
(d) Prohibiting the introduction into Niue either generally or from any
specified region, country, or place of origin of all animals, animal
products, plants or plant material or organism or biological product
or such of the above as may be named or identified as being likely
to introduce any disease or pest into Niue;
(e) Prohibiting or restricting the introduction into Niue of any disease
or pest or organism or biological product;
(f) Prescribing conditions for introducing any animal, animal product,
plant or plant material or organism or biological product or goods
into Niue either generally or from any specified region, country or
place of origin;
(g) Prescribing the matters for which fees shall be payable under this
Act, fixing the amount of those fees and the mode of their payment
and recovery;
(h) Providing for such matters as are contemplated by or are necessary
to give full effect to this Act and for its due administration.
PART 5
MISCELLANEOUS

21 Dispatch of animal or plant material to Niue

(1) No person shall be deemed to have introduced into Niue any animal,
animal product, plant or plant material received by that person from overseas
without his consent given before dispatch of the animal, animal product, plant or
plant material to Niue.
(2) Notwithstanding that any person receives such animal, animal product,
plant or plant material from overseas without his consent given before dispatch
of the material, he shall on receipt of the animal, animal product, plant or plant
material immediately notify a Quarantine Officer and carry out to the satisfaction
of the Quarantine Officer such directions as the Quarantine Officer may give as to
the treatment of the animal, animal product, plant or plant material.

22 False declarations and documents

Every person who makes any false declaration or tenders any false
document under this Act knowing the declaration or document to be false commits
an offence.

23 Offences

(1) Every person who fails to comply with or act in contravention of this
Act or any Regulations made under it or any order, direction, requirement, or
condition made, given, or imposed by the Director or Quarantine Officer under
any powers conferred by or under this Act or any Regulations commits an offence.
(2) Every person who commits an offence against this Act is liable on
conviction to a fine not exceeding 20 penalty units, or imprisonment of not more
than 12 months.

24–25 [Spent]

110 Niue Laws 2006 Vall

111

APPROPRIATION (ANNUAL) ACT 2006

2006/277 – 1 July 2006

1 Short title 2 Grant and appropriation

To appropriate certain sums of money out of the Niue Assembly Account to the services for the year ending 30 June 2007 and to appropriate the supplies granted in that year

1 Short title

(1) This is the Appropriation (Annual) Act 2006.
(2) This Act shall relate to the financial year ending on 30 June 2007 (the
“financial year”).

2 Grant and appropriation

(1) There may be issued and supplied from the Niue Assembly Account
towards making good the supplies granted to Her Majesty for the services of the
financial year, for Recurrent Expenditure, Capital Projects, Corporations and
Special Projects a sum which does not exceed $23,414,292 in total.
(2) The particulars of which are set out under the relevant headings in the
Schedules.
112 Niue Laws 2006 Vol 1

Appropriation from the Niue Assembly Account for RECURRENT, CAPITAL, and CORPORATIONS for the Financial Year ending 30 June 2007

NON TRADING DEPARTMENTS Administration Services Agriculture

Community Affairs Education Environment Health

Justice

Public Service Commission

Police

Public Works

Premiers

Taoga Niue

Treasury

Meteorological

TRADING OPERATIONS Administration: Govt Residences Public Works: All Trading Treasury: Bondstore

Telecom & Postal

Niue Power

Bulk Fuel

Tourism Authority

CORPORATIONS Broadcasting

NDB

SPECIAL PROJECTS Cyclone Heta

NZAID

Donor Repayment

CAPITAL PROJECTS Education

TOTAL 20,005,202 50,000 238,556 3,120,534 23,414,292

––––––––– ––––––––– ––––––––– ––––––––– –––––––––

Appropriation (Annual) Act 2006

ANNUAL ESTIMATES NIUE GOVERNMENT 2006/2007

STATEMENT OF ESTIMATED SOURCE & APPLICATION OF FUNDS

113

SOURCE OF FUNDS Taxation Income

Import Duty Company Other

Total Taxation

Other Interest on Investments

Fishing Rights

Other Government Receipts

Total Other Revenue

Total Department Revenue Trading Operations Corporations

Special Projects

Total Recurrent Revenue

TOTAL INTERNAL FUNDING NZ Funding – Recurrent

TOTAL NZ FUNDING

TOTAL FUNDING REVENUE

APPLICATION OF FUNDS Departmental – Recurrent Trading Operations Corporations

Special Projects

Total Recurrent Application

Capital Projects

Total Capital Disbursement

TOTAL EXPENDITURE RECURRENT SURPLUS/(DEFICIT)

2006/2007

ESTIMATES

1,969,644

1,033,500

55,000

236,800

––––––––

3,294,944

––––––––

10,000

382,775

1,259,053

––––––––

1,651,828

––––––––

4,946,772

8,571,986

110,000

2,870,534

–––––––––

16,499,292

–––––––––

16,499,292

6,915,000

6,915,000

–––––––––

23,414,292

–––––––––

11,277,032

8,728,170

238,556

3,120,534

–––––––––

23,364,292

–––––––––

50,000

–––––––––

50,000

–––––––––

23,414,292

–––––––––

(0)

–––––––––

2005/2006 June

VOTED Prov

1,844,442 1,846,818

948,500 934,801

50,000 3,362

198,800 229,193

–––––––– ––––––––

3,041,742 3,014,174

–––––––– ––––––––

2,000 31,084

262,775 243,067

1,116,715 845,333

–––––––– ––––––––

1,381,490 1,119,484

–––––––– ––––––––

4,423,232 4,133,658

6,630,642 7,003,727

80,000 50,267

3,611,631 3,018,561

––––––––– –––––––––

14,745,505 14,206,212

––––––––– –––––––––

14,745,505 14,206,212

6,952,500 6,952,500

6,952,500 6,952,500

––––––––– –––––––––

21,698,005 21,158,712

––––––––– –––––––––

10,978,294 11,163,781

6,722,931 7,536,347

285,149 232,617

3,611,631 2,484,581

––––––––– –––––––––

21,598,005 21,417,325

––––––––– –––––––––

100,000 89,733

––––––––– –––––––––

100,000 89,733

––––––––– –––––––––

21,698,005 21,507,059

––––––––– –––––––––

(0) (348,346)

––––––––– –––––––––

114 Niue Laws 2006 Vol 1

GOVERNMENT OF NIUE

SUMMARY OF REVENUE FOR YEAR ENDING 30 JUNE 2007

2006/2007 2005/2006 June

DEPARTMENT

NON-TRADING Administrative Services Agriculture

Community Affairs

Education

Health

Justice

Police

Public Works

Premiers

Taoga Niue

Treasury

Meteorological

TOTAL NON-TRADING

TRADING OPERATIONS Admin: Govt Residences Public Works Trading Treasury: Bond Store Telecom & Postal

Niue Power

Bulk Fuel

TOTAL TRADING

CORPORATIONS Broadcasting

TOTAL CORPORATIONS

SPECIAL PROJECTS Cyclone Heta

NZ AID

TOTAL SPECIAL PROJECTS TOTAL INTERNAL FUNDING

NZ FUNDING Recurrent

TOTAL NZ FUNDING TOTAL REVENUE

ESTIMATE

21,000

416,822

600

83,250

152,500

25,000

92,425

185,800

241,000

10,500

3,717,475

400

–––––––––

4,946,772

–––––––––

101,761

361,000

956,600

1,288,150

1,238,655

4,625,820

–––––––––

8,571,986

–––––––––

110,000

–––––––––

110,000

–––––––––

995,534

1,875,000

–––––––––

2,870,534

–––––––––

16,499,292

–––––––––

6,915,000

–––––––––

6,915,000

–––––––––

23,414,292

–––––––––

VOTED Prov

18,350 16,400

266,190 256,938

0 0

500 655

9,500 8,126

22,500 28,353

57,925 92,153

208,242 157,031

252,512 303,515

0 0

3,587,113 3,266,215

400 4,272

––––––––– –––––––––

4,423,232 4,133,658

––––––––– –––––––––

106,960 85,126

218,000 166,622

794,000 802,636

1,202,750 1,150,686

1,286,932 1,199,616

3,022,000 3,599,041

––––––––– –––––––––

6,630,642 7,003,727

––––––––– –––––––––

80,000 50,267

––––––––– –––––––––

80,000 50,267

––––––––– –––––––––

1,826,430 1,746,022

1,785,201 1,272,539

––––––––– –––––––––

3,611,631 3,018,561

––––––––– –––––––––

14,745,505 14,206,212

––––––––– –––––––––

6,952,500 6,952,500

––––––––– –––––––––

6,952,500 6,952,500

––––––––– –––––––––

21,698,005 21,158,712

––––––––– –––––––––

Appropriation (Annual) Act 2006

GOVERNMENT OF NIUE

SUMMARY OF EXPENDITURE FOR YEAR ENDING 30 JUNE 2007

115

2006/2007 2005/2006 June
DEPARTMENT	ESTIMATE	VOTED Prov
NON-TRADING
Administrative Services	668,030	726,200 780,155
Agriculture	557,834	508,612 531,851
Community Affairs	1,964,425	1,855,047 1,921,154
Education	1,350,650	1,486,286 1,544,651
Environment	126,900	99,011 99,802
Health	1,500,090	1,326,375 1,465,285
Justice	394,922	391,154 352,250
Public Service Commission	319,877	338,224 296,653
Police	416,278	344,392 355,646
Public Works	706,294	846,864 861,697
Premiers	2,570,105	2,324,815 2,328,138
Taoga Niue	113,423	0 0
Treasury	505,303	648,155 556,003
Meteorological	82,901	83,159 70,495
	–––––––––	––––––––– –––––––––
TOTAL NON TRADING	11,277,032	10,978,294 11,163,781
	–––––––––	––––––––– –––––––––
TRADING OPERATIONS
Admin: Gov Residences	27,842	55,149 64,208
Public Works: All Trading	574,790	503,587 548,253
Treasury: Bond Store	673,438	650,463 719,766
Telecom & Postal Corporation	1,288,150	1,202,750 917,696
Niue Power	1,522,807	1,353,396 1,476,648
Bulk Fuel	4,492,949	2,747,571 3,592,146
Tourism Authority	148,194	210,016 217,630
	–––––––––	––––––––– –––––––––
TOTAL TRADING	8,728,170	6,722,931 7,536,347
	–––––––––	––––––––– –––––––––
CORPORATIONS
Broadcasting	238,556	275,149 222,617
Niue Development Bank	0	10,000 10,000
	–––––––––	––––––––– –––––––––
TOTAL CORPORATIONS	238,556	285,149 232,617
	–––––––––	––––––––– –––––––––
SPECIAL PROJECTS
Cyclone Heta	995,534	1,826,430 1,012,746
Donor Projects	530,000	0 0
NZ AID	1,595,000	1,785,201 1,471,835
	–––––––––	––––––––– –––––––––
TOTAL SPECIAL PROJECTS	3,120,534	3,611,631 2,484,581
	–––––––––	––––––––– –––––––––
RECURRENT EXPENDITURE	23,364,292	21,598,005 21,417,325
CAPITAL
Taoga Niue Office	0	100,000 89,733
Capital Projects	50,000	0 0
	–––––––––	––––––––– –––––––––
CAPITAL EXPENDITURE	50,000	100,000 89,733
	–––––––––	––––––––– –––––––––
TOTAL EXPENDITURE	23,414,292	21,698,005 21,507,059
	–––––––––	––––––––– –––––––––

116 Niue Laws 2006 Vol 1

SUMMARIES OF BUDGET PROPOSALS FOR YEAR ENDING 30 JUNE 2007

REVENUE LESS EXPENDITURE

2006/2007 2005/2006 June

DEPARTMENT ESTIMATE VOTED Prov

TOTAL REVENUE 23,414,292 21,698,005 21,158,712

TOTAL EXPENDITURE 23,414,292 21,698,005 21,507,059

––––––––– ––––––––– –––––––––

SURPLUS/(DEFICIT) (0) (0) (348,346)

––––––––– ––––––––– –––––––––

117

ARBITRATION ACT 1908

1908/8 (NZ) – 4 August 1908

1	Short title	15	Power to refer in certain cases
2	Interpretation	16	Powers and remuneration of arbitrators
		17	Court to have powers as in references by
	References by Consent out of Court		consent
3	Submission to be irrevocable	18	Court of Appeal to have powers of Court
4	Provisions implied in submissions
5	Power of Court to stay proceedings where			General
	there is a submission	19	Power to compel attendance of witness in
6	Appointment of arbitrator or umpire		any part of Niue, and to order prisoner to
7	Power for parties to supply vacancy		attend
8	Powers of arbitrator	20	[Repealed]
9	Witnesses may be subpoenaed	21	Costs
10	Power to enlarge time for making award	22	Arbitrator	or	umpire	entitled	to
11	Power to remit award		remuneration
12	Power to remove arbitrator or set aside	23	Power to make rules
	award	24	Act binds the Government
13	Enforcing award	25	Application of Act to references under
statutory powers
References Under Order of Court
14	Reference for report			SCHEDULES

To consolidate certain enactments relating to arbitration

1 Short title

This is the Arbitration Act 1908.

2 Interpretation

In this Act –
“arbitrator” includes referee and valuer;
“Court” means the High Court, and includes a Judge of it;
“rules of Court” means rules of the Court of Appeal, or of the High Court,
made by the proper authority under this Act;
“submission” means a written agreement to submit present or future
differences to arbitration, whether an arbitrator is named in it or not,
or under which any question or matter is to be decided by one or more
persons to be appointed by the contracting parties or by some person
named in the agreement.
118 Niue Laws 2006 Vol 1

References by Consent out of Court

3 Submission to be irrevocable

A submission, unless a contrary intention is expressed in it, shall be
irrevocable, except by leave of the Court and shall have the same effect in all
respects as if made an order of Court.

4 Provisions implied in submissions

A submission, unless a contrary intention is expressed in it, shall be deemed
to include the provisions in Schedule 2 so far as they are applicable to the reference
under the submission.

5 Power of Court to stay proceedings where there is a submission

If any party to a submission or any person claiming through or under him,
commences any legal proceedings in any Court against any other party to the
submission, or any person claiming through or under him, in respect of any matter
agreed to be referred, any party to those legal proceedings may, at any time before
filing a statement of defence or a notice of intention to defend or taking any other
step in the proceedings, apply to the Court in which the proceedings were
commenced to stay the proceedings; and that Court may, if satisfied that there is
no sufficient reason why the matter should not be referred under the submission,
and that the applicant was at the time when the proceedings were commenced,
and still remains, ready and willing to do all things necessary to the proper conduct
of the arbitration, make an order staying the proceedings.

6 Appointment of arbitrator or umpire

(1) In any of the following cases –
(a) Where a submission provides that the reference shall be to a single
arbitrator, and all the parties do not concur in the appointment of
an arbitrator; or
(b) Where an appointed arbitrator fails to act, or is or becomes incapable
of acting, or dies, and the submission does not show that it was
intended that the vacancy should not be supplied, and the parties
do not supply the vacancy; or
(c) Where the parties or 2 arbitrators are at liberty to appoint an umpire
or a third arbitrator or where 2 arbitrators are required to appoint
an umpire and do not appoint one; or
(d) Where an appointed umpire or third arbitrator fails to act, or is or
becomes incapable of acting, or dies, and the submission does not
show that it was intended that the vacancy should not be supplied,
and the parties or arbitrators do not supply the vacancy –
any party may serve the other party or the arbitrators, as the case may be, with a
written notice to appoint an arbitrator or umpire or a third arbitrator.
(2) If the appointment is not made within 7 days after the service of the
notice, the Court may, on application by the party who gave the notice, appoint
an arbitrator or umpire or a third arbitrator who shall have the like powers to act
in the reference and make an award as if he had been appointed by consent of all
parties.

7 Power for parties to supply vacancy

(1) Where a submission provides that the reference shall be to 2 arbitrators,
one to be appointed by each party, then, unless the submission expresses a contrary
intention –

Arbitration Act 1908

119
(a) If either of the appointed arbitrators fails to act, or is or becomes incapable of acting, or does, the party who appointed him may appoint a new arbitrator in his place; and
(b) If one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for 7 days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent.
(2) The Court may set aside any appointment made in pursuance of this section.

8 Powers of arbitrator

The arbitrators or umpire acting under a submission may, unless the
submission expresses a contrary intention –
(a) Administer oaths to the parties and witnesses appearing; and
(b) [Repealed]
(c) Correct in any award any clerical mistake or error arising from any
accidental slip or omission.

9 Witnesses may be subpoenaed

Any party to a submission may sue out a write of subpoena ad testificandum,
or a writ of subpoena duces tecum, but no person shall be compelled under any such
writ to produce any document which he could not be compelled to produce on
the trial of an action.

10 Power to enlarge time for making award

The time for making an award may be enlarged by order of the Court,
whether the time for making the award has expired or not.

11 Power to remit award

(1) In all cases of reference to arbitration the Court may remit the matters
referred, or any of them, to the reconsideration of the arbitrators or umpire.
(2) Where an award is remitted the arbitrators or umpire shall, unless the
order otherwise directs, make their award within 3 months after the date of the
order.

12 Power to remove arbitrator or set aside award

(1) Where an arbitrator or umpire has misconducted himself or the
proceedings the Court may remove him.
(2) Where an arbitrator or umpire has misconducted himself or the
proceedings, or any arbitration or award has been improperly procured, the Court
may set the award aside.

13 Enforcing award

An award on a submission may, by leave of the Court, be enforced in the
same manner as a judgment or order to the same effect.
120 Niue Laws 2006 Vol 1

References under Order of Court

14 Reference for report

(1) Subject to rules of Court, the Court may refer any question arising in
any cause or matter (other than a criminal proceeding) for inquiry or report to an
official or special referee.
(2) The report of such official or special referee may be adopted wholly or
partially by the Court, and if so adopted may be enforced as a judgment or order
to the same effect.

15 Power to refer in certain cases

In any cause or matter (other than a criminal proceeding by the Crown) –
(a) If all the parties interested who are not under disability consent; or
(b) If the question in dispute consists wholly or in part of matters of
account; or
(c) If the cause of matter requires any prolonged examination of
documents, or any scientific or local investigation, which cannot in
the opinion of the Court conveniently be made before a jury or
conducted by the Court through its other ordinary officers –
the Court may at any time order the whole cause or matter or any question or
issue of fact arising therein, to be tried before an arbitrator agreed on by the parties,
or before an officer of the Court.

16 Powers and remuneration of arbitrators

(1) In all cases of reference to an arbitrator under an order of the Court in
any cause or matter the arbitrator shall be deemed to be an officer of the Court,
and shall have such authority, and shall conduct the reference in such manner, as
is prescribed by rules of Court, and subject to it, as the Court directs.
(2) The report or award of any arbitrator on any such reference shall, unless
set aside by the Court, be equivalent to the verdict of a jury.
(3) The remuneration to be paid to any arbitrator to whom any matter is
referred under order of the Court shall be determined by the Court.

17 Court to have powers as in references by consent

The Court shall, as to references under order of the Court, have all the
powers conferred by this Act on the Court as to references by consent out of Court.

18 Court of Appeal to have powers of Court

The Court of Appeal shall have all the powers conferred by this Act on the
Court under the provisions relating to references under order of the Court.

General

19 Power to compel attendance of witness in any part of Niue, and to order

prisoner to attend

(1) The Court may order that a writ of subpoena ad testificandum or of

subpoena duces tecum shall issue to compel the attendance before any arbitrator or

umpire of a witness wherever he may be in Niue.
(2) The Court may also, by order in writing under the hand of a Judge,
require a prisoner to be brought up for examination before any arbitrator or umpire,
and such order shall operate and be obeyed in like manner in all things as a writ of

habeas corpus ad testificandum issued out of the Court.

20 [Repealed]

Arbitration Act 1908

121

21 Costs

Any order may be made on such terms as to costs, or otherwise, as the
authority making the order thinks just.

22 Arbitrator or umpire entitled to remuneration

An arbitrator or umpire shall be entitled to a reasonable remuneration for
his services as such arbitrator or umpire, and if the parties to the submission do
not agree as to the amount to be paid, or as to the mode and time of payment, a
Judge may, on a summary application to him for that purpose, fix and determine
all or any of such matters.

23 Power to make rules

Rules may be made in the manner prescribed by section 70 of the Niue Act
1966 for the purpose of giving effect to this Act in the Court of Appeal or the High
Court.

24 Act binds the Government

This Act binds the Government of Niue but no arbitration involving the
Government shall proceed without the consent of Cabinet.

25 Application of Act to references under statutory powers

This Act applies to every arbitration under any Act passed before or after
the coming into operation of this Act as if the arbitration were under a submission,
except in so far as this Act is inconsistent with the Act regulating the arbitration,
or with any rules or procedure authorised or recognised by that Act.

SCHEDULES SCHEDULE 1

[Spent]

SCHEDULE 2

Section 4

Provisions to be Implied in Submissions

1 If no other mode of reference is provided, the reference shall be to a single arbitrator.

2 If the reference is to 2 arbitrators, the 2 arbitrators shall appoint an umpire immediately after they are themselves appointed.

3 {Repealed 1938]

4 If the arbitrators have delivered to any party to the submission, or to the umpire, a notice in writing stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators.

5 [Repealed]

122 Niue Laws 2006 Vol 1

6 The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire on oath in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire all books, deeds, papers, accounts, writings, or documents within their possession or power that may be required or called for, and do all such other things as during the proceedings on the reference the arbitrators or umpire may require.

7 The witnesses on the reference shall, if the arbitrators or umpire think fit, be examined on oath.

8 The award made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively.

9 The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what amount those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client.

10 The arbitrators or umpire shall have the same power as the Court to order specific performance of any contract other than a contract relating to land or interest in land.

11 The arbitrators or umpire may make an interim award.

123

ARBITRATION AMENDMENT ACT 1938

1938/6 (NZ) – 1 January 1939

1 Short title 11

2 Interpretation 12

3 Submission not to be discharged by death 13

of party 14

4 [Repealed] 15

5 Power of Court where arbitrator is 16

removed or appointment of arbitrator is

revoked

6 Appointment of three arbitrators 17

7 Provisions relating to umpires 18

8 Arbitrators and umpires to use due

Statement of case by arbitrator or umpire Entry of judgment in terms of award Interest on awards

Provision as to costs

Taxation of arbitrator ’s or umpire’s fees

Power of Court to give relief where

arbitrator is not impartial or dispute

referred involves question of fraud

[Spent]

Limitation of time for commencing

arbitration proceedings

dispatch 19-21 [Repealed]

9 [Spent]

10 Additional powers of Court SCHEDULE

To amend the Arbitration Act 1908

1 Short title

This is the Arbitration Amendment Act 1938, and shall be read together
with and deemed part of the Arbitration Act 1908 (the principal Act).

2 Interpretation

References in this Act and in the principal Act to an award shall be deemed
to include references to an interim award.

3 Submission not to be discharged by death of party

(1) A submission shall not be discharged by the death of any party to it,
either as respects the deceased or any other party, but shall in such an event be
enforceable by or against the personal representative of the deceased.
(2) The authority of an arbitrator shall not be revoked by the death of any
party by whom he was appointed.
(3) Nothing in this section shall be taken to affect the operation of any
enactment or rule of law by virtue of which any right of action is extinguished by
the death of a person.

4 [Repealed by 2004/270]

124 Niue Laws 2006 Vol 1

5 Power of Court where arbitrator is removed or appointment of arbitrator is revoked

(1) Where an arbitrator (not being a sole arbitrator) or 2 or more arbitrators (not being all the arbitrators) or an umpire who has not entered on the reference is or are removed by the Court, the Court may, on the application of any party to the submission, appoint a person or persons to act as arbitrator or arbitrators or umpire in place of the person or persons so removed.
(2) Where the appointment of an arbitrator or arbitrators or umpire is revoked by leave of the Court, or a sole arbitrator or all the arbitrators or an umpire who has entered on the reference is or are removed by the Court, the Court may, on the application of any party to the submission, either –
(a) Appoint a person to act as sole arbitrator in place of the person or
persons removed; or
(b) Order that the submission shall cease to have effect with respect to
the dispute referred.
(3) A person appointed by the Court as an arbitrator or umpire shall have
the like power to act in the reference and to make an award as if he had been
appointed under the terms of the submission.
(4) Where it is provided (whether by means of a provision in the submission
or otherwise) that an award under a submission shall be a condition precedent to
the bringing of an action with respect to any matter to which the submission applies,
the Court, if it orders (whether under this section or under any other enactment)
that the submission shall cease to have effect as regards any particular dispute,
may further order that the provision making an award a condition precedent to
the bringing of an action shall also cease to have effect as regards that dispute.

6 Appointment of three arbitrators

(1) Where a submission provides that the reference shall be to 3 arbitrators,
one to be appointed by each party and the third to be appointed by the 2 appointed
by the parties, the submission shall have effect as if it provided for the appointment
of an umpire, and not for the appointment of a third arbitrator, by the 2 arbitrators
appointed by the parties.
(2) Where a submission provides that the reference shall be to 3 arbitrators
to be appointed otherwise than as mentioned in the subsection (1), the award of
any 2 of the arbitrators shall be binding.

7 Provisions relating to umpires

(1) [Spent]
(2) [Spent]
(3) At any time after the appointment of an umpire, however appointed,
the Court may, on the application of any party to the reference and notwithstanding
anything to the contrary in the submission, order that the umpire shall enter on
the reference in lieu of the arbitrators and as if he were a sole arbitrator.

8 Arbitrators and umpires to use due dispatch

(1) The Court may, on the application of any party to a reference, remove
an arbitrator or umpire who fails to use all reasonable dispatch in entering on and
proceeding with the reference and making an award.
(2) An arbitrator or umpire who is removed by the Court under this section
shall not be entitled to receive any remuneration in respect of his services.
(3) Subject to section 11 (2) of the principal Act and to anything to the
contrary in the submission, an arbitrator or umpire shall have power to make an
award at any time.

Arbitration Amendment Act 1938

125
(4) For the purposes of this section the expression “proceeding with a reference” includes, in a case where 2 arbitrators are unable to agree, giving notice of that fact to the parties and to the umpire.

9 [Spent]

10 Additional powers of Court

(1) (a) The Court shall have, for the purpose of and in relation to a reference,
the same power of making orders in respect of any of the matters
set out in the Schedule as it has for the purpose of and in relation to
an action or matter in the Court.
(b) Nothing in paragraph (a) shall be taken to prejudice any power
which may be vested in an arbitrator or umpire of making orders
with respect to any of the matters aforesaid.
(2) Where relief by way of interpleader is granted and it appears to the
Court that the claims in question are matters to which a submission to which the
claimants are parties applies, the Court may direct the issue between the claimants
to be determined under the submission.
(3) Where an application is made to set aside an award the Court may
order that any money made payable by the award shall be brought into Court or
otherwise secured pending the determination of the application.

11 Statement of case by arbitrator or umpire

(1) An arbitrator or umpire may, and shall if so directed by the Court,
state –
(a) Any question of law arising in the course of the reference; or
(b) An award or any part of an award –
in the form of a special case for the decision of the Court.
(2) A special case with respect to an interim award or with respect to a
question of law arising in the course of a reference may be stated, or may be directed
by the Court to be stated, notwithstanding that proceedings under the reference
are still pending.
(3) A decision of the Court under this section shall be deemed to be a
judgment of the Court but no appeal shall lie from the decision of the Court on
any case stated under subsection (1) (a) without the leave of the Court or of the
Court of Appeal.

12 Entry of judgment in terms of award

Where leave is given under section 13 of the principal Act to enforce an
award in the same manner as a judgment or order, judgment may be entered in
terms of the award.

13 Interest on awards

A sum directed to be paid by an award shall, unless the award otherwise
directs, carry interest as from the date of the award and at the same rate as a
judgment debt.
126 Niue Laws 2006 Vol 1

14 Provision as to costs

(1) (a) Any provision in a submission to the effect that the parties or any
party to it shall in any event pay the whole or any part of the costs
of the reference or award shall be void; and the principal Act shall
in the case of a submission containing any such provision have effect
as if that provision were not contained in it.
(b) Nothing herein shall invalidate such a provision when it is part of
an agreement to submit to arbitration a dispute which has arisen
before the making of such agreement.
(2) If no provision is made by an award with respect to the costs of the
reference, any party to the reference may within 14 days of the publication of the
award, or such further time as the Court may direct, apply to the arbitrator for an
order directing by and to whom such costs shall be paid, and thereupon the
arbitrator shall, after hearing any party who may desire to be heard, amend his
award by adding to it such directions with respect to the payment of the costs of
the reference.

15 Taxation of arbitrator’s or umpire’s fees

(1) If in any case an arbitrator or umpire refuses to deliver his award except
on payment of the fees demanded by him the Court may, on an application for the
purpose, order that the arbitrator or umpire shall deliver the award to the applicant
on payment into Court by the applicant of the fees demanded shall be taxed by
the taxing officer and that out of the money paid into Court there shall be paid out
to the arbitrator or umpire by way of fees such sum as may be found reasonable
on taxation and that the balance of the money, if any, shall be paid out to the
applicant.
(2) An application for the purposes of this section may be made by any
party to the reference unless the fees demanded have been fixed by a written
agreement between him and the arbitrator or umpire.
(3) A taxation of fees under this section may be reviewed in the same
manner as a taxation of costs.
(4) The arbitrator or umpire shall be entitled to appear and be heard on
any taxation or review of taxation under this section.

16 Power of Court to give relief where arbitrator is not impartial or dispute referred involves question of fraud

(1) Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred to an arbitrator named or designated in the agreement and after a dispute has arisen any party applies, on the ground that the arbitrator so named or designated is not or may not be impartial, for leave to revoke the submission or for an injunction to restrain any other party or the arbitrator from proceeding with the arbitration, it shall not be a ground for refusing the application that the said party at the time when he made the agreement knew, or ought to have known, that the arbitrator by reason of his relation towards any other party to the agreement or of his connection with the subject referred might not be capable of impartiality.
(2) Where an agreement between any parties provides that disputes which
may arise in the future between them shall be referred and a dispute which so
arises involves the question whether any such party has been guilty of fraud, the
Court shall, so far as may be necessary to enable that question to be determined
by the Court, have power to order that the agreement shall cease to have effect
and power to give leave to revoke any submission made thereunder.

Arbitration Amendment Act 1938

127
(3) In any case where by virtue of this section the Court has power to order that an agreement shall cease to have effect or to give leave to revoke a submission, the Court may refuse to stay any action brought in breach of the agreement.

17 [Spent]

18 Limitation of time for commencing arbitration proceedings

(1)–(5) [Spent]
(6) Where the terms of an agreement to refer future disputes to arbitration
provide that any claims to which the agreement applies shall be barred unless
notice to appoint an arbitrator is given or an arbitrator is appointed or some other
step to commence arbitration proceedings is taken within a time fixed by the
agreement, and a dispute arises to which the agreement applies, the Court, if it is
of opinion that in the circumstances of the case undue hardship would otherwise
be caused, and notwithstanding that the time so fixed has expires, may, on such
terms, if any, as the justice of the case may require, but without prejudice to the
foregoing provisions of this section, extend the time for such period.

19–21 [Repealed by 2004/270]

SCHEDULE Section 10

MATTERS IN RESPECT OF WHICH THE COURT MAY MAKE ORDERS

(1) Security for costs.

(2) Discovery of documents and interrogatories.

(3) The giving of evidence by affidavit.

(4) Examination on oath of any witness before an officer of the Court or any

other person, and the issue of a commission or request for the examination of a witness

out of the jurisdiction.

(5) The preservation, interim custody, or sale of any goods which are the subject-

matter of the reference.

(6) Securing the amount in dispute in the reference.

(7) The detention, preservation, or inspection of any property or thing which is

the subject of the reference or as to which any question may arise therein, and authorising

for any of the purposes aforesaid any persons to enter upon or into any land or building

in the possession of any party to the reference, or authorising any samples to be taken or

any observation to be made or experiment to be tried which may be necessary or expedient

for the purpose of obtaining full information or evidence.

(8) Interim injunctions or the appointment of a receiver.

128 Niue Laws 2006 Voll

129

ARBITRATION CLAUSES (PROTOCOL) AND THE

ARBITRATION (FOREIGN AWARDS) ACT 1933

1933/4 (NZ) – 28 October 1933

1 Short title PART 2

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

PART 1 4 Application of Part 2

PROTOCOL ON ARBITRATION CLAUSES 5 Effect of foreign awards

2 Interpretation 6 Conditions for enforcement

3 Stay of court proceedings 7 Evidence

8 Meaning of “final award”

9 Saving

SCHEDULES

To give effect in Niue (1) to a protocol on arbitration clauses signed on behalf of His Majesty at a meeting of the Assembly of the League of Nations held on

24 September 1923 and (2) to a convention on the execution of foreign arbitral awards signed on behalf of His Majesty on 26 September 1927

1 Short title

(1) This Act is the Arbitration Clauses (Protocol) and the Arbitration
(Foreign Awards) Act 1933.
(2) This Act shall be read together with and deemed part of the Arbitration
Act 1908 (the principal Act).

2 Interpretation

PART 1
PROTOCOL ON ARBITRATION CLAUSES
In this Part “the said protocol” means the protocol the terms of which are set forth in Schedule 1.

3 Stay of court proceedings

Notwithstanding anything in the principal Act, if any party to a submission
made in pursuance of an agreement to which the said protocol applies, or any
person claiming through or under him, commences any legal proceedings in any
Court against any other party to the submission, or any person claiming through
or under him, in respect of any matter agreed to be referred, any party to such
legal proceedings may at any time after appearance, and before delivering any
pleadings or taking other steps in the proceedings, apply to that Court to stay the
proceedings, and that Court or a Judge of it, unless satisfied that the agreement or
arbitration has become inoperative or cannot proceed, or that there is not in fact
any dispute between the parties with regard to the matter agreed to be referred
shall make an order staying the proceedings.
130 Niue Laws 2006 Vol 1
PART 2
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

4 Application of Part 2

This Part applies to any award made after 28 July 1924 –
(a) In pursuance of an agreement for arbitration to which the protocol
set out in Schedule 1 applies; and
(b) Between persons of whom one is subject to the jurisdiction of one
of the powers which is a party to the Convention and of whom the
other is subject to the jurisdiction of another of those powers; and
(c) In one of the territories to which the Convention applies.

5 Effect of foreign awards

(1) A foreign award shall, subject to this Part be enforceable in Niue either
by action or under section 13 of the principal Act.
(2) Any foreign award which would be enforceable under this Part shall
be treated as binding for all purposes on the persons as between whom it was
made, and may accordingly be relied on by any of those persons by way of defence,
set off, or otherwise in any legal proceedings in Niue, and any references in this
Part to enforcing a foreign award shall be construed as including references to
relying on an award.

6 Conditions for enforcement

(1) In order that a foreign award may be enforceable under this Part it
must have –
(a) Been made in pursuance of an agreement for arbitration which was
valid under the law by which it was governed;
(b) Been made by the tribunal provided for in the agreement or
constituted in manner agreed upon by the parties;
(c) Been made in conformity with the law governing the arbitration
procedure;
(d) Become final in the country in which it was made;
(e) Been in respect of a matter which may lawfully be referred to
arbitration under the law of Niue; –
and the enforcement of it must not be contrary to the public policy or the law of
Niue.
(2) A foreign award shall not be enforceable under this Part if the court dealing with the case is satisfied that –
(a) The award has been annulled in the country in which it was made;
or
(b) The party against whom it is sought to enforce the award was not
given notice of the arbitration proceedings in sufficient time to
enable him to present his case, or was under some legal incapacity
and was not properly represented; or
(c) The award does not deal with all the questions referred or contains
decisions on matters beyond the scope of the agreement for
arbitration:
Provided that, if the award does not deal with all the questions referred, the Court
may either postpone the enforcement of the award or order its enforcement subject
to the giving of such security by the person seeking to enforce it.
(3) If a party seeking to resist the enforcement of a foreign award proves
that there is any ground other than the non-existence of the conditions specified
in section 6 (1) (a), (b) and (c), or the existence of the conditions specified in section

Arbitration Clauses (Protocol) Act 1933

131
6 (2) (b) and (c) entitling him to contest the validity of the award, the Court may, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the Court to be reasonably sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal.

7 Evidence

(1) The party seeking to enforce a foreign award must produce –
(a) The original award or a copy of it duly authenticated in manner
required by the law of the country in which it was made; and
(b) Evidence proving that the award has become final; and
(c) Such evidence as may be necessary to prove that the award is a
foreign award and that the conditions mentioned in section 6 (1)
(a), (b) and (c) are satisfied.
(2) In any case where any document required to be produced under
subsection (1) is in a foreign language, it shall be the duty of the party seeking to
enforce the award to produce a translation certified as correct by a diplomatic or
consular agent of the country to which that party belongs, or certified as correct in
such other manner as may be sufficient under the law of Niue.
(3) Subject to this section, rules of Court may be made under section 70 of
the Niue Act 1966 with respect to the evidence which must be furnished by a
party seeking to enforce an award under this Part.

8 Meaning of “final award”

For the purposes of this Part an award shall not be deemed final if any
proceedings for the purpose of contesting the validity of the award are pending in
the country in which it was made.

9 Saving

Nothing in this Part shall –
(a) Prejudice any rights which any person would have had of enforcing
in Niue any award or of availing himself in Niue of any award if
this Part had not been enacted; or
(b) Apply to any award made on an arbitration agreement governed
by the law of Niue.

SCHEDULES SCHEDULE 1

PROTOCOL ON ARBITRATION CLAUSES

The Undersigned, being duly authorised, declare they accept, on behalf of the countries

which they represent, the following provisions:

1 Each of the Contracting States recognises the validity of an agreement whether

relating to existing or future differences between parties subject respectively to the

jurisdiction of different Contracting States by which the parties to a contract agree to

submit to arbitration all or any differences that may arise in connection with such contract

relating to commercial matters or to any other matter capable of settlement by arbitration,

whether or not the arbitration is to take place in a country to whose jurisdiction none of

the parties is subject.

132 Niue Laws 2006 Vol 1

Each Contracting State reserves the right to limit the obligation mentioned above to contracts which are considered as commercial under its national law. Any Contracting State which avails itself of this right will notify the Secretary-General of the League of Nations, in order that the other Contracting States may be so informed.

2 The arbitral procedure, including the constitution of the arbitral tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.

The Contracting States agree to facilitate all steps in the procedure which require to be taken in their own territories, in accordance with the provisions of their law governing arbitral procedure applicable to existing differences.

3 Each Contracting State undertakes to ensure the execution by its authorities and in accordance with the provisions of its national laws of arbitral awards made in its own territory under the preceding articles.

4 The tribunals of the Contracting Parties, on being seized of a dispute regarding a contract made between persons to whom article 1 applies and including an arbitration agreement, whether referring to present or future differences, which is valid in virtue of the said article and capable of being carried into effect, shall refer the parties on the application of either of them to the decision of the arbitrators.

Such reference shall not prejudice the competence of the judicial tribunals in case the agreement or the arbitration cannot proceed or become inoperative.

5 The present protocol, which shall remain open for signature by all States, shall be ratified. The ratifications shall be deposited as soon as possible with the Secretary- General of the League of Nations, who shall notify such deposit to all the signatory States.

6 The present protocol shall come into force as soon as 2 ratifications have been deposited. Thereafter it will take effect, in the case of each Contracting State, one month after the notification by the Secretary-General of the deposit of its ratification.

7 The present protocol may be denounced by any Contracting State as giving one year ’s notice. Denunciation shall be effected by a notification addressed to the Secretary-General of the League, who will immediately transmit copies of such notification to all the other signatory States and inform them of the date on which it was received. The denunciation shall take effect one year after the date on which it was notified to the Secretary-General, and shall operate only in respect of the notifying State.

8 The Contracting States may declare that their acceptance of the present protocol does not include any or all of the under-mentioned territories – that is to say, their colonies, overseas possessions or territories, protectorates, or the territories over which they exercise a mandate.

The said States may subsequently adhere separately on behalf of any territory thus excluded. The Secretary-General of the League of Nations shall be informed as soon as possible of such adhesions. He shall notify such adhesions to all signatory States. They will take effect one month after the notification by the Secretary-General to all signatory States.

The Contracting States may also denounce the protocol separately on behalf of any of the territories referred to above Article 7 applies to such denunciation.

SCHEDULE 2

Convention on the Execution of Foreign Arbitral Awards

Article 1

In the territories of any High Contracting Party to which the present convention applies,

an arbitral award made in pursuance of an agreement, whether relating to existing or

future differences (hereinafter called “a submission to arbitration”) covered by the Protocol

on Arbitration Clauses, opened at Geneva on 24 September 1923, shall be recognised as

binding and shall be enforced in accordance with the rules of the procedure of the territory

where the award is relied upon, provided that the said award has been made in a territory

of one of the High Contracting Parties to which the present convention applies and between

persons who are subject to the jurisdiction of one of the High Contracting Parties.

Arbitration Clauses (Protocol) Act 1933

133

To obtain such recognition or enforcement, it shall, further, be necessary –

(a) That the award has been made in pursuance of a submission to arbitration

which is valid under the law applicable to it;

(b) That the subject matter of the award is capable of settlement by arbitration

under the law of the country in which the award is sought to be relied

upon;

(c) That the award has been made by the arbitral tribunal provided for in the

submission to arbitration, or constituted in the manner agreed upon by

the parties and in conformity with the law governing the arbitration

procedure;

(d) That the award has become final in the country in which it has been made,

in the sense that it will not be considered as such if it is open to opposition,

appel or pourvoi en cassation (in the countries where such forms of procedure

exist) or if it is proved that any proceedings for the purpose of contesting

the validity of the award are pending;

(e) That the recognition or enforcement of the award is not contrary to the

public policy or to the principles of the law of the country in which it is

sought to be relied upon.

Article 2

Even if the conditions laid down in article 1 are fulfilled, recognition and enforcement of

the award shall be refused in the Court is satisfied –

(a) That the award has been annulled in the country in which it was made;

(b) That the party against whom it is sought to use the award was not given

notice of the arbitration proceeding in sufficient time to enable him to

present his case; or that, being under a legal incapacity, he was not properly

represented;

(c) That the award does not deal with the differences contemplated by or

falling within the terms of the submission to arbitration or that it contains

decisions on matters beyond the scope of the submission to arbitration.

If the award has not covered all the questions submitted to the arbitral tribunal,

the competent authority of the country where recognition or enforcement of the award is

sought can, if it think fit, postpone such recognition or enforcement or grant it subject to

such guarantee as that authority may decide.

Article 3

If the party against whom the award has been made proves that, under the law

governing the arbitration procedure, there is a ground, other than the grounds referred to

in article 1 (a) and (c), and article 2 (b) and (c), entitling him to contest the validity of the

award in a Court of law, the court may, if it thinks fit, either refuse recognition or

enforcement of the award or adjourn the consideration of it, giving such party a reasonable

time within which to have the award annulled by the competent tribunal.

Article 4

The party relying upon an award or claiming its enforcement must supply, in particular:

(1) The original award or a copy of duly authenticated under the requirements

of the law of the country in which it was made;

(2) Documentary or other evidence to prove that the award has become final, in

the sense defined in article 1 (d), in the country in which it was made;

(3) When necessary, documentary or other evidence to prove that the conditions

laid down in article (1) and (2) (a) and (c) have been fulfilled.

A translation of the award and of the other documents mentioned in this article

into the official language of the country where the award is sought to be relied upon may

be demanded. Such translation must be certified correct by a diplomatic or consular agent

of the country to which the party who seeks to rely upon the award belongs or by a

sworn translator of the country where the award is sought to be relied upon.

134 Niue Laws 2006 Vol 1

Article 5

The provisions of the above articles shall not deprive any interested party of the

right of availing himself of an arbitral award in the manner and to the extent allowed by

the law or the treaties of the country where such award is sought to be relied upon.

Article 6

The present convention applies only to arbitral awards made after the coming

into force of the Protocol on Arbitration Clauses, opened at Geneva on 24 September

1923.

Article 7

The present convention, which will remain open to the signature of all the

signatories of the Protocol of 1923 on Arbitration Clauses, shall be ratified.

It may be ratified only on behalf of those members of the League of Nations and

non-member States on whose behalf the Protocol of 1923 shall have been ratified.

Ratifications shall be deposited as soon as possible with the Secretary-General of

the League of Nations, who will notify such deposit to all the signatories.

Article 8

The present convention shall come into force 3 months after it shall have been

ratified on behalf of 2 High Contracting Parties. Thereafter, it shall take effect, in the case

of each High Contracting Party, 3 months after the deposit of the ratification on its behalf

with the Secretary-General of the League of Nations.

Article 9

The present convention may be denounced on behalf of any member of the League

or non-member State. Denunciation shall be notified in writing to the Secretary-General

of the League of Nations, who will immediately send a copy of it, certified to be in

conformity with the notification, to all other Contracting Parties, at the same time informing

them of the date on which he received it.

The denunciation shall come into force only in respect of the High Contracting

Party which shall have notified it, and one year after such notification shall have reached

the Secretary-General of the League of Nations.

The denunciation of the Protocol on Arbitration Clauses shall entail, ipso facto, the

denunciation of the present convention.

Article 10

The present convention does not apply to the colonies, protectorates, or territories

under suzerainty or mandate of any High Contracting Party unless they are specially

mentioned.

The application of this convention to one or more of such colonies, protectorates

or territories to which the Protocol on Arbitration Clauses, opened at Geneva on 24

September 1923, applies, can be effected at any time by means of a declaration addressed

to the Secretary-General of the League of Nations by one of the High Contracting Parties.

Such declaration shall take effect 3 months after the deposit of it.

The High Contracting Parties can at any time denounce the convention for all or

any of the colonies, protectorates, or territories referred to above. Article 9 hereof applies

to such denunciation.

Article 11

A certified copy of the present convention shall be transmitted by the Secretary-General

of the League of Nations to every member of the League of Nations and to every non­

member State which signs the same.

135

ARCHIVES ACT 1992

1992/166 – 5 November 1992

1	Short title
PART 1
PRELIMINARY
2	Interpretation
3	Application
PART 2
ADMINISTRATION
4	Archives Office
5	Archivist
6	Delegation of the Archivist’s powers
PART 3
CUSTODY AND PRESERVATION OF ARCHIVES
7	Deposit of public records

To provide for the better preservation of the public records of Niue

1 Short title

This is the Archives Act 1992.

2 Interpretation

In this Act –
PART 1
PRELIMINARY
“Archives Office” means the National Archives of Niue established under this Act;
“Archivist” means the Archivist appointed under this Act;
“Government office” means any ministry, department, office, agency or
instrument of any kind of the legislative or executive or judicial
government of Niue; and includes any office or corporation or other
body declared by Cabinet to be a Government office for the purposes
of this Act;
“public records” means all such documentary materials of any kind, nature,
or description which have been drawn up, made, received, acquired or
used in the course of legislative, administrative or executive transactions
or in proceedings in any Court, together with all exhibits and other
material evidence which form part or are annexed to or are otherwise
related to specific documents, which are or are required to be in the
custody of any servant of the Government or Government office, or
which may at the commencement of this Act or thereafter be transferred
to or acquired by the Archives Office.
136 Niue Laws 2006 Vol 1

3 Application

Nothing in this Act or in any regulations made under this Act shall apply
with respect to any public record which has been drawn up, received, acquired or
used by any Government office if such record discloses any information which is
required to be kept secret under any enactment.

4 Archives Office

PART 2
ADMINISTRATION
(1) There shall continue to be established an Archives Office to be known as the “National Archives of Niue” wherein shall be stored for better preservation such of the public records of Niue as are transferred to or acquired by the Archives Office under this Act.
(2) Subject to any general or special directions which may be given by Cabinet, the Archivist may by contract or bequest or in any like manner acquire for the Archives Office all such original records, manuscripts and other documentary materials, or copies, or replicas of it, other than public records, as the Archivist may deem necessary or desirable to secure, and all such materials shall be deemed to be public records of Niue for the purposes of this Act.

5 Archivist

There shall be appointed as a member of the Public Service an Archivist
who shall, subject to any directions given to the Archivist by Cabinet, be charged
with the care, custody, control and administration of the public records in the
Archives Office and the public access to it and with the performance of any other
duties prescribed by this Act.

6 Delegation of the Archivist’s powers

(1) The Archivist may delegate in writing to any person or class of persons
any of his powers under this Act, except the power of authorising the destruction
or disposal of public records.
(2) (a) Subject to any general or special directions given or conditions
attached by the Archivist, the person to whom any powers are
delegated under this section may exercise those powers in the same
manner and with the same effect as if they had been conferred on
such person directly by this section and not by delegation.
(b) No such delegation shall prevent the exercise of any power by the
Archivist.
(3) Every person purporting to act pursuant to any delegation shall, in the
absence of proof to the contrary, be presumed to be acting under the terms of the
delegation.
(4) Every delegation under this section shall, until it is revoked, continue
in force under its tenor, notwithstanding the fact that the Archivist by whom it
was made may have ceased to hold office, and shall continue to have effect as if
made by his successor in office.

Archives Act 1992

137
PART 3
CUSTODY AND PRESERVATION OF ARCHIVES

7 Deposit of public records

(1) All public records of the age of 15 years or over (other than those which
under any Act are required to be held in the custody of a special person or Government office) which in the opinion of the Archivist are of sufficient value to warrant their preservation as –
(a) Evidence of the organisation, functions, and transactions of the Government office in which they were originally made or received; or
(b) Evidence of public or private personal or property rights or civic rights; or
(c) Containing historical or general information, shall be transferred to the custody of the Archivist and be deposited in the Archives Office.
(2) Notwithstanding subsection (1) –
(a) Where the Archivist is satisfied that the deposit in the Archives
Office of any particular public record of the age of 15 years or over
would unduly prejudice the effective administration of any
Government office, the Archivist shall defer the deposit of that
public record for such period as may be agreed upon between the
Archivist and the administrative head of the Government office
affected;
(b) Where the administrative head of the Government office having
the possession or control of any public record satisfies the Archivist
that by reason of its secret or confidential nature it would not be in
the public interest immediately to deposit that record in the Archives
Office, the Archivist shall defer the deposit of that public record for
such period as may be agreed upon between that administrative
head and the Archivist;
(c) Where the Minister in charge of any Government office certifies
that in his opinion any specified public record or specified class of
public records in the custody or control of the Government office
contains information the release of which may adversely affect the
security of Niue or relations between the Government of Niue and
the Government of any other country, the deposit in the Archives
Office or that public record or of public records of that class shall be
deferred for such period or shall be made subject to such conditions
as to access or otherwise as that Minister directs;
(d) Where the deposit of any public record in the Archives Office is
deferred as aforesaid, the Archivist may prescribe any conditions
the Archivist thinks fit to ensure the safe preservation of any such
record during the time they are kept in a Government office.
(3) Any public records deposited under subsection (2) may be deposited
unconditionally or, if the administrative head of the Government office making
the deposit so requires, shall be deposited subject to such conditions as to access
and otherwise as may be agreed upon by the Archivist and the administrative
head of that office.
(4) Where the administrative head of any Government office and the
Archivist are unable to agree as to whether or not the deposit of any records in the
Archives Office should be deferred or as to the period for which that deposit should
be deferred or as to the conditions as to access and otherwise on which any public
records should be deposited, that question shall be determined by Cabinet, whose
decision shall be final.
138 Niue Laws 2006 Vol 1

8 Records of less than 15 years

(1) The Archivist may allow the deposit in the Archives Office of public
records of less than 15 years of age if the Archivist considers that they are of
sufficient value for deposit.
(2) Any deposit of public records under subsection (1) may be subject to
any special conditions imposed by the administrative head of the Government
office making the deposit.

9 Records not in the Archives Office

(1) The Archivist shall be entitled to inspect any public records that are for
the time being in the possession or under the control of any Government office
and give such instructions as to their safe preservation and such advise as to their
efficient and economical administration and management as the Archivist
considers necessary.
(2) Nothing in this section shall be deemed to authorise the Archivist to
inspect the contents of any public records –
(a) Which by law are forbidden to be communicated to the Archivist;
or
(b) Which are secret or confidential;
except with the consent of the administrative head of the Government office having
the custody of it.

10 Return of public records

Where the administrative head of the Government office by which any
public record was deposited in the Archives, or the administrative head of the
successor of that Government office, satisfies the Archivist that the public record
is required for use in that Government office, the Archivist shall return such public
record to the custody of that Government office for such period as may be agreed
upon between the Archivist and the administrative head, and subject to such
conditions as the Archivist may prescribe to ensure the safe custody and
preservation of that public record during the time it is kept in that Government
office.

11 Public records to be surrendered

Where any public record is in the custody or possession of any person other
than a public officer or other person authorised to have such custody or possession
in his official capacity, that person shall, on demand in writing by the Archivist,
deposit that public record in the Archives Office or such other Government office
as the Archivist may direct.

12 Public records not to be destroyed

(1) No person shall destroy or otherwise dispose of, or authorise the
destruction or other disposal of, any public record of any kind whatsoever that is
in his possession or under his control, except with the consent of the Archivist
given under this Act.
(2) Before authorising the destruction of any public record or any class of
it, the Archivist may consult with any person whom the Archivist considers
qualified to give advice as to the value of permanent preservation.

13 Routine destruction of public records

The Archivist may authorise the immediate destruction, or the destruction
after the expiration of such specified time as may be agreed upon between the

Archives Act 1992

139
Archivist and the administrative head of the Government office concerned, or any specified public record or class of public records that –
(a) By reason of their number, kind or routine nature do not possess any enduring value for preservation in the Archives Office; and
(b) Are not required for reference purposes in any Government office after action on them is completed, or after the expiration of such period of years from the date on which action on them is completed as may be agreed upon between the Archivist and the administrative head of the Government office concerned.

14 Access to public records

(1) Except as may be otherwise provided by enactment, and subject to the
conditions under which any records are deposited, all records deposited in the
Archives Office shall be available for public reference:
Provided that –
(a) The Archivist may, for any good cause, withhold access to any
specified public record or any specified class of public records in
his custody subject to the right of the person so denied access to
appeal to Cabinet, whose decision on it shall be final;
(b) Any public record deposited in the Archives Office by any court
and containing any information relating to the trial or punishment
of any particular person, may be inspected only by a person
authorised by the Chief Justice in that behalf.
(2) Nothing in this section shall limit the powers of any competent Court
to order the production of any public record of Niue.
(3) Notwithstanding the other provisions of this section and subject to
subsection (1) (b), Cabinet may, by causing written notice to be given to the
Archivist, withhold access either generally or by any person or class of persons to
any specified public record or to any specified class of public records in the custody
of the Archivist.
(4) Any person may, with the consent of the Archivist, make or cause to be
made at his own expense copies of or extras from any public archives which are
available for public reference under this section.

15 Publication of public records

On the recommendation of the Archivist, Cabinet may authorise the
publication of any public records deposited in the Archives Office and available
for public reference which Cabinet considers to be of sufficient interest to warrant
their publication.

16 Copyright

(1) Nothing in this Act shall derogate from any provision of the law relating
to copyright in relation to anything contained in any public records deposited in
the Archives Office.
(2) Where any person publishes any work containing any passage from
any public record deposited in the Archives Office, he shall in that publication
acknowledge the source from which that passage is taken.
140 Niue Laws 2006 Vol 1
PART 4
MISCELLANEOUS PROVISIONS

17 Archives Office seal

The Archivist shall cause to be made a seal for the Archives Office with
which all certified copies issuing out of the Office shall be sealed.

18 Certified copies

Any copy of any public record of Niue in the custody of the Archivist which
is certified by the Archivist to be a true copy of such public record shall be received
as evidence of the contents of such record in all courts within Niue.

19 Regulations

(1) Subject to subsection (3), Cabinet may make regulations for any purpose
for which regulations are contemplated by this Act and all such other regulations
as may in Cabinet’s opinion be necessary or expedient for giving effect to this Act
and for the due administration of it.
(2) Without limiting the generality of subsection (1), Cabinet may make
regulations –
(a) Regulating the transfer of public records from any Government
office to the Archives Office or any record centre or other repository
which may be established for the purposes of this Act;
(b) Regulating the manner of destruction or other disposal of valueless
public records;
(c) Regulating the admission of the public to the Archives Office and
the use by the public of public records of Niue deposited in the
Archives Office, and the fees to be charged for such admission;
(d) Providing for the custody and preservation of records deposited in
the Archives Office under section 4 (2) and prescribing the fees to
be charged for that custody and preservation.
(3) The Chief Justice may make rules of court with regard to matters referred
to in subsection (1) (a), (b) or (c) in cases where the public documents concerned
relate to proceedings in any court.

20 Offences and penalties

(1) Every person shall commit an offence who –
(a) Wilfully or negligently damages any public records; or
(b) Wilfully or negligently disposes of or destroys any public records
otherwise than under this Act; or
(c) Does any act in contravention of or fails to comply with this Act.
(2) Every person who commits an offence against this Act shall be liable
on conviction to a fine not exceeding 10 penalty units.
(3) The court by which any person is convicted of an offence against
subsection (1) may, in addition to any penalty imposed for the offence, direct that
such person shall not be entitled to have access to the Archives Office for such
period as the court thinks fit.
141

ARMS ACT 1975

1975/4 – February 1975

13A Offence to discharge firearm near residence

To make provision for the importation acquisition and possession of firearms and ammunition

1 Short title

This is the Arms Act 1975.

2 Interpretation

In this Act –
“Arms Officer” means a person appointed as an Arms Officer by the Niue
Public Service Commission for the purpose of this Act, and in default
of such appointment means the Chief Officer of Police;
“explosive” includes any article of which an explosive forms a part and
which is capable of a destructive effect by way of an explosion;
“firearm” includes any weapon from which a missile can be discharged by
the force of an explosion or by the force of any compressed gas or
compressed air, and includes a weapon which for the time being is not
capable of discharging a missile but which by the replacement of any
component part or parts, or the correction of any defect, would be so
capable, and also includes any weapon which is for the time being
dismantled, but subject to section 13 (4) does not include any firearm
of the type commonly known as humane killers, or bolt or stun guns;
“owner” as used in relation to a firearm includes any person for the time
being in possession of or having control of it;
“pistol” means any firearm which is designed or adapted to be held and
fired with one hand; and includes any firearm that is less than 30 inches
in length;
142 Niue Laws 2006 Vol 1
“shot-gun” means a firearm having a smooth-bore barrel and primarily designed for sporting purposes and to discharge pellets of shot only;
“unlawful weapon” means any pistol, machine gun, rifle, air-gun, and any other class of firearm except a shot-gun.

3 Permits for import of firearms

(1) No person shall bring or cause to be brought or sent into Niue any
ammunition or any firearm otherwise than under a permit issued to him for that
purpose by the Arms Officer in the appropriate form contained in Schedule 1 and
on payment of the appropriate fee prescribed in Schedule 4.
(2) Before issuing such a permit the Arms Officer may require the applicant
to produce for examination and testing the firearm or such samples of any firearms
or ammunition referred to in the application as he shall think fit and may in his
discretion refuse to grant a permit for any or all of the firearms or ammunition
referred to in the application.
(3) The issue of any permit under this section shall be subject to such
conditions as the Arms Officer may impose.
(4) The Arms Officer may at any time revoke any permit to import firearms
or ammunition issued under this section.
(5) If any constable or any officer of Customs has reasonable grounds to
suspect that firearms have been brought into Niue in breach of this section, or
have been brought into Niue territorial waters and are intended to be brought
into Niue in breach of this section, that constable or officer may seize such firearms
or ammunition and detain the same.
(6) Notwithstanding subsection (1) it shall not be lawful for any person to
import into Niue otherwise than in a manufactured cartridge for any firearms any
dynamite, gelignite, nitroglycerine, blasting powder, or any other explosive of
any nature whatever except by and on behalf of the Government of Niue.

4 Permits for possession

(1) Subject to this Act, no person shall, whether by way of purchase or in
any other manner, procure possession of any firearm or ammunition otherwise
than under a permit issued to him for that purpose by the Arms Officer in the
form contained in Schedule 2.
(2) No person shall, whether by way of sale or in any other manner, deliver
possession of any firearm or ammunition to any person other than to a person
entitled to obtain the firearm or ammunition by virtue of any permit referred to in
subsection (1).
(3) A permit may be issued by the Arms Officer on payment of the fee
prescribed in Schedule 4.
(4) Every person who commits or attempts to commit a breach of this
section is guilty of an offence and shall be liable on conviction to imprisonment
for a term not exceeding 3 months or to a fine not exceeding 2 penalty units or to
both such fine and imprisonment, and the burden of proving the existence and
terms of any such permit as aforesaid shall be on the defendant.
(5) Every permit issued under this section shall remain in force for such
period not exceeding 28 days as may be specified in the permit.
(6) Every such permit issued may be revoked by the Arms Officer at any
time.

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143

5 Sale to and possession by young persons

(1) It shall not be lawful to sell or supply any firearm or ammunition to
any person apparently under the age of 18 years.
(2) No person under the age of 18 years shall use or carry or have in his
possession any firearm, explosive or ammunition.
(3) Any person who commits or attempts to commit a breach of this section
shall be liable to a fine not exceeding 0.5 penalty units.

6 Registration of firearms

(1) No person shall be in possession of any firearm for a period longer
than 28 days unless he is registered as the owner of it under this section.
(2) Registration under this section shall be affected by paying the fee
prescribed in Schedule 4 and obtaining a certificate of registration from the Arms
Officer in the form contained in Schedule 3.
(3) The Arms Officer may, before issuing a certificate of registration, require
the firearm to be produced for his inspection and may refuse to issue a certificate
if he considers that the firearm is in an unsafe condition, and may, if he considers
the firearm to be a danger to the public, confiscate such firearm.
(4) A certificate of registration may, in the discretion of the Arms Officer,
include the name of any employee or of any member of the family of the owner
who has attained the age of 18 years, and, notwithstanding anything to the contrary
contained in this Act, any person whose name is for the time being included in a
certificate as aforesaid may be given lawful possession of the firearm.
(5) Any such name may be included in a certificate of registration at any
time by the Arms Officer and may, at the request of the owner, be removed at any
time.
(6) Any person whose name is included in a certificate of registration under subsection (4) or subsection (5) shall for the purpose of section 7, be deemed to be registered as an owner of the firearm.
(7) (a) Every certificate of registration issued under this section shall expire on 30 June next following the issue and may be renewed by application made to a constable and on payment of the prescribed fee.
(b) Such application shall contain such particulars as may be prescribed by the Arms Officer.
(8) (a) The Arms Officer may, before renewing any certificate of registration, call on the registered owner to produce the firearm for his inspection and if he considers such firearm to be unsafe he shall seize the firearm and refuse to renew the certificate of registration.
(b) Any registered owner who fails to account for the non-possession of such firearm shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 1 penalty unit.
(9) If any certificate issued under this section is accidentally destroyed, defaced or lost the Arms Officer may, if he is satisfied as to the destruction, defacement or loss of such certificate, and upon payment of the prescribed fee issue to the person in whose name the certificate was originally granted a new certificate and endorse on it a statement reciting such destruction, defacement, or loss and such new certificate shall have the same force and effect as the original certificate.
(10) (a) Every person who commits a breach of this section is guilty of an
offence and shall be liable on conviction to a fine not exceeding 1
penalty unit.
144 Niue Laws 2006 Vol 1
(b) In any prosecution for such an offence, if the defendant is proved to have been in possession of the firearm, the burden of proving that he was the holder of a valid certificate of registration in respect thereof for more than 28 days or that he was lawfully in possession of it under this section shall lie on the defendant.

7 Registration may be refused or existing certificate revoked

(1) No person shall be registered as the owner of any firearm who, in the
opinion of the Arms Officer, is not a fit and proper person to be in possession of
the firearm.
(2) If any person who is registered as the owner of any firearm is, in the
opinion of the Arms Officer, not a fit and proper person to be in possession of the
firearm or if, in the opinion of the Arms Officer, the firearm is unsafe, the Arms
Officer may, by notice in writing under his hand, revoke the certificate of
registration, and the person so registered shall on demand surrender the certificate
to any constable.
(3) On the revocation of a certificate of registration under this section the
person to whom the certificate was issued shall cease to be the registered owner
of the firearm to which it relates, whether or not the certificate had been
surrendered.

8 Unregistered firearm to be surrendered

(1) On the revocation of any certificate of registration under section 7 or
on the refusal of the Arms Officer to issue a certificate of registration or on refusal
of renewal of registration under an application under section 9, the owner or other
person for the time being in possession of the firearm to which the certificate or
application relates, shall, on demand deliver the firearm to a constable.
(2) The owner of any firearm in respect of which an application for a
certificate of registration or renewal of registration has been refused may, at any
time within 3 months thereafter or such longer period as the Arms Officer allows,
sell or otherwise dispose of the firearm to a person approved for the purpose by
the Arms Officer unless the Arms Officer considers that the weapon is unsafe, in
which case he shall prohibit such sale or disposition.
(3) Subject to subsection (2), all firearms delivered to the Arms Officer under
this section may be detained by him, and may, in the discretion of the Minister of
Police become the property of the Government of Niue, free and discharged from
all right, title, or interest possessed in respect of it by any other person.
(4) The Minister of Finance shall without further appropriation than this
section pay out of the Treasury fund compensation for the value of all firearms
delivered to the Arms Officer under this section and which have become the
property of the Government of Niue as provided, the amount of such compensation
to be agreed upon between the Minister and the owner, and in default of agreement
to be determined by the Court.
(5) Every person who commits a breach of this section is guilty of an offence
and shall be liable on conviction to imprisonment for a term not exceeding 3 months
or to a fine not exceeding 2 penalty units.

9 Possession of unlawful weapon

(1) Except as provided in subsection (2), every person who is at any time
in possession of an unlawful weapon, or of any part or parts of an unlawful
weapon, or of any part or parts specially intended or adapted for use as part of an
unlawful weapon, or any ammunition for an unlawful weapon, shall forthwith

Arms Act 1975

145
cause the weapon or the parts or the ammunition to be destroyed, exported from
Niue or delivered to the Arms Officer.
(2) (a) The Minister of Police may, in writing authorise any person in any
special case and for any special reason to have in his possession
any unlawful weapon subject to such conditions as to use or custody
as the Arms Officer may impose.
(b) Any such authorisation may be revoked at any time by the Minister
without notice.
(3) Every person who is in possession of any weapon or parts or
ammunition contrary to this section or who fails to comply with any condition
imposed under subsection (2) commits an offence and shall be liable on such
conviction to a term of imprisonment not exceeding 3 months or to a fine not
exceeding 2 penalty units or to both.

10 Carriage or possession of arms

(1) No person shall carry or be in possession of any firearm, ammunition,
explosive, or dangerous weapon except for some lawful, proper, and sufficient
purpose and the burden of proving such purpose shall lie on the defendant.
(2) No person who, while under the influence of drink or drugs to such an
extent as to be incapable of having proper control of the firearm, shall be in charge
of any firearm.
(3) Every person who commits a breach of this section commits an offence
and shall be liable on conviction to imprisonment for a term not exceeding 3 months
or to a fine not exceeding 2 penalty units or to both.

11 Unlawful acquisition of firearms

Every person who procures or attempts to procure or conspires to procure
the possession of any firearm, ammunition or explosive by way of trespass or
otherwise without lawful right or title commits an offence and shall be liable on
conviction to imprisonment for a term not exceeding 3 months or to a fine not
exceeding 2 penalty units or to both.

12 Presenting firearms at any person

(1) Every person who except for some lawful and sufficient purpose,
presents a firearm, whether loaded or unloaded, at any other person, commits an
offence and shall be liable on conviction to a term of imprisonment for a term not
exceeding 3 months or to a fine not exceeding 2 penalty units or to both.
(2) Every person who, except for some lawful or sufficient purpose,
presents at any person anything which, in the circumstances, is likely to lead that
person to believe that it is a firearm commits an offence, and shall be liable on
conviction to imprisonment for a term not exceeding 3 months or to a fine not
exceeding 2 penalty units or to both.

13 Careless use of a firearm

(1) Every person who causes bodily injury to or the death of any person
by carelessly using a firearm commits an offence and shall be liable on conviction
to imprisonment for a term not exceeding one year or to a fine not exceeding 5
penalty units, or to both.
(2) Every person who has in his charge or under his control a firearm
loaded, with a cartridge or cartridges, whether in its breech, barrel, chamber or
magazine, and who leaves that firearm in any place in such circumstances as to
endanger the life of any person without taking reasonable precautions to avoid
146 Niue Laws 2006 Vol 1
any such danger commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding 2 penalty units or to both.
(3) It shall be no defence to the crime of manslaughter that the guilty act or omission proved against the person charged upon the indictment is an act or omission constituting an offence against this section.
(4) For the purposes of this section ‘firearm’ shall be deemed to include any firearm of the type commonly known as humane killers, or bolt or stun guns.

13A Offence to discharge firearm near residence

(1) A person must not discharge a firearm within 100 metres of a building
being used as a residence.
(2) A person who fails to comply with subsection (1) is guilty of an offence
and is liable on conviction to a fine not exceeding 5 penalty units or for a second
or subsequent offence to a fine not exceeding 10 penalty units or imprisonment
for a term not exceeding 6 months or both such fine and imprisonment.
(3) Subsection (1) does not apply to a constable in the execution of his or
her duties.

14 Obstruction of police

Every person who obstructs a constable in the exercise of any right or search,
seizure, or detention conferred by this Act commits an offence, and shall be liable
on conviction to imprisonment for a term not exceeding 3 months or to a fine not
exceeding 1 penalty unit or to both.

15 Arrest of offenders

Any person reasonably suspected of having committed an offence against
this Act which is punishable by imprisonment may be arrested by any constable
without warrant.

16 Occupier of premises deemed to be in possession of arms

For the purposes of this Act every person in occupation of any land or
building on which any firearms, ammunition, or explosives are found shall, though
not to the exclusion of the liability of any other person, be deemed to be in
possession of those arms, ammunition, or explosives, unless he proves that they
were in the possession of some other person or satisfies the court that he had no
reasonable ground for believing that they were on such land or building.

17 Search of suspected persons

(1) If a constable has reasonable grounds to suspect that any person being
in a public place is carrying or is in possession of any firearm, ammunition, or
explosive in breach of this Act the member may without warrant search that person
or any vehicle, package, or other thing there in his possession or under his control,
and may detain that person for the purpose of any such search, and may seize any
such firearm, ammunition, or explosive, and detain the same.
(2) If any constable has reasonable grounds to suspect that any person has
in his possession or under his control in any place any firearm, ammunition or
explosive, and that the person is of unsound mind, or is under the influence of
drink or a drug to such an extent as to be incapable of having proper control of the
firearm, ammunition, or explosive, or may kill or do bodily injury to himself or
any other person, the constable may, without warrant, search that person or place
and may detain that person for the purpose of any such search, and may seize any
such firearm, ammunition, or explosive and detain the same.

Arms Act 1975

147

18 Search of land or building for arms

If the Chief Officer of Police has reason to suspect that there is in any house,
building, land, vehicle, vessel, or other premises any firearms, ammunition, or
explosives in respect of which any offence against this Act has been or is about to
be committed or which may be evidence of any such offence, the Chief Officer of
Police, or constable authorised by him in writing may enter any such house,
building, land, vehicle, vessel, or premises, and either by day or by night, and
search the same or any part of it, and may seize any firearms, ammunition or
explosives found there, and detain the same.

19 Application to Government

Nothing in this Act shall render unlawful the importation, carriage or
possession of firearms, ammunition, or explosives belonging to the Government
of Niue and lawfully in the possession of any constable or any armed forces of the
Government.

20 Restoration of articles seized under this Act

On application to the Court a Judge may make such order as he thinks just
and expedient for the restoration of any firearms, ammunition, or explosives seized
and detained in pursuance of the right of search, seizure, or detention conferred
by this Act.

21 Forfeitures

When any person is convicted of using, carrying, or having in possession
any arms, ammunition, or explosives in breach of this Act, the convicting Court
may, as part of the conviction, order that any such arms, ammunition, or explosives
shall be forfeited, and shall hereupon become forfeited to the Government of Niue
accordingly, and may be disposed of in such manner as the Arms Officer directs.

22 Authorising disposal of firearms

Without limiting the operation of any other provisions of this Act as to the
disposal of firearms, ammunition, or explosives seized or detained under this
Act, any such firearms, ammunition, or explosives that have been detained for
not less than 2 years may be disposed of in such manner as the Arms Officer may
direct.

23 Persons acting under authority

No action, claim, or demand whatsoever shall lie or be made or allowed by
or in favour of any person against the Government of Niue, or any person lawfully
acting in execution or intended execution of this Act, save only in respect of any
compensation that is payable under the express provisions of this Act.

24 Regulations

(1) The Minister of Police, acting by and with the advice and consent of
Cabinet may make regulations for any purpose for which regulations are
contemplated by this Act and for the due administration of it.
(2) In particular, and without prejudice to the generality of the foregoing
power, such regulations may provide for the following matters –
(a) Prescribing the form of permits, and certificates under this Act and
the conditions and manner of their grant:
Provided that unless and until regulations shall be made adding to
or amending the forms of permits and certificates contained or the
148 Niue Laws 2006 Vol 1
fees specified in the Schedules, such forms of permits and certificates contained and such fees specified shall be the forms and the fees for the several matters referred to in the Schedules;
(b) Making provision for the marking of firearms with identifying marks before the issue of certificates of registration;
(c) Applying the provisions of this Act to any class of firearm not
included in this Act;
(d) Excluding any firearms from this Act;
(e) Declaring any firearm shotgun or weapon to be an unlawful
weapon;
(f) Generally for any other purpose deemed by the Minister of Police
to be necessary for giving effect to the full intent and purposes of
this Act.

25 [Spent]

SCHEDULES SCHEDULE 1

Form 1A Section 3

PERMIT TO IMPORT A FIREARM

ARMS ACT 1975 SECTION 3

No.

........................................................... of ....................................... (occupation) ......................... is permitted to bring or cause to be brought into Niue within .............................. months from the date hereof the firearm mentioned in the Schedule.

Dated at Alofi this ........................... day of ............................... 20 .......... .

Arms Officer

SCHEDULE

Type ................................................................... Country of Origin .......................................... Gauge or Calibre Lawful/Unlawful (delete that which is ......

inapplicable)

Conditions ........................................................

Arms Act 1975

Form 1B PERMIT TO IMPORT AMMUNITION No.

ARMS ACT 1975 SECTION 3

149

........................................................... , of ...................................... (occupation) ....................... is permitted to bring or cause to be brought into Niue within ............................................. months from the date hereof the ammunition described in the Schedule.

Arms Officer

SCHEDULE

Quantity .................................. Calibre .......................... Country of Origin ............................

.................................................. Conditions .................................................................................

........................................................... , of ...................................... (occupation) ....................... Date of Birth .................................... being a person of/or over the age of 16 years

is hereby permitted to obtain possession of the firearm mentioned in the Schedule.

Arms Officer

SCHEDULE

Type .................................................................. Gauge or Calibre ............................................. Description (numbers, marks, stamped on, etc.) .................................................................... Lawful weapon/Unlawful weapon (delete that which is inapplicable).

SCHEDULE 3

Form 3 Section 6

CERTIFICATE OF REGISTRATION OF FIREARM ARMS ACT 1975 SECTION 6

........................................................ , of ...................................... (Occupation) ......................... has this day been registered as the owner of: (Describe firearm – numbers, marks, calibre)

being a lawful/an unlawful (delete one) weapon.

The names of the following persons are included in this certificate under section 6(4) of the Arms Act 1975.

150 Niue Laws 2006 Vol 1

Full Name Address Occupation Age

Dated at Alofi this ........................... day of ............................... 20 .......... .

Arms Officer

SCHEDULE 4
Permit to import firearm $80.00
Certificate to register firearm for the first time $30.00
Annual licence $15.00
151

ASSEMBLY MEMBERS’ SUPERANNUATION ACT 1984
1984/98 – 1 April 1984
1 2 3 4	Short title Interpretation Assembly Members Superannuation Account Contributions by Members	5 6 7 8 9	Subsidy from Niue Government Account Retiring allowance Death of a Member [Spent] Provision for payment

To establish a superannuation scheme for

Members of the Assembly

1 Short title

This is the Assembly Members’ Superannuation Act 1984.

2 Interpretation

In this Act –
“Member” means a Member of the Assembly established under article 16
of the Niue Constitution and includes the Premier, Cabinet Ministers
and the Speaker;
“Superannuation Account” means the Assembly Members Superannuation
Account established under section 3.

3 Assembly Members’ Superannuation Account

(1) There is hereby established within the Niue Government Accounts an
account to be known as the Assembly Members’ Superannuation Account.
(2) There shall be paid into the Superannuation Account, without further
appropriation than this section, such sum or sums as may in the opinion of Cabinet
be required to provide a fund sufficient to provide for the payments under this
Act.
(3) Money from the Superannuation Account may be invested in such manner as Cabinet sees fit having regard to the need to ensure that the investment is secure at all times.
(4) The Superannuation Account shall be treated in all respects as if it were public money for the purposes of annual accounts and auditing.

4 Contributions by Members

(1) As from 1 April 1984 there shall be deducted from the salary of every
Member a superannuation contribution at the rate of 10 per cent of the basic salary
of a Member.
(2) A Member may elect, if he so wishes, to contribute a greater amount
from his salary.
152 Niue Laws 2006 Vol 1

5 Subsidy from Niue Government Account

The Cabinet shall pay out of the Niue Government Account without further
appropriation than this section into the Superannuation Account a subsidy in
respect of each member at a rate of 10 per cent of the basic salary of a Member for
each Member.

6 Retiring allowance

(1) Every Member who ceases to hold office as a Member shall be entitled
to either –
(a) The refund in full to him of his own contributions together with the interest that has been earned on those contributions; or
(b) A retiring allowance purchased by the Superannuation Account on
his behalf using the total of the Members’ own contributions,
together with the subsidy by the Government for that Member, and
the interest that has been earned.
(2) A Member who ceases to hold office in the Assembly may if he so wishes
defer indefinitely making a decision under subsection (1) in which case his own
contributions and the Government subsidy for the period that he was a Member
shall remain in the Superannuation Account and shall continue to earn interest.
(3) Where a Member who has ceased to hold office in the Assembly is
subsequently re-elected to the Assembly all entitlements shall come to an end
unless and until that person again ceases to be a Member of the Assembly at which
time all of his periods of time in office shall be aggregated for the purposes of
ascertaining his entitlement under subsection (1).

7 Death of a Member

(1) In the event of the death of a Member the spouse of that Member shall
be entitled to either –
(a) A refund in full of the contributions made by the deceased Member
together with the interest that had been earned on those
contributions; or
(b) (i) An allowance equivalent to 50 per cent of the retiring allowance
that the deceased Member would have been entitled to had he
ceased to be a Member immediately prior to his death;
(ii) Such allowance shall cease upon the remarrriage of the spouse.
(2) The allowance payable under this section shall be payable on and from
the day following the date of death of the Member.

8 [Spent]

9 Provision for payment

(1) Any allowances and other money payable under this Act shall be paid
out of the Superannuation Account without further appropriation than this Act.
(2) Where in any year the money in the Superannuation Account is
insufficient to meet all payments required to be made, Cabinet may, without further
appropriation than this section make an advance from the Niue Government
Account sufficient to meet the deficiency.
153

ATOMIC ENERGY ACT 1945

1945/41 (NZ) – 7 December 1945

1	Short title	10	Cabinet may mine
2	Interpretation	11	[Repealed]
3	[Repealed]	12	No person to possess fissionable substances
4	Notification of discovery	13	Experimental work
4A	Grant of rewards	14	Restriction on trading
4B	Grants to assist	15	Entry on land and premises
5	Cabinet may control mining	16	Granting of consents
6	Disposition of prescribed substances	17	Service of notices
7	Importation of prescribed substances	18	Offences
8	Uranium to be property of Crown	19	Regulations
9	No compensation for uranium

To make provision for the control in Niue of the means of producing atomic energy and for that purpose to provide for the control of the mining and treatment of the ores of uranium and other elements which may be used for the production of atomic energy, and to provide for the vesting of such substances in the Crown

1 Short title

This is the Atomic Energy Act 1945.

2 Interpretation

In this Act –
“atomic energy” means the energy released from atomic nuclei as a result
of any process, including the fission process; but does not include energy
released in any process of natural transmutation or radioactive decay
which is not accelerated or influenced by external means;
“minerals” means any mineral, mineral substance, or metal; and includes
precious metals, precious stones, and includes any prescribed substance;
“mining” means mining operations, and includes prospecting;
“mining operations” means operations in connection with mining for any
mineral, and includes –
(a) The removal of overburden by mechanical or other means, and the
stacking, deposit, storage and treatment of any substance considered
to contain any mineral;
(b) The deposit or discharge of any mineral, material, debris, tailings,
refuse, or waste-water produced from, or consequent on, any such
operations or purposes;
154 Niue Laws 2006 Vol 1
(c) The erection, maintenance, and use of plant and machinery, and the construction or use of roads, races, dams, railways, channels, batteries, buildings, dwellings, and other works connected with such operations or purposes; and
(d) The lawful use of land , water, pools and natural depositories of water (whether containing water or not) and the doing of all lawful acts incident or conducive to such operations;
“prescribed substance” means uranium, thorium, plutonium, neptunium, or any of their respective compounds, or any such other substance as Cabinet may prescribe, being a substance which in his opinion is or may be used for the production of atomic energy or research into matters connected therewith;
“uranium” includes thorium and all natural substances, chemical compounds, and physical combinations of uranium or thorium.

3 [Repealed by 2004/270]

4 Notification of discovery

Every person has discovered that any prescribed substance occurs at any
place in Niue shall, within 3 months after making the discovery, whichever is the
later, report the discovery by written notice (which shall specify the place where
the discovery took place and the date of the discovery) to the Secretary to the
Government.

4A Grant of rewards

(1) The Cabinet may, out of money appropriated by the Assembly for the
purpose, make such grants as the Cabinet thinks fit for the purpose of rewarding
any person discovering any prescribed substance.
(2) Any application for a grant under this section shall be made in writing
to the Secretary to the Government.
(3) Where, in the opinion of the Cabinet, any deposit containing any
prescribed substance has no immediate commercial value but, because of geological
interest, is sufficient to justify further prospecting, Cabinet may make a grant under
this section, not exceeding $400, to the person discovering the deposit.
(4) Where, in the opinion of the Cabinet of Ministers of Niue, any deposit
containing any prescribed substance is sufficient to have a potential value, the
Cabinet may make a grant under this section not exceeding $2,000, to the person
discovering the deposit.
(5) (a) Where, in the opinion of the Cabinet, any deposit containing any
prescribed substance will produce 25 tons or more of uranium oxide,
the Cabinet may make a grant under this section of $2,000, increased
at the rate of $800 for each 5 tons in excess of 25 tons of uranium
oxide which it is estimated that the deposit will produce, to the
person discovering the deposit.
(b) That the total of any grant under this subsection in respect of any
one discovery shall not exceed $50,000.
(6) Payment of any grant under this section may be made in one amount
or by instalments payable at such times as the Cabinet determines.
(7) Where 2 or more persons, either jointly or severally, make application
under this section for a grant in respect of the same discovery of a deposit
containing any prescribed substance, the Cabinet may direct that the grant, if
payable under this section, shall be paid to one applicant only or that it shall be

Atomic Energy Act 1945 155

apportioned between such of the applicants and in such proportions as the Cabinet thinks fit.
(8) Any application for a grant under this section may be granted or refused in the absolute discretion of the Cabinet and, subject to this section, the amount of any such grant shall be in the absolute discretion of the Cabinet.
(9) Any grant made under this section shall be exempt from income tax.

4B Grants to assist

(1) The Cabinet may, out of money appropriated by the Assembly for the
purpose make such grants as the Cabinet thinks fit for the purpose of assisting
any person prospecting for or producing any prescribed substance.
(2) Any grant under this section may be by way of cash payment, loan,
subsidy, or otherwise and may be made either unconditionally or subject to such
conditions as the Cabinet thinks fit.
(3) Any application for a grant under this section shall be made in writing
to the Secretary to the Government.
(4) Payment of any grant under this section may be made in one amount
or by instalments payable at such times as the Cabinet determines.
(5) The Cabinet may for the purposes of this section, in the name and on
behalf of Her Majesty, make and enforce such agreements, and execute such
instruments, as the Cabinet thinks fit.

5 Cabinet may control mining

(1) If the Cabinet is satisfied that any person is mining or is about to mine
any prescribed substance or is engaged or about to engage in carrying out any
physical, chemical, or metallurgical process as a result of which, in the opinion of
the Cabinet, any prescribed substance may reasonably be expected to be isolated
or extracted, the Cabinet may, by notice in writing given to that person, require
him in conducting the mining operations or in carrying out any process as aforesaid
to comply with and observe such terms and conditions as the Cabinet may in the
notice think fit to impose.
(2) Without prejudice to the generality of subsection (1), the Cabinet may
require that the mining operations shall be so conducted, or that such process for
treatment and concentration shall be used, as will provide for or facilitate the
extraction, isolation or concentration of the prescribed substance.

6 Disposition of prescribed substances

(1) All minerals, concentrates, or other materials containing any prescribed
substance which are extracted, isolated, or concentrated by any person shall only
be disposed of with the prior written consent of the Cabinet and subject to such
conditions as the Cabinet shall impose.
(2) The Cabinet may serve notice on any person who has produced any
mineral, concentrate, or other material containing any prescribed substance that
the Cabinet proposes to acquire, on behalf of Her Majesty, the mineral, concentrate
or other material, and upon the service of the notice and the payment of purchase
price under this section, the mineral, concentrate, or material shall become the
property of the Crown and shall be delivered to the Cabinet or as it shall direct.
(3) There shall be payable out of money appropriated by the Assembly for
the purpose in respect of the acquisition of any substance under this section a
sum equal to the price which the owner of it might reasonably have been expected
to obtain upon a sale of it effected by him immediately before the date of the
service of the notice referred to in subsection (2).
156 Niue Laws 2006 Vol 1

7 Importation of prescribed substances

(1) Subject to subsection (2), no person shall, without the prior written
consent of the Cabinet, import any prescribed substance.
(2) Samples of any minerals containing any prescribed substance may be
imported without the consent of the Cabinet if the weight of those samples does
not exceed 5 pounds.

8 Uranium to be property of Crown

(1) (a) Notwithstanding anything to the contrary in any Act or in any
Crown grant, certificate of title, lease, or other instrument of title,
all uranium existing in its natural condition on or below the surface
of any land within the territorial limits of Niue, whether the land
has been alienated from the Crown or not, is hereby declared to be
the property of the Crown.
(b) Nothing in this subsection or in section 9 shall be deemed to affect
the right of any person to receive payment in respect of any mineral,
concentrate, or other material containing any prescribed substance
mined or produced by that person under this Act.
(2) All alienations of land from the Crown, whether by way of sale or lease
or otherwise, shall be deemed to be made subject to the reservation of all uranium
existing in its natural condition on or below the surface of the land, and subject to
this Act.

9 No compensation for uranium

Compensation shall not be payable under any Acts in respect of any
uranium existing in its natural condition on or below the surface of any land.

10 Cabinet may mine

(1) The Cabinet may mine for any mineral containing any prescribed
substance and carry on such processes or operations as the Cabinet thinks fit for
the concentration, isolation, extraction and chemical purification of any prescribed
substance.
(2) For the purposes of this section the provisions of any enactment relating
to the application for, holding, purchase, or other acquisition of any licence
authorising the prospecting for or mining of any prescribed substance shall apply
to the Cabinet in all respects as they apply to any other person.

11 [Repealed 1976/4/26]

12 No person to possess fissionable substances

(1) No person shall, without the prior written consent of the Cabinet, import
or have in his possession or control any plutonium or other substance from which
atomic energy may be produced more readily than from uranium of natural isotope
composition.
(2) No person shall, without the prior written consent of the Cabinet,
import, construct, have in his possession or control, or operate any machine, atomic
pile, or apparatus which may be capable of producing atomic energy or which the
Cabinet has by notice in the Gazette for the purpose of this section declared to be
an essential part of any such machine, pile, or apparatus.
(3) No person shall, without the prior written consent of the Cabinet
import, manufacture, or have in his possession or control any material or substance
which that Cabinet has by notice in the Gazette for the purposes of this section
declared to be essential to any process for the production of atomic energy.

Atomic Energy Act 1945 157

13 Experimental work

(1) Notwithstanding the foregoing provisions of this Act, uranium and
thorium of natural isotope composition of an amount not exceeding the appropriate
amount mentioned in subsection (2) may be possessed and used for the purpose
of instruction and of investigation as to the properties and effects of radioactive
and like radiations at any university in Niue, at any school providing secondary
instruction, and at any laboratory under the control of a Department of State.
(2) (a) The amount of uranium and of thorium that may be possessed and
used as provided in subsection (1) shall be one pound each of
uranium and of thorium, calculated by metal content in the case of
a school providing secondary instruction, and 20 pounds each of
uranium and of thorium, calculated by metal content, in any other
case.
(b) Cabinet may by notice in the Gazette increase or reduce the amounts
that may be possessed and used as aforesaid.
(3) Notwithstanding the foregoing provisions of this Act any university in
Niue and any laboratory under the control of a Department of State, may import,
purchase, construct, have possession and control of, and operate any machine,
pile, or apparatus capable of the production of atomic energy at a rate not exceeding
1000 watts, or at such other rate and under such conditions as may be fixed by the
Cabinet by notice in the Gazette, and may retain and use for experimental purposes
the products produced.

14 Restriction on trading

No person shall, without the prior written consent of the Cabinet, export
or sell or otherwise dispose of any isotope of uranium, or any plutonium or other
substance from which atomic energy may be more readily obtained than from
uranium of natural isotope composition, except to the Crown.

15 Entry on land and premises

(1) It is hereby declared that any person authorised either specially or
generally by the Cabinet may enter on any premises on which any mining
operations are carried on or on which the person or officer so authorised has
reasonable grounds to suspect that there may be found minerals, concentrates, or
other materials which have been mined, extracted, isolated, or concentrated and
which contain any prescribed substance, for the purpose of ascertaining whether
or not there is any prescribed substance on the premises or in any minerals,
concentrates, or other materials, and for that purpose the person or officer so
authorised may make observations and tests and may extract and remove samples
for further testing.
(2) Every person commits an offence and is liable on conviction to a fine
not exceeding 1 penalty unit or to imprisonment for a term not exceeding 3 months
who wilfully obstructs or interferes with any person exercising or attempting to
exercise his powers under this section.

16 Granting of consents

In granting any consent or imposing any requirement under this Act the
Cabinet may impose such conditions as the Cabinet thinks fit.
158 Niue Laws 2006 Vol 1

17 Service of notices

(1) Any notice required to be given to any person for the purposes of this
Act may be given by causing it to be delivered to that person, or to be left at his
usual or last known place of abode or business or at the address specified by him
in any application or other document received from him for the purposes of this
Act, or to be posted in a letter addressed to him at that place of abode or business
or at that address.
(2) If any such notice is sent to any person by registered letter, it shall be
deemed to have been delivered to him when it would have been delivered in the
ordinary course of post, and in proving the delivery it shall be sufficient to prove
that the letter was properly addressed and posted.

18 Offences

Any person who fails to comply with, or contravenes, any provision,
prohibition, condition, or requirement contained in or imposed under this Act
commits an offence and, where no specific penalty is elsewhere provided, shall be
liable on conviction to a fine not exceeding 10 penalty units or to imprisonment
for a term not exceeding 6 months or to both such fine and such imprisonment.

19 Regulations

The Cabinet may make all such regulations as may in its opinion be
necessary or expedient for giving full effect to this Act and for its due
administration.
159

AVIATION CRIMES ACT 1973

1973/82 – 24 September 1973

1	Short title and commencement	9	Application of sections 3, 4 and 5
2	Interpretation	10	Powers of aircraft commander
3	Hijacking	11	Arrest of persons delivered to Police
4	Offences in connection with hijacking	12	Cabinet’s consent required for prosecution
5	Other offences relating to aircraft	13	Aircraft in military, customs, or police
5A Offences relating to airports		service
6	[Spent]	14	Joint registration of aircraft
7	Offences deemed to be included in 15	Other Acts not affected
extradition treaties
8	Surrender of offenders

To give effect to the provisions of the Hague Convention for the Convention for the Suppression of Unlawful Seizure of Aircraft, the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and the Tokyo Convention on Offence and Certain Other Acts Committed on Board Aircraft, and for matters incidental thereto

1 Short title and commencement

(1) This is the Aviation Crimes Act 1973.
(2) Sections 7, 8, 10 and 11 shall come into force on a date to be fixed by the
Cabinet by notice in the Gazette. Different dates may be so fixed in respect of
different sections.
(3) Except as provided in subsection (2), this Act shall come into force on
the date of its passing.

2 Interpretation

(1) In this Act –
“aircraft” means a machine that can derive support in the atmosphere from
the reactions of the air otherwise than by the reactions of the air against
the surface of the earth;
“commander”, in relation to an aircraft, means the pilot for the time being
in lawful command of the aircraft;
“military service” includes naval and air force service; and a certificate by
the Minister that any aircraft is or is not used in military service for the
purposes of this Act shall be conclusive evidence of the fact certified;
”Niue” includes the territorial sea of Niue;
“Niue aircraft” means an aircraft registered in Niue under the Civil Aviation
Act 1999;
“The Hague Convention” means the Convention for the Suppression of
Unlawful Seizure of Aircraft, done at the Hague on 16 December 1970
“The Montreal Convention” means the Convention for the Suppression of
160 Niue Laws 2006 Vol 1
Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971;
“The Tokyo Convention” means the Convention on Offences and Certain
Other Acts Committed on Board Aircraft, done at Tokyo on 14
September 1973.
(2) For the purposes of this Act, a person shall be deemed ordinarily
resident in Niue of –
(a) His home is in Niue; or
(b) He is residing in Niue with the intention of establishing his home
in it, or with the intention of residing in Niue indefinitely, he is
outside Niue but has an intention to return to establish his home in
it or to reside in Niue indefinitely.
(3) For the purposes of this Act, an aircraft is in flight from the time when
all its external doors are closed after embarkation until the time when any external
door is opened for disembarkation:
Provided that in the case of a forced landing an aircraft is in flight until the
time when the competent authorities of the country in which the forced landing
takes place, or, in the case of a forced landing in a place that is not within the
territorial limits of any country, the competent authorities of any country, assume
responsibility for the aircraft and for persons and property on board the aircraft.
(4) For the purposes of this Act, an aircraft is in service from the time when
pre-flight preparation of the aircraft by ground personnel or by the aircraft’s crew
begins for a specific flight until either –
(a) The flight is cancelled; or
(b) 24 hours after the aircraft, having commenced the flight, lands; or
(c) The aircraft, having commenced the flight, makes a forced landing
and any competent authorities referred to in subsection (3) assume
responsibility for the aircraft and for persons and property on board
the aircraft; or
(d) The aircraft, having commenced the flight, ceases to be in flight –
whichever is the latest.

3 Hijacking

Everyone commits the crime of hijacking and is liable on conviction to
imprisonment for life, who, while on board an aircraft in flight, whether in or
outside Niue, unlawfully, by force or by threat of force or by any form of
intimidation, seizes or exercises control, or attempts to seize or exercise control, of
that aircraft.

4 Offences in connection with hijacking

(1) Everyone who, while on board an aircraft in flight outside Niue, does
or omits anything which, if done or omitted by that person in Niue, would be an
offence, commits that offence if the act or omission occurred in connection with
the offence of hijacking.
(2) Without limiting the generality of subsection (1) an act or omission by
any person shall be deemed to occur in connection with the offence of hijacking if
it was done or omitted with intent –
(a) To commit or facilitate the commission of the offence of hijacking;
or
(b) To avoid the detection of himself or of any other person in the
commission of the offence or hijacking; or
(c) To avoid the arrest or facilitate the flight of himself or of any other
person upon the commission of the offence of hijack.

Aviation Crimes Act 1973

161

5 Other offences relating to aircraft

Everyone commits an offence and is liable on conviction to imprisonment
for a term not exceeding 14 years, who, whether in or outside Niue –
(a) On board on aircraft in flight, commits an assault which is likely to
endanger the safety of the aircraft; or
(b) Destroys an aircraft in service; or
(c) Causes damage to an aircraft in service which renders the aircraft
incapable of flight or which is likely to endanger the safety of the
aircraft in flight; or
(d) Places or causes to be placed on an aircraft in service anything which
is likely to destroy the aircraft, or to cause damage to the aircraft
which will render it incapable of flight, or which is likely to endanger
the safety of the aircraft in flight; or
(e) Destroys, damages, or interference with the operation of any air-
navigation facility used in international air navigation, or in air
navigation between Niue and any place outside Niue, where the
destruction, damage, or interference is likely to endanger the safety
of an aircraft in flight; or
(f) Endangers the safety of an aircraft in flight by communicating to
any other person any information which the persons supplying the
information knows to be false.

5A Offences relating to airports

Every person commits an offence, and shall be liable on conviction to a
term of imprisonment not exceeding 14 years who, using any device, substance or
weapon –
(a) Performs any act of violence against a person at an airport serving international civil aviation which causes or is likely to cause serious injury or death; or
(b) Destroys or seriously damages the facilities of an airport serving international civil aviation, or any aircraft not in service located at such airport, or disrupts the services of the airport;
if such act endangers or is likely to endanger safety at that airport.

6 [Spent]

7 Offences deemed to be included in extradition treaties

(1) (a) For the purposes of the Extradition Act, the offence of hijacking
(including aiding, abetting, inciting, counselling, or procuring any
person to commit that offence, inciting, counselling, or attempting
to procure any person to commit that offence when it is not in fact
committed, and being an accessory after the fact to that offence)
shall, if not already described in the treaty, be deemed to be an
offence described in any extradition treaty extending to Niue
concluded before the commencement of this section and for the
time being in force between Niue and any foreign country which is
a party to the Hague Convention.
(b) A certificate given under the hand of the Minister that any foreign
country is a party as aforesaid shall be sufficient evidence of that
fact.
162

Niue Laws 2006 Vol 1

(2) (a) For the purposes of the Extradition Act 1965 of the New Zealand Parliament and any Order in Council made under section 3 of that Act or referred to in section 21 of that Act, each offence described in section 5 of this Act (including attempting to commit that offence, aiding, abetting, inciting, counselling, or procuring any person to commit that offence, inciting, counselling or attempting to procure any person to commit that offence when it is not in fact committed, and being an accessory after the fact to that offence) shall be deemed to be an offence described in any extradition treaty extending to Niue, concluded before the commencement of this section and for the time being in force between Niue and any foreign country which is a party to the Montreal Convention.
(b) A certificate given under the hand of the Minister that any foreign country is a party as aforesaid shall be sufficient evidence of that fact.
(3) Where, under subsection (1) or under (2), any offence is deemed to be an offence described in an extradition treaty extending to Niue, a person whose surrender is sought under the Extradition Act 1965 of the New Zealand Parliament in respect of an act or omission which amounts to that offence shall be liable to be surrendered in accordance with that Act, whether the act or omission occurred before or after the date on which the crime was deemed to be an offence described in the extradition treaty.
(4) For the purposes of this section, “foreign country” includes any territory for whose international relations the Government of a foreign country is responsible and to which the extradition treaty and the Hague Convention or, as the case may be, the Montreal Convention extends.

8 Surrender of offenders

(1) (a) Where the surrender of a person is sought under either the
Extradition Act 1965 of the New Zealand Parliament or the Fugitive
Offenders Act 1881 of the United Kingdom Parliament in respect of
any act or omission which amounts to the offence of hijacking or to
any offence described in section 5 or section 5A (including
attempting to commit any of the offences so described, siding,
abetting, inciting, counselling, or procuring any person to commit
the offence of hijacking or any of the offences so described, inciting,
counselling, or attempting to procure any person to commit the
offence of hijacking or any of the offences so described when it is
not in fact committed, and being an accessory after the fact to the
offences of hijacking or any of the offences so described), and for
which the person whose surrender is sought could be tried and
punished in the country seeking surrender, being a country which
is a party to the Hague Convention or the Montreal Convention, as
the case may require, that act or omission shall be deemed to have
been committed within the jurisdiction of that country
notwithstanding that it was committed outside the territory of that
country.
(b) A certificate given under the hand of the Minister that a country is
party to either Convention shall be sufficient evidence of that fact.
(2) For the purposes of this section, “country” includes any territory for
whose international relations the Government of a country is responsible and to which the extradition treaty (if any) and the Hague Convention or, as the case may be, the Montreal Convention, extends.

Aviation Crimes Act 1973

163

9 Application of sections 3, 4 and 5

(1) Nothing in section 3 or 4 shall apply if both the place of take-off and
the place of actual landing of the aircraft (not being a Niuean aircraft) are in the
territory of the country in which the aircraft is registered, or, in the case of an
aircraft that is subject to joint or international registration, in the territory of one
of the countries having an interest in the aircraft, unless –
(a) The alleged offender is a person ordinarily resident in Niue;
(b) The act or omission occurred in Niue; or
(c) The alleged offender is present in Niue.
(2) Nothing in section 5(a), (b), (c), (d) or (f) shall apply if both the place of
take-off and the place of actual or intended landing of the aircraft (not being a
Niuean aircraft) are in the territory of a country in which the aircraft is registered,
or, in the case of an aircraft that is subject to joint or international registration, in
the territory of one of the countries having an interest in the aircraft, unless –
(a) The alleged offender is a person ordinarily resident in Niue;
(b) The act or omission occurred in Niue; or
(c) The alleged offender is present in Niue.
(3) Nothing in section 3 or section 4 or section 5 (a)-(d) shall apply to aircraft
used in military, customs, or police service (not being aircraft used for the purposes
of any of the Armed Forces of New Zealand operating in Niue or of the Niue
Customs or of the Niue Police), unless –
(a) The alleged offender is a person ordinarily resident in Niue;
(b) The set or omission occurred in Niue.

10 Powers of aircraft commander

(1) If the commander of an aircraft in flight, wherever that aircraft may be,
has reasonable grounds to believe that any person on board the aircraft has done
or is about to do on board the aircraft –
(a) Anything which is an offence under the law of this country in which
the aircraft is registered or under the law of Niue (not being a law
of a political nature or a law based on racial or religious
discrimination); or
(b) Anything (whether an offence or not) which jeopardises or may
jeopardise –
(i) the safety of the aircraft or of persons or property on board the
aircraft; or
(ii) good order and discipline on board the aircraft –
the commander may take with respect to that person such reasonable measures,
including restraint, as may be necessary –
(c) To protect the safety of the aircraft or of persons or property on
board the aircraft; or
(d) To maintain good order and discipline on board the aircraft;
(e) To enable the commander to disembark or deliver that person under
subsection (4) or (5).
(2) (a) Any member of the crew of an aircraft and any other person on
board the aircraft may, at the request or with the authority of the
commander of the aircraft and any member of the crew shall if so
required by the commander, assist in restraining any person whom
the commander is entitled under subsection (1) to restrain.
164 Niue Laws 2006 Vol 1
(b) Any member of the crew and any other person on board the aircraft may, without the commander ’s authority take with respect to any person on board the aircraft such reasonable measures, including restraint, as he has reasonable grounds to believe are immediately necessary to protect the safety of the aircraft or of persons or property on board the aircraft.
(3) Any restraint imposed on any person on board an aircraft under the powers conferred by subsection (1) or (2) shall not be continued after the aircraft ceases to be in flight, unless the commander of the aircraft notifies the appropriate authorities of the country or territory in which the aircraft ceases to be in flight, either before or as soon as reasonably practicable after that time, that a person on board is under restraint and of the reasons for such restraint, but, provided that notification has been given, restraint may be continued –
(a) For any period (including the period of any further flight) between that time and the first occasion thereafter on which the commander is able with the requisite consent of the appropriate authorities to disembark or deliver the person under restraint in accordance with subsection (4) or (5); or
(b) If the person under restraint agrees to continue his journey under restraint on board that aircraft.
(4) If the commander of an aircraft has reasonable grounds to believe that
a person on board the aircraft has done or is about to do on board the aircraft
anything (whether an offence or not) which jeopardises or may jeopardise –
(a) The safety of the aircraft or of persons or property on board the
aircraft; or
(b) Good order and discipline on board the aircraft –
he may, if he considers it necessary to do so in order to protect the safety of the
aircraft, disembark that person in any country or territory in which the aircraft
may be.
(5) If the commander of an aircraft has reasonable grounds to believe that
any person on board the aircraft has done on board the aircraft anything which in
the commander ’s opinion is a serious offence under the law of the country in
which the aircraft is registered or under the law of Niue, he may deliver that
person –
(a) In Niue, to any member of the Niue Police; or
(b) In any country which is a party to the Tokyo Convention,
to any person exercising functions corresponding to those of a member of the
Niue Police.
(6) If the commander of an aircraft disembarks any person under subsection
(4) in the case of a Niuean aircraft, in any country, or, in the case of any other
aircraft, in Niue, he shall report the fact of, and the reasons for, that disembarkation
to an appropriate authority in the country or territory of disembarkation (being,
in Niue, a member of the Niue Police).
(7) If the commander of an aircraft intends to deliver any person under
subsection (5) in Niue, or, in the case of a Niuean aircraft, in any country which is
a party to the Tokyo Convention, he shall, before or as soon as practicable after
landing, give notification of his intention and of the reasons for his intention to an
appropriate authority in that country, or, in the case of a person to be delivered in
Niue, to a member of the Niue Police.
(8) Any commander of an aircraft who without reasonable cause fails to
comply with the requirements of subsection (6) or (7) is liable on conviction to a
fine not exceeding 4 penalty units.

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165
(9) A person who in good faith imposes reasonable measures, including restraint, on another person under this section is not guilty of an offence and is not liable to any civil proceedings in respect of those measures.

11 Arrest of persons delivered to Police

(1) Any constable shall accept delivery of a person whom the commander
of an aircraft seeks to deliver to him under section 10 (5) if he has reasonable
grounds to support that person of having done or omitted on board that aircraft
anything that is an offence against this Act, or any other Act, or any enactment in
force in Niue.
(2) Where any constable accepts delivery of a person under subsection (1),
he shall forthwith arrest that person.

12 Cabinet’s consent required for prosecution

(1) No proceedings for the trial and punishment or any person charged
with a crime against sections 3-5 shall be instituted in the High Court except with
the consent of the Cabinet.
(2) A person charged with any such offence may be arrested, or a warrant
for his arrest may be issued and executed, and he may be remanded in custody or
on bail, notwithstanding that the consent of the Cabinet to the institution of a
prosecution for the offence has not been obtained, but no further proceedings
shall be taken until that consent has been obtained.

13 Aircraft in military, customs, or police service

Nothing in sections 10 and 11 shall apply to aircraft used in the military,
customs or police service of any country, or of Niue, or of any territory for whose
international relations the Government of a country is responsible.

14 Joint registration of aircraft

Where an aircraft is subject to joint international registration, it shall be
deemed for the purposes of this Act to be registered in the country which, according
to the records of the International Civil Aviation Organisation, is the country of
registration.

15 Other Acts not affected

Nothing in this Act shall be construed to limit or affect the operation of the
Entry, Residence and Departure Act 1985 or of Parts 5, 6 or 8 of the Niue Act 1996.

166 Niue Laws 2006 Vall

167

BILLS OF EXCHANGE ACT 1908

1908/15 (NZ) – 4 August 1908

1	Short title
2	Interpretation
PART 1
BILLS OF EXCHANGE
Forms and Interpretations
3	“Bill of exchange” defined
4	Inland and foreign bills
5	How bills may be drawn
6	Address to drawee
7	Certainty required as to payee
8	What bills are negotiable
9	Sum payable
10	Bill payable on demand
11	Bill payable at a future time
12	Omission of date in bill payable after date
13	Antedating and postdating
14	Computation of time of payment
15	Referee in case of need
16	Optional stipulations by drawer or indorser
17	Definition and requisites of acceptance
18	Time for acceptance
19	General and qualified acceptances
20	Inchoate instruments
21	Delivery
Capacity and Authority of Parties
22	Capacity of parties
23	Signature essential to liability
24	Forged or unauthorised signature
25	Signature by procuration
26	Person signing as agent or representative
The Consideration for a Bill
27	Value and holder for value
28	Accommodation party
29	Holder in due course
30	Presumption of value and good faith
Negotiation of Bills
31	Negotiation of bill
32	Requisition of a valid indorsement
33	Conditional indorsement
34	Indorsement in blank, and special
indorsement
35	Restrictive indorsement

168 Niue Laws 2006 Vol 1

66	Liability of acceptor for honour	81	Effect of the words “Not negotiable”
67	Presentation to acceptor for honour	82	[Repealed]
68	Payment for honour supra protest	83	Branch banks deemed independent banks
			for certain purposes
	Lost Bills
69	Holder ’s right to duplicate of lost bill		PART 3
70	Action on lost bill		PROMISSORY NOTES
		84	“Promissory note” defined
Bill in a Set 85 Delivery necessary
71	Rules as to sets	86	Joint and several notes
		87	Note payable on demand
Conflict of Laws 88 Presentment of note for payment
72	Law governing contracts contained in a bill	89	Liability of maker
		90	Application of Part 1 to notes
	PART 2
	CHEQUES ON A BANK		PART 4
73	“Cheques” defined		MISCELLANEOUS
74	Presentment of cheques for payment	91	Good faith
75	Revocation of banker ’s authority	92	Signature
		93	Computation of time
Crossed Cheques 94 When noting equivalent to protest
76	General and special crossings defined	95	Protest when notary not accessible
77	Crossing by drawer or after issue	96	Bill drawn at sight to be deemed a bill
78	Crossing to be deemed a material part of		payable on demand
	cheque	97	[Repealed]
79	Duties of banker as to crossed cheques	98	Saving
80	Protection to banker and drawer where

cheque is crossed SCHEDULES

To consolidate certain enactments relating to bills of exchange

1 Short title

(1) This is the Bills of Exchange Act 1908.
(2) [Spent]
(3) This Act is divided into Parts, as follows:
Part 1 – Bills of Exchange
Part 2 – Cheques on a Bank
Part 3 – Promissory Notes
Part 4 – Miscellaneous.

2 Interpretation

In this Act –
“acceptance” means an acceptance completed by delivery or notice;
“action” includes counterclaim and set-off;
“banker” includes a body of persons, whether incorporated or not, who
carry on the business of banking;
“bankrupt” includes any person whose estate is vested in a trustee or
assignee under the law for the time being in force relating to bankruptcy;
“bearer” means the person in possession of a bill or note payable to bearer;
“bill” means bill of exchange, and “note” means promissory note;
“delivery” means transfer of possession, actual or constructive, from one
person to another;

Bills of Exchange Act 1908

169
“holder” means the payee or indorsee of a bill or note who is in possession of it, or the bearer of it;
“indorsement” means an indorsement completed by delivery;
“issue” means the first delivery of a bill or note, complete in form, to a
person who takes it as a holder;
“non-business day” means every day on which bank premises are not open
for business;
“value” means valuable consideration.
PART 1
BILLS OF EXCHANGE

Forms and Interpretation

3 “Bill of exchange” defined

(1) A bill of exchange is an unconditional order in writing, addressed by
one person to another, signed by the person giving it, requiring the person to
whom it is addressed to pay on demand, or at a fixed or determinable future time,
a sum certain in money to or to the order of a specified person, or to bearer.
(2) An instrument that does not comply with these conditions, or that orders
any act to be done in addition to the payment of money, is not a bill of exchange.
(3) An order to pay out of a particular fund is not unconditional within
the meaning of this section; but an unqualified order to pay, coupled with (a) an
indication of a particular fund out of which the drawee is to reimburse himself or
a particular account to be debited with the amount, or (b) a statement of the
transaction giving rise to the bill, is unconditional.
(4) A bill is not invalid by reason that –
(a) It is not dated;
(b) It does not specify the value given, or that any value has been give;
(c) It does not specify the place where it is drawn or the place where it
is payable.

4 Inland and foreign bills

(1) An “inland bill” is a bill that is, or on the face of it purports to be –
(a) Both drawn and payable in any country of the Realm of New
Zealand or the Commonwealth of Australia or any state or territory
of Australia;
(b) Drawn in any country of the Realm of New Zealand or the
Commonwealth of Australia or any state or territory of Australia
upon some person resident therein.
Any other bill is a “foreign bill”.
(2) Unless the contrary appears on the face of the bill the holder may treat
it as an inland bill.

5 How bills may be drawn

(1) A bill may be drawn payable to or to the order of the drawer; or it may
be drawn payable to or to the order of the drawee.
(2) Where in a bill drawer and drawee are the same person, or where the
drawee is a fictitious person or a person not having capacity to contract, the holder
may treat the instrument, at his option, either as a bill of exchange or as a
promissory note.
170 Niue Laws 2006 Vol 1

6 Address to drawee

(1) The drawee must be named or otherwise indicated in a bill with
reasonable certainty.
(2) A bill may be addressed to 2 or more drawees, whether they are partners
or not; but an order addressed to 2 drawees in the alternative, or to 2 or more
drawees in succession, is not a bill of exchange.

7 Certainty required as to payee

(1) Where a bill is not payable to bearer, the payee must be named or
otherwise indicated therein with reasonable certainty.
(2) A bill may be made payable –
(a) To 2 or more payees jointly; or
(b) In the alternative to one or 2, or one or some of several payees; or
(c) To the holder of an office for the time being.
(3) Where the payee is a fictitious or non-existing person the bill may be
treated as payable to bearer.

8 What bills are negotiable

(1) Where a bill contains words prohibiting transfer, or indicating an
intention that it is not transferable, it is valid as between the parties to it, but is not
negotiable.
(2) A negotiable bill may be payable either to order or to bearer.
(3) A bill is payable to bearer if it is expressed to be so payable, or if the
only or the last indorsement thereon is an indorsement in blank.
(4) A bill is payable to order if it is expressed to be so payable, or if it is
expressed to be payable to a particular person, and does not contain words
prohibiting transfer or indicating an intention that it is not transferable.
(5) Where a bill, either originally or by indorsement, is expressed to be
payable to the order of a specified person, and not to him or his order, it is
nevertheless payable to him or his order at his option.

9 Sum payable

(1) The sum payable by a bill is a sum certain, within the meaning of this
Act, although it is required to be paid –
(a) With interest;
(b) By stated instalments;
(c) By stated instalments, with a provision that upon default in payment
of any instalment the whole shall become due;
(d) According to an indicated rate of exchange, or according to a rate
of exchange to be ascertained as directed by the bill.
(2) Where the sum payable is expressed in words and also in figures, and
there is a discrepancy between the 2, the sum denoted by the words is the amount
payable.
(3) Where a bill is expressed to be payable with interest, unless the
instrument provides otherwise, interest runs from the date of the bill, and, if the
bill is undated, from its issue.

10 Bill payable on demand

(1) A bill is payable on demand –
(a) If it is expressed to be payable on demand, or at sight, or on
presentation; or
(b) If no time for payment is expressed therein.

Bills of Exchange Act 1908

171
(2) Where a bill is accepted or indorsed when it is overdue, it shall, as regards the acceptor who so accepts, or any indorser who so indorses it, be deemed a bill payable on demand.

11 Bill payable at a future time

(1) A bill is payable at a determinable future time within the meaning of
this Act if it is expressed to be payable –
(a) At a fixed period after date or sight;
(b) On or at a fixed period after the occurrence of a specified event that
is certain to happen, though the time of happening may be uncertain.
(2) An instrument expressed to be payable on a contingency is not a bill,
and the happening of the event does not cure the defect.

12 Omission of date in bill payable after date

Where a bill expressed to be payable at a fixed period after date is issued
undated, or where the acceptance of a bill payable at a fixed period after sight is
undated, any holder may insert therein the true date of issue or acceptance, and
the bill shall be payable accordingly:
Provided that (a) where the holder in good faith and by mistake inserts a
wrong date, and (b) in every case where a wrong date is inserted, if the bill
subsequently comes into the hands of a holder in due course, it shall not be avoided
by the insertion of a wrong date, but shall operate and be payable as if the date so
inserted had been the true date.

13 Antedating and postdating

(1) Where a bill or an acceptance or any indorsement on a bill is dated, the
date shall, unless the contrary is proved, be deemed to be the true date of the
drawing, acceptance, or indorsement, as the case may be.
(2) A bill is not invalid by reason only that it is undated or postdated, or
that it bears date on a Sunday.

14 Computation of time of payment

Where a bill is not payable on demand, the day on which it falls due is
determined as follows –
(a) Three days (called “days of grace”), are in every case where the bill
itself does not provide otherwise, added to the time of payment as
fixed by the bill, and the bill is due and payable on the last day of
grace;
Provided that when the last day of grace is a non-business day the
bill is due and payable on the next following business day;
(b) Where a bill is payable at a fixed period after date, after sight, or
after the happening of a specified event, the time of payment is
determined by excluding the day from which the time is to begin
to run and by including the day of payment;
(c) Where a bill is payable at a fixed period after sight, the time begins
to run from the date of the acceptance if the bill is accepted, and
from the date of noting or protest if the bill is noted or protested for
non-acceptance or for non-delivery.
172 Niue Laws 2006 Vol 1

15 Referee in case of need

The drawer of a bill and any indorser may insert in it the name of a person
to whom the holder may resort in case of need – that is to say, in case the bill is
dishonoured by non-acceptance or non-payment. Such person is called the referee
in case of need. It is in the option of the holder to resort to the referee in case of
need or not.

16 Optional stipulations by drawer or indorser

The drawer of a bill, and any indorser, may insert in it an express
stipulation –
(a) Negativing or limiting his own liability to the holder;
(b) Waiving as regards himself some or all of the holder ’s duties.

17 Definition and requisites of acceptance

(1) The acceptance of a bill is the signification by the drawee of his assent
to the order of the drawer.
(2) An acceptance is invalid unless it complies with the following
conditions, namely:
(a) It must be written on the bill and be signed by the drawee; the
mere signature of the drawee without additional words is sufficient;
(b) It must not state that the drawee will perform his promise by any
other means than the payment of money.

18 Time for acceptance

(1) A bill may be accepted –
(a) Before it has been signed by the drawer or while otherwise
incomplete;
(b) When it is overdue, or after it has been dishonoured by a previous
refusal to accept, or by non-payment.
(2) Where a bill payable after sight is dishonoured by non-acceptance, and
the drawee subsequently accepts it, the holder, in the absence of any different
agreement, is entitled to have the bill accepted as on the date of its first presentment
to the drawee for acceptance.

19 General and qualified acceptances

(1) An acceptance is either (a) general, or (b) qualified.
(2) A general acceptance assents without qualification to the order of the
drawer; a qualified acceptance in express terms varies the effect of the bill as drawn.
(3) In particular, an acceptance is qualified which is –
(a) Conditional – which makes payment by the acceptor dependent
on the fulfillment of a condition in it stated;
(b) Partial – an acceptance to pay part only of the amount for which
the bill is drawn;
(c) Local – an acceptance to pay only at a particular specified place.
An acceptance to pay at a particular place is a general acceptance,
unless it expressly states that the bill is to be paid there only and
not elsewhere;
(d) Qualified as to time;
(e) The acceptance of some one or more of the drawees, but not of all.

Bills of Exchange Act 1908

173

20 Inchoate instruments

(1) Where a simple signature on a blank stamped paper is delivered by the
signer in order that it may be converted into a bill, it operates as a prima facie authority to fill it up as a complete bill for any amount the stamp will cover, using the signature for that of the drawer, or the acceptor, or an indorser; and in like manner, where a bill is wanting in any material particular, the person in possession of it has a prima facie authority to fill up the omission in any way.
(2) (a) In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within a reasonable time, and strictly under the authority given.
(b) Reasonable time for this purpose is a question of fact.
(c) If any such instrument after completion is negotiated to a holder in
due course, it shall be valid and effectual for all purposes in his
hands, and he may enforce it as if it had been filled up within a
reasonable time and strictly under the authority given.

21 Delivery

(1) (a) Every contract on a bill, whether it is the drawer ’s, the acceptor ’s
or an indorser ’s, is incomplete and revocable until delivery of the
instrument in order to give effect to it.
(b) Where an acceptance is written on a bill, and the drawee gives notice
to or according to the directions of the person entitled to the bill
that he has accepted it, the acceptance then becomes complete and
irrevocable.
(2) As between immediate parties, and as regards a remote party other
than the holder in due course, the delivery –
(a) In order to be effectual must be made either by or under the
authority of the party drawing, accepting, or indorsing, as the case
may be;
(b) May be shown to have been conditional, or for a special purpose
only, and not for the purpose of transferring the property in the
bill.
(3) If the bill is in the hands of a holder in due course, a valid delivery of
the bill by all parties prior to him so as to make them liable to him is conclusively
presumed.
(4) Where a bill is no longer in the possession of a party who has signed it
as drawer, acceptor, or indorser, a valid and unconditional delivery by him is
presumed until the contrary is proved.

Capacity and Authority of Parties

22 Capacity of parties

(1) (a) Capacity to incur liability as a party to a bill is co-extensive with
capacity to contract.
(b) Nothing in this section shall enable a corporation to make itself
liable as a drawer, acceptor, or indorser of a bill unless it is competent
to it so to do under the law for the time being in force relating to
corporations.
(2) Where a bill is drawn or indorsed by a minor or corporation, having no
capacity or power to incur liability on a bill, the drawing or indorsement entitles
the holder to receive payment of the bill and to enforce it against any other party
thereto.
174 Niue Laws 2006 Vol 1

23 Signature essential to liability

(1) No person is liable as drawer, indorser, or acceptor of a bill unless he
has signed it as such.
(2) (a) Where a person signs a bill in a trade or assumed name, he is liable
thereon as if he had signed it in his own name.
(b) The signature of the name of a firm is equivalent to the signature
by the person so signing of the names of all persons liable as partners
in that firm.

24 Forged or unauthorised signature

(1) Subject to this Act, where a signature on a bill is forged, or is placed
thereon without the authority of the person whose signature it purports to be, the
forged or unauthorised signature is wholly inoperative, and no right to retain the
bill or to give a discharge therefor or to enforce payment thereof against any party
to it can be acquired through or under that signature, unless the party against
whom it is sought to retain or enforce payment of the bill is precluded from setting
up the forgery or want of authority.
(2) Nothing in this section shall affect the ratification of an unauthorised
signature not amounting to a forgery.

25 Signature by procuration

A signature by procuration operates as notice that the agent has but a limited
authority to sign, and the principal is bound by such signature only if the agent in
so signing was acting within the actual limits of his authority.

26 Person signing as agent or representative

(1) Where a person signs a bill as drawer, indorser, or acceptor, and adds
words to his signature indicating that he signs for or on behalf of a principal, or in
a representative character, he is not personally liable thereon; but the mere addition
to his signature of words describing him as an agent, or as filling a representative
character, does not exempt him from personal liability.
(2) In determining whether a signature on a bill is that of the principal, or
that of the agent by whose hand it is written, the construction most favourable to
the validity of the instrument shall be adopted.

The Consideration for a Bill

27 Value and holder for value

(1) Valuable consideration for a bill may be constituted by –
(a) Any consideration sufficient to support a simple contract;
(b) An antecedent debt or liability. Such a debt or liability is deemed
valuable consideration whether the bill is payable on demand or at
a future time.
(2) Where value has at any time been given for a bill, the holder is deemed
to be a holder for value as regards the acceptor and all parties to the bill who
became parties prior to that time.
(3) Where the holder of a bill has a lien on it, arising either from contract or
by implication of law, he is deemed to be a holder for value to the amount of the
sum for which he has a lien.

Bills of Exchange Act 1908

175

28 Accommodation party

(1) An accommodation party to a bill is a person who has signed a bill as
drawer, acceptor, or indorser without receiving value for it, and for the purpose
of lending his name to some other person.
(2) An accommodation party is liable on the bill to a holder for value; and
it is immaterial whether, when such holder took the bill, he knew such party to be
an accommodation party or not.

29 Holder in due course

(1) A holder in due course is a holder who has taken a bill, complete and
regular on the face of it, under the following conditions, namely:
(a) That he became the holder of it before it was overdue, and without
notice that it had been previously dishonoured, if such was the fact;
(b) That he took the bill in good faith and for value, and that at the
time the bill was negotiated to him he had no notice of any defect
in the title of the person who negotiated it.
(2) In particular, the title of a person who negotiates a bill is defective within
the meaning of this Act when he obtained the bill, or the acceptance thereof, by
fraud, duress, or force and fear, or other unlawful means, or for an illegal
consideration, or when he negotiates it in breach of faith, or under such
circumstances as amount to a fraud.
(3) A holder (whether for value or not) who derives his title to a bill through
a holder in due course, and who is not himself a party to any fraud or illegality
affecting it, has all the rights of that holder in due course as regards the acceptor
and all parties to the bill prior to that holder.

30 Presumption of value and good faith

(1) Every party whose signature appears on a bill is prima facie deemed to
have become a party thereto for value.
(2) Every holder of a bill is prima facie deemed to be a holder in due course;
but if in an action on a bill it is admitted or proved that the acceptance, issue, or
subsequent negotiation of the bill is affected with fraud, duress, or force and fear,
or illegality, the burden of proof is shifted, unless and until the holder proves that,
subsequent to the alleged fraud or illegality, value has in good faith been given
for the bill.

31 Negotiation of bill

Negotiation of Bills

(1) A bill is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder of the bill.
(2) A bill payable to bearer is negotiated by delivery.
(3) A bill payable to order is negotiated by the indorsement of the holder
completed by delivery.
(4) Where the holder of a bill payable to his order transfers it for value
without indorsing it, the transfer gives the transferee such title as the transferor
had in the bill, and the transferee in addition acquires the right to have the
indorsement of the transferor.
(5) Where any person is under obligation to indorse a bill in a representative
capacity, he may indorse the bill in such terms as to negative personal liability.
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32 Requisition of a valid indorsement

An indorsement in order to operate as a negotiation must comply with the
following conditions –
(a) It must be written on the bill itself and be signed by the indorser;
the simple signature of the indorser on the bill, without additional
words, is sufficient:
Provided that an indorsement written on an allonge, or on a “copy”
of a bill issued or negotiated in a country where “copies” are
recognised, shall be deemed to be written on the bill itself;
(b) It must be an indorsement of the entire bill. A partial indorsement –
that is to say, an indorsement that purports to transfer to the indorsee
a part only of the amount payable, or to transfer the bill to 2 or
more indorsees severally – does not operate as a negotiation of the
bill;
(c) Where a bill is payable to the order of 2 or more payees or indorsees
who are not partners, all must indorse, unless the one indorsing
has authority to indorse for the others;
(d) Where in a bill payable to order the payee or indorsee is wrongly
designated, or his name is misspelt, he may indorse the bill as therein
described, adding, if he thinks fit, his proper signature;
(e) Where there are 2 or more indorsements on a bill, each indorsement
is deemed to have been made in the order in which it appears on
the bill, until the contrary is proved;
(f) An indorsement may be either special or in blank; it may also contain
terms making it restrictive.

33 Conditional indorsement

Where a bill purports to be indorsed conditionally, the condition may be
disregarded by the payer, and payment to the indorsee is valid whether the
conditions has been fulfilled or not.

34 Indorsement in blank, and special indorsement

(1) An indorsement in blank specifies no indorsee, and a bill so indorsed
becomes payable to bearer.
(2) A special indorsement specifies the person to whom, or to whose order,
the bill is to be payable.
(3) The provisions of this Act relating to a payee apply, with the necessary
modifications, to an indorsee under a special indorsement.
(4) Where a bill has been indorsed in blank, any holder may convert the
blank indorsement into a special indorsement by writing above the indorser ’s
signature a direction to pay the bill or to the order of himself or some other person.

35 Restrictive indorsement

(1) An indorsement is restrictive which prohibits the further negotiation
of the bill, or which expresses that is a mere authority to deal with the bill as
thereby directed and not a transfer of the ownership thereof – as, for example, if a
bill is indorsed “Pay D. only”, or “Pay D. for the account of X.”, or “Pay D. or
order for collection”.
(2) A restrictive indorsement gives the indorsee the right to receive payment
of the bill, and to sue any party thereto that his indorser could have sued, but
gives him no power to transfer his rights as indorsee unless it expressly authorises
him to do so.

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177
(3) Where a restrictive indorsement authorises further transfer, all subsequent indorsees take the bill with the same rights and subject to the same liabilities as the first indorsee under the restrictive indorsement.

36 Negotiation of overdue or dishonoured bill

(1) Where a bill is negotiable in its origin, it continues to be negotiable
until it has been either restrictively indorsed, or discharged by payment or
otherwise.
(2) Where an overdue bill is negotiated, it can be negotiated only subject
to any defect of title affecting it at its maturity, and thenceforward no person who
takes it can acquire or give a better title than that which the person from whom he
took it had.
(3) A bill payable on demand is deemed to be overdue within the meaning
and for the purposes of this section when it appears on the face of it to have been
in circulation for an unreasonable length of time. What is an unreasonable length
of time for this purpose is a question of fact.
(4) Except where an indorsement bears date after the maturity of the bill,
every negotiation is prima facie deemed to have been effected before the bill became
overdue.
(5) Where a bill that is not overdue has been dishonoured, any person who
takes it with notice of the dishonour takes it subject to any defect of title attaching
thereto at the time of dishonour: but nothing in this subsection shall affect the
rights of a holder in due course.

37 Negotiation of bill to party already liable thereon

Where a bill is negotiated back to the drawer, or to a prior indorser, or to
the acceptor, such party may, subject to this Act, reissue and further negotiate the
bill; but he is not entitled to enforce payment of the bill against any intervening
party to whom he was previously liable.

38 Rights of the holder

The rights and powers of the holder of a bill are as follows –
(a) He may sue on the bill in his own name;
(b) Where he is a holder in due course, he holds the bill free from any
defect of title of prior parties, as well as from mere personal defences
available to prior parties among themselves, and may enforce
payment against all parties liable on the bill;
(c) Where his title is defective –
(i) if he negotiates the bill to a holder in due course, that holder
obtains a good and complete title to the bill; and
(ii) if he obtains payment of the bill, the person who pays him in
due course gets a valid discharge for the bill.

General Duties of the Holder

39 When presentment for acceptance is necessary

(1) Where a bill is payable after sight, presentment for acceptance is
necessary in order to fix the maturity of the instrument.
(2) Where a bill expressly stipulates that it shall be presented for acceptance,
or where a bill is drawn payable elsewhere than at the residence or place of business
of the drawee, it must be presented for acceptance before it can be presented for
payment.
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(3) In no other case is presentment for acceptance necessary in order to render liable any party to the bill.
(4) Where the holder of a bill drawn payable elsewhere than at the place of business or residence of the drawee has not time, with the exercise of reasonable diligence, to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawer and indorsers.

40 Time for presenting bill payable after sight

(1) Subject to this Act, where a bill payable after sight is negotiated, the
holder must either present it for acceptance or negotiate it within a reasonable
time.
(2) If he does not do so, the drawer and all indorsers prior to that holder are discharged.
(3) In determining what is a reasonable time within the meaning of this section, regard shall be had to the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case.

41 Rules as to presentment for acceptance and excuses for non-presentment

(1) A bill is duly presented for acceptance if it is presented under the
following rules –
(a) The presentment must be made by or on behalf of the holder to the
drawee, or to some person authorised to accept or to refuse
acceptance on his behalf, at a reasonable hour on a business day
and before the bill is overdue;
(b) Where a bill is addressed to 2 or more drawees, who are not partners,
presentment must be made to them all, unless one has authority to
accept for all, in which case presentment may be made to him only;
(c) Where the drawee is dead, presentment may be made to his executor
or administrator;
(d) Where the drawee is bankrupt, presentment may be made to him
or to his assignee;
(e) Where authorised by agreement or usage, a presentment through
the post office is sufficient.
(2) Presentment in accordance with these rules is excused, and a bill may
be treated as dishonoured by non-acceptance –
(f) Where the drawee is dead or bankrupt, or is a fictitious person, or
a person not having capacity to contract by bill;
(g) Where, after the exercise of reasonable diligence, such presentment
cannot be effected;
(h) Where, although the presentment has been irregular, acceptance
has been refused on some other ground.
(3) The fact that the holder has reason to believe that the bill, on
presentment, will be dishonoured does not excuse presentment.

42 Non-acceptance

Where a bill is duly presented for acceptance and is not accepted within
the customary time, the person presenting it must treat it as dishonoured by non­
acceptance. If he does not, the holder shall lose his right of recourse against the
drawer and indorsers.

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179

43 Dishonour by non-acceptance and its consequences

(1) A bill is dishonoured by non-acceptance –
(a) Where it is duly presented for acceptance, and such an acceptance
as is prescribed by this Act is refused, or cannot be obtained; or
(b) Where presentment for acceptance is excused and the bill is not
accepted.
(2) Subject to this Act, when a bill is dishonoured by non-acceptance an
immediate right of recourse against the drawer and indorsers accrues to the holder,
and no presentment for payment is necessary.

44 Qualified acceptance

(1) The holder of a bill may refuse to take a qualified acceptance, and if he
does not obtain a general acceptance may treat the bill as dishonoured by non­
acceptance.
(2) Where a qualified acceptance is taken, and the drawer or an indorser
has not expressly or impliedly authorised the holder to take a qualified acceptance,
or does not subsequently assent thereto, such drawer or indorser is discharged
from his liability on the bill. The provisions of this subsection do not apply to a
partial acceptance whereof due notice has been given. Where a foreign bill has
been accepted as to part, it must be protested as to the balance.
(3) Where the drawer or indorser of a bill receives notice of a qualified
acceptance, and does not within a reasonable time express his dissent to the holder,
he shall be deemed to have assented to it.

45 Rules as to presentment for payment

(1) Subject to this Act, a bill must be duly presented for payment. If it is
not so presented, the drawer and indorsers shall be discharged.
(2) A bill is duly presented for payment if it is presented in accordance
with the following rules –
(a) Where the bill is not payable on demand, presentment must be made
on the day it falls due;
(b) (i) Where the bill is payable on demand, then, subject to this Act,
presentment must be made within a reasonable time after its
issue in order to render the drawer liable, and within a
reasonable time after its indorsement in order to render the
indorser liable;
(ii) In determining what is a reasonable time regard shall be had to
the nature of the bill, the usage of trade with regard to similar
bills, and the facts of the particular case;
(c) Presentment must be made by the holder, or by some person
authorised to receive payment on his behalf, at a reasonable hour
on a business day, at the proper place as hereinafter defined, either
to the person designated by the bill as payer, or to some person
authorised to pay or refuse payment on his behalf, if by the exercise
of reasonable diligence such person can there be found;
(d) A bill is presented at the proper place –
(i) where a place of payment is specified in the bill, and the bill is
there presented;
(ii) where no place of payment is specified, but the address of the
drawee or acceptor is given in the bill, and the bill is there
presented;
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(iii) where no place of payment is specified and no address given, and the bill is presented at the drawee’s or acceptor ’s place of business, if known, and if not, at his ordinary residence, if known;
(iv) in any other case, if presented to the drawee or acceptor at his last known place of business or residence, or wherever he can be found.
(e) Where a bill is presented at the proper place, and after the exercise of reasonable diligence no person authorised to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required;
(f) Where a bill is drawn upon or accepted by two or more persons
who are not partners, and no place of payment is specified,
presentment must be made to them all;
(g) Where the drawee or acceptor of the bill is dead, and no place of
payment is specified, presentment must be made to the executor or
administrator of the deceased, if any, and if by the exercise of
reasonable diligence he can be found;
(h) Where authorised by agreement or usage, presentment through the
post office is sufficient.

46 Excuses for delay or non-presentment for payment

(1) (a) Delay in making presentment for payment is excused when the
delay is caused by circumstances beyond the control of the holder,
and not imputable to his default, misconduct, or negligence.
(b) When the cause of delay ceases to operate, presentment must be
made with reasonable diligence.
(2) Presentment for payment is dispensed with –
(a) Where, after the exercise of reasonable diligence, presentment as
required by this Act cannot be effected: The fact that the holder has
reason to believe that the bill will, on presentment, be dishonoured,
does not dispense with the necessity for presentment;
(b) Where the drawee is a fictitious person;
(c) As regards the drawer, where the drawee or acceptor is not bound,
as between himself and the drawer, to accept or pay the bill, and
the drawer has no reason to believe that the bill would be paid if
presented;
(d) As regards an indorser, where the bill was accepted or made for the
accommodation of that indorser, and he has no reason to believe
that the bill would be paid if presented;
(e) By waiver of presentment, express or implied.

47 Dishonour by non-payment

(1) A bill is dishonoured by non-payment –
(a) Where it is duly presented for payment and payment is refused, or
cannot be obtained; or
(b) Where presentment is excused and the bill is overdue and unpaid.
(2) Subject to this Act, where a bill is dishonoured by non-payment an
immediate right of recourse against the drawers or indorsers accrues to the holder.

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181

48 Notice of dishonour

(1) Subject to this Act, where a bill has been dishonoured by non-acceptance
or by non-payment, notice of dishonour must be given to the drawer and each
indorser, and any drawer or indorser to whom such notice is not given is
discharged;
(2) (a) Where a bill is dishonoured by non-acceptance, and notice of
dishonour is not given, the rights of a holder in due course
subsequent to the omission shall not be prejudiced by the omission.
(b) Where a bill is dishonoured by non-acceptance, and due notice of
dishonour is given, it shall not be necessary to give notice of a
subsequent dishonour by non-payment unless the bill has in the
meantime been accepted.

49 Rules as to notice of dishonour

Notice of dishonour in order to be valid and effectual must be given in
accordance with the following rules –
(a) The notice must be given by or on behalf of the holder, or by or on
behalf of an indorser who, at the time of giving it, is himself liable
on the bill;
(b) Notice of dishonour may be given by an agent either in his own
name or in the name of any party entitled to give notice, whether
that party is his principal or not;
(c) Where the notice is given by or on behalf of the holder, it enures for
the benefit of all subsequent holders and all prior indorsers having
a right of recourse against the party to whom it is given;
(d) Where notice is given by or on behalf of an indorser entitled to give
notice as hereinbefore provided, it enures for the benefit of the
holder and all indorsers subsequent to the party to whom notice is
given;
(e) The notice may be given either in writing by personal
communication, and may be given in any terms sufficient to identify
the bill, and intimating that the bill has been dishonoured by non­
acceptance or non-payment;
(f) The return of a dishonoured bill to the drawer or an indorser is in
point of form deemed a sufficient notice of dishonour;
(g) A written notice need not be signed, and an insufficient written
notice may be supplemented and made valid by verbal
communication;
(h) A misdescription of the bill shall not vitiate the notice unless the
party to whom the notice is given is in fact misled by it;
(i) Where notice of dishonour is required to be given to any person, it
may be given either to the party himself or to his agent in that behalf;
(j) Where the drawer or indorser is dead, and the party giving notice
is aware of the fact, the notice must be given to an executor or
administrator of the deceased, if any, and if by the exercise of
reasonable diligence he can be found;
(k) Where the drawer or indorser is bankrupt, notice may be given
either to the party himself or to his assignee;
(l) Where there are more than 2 drawers or indorsers, who are not
partners, notice must be given to each of them, unless one of them
has authority to receive such notice on behalf of the others;
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(m) The notice may be given as soon as the bill is dishonoured, and must be given within a reasonable time thereafter;
(n) In the absence of special circumstances, notice is not deemed to have been given within a reasonable time unless –
(i) Where the person giving and the person to receive notice reside in the same place, the notice is given or sent off in time to reach the latter on the day after the dishonour of the bill;
(ii) Where the person giving and the person to receive notice reside in different places, the notice is sent off on the day after the dishonour of the bill, if there is a post at a convenient hour on that day, and, if there is no such post on that day, then by the next post thereafter;
(o) Where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal. If he gives notice of his principal, he must do so within the same time as if he were the holder; and the principal, upon receipt of such notice, has himself the same time for giving notice as if the agent had been an independent holder;
(p) Where a party to a bill receives due notice of dishonour, he has after the receipt of such notice the same period of time for giving notice to antecedent parties that the holder has after the dishonour;
(q) Where a notice of dishonour is duly addressed and posted, the sender is deemed to have given due notice of dishonour notwithstanding any miscarriage by the post office.

Excuses for want of notice and delay

(1) (a) Delay in giving notice of dishonour is excused where the delay is
caused by circumstances beyond the control of the party giving
notice, and not imputable to his default, misconduct, or negligence;
(b) When the cause of delay ceases to operate the notice must be given
with reasonable diligence.
(2) Notice of dishonour is dispensed with –
(a) When, after the exercise of reasonable diligence, notice as required
by this Act cannot be given to or does not reach the drawer or
indorser sought to be charged;
(b) By waiver, express or implied, either before the time of giving notice
of dishonour has arrived, or after the omission to give due notice;
(c) As regards the drawer, in the following cases, namely –
(i) where the drawer and drawee are the same person;
(ii) where the drawee is a fictitious person, or a person not having
capacity to contract;
(iii) where the drawer is the person to whom the bill is presented
for payment;
(iv) where the drawee or acceptor is as between himself and the
drawer under no obligation to accept or pay the bill;
(v) where the drawer has countermanded payment.
(d) As regards the indorser, in the following cases, namely –
(i) where the drawee is a fictitious person, or a person not having
capacity to contract, and the indorser was aware of the fact at
the time he indorsed the bill;
(ii) where the indorser is the person to whom the bill is presented
for payment;
(iii) where the bill was accepted and made for his accommodation.

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183

51 Noting or protest of bill

(1) Where an inland bill has been dishonoured it may be noted for non­
acceptance or non-payment, as the case may be; but it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser.
(2) Where a foreign bill, appearing on the fact of it to be such, has been
dishonoured by non-acceptance it must be duly protested for non-acceptance,
and where such a bill, not having been previously dishonoured by non-acceptance,
is dishonoured by non-payment it must be duly protested for non-payment,
otherwise the drawer and indorsers are discharged.
(3) Where a bill does not appear on the face of it to be a foreign bill, protest
of it as in case of dishonour is unnecessary.
(4) A bill that has been protested for non-acceptance may be subsequently
protested for non-payment.
(5) Subject to this Act, where a bill is noted or protested it must be noted
on the day of dishonour.
(6) Where a bill has been duly noted, the protest may be subsequently
extended so as to take effect from the date of the noting.
(7) Where the acceptor of a bill becomes bankrupt or insolvent or suspends
payment before it matures, the holder may cause the bill to be protested for better
security against the drawer and indorsers.
(8) (a) A bill must be protested at the place where it is dishonoured.
(b) Where a bill is presented through the post office, and returned by
post dishonoured, it may be protested at the place to which it is
returned and on the day of its return if received during business
hours, and if not received during business hours, then not later
than the next business day.
(c) When a bill drawn payable at the place of business or residence of
some person other than the drawee has been dishonoured by non­
acceptance, it must be protested for non-payment at the place where
it is expressed to be payable, and no further presentment for
payment to or demand on the drawee is necessary.
(9) A protest must contain a copy of the bill, and must be signed by the
notary making it, and must specify –
(a) The person at whose request the bill is protested;
(b) The place and date of protest, the cause or reason for protesting the
bill, the demand made, and the answer given, if any, or the fact that
the drawee or acceptor could not be found.
(10) Where a bill is lost or destroyed, or is wrongly detained from the person
entitled to hold it, protest may be made on a copy or on written particulars of it.
(11) Protest is dispensed with by any circumstance that would dispense
with notice of dishonour.
(12) Delay in noting or protesting is excused when the delay is caused by
circumstances beyond the control of the holder, and not imputable to his default,
misconduct, or negligence. When the cause of delay ceases to operate the bill must
be noted or protested with reasonable diligence.
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52 Duties of holder as regards drawee or acceptor

(1) When a bill is accepted generally, presentment for payment is not
necessary in order to render the acceptor liable.
(2) When by the terms of a qualified acceptance presentment for payment
is required, the acceptor, in the absence of an express stipulation to that effect, is
not discharged by the omission to present the bill for payment on the day that it
matures.
(3) In order to render the acceptor of a bill liable is not necessary to protest
it, or that notice of dishonour should be given to him.
(4) When the holder of a bill presents it for payment, he shall exhibit the
bill to the person from whom he demands payment, and when a bill is paid the
holder shall forthwith deliver it up to the party paying it.

Liabilities of Parties

53 Funds in hands of drawee

A bill of itself does not operate as an assignment of funds in the hands of
the drawee available for the payment of it, and the drawee of a bill who does not
accept as required by this Act is not liable on the instrument.

54 Liability of acceptor

The acceptor of a bill, by accepting it –
(a) Engages that he will pay it under the tenor of his acceptance;
(b) Is precluded from denying to a holder in due course –
(i) the existence of the drawer, the genuineness of his signature,
and his capacity and authority to draw the bill;
(ii) in the case of a bill payable to drawer ’s order, the then capacity
of the drawer to indorse, but not the genuineness or validity of
his indorsement;
(iii) in the case of a bill payable to the order of a third person, the
existence of the payee and his then capacity to indorse, but not
the genuineness or validity of his indorsement.

55 Liability of drawer or indorser

(1) The drawer of a bill, by drawing it –
(a) Engages that on due presentation it shall be accepted and paid under
its tenor, and that if it is dishonoured he will compensate the holder
or any indorser who is compelled to pay it, provided that the
requisite proceedings on dishonour are duly taken;
(b) Is precluded from denying to a holder in due course the existence
of the payee and his then capacity to indorse.
(2) The indorser of a bill, by indorsing it –
(a) Engages that on due presentment it shall be accepted and paid
according to its tenor, and that if it is dishonoured he will
compensate the holder or a subsequent indorser who is compelled
to pay it, provided that the requisite proceedings on dishonour are
duly taken;
(b) Is precluded from denying to a holder in due course the genuineness
and regularity in all respects of the drawer ’s signature and all
previous indorsements;
(c) Is precluded from denying to his immediate or a subsequent
indorsee that he bill was at the time of his indorsement a valid and
subsisting bill, and that he had then a good title to it.

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185

56 Stranger signing bill liable as indorser

Where a person signs a bill otherwise than as drawer or acceptor, he thereby
incurs the liabilities of an indorser to a holder in due course.

57 Measure of damages against parties to dishonoured bill

Where a bill is dishonoured, the measure of damages, which shall be deemed
to be liquidated damages, shall be as follows –
(a) The holder may recover from any party liable on the bill, and the
drawer who has been compelled to pay the bill may recover from
the acceptor, and an indorser who has been compelled to pay the
bill may recover from the acceptor or from the drawer, or from a
prior indorser –
(i) the amount of the bill;
(ii) interest thereon from the time of presentment for payment if
the bill is payable on demand, and from the maturity of the bill
in any other case;
(iii) the expenses of noting, or, when protest is necessary and the
protest has been extended, the expenses of protest;
(b) In the case of a bill that has been dishonoured abroad, in lieu of the
above damages the holder may recover from the drawer or an
indorser, and the drawer or an indorser who has been compelled to
pay the bill may recover from any party liable to him, the amount
of the re-exchange, with interest thereon until the time of payment;
(c) Where by this Act interest may be recovered as damages, such
interest may, if justice requires it, be withheld wholly or in part,
and, where a bill is expressed to be payable with interest at a given
rate, interest as damages may or may not be given at the same rate
as interest proper.

58 Transferor and transferee by delivery

(1) Where the holder of a bill payable to bearer negotiates it by delivery
without indorsing it, he is called a “transferor by delivery”.
(2) A transferor by delivery is not liable on the instrument.
(3) A transferor by delivery who negotiates a bill thereby warrants to his
immediate transferee being a holder for value that the bill is what it purports to
be, that he has a right to transfer it, and that at the time of transfer he is not award
of any fact which renders it valueless.

59 Payment in due course

Discharge of Bill

(1) A bill is discharged by payment in due course by or on behalf of the drawee or acceptor.
(2) “Payment in due course” means payment to the holder of the bill made at or after its maturity in good faith and without notice that the holder ’s title is defective.
(3) When a bill is paid by the drawer or an indorser it is not discharged,
but –
(a) Where a bill payable to or to the order of a third party is paid by the drawer, the drawer my enforce payment of it against the acceptor, but may not reissue the bill;
(b) Where a bill is paid by an indorser, or where a bill payable to drawer ’s order is paid by the drawer, the party paying it is remitted
186 Niue Laws 2006 Vol 1
to his former rights as regards the acceptor or antecedent parties, and may, strike out his own and subsequent indorsements, and again negotiate the bill.
(4) Where an accommodation bill is paid in due course by the party accommodated the bill is discharged.

60 Banker paying on demand draft bearing forged indorsement

(1) Where a bill payable to order on demand is drawn on a banker, and the
banker on whom it is drawn pays the bill in good faith and in the ordinary course
of business, it is not incumbent on the banker to show that the indorsement of the
payee or any subsequent indorsement was made by or under the authority of the
person whose indorsement it purports to be, and the banker is deemed to have
paid the bill in due course, although such indorsement has been forged or made
without authority.
(2) Where a banker carries on the business of banking at more branches
than one he shall for the purposes of this section, be deemed to be an independent
banker in respect of each of such branches, and a draft issued by one of such
branches and payable at another shall be deemed to be a bill.

61 Where acceptor the holder at maturity

Where the acceptor of a bill is or becomes the holder of it in his own right,
oat or after its maturity, the bill is discharged.

62 Holder may waive his rights

(1) (a) Where the holder of a bill at or after its maturity absolutely and
unconditionally renounces his rights against the acceptor the bill is
discharged.
(b) The renunciation must be in writing, unless the bill is delivered up
to the acceptor.
(2) The liabilities of any party to a bill may in like manner be renounced by
the holder before, at, or after its maturity.
(3) Nothing in this section shall affect the rights of a holder in due course
without notice of any such renunciation.

63 Cancellation

(1) Where a bill is intentionally cancelled by the holder or his agent, and
the cancellation is apparent on it, the bill is discharged.
(2) (a) Any party liable on a bill may in like manner be discharged by the
intentional cancellation of his signature by the holder or his agent.
(b) In such case an indorser who would have had a right of recourse
against the party whose signature has been cancelled is also
discharged.
(3) A cancellation made unintentionally, or under a mistake, or without
the authority of the holder, is inoperative; but where a bill or any signature thereon
appears to have been cancelled the burden of proof lies on the party who alleges
that the cancellation was made unintentionally, or under a mistake or without
authority.

Bills of Exchange Act 1908

187

64 Alteration of bill

(1) (a) Where a bill or acceptance is materially altered without the assent
of all parties liable on the bill, the bill is avoided except as against a
party who has himself made, authorised, or assented to the
alteration, and subsequent indorsers.
(b) Where a bill has been materially altered, but the alteration is not
apparent, and the bill is in the hands of a holder in due course,
such holder may avail himself of the bill as if it had not been altered,
and may enforce payment of it under its original tenor.
(2) In particular, the following alterations are material, namely, any
alteration of the date, the sum payable, the time of payment, the place of payment, and, where a bill has been accepted generally, the addition of a place of payment without the acceptor ’s assent.

Acceptance and Payment for Honour

65 Acceptance for honour supra protest

(1) Where a bill of exchange has been protested for dishonour by non­
acceptance, or protested for better security, and is not overdue, any person, not
being a party already liable on it, may, with the consent of the holder, intervene
and accept the bill supra protest, for the honour of any party liable on it, or for the
honour of a person on whose account the bill is drawn.
(2) A bill may be accepted for honour for part only of the sum for which it
is drawn.
(3) An acceptance for honour supra protest in order to be valid must –
(a) Be written on the bill, and indicate that it is an acceptance for honour;
and
(b) Be signed by the acceptor for honour.
(4) Where an acceptance for honour does not expressly state for whose
honour it is made, it is deemed to be an acceptance for the honour of the drawer.
(5) Where a bill payable after sight is accepted for honour, its maturity is
calculated from the date of the noting for non-acceptance, and not from the date
of the acceptance for honour.

66 Liability of acceptor for honour

(1) The acceptor for honour of a bill by accepting it engages that he will,
on due presentment, pay the bill according to the tenor of his acceptance, if it is
not paid by the drawee, provided that it has been duly presented for payment
and protested for non-payment, and that he receives notice of these facts.
(2) The acceptor for honour is liable to the holder and to all parties to the
bill subsequent to the party for whose honour he has accepted.

67 Presentation to acceptor for honour

(1) Where a dishonoured bill has been accepted for honour supra protest,
or contains a reference in case of need, it must be protested for non-payment before
it is presented for payment to the acceptor for honour or referee in case of need.
(2) Where the address of the acceptor for honour is in the same place where
the bill is protested for non-payment, the bill must be presented to him not later
than the day following its maturity; and where the address of the acceptor for
honour is in some place other than the place where it was protested for non­
payment, the bill must be forwarded for presentment to him not later than the
day following its maturity.
188 Niue Laws 2006 Vol 1
(3) Delay in presentment, or non-presentment is excused by any circumstance that would excuse delay in presentment for payment, or non- presentment for payment.
(4) Where a bill is dishonoured by the acceptor for honour it must be protested for non-payment by him.

68 Payment for honour supra protest

(1) Where a bill has been protested for non-payment, any person may
intervene and pay it supra protest for the honour of any party liable on it, or for
the honour of the person on whose account the bill is drawn.
(2) Where 2 or more persons offer to pay a bill for the honour of different
parties, the person whose payment will discharge most parties to the bill shall
have the preference.
(3) Payment for honour supra protest, in order to operate as such and not
as a mere voluntary payment, must be attested by a notarial act of honour, which
may be appended to the protest or may form an extension of it.
(4) The notarial act of honour must be founded on a declaration made by
the payer for honour, or his agent in that behalf, declaring his intention to pay the
bill for honour, and for whose honour he pays.
(5) Where a bill has been paid for honour, all parties subsequent to the
party for whose honour it is paid are discharged, but the payer for honour is
subrogated for and succeeds to both the rights and duties of the holder, as regards
the party for whose honour he pays and all parties liable to that party.
(6) The payer for honour, on paying to the holder the amount of the bill
and the notarial expenses incidental to its dishonour, is entitled to receive both
the bill itself and the protest, and if the holder does not deliver them up on demand
he shall be liable to the payer for honour in damages.
(7) Where the holder of a bill refuses to receive payment supra protest, he
shall lose his right of recourse against any party who would have been discharged
by such payment.

Lost Bills

69 Holder’s right to duplicate of lost bill

(1) Where a bill has been lost before it is overdue, the person who was the
holder of it may apply to the drawer to give him another bill of the same tenor,
giving security to the drawer if required to indemnify him against all persons
whatever in case the bill alleged to have been lost is found again.
(2) If the drawer, on request as aforesaid, refuses to give such duplicate
bill, he may be compelled to do so.

70 Action on lost bill

In any action or proceeding upon a bill, the Court or a Judge may order
that the loss of the instrument shall not be set up, provided an indemnity is given
to the satisfaction of the Court or Judge against the claims of any other person
upon the instrument in question.

71 Rules as to sets

Bill in a Set

(1) Where a bill is drawn in a set, each part of the set being numbered, and containing a reference to the other parts, the whole of the parts constitute one bill. (2) Where the holder of a set indorses 2 or more parts to different persons,
he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed as if the said parts were separate bills.

Bills of Exchange Act 1908

189
(3) Where 2 or more parts of a set are negotiated to different holders in due course, the holder whose title first accrues it, as between such holders deemed the true owner of the bill; but nothing in this subsection shall affect the rights of a person who in due course accepts or pays the part first presented to him.
(4) The acceptance may be written on any part, and it must be written on one part only.
(5) If the drawee accepts more than one part, and such accepted parts get into the hands of different holders in due course, he is liable on every part as if it were a separate bill.
(6) Where the acceptor of a bill dawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereof. (7) Subject to the preceding rules where any one part of a bill drawn in a
set is discharged by payment or otherwise, the whole bill is discharged.

Conflict of Laws

72 Law governing contracts contained in a bill

Where a bill drawn in one country is negotiated, accepted, or payable in
another, the rights, duties, and liabilities of the parties thereto are determined as follows –
(a) The validity of a bill as regards requisites in form is determined by
the law of the place of issue, and the validity as regards requisites
in form of the supervening contracts, such as acceptance, or
indorsement, or acceptance supra protest, is in each case determined
by the law of the place where the contract was made:
Provided that –
(i) Where a bill is issued out of Niue it is not invalid by reason
only that it is not stamped in accordance with the law of the
place of issue;
(ii) Where a bill issued out of Niue conforms, as regards requisites
in form, to the law of Niue it may, for the purpose of enforcing
payment thereof, be treated as valid as between all persons
who negotiate, hold, or become parties to it in Niue;
(b) Subject to this Act, the interpretation of the drawing, indorsement,
acceptance, or acceptance supra protest of a bill is determined by
the law of the place where such contract was made:
Provided that where an inland bill is indorsed in a foreign country the
indorsement shall, as regards the payer, be interpreted under the law of Niue;
(c) The duties of the holder with respect to presentment for acceptance
or payment and the necessity for or sufficiency of a protest or notice
of dishonour, or otherwise, are determined by the law of the place
where the act is done or the bill is dishonoured;
(d) Where a bill is drawn out of but is payable in Niue and the sum
payable is not expressed in the currency of Niue, the amount shall,
in the absence of some express stipulation, be calculated under the
rate of exchange for sight drafts at the place of payment on the day
the bill is payable;
(e) Where a bill is drawn in one country and is payable in another, the
due date thereof is determined under the law of the place where it
is payable.
190 Niue Laws 2006 Vol 1

73 “Cheque” defined

PART 2
CHEQUES ON A BANK
(1) A cheque is a bill of exchange drawn on a banker payable on demand. (2) Except as otherwise provided in this Part, the provisions applicable to
a bill of exchange payable on demand apply to a cheque.

74 Presentment of cheques for payment

Subject to this Act, –
(a) Where a cheque is not presented for payment within a reasonable
time after its issue, and the drawer or the person on whose account
it is drawn had the right at the time of such presentment as between
himself and the banker to have the cheque paid, and suffers actual
damage through the delay, he is discharged to the extent of such
damage – that is to say, to the extent to which such drawer or person
is a creditor of such banker to a larger amount than he would have
been had such cheque been paid;
(b) In determining what is a reasonable time regard shall be had to the
nature of the instrument, the usage of trade and of bankers, and the
facts of the particular case;
(c) The holder of such cheque as to which such drawer or person is
discharged shall be a creditor, in lieu of such drawer or person, of
such banker to the extent of such discharge, and shall be entitled to
recover the amount from him.

75 Revocation of banker’s authority

(1) The duty and authority of a banker to pay a cheque drawn on him by
his customer are determined by –
(a) Countermand of payment;
(b) Notice of the customer ’s death.
(2) Notwithstanding section 1(b) a banker may pay a cheque drawn on
him, notwithstanding that he has notice of the death of the customer who drew it,
if the cheque is presented not more than 10 days after the date of the customer ’s
death, unless –
(a) The cheque is dated after that date; or
(b) The banker receives a countermand of payment by a person who
claims to be entitled to a grant of administration in respect of or to
be a beneficiary of the customer ’s estate.

Crossed Cheques

76 General and special crossings defined

(1) Where a cheque bears across its face an addition of –
(a) The words “and company” or “bank” or any abbreviation between
2 parallel transverse lines, either with or without the words “not
negotiable“; or
(b) 2 parallel transverse lines simply, either with or without the words
“not negotiable” –
that addition constitutes a crossing, and the cheque is crossed generally.
(2) Where a cheque bears across its face an addition of the name of a banker,
either with or without the words “not negotiable”, that addition constitutes a
crossing, and the cheque is crossed specially, and to that banker.

Bills of Exchange Act 1908

191

77 Crossing by drawer or after issue

(1) A cheque may be crossed generally or specially by the drawer.
(2) Where a cheque is uncrossed, the holder may cross it generally or
specially.
(3) Where a cheque is crossed generally, the holder may cross it specially.
(4) Where a cheque is crossed generally or specially, the holder may add
the words “Not negotiable”.
(5) Where a cheque is crossed specially, the banker to whom it is crossed
may again cross it specially to another banker for collection.
(6) Where an uncrossed cheque, or a cheque crossed generally, is sent to a
banker for collection, the banker may cross it specially to himself.

78 Crossing to be deemed a material part of cheque

A crossing authorised by this Act is a material part of the cheque, and no
person may obliterate or, except as authorised by this Act, add to or alter the
crossing.

79 Duties of banker as to crossed cheques

(1) Where a cheque is crossed specially to more than one banker, except
when crossed to an agent for collection being a banker, the banker on whom it is
drawn shall refuse payment thereof.
(2) Where the banker on whom a cheque so crossed is drawn nevertheless
pays the same, or pays a cheque crossed generally otherwise than to a banker, or
if crossed specially otherwise than to the banker to whom it is crossed, or his
agent for collection being a banker, he is liable to the true owner of the cheque for
any loss he may sustain owing to the cheque having been so paid.
(3) Where a cheque presented for payment does not at the time of
presentment appear to be crossed, or to have had a crossing which has been
obliterated, or to have been added to or altered otherwise than as authorised by
this Act, the banker paying the cheque in good faith and without negligence shall
not be responsible or incur any liability, nor shall the payment be questioned by
reason of the cheque having been crossed, or of the crossing having been obliterated
or having been added to or altered otherwise than as authorised by this Act, and
of payment having been made otherwise than to a banker, or to the banker to
whom the cheque is or was crossed, or to his agent for collection being a banker,
as the case may be.

80 Protection to banker and drawer where cheque is crossed

Where the banker on whom a crossed cheque is drawn pays it in good faith
and without negligence, if crossed generally, to a banker, and, if crossed specially,
to the banker to whom it is crossed, or to his agent for collection being a banker,
the banker paying the cheque, and, if the cheque has come into the hands of the
payee, the drawer, shall respectively be entitled to the same rights and be placed
in the same position as if payment of the cheque has been made to the true owner.

81 Effect of the words “Not negotiable”

Where a person takes a crossed cheque bearing on it the words “Not
negotiable”, he shall not have and shall not be capable of giving a better title to
the cheque than that which the person from whom he took it had.

82 [Repealed 1960/s8(1)]

192 Niue Laws 2006 Vol 1

83 Branch banks deemed independent banks for certain purposes

Where a banker carries on the business of banking at more branches than one
he shall, for the purposes of section 76 to 81 and for the purposes of the Cheques Act
1960, be deemed to be an independent banker in respect of each of such branches.
PART 3
PROMISSORY NOTES

84 “Promissory note” defined

(1) A promissory note is an unconditional promise in writing made by one
person to another, signed buy the maker, engaging to pay on demand, or at a
fixed or determinable future time, a sum certain in money to or to the order of a
specified person or to a bearer.
(2) An instrument in the form of a note payable to maker ’s order is not a
note within the meaning of this section unless and until it is indorsed by the maker.
(3) A note is not invalid by reason only that it contains also a pledge of
collateral security, with authority to sell or dispose thereof.
(4) A note that is, or on the face of it purports to be, both made and payable
in Niue is an inland note; any other note is a foreign note.

85 Delivery necessary

A promissory note is incomplete until delivery to the payee or bearer.

86 Joint and several notes

(1) A promissory note may be made by 2 or more makers, and they may be
liable thereon jointly, or jointly and severally, according to its tenor.
(2) Where a note runs “I promise to pay” and is signed by 2 or more persons,
it is deemed to be their joint and several note.

87 Note payable on demand

(1) (a) Where a note payable on demand is indorsed, it must be presented
for payment within a reasonable time of the indorsement.
(b) If it is not so presented, the indorser is discharged.
(2) In determining what is a reasonable time regard shall be had to the
nature of the instrument, the usage of trade, and the facts of the particular case.
(3) Where a note payable on demand is negotiated, it is not deemed to be
overdue, for the purposes of affecting the holder with defects of title of which he
had no notice, by reason that it appears that a reasonable time for presenting it for
payment has elapsed since its issue.

88 Presentment of note for payment

(1) Where a promissory note is in the body of it made payable at a particular
place, it must be presented for payment at that place in order to render the maker
liable; but in any other case presentment for payment is not necessary in order to
render the maker liable.
(2) Presentment for payment is necessary in order to render the indorser
of a note liable.
(3) Where a note is in the body of it made payable at a particular place,
presentment at that place is necessary in order to render an indorser liable; but
when a place of payment is indicated by way of memorandum only, presentment
at that place is sufficient to render the indorser liable, but a presentment to the
maker elsewhere, if sufficient in other respects, shall also suffice.

Bills of Exchange Act 1908

193

89 Liability of maker

The maker of a promissory note, by making it –
(a) Engages that he will pay it under is tenor;
(b) Is precluded from denying to a holder in due course the existence
of the payee and his then capacity to indorse.

90 Application of Part 1 to notes

(1) Subject to this Part the provisions of this Act relating to bills of exchange
apply, with the necessary modifications, to promissory notes.
(2) In applying those provisions the maker of a note shall be deemed to
correspond with the acceptor of a bill, and the first indorser of a note shall be
deemed to correspond with the drawer of an accepted bill payable to drawer ’s
order.
(3) The following provisions as to bills do not apply to notes – (a) Presentment for acceptance;
(b) Acceptance;
(c) Acceptance supra protest;
(d) Bills in a set.
(4) Where a foreign note is dishonoured, protest of it is unnecessary.

91 Good faith

PART 4
MISCELLANEOUS
A thing is deemed to be done in good faith within the meaning of this Act where it is in fact done honestly, whether it is done negligently or not.

92 Signature

(1) Where by this Act any instrument or writing is required to be signed
by any person, it is not necessary that he should sign it with his own hand, but it
is sufficient if his signature is written on it by some other person by or under his
authority.
(2) Where a corporation makes any instrument or writing required to be
signed, it is sufficient if the instrument or writing is sealed with the corporate seal.
(3) Nothing in this section shall be construed as requiring the bill or note
of a corporation to be under seal.

93 Computation of time

Where by this Act the time limited for doing any act or thing is less than 3
days, in reckoning time non-business days are excluded.

94 When noting equivalent to protest

For the purposes of this Act, where a bill or note is required to be protested
within a specified time or before some further proceeding is taken, it is sufficient
that the bill has been noted for protest before the expiration of the specified time
or the taking of the proceeding; and the formal protest may be extended at any
time thereafter to take effect from the date of the noting.
194 Niue Laws 2006 Vol 1

95 Protest when notary not accessible

(1) Where a dishonoured bill or note is authorised or required to be
protested, and the services of a notary cannot be obtained at the place where the
bill is dishonoured, any householder or substantial resident of the place may, in
the presence of 2 witnesses, give a certificate, signed by them, attesting the
dishonour of the bill, and the certificate shall in all respects operate as if it were a
formal protest of the bill.
(2) The form given in Schedule 2 may be used with necessary
modifications, and if used shall be sufficient.

96 Bill drawn at sight to be deemed a bill payable on demand

Every bill of exchange or promissory note drawn and purporting to be
payable at the sight or on presentation shall be stamped as and shall for all purposes
be deemed to be a bill of exchange or promissory note payable on demand without
any days of grace, any law or custom or to the contrary notwithstanding.
they are inconsistent with the express provisions of this Act, shall continue to apply to bills of exchange, promissory note, and cheques.

SCHEDULES SCHEDULE 1

Section 1 (2)

[Spent]

SCHEDULE 2

Section 95 (2)

PROTEST WHERE THE SERVICES OF A NOTARY CANNOT BE OBTAINED

Know all men that I, A.B. [householder] of , in Niue at

the request of C.D., there being no notary public available did on the day of 20

, at , demand payment [or acceptance] of the bill of exchange hereunder written,

from E.F., to which demand he made answer [State answer, if any]: Wherefore I now, in

the presence of G.H. and J.K., do protest the said bill of exchange.

G.H.) Witnesses

J.K. )

(Signed) A.B.

[NB. The bill itself should be annexed, or a copy of the bill and all that is written on it should be underwritten.]

195

BROADCASTING ACT 1989

1989/132 – 8 June 1989

	PART 1		PART 4
	PRELIMINARY		FINANCIAL PROVISIONS
1	Short title	25	Capital
2	Interpretation	26	Bank accounts
3	Application	27	Application of funds
4	General objectives of the Act	28	Disposition of profits
		29	Advances to Corporation
	PART 2	30	Investment of excess funds
	THE BROADCASTING CORPORATION	31	Annual estimates
5	The Corporation established	32	Accounts and records
6	Services of Corporation	33	Audit
7	Functions and powers of the Corporation	34	Annual report
8	Government policy
9	Programme functions and powers		PART 5
10	Board of Directors		PROGRAMMES
11	Term of office of appointed directors	35	Programme standards
12	Extraordinary vacancies	36	Advertisements
13	Chairman
14	Remuneration of directors		PART 6
15	Meetings of directors		MISCELLANEOUS
16	Leave of absence	37	Power to require certain transmissions
17	Disclosure of interests	38	Power of Corporation to charge fees
18	Directors not personally liable	39	Contracts for services and programmes
19	Contracts by the Corporation	40	Regulations
20	Committees	41	[Spent]
21	Delegation of powers
			PART 7
	PART 3		TRANSITIONAL PROVISIONS
	PERSONNEL	42	[Spent]
22	General Manager	43	Personnel
23	Corporation employees	44	[Spent]
24	Public Service terms and conditions

196 Niue Laws 2006 Vol 1

To establish the Broadcasting Corporation of Niue for the provision of television and radio services and for related purposes

1 Short title

PART 1
PRELIMINARY
This is the Broadcasting Act 1989.

2 Interpretation

In this Act –
“advertisement” means any matter which draws the attention of the public,
or a segment thereof, to a product, service, person, organisation or line
of conduct in a manner which appears to be calculated to promote or
oppose, directly or indirectly, that product, service, person, organisation
or line of conduct;
“Board” means the Board of Directors appointed under this Act;
“broadcasting” means the transmission of sound and/or visual images
intended for direct reception by the general public;
“community announcement” means an advertisement relating to a
community event or activity or to public health or education;
“Corporation” means the Broadcasting Corporation of Niue established
by this Act;
“Minister” means the Minister for the time being in charge of broadcasting;
“programme” means any matter including an advertisement transmitted
as part of the Corporation’s television and/or radio services;
“radio service” means the service called Radio Sunshine established by
this Act;
“regulations” means regulations made under section 40;
“services” in addition to Radio Sunshine and Television Niue, includes
any other service established by the Corporation;
“television service” means the service called Television Niue established
by this Act.

3 Application

(1) This Act shall bind the Crown except as specified in this Act or the
regulations but nothing in this Act shall render the Crown liable to any prosecution.
(2) Except as otherwise provided, this Act shall be read subject to the
Communications Act 1989.
(3) Subject to this Act, the Film and Public Entertainment Act 1979 shall
not apply to the Corporation.

4 General objectives of the Act

The general objectives of this Act are –
(a) To provide for national broadcasting to be controlled by a
corporation which, subject to this Act, acts as a trustee of the national
interest and operates its services with the maximum independence;
(b) To provide a means of ensuring that television and radio
programmes are compatible with the identity and culture of Niue;
and
(c) To provide for the ultimate accountability of the broadcasting system
to the Niue Assembly through the Minister and Cabinet.

Broadcasting Act 1989

197
PART 2
THE BROADCASTING CORPORATION

5 The Corporation established

(1) There is hereby established a corporation to be called the Broadcasting
Corporation of Niue.
(2) The Corporation shall be a body corporate with perpetual succession
and a common seal, and shall be capable of acquiring, holding, and disposing of
real and personal property, of suing and being sued, and of doing and suffering
all such acts and things as bodies corporate may do and suffer.
(3) All courts, judges and persons acting judicially shall take judicial notice
of the imprint of the seal of the corporation appearing on a document and shall
presume that the document was duly sealed.

6 Services of Corporation

(1) The Corporation shall maintain the following services –
(a) The existing service called Radio Sunshine;
(b) The existing service called Television Niue;
(c) Such other services as the Corporation may from time to time
establish.
(2) Cabinet may, on the recommendation of the Corporation, approve the
disestablishment of any of the services mentioned in subsection (1) (a) and (b).

7 Functions and powers of the Corporation

(1) The functions of the Corporation are to provide national broadcasting
services for Niue and if so directed by Cabinet to places outside Niue, which –
(a) Serve as far as practicable, all the people of Niue;
(b) Contribute to the development of national unity;
(c) Preserve and stimulate pride in the indigenous culture and
traditions of the people of Niue; and
(d) Consist of a variety of programmes which inform, educate and
entertain.
(2) Subject to this Act the Corporation has power to do all things necessary
or convenient to be done for or in connection with the performance of its functions
and, in particular has power –
(a) To enter into contracts;
(b) To acquire, hold and dispose of real or personal property;
(c) To occupy, use and control any land or building owned or held
under lease by the State and made available for the purposes of the
Corporation;
(d) To erect buildings and structures and carry out works;
(e) To appoint agents and attorneys, and to act as agent for other
persons;
(f) To engage persons to perform services for the Corporation;
(g) To accept gifts, devises and bequests made to the Corporation,
whether on trust or otherwise, and to act as trustee of moneys or
other property vested in the Corporation on trust;
(h) To borrow money from any bank or lending institution (with or
without security) on such terms and conditions it may agree to;
and
(i) To do anything incidental to any of its powers.
(3) The Corporation shall not borrow any sums up to $20,000 without first
obtaining the Minister ’s concurrence, and further shall not borrow any sums of
more than $20,000 without first obtaining Cabinet’s approval.
198 Niue Laws 2006 Vol 1

8 Government policy

(1) In the exercise of its functions and powers the Corporation shall have
regard to the general policy of the Government in relation to broadcasting or to
the functions and powers of the Corporation as that policy is communicated to
the Corporation by Cabinet, and shall comply with any directions given by Cabinet
to the Corporation by notice in writing pursuant to any such policy.
(2) Nothing in subsection (1) authorises Cabinet to give a direction in
respect of –
(a) A particular programme;
(b) The gathering or presentation of news or the preparation or
presentation of current affairs programmes;
(c) Contracts for the provision of programmes; or
(d) The staffing of the Corporation.

9 Programme functions and powers

The programme functions and powers of the Corporation shall be –
(a) To ensure that each Service operates as a public service to provide
and produce programmes which inform, educate, and entertain;
(b) To establish a system for the gathering of news for television, and a
system for the gathering of news for radio; and to make such news
available for the services;
(c) To negotiate for and purchase or otherwise acquire programmes,
and rights or privileges in respect of sports fixtures and other events,
occasions, meetings, functions, or incidents of public interest for
broadcast by the Services, and to establish procedures for the
allocation of such programmes, rights, or privileges to the Services;
(d) To conduct or commission a programme, audience research, market,
or technical surveys, which may be released to such persons and in
such manner and on such terms and conditions as the Corporation
thinks fit.

10 Board of Directors

(1) The Corporation shall be governed by a Board of Directors consisting
of the following Directors:
(a) Four persons appointed under subsection (2);
(b) The Financial Secretary ex officio;
(c) The Director of Community Affairs ex officio.
(2) The directors specified in subsection (1) (a) shall be appointed by
Cabinet as follows:
(a) One director to represent commercial interests;
(b) One director to represent youth interests;
(c) One director to represent religious interests;
(d) One director to represent women.
(3) No other person may be appointed under subsection (2) to be a director
or may continue to hold office as a director so appointed, while he is a person
holding a full time office of emolument in the Corporation.
(4) Without limiting the generality of the powers and functions of the
Corporation as provided under this Act, the Board shall –
(a) Ensure that the functions of the Corporation are performed
efficiently with the maximum benefit to the people of Niue;
(b) Maintain the independence and integrity of the Corporation subject
to this Act;

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(c) Ensure that the assets of the Corporation are as far as practicable preserved, maintained and utilised in a manner consistent with the functions of the Corporation; and
(d) Ensure that the Corporation does not contravene or fail to comply with any of the provisions of this Act or any directions given under section 8.

11 Term of office of appointed directors

(1) Every director appointed under section 10 (2) shall be appointed for a
term of 2 years.
(2) Subject to section 12 every appointed director shall continue to hold
office until his successor comes into office.
(3) Every appointed director may be reappointed.

12 Extraordinary vacancies

(1) Any appointed director may at any time resign his office by notice in
writing delivered to the Clerk of Cabinet.
(2) Cabinet may remove any appointed director from office –
(a) For disability, neglect of duty, misconduct, or bankruptcy; or
(b) If the director has permanently left Niue; or
(c) If the director is absent from three consecutive meetings of the Board
without leave of absence from the Board as required under section
16.
(3) If an appointed director dies, or resigns, or is removed from office under
this section, the vacancy thereby occurring shall be deemed to be an extraordinary
vacancy, and may be filled by an appointment made in the same manner as that of
the director vacating office.
(4) Any person appointed to fill an extraordinary vacancy shall hold office
for the unexpired balance of the term of office of his predecessor, but may be
reappointed.
(5) The powers of the Board shall not be affected by any vacancy in its
membership.

13 Chairman

(1) Cabinet shall appoint one of the Directors specified under section 10
(1) (a) to be the Chairman of the Board.
(2) The Chairman shall hold office as such for a period of 3 years from the
date of his appointment unless he sooner ceases to be a director, and may be
reappointed as such.

14 Remuneration of directors

Every director shall be paid such fees as may be fixed by Cabinet by
regulations made under this Act.

15 Meeting of directors

(1) [Spent]
(2) Meetings of directors shall be held at least once every 2 months at such
times and places as the Chairman or the directors appoint.
(3) The Chairman shall call a meeting whenever required to do so in writing
by any 3 directors.
(4) At any meeting 5 directors shall form a quorum.
(5) The Chairman shall preside at every meeting at which he is present.
200 Niue Laws 2006 Vol 1
(6) If the Chairman is for any reason absent from a meeting, the directors present shall elect one of their number to preside at that meeting.
(7) (a) In the absence from any meeting of a director ex officio, he may authorise any other officer of his department or (in the case of the General Manager) of the Corporation to attend the meeting in his place.
(b) Any officer so authorised shall be deemed for all purposes to be a director of the Corporation when he so attends that meeting.
(8) At every meeting the Chairman or other person presiding shall have a
deliberative vote and in the case of an equality of votes, he shall also have a casting
vote.
(9) Every question arising at a meeting shall be decided by a majority of the votes recorded on the question.
(10) Subject to this Act, the Board may regulate its procedure in such manner as it thinks fit.

16 Leave of absence

The Board may grant leave to a director to be absent from a meeting of the
Board upon such conditions as to remuneration or otherwise as the Board thinks
fit.

17 Disclosure of interests

(1) A director who has a direct or indirect pecuniary interest in a matter
being considered or about to be considered by the Board shall, as soon as possible
after the relevant facts have come to his knowledge, disclose the nature of his
interest at a meeting of the Board.
(2) A disclosure under subsection (1) shall be recorded in the minutes of
the meeting of the Board and the director shall not –
(a) Be present during any deliberation of the Board with respect to
that matter; or
(b) Take part in any decision of the Board with respect to that matter;
or
(c) In any way influence any decision of the Board.
(3) Notwithstanding subsection (2)(a), the director shall be counted as
present for the purpose of forming a quorum of the Board for any such deliberation
or decision.

18 Directors not personally liable

No director of the Corporation shall be personally liable for any act done
or default made by the Corporation or by any of its members in good faith in the
course of its operations.

19 Contracts by the Corporation

(1) Contracts on behalf of the Corporation may be made as follows –
(a) Any contract which, if made between private persons, must be by
deed shall, if made by the Corporation, be in writing under the
common seal of the Corporation;
(b) Any contract which, if made between private persons, must be in
writing signed by the parties to be charged therewith shall, if made
by the Corporation, be in writing either under the common seal of
the Corporation or signed by any person on behalf and by direction
(either general or specific) of the Corporation;

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(c) Any contract which, if made between private persons may be made orally, may if made by the Corporation be made orally by any person on behalf and by direction (either general or specific) of the Corporation.
(2) So far as reasonably practicable contracts of the Corporation shall be made in writing.
(3) The common seal of the Corporation shall not be affixed to any document except in pursuance of a resolution of the Board and the execution of any document so sealed shall be attested by 2 directors.

20 Committees

(1) The Corporation may appoint committees consisting of any directors
of officers of the Corporation.
(2) Subject to this Act and to any directions given to it by the Corporation,
every committee may regulate its procedure in such manner as it thinks fit.

21 Delegation of powers

(1) The Corporation may delegate to any of its committees, or to the General
Manager, or to any other officer of the Corporation any of its powers under this
Act, including this present power of delegation.
(2) Subject to any general or specific directions given to it or to him by the
Corporation, any committee or person to whom any powers are so delegated may
exercise those powers in the same manner and with the same effect as if they had
been conferred on it or him directly by this Act and not by delegation.
(3) Any committee or person purporting to act under any delegation under
this section shall be presumed, until the contrary is proved, to be acting in
accordance with the terms of the delegation.
(4) Every such delegation shall be revocable at will, and no such delegation
shall prevent the exercise of any power by the Corporation itself.
(5) Until any such delegation is revoked, it shall continue in force according
to its tenor, notwithstanding any change in the membership of the Corporation or
of any committee.

22 General Manager

PART 3
PERSONNEL
(1) The Board, shall appoint a General Manager of the Corporation, for such period (not exceeding 2 years) as may be specified in the appointment, and on such terms and conditions as may be determined by the Board.
(2) (a) The General Manager shall be the administrative head of the Corporation, and shall be responsible to the Corporation for the effective and efficient execution of the Corporation’s functions.
(b) In carrying out his duties, he shall follow any general or special directions given to him by the Corporation.
(3) The General Manager may be reappointed.
(4) All remuneration and other allowances and expenses payable to the
General Manager shall be paid out of the funds of the Corporation.
(5) The General Manager shall not engage in any other business or
occupation.
202 Niue Laws 2006 Vol 1

23 Corporation employees

(1) The Corporation may employ such officers and employees as it
considers necessary for the performance of its functions, on such terms and
conditions as provided under section 24, and may at any time remove any such
officer or employee from his office or employment.
(2) For the purposes of article 62 of the Constitution the General Manager
and other employees of the Corporation shall not be regarded as members of the
Niue Public Service.

24 Public Service terms and conditions

(1) The Corporation shall, with any necessary modifications, apply the
terms and conditions applicable to the Niue Public Service, to the remuneration
and conditions of employment of the employees of the Corporation in the same
manner as they apply to the remuneration and conditions of employment of
employees in the Niue Public Service.
(2) Notwithstanding subsection (1) the Corporation may, with the express
approval of Cabinet, apply to its employees terms and conditions more favourable
than those applicable to the Niue Public Service.

25 Capital

PART 4
FINANCIAL PROVISIONS
(1) The capital of the Corporation shall be $266,000 made up as follows – (a) As to the amount of $190,000 representing a book value of all the assets of Radio Sunshine and Television Niue as of 31 March 1989;
and
(b) A cash grant of $76,000 to be made by the Government of Niue to
the Corporation on the commencement of this Act.
(2) (a) The Corporation may by resolution and with the concurrence of
the Minister, recommend to Cabinet that the capital of the
Corporation be increased, and in any such case Cabinet, on the
advice of the Minister of Finance, may, by regulation increase the
capital of the Corporation to such amount as may be prescribed in
that regulation.
(b) The amount of any such increase shall be paid to the Corporation
by the Minister of Finance, from money appropriated by the
Assembly for that purpose.
(3) The whole of the capital of the Corporation for the time being shall be
deemed to be vested in the Crown.

26 Bank accounts

(1) The Corporation shall open and maintain an account with a bank
approved by the Board and shall pay to that account –
(a) All capital grants made under section 25 (1)(b);
(b) All advances made under section 29;
(c) All fees charged by the Corporation under section 38;
(d) All other money derived from the operations of the Corporation or
received by the Corporation from any source whatsoever.
(2) The bank account shall be operated upon only by cheque or other
instruments (not being a promissory note or bill) signed by such person or persons
as may be authorised by the Corporation for that purpose.

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27 Application of funds

The funds of the Corporation shall be applied only –
(a) In payment or discharge of the expenses, charges, obligations, or
liabilities incurred or undertaken by the Corporation in or in
connection with the performance of its functions or the exercise of
its powers;
(b) In making any other payments that are required by law to be made
out of the funds of the Corporation.

28 Disposition of profits

(1) The Corporation shall establish a Reserve Fund into which shall be
paid the annual surplus of the Corporation.
(2) The annual surplus shall consist of so much of the annual income of
the Corporation as is not required for the payment of expenses, including staff,
salaries, and allowances; provision for previous losses, bad and doubtful debts;
depreciation of assets; and all such other matters as the Corporation considers
proper.
(3) [Spent]
(4) (a) During subsequent years the Corporation shall declare a dividend
on the capital of the Corporation of such amount as may be fixed in
that behalf by the Minister of Finance, after consultation by him
with the Corporation.
(b) The Minister of Finance, having regard to the financial position of
the Corporation, may in any financial year determine that no
dividend shall be payable by the Corporation in respect of that year.
(5) The amount of any dividend declared by the Corporation under this
section shall be paid into the Niue Government Account.

29 Advances to Corporation

(1) Cabinet may –
(a) Advance money to the Corporation; or
(b) Give in respect of any advance made to the Corporation by any
other person any guarantee, indemnity, or security on and subject
to such terms and conditions as Cabinet thinks fit.
(2) All money required to be paid by Cabinet under subsection (1)(a) shall
be paid out of the Niue Government Account as appropriated by the Assembly
for that purpose.
(3) Cabinet may enter into agreements with the Corporation for the
purposes of giving full effect to this section.

30 Investment of excess funds

Any excess funds of the Corporation may be invested on deposit in any
bank approved by the Board.

31 Annual estimates

(1) The Corporation shall, for each financial year, prepare an estimate in a
form approved by the Minister of Finance, of the amount of expenditure for all
purposes, and the receipts of the Corporation.
(2) The estimates so prepared shall be submitted to the Minister not later
than such date as the Minister directs, for the approval of such estimates by Cabinet,
and the funds of the Corporation shall not be expended otherwise than in
accordance with estimates of expenditure so approved.
204 Niue Laws 2006 Vol 1

32 Accounts and records

The Corporation shall cause to be kept proper accounts and records of the
transactions and affairs of the Corporation and shall do all things necessary to
ensure that all payments out of its funds are correctly made and properly authorised
and that adequate control is maintained over the assets of or in the custody of the
Corporation and over the incurring of liabilities by the Corporation.

33 Audit

The accounts and records of financial transactions of the Corporation shall
be audited annually by the Government Auditors and a report of the audit shall
be furnished to the Corporation and Cabinet.

34 Annual report

The Corporation shall within 3 months after the end of the Corporation’s
financial year prepare and furnish to the Minister a report on its operations during
the year ended on that date together with financial statements in respect of that
year in such form as the Minister of Finance approves.

35 Programme standards

PART 5
PROGRAMMES
(1) Subject to any advice that the Corporation may receive from the Programme Advisory Committee pursuant to section 13 of the Communications Act 1989, the Corporation shall be responsible for maintaining, in its programmes and their presentation, standards which will be generally acceptable in the community, and in particular it shall have regard to –
(a) The provision of a range of programmes which will cater in a
balanced way for the varied interests of different sections of the
community;
(b) The needs to ensure as far as practicable, that a Niuean identity is
developed and maintained in the services;
(c) The observance of standards of good taste and decency;
(d) The accurate and impartial gathering and presentation of news
according to recognised standards of objective journalism;
(e) The principle that when controversial issues of public importance
are discussed, reasonable efforts are made to present significant
points of view either in the same programme or in other
programmes within the period of current interest;
(f) The maintenance of law and order; and
(g) The privacy of the individual.
(2) In ensuring compliance with subsection (1)(c), the Corporation shall
be guided by such guidelines as are applied by the Censor of Films under the
Film and Public Entertainment Act 1979, notwithstanding section 3(3) of this Act.

36 Advertisements

(1) Notwithstanding section 12(1)(a) of the Communications Act 1989 the
Corporation shall be empowered to transmit advertisements through any of its
services.
(2) In making such transmissions the Corporation shall take into account
Cabinet’s policies on matters of advertising and shall further take into account
any guidelines established by the Programme Advisory Committee under section
13(5) of the Communications Act.

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PART 6
MISCELLANEOUS

37 Power to require certain transmissions

(1) When required to do so by the Minister, the Corporation shall make
the service available to transmit any programme the Minister with Cabinet’s
approval, considers to be in the national interest.
(2) The Corporation shall not be obliged to make the service available under
subsection (1) for more than 1 hour in any one day.
(3) During any period of national emergency proclaimed under section 2
of the Public Emergency Act 1979 –
(a) The limitation referred to in subsection (2) shall not apply; and
(b) The Corporation shall make the service available to authorised
officers of the Government to transmit such matter as the Minister
with Cabinet’s approval, considers necessary.
(4) The power of the Minister under subsection (1) does not include the
power to require the Corporation to transmit any programme or other matter that
could reasonably be interpreted as promoting or opposing:
(a) A candidate in an election; or
(b) A particular point of view in relation to an issue or matter that is
being submitted to the electorate in an election.

38 Power of Corporation to charge fees

(1) The Corporation may recommend to Cabinet the level of fees that the
Corporation would charge for any of its services.
(2) The fees to be charged shall be set by Cabinet by regulations under
section 40.

39 Contracts for services and programmes

The Corporation may enter into such contracts and make such arrangements
as it thinks fit with any person who, subject to the terms and conditions of any
such contract or arrangement, will produce programmes or parts of programmes
to be broadcast by the Corporation.

40 Regulations

Cabinet may, on the recommendation of the Corporation, make regulations
necessary for carrying out or giving full effect to this Act.

41 [Spent]

42 [Spent]

PART 7
TRANSITIONAL PROVISIONS

43 Personnel

(1) (a) Notwithstanding sections 22 and 23 the Corporation may employ
the General Manager and other employees on a secondment basis
from the Niue Public Service, on such arrangements as agreed upon
with the Niue Public Service Commission.
(b) The Corporation shall have the sole discretion as to which
employees of the Niue Public Service are to be engaged on such
basis.

206 Niue Laws 2006 Voll

(2) During the term of such employment the General Manager and other staff shall come under the full control of the Corporation notwithstanding the continuance of their status as members of the Niue Public Service.

44 [Spent]

207

BUILDING CODE ACT 1992

1992/165 – 5 November 1992

21-22 [Spent]

To make provision for a code to regulate the construction of buildings in Niue

1 Short title

This is the Building Code Act 1992.

2 Interpretation

In this Act –
“building” means any or part of any structure or erection used or capable
of being used either –
(a) For human habitation;
(b) As a place within or under which work is performed;
(c) For storage of commodities articles or things,
and includes every other structure or erection associated with or having
the purpose of assisting or enhancing such habitation work or storage,
but does not include a structure or erection that is temporary having
regard to the materials from which it is constructed or the purpose for
which it shall be used;
“Building Inspector” means the Building Inspector appointed pursuant to
section 3;
“Code” means the National Building Code prescribed under section 4;
“construct” means to carrying out work (other than temporary work) that
shall have the purpose or effect of supporting adding to altering or
adapting the structure of a building and includes work carried out that
shall have the purpose or effect of supplying water or electricity to or
within a building;
“permit” means building permit issued under this Act.
208 Niue Laws 2006 Vol 1

3 Building Inspector, other inspectors, and delegation

(1) There shall be appointed as members of the Public Service, a Building
Inspector, and such other inspectors as may be required for the purpose of
administering this Act.
(2) The Building Inspector may either generally or particularly delegate to
any inspector, such of his powers as the Building Inspector may determine.
(3) Subject to this section and to any general or special directions given or
conditions attached by the Building Inspector, the inspector to whom any powers
are delegated under this section may exercise those powers in the same manner
and with the same effect as if they had been conferred on the inspector directly by
this section.
(4) Every inspector purporting to act under any delegation under this
section shall be presumed to be acting in accordance with the terms of the
delegation in the absence of proof to the contrary.
(5) Any delegation made under this section may be revoked by the Building
Inspector in whole or in part, and no such delegation shall prevent the exercise of
any power by the Building Inspector.

4 National Building Code

(1) There may be prescribed under section 5, standards and controls relating
to the construction of buildings and such standards and controls shall be known
as the National Building Code.
(2) The National Building Code shall apply to the construction of every
building.

5 Standards and controls

(1) Without limiting the generality of section 4 (1), Cabinet may prescribe
regulations for all or any of the following –
(a) The classification of buildings or parts of a building having regard
to the purpose for which the building is designed constructed or
used;
(b) The structural requirements of a building;
(c) The resistance and stability of a building in the event of fire;
(d) The access to and egress from a building including access and egress
by disabled persons, the provision of escape exits and the
construction of any means of access or egress;
(e) The provision of electricity to and within a building;
(f) The provision of fire fighting equipment and the control of smoke
in a building;
(g) The provision of amenities for the avoidance of health threatening
conditions;
(h) The weatherproofing, supply of water, plumbing, drainage
(including roof drainage) and sewage containment and its disposal;
(i) The provision of cooking and sanitary facilities;
(j) The size of rooms including their height and the provision of light
and ventilation;
(k) The minimum requirements of any of the matters referred to in
paragraphs (a) to (j).
(2) The National Building Code for Niue dated 1990 shall be deemed to be
regulations made under subsection (1).
(3) Cabinet may by regulation add to, delete from or amend any provision
of the Code.

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209

6 Buildings to have permit

(1) No person shall commence or cause to be commenced the construction
of a building or engage in the construction of a building without a building permit
having first been applied for and issued under this Act.
(2) Every person who shall cause to be commenced the construction of a
building and every person engaged in the construction of a building in respect of
which a building permit is not issued in contravention of subsection (1), commits
an offence and upon conviction shall be liable to a fine not exceeding 10 penalty
units.

7 Application for permit

(1) Every person intending to construct a building shall make application
to the Building Inspector for the issue of a permit in respect of the building to be
constructed.
(2) Every application under subsection (1) shall contain all such information
as the Building Inspector may reasonably require to ensure that the building
complies with the Code including –
(a) A site plan detailing –
(i) the location of the building and distance from each boundary
measured from the outer extremities of the building;
(ii) the distance from any existing building within the boundaries
of the site measured from the outer extremities of each building;
(iii) the width of any public road or access way adjacent to a
boundary;
(iv) the location of any water bore and its distance from any waste
disposal facility measured from the outer limits of such facility;
(v) the point at which electricity and water will be made available
to the site and the location of the means by which the building
shall be supplied;
(b) A design plan detailing –
(i) drawings of at least 4 elevations of the building;
(ii) drawings of at least one section of the building which shall
describe the stud height;
(iii) drawings describing the ties;
(c) Specifications;
(d) The dates upon which it is intended –
(i) that construction shall commence;
(ii) that the placement of foundations, and reinforcing studs shall
be completed;
(iii) the walls (without wall linings) and roof shall be completed;
(iv) fixing of wall linings shall commence;
(v) that construction shall be completed;
(e) The address at which the construction will take place;
(f) The name and address of the person who shall be the owner of the
building;
(g) The name and address of the person who shall be responsible for
the construction of the building, and the name and address of every
subcontractor.
(3) No application for a permit shall be granted by the Building Inspector
unless the information required under subsection (2) is submitted to the building
inspector and the building complies with the Code.
210 Niue Laws 2006 Vol 1
(4) In approving the issue of a permit the Building Inspector may, subject to this Act and the Code –
(a) Require an existing building upon which construction work shall be undertaken and in respect of which work, a permit will issue, to comply with the Code to the extent that the work to be undertaken shall allow.
(b) Impose such reasonable terms and conditions that the Building
Inspector deems to ensure that the Code shall be complied with.
(5) Every applicant for a building permit, or where the applicant is absent
or unable to do so, the person who shall be responsible for the construction of the
building, shall notify the Building Inspector in writing of every deletion from or
addition to information contained in an application for a permit.
(6) Every person commits an offence who engages or who causes any other
person to be engaged in the construction of a building and the construction engaged
in is –
(a) Other than in accordance with information supplied to the building controller; and
(b) Without the prior written approval of the building inspector to the
variation of such information;
and upon conviction shall be liable to a fine of 5 penalty units.

8 Validity of permit

(1) Every permit issued under section 7 shall entitle the applicant to
commence or cause to be commenced the construction of the building in respect
of which it is issued and shall remain in force until the construction of the building
is completed consistent with the Code unless –
(a) Such construction is not commenced within the period of 12 months
from the date that the permit was issued, in which case the permit
shall upon the expiry of that period be cancelled under section 12;
or
(b) Construction of the building shall cease for a continuous period of
6 months, in which case the permit shall be cancelled under section
12; or
(c) The permit shall be suspended under section 11 in which case the
permit shall be of no effect during the period for which it is
suspended;
(d) The permit shall be cancelled under section 12 in which case the
permit shall be of no effect from the date that it is cancelled.

9 Inspection of building

(1) It shall be a condition of every permit that where the construction of a
building shall involve work to be inspected, then upon such work having been
undertaken no person engaged in the construction of the building shall undertake
any other work that shall have the effect of preventing the Building Ins ector
from carrying out a visual inspection of that work, until that inspection has actually
been carried out and the building inspector has determined in writing that the
other work may proceed to be undertaken.
(2) In respect of work to be inspected, it shall be the duty of every person
responsible for the construction of a building to –
(a) Notify the Building Inspector when such work may be inspected;
and
(b) Prohibit any work that shall have the effect of preventing such
inspection.

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211
(3) Every person who shall engage in work contrary to subsection (1) and every person responsible for the construction of a building who shall contravene subsection (2) commits an offence and upon conviction shall be liable to a fine not exceeding 5 penalty units.
(4) For the purpose of this Act, work to be inspected shall include –
(a) The footings and foundations (including steelwork) prior to the
pouring of concrete;
(b) The wall framing prior to the affixing of wall coverings;
(c) The roof framing prior to the affixing of ceilings or roofing.
(5) The Building Inspector may, at any reasonable time, enter upon any
land on which a building is being constructed and into any premises in respect of
which a building permit has been issued for the purposes of either –
(a) Determining whether a building permit has been issued under this
Act; or
(b) Ascertaining whether the provisions of this Act, the Code and any
permit are being complied with;
(c) Ensuring that the matters set out in any requisition issued under
section 10 are complied with.
(6) For the purposes of subsection (1), the Building Inspector may interview
any person who shall appear to him to be engaged in the construction of the
building and every person so interviewed shall, if within his knowledge, answer
all questions put to him by the Building Inspector.
(7) Every person who prevents, obstructs or misleads the Building Inspector
in the performance of his duties under this section, or who fails to answer any
question put to him under subsection (6), commits an offence and upon conviction
shall be liable to a fine not exceeding 5 penalty units.

10 Requisitions

(1) The Building Inspector may by requisition under his hand to the person
responsible for the construction of the building, set out with reasonable
particularity any matter that, in his opinion, does not comply with the Code of the
permit and may require the person responsible for the construction of the building
to remedy that inconsistency within a specified period not exceeding 3 months.
(2) Every person who shall be responsible for the construction of a building
and who shall be served with a requisition under subsection (1) shall undertake
or cause to be undertaken such work as shall be necessary to ensure that the matters
set out in the requisition are complied with.

11 Suspension of permit

(1) The Building Inspector may, suspend a permit where –
(a) The provisions of the Code are not being complied with; or
(b) The provisions of the permit are not being complied with; or
(c) The matters set out in a requisition have not been complied with
within the time specified in such requisition; or
(d) He is prevented by the owner of the building or his agents servants
workmen or employees or the person responsible for the
construction of the building from determining whether the
provisions of the Code or the permit are being complied with.
(2) Every permit that is suspended under subsection (1) shall remain
suspended until such time that –
(a) The person who shall be responsible for the construction of the
building causes such construction to comply with any requisition
or the provisions of the Code or permit; or
212 Niue Laws 2006 Vol 1
(b) The building inspector is permitted to determine whether the provisions of the Code or the permit are being complied with and such determination has been made.
(3) Where a permit is suspended, no person shall, while the permit remains suspended, undertake, or cause to be undertaken any further construction of the building to which the permit relates other than that construction as shall be necessary to cause the building to comply with the requisition, the Code or the permit.
(4) Every person who contravenes subsection (3), commits an offence and
upon conviction shall be liable to a fine not exceeding 5 penalty units.

12 Cancellation of permit

(1) Subject to subsection (2), the Building Inspector shall cancel a permit
where –
(a) The construction of the building in respect of which the permit is issued is not commenced within 12 months of the date that the permit was issued; or
(b) The permit has been suspended and remains suspended for a
continuous period of 6 months for reasons within the control of the
owner of the building or the person responsible for the construction
of the building; or
(c) The construction of the building shall have ceased for a continuous
period of 6 months in circumstances indicating that the building to
which the permit applies is unlikely to be completed in accordance
with such permit.
(2) Every person who shall commence or cause to be commenced the
construction of a building or who shall engage in the construction of a building
after the permit in respect of that building has been cancelled commits an offence
and upon conviction shall be liable to a fine not exceeding 5 penalty units.

13 Notice of suspension or cancellation

(1) Every suspension of a permit and every cancellation of a permit under
this Act shall be notified to the applicant of the permit by personal service upon
the applicant of a notice to that effect.
(2) Where the applicant is beyond Niue, then service of the notice upon
the applicant shall be deemed to have been effected if the Building Inspector shall
cause to be delivered a copy of the notice to –
(a) the address at which the building is or was intended by the applicant
to be constructed; or
(b) the person who shall be responsible for the construction of the
building.

14 Appeals

(1) Every person who shall be affected by either a requisition issued under
section 10 or a notice of suspension or of cancellation under section 13, may, within
21 days of being served with a requisition or a notice, appeal to the High Court
against such requisition, suspension or cancellation setting out the grounds upon
which he is dissatisfied and the reasons therefor.
(2) The Court may on appeal confirm vary or annual any requisition, notice
or suspension or notice of cancellation.

Building Code Act 1992

213

15 Demolition order

(1) Where a person is charged with an offence under this Act the Court
may in addition to imposing any penalty that may be prescribed, but subject to subsection (2), order that the building or such part of a building as the Court shall define be removed taken down or demolished under the supervision of the building inspector.
(2) The Court shall not order the removal taking down or demolition of a building or any part of a building unless –
(a) The removal taking down or demolition will facilitate the Building
Inspector carrying out an inspection under section 9; or
(b) The building or the part of it to be removed taken down or
demolished poses a threat to human life; or
(c) The building or the part of it to be removed taken down or
demolished poses a threat to human health or health.

16 Offences

(1) Every person who shall contravene this Act for which no penalty is
prescribed commits an offence and upon conviction shall be liable to a fine not
exceeding . . . .
(2) Where the High Court shall impose a fine for the breach of this Act it
may in addition to imposing such fine order that the person convicted pay a sum
not exceeding . . . . for each day that the offence shall continue after the date that
the conviction shall be entered.

17 Jurisdiction of Commissioners

Three Commissioners of the Court sitting together shall have all jurisdiction
to hear and determine any proceedings under this Act and may hear and determine
any appeal under section 12.

18 Jurisdiction of Court with respect to dangerous deserted, ruinous and dilapidated buildings

(1) Upon being satisfied that any building is either –
(a) In such a condition to be dangerous to persons therein or in any
adjoining building or on any adjoining land or to passers-by; or
(b) In a dilapidated or ruinous condition and is being used in a
disorderly manner so as to be obnoxious to the neighbouring
inhabitants or to the public; or
(c) In a dilapidated and ruinous condition and in the case of a dwelling
house, had not been inhabited by or with the authority of the owner
for 12 months or more;
the Court may, upon application of the Building Inspector and after not less than
3 month’s notice of such application has been given to the owner of the building,
order the building to be secured or taken down, or as the case may be, repaired or
taken down as the Court thinks fit, within a time to be specified in the order.
(2) Every order requiring the building to be secured or repaired shall specify
the manner in which the building shall be so secured or repaired.
(3) If the order is not obeyed, the Building Inspector may cause the building
to be secured or taken down or repaired in compliance with the order.
(4) The building inspector may recover from the owner the cost of securing
or taking down or repairing any building under this section, together with all
expenses incurred by the Building Inspector under this section.
214 Niue Laws 2006 Vol 1
(5) Any such notice or order to the owner may, in the absence of the owner, be given by being posted by registered letter addressed to him at his last known address, or by being served upon his agent or upon the occupier (if any) of the building, or, if the owner ’s address is not known and he has no known agent and the building is unoccupied, by fixing the notice or order on the building.
(6) Any such notice to any other person having an interest in the land may
be given to him by serving the notice upon him personally or by posting it by
registered letter addressed to him at his last known address or by serving it upon
his agent.
(7) If the building is taken down by the Building Inspector, he may destroy
or sell the materials or any part thereof, and apply the proceeds in or towards
payment of the expenses incurred under this section, and shall apply the residue
(if any) in payment of any registered encumbrances on the land in the order of
their priority, and shall upon demand pay the balance (if any) to the owner.

19 Regulations

Cabinet may make regulations necessary or expedient for giving effect to
this Act and its administration including regulations providing for –
(a) The form and content of documentation required for the purpose
of this Act;
(b) The fees that may be charged for receiving an application or granting
any approval;
(c) The reimbursement of costs and expenses incurred by the building
inspector in having an application assessed to ensure that the Code
is complied with.

20 Act to bind Crown

This Act shall bind the Crown.

21-22 [Spent]

215

BUSINESS LICENCE ACT 1997

1997/216 – 1 April 1997

1	Short title
2	Interpretation
3	Administration
4	Foreign enterprises and foreign interests
5	Act not to apply
6	Act not to bind
7	Prohibitions
8	Applications for licence
9	Advertising new applications
10	Receipt of applications
11	Issue of licence
12	Refusal of licence
13	Duration of licence
14	Renewal of licence

29-30 [Spent]

1 Short title

This is the Business Licence Act 1997.

2 Interpretation

In this Act and any regulations made under it –
“business” includes any profession, occupation, or commercial trade,
carried on for the purposes of making, or acquiring a commercial profit,
or commercial gain but, does not include:
(a) The profession, occupation, or function of any person employed as
a servant of the Crown;
(b) The profession of a bona fide minister of religion;
“business person” means –
(a) Any person, or body of persons whether corporate, or unincorporate
engaging in, or carrying on a business;
(b) The agent of a business person (other than an employee) engaged
in carrying on business on behalf of the business person;
“business premises” means any area of land, house, building, place, vehicle,
boat, ship, vessel or aircraft where any business person engages in, or
carries on any business;
“foreign enterprises” and “foreign interest” has the same meaning as under
the Development Investment Act 1992;
“Gazette” means the Gazette, or any other periodic publication printed and
available on Niue;
“goods” means any form of tangible moveable property excluding those
things attached to and forming part of the land unless such things are
to be severed from the land for the purposes of sale;
216 Niue Laws 2006 Vol 1
“hawker” includes any person who, carrying goods, regularly travels to any place in which he does not usually reside and there sells any of those goods;
“licence” means a licence duly issued under section 11 and in force under this Act;
“Licensor” means the Financial Secretary or his appointed agent;
“prescribed fee” means the fee prescribed in the Business Licence
Regulations;
“public show” means an event that takes place on open ground to which
the general public has access whether or not an entrance fee is payable;
“retail business” means a business carried on by a retailer;
“retailer” means any person whose business it is to sell goods to the public
generally, or to any class, or section of the public;
“sale” means a transfer of goods from one person to another inconsideration
of a price paid in money and shall include the bartering, or exchanging
of goods;
“service business” means the business carried on by a service provider;
“service provider” means any person the principle object of whose business
it is to provide services to the public generally, or to any class or section
of the public;
“stall” means a makeshift table and its immediate surrounds from which
goods are sold on any one day;
“wholesale business” means the business of selling goods only to licensed
retailers.

3 Administration

Subject to section 4, this Act shall be administered by the Licensor.

4 Foreign enterprises and foreign interests

This Act shall be subject to the Development Investment Act 1992, in regard
to all foreign enterprises and foreign interests.

5 Act not to apply

(1) This Act shall not apply to any person who carries on the business of
selling goods solely from –
(a) a ‘stall’; or
(b) the ‘makete’ (market) situate at Alofi.
(2) Notwithstanding subsection 1(a) and (b) this Act shall not apply to any
person carrying on the business of a hawker.

6 Act not to bind

This Act shall apply to corporate bodies in which the Crown has a
shareholding, or bodies incorporated by Act of the Assembly but, shall not apply
to the Crown.

7 Prohibitions

(1) Subject to section 5 no person shall directly, or indirectly engage in or
carry on any business unless a licence has first been obtained, provided however,
it shall be lawful for the spouse, child or servant of a licensed business person to
engage in, or carry on the business of that licensed business person.
(2) No licence shall be capable of being transferred, assigned, made the

Business Licence Act 1997

217
subject of any security, or otherwise dealt with but, shall be strictly personal to the business person to whom it has been issued, provided however, where a licenced business person dies, or becomes a person of unsound mind, or becomes bankrupt, or insolvent, the licence held by such business person shall ensure in favour of his personal representative, trustee, or other persons entitled to administer his estate or control his affairs.
(3) It shall be unlawful for any licensed business person to engage in, or carry on any business
(a) Other than that business stated in the licence; or
(b) At a place other than that place stated in the licence; or
(c) Contrary to any terms and conditions of the licence.

8 Applications for licence

(1) Any person desiring to carry on any business shall make application to
the Licensor for a licence to carry on the business.
(2) Each such application shall be delivered to the Licensor in the form
prescribed and shall specify:
(a) The full name, occupation and address in Niue of the applicant;
(b) Whether the applicant intends his business to be that of a –
(i) sole operator;
(ii) partnership;
(iii) family business;
(iv) duly incorporated company;
(c) The precise nature of the business for which the licence is sought;
(d) The type of licence sought, namely;
(i) a wholesaler ’s licence;
(ii) a retailer ’s licence;
(iii) a service provider ’s licence;
(e) Each business premise at, in, or from which, the applicant desires,
or intends to engage in, or carry on the business;
(f) The opening and closing hours of the business for which, approval
is sought;
(g) All other permits required to operate the business.
(3) Each such application shall be dated and signed by the applicant, or by
his duly authorised agent.
(4) Every such application shall be accompanied by the prescribed
application fee.
(5) Any applicant who knowingly and wilfully makes any false, or
misleading statement in any such application commits an offence and on conviction
shall be liable to a fine not exceeding 5 penalty units.

9 Advertising new applications

(1) The Licensor shall advertise all new applications for a business licence
seeking any objections to the proposed business licence.
(2) The advertisement is to be published in the Gazette and broadcast over
local radio and local television informing the public of:
(a) The name of the person seeking the licence;
(b) The nature of the business, and
(c) The location of the business stated in the business application.
(3) Any objections shall be in writing and delivered to the Licensor within
10 working days of the notice being published, or broadcast.
(4) No objection shall be considered if not received within the 10 working
days specified in subsection (3).
218 Niue Laws 2006 Vol 1

10 Receipt of applications

(1) Upon expiry of the 10 working days referred to in section 9(3) the
Licensor shall upon payment of the prescribed fee issued to the applicant a licence
in the prescribed form within a period not exceeding 10 days.
(2) The Licence may be subject to such reasonable conditions considered,
by the Licensor necessary to achieve orderly and balanced business activity
throughout Niue.
(3) The licence shall state –
(a) The full name of the applicant;
(b) The type of business;
(c) The place of business;
(d) Any conditions imposed by the Licensor.

11 Issue of licence

Every licence shall have a registered number endorsed on it and on the
issue of any licence, the Licensor shall forthwith deliver the licence to the business
person named.

12 Refusal of licence

(1) The Licensor may refuse to grant, or renew a licence if he is reasonably
of the opinion –
(a) The applicant is not a fit, or proper person to hold such a licence; or
(b) The issue of the licence would cause harm, or annoyance to the
residents of any locality on Niue; or
(c) The issue of the licence would result in a serious imbalance in the
particular market the applicant intends to operate having regard
to–
(i) objections made under section 9(3);
(ii) any market analysis made, or required by the Licensor.
(2) Upon refusal of a licence, the Licensor shall forthwith, by written notice
inform the applicant of such refusal together with the grounds for refusal.
(3) The Licensor shall deliver the written notice of refusal to the applicant.

13 Duration of licence

Every licence shall expire on 31 March, unless the licence shall be renewed
under section 14.

14 Renewal of licence

(1) At any time during the month of March, a business person may renew
his licence by delivering to the Licensor an application form in writing for the
renewal of the licence.
(2) Each such application for renewal shall specify:
(a) The number of the licences to be renewed; and
(b) The full name, occupation and address in Niue of the applicant;
and
(c) Any change in the matters set out in section 10 (3).
(3) Each such application shall be dated and signed by the applicant, or by
his duly authorised agent and shall be accompanied by the prescribed fee.
(4) On receipt of any such application for renewal together with the
prescribed fee, by the Licensor, the licence shall be renewed for a period of one
year commencing on 1 April, provided however, the Licensor may refuse to renew
the licence if he is reasonably satisfied that the applicant is no longer a fit and
proper person to hold a licence.

Business Licence Act 1997

219
(5) In the event of refusing to renew a licence, the Licensor shall within 7 days of the refusal, deliver a notice to the applicant for renewal, advising of the refusal.
(6) On receipt by the applicant for renewal of a notice from the Licensor refusing to renew a licence, such licence shall forthwith be revoked.
(7) On the renewal of any licence under subsection (4), the Licensor shall
issue and deliver a certificate of renewal to the business person named in the
certificate.
(8) One month prior to 31 March the Licensor shall insert a notice in the
local newspaper and broadcast such notice over the local radio and television
reminding persons to renew their business licence.

15 Licence to be exhibited

(1) A licensed business person shall exhibit his current business licence in
a conspicuous position, visible to members of the public at, in, or upon each of his
business premises, respectively at, in, or from which, he carries on the business
stated in his licence.
(2) It shall be permissible for a true copy of a current business certificate to
be exhibited, provided however, the true copy is a true copy issued under section
16.
(3) Any licensed business person who fails to comply with subsection (1) commits an offence and on conviction shall be liable to a fine not exceeding 2 penalty units.

16 Copies

(1) On paying the prescribed fee to the Licensor the licensed business
person shall be entitled to receive from the Licensor a true copy of any licence, or
any certificate of renewal of any licence issued to, or held by such business person.
(2) Each such copy shall be marked “true copy” and shall have the same
effect as the original document.

17 Fees

(1) Fees shall be payable as prescribed in the Business Licence Regulations.
(2) The Licensor, or any person duly authorised to act on his behalf, shall
issue an official Government receipt in respect of each fee received.
(3) All fees paid under this Act shall be paid into and shall form part of the
general revenue of the Government.

18 Delivery of documents

(1) Any applications, or objections required by this Act to be made to the
Licensor shall be in writing and delivered;
(a) Personally to the office of the Licensor; or
(b) By post.
(2) Any licence, or notice required by this Act to be delivered by the Licensor
to any person shall be in writing and delivered –
(a) Personally to that person; or
(b) By post to that person’s address stated on the licence.
(3) Any document despatched by post shall be deemed to have been
received on the date upon which, in the normal course of post it would have been
delivered.
220 Niue Laws 2006 Vol 1

19 A licensed wholesaler

(1) A licensed wholesaler shall be entitled to engage in, or carry on a
wholesale business in respect of the goods for which, he is licensed to carry on a
wholesale business provider however, he sells only to a licensed retailer and, or a
licensed service provided.
(2) Records of all business sales and purchases shall be kept.

20 A licensed retailer

(1) A licensed retailer shall be entitled to sell goods to the public.
(2) A record of all business sales and local purchases shall be kept.

21 A licensed service provider

(1) A licensed service provider shall be entitled to offer services to the public
from his business premises.
(2) If goods are sold without the provision of a service then a retailers license
shall also be required.
(3) A record of all business services provided and business purchases made,
shall be kept.

22 Register of licences

(1) The Licensor shall keep, in a convenient form, a Register of Licences
which, shall consist of a duplicate of all licenses, certificates of renewal of licence,
notices of refusal to renew licence and of any orders made by the Court, under
this Act relating to any licence.
(2) Each such duplicate shall be marked “duplicate” and shall have the
same evidential value as the original.
(3) Any person may between 10am and 3pm on any day except a Saturday,
or Public Holiday inspect such Register of Licences.

23 Business premises

(1) The Licensor, or any other person authorised in writing so to do by the
Licensor, or any constable may at any time between the hours of 9am and 4pm on
any day, not being a Saturday, or holiday, enter upon any business premise for the
purpose of carrying out an inspection of it.
(2) When carrying out such an inspection of the business premises, entry
to any private property shall not be permitted without the consent of the occupier
of it and, in the absence of any such consent, the prior consent of the Court.
(3) Should the requirements specified in any such notice not be carried
out, or put into effect within the period of time stipulated in such notice then,
upon the expiration of such period, no person thereafter shall be entitled to carry
on business at, in, or from the premises concerned without the prior written
conditional or unconditional consent of the Licensor, until such time as such
requirements shall have been carried out, or put into effect.
(4) Nothing in this section shall derogate, or be deemed to derogate from
the Public Health Act 1965.

24 Appeals to the Court

(1) Any applicant for a licence may appeal to the High Court against the
failure, or refusal of the Licensor to issue the licence sought by the applicant.
(2) Any applicant for the renewal of a licence may appeal to the Court
against a decision of the Licensor not to renew the licence.
(3) Any applicant for a licence to whom a licence has been issued may

Business Licence Act 1997

221
appeal to the Court against any condition imposed by the Licensor in respect of the licence.
(4) Where the Licensor has issued any licence (not being a renewal of a licence) any person aggrieved at the issue of the licence may appeal to the Court.

25 Time for making appeals

(1) Any such appeal under section 23 shall, subject to subsection (2) not be
made after the expiration of 2 weeks after the effective date of the act, ruling,
refusal, notice or decision which is the subject matter of the appeal.
(2) Notwithstanding subsection (1), the Court may if it thinks it just and
equitable to do so extend, or enlarge by not more than 2 months and either
unconditionally, or subject to such conditions which, it may think fit to impose,
the period of time within which any such appeal shall be made.

26 Powers of the Court

(1) On the hearing of any appeal bought in accordance with sections 24
and 23, the Court may, by order –
(a) Dismiss the appeal; or
(b) Allow the appeal; or
(c) Dismiss the appeal in part and allow it in part; or,
(d) Modify, vary, or amend the act, ruling, refusal, notice, or decision
which is the subject matter of the appeal in such manner and to
such an extent which the Court thinks just.
(2) Any such appeal shall be final.

27 Offences

(1) Subject to subsection (2) any person who engages in, or carries on any
business contrary to this Act commits an offence and on conviction shall be liable –
(a) For a first offence, to a fine not exceeding 5 penalty units;
(b) For a second, or a subsequent offence, to a fine not exceeding 10
penalty units, or to imprisonment for a term not exceeding 20 days,
or to both such a fine and such imprisonment.
(2) Nothing contained in subsection (1) shall derogate from section 8 (5) or
section 15 (2).
(3) Any person who buys any goods from any wholesaler, or retailer who
is not licensed, or gives any reward for any services provided by any service
provider, who is not licensed, knowing that such wholesaler, retailer, or service
provider should be licensed, commits an offence and on conviction shall be liable
to a fine not exceeding 2 penalty units.

28 Regulations

Cabinet may make regulations as may be deemed necessary, or expedient
to give full effect to this Act and to regulate licence fees and any other matters
required in the administration of this Act.

29-30 [Spent]

222 Niue Laws 2006 Vall

223

CARRIAGE BY AIR ACT 1967

1967/151 (NZ) – 24 November 1967

16-44 [Repealed]

45 [Spent]

SCHEDULES

To give effect to the provisions of a Convention concerning international carriage by air known as the Warsaw Convention as amended and supplemented by a subsequent Protocol and Convention, and to make provision with respect to carriage by air which is not international

1 Short title

This is the Carriage by Air Act 1967.

2 Act to bind Crown

This Act shall bind the Crown.

3 [Repealed by 2004/270]

PART 1
INTERNATIONAL CARRIAGE BY AIR

4 [Repealed by 2004/270]

5 Interpretation

In this Part –
“Amended Convention” means the Convention set out in Schedule 1, being
the Warsaw Convention as amended by a Protocol opened for signature
at The Hague on 28 September 1955;
“court” includes (in an arbitration allowed by the amended Convention or
the Guadalajara Convention) an arbitrator;
“Guadalajara Convention” means the Convention set out in Schedule 2
being a Convention, supplementary to the Warsaw Convention, for the
unification of certain rules relating to international carriage by air
performed by a person other than the contracting carrier, opened for
signature at Guadalajara on 18 September 1961;
224 Niue Laws 2006 Vol 1
“Warsaw Convention” means the Convention for the unification of certain rules relating to international carriage by air opened for signature at Warsaw on 12 October 1929 and includes the Additional Protocol to that Convention.

6 Application of Guadalajara Convention

In this Part references to the amended Convention or to any Article of that
Convention include, where applicable and subject to any necessary modifications,
references to that Convention or article as supplemented by the Guadalajara
Convention.

7 Conventions to have force of law

(1) The amended Convention and the Guadalajara Convention shall, so
far as they relate to the rights and liabilities of carriers, carriers’ servants and agents,
passengers, consignors, consignees, and other persons, and subject to this Part,
have the force of law in Niue in relation to any carriage by air to which the amended
Convention or the Guadalajara Convention, as the case may require, applies,
irrespective of the nationality of the aircraft performing that carriage.
(2) If there is any inconsistency between the text in English of the amended
Convention in Part 1 of Schedule 1 or the text of English of the Guadalajara
Convention in Part 1 of Schedule 2 and the corresponding text in French of those
Conventions in Part 2 of each of those Schedules, the text in French shall prevail.

8 Designation of Parties

(1) The Governor-General may, by Order in Council, certify who are the
High Contracting Parties to the amended Convention and the Parties to the
Guadalajara Convention, in respect of what territories they are respectively parties,
and to what extent they have availed themselves of the Additional Protocol at the
end of the amended Convention as set out in Schedule 1.
(2) Article 40A (2) of the amended Convention shall not be read as
extending references in the amended Convention to the territory of a High
Contracting Party (except such as are references to the territory of any State,
whether a High Contracting Party or not) to include any territory in respect of
which that High Contracting Party is not a party.
(3) An Order in Council shall, except so far as it has been superseded by a
subsequent Order, be sufficient evidence of the matters so certified.
(4) An Order in Council may contain such transitional and other
consequential provisions as appear to the Governor-General to be expedient.
(5) An Order in Council certifying who are the High Contracting Parties
to the amended Convention or the Parties to the Guadalajara Convention shall
specify the date on and from which any such Party became or ceased to be a Party.

9 Fatal accidents

References in section 4 of the Deaths by Accidents Compensation Act 1952
to a wrongful act, neglect, or default shall include references to any occurrence
which gives rise to a liability under article 17 of the amended Convention.

10 Limitation of liability

(1) The limitations on liability referred to in article 22 of the amended
Convention shall apply whatever the nature of the proceedings by which liability
may be enforced and, in particular –

Carriage by Air Act 1967

225
(a) Those limitations shall apply where proceedings are brought by a tortfeasor to obtain a contribution from another tortfeasor if the tortfeasor from whom contribution is sought is the carrier or a servant or agent of the carrier; and
(b) The limitation for each passenger referred to the said article 22 (1) shall apply to the aggregate liability of the carrier in all proceedings which may be brought against him under the law of Niue together with any proceedings brought against him outside Niue.
(2) A court before which proceedings are brought to enforce a liability
which is limited by the said article 22 may at any stage of the proceedings make
any such order as appears to the court to be just and equitable in view of the said
article 22, and of any other proceedings which have been, or are likely to be,
commenced in Niue or elsewhere to enforce the liability in whole or in part.
(3) Without prejudice to subsection (2), a court before which proceedings
are brought to enforce a liability which is limited by the said article 22 shall, where
the liability is, or may be, partly enforceable in other proceedings in Niue or
elsewhere, have jurisdiction to award an amount less than the court would have
awarded if the limitation applied solely to the proceedings before the court, or to
make any part of its award conditional on the result of any other proceedings.
(4) The Minister of Finance may by notice in the Gazette, specify the
respective amounts which for the purposes of the said article 22, and in particular
of article 22 (5), are to be taken as equivalent to the sums expressed in francs
which are mentioned in that article.
(5) References in this section to article 22 include, subject to any necessary
modifications and as the case may require, references to that article as applied or
supplemented by article 25A of the amended Convention and articles 5 and 6 of
the Guadalajara Convention.

11 Time for bringing proceedings

(1) No action against a carrier ’s servant or agent which arises out of damage
to which this Part relates shall, if he was acting within the scope of his employment,
be brought after more than 2 years, reckoned from the date of arrival at the
destination, or from the date on which the aircraft ought to have arrived, or from
the date on which the carriage stopped.
(2) Article 29 of the amended Convention shall not be read as applying to
any proceedings for contributions between tortfeasors, but no action shall be
brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort
to which the said article 29 applies after the expiration of 2 years from the time
when judgment is obtained against the person seeking to obtain the contribution.
(3) Subsections (1) and (2) and the said article 29 shall have effect as if
references in those provisions to an action included references to an arbitration;
and section 29 (3) and (4) of the Limitation Act 1950 (NZ) (which determines the
time at which an arbitration is deemed to have commenced) shall apply.

12 Contributory negligence

For the purposes of article 21 of the amended Convention section 736 of
the Niue Act 1966 shall be the law under which a court may exonerate the carrier
or partly from his liability.
226 Niue Laws 2006 Vol 1

13 Power to exclude aircraft in use for military purposes

(1) The Cabinet may by regulation, direct that this section shall apply, or
shall cease to apply, to Niue or any other State specified in the Regulation.
(2) The amended Convention shall not apply to the carriage of persons,
cargo, and baggage for the military authorities of a State to which this section
applies in aircraft registered in that State if the whole capacity of the aircraft has
been reserved by, or on behalf of, those authorities.

14 Actions against High Contracting Parties

Every High Contracting Party to the amended Convention who has not
availed himself of the provisions of the Additional Protocol at the end of the
amended Convention as set out in Schedule 1 shall, for the purposes of any action
brought in a court in Niue under article 28 of the amended Convention or article
8 of the Guadalajara Convention to enforce a claim in respect of carriage undertaken
by him, be deemed to have submitted to the jurisdiction of that court, and
accordingly rules of court may provide for the manner in which any such action is
to be commenced and carried on; but nothing in this section shall authorise the
issue of execution against the property of any High Contracting Party.

15 Regulations

Cabinet may make such regulations as it thinks fit for the purposes of this
Act.

16-44 [Repealed by 2004/270]

45 [Spent]

SCHEDULES
[The Schedules are not reproduced. Hard copy is available in Niue Legislation as

1 August 1990, volume 1, pg 233. The Warsaw Convention and the Guadalajara

Convention are available on line at:
http://www.icao.int/eshop/conventions_list.htm]
227

CENSUS ACT 1971

1971/68 – 28 April 1971

1 Short title 11 Duty of inmates of dwelling

2 Interpretation 12 Objection to stating religion

3 Census of population 13 Census employees may ask questions

4 Census Officer 14 Additional instructions

5 Enumerators and agents 15 Neglect or refusal to supply particulars and

6 Attestation false particulars

7 Schedules 16 Mutilation or defacement of schedules

8 Particulars to be collected at census of 17 Divulging information

population 18 Hindering census employee

9 Census to be taken by means of schedules 19 Preparation of statistics

10 Duty of head of household or occupier or 20 [Spent]

person in charge of dwelling

To provide for the taking of the census of population

1 Short title

This is the Census Act 1971.

2 Interpretation

In this Act –
“census employee” means any person employed by the Census Officer
under section 5;
“Census Officer” means the Census Officer appointed under section 4;
“dwelling or household” means any building, construction, or erection,
whether permanent or temporary, which is wholly or partly used for
human habitation; and includes a ship or aeroplane;
“night of the census” means that night between sunset on the day before
and sunrise on the day appointed under this Act for the taking of the
census; the precise time reference being midnight of that night;
“head of household” or “occupier” or “person in charge” includes, as the
case may be, the person for the time being in charge of any dwelling, or
habitation attached to or used in a factory, plantation, workshop, office,
shop or other place of business, penal institution, hospital, or other
public charitable institution; and also includes the master of any ship
or vessel, the person in command of an aircraft, and the person in charge
of any vehicle; and where the occupier or person in charge is a corporate
body, includes the manager, secretary, clerk, or other executive officer
of the corporate body or local authority, or any person actually in charge
on behalf of the corporate body;
228 Niue Laws 2006 Vol 1
“schedule” means any book, document, form, or card on which the information required is entered or indicated for statistical purposes under this Act.

3 Census of population

(1) The census of population of Niue shall be taken in 1971 and in every
fifth year thereafter.
(2) The day on which the census shall be taken and the time with reference
to which the particulars shall relate shall be appointed by the Secretary to the
Government by notice published in the Gazette.

4 Census Officer

(1) There shall be appointed, under Part 6 of the Niue Constitution, a
Census Officer for the proper carrying out of the provisions of this Act.
(2) Any person so appointed may hold office in addition to or in conjunction
with any office in the Niue Public Service.
(3) Any person so appointed shall be empowered to carry out any of the
functions or duties of a census enumerator or census employee.

5 Enumerators and agents

(1) The Census Officer may employ such enumerators, sub-enumerators,
agents, clerks, office assistants or other persons as may be necessary for the taking
of a census, and the duties of those employees shall be such as the Census Officer
determines.
(2) No person appointed under subsection (1) shall be deemed by reason
of his appointment under this section only, to be employed in the service of the
Government of Niue for the purpose of Part 6 of the Constitution.

6 Attestation

(1) Every person appointed for the purpose of taking the census, before
entering on his duties, shall take and subscribe to the following oath:
“I , solemnly swear that I will faithfully and honestly fulfil my duties as
in conformity with the requirements of the Census Act
1971, and that I will not, without due authority in that behalf, disclose or
make known any matter or thing which comes to my knowledge by reason
of my employment as such.”
(2) The oath shall be taken before the Census Officer and returned and
recorded as such Officer determines.

7 Schedules

The Census Officer shall, with the approval of the Cabinet, design and have
prepared for use such census and other schedules as he deems requisite for
collecting the statistics authorised to be collected, and shall lay down for all such
schedules the instructions and procedures necessary for the proper distribution,
filling in, and return of it.

8 Particulars to be collected at census of population

(1) At every census of population particulars relating to all of the following
matters shall be obtained by means of schedules from every occupant or as the
case may be from each person who is in charge of a dwelling –

Census Act 1971

229
(a) The name, sex, age, and ethnic origin of every occupant of the dwelling;
(b) Particulars of the dwelling as to location, number of rooms, ownership, and number of occupants on census night.
(2) At any census of population the Cabinet may, if it considers it in the public interest so to do, require the Census Officer to obtain from each or every occupant or as the case may be from each head of household or person in charge of a dwelling particulars relating to all or any of the following matters –
(a) The profession or occupation and industry in which employed,
nationality and citizenship, health, marital status, religion,
birthplace, duration of residence in Niue, number of children,
number of hours worked per week for wages or salary or financial
reward, status in employment, name of employer, income, usual
residence of every occupant of the dwelling;
(b) Particulars of the dwelling as to type of dwelling, household
amenities, material of walls and tenure of site;
(c) (i) Population and dwellings, migration (internal and external),
vital and other demographic and social matters;
(ii) Health, welfare, and morbidity;
(iii) Cultural participation, education, and recreation;
(iv) Law enforcement and the administration of justice;
(v) Matters relating to the social and physical environment;
(vi) Labour and manpower, including conditions of employment;
work descriptions; wages, including direct and indirect
emoluments; hours of work and labour disputes;
(vii) Accidents, including industrial injuries;
(viii) Household (including family) characteristics, conditions, and
activities;
(ix) Assets (including savings), liabilities and wealth of persons,
and undertakings;
(x) Prices of commodities and services at any or all transaction
levels;
(xi) Travel, internal and overseas;
(xii) Economic, financial, production, and other matters relating to
undertakings; forestry, fishing, trapping; agriculture; mines,
quarries, and wells; manufacturing; construction;
transportation, storage, and communications; electric power,
gas, and water utilities; wholesale and retail trade; finance,
insurance, and real estate; restaurants; hotels and
accommodation; and other community, business, welfare, and
personal services.

9 Census to be taken by means of schedules

The census shall be taken by means of the schedules referred to in sections
7 and 8 and containing particulars which shall be furnished by each head of household or occupant or person who resided in the dwelling on the night of the census and who was alive at midnight or who, not already being included in any other census schedule, arrived in that dwelling after midnight of the night of the census and before midnight on the next following night.
230 Niue Laws 2006 Vol 1

10 Duty of head of household or occupier or person in charge of dwelling The head of household or occupier or person in charge of every such dwelling shall ensure that the particulars required by the schedules are furnished

with respect to –
(a) Every person who resided in the dwelling on the night of the census
and was alive at midnight; and
(b) Every person who arrived at the dwelling after midnight on that
night and before midnight on the next following night and was not
included in any other census schedule.

11 Duty of inmates of dwelling

(1) Every person in respect of whom particulars are required under section
10 –
(a) Shall where necessary furnish such information as the head of household or occupier or person in charge of the dwelling may require so that he may complete the dwelling schedule; and
(b) Shall either complete a personal schedule and deliver it to the head of household or occupier or person in charge, or shall furnish the required particulars to the head of household or occupier or person in charge so that the latter can complete the personal schedule for him.
(2) (a) The person completing a personal schedule may enclose it in an envelope endorsed with his name and sex, and seal the envelope before delivery to the head of household or occupier or person in charge pending collection by the census employee.
(b) If the head of household or occupier or person in charge opens any such envelope he commits an offence and is liable to a fine not exceeding 1 penalty unit.

12 Objection to stating religion

If any person objects to stating his religion, an entry of “object” made in the
space provided for the answer to this question in the personal schedule shall be
sufficient for the purposes of the census.

13 Census employees may ask questions

Every census employee appointed for the purpose of the census may ask
such questions and conduct such inquiries as are necessary to obtain or to verify
the particulars authorised by this Act to be collected.

14 Additional instructions

In any case in which the prescription of particulars hereinbefore specified
is insufficient to indicate the nature of the information to be furnished, the Census
Officer may direct by means of instructions in a census schedule or by separate
notice, the precise nature of the particulars required.

15 Neglect or refusal to supply particulars and false particulars

Subject to section 12 every person commits an offence who neglects or
refuses to furnish any census schedule as required by this Act or to answer any
questions lawfully put to him for the purposes of the census, or who knowingly
makes any statements or gives any answer untrue in any material particular
required by this Act, and is liable to a fine not exceeding 1 penalty unit.

Census Act 1971

231

16 Mutilation or defacement of schedules

Every person commits an offence who, without lawful authority, mutilates
or defaces a census schedule or other census document or record containing
particulars collected under this Act or requesting any such particulars and is liable
to a fine not exceeding 1 penalty unit.

17 Divulging information

Every person commits an offence, who, whether or not he is a census
employee appointed to any duty in connection with the census, divulges or makes
use of any information obtained pursuant to this Act except as required for the
preparation of statistics from the data obtained at the census, and is liable to a fine
not exceeding 1 penalty unit.

18 Hindering census employee

Every person commits an offence who hinders or obstructs any census
employee in pursuance of his duty and is liable to a fine not exceeding 0.5 penalty
units.

19 Preparation of statistics

(1) The information furnished under this Act shall be used for statistical
purposes only.
(2) Subject to this Act and with the approval of the Cabinet, the Census
Officer may have statistics prepared from the data obtained at the census and
may publish such statistics, with or without observations.
(3) Every person employed for the purpose of preparing such statistics
before entering on his duties, shall take and subscribe to the oath contained in
section 6.
(4) It shall be a principle to be followed in the publication of statistics to
arrange, wherever possible, statistical tables in such a manner as to prevent any
particulars published in the tables from being identifiable by any person (other
than by the person by whom the particulars were supplied) as particulars relating
to any particular person, unless that person has consented to their publication in
that manner, and for that purpose the Census Officer shall make such rules as he
considers necessary in the public interest.

20 [Spent]

232 Niue Laws 2006 Vall

233

CHATTELS TRANSFER ACT 1924

1924/49 – 1 January 1925

11-13 [Repealed]

Renewal of Registration

14 Registration of instruments must be

renewed within five years

Searches and Copies

15 Register book and instruments may be

searched and viewed

16 Copies may be had

17 Instruments and affidavits presumed to

have been duly executed or sworn

Effect of Non-registration

18 Unregistered instruments to be void in

certain cases

19 Unregistered instrument not to affect bona

fide purchaser for value

19A [Repealed]

AS TO INSTRUMENTS GENERALLY

20 Instrument to be attested

21 Instrument to take effect from execution

22 Registration to give priority

23 Instrument to have inventory of chattels

24 Instrument void where grantor not

owner of chattels

25 Instrument subject to defeasance, void

in certain cases

26 Saving

27 [Repealed]

38-41 [Repealed]

Entry of Satisfaction

42 Memorandum of satisfaction may be

filed

43 Effect of filing such memorandum

44 [Repealed]

45 Judge may order memorandum to be

filed

Sales by Registrar

46 Sales by Registrar

Sale of Grantor’s Interest

47 Grantor ’s interest in chattels may be sold

in execution

48 Not to affect interpleader process

IMPLIED COVENANTS

49 Covenants for title

50 Covenants implied in instruments by

way of security

51 Meaning of “abbreviated expressions”

52 Covenants to be several as well as joint

53 Covenants to bind executors

54 Covenants may be negatived or varied

234 Niue Laws 2006 Vol 1

	TRANSFERS OF INSTRUMENTS		PENAL
55	Form of transfer of instrument	58	Attempt to defraud grantee
56	Registration of transfers	59-5	9A [Repealed]

	CUSTOMARY HIRE PURCHASE AGREEMENTS		REPEALS AND SAVINGS
57	Special provisions as to customary hire	60	[Repealed]
	purchase agreements	61	Regulations
57A	Customary hire purchase agreements to	62	Act binds the Government
	have inventory

57B Finance corporations to be dealers SCHEDULES

1 Short title

This is the Chattels Transfer Act 1924.

2 Interpretation

In this Act –
“chattels” means any personal property that can be completely transferred
by delivery, and includes machinery, stock and the natural increase of
stock as hereinafter mentioned, crops and also includes book debts but
does not include –
(a) Chattel interests in real estate, title deeds, choses in action (not being
book debts), negotiable instruments; or
(b) Shares and interests in the stock, funds, or securities of any
Government or local authority; or
(c) Shares and interests in the capital or property of any company or
other corporate body; or
(d) Debentures and interest coupons issued by any Government, or
local authority, or other corporate body;
“crops” means European flax, hemp, hops, wheat, maize, barley, oats, and
grass (whether for hay or for grain), and all cereal and root crops,

Phormium tenax, fruit and all other crops grown above or below the

ground;
“executed” means signed by the grantor or his attorney, and, in the case of
an instrument by way of bailment, means signed by the grantor and
grantee or their respective attorneys;
“factory” or “workshop” means any premises on which any manual labour
is exercised by way of trade or for the purposes of gain or in or about
the making, altering, repairing, ornamenting, finishing, or adapting for
sale of any article or part of any article;
“grantee” means the party to an instrument to whom chattels in it referred
to, or any interest in it, are thereby granted or assigned, or agreed so to
be, and includes his executors, administrators, and assigns; and in the
case of a company or corporation includes the successors and assigns
of such company or corporation;
“grantor” means the party to an instrument who thereby grants or assigns,
or agrees to grant or assign, chattels referred to in it, or any interest in
it, and includes his executors, administrators, and assigns; and in the
case of a company or corporation includes the successors and assigns
of such company or corporation;

Chattels Transfer Act 1924

235
“instrument” means and includes any bill of sale, mortgage lien, or any other document that transfers or purports to transfer the property in or right to the possession of chattels, whether permanently or temporarily, whether absolutely or conditionally, and whether by way of sale, security, pledge, gift, settlement, bailment, or lease, and also the following:
(a) Inventories of chattels, with receipt to it attached; (b) Receipts for purchase money of chattels;
(c) Other assurances of chattels;
(d) Declarations of trust without transfer;
(e) Powers of attorney, authorities, or licences to take possession of
chattels as security for any debt;
(f) Any agreement, whether intended to be followed by the execution
of any other instrument or not, by which a right in equity to any
chattels, or to any charge or security on it or over it, is conferred;
“instrument” does not include the following –
(a) Securities over, or bailments or leases of, fixtures (except “trade
machinery” as hereinafter defined), when mortgaged or leased in
any mortgage or lease of any freehold or leasehold interest in any
land or buildings to which they are affixed, and whether or not
such fixtures are separately mortgaged or leased by mention thereof
in separate words, and whether or not power is given by such
mortgage or lease to sever such fixtures from the land or building
to which they are affixed without otherwise taking possession of
or dealing with such land or building;
(b) Assignments for the benefit of the creditors of the person making
the same;
(c) Transfers of or agreements to transfer instruments by way of
security;
(d) [Repealed by 2004/270]
(e) Transfers of chattels in the ordinary course of business of any trade
or calling;
(f) Debentures and interest coupons issued by any Government or local
authority;
(g) Bills of sale of chattels in any foreign parts, or at sea;
(h) Bills of lading, warehouse keepers’ certificates, warrants, or orders
for the delivery of chattels, entries in auctioneers’ books, or any
other document used in the ordinary course of business as proof of
the possession or control of chattels, or authorising or purporting
to authorise, either by endorsement or delivery, the possessor of
such document to transfer or receive the chattels thereby
represented;
(i) Debentures and interest coupons issued by any company or other
corporate body and secured upon the capital stock or chattels of
such company or other corporate body;
(j) [Repealed by 2004/270]
(k) Customary hire purchase agreements as defined in this Act;
“instrument by way of bailment” means an instrument whereby chattels
are leased or bailed;
“instrument by way of security” means an instrument given to secure the
payment of money or the performance of some obligation;
“Registrar” means the Registrar of the High Court and includes a Deputy
Registrar (if any);
236 Niue Laws 2006 Vol 1
“registration” means the filing of an instrument with schedule or inventories, or a true copy of it, with the certificate hereinafter mentioned;
“stock” includes any sheep, cattle, horses, pigs, poultry, ostriches, and any other living animals;
“trade machinery” means the machinery used in or attached to any factory
or workshop, but does not include –
(a) The fixed motive powers, such as the water wheels, and steam and
other engines, and the steam boilers, donkey engines, and other
fixed appurtenances of the said motive powers; or
(b) The fixed power machinery (such as the shafts, wheels, drums, and
their fixed appurtenances) for transmitting the action of the motive
powers to the other machinery, fixed and loose; or
(c) The pipes for steam, gas and water.

3 Agreement giving power of distress

(1) (a) An attornment or agreement (not being a mining lease) whereby a
power of distress is given or agreed to be given by one person to
another by way of security for any present, future, or contingent
debt or advance, and whereby any rent is reserved or made payable
as a means of providing for the payment of interest on such debt or
advance, or otherwise for the purpose of such security only, shall
be deemed to be an instrument within the meaning of this Act so
far as regards any chattels seized or taken under the power of
distress.
(b) Nothing in this subsection shall prejudice the right of a landlord to
distrain for rent.
(c) Where a mortgagee of any interest in land, after entering (under
the powers contained or implied in the mortgage) into possession
of the mortgaged land, or into receipt of the rents and profits of the
land, demises the land or any part of it to the mortgagor at a fair
and reasonable rent, the instrument whereby such demise is effected
shall not be deemed to be an instrument within the meaning of this
Act.
(2) Machinery and plant used in milking, and machinery and plant used
for shearing, shall not by reason of being attached to buildings or land become
part of the land, nor shall any estate or interest therein pass by virtue of such
attachment.
REGISTRATION

4 Registration of instrument to be notice

(1) (a) Save as provided in subsection (3) all persons shall be deemed to
have notice of an instrument and of its contents when and so soon
as such instrument has been registered.
(b) If registration of such instrument is not renewed under this Act,
prior registration shall not be deemed to operate as notice after the
lapse of the period within which renewal is required by this Act.
(2) [Repealed by 2004/270]
(3) Registration of any instrument to which subsection (1) or (2) applies
shall not in itself constitute notice of the existence of that instrument or of its
contents to the grantee of any prior registered instrument relating to the same
chattels or to any of those chattels.

Chattels Transfer Act 1924

237

5 Mode of registration

(1) Registration of an instrument shall be effected by filing it and all
schedules endorsed on it or referred to in it, or a true copy of the instrument and
schedules and a certificate in the form numbered 1 in Schedule 1, with the Registrar
of the High Court.
(2) [Repealed by 2004/270]
(3) Every person commits an offence and is liable on summary conviction
to a fine not exceeding 1 penalty unit who wilfully or negligently signs any
certificate in the form numbered 1 in Schedule 1 or to the like effect in respect of
any instrument if the certificate is false in a material respect.

6 Where instrument made under process

Where an instrument is made by any person under or in execution of any
process of court, the certificate to be filed on registration shall state the residence
and occupation of the person against whom such process is issued.

7 Affidavits

An affidavit required by this Act may be sworn before any solicitor of the
High Court, or a Registrar, or any Justice.

8 Limitation of time for registration

(1) The period within which an instrument may be registered is 21 days
from the day on which it was executed.
(2) If there are more grantors than one, the date of execution of the
instrument shall be deemed to be the date of the execution by the grantor who
first executes the instrument.
(3) The day on which the instrument is executed shall not be included in
the period for registration; but the instrument may be registered on that day.

9 Register book and index to be kept

(1) The Registrar shall cause every instrument registered in his office to be
numbered, and shall mark on each such instrument, or on the filed copy of it, the
date of registration and the number, and shall at the time of registration enter in a
register to be kept for the purpose of his office the particulars of the instrument
registered under the form numbered 2 in Schedule 1.
(2) The Registrar shall also keep an index in which he shall enter the names
of the grantors of instruments by way of security and of the grantors and grantees
of all other instruments, and shall refer in it to the entries in the register book of
the instruments given by each such grantor.
(3) Such index shall be arranged in divisions corresponding with the letters
of the alphabet, so that all grantors and grantees whose surnames begin with the
same letter (and no others) shall be comprised in one division, but the arrangement
within each such division need not be strictly alphabetical.

10 Entry where instrument made under process

Where any instrument is made or given by any person under or in the
execution of any process of court, then the name, residence, and occupation of the
person against whom such process issued, and also the name of the grantee of it,
shall be inserted in the book to be kept as aforesaid.

11 [Repealed]

238 Niue Laws 2006 Vol 1

12-13 [Repealed by 2004/270]

Renewal of Registration

14 Registration of instruments must be renewed within five years

(1) The registration of an instrument shall cease to be of any effect at the
expiration of 5 years from the date of the registration or, where the registration
has been renewed under this section, at the expiration of 5 years from the date of
the renewal of the registration or of the last renewal of the registration, as the case
may be.
(2) [Repealed by 2004/70]
(3) The registration of an instrument shall be renewed by filing in the office
of the Registrar an affidavit in the form numbered 3 in Schedule 1 or to the like
effect.
(4) The Registrar shall thereupon number such affidavit as if the same were an instrument presented for registration, and renumber the instrument originally registered in the said office, or the filed copy of it, with a similar number, and mark thereon the date of renewal of registration, and shall enter particulars of the instrument in the register book in like manner as on an original registration, and shall also enter the date of renewal of registration in the column provided therefor in the register book.

Searches and Copies

15 Register book and instruments may be searched and viewed

The register books and indices hereinbefore provided for, and every
instrument registered as aforesaid, or the filed copy of it, may be searched and
viewed by all persons during the office hours of the High Court.

16 Copies may be had

Any person shall be entitled to have a copy or an extract of or from any
instrument with the schedules filed therewith, or of or from the copy of it registered
as aforesaid, and a copy of any affidavit filed under this Act; or if he makes such
copy or extract himself the Registrar shall, upon satisfying himself that such copy
or extract is correctly made, certify the same.

17 Instruments and affidavits presumed to have been duly executed or sworn (1) Every instrument registered and certificate or affidavit filed shall, if purporting to be duly executed or sworn, be prima facie presumed to have been

duly executed or sworn.
(2) The filed copy of any instrument, and of the schedules filed therewith,
or an office copy of any such filed copy, and an office copy of any affidavit or
certificate filed under this Act, and every copy or extract certified by the Registrar
under Section 16, and a certificate by the Registrar of the time when any instrument,
affidavit, or certificate was registered or filed, shall in all courts and before all
persons having by law or consent of parties authority to take evidence be received
as prima facie evidence of such instrument, schedules, affidavit, or certificate and
of the signatures of the parties to the instrument and of the attesting witnesses
thereto, and of the fact and time of the registration or filing of the instrument
affidavit, or certificate.
(3) It shall not be necessary to prove the handwriting or official position of
the person appearing as such Registrar to have certified any such copy or extract
or to have given any such certificate.

Chattels Transfer Act 1924

239

Effect of Non-registration

18 Unregistered instruments to be void in certain cases

(1) Every instrument, unless registered in the manner hereinbefore
provided, shall, upon the expiration of the time for registration, or if the time for
registration is extended by a Judge of the High Court, then upon the expiration of
such extended time, be deemed fraudulent and void as against –
(a) The Assignee in Bankruptcy of the estate of the person whose
chattels or any of them are comprised in any such instrument;
(b) The assignee or trustee acting under any assignment for the benefit
of the creditors of such person;
(c) Any sheriff, bailiff, and other person seizing the chattels or any
part thereof comprised in any such instrument, in execution of the
process of any Court authorising the seizure of the chattels of the
person by whom or concerning whose chattels such instrument was
made, and against every person on whose behalf such process was
issued –
so far as regards the property in or right to the possession of any chattels comprised
in or affected by the instrument which, at or after the time of such bankruptcy, or
of the execution by the grantor of such assignment for the benefit of his creditors,
or of the execution of such process (as the case may be), and after the expiration of
the period within which the instrument is required to be registered, are in the
possession or apparent possession of the person making or giving the instrument,
or of any person against whom the process was issued under or in the execution
of which the instrument was made or given.

19 Unregistered instrument not to affect bona fide purchaser for value

Upon the expiration of the time or extended time for registration no
unregistered instrument comprising any chattels whatsoever shall, without express
notice, be valid and effectual as against any bona fide purchaser or mortgagee for
valuable consideration, or as against any person bona fide selling or dealing with
such chattels as auctioneer or dealer or agent in the ordinary course of his business.

19A [Repealed by 2004/270]

AS TO INSTRUMENTS GENERALLY

20 Instrument to be attested

Sealing shall not be essential to the validity of any instrument; but every
execution of an instrument shall be attested by at least one witness, who shall add
to his signature his residence and occupation.

21 Instrument to take effect from execution

Every instrument shall be deemed to be made on the day on which it is
executed, and shall take effect from the time of its execution.

22 Registration to give priority

(1) Where 2 or more instruments are executed comprising in whole or in
part any of the same chattels, priority shall be given to such instrument or
instruments in the order of time of their registration respectively as regards the
title to or right to the possession of such chattels.
(2) Where a grantee under a second or subsequent instrument claims
priority by virtue of prior registration he must prove that at the time of the execution
of the instrument under which he claims he had no notice of any existing
unregistered instrument.
240 Niue Laws 2006 Vol 1

23 Instrument to have inventory of chattels

Every instrument shall contain, or shall have endorsed on it or annexed to
it, a schedule of the chattels comprised in and, save as is otherwise expressly
provided by this Act, shall give a good title only to the chattels described in the
said schedule, and shall be void to the extent and as against the persons mentioned
in sections 18 and 19 in respect of any chattels not so described.

24 Instrument void where grantor not owner of chattels

(1) Save as is otherwise expressly provided by this Act, an instrument shall
be void to the extent and as against the persons mentioned in section 18 and 19 in
respect of any chattels which the grantor acquires or becomes entitled to after the
time of the execution of the instrument.
(2) Where an instrument by way of security over any chattels is therein
expressed to be given as security for a loan to be expended, in whole or in part, in
the purchase of those chattels, the grantor shall be deemed to have acquired the
said chattels contemporaneously with the execution of this instrument.

25 Instrument subject to defeasance, void in certain cases

(1) If an instrument is made or given subject to any defeasance, condition
or declaration of trust not contained in the body of the instrument, such defeasance,
condition, or declaration of trust shall for the purposes of this Act be taken as part
of such instrument, and shall be written on the same paper or parchment on which
such instrument is written, otherwise such instrument shall be void to the extent
and as against the persons mentioned in section 18 so far as regards the property
in or right to the possession of any chattels comprised in or affected by such
instrument.
(2) In the case of a document securing the payment of the moneys or any
part of it payable by virtue of an instrument it shall not be necessary for the
purposes of this section to write such document on the same paper or parchment
so long as the date, names of the parties to it, and the nature of the security are set
forth in the instrument or in some schedule to it.

26 Saving

Nothing in sections 23-25 shall render an instrument void in respect of the
following chattels, that is to say –
(a) Stock, wool and crops;
(b) Fixtures, plant, or trade machinery where the same are used in,
attached to, or brought upon any place in substitution for any of
the like nature described in, or in the schedule to, such instrument;
(c) Tractors, engines, machines, vehicles, implements and farming plant
of every description described in such instrument and used upon
or in connection with any land or premises specified in the
instrument.

27 [Repealed by 2004/270]

Instruments Comprising Stock

28 How stock to be described

In any instrument they shall be described or referred to therein or in the
schedule by some brand or brands, earmark or earmarks, or other mark or marks
upon them, or shall be so described or referred to by sex, age, name, colour, or
other mode of description as to be reasonably capable of identification, otherwise

Chattels Transfer Act 1924

241
the instrument shall be void to the extent and as against the persons mentioned in section 18, so far a regards such or so much of such stock as are not so described or referred to or are not reasonably capable of identification; and the land or premises on which such stock are or are intended to be depastured or kept shall be described or mentioned in such instrument or schedule.

29 Stock to include increase of stock

An instrument comprising stock shall, unless the contrary be expressed
therein, be deemed to include not only the stock comprised therein as provided
by section 28, but also the natural increase of such stock, and all stock of the class
or classes described in the instrument, the property of the grantor, branded,
earmarked, or marked as specified in the instrument, or which the grantor has
covenanted or agreed by such instrument to so brand, earmark, or mark, and
which after the execution of such instrument are depasturing or are at, in, or upon
any lands or premises mentioned in such instrument or in the schedule to it, on
any land and premises used and worked as part of the first-mentioned land and
premises, whether or not such stock be removed therefrom. The grantee shall
have the same legal property and right in all stock which by force of this section
are deemed to be included in the instrument as he has in the stock described in
the instrument or in the schedule to it.

30 Special provisions as to poultry

Where the stock comprised in an instrument is poultry or ostriches, or other
stock which cannot be properly the subject of distinctive marking –
(a) Section 28 shall not apply in respect of such stock;
(b) Section 29 shall apply, but modified by omitting therefrom, after
the words “be deemed to include”, the words “not only the stock
comprised therein as provided by the last preceding section, but
also”; and by further omitting after the words “the property of the
grantor”, the words “branded, earmarked, or marked as specified
in the instrument, or which the grantor has covenanted or agreed
by such instrument to so brand, earmark, or mark, and”.

31 [Repealed]

32 Book debts

(1) For the purposes of this Act book debts shall be deemed to be chattels,
and shall be deemed to be situate in the place where the grantor of the instrument
comprising them longest resided or carried on business during the period of 6
months next before the execution of the instrument.
(2) For the purposes of any instrument comprising book debts each debt
shall be deemed to be a separate chattel, and shall be described by setting forth
the amount of the debt and the name of the debtor or firm of debtors so far as is
reasonably necessary to show by whom the debt is owing.
(3) For the purposes of this Act “book debts” means debts owing to any
person in the course of his trade or business, but does not include any debt secured
or charged on land, or any debt owing to any person for or in respect of any milk,
cream, or butterfat supplied by him to any butter factory, cheese factory, condensed
milk factory, or milk powder factory.
242 Niue Laws 2006 Vol 1
AS TO INSTRUMENTS BY WAY OF SECURITY

33 Form of instrument by way of security

(1) Every instrument by way of security may be in the form numbered 4 in
Schedule 1 or to the like effect, with such variations or modifications and additions
to it as are expressed in the instrument.
(2) An instrument by way of security securing an account current continues
in full force and effect notwithstanding that the grantor may be in credit on such
account.

34 Where successive securities are given over same chattels

Where an instrument by way of security is executed after the execution of
a prior instrument which has never been registered, and comprises all or any of
the chattels comprised in such prior instrument, then if such subsequent instrument
is given as a security for the same debt as is secured by the prior instrument, or for
any part of such debt, it shall, to the extent to which it is a security for the same
debt or part thereof, and so far as respects the chattels comprised in the prior
instrument, be void to the extent and as against the persons mentioned in section
18 unless it is proved to the court having cognisance of the case that the subsequent
instrument was bona fide given for the purpose of correcting some material error
in the prior instrument, and not for the purpose of evading this Act.

Securities Over Crops

35 Security may be given over crops

An instrument by way of security may be granted over the crops described
or referred to in it or in the schedule in to it then actually sown or growing, or to
be sown or grown in or upon the lands mentioned in the instrument, and shall
entitle the grantee of it to the whole of the crops in it mentioned, not only while
growing, but afterwards when cut or separated from the soil, and whether stacked
or stored on the land where the same were grown on or on any other land or
premises.

36 Crops that cannot be harvested within 12 months

No such instrument shall avail to give security over any crops (other than

Phormium tenax) that cannot in the ordinary course of husbandry be harvested

and taken off such land within one year from the date of the execution of the
instrument.

37 Saving of rights of landlord and mortgagee

(1) No such instrument shall prejudicially affect the rights of any landlord
or mortgagee of any land whereon the said crops are growing, unless and so far as
the landlord or mortgagee has consented in writing to such instrument.
(2) No such instrument being duly registered shall be extinguished or
prejudicially affected by any subsequent sale, lease, mortgage, or other
encumbrance of or upon the land described or referred to in the instrument or in
any schedule thereto.

38-41 [Repealed by 2004/270]

Chattels Transfer Act 1924

243

Entry of Satisfaction

42 Memorandum of satisfaction may be filed

(1) In the case of an instrument by way of security, upon the production to
the Registrar of a memorandum of satisfaction in the form numbered 5 in Schedule
1 or to the like effect, signed by the grantee of it or his attorney, discharging the
chattels comprised in such instrument or any specified part of it from the moneys
secured thereby or any specified part thereof, or from the performance of the
obligation thereby secured or any specified part of it, and on production of such
instrument the Registrar shall file such memorandum and make an entry thereof
in the register book on the page where the instrument is registered.
(2) (a)The execution of such memorandum shall be attested by at least one
witness, who shall add to his signature his residence and occupation,
and shall be verified by the affidavit of that witness.
(b) It is not necessary for the execution to be verified by affidavit if –
(i) the witness is the Registrar, a notary public, a Justice of the
Peace, Postmaster, or a solicitor of the High Court, resident in
Niue; or
(ii) the grantee is a corporation and the memorandum is executed
by the corporation affixing its common seal or its official seal
for use in Niue.
(3) The Registrar may dispense with the production of the instrument on
proof by affidavit to his satisfaction that the instrument has been destroyed, cannot
be found, or cannot be produced.

43 Effect of filing such memorandum

From and after the filing of any such memorandum the debt or charge
created by the instrument shall be vacated to the extent specified in the
memorandum, and the interest of the grantee in the chattels expressed to be
discharged shall vest in the person for the time being entitled to the equity of
redemption but so far only as such interest is expressed by the memorandum to
be determined, and subject to any lien or equity affecting the chattels.

44 [Repealed by 2004/270]

45 Judge may order memorandum to be filed

A Judge of the High Court may, upon application made to him for that
purpose, order a memorandum of satisfaction to be filed in respect of any
instrument by way of security if it appears to him that the debt (if any) for which
such instrument was given as security has been satisfied or discharged, or that
the obligation for securing the performance of which the instrument was given
has been performed; and thereupon such order may be filed by the Registrar and
entered in his book in like manner as if the same were a memorandum within the
meaning of section 42.
244 Niue Laws 2006 Vol 1

46 Sales by Registrar

(1) Where a person is entitled to exercise the power of sale contained or
implied in an instrument, that person may apply in writing to the Registrar for
the property to be sold.
(2) As soon as practicable after receiving an application under this section
the Registrar shall –
(a) Fix a convenient time (being not more than 3 months and not less
than one month from the date of the application) and a convenient
place for the conduct of the sale; and
(b) Give written notice to any person (including the debtor) whose
name and address has been supplied by the applicant, of the time
and place at which the sale is to be conducted, and of the redemption
price of the property to be sold; and
(c) Give such public notice of the sale as he considers sufficient; and
(d) Approve proper conditions of sale and do all other things necessary
for the proper conduct of the sale.
(3) (a) At any time before the sale the debtor may pay to the applicant
either the redemption price, or the amount due and owing under
the instrument, together with the expenses already incurred by the
applicant in connection with the intended sale, and any money
expended on or about the property subsequent to the time when
the redemption price in the application for sale was fixed, and on
such payment the applicant shall do the acts required by clause 10
of Schedule 4.
(b) Where the sum so paid is less than the amount owing under the
instrument the balance may be recovered from the debtor under
the covenant to repay expressed or implied in the instrument.
(4) The applicant may be a bidder at any such sale, and become the
purchaser of the property or any part of it.
(5) In the event of the applicant being the purchaser, the Registrar shall
execute a memorandum of conveyance of the property purchased containing a
recital that the sale has been made under this section.
(6) In the memorandum the consideration to be stated shall be not less
than the redemption price.
(7) Upon the execution of the memorandum by the Registrar, the property
shall vest in the applicant in the same manner as if it had been conveyed to a third
party purchaser at the sale.
(8) A memorandum of transfer executed by the Registrar upon a sale under
this section shall be conclusive proof that the provisions of this Act relating to the
sale have been complied with.
(9) If any surplus money arising from the sale of the property cannot be
paid to the debtor by reason of his not being found after reasonable inquiry the
money shall vest in the Government.
(10) In respect of every application under this section there shall be paid to
the Registrar by the applicant, in addition to the reasonable expenses of the sale a
fee of $100 which shall accompany the application.

47 Grantor’s interest in chattels may be sold in execution

(1) Where legal process issues against the chattels of a judgment debtor
for the execution of a judgment of any Court, and the said chattels, or any of
them, are comprised in any instrument by way of security, the officer charged
with the execution of the process may, in lieu of seizing and selling the chattels so
comprised, sell the right, title and interest of the judgment debtor in the same.

Chattels Transfer Act 1924

245
(2) The grantee of the instrument, on receiving notice of the purchase of that right, title, and interest, may take possession of the chattels comprised in the instrument.
(3) A grantee so taking possession shall be deemed to hold the chattels in trust for the purchaser of the said right, title, and interest, subject to payment of all moneys due under the instrument.
(4) If the chattels are afterwards sold under the power of sale expressed or implied in the instrument, and any surplus remains out of the proceeds of the sale after payment of all moneys due under the instrument, the grantee shall on demand pay over that surplus to the purchaser of the said right, title and interest.
(5) If the grantee makes default, the purchaser may bring an action against him to recover the surplus, as money received to the use of the purchaser.

48 Not to affect interpleader process

Nothing in section 47 shall be deemed to affect the right of an execution
creditor to test the validity of any instrument by interpleader process.

49 Covenants for title

IMPLIED COVENANTS
There shall be implied in every instrument the covenants for title on the part of the grantor set forth in Schedule 3, and such implied covenants shall have the same effect as if the same were respectively set out at length in the instrument.

50 Covenants implied in instruments by way of security

There shall be implied in every instrument by way of security the covenants,
provisos, agreements, and powers set out in Schedule 4 or such of them as are
applicable; and such implied covenants, provisos, agreements, and powers shall,
subject to any modification of the same expressed in the instrument, have the
same effect as if the same were respectively set out in it at length.

51 Meaning of “abbreviated expressions”

Such of the expressions defined in section 2 or in Schedule 5 as are used in
any instrument, or in any of the covenants, provisos, agreements, or powers implied
therein by this Act, shall, unless the contrary is expressed in such instrument, or
unless manifestly inconsistent with the context, have the meanings given to the
same in section 2 or Schedule 5 and such meanings shall be implied in such
instrument as fully and effectually as if the same were set out in it.

52 Covenants to be several as well as joint

Where there are 2 or more grantors or 2 or more grantees of any instrument,
then any covenants, conditions, provisos, agreements, and powers expressed in
such instrument, or implied by this Act, and imposing an obligation on such
grantors or grantees, or enuring fore the benefit of such grantors or grantees, shall,
except in so far as a contrary intention appears, be deemed to impose such
obligation, or confer such benefit as the case may be, severally as well as jointly.

53 Covenants to bind executors

Except in so far as a contrary intention appear, all covenants, conditions,
provisos, agreements, and powers expressed in any instrument, or implied therein
by this Act, shall bind the executors, administrators, and assigns of the person, or
the successors and assigns of a company or corporation, upon whom such
covenants, conditions, provisos, agreements, and powers impose an obligation
246 Niue Laws 2006 Vol 1
and shall operate for the benefit of the executors, administrators, and assigns of the person, or the successors and assigns of the company or corporation, for whose benefit the same enure.

54 Covenants may be negatived or varied

All or any of the covenants, provisos, conditions, agreements, or powers
set forth in Schedules 3, 4 and 5 may be negatived, modified, or altered, or others
may be added to them, by express words in the instrument.
TRANSFERS OF INSTRUMENTS

55 Form of transfer of instrument

Every instrument may be transferred by a document in the form in Schedule
6 or to the like effect, and every transferee, his executors, administrators, and
assigns, shall, in respect of the instrument transferred, have the same rights, powers
and remedies, and be subject to the same obligations, as the transferor.

56 Registration of transfers

Transfers of instruments by way of security may be registered at any time
after the execution of it in like manner as instruments are registered; and, in case
2 or more transfers of any one such instrument are executed, a registered transfer
shall have priority over an unregistered transfer; and, in case 2 or more transfers
or any one such instrument are registered, priority shall be given to such transfers
in the order of their time of registration.
CUSTOMARY HIRE PURCHASE AGREEMENTS

57 Special provisions as to customary hire purchase agreements

(1) A customary hire purchase agreement is a deed or agreement in writing
made between the owner of or a dealer in certain chattels and a conditional
purchaser of those chattels where –
(a) The owner of or dealer in the chattels is either the manufacturer
thereof or a person who is engaged in the trade or business of selling
or disposing of chattels of such nature or description;
(b) The deed or agreement provides expressly or impliedly for delivery
of possession to the conditional purchaser, but that the property in
the chattels shall not pass to the conditional purchaser, or shall only
conditionally so pass, until the completion of the payments to be
made by him;
(c) The chattels the subject of the deed or agreement are described in
Schedule 7 at the time when the agreement is made.
(2) A customary hire purchase agreement may be either an actual contract
for sale and purchase or a contract of bailment under which the purchaser has an
option of purchase of the chattels defined in the agreement.
(3) A customary hire purchase agreement and any assignment of a
customary hire purchase agreement and of the chattels the subject of the agreement,
whether absolute or by way of mortgage is valid and effectual for all purposes
without registration.
(4) [Repealed]
(5) The purchaser or bailee of chattels the subject of a customary hire
purchase agreement shall not have any right to sell, deal with, or dispose of such
chattels otherwise than as may be specially provided in the agreement; and no
sale, dealing, or other disposition purported to be made by such purchaser or
bailee shall be effectual to confer title upon any person as against the vendor or
bailor named in the customary hire purchase agreement, or against the assigns of
such vendor or bailor.

Chattels Transfer Act 1924

247
(6) [Repealed by 2004/270]
(7) (a) Any chattels which now or hereafter are the subject of a customary
hire purchase agreement shall, notwithstanding any rule of law to
the contrary, remain and be deemed to have remained in all respects
chattels although the same may have been fixed or attached to any
land or building, and shall be removable by the vendor or bailor if
and when he shall become entitled to possession of the same under
the provisions of such customary hire purchase agreement;
(b) Such vendor or bailor shall not be entitled to remove any such
chattels fixed to such land or building without first giving to the
owner or other person for the time being in possession of the said
land one month’s previous notice in writing of his intention to so
remove them.

57A Customary hire purchase agreements to have inventory

Section 23 shall apply to customary hire purchase agreements as defined
in section 57 to the same extent as if such agreements were instruments.

57B Finance corporations to be dealers

(1) In this section –
“customary chattels” means chattels described in Schedule 7.
“finance corporation” means a corporate body engaged in financing
transactions in relation to purchasers of customary chattels on hire
purchase terms or conditional sale.
(2) A finance corporation shall be deemed for all the purposes of section
57 to be a dealer engaged in the trade or business of selling or disposing of
customary chattels, and a deed or agreement of hire purchase between a finance
corporation and a conditional purchaser of a customary chattel in relation to such
customary chattel shall for those purposes be deemed to be a customary hire
purchase agreement.
(3) Customary chattels the property of a wholesale dealer in the possession
of a retail dealer for the purposes of sale, hire, or demonstration shall not be deemed
to be in the order and disposition of the retail dealer with the consent of the true
owner thereof within the meaning of any law relating to bankruptcy or insolvency.
(4) An agreement in relation to customary chattels, made between the
manufacturer or a wholesaler dealer in such chattels or a finance corporation and
a retailer dealer in such chattels, by which possession of the chattels is given to
such dealer, shall not be deemed to be a customary hire purchase agreement.
(5) (a) Section 57(5) shall be read subject to section 3 of the Mercantile
Law Act 1908.
(b) For the purposes of section 3 of the Mercantile Law Act, a person
entitled to the benefit of a customary hire purchase agreement as
assignee or mortgagee shall be deemed to be the true owner of any
customary chattels the subject of such hire purchase agreement.

58 Attempt to defraud grantee

PENAL
Every grantor of an instrument by way of security who, by sale or delivery without the consent of the grantee of any chattels comprised in or affected by such instrument, or by any other means, defrauds or attempts to defraud the grantee of the same or any part thereof, and thus or by any other means directly or indirectly defeats, in validates, or impairs the grantee’s security over the same,
248 Niue Laws 2006 Vol 1
and every person who wilfully aids and abets any person in defrauding or attempting to defraud the grantee by defeating, invalidating, or impairing such instrument or in attempting to do so, is liable to 2 years’ imprisonment and to a fine not exceeding 2 penalty units.

59-59A [Repealed by 2004/270]

REPEALS AND SAVINGS

60 [Repealed by 2004/270]

61 Regulations

Cabinet may make such regulations for the purposes of this Act and may
prescribe the fees to be payable under this Act.

62 Act binds the Government

This Act binds the Government in respect of all instruments to which the
Government is a party.

SCHEDULES SCHEDULE 1

Section 2 (3)

(1) CERTIFICATE ON REGISTRATION OF INSTRUMENT

I, [Full name], of [Place of residence or business], in Niue, [Occupation], hereby certify:

1. That I was present and saw (this instrument*) or (the instrument of which this

is a true copy*) or (the instrument of which the paper writing hereto annexed and marked

“A” is a true copy*) executed by [Full name, place of residence, and occupation of grantor]

(and the other signatures to it†) (by his attorney [Full name of attorney]*) or (by their

respective attorneys [Full names of attorneys]* on the day of

20 at .

2. That my signature in my proper handwriting appears on the said instrument

as that of the witness who attested its execution by the said [Full name of grantor] (and

other signatories to it†).

3. That I am aware that I am guilty of an offence if this certificate is false in a

material respect and I give it negligently or knowing it to be false.

Signed at this day of 20 .

*Delete if inapplicable.

†Delete if there are no other signatories. If the instrument is by way of bailment it must be signed

by both grantor and grantee or their respective attorneys and this certificate must relate to the

execution of the instrument by both parties.

NOTE: Where the grantor is a company or corporation the registered office of the grantor or its principal place of business in Niue should be stated in this form instead of the place of residence of the grantor and it shall not be necessary to state the occupation of such a grantor.

Section 9

Chattels Transfer Act 1924

(2) REGISTER BOOK

249

No.	By Whom Given for Against Whom Process Issued	To Whom Given	Nature and Date of Instrument	Date and Time of Registration	Date of Renewal	Satisfaction Entered
No.	Name	Resi­ dence	Occu­ pation	Name	Resi­ dence	Occu­ pation	Nature and Date of Instrument	Date and Time of Registration	Date of Renewal	Satisfaction Entered

N.B. in the case of an instrument by way of security it shall not be imperative to state the residence and occupation of the grantee.

Section 14

(3) AFFIDAVIT ON RENEWAL OF REGISTRATION OF INSTRUMENT

In the High Court of Niue In the matter of the Chattels

District Transfer Act 1924

I [Full name of deponent], of [Place of residence or business], in Niue [Occupation], make oath and say as follows”

1. I am the grantee [or grantor, in the case of an instrument by way of bailment) of the instrument registered under the above Act as No. , and made between [State names of parties to instrument, their residences and occupations, as appearing therein; also names of the parties to the instrument, their residences and occupations at the time of the making of the affidavit]. [If the affidavit is made by an agent, clerk, or servant of the grantee or grantor, state such

fact, and also state briefly how deponent has become acquainted with the facts deposed to.]

2. The said instrument was registered on the day of 20.

3. The registration of the said instrument was last renewed on the day of

29.

[This paragraph is inapplicable where registration of the instrument is being renewed for

the first time.]

4. The said instrument is still subsisting, and in full force and effect.

C.D.

Sworn at , this day of 20 , before me –

G.H., Solicitor [or Registrar of the High Court, or Justice].

Section 33

(4) INSTRUMENT BY WAY OF SECURITY

A.B., of [State residence and occupation], being owner of the chattels mentioned in the schedule hereto [where a schedule is necessary], on consideration of the sum of $

this day lent and advanced to him by C.D., of [State residence and occupation], [Or, if consideration not an advance of money, state any other consideration for which mortgage given], does hereby assign and transfer the same to the said E.F. by way of mortgage, to secure the payment of the said sum of $ , on the day of 20 , with interest thereon in the meantime, and so long as the same or any part thereof remains unpaid, at the rate of $ percent per annum, by payments on the day of the months of

and in each year.

[Implied covenants, powers, and provisions may be varied or negatived.]

In witness whereof A.B. has hereunto subscribed his name, this day of

20 .

250 Niue Laws 2006 Vol 1

[Schedule]

Signed by the above-named A.B. in the presence of – E.F.,

[Residence and occupation]

Section 42

(5) MEMORANDUM OF SATISFACTION

A.B.

I, C.D., hereby consent to a memorandum of satisfaction being written upon the instrument

[or registered copy of the instrument] given for securing the sum of

$ , bearing date the day of 20 , and made

between and , and registered on the

day of 20 , the moneys for which such instrument was given as a security

having been satisfied.

Dated this day of 20 .

Witness: E.F.

[Residence and occupation]

SCHEDULE 2

Section 5

[Repealed 1973/2.52 (NZ)]

C.D., Grantee [or Assignee].

SCHEDULE 3

Section 49

COVENANTS IMPLIED IN ALL INSTRUMENTS

That the grantor has good right and full power to assign to the grantee the chattels purporting to be hereby assigned, and that free and clear from encumbrances other than such as are herein mentioned.

That the grantor will, at the cost of the grantee [or, if the instrument is by way of security, at the cost, until sale, of the grantor, and thereafter of the person requiring the same], do and execute all such acts, deeds, matters and things for the better assigning the chattels hereby assigned, or intended so to be, as by the grantee [ or other person before mentioned] may from time to time be reasonably required.

SCHEDULE 4

Section 50

COVENANTS IMPLIED IN INSTRUMENTS BY WAY OF SECURITY

1. That the grantor will pay to the grantee the principal money and interest hereby secured, after the rate and at the times herein mentioned, without any deduction whatever.

2. That the grantor will also pay interest on any further advances that may be secured by this instrument, computed from the time of making the same respectively, at the rate and on the dates mentioned for the payment of interest in this instrument.

3. That the grantor will not, at any time while any moneys remain owing on this security, do or allow any act or deed whereby the chattels hereby assigned shall or may become prejudicially affected, and will at all times, while any moneys remain owing on this security, duly pay all rents from time to time coming due in respect of any lands or premises on which any of the chattels hereby assigned are for the time being situated.

Chattels Transfer Act 1924

251

4. That the grantor will at all times, while, any moneys remain owing on this security, keep and maintain all and singular the chattels hereby assigned in the lie good order and condition in which they are at the date hereof; and, if any of the same are damaged or destroyed, or cease to exist, will repair such damage, or replace the chattels so destroyed or ceasing to exist, with other chattels of a like nature; and further will, if required so to do by the grantee, execute any instrument that may be necessary to give to the grantee security over chattels replacing the chattels which have been destroyed or have ceased to exist.

PROVISOS AND AGREEMENTS IMPLIED IN INSTRUMENTS BY WAY OF SECURITY

5. Provided always, and it is hereby declared and agreed, that until the grantor

makes default in the payment of any of the moneys hereby secured, or in the observance

or performance of any covenant, condition or agreement herein expressed or implied,

and on his part to be observed and performed, or until the grantor becomes bankrupt, or

until a judgment of any Court against the grantor has remained unsatisfied for 10 days,

the grantor may retain possession and use of the chattels hereby assigned.

6. Provided further that the giving by the grantor to the grantee of any bill of

exchange or promissory note for the whole or any part of the money hereby secured shall

not, until such bill or note is honoured or met, be considered as payment of or on account

of the moneys secured by this instrument, or in any way affect or alter the rights or powers

of the grantee by virtue of this instrument; and no promissory note or bill of exchange

which before, at, or at any time after the execution of this instrument may be given by the

grantor to the grantee for the whole or any portion of the moneys hereby secured, or the

remedy thereon of the grantee o of the holder of it, shall merge in the covenants herein

expressed or implied.

POWERS IMPLIED IN INSTRUMENTS BY WAY OF SECURITY

7. Provided always and it is hereby declared and agreed, that if default is made

by the grantor in payment of any of the principal or interest moneys hereby covenanted

to be paid on the day on which the same ought to be paid under the terms hereof, or in

the observance or performance of any of the covenants, conditions, or agreements herein

expressed or implied, and on the grantor ’s part to be observed and performed, or if the

grantor becomes bankrupt, or if at any time a judgment of any Court against the grantor

remains unsatisfied for ten days, then and in such case the grantee, either personally or

by his agent or servants, may immediately thereupon or at any time thereafter, without

any further consent by the grantor, and without giving to the grantor any notice, or waiting

any time, and notwithstanding any subsequent acceptance of any payment of any money

due on this security, enter upon any lands or premises whereon the chattels for the time

being subject to this security may be, and take possession thereof, and sell and dispose of

the same or any part thereof by private sale or public auction, separately or together, in

such lots and generally in such manner in every respect as the grantee deems expedient,

with power to allow time for payment of purchase money, or to buy in the said chattels or

any part of it at such auction, and to rescind or vary the terms of any contract or sale, and

to resell without being answerable for any loss or expense occasioned thereby, and to

execute all such assurances and do all such things for giving effect to any such sale as

may be necessary or proper; and the receipt of the grantee or his agent shall be a sufficient

discharge to any purchaser at such sale for any of the purchase money; and upon any sale

purporting to be made in exercise of the powers herein expressed or implied no purchaser

shall be bound to inquire as to the propriety or regularity of any such sale, or be affected

by notice express or constructive that any such sale is improper or irregular.

And it is hereby declared and agreed that the grantee shall stand possessed of the

proceeds of any such sale upon trust, after paying thereout the costs, charges and expenses

of and incidental to such taking possession, sale, and the preparation and registration of

this instrument, to apply the same in reduction of the moneys then owing on the security

of this instrument, including all moneys herein covenanted to be paid, notwithstanding

that the same may not then have become due, or that any promissory notes or bills of

exchange may then be current for the same, and to pay the balance of the grantor.

252 Niue Laws 2006 Vol 1

POWERS, COVENANTS AND PROVISIONS TO BE IMPLIED IN INSTRUMENTS BY WAY OF SECURITY OVER

STOCK

8. That, during the continuance of this security, the grantee, his agents or servants,

may from time to time, and at reasonable times for that purpose, enter into and upon the

said lands or premises, or any other lands or premises whereon the stock for the time

being subject to his security are depasturing, for the purpose of viewing the state and

condition of the same; and that the grantor will, upon receiving 7 days’ previous notice in

writing delivered to him personally or addressed to him through the ordinary course of

post or otherwise at his last known place of abode in Niue, give and afford to the grantee,

his agents or servants, all reasonable assistance to enable the grantee, his agents or servants,

to view the same accordingly.

9. That there are now depasturing upon the said lands and premises all the

stock herein respectively mentioned as depasturing thereon. And that the grantor will

not, during the continuance of this security, without first obtaining the grantee’s consent

in writing, further encumber the stock for the time being subject to this security, or change

the general quality, character, or description of the same, or remove the same or any part

thereof from the said lands or premises, or sell the same or any part thereof except in the

ordinary course of business, but no sale shall be made so as to reduce the number of the

stock stated in this security.

And that the grantor will, during the continuance of this security, at the usual and

convenient season for so doing, well and properly brand, earmark, and mark, with the

brand, earmark, and mark herein specified, all stock for the time being subject to this

security, so that all such stock shall bear and continue to bear the brand, earmarks, and

marks herein specified.

And will not without the leave in writing of the grantee brand, earmark, or mark,

or permit to be branded, earmarked or marked any stock for the time being subject to this

security with any brands, earmarks, or marks other than the brands, earmarks, and marks

herein specified.

And will at all times during the continuance of this security take, use, and adopt

all due and proper means for keeping and maintaining all stock now depasturing or that

may during the continuance of this security be brought upon the said lands or premises

or any part thereof, free from disease, and in clean and healthy condition: And will at all

times during the continuance of this security pay and defray all expenses in and about

the good and proper conduct and management of the said lands, stock, and premises,

and employ and maintain on the said lands, or premises efficient and proper assistance

to assist in the said conduct and management: And will every year, on demand by the

grantee, render and deliver to him a return or account in writing setting forth the number,

ages, and sexes of the stock for the time being subject to this security and the places

where the same are depasturing or kept.

10. That all stock belonging to the grantor, branded, earmarked, or marked as

aforesaid, or covenanted so to be, of which possession has been taken, under the power

in that behalf herein contained, shall be subject to the same powers, provisions,

declarations, and agreements as are herein expressed or implied of and concerning the

stock and increase of stock herein expressed to be assigned, and may be dealt with in the

same manner in all respects as if the stock of which possession is taken as aforesaid had

formed part of the stock hereby assigned: And that the grantor will, at his own cost and

charges, do and execute all such deeds, matters, and things as may be necessary, or as the

grantee may think proper, for the further, better, and more perfectly assigning and assuring

to the grantee the stock and increase of stock, and all and singular other the premises

hereby assigned or intended so to be, or the stock for the time being on the said lands or

premises, and any stock, branded, earmarked or marked as aforesaid, or covenanted so

to be, of which possession has been taken as aforesaid, so that the same may be held by

the grantee upon and for the same ends, intents, and purposes and with, under, and

subject to the same powers, provisos, agreements, and declarations, as are herein expressed

or implied of and concerning the stock and premises being expressed to be assigned: And

shall and will from time to time, and at all times during the continuance of this security,

Chattels Transfer Act 1924

253

pay all and singular the licence fees, head moneys, and other outgoings and payments and perform and observe all rules, regulations, and conditions which by the owner for the time being of the said stock or premises respectively now are or shall become at any time hereafter due, payable, observable or performable respectively: And that in case the grantor fails or neglects to pay such licence fees, head moneys, and other outgoings and payments as aforesaid, or any of them, or any part thereof, the grantee may make such payments respectively: And that in case the grantor fails or neglects to pay such licence fees, head moneys, and other outgoings and payments as aforesaid, or any of them, or any part thereof, the grantee may make such payments respectively: And that the grantor shall and will from time to time and at all times hereafter, on demand, pay or cause to be paid to the grantee all sums of money paid or advanced by the grantee in or towards such payment as aforesaid, with interest for the same time after the rate of $7 percent per annum from the time or respective times when the same were advanced or paid: And that in the meantime, and until such sums of money have been repaid with interest as aforesaid, the stock for the time being subject to this security shall stand charged and chargeable with the payment of the same in like manner as if the same had been principal moneys secured by this instrument. That in the case the grantee exercises any power of entry or taking possession vested in him hereunder, then he, or any person or persons appointed by him for the purpose, may continue in possession of the said stock and of the lands or premises whereon the same are depasturing or kept until the sale thereof, and manage, conduct, and carry on the said lands and stock, and employ servants and assistants, and provide all necessary stores in that behalf in all respects as the grantor could do if such power had not been exercised; and the grantee for any such purpose shall be entitled without any interference by the grantor to use all branding, earmarking, marking, and other implements and plant on or used in connection with the said lands or premises; and, further, that the costs, charges and expenses of so doing, from the time of such entry and taking possession until the sale and delivery of the said stock and premises to any purchaser thereof, shall together with interest thereon after the rate aforesaid, until payment, be a charge upon the stock for the time being subject to this security.

POWER TO BE IMPLIED IN INSTRUMENTS BY WAY OF SECURITY OVER CROPS

11 If the grantor does not pay to the grantee the moneys hereby secured, with

interest and commission thereof as herein mentioned, at the time herein mentioned for

payment of the same, the crops hereby assigned shall be gathered, carried away, and

made marketable either by the grantor or by the grantee at the option of the grantee, but

in either case at the expense of the grantor, and shall (if gathered by the grantor) be

delivered by the grantor to the grantee or his order at the place of delivery mentioned [or,

if no such place is mentioned in the instrument, at such place as the grantee directs]; and

the grantee may either sell the same in Niue in one or more lots, by public auction or

private contract, or partly in the one way and partly in the other, and upon such terms

and conditions as to credit and otherwise as he thinks fit, or may cause the same to be

shipped or exported to any place or places out of Niue, to be sold by his agents in the

manner and on the terms aforesaid, without being responsible for any loss or deficiency

occasioned either by the shipment of the said crop or by any sale or sales thereof, whether

in Niue or elsewhere, or by the act, neglect, or default of any agent, broker, or other

person; and may from the proceeds pay himself the moneys hereby secured, and any rent

payable to any landlord, and any moneys payable to any mortgagee or other person that

he may be compelled to pay in order to protect his security over the said crops, and all

costs, mercantile and other charges, and expenses incurred in and about the harvesting,

sale, shipment, and carrying away of such crops, and the storage and freight thereof, or

on any other account connected with the realisation thereof, and shall pay over the balance,

if any, to the grantor.

12 [Repealed by 2004/270]

254 Niue Laws 2006 Vol 1

SCHEDULE 5

Section 51

MEANING OF ABBREVIATED EXPRESSIONS

1. The words “upon demand” mean upon demand being made by notice in writing signed by the person entitled to make the demand, or any agent or clerk or servant of such person, served upon the person upon whom the demand is to be made, either personally or by posting the same in a duly registered letter addressed to him at his usual or last known place of abode in Niue.

2. The words “further advances” mean such further sum or sums of money as may be advanced or paid by the grantee to the grantor after the execution of this instrument, and include also such sums as may become owing by the grantor to the grantee during the continuance of this security for goods supplied, for bills and notes discounted and paid, and for other loans, credits, and advances that may during the continuance of this security be made by the grantee to or for the accommodation or at the request of the grantor.

3. The words “will, upon demand pay the balance due upon the account current between them” mean that the grantor will, on demand, pay to the grantee the balance on the account current of the grantor with the grantee for the time being owing for and on account of the moneys advanced on the execution hereof, or intended to be hereby secured, and for further advances as defined by the Chattels Transfer Act 1924, and for interest, commission and other lawful charges from the day of such demand being made till the actual payment thereof, at the rate mentioned in this instrument without any deduction; and it is hereby declared and agreed that the said account current shall be made up with half-yearly rests on the half-yearly days mentioned for that purpose in this instrument, in each year [or, if no such days are mentioned in the instrument, then on 31 March and 30

September in each year], until the final balance of account is fully paid; and that this instrument shall be a continuing security for all moneys for the time being owing by the grantor to the grantee, notwithstanding that the current account between them may have at any time theretofore been in credit by payments, settlement of account, or otherwise; and also that upon every such half-yearly day interest shall be considered as converted into principal, and the balance shall be chargeable with interest as aforesaid as upon further advances, and also that in making up such account interest at the rate specified in this instrument shall be calculated on the daily debtor balances; and also that, upon any such demand as aforesaid, all bills of exchange or promissory notes given by the grantor to the grantee and then current may, at the option of the grantee, be considered as matured or become due, subject to a rebate of interest upon the amount thereof for the time during which the same have to run, to be calculated at the rate at which interest is payable under this instrument, and that the amount of such bills or promissory notes, subject to such rebate, may be charged to the grantor in such account at the time of making such demand.

4. The words “will insure” mean that the party liable to insure will insure and at all times while this instrument remains in force will keep insured against loss or damage by fire all chattels comprised herein of a nature of kind capable of being insured against loss or damage by fire, such insurance to be effected in the name of the other party to this instrument and in some public insurance office to be approved of by him, and to be for the full amount herein specified [or, if no amount is specified, then for the full insurable value of the said chattels]; and will, at the request of the other party, hand over to and deposit with him the policy of every such insurance, and produce and deliver to him the receipt or receipts for the annual or other premiums payable on account thereof; and also that all moneys received under any such insurance shall, in the event of loss or damage by fire, be laid out and expended, so far as the same extend, in making good such loss or damage [or, if the instrument is given by way of security, in discharging the moneys hereby secured, if such other party so elects]: Provided that, if default be made in the observance or performance of this covenant, such other party may, without prejudice to and concurrently with the powers granted him by this instrument or otherwise by law, insure such chattels, and may forthwith recover the costs and charges of such insurance from the party liable to insure in like manner as if the same had been advanced by way of loan on the security of this instrument.

Chattels Transfer Act 1924

255

5. The words “will brand, earmark, and mark” mean that the party liable to brand, earmark, and mark will keep all the stock subject to this security at all times while the instrument remains in force distinctly branded, earmarked, and marked with the brands, earmarks, and marks specified in this instrument, failing which it shall be lawful for, but not imperative on, the other party hereto to enter upon any lands or premises where any stock subject to this security are and to take possession of the name, and brand, earmark, and mark the same with the brands, earmarks, and marks specified in this instrument, with the right to use all branding, earmarking, marking and other implements and plant requisite therefor, and all costs, charges, and expenses occasioned to him by so doing shall be recoverable from the party liable to brand, earmark, and mark as if the same had been advanced by way of loan as a further advance on the security of this instrument.

SCHEDULE 6

Section 55

TRANSFER OF INSTRUMENT

I, C.D. of [State residence and occupation of transferor], the grantee [or grantor, in case of an instrument by way of bailment] of the instrument registered in the office of the High Court at as no. under the Chattels Transfer Act 1924, do, in consideration of [State consideration], hereby transfer to X. Y., of [State residence and occupation of transferee], the chattels comprised in the said instrument, and all my right, title, estate, and interest thereunder.

As witness my hand this day of 20 .

Signed by the said C.D, in the presence of – E.F.,

[Residence and occupation]

C.D.

SCHEDULE 7

Section 57

CHATTELS WHICH MAY BE THE SUBJECT OF CUSTOMARY HIRE PURCHASE AGREEMENTS.

Furniture.

Pianos and pianolas.

Gramophones.

Typewriters.

Motor vehicles of all descriptions.

Sewing machines.

Cash registers.

Shearing machines.

Engines.

Pumps and machinery, implements, and accessories for use in pumping.

Windmills.

Milking machines, and all other machinery and implements and accessories for use in

the dairy industry.

Reapers and binders, and all other machinery and implements and accessories thereto

for use in agriculture.

Machinery, implements, and accessories thereto for use in the bootmaking industry.

Electric motors.

Machine printing presses and slug casting machines, type composing machines, and other

machinery accessories and attachments for use in connection with the printing and

bookbinding industry.

Gas stoves, gas geysers, gas washing coppers.

Electrical equipment apparatus, and appliances required in connection with the use of

electric energy.

256 Niue Laws 2006 Vol 1

Computing scales, weighing machines, bread and bacon slicing machines, cheese cutting machines.

Tractors.

Equipment, apparatus and appliances for use in connection with the consumption of

coal gas.

Cinematograph projection machines, and lighting and other equipment peculiar thereto.

Electric ranges and water heaters.

Electric vacuum cleaners, electric refrigerators, radio sets and equipment, bicycles.

Electric washing machines, electric ironing machines, electric floor polishing machines,

petrol driven washing machines

Electric dish washing machines

Piano accordions

Motor mowers, 12 to 21 in.

Electric clothes drying machines and appliances, electric garbage disposal machines and

appliances.

Self-propelled machinery and plant for road-making, earth-moving, tree-moving, or tree-

haulage purposes.

Equipment and appliances for road-making, earth-moving, tree-moving, or tree-haulage

purposes, and attached to or for use with –

(a) Motor vehicles or tractors; or

(b) Self-propelled machinery or plant for roadmaking, earthmoving, tree-

moving, or tree-haulage purposes.

Tanks, equipment, apparatus and appliances for use in connection with the storage,

pumping, and serving of beer (excluding barrels).

Power-operated vehicle hoists and accessories thereto; power-operated lubrication

equipment and accessories thereto.

Television sets and equipment.

Domestic knitting machines.

Heavy duty trailers.

Dry-cleaning equipment of a commercial or industrial type.

Laundry equipment of a commercial or industrial type.

Silos of the type commonly sold to farmers for the storage of grain on farms.

257

CHEQUES ACT 1960

1960/17 (NZ) – 1 January 1961

1	Short title	5	Protection of bankers collecting payment of
2	Protection of bankers paying unindorsed or		cheques
	irregularly indorsed cheques	6	Application of certain provisions of principal
3	Rights of bankers collecting cheques not		Act
	indorsed by holders	7	Effect of Act
4	Unindorsed cheques as evidence of payment	8	[Spent]

1 Short title

This Act is the Cheques Act 1960, and shall be read together with and
deemed part of the Bills of Exchange Act 1908 (the principal Act).

2 Protection of bankers paying unindorsed or irregularly indorsed cheques

(1) Where a banker in good faith and in the ordinary course of business
pays a cheque drawn on him which is not indorsed or is irregularly indorsed, he
shall not, in doing so, incur any liability by reason only of the absence of, or
irregularity in, indorsement, and he shall be deemed to have paid in due course.
(2) Where a banker in good faith and in the ordinary course of business
pays any such instrument as the following; namely –
(a) A document issued by a customer of his which, though not a bill of
exchange, is intended to enable a person to obtain payment from
him of the sum mentioned in the document; or
(b) A draft payable on demand drawn by him upon himself whether
payable at the head office or some other office of his bank –
he shall not, in doing so, incur any liability by reason only of the absence of, or
irregularity in, indorsement, and the payment shall discharge the instrument.

3 Rights of bankers collecting cheques not indorsed by holders

A banker who gives value for, or has a lien on, a cheque payable to order
which the holder delivers to him for collection without indorsing it shall have
such rights (if any) as he would have had if, upon delivery, the holder had indorsed
it in blank.

4 Unindorsed cheques as evidence of payment

An unindorsed cheque which appears to have been paid by a banker on
whom it is drawn shall, in the absence of proof to the contrary, be sufficient evidence
of the receipt by the payee of the sum payable by the cheque.

5 Protection of bankers collecting payment of cheques

(1) Where a banker in good faith and without negligence –
(a) Receives payment for a customer of an instrument to which this
section applies, or
258 Niue Laws 2006 Vol 1
(b) Having credited a customer ’s account with the amount of any such instrument receives payable of it for himself –
and the customer has no title, or a defective title, to the instrument, the banker shall not incur any liability to the true owner of the instrument by reason only of having received payment of it.
(2) This section applies to the following instruments, namely –
(a) Cheques;
(b) Any document issued by a customer of a banker which, though
not a bill of exchange, is intended to enable a person to obtain
payment from that banker of the sum mentioned in the document;
(c) Any document, not being a bill of exchange, issued by a member of
the Niue Public Service which is intended to enable a person to
obtain payment from a Niue public account of the sum mentioned
in the document;
(d) [Repealed by 2004/270]
(e) Any draft payable on demand drawn by a banker upon himself,
whether payable at the head office or some other office of his bank.
(3) A banker shall not be treated for the purposes of this section as having
been negligent by reason only of his failure to concern himself with the absence
of, or irregularity in indorsement of an instrument.

6 Application of certain provisions of principal Act

The provisions of the principal Act relating to crossed cheques shall, so far
as applicable, have effect in relation to instruments (other than cheques) to which
section 5 applies as they have effect in relation to cheques.

7 Effect of Act

Nothing in this Act shall be deemed to make negotiable any instrument
which, apart from those provisions is not negotiable.

8 [Spent]

259

CHILD ALLOWANCE ACT 1995

1995/203 – 1 January 1996

1	Short title	10	Person allowance is payable to
2	Interpretation	11	Application of child allowance
3	Payment out of Government Account	12	Applying for allowance
4	Amount and payment date	13	Investigation of applications
5	Qualifying child	14	Recovery of allowance
6	Disabled/disadvantaged persons	15	Offences
7	Residence qualifications	16	Proceedings for offences
8	Exemptions	17	Delegation of powers of Director
9	Period allowance is payable	18	Regulations

1 Short title

This is the Child Allowance Act 1995.

2 Interpretation

In this Act –
“applicant” means the person who makes an application for a child
allowance;
“application” means a form filled out by the applicant when applying for
a child allowance;
“beneficiary” means a person who receives a child allowance in that year;
“Director” means the Director of Community Affairs;
“qualifying child” means a child who meets the criteria under section 5
and includes a stepchild, an adopted child and any child who, if not a
member of the applicant’s family is recognised by the Director as a
member of the applicant’s family;
“recognised school” means a school that is recognised and approved by
the Director for the purposes of this Act;
“Welfare Committee” means the committee constituted under section 5 of
the Pensions and Benefits Act 1991.

3 Payment out of Government Account

Child allowance payable under this Act shall be paid from the Niue
Government Account out of money appropriated by the Niue Assembly for the
purpose.

4 Amount and payment date

(1) The rate of child allowance payable shall be such amount as may be
determined by Cabinet to regulations made under this Act, such amount to be
paid out to a qualifying person as defined in section 10 for each qualifying child
as defined in section 7.
(2) No child allowance shall be payable in respect of any period before the
first payment date pursuant to subclause (1).
260 Niue Laws 2005 Vol 1

5 Qualifying child

(1) A qualifying child shall be a child who qualifies on a residence basis as
set out in section 7 and who is –
(a) Either a Niuean by descent;
(b) A permanent resident of Niue; or
(c) A New Zealand citizen.
(2) A qualifying child may apply for a child allowance who, at the time of
application –
(a) Is ordinarily resident in Niue;
(b) Is not married;
(c) Is financially dependent; and
(d) Is attending a recognised school in Niue.

6 Disabled/disadvantaged persons

(1) Notwithstanding section 5 a disabled/disadvantaged person, who is
not required or is unable to attend school shall be eligible for child allowance up
to the age of 18 years.
(2) The Director on advice of the Welfare Committee shall have sole
discretion to determine whether any child comes within the definition of disabled/
disadvantaged to such an extent as to qualify for the exemptions referred to herein.

7 Residence qualifications

Subject to section 8 an applicant and/or the child the subject of the
application who has been absent from Niue for a continuous period of more than
12 months immediately preceding the application shall not be eligible for child
allowance until a period of 6 months has elapsed since returning to Niue.

8 Exemptions

(1) Any person being the child of an Award Holder who as a direct
consequence of being overseas in the years immediately preceding application
cannot fulfil the residence requirement in section 7 shall not be required to complete
such requirement before being eligible to become a qualifying child.
(2) For the purposes of this section an “Award Holder” is a person who
has taken up study or training overseas which will be of benefit to the Award
Holder and Niue’s development.

9 Period allowance is payable

(1) Child allowance payable in respect of a qualifying child shall, subject
to this Act, commence on the day the application is approved by the Director and
shall continue until the day on which the child leaves a recognised school.
(2) No allowance shall be payable in respect of any period before the date
of coming into force of this Act or its Regulation.
(3) If an application is received by the Director after the closing date as
determined by the Director, the allowance shall not commence until the following
year.
(4) (a) It is the responsibility of the qualifying person to inform the Director in writing of any intended absence from Niue, of the child or themselves.
(b) Failure to inform the Director in writing will result in the loss of future allowances.

Child Allowance Act 1995

261

10 Person allowance is payable to

(1) A qualifying person shall be a parent or guardian whose application
for child allowance has been granted by the Director.
(2) Unless otherwise provided, child allowance shall be payable only to
the mother of a qualifying child (whether application for the allowance has been
made by the mother or father or another person).
(3) The child allowance may be paid to the father of that child, if
(a) The mother of the child has passed away, or has left permanently
for overseas, or has left the family permanently without the child;
and
(b) The child is living with the father and under his care and control.
(4) In any other case the Director may determine that the child allowance
shall be paid to any person who has care and control of the child.
(5) No child allowance shall be payable to any applicant if another
allowance is being paid in another country or received from overseas for that
child.

11 Application of child allowance

(1) Money received by way of child allowance shall be used towards the
maintenance, education, or welfare of the child or children in respect of whom it
is paid, with a sum allocated by Cabinet under regulation, for assisting the school
committee at the school the child attends.
(2) (a) The Director may refuse to grant an allowance or may terminate or
suspend an allowance if the Director is satisfied that the allowance
will not be or has not been properly applied.
(b) Any person aggrieved by a decision of the Director made pursuant
to this section may appeal to the Court for a ruling.
(3) A child allowance cannot be used as collateral or for guaranteeing a
loan.

12 Applying for allowance

An application for a child allowance shall be on an approved application
form and addressed to the Director and shall be by way of statutory declaration in
such form with such information and evidence as the Director may determine.

13 Investigation of applications

(1) Every application shall be investigated by the Director, who shall decide
as to whether the allowance is payable and if so, to whom.
(2) It shall be the duty of every person to answer all questions put by the
Director concerning any application for a child allowance, or concerning any
statements contained in any application for a child allowance.
(3) For the purpose of ascertaining the child’s enrolment and attendance
the Director shall have access to the child’s school attendance records when
required.

14 Recovery of allowance

(1) If any allowance is procured or paid by fraud or false information, the
amount so paid may be recovered from the qualifying person as a debt due to the
Crown.
(2) The Director may make any necessary adjustments in any future
allowance or any other benefit or allowance (whether payable under this or any
other enactment) thereafter becoming payable to the qualifying person.
262 Niue Laws 2006 Vol 1

15 Offences

Every person who –
(a) Makes any statement knowing it to be false in any material
particular;
(b) Wilfully does or says anything or omits to do or says anything for
the purpose of misleading or attempting to mislead any officer
concerned in the administration of this Act or any other person
whomsoever for the purpose of obtaining (for himself or any other
person) or which results in himself or any other person obtaining
any allowance under this Act;
(c) Demands or accepts from any applicant or from any other person
any fee or other consideration for procuring or endeavouring to
procure any allowance under this Act for that child,
commits an offence and shall be liable on conviction to imprisonment for a term
not exceeding 2 months, or to a fine not exceeding 2 penalty units or to both such
imprisonment and fine.

16 Proceedings for offences

(1) Notwithstanding any other enactment, an information for an offence
against this Act may be laid at any time within 5 years after the facts alleged in the
information have been brought to the knowledge of any person concerned in the
administration of this Act.
(2) Every information relating to an offence may, notwithstanding any other
enactment, be heard and determined before the Court.

17 Delegation of powers of Director

(1) The Director may either generally or particularly, delegate to another
officer of the Department such of his powers under this Act or its regulations as
the Director may determine.
(2) Subject to this section and to any general or special directions given or
conditions attached by the Director, the officer to whom any powers are delegated
under this section may exercise those powers in the same manner and with the
same effect as if they had been conferred on him directly by this section and not
by delegation.

18 Regulations

Cabinet may make all necessary regulations to carry out the provisions of
this Act.
263

CITIZENSHIP ACT 1977

1977/61 (NZ) – 1 January1978

[EDITORIAL NOTE: The Citizenship Act of Niue is the Citizenship Act of New Zealand but it has had fewer amendments made to it. This is because none of the New Zealand amendments were extended to Niue. The Niue Assembly has made no amendments to the act. The citizenship enjoyed in Niue is the citizenship of the State of New Zealand. In practical terms therefore the important text is the current Citizenship Act 1977 of New Zealand. It is the Act which is reproduced here. The Citizenship Act 1977 in its Niue form is accessible in Niue Legislation as at 1 August 1990 Vol 1.]

1	Short title and commencement
2	Interpretation
3	Special provisions relating to parentage
4	Administration of Act
4A	Delegation of powers by Secretary
5	Act binds Crown

PART 1

NEW ZEALAND CITIZENSHIP

Acquisition of Citizenship

6 Citizenship by birth

7 Citizenship by descent

8 Citizenship by grant

8 AGrant of citizenship to spouse of New

Zealand citizen (Repealed)

9 Grant of citizenship in special cases

9A Disqualifying convictions

9B Minister may rescind approval at any time

up until applicant becomes citizen

10 Grant of citizenship as of right in certain

cases

11 Minister may require oath or affirmation of

allegiance to be taken

12 Certificate of New Zealand citizenship

Transitional Provisions Relating to Citizenship

13 Existing rights of citizenship protected

14 Applications made under British

Nationality and New Zealand Citizenship

Act 1948 may be proceeded with under this

Act

Loss of Citizenship

15 Renunciation of citizenship

16 Deprivation of New Zealand citizenship [in

special cases]

17 Deprivation of New Zealand citizenship in case of fraud, etc

18 Effect of order

19 Court review of grounds for depriving

person of citizenship

20 Saving of obligations incurred before loss

of citizenship, etc

Miscellaneous Provisions Relating to Citizenship

21 Evidentiary certificates

22 Minister may delegate functions and

powers to overseas representatives

PART 2

MISCELLANEOUS PROVISIONS

23 Capacity as to property

24 General provisions as to certificates and

other documents

25 Evidence

26 Discovery of documents held under this

Act

26A Disclosure of citizenship information to

certain specified agencies for certain

purposes

26B Access to information for citizenship

purposes

27 Offences and penalties

28 Regulations

29 Application of Act to Cook Islands, Niue,

and Tokelau

30 Repeals, consequential amendments, and

revocation

SCHEDULES

264 Niue Laws 2006 Vol 1

To make better provision with respect to the status of New Zealand citizenship, and to consolidate and amend the British Nationality and New Zealand Citizenship Act 1948

1 Short title and commencement

This Act may be cited as the Citizenship Act 1977.

2 Interpretation

(1) In this Act, unless the context otherwise requires—
“alien” means a person who does not have the status of a New Zealand
citizen, a Commonwealth citizen (British subject), a British protected
person, or an Irish citizen;
“Armed Forces” has the meaning given to it by section 2 of the Defence
Act 1990;
“Crown service under the New Zealand Government” means the service
of the Crown under the Government of New Zealand or under the
Government of a New Zealand mandated territory or New Zealand
trust territory, whether that service is in any part of Her Majesty’s realms
and territories or elsewhere; and includes employment in any of the
State Services, as that term is defined in section 2 of the State Sector Act
1988;
“employee” has the meaning given to it by section 2 of the State Sector Act
1988, except that it includes –
(a) Any chief executive; and
(b) [Repealed]
“Minister” means the Minister of Internal Affairs;
“New Zealand” includes the Cook Islands, Niue, Tokelau, and the Ross
Dependency;
“New Zealand overseas representative” means a diplomatic or consular
representative for New Zealand or a representative of the Government
of New Zealand in any other country; and includes a High
Commissioner for New Zealand in any other country;
“prescribed” means prescribed by regulations made under this Act or by
the Minister;
“Protected state” means a Majesty by Order in Council to be a protected
state for the purposes of the British Nationality Act 1948 (UK); and
includes the New Hebrides and Canton Island;
“Protectorate” means a State or territory that is declared by Her Majesty
by Order in Council to be a protectorate for the purposes of the British
Nationality Act 1948 (UK);
“Secretary” means the Secretary for Internal Affairs.
(2) References in this Act to a Commonwealth country include references
to every territory for the international relations of which that country is responsible.
(3) For the purposes of this Act, –
(a) A person born aboard a registered ship or aircraft shall be deemed
to have been born in the place in which the ship or aircraft was
registered;
(b) A person born aboard an unregistered ship or aircraft of the
Government of a country shall be deemed to have been born in
that country;
(c) A person shall be deemed to be of full capacity if he is not of unsound
mind.

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265

3 Special provisions relating to parentage

(1) For the purposes of this Act a person shall, in the absence of evidence
to the contrary, be presumed to be the father of another person if—
(a) he is or was married to, or in a civil union or a de facto relationship
with, that other person’s mother at any time during the period
commencing with that other person’s conception and ending with
that other person’s birth; or
(b) His paternity of that other person has been established by one or
more of the types of evidence specified by section 8 of the Status of
Children Act 1969 –
and (but without limiting subsection (2) of this section) the term “father”, when
used in this Act, shall be construed accordingly.
(2) For the purposes of this Act a person shall be deemed to be the child of
a New Zealand citizen if –
(a) He or she has been adopted by that citizen, in New Zealand, by an
adoption order within the meaning of and made under the Adoption
Act 1955; or
(aa) He or she has been legally adopted by that citizen, in Niue, Tokelau,
or the Cook Islands, by an adoption order that has the same
operation and effect as an adoption order made under the Adoption
Act 1955; or
(b) He or she has been adopted by that citizen, outside New Zealand,
by an adoption to which section 17 of the Adoption Act 1955 applies,
and either –
(i) that adoption took place before the commencement of the
Citizenship Amendment Act 1992; or
(ii) at the time that adoption order was made he or she had not
attained the age of 14 years; or
(ba) He or she has been adopted by that citizen, outside New Zealand,
by an adoption order which has been certified by the competent
authority of the Contracting State in which the adoption was made
as being an adoption made in accordance with the Convention on
Protection of Children and Co-operation in Respect of Intercountry
Adoption –
and in any such case –
(c) The terms “father”, “mother”, and “parent”, when used in this Act,
shall be construed accordingly;
(d) The person shall be deemed to have been born when and where
the adoption order was made:
Provided that, on the discharge for any reason of the adoption order in accordance
with section 20 of the Adoption Act 1955 (or in accordance with the law relating to
the discharge of adoption orders in Niue, Tokelau, or the Cook Islands), the person
shall cease to be deemed to be the child of that citizen.
(2A) Nothing in the Adoption Act 1955 shall confer on a person who has
been adopted by a New Zealand citizen in circumstances other than those specified
in subsection (2) of this section any greater right to New Zealand citizenship than
that person would have had if that person had not been adopted.
(2B) For the purposes of this Act, a person is deemed to be the child of a
person entitled to be in New Zealand indefinitely if—
266 Niue Laws 2006 Vol 1
(a) He or she has been adopted in New Zealand on or after 1
January 2006, by an adoption order within the meaning of and
made under the Adoption Act 1955, by a person who, at the
time of the adoption, is entitled in terms of the Immigration
Act 1987 to be in New Zealand indefinitely, or entitled to reside
indefinitely in the Cook Islands, Niue, or Tokelau; or
(b) He or she has been legally adopted in the Cook Islands, Niue, or
Tokelau on or after 1 January 2006, by an adoption order that has
the same operation and effect as an adoption order made under the
Adoption Act 1955, by a person who, at the time of the adoption, is
entitled in terms of the Immigration Act 1987 to be in New Zealand
indefinitely, or entitled to reside indefinitely in the Cook Islands,
Niue, or Tokelau, –
and, in any such case –
(c) The terms father, mother, and parent, when used in this Act, are to
be construed accordingly, and
(d) The person is deemed to have been born when and where the
adoption order was made; but
(e) On the discharge for any reason of the adoption in accordance with
section 20 of the Adoption Act 1955, or in accordance with the law
relating to the discharge of adoption orders in the Cook Islands,
Niue, or Tokelau, the person ceases to be deemed to be the child of
the person entitled to be in New Zealand indefinitely.
(3) References in this Act to the status or description of the father or mother
of a person at the time of that person’s birth shall, in relation to a person born after
the death of his father or mother (as the case may require), be construed as referring
to the status or description of the father or mother at the time of his or her death.
(4) Where the relevant parent died before, and the person was born on or
after, the 1st day of January 1949, the status or description that would have been
applicable to the parent had he or she died on or after the 1st day of January 1949
shall be deemed to be the status or description applicable to him or her at the time
of his or her death.
(5) Where the relevant parent died before, and the birth occurs on or after,
the 1st day of January 1978, the status or description that would have been
applicable to the parent had he or she died on or after that date shall be deemed to
be the status or description applicable to him or her at the time of his or her death.
(5A) In subsection 3(1)(a), de facto relationship has the same meaning as in section
2D of the Property (Relationships) Act 1976, except that—
(a) The reference to 18 years in subsection (1)(a) of that section is to be
read as a reference to 16 years; and
(b) A person who has attained the age of 16 years but who is younger
than 18 years may be treated as having a de facto relationship with
another person only if –
(i) the person is under the guardianship of a court, and the court
has on an application for the purpose consented to the
relationship; or
(ii) in the case of a person not under the guardianship of a court,
the person’s parents and guardians have consented to the
relationship.
(6) In subsection (2)(ba), Contracting State has the same meaning as in the
Adoption (Intercountry) Act 1997.

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267

4 Administration of Act

Subject to the control of the Minister, the Secretary for Internal Affairs is
responsible for the administration of this Act.

4A Delegation of powers by Secretary

(1) The Secretary may from time to time, by writing under the Secretary’s
hand, either generally or particularly, delegate to such officer or officers of the
Department of Internal Affairs as the Secretary thinks fit all or any of the powers
and functions exercisable by the Secretary under this Act or under any regulations
made under this Act, other than the power of delegation conferred by this section.
(2) Subject to any general or special directions given or conditions attached
by the Secretary, the officer to whom any powers are delegated under this section
may exercise those powers in the same manner and with the same effect as if they
had been conferred on the officer directly by this section and not by delegation.
(3) Every person purporting to act pursuant to any delegation under this
section shall be presumed to be acting in accordance with its terms in the absence
of evidence to the contrary.
(4) Any delegation under this section may be made to a specified officer
or to officers of a specified class, or may be made to the holder for the time being
of a specified office or class of office.
(5) Any delegation under this section shall be revocable at will, and no
such delegation shall prevent the exercise of any power or function by the Secretary.
(6) Any such delegation shall, until revoked, continue in force according
to its tenor, notwithstanding the fact that the Secretary by whom it was made may
have ceased to hold office, and shall continue to have effect as if made by the
successor in office of that Secretary.

5 Act binds Crown

This Act binds the Crown.
PART 1
NEW ZEALAND CITIZENSHIP

Acquisition of Citizenship

6 Citizenship by birth

(1) Subject to subsection (2), a person is a New Zealand citizen by birth if –
(a) The person was born in New Zealand on or after l January 1949
and before 1 January 2006; or
(b) The person was born in New Zealand on or after 1 January 2006,
and, at the time of the person’s birth, at least one of the person’s
parents was –
(i) a New Zealand citizen; or
(ii) entitled in terms of the Immigration Act 1987 to be in New
Zealand indefinitely, or entitled to reside indefinitely in the
Cook Islands, Niue, or Tokelau.
(2) A person shall not be a New Zealand citizen by virtue of this section if,
at the time of his birth,—
(a) His father or mother was a person upon whom any immunity from
jurisdiction was conferred by or under the Diplomatic Privileges
and Immunities Act 1968 or the Consular Privileges and Immunities
Act 1971 or in any other way, and neither of his parents was a New
Zealand citizen; or
268 Niue Laws 2006 Vol 1
(b) His father and mother were enemy aliens and the birth occurred in a place then under occupation by the enemy.
(3) Despite subsections (1) and (2), –
(a) Every person born in New Zealand on or after 1 January 1978 is a
New Zealand citizen by birth if the person would otherwise be
stateless;
(b) A person is deemed to be a New Zealand citizen by birth if—
(i) the person, having recently been born, has been found
abandoned in New Zealand; and
(ii) investigations have failed to establish the identity of at least
one of the person’s parents.
(4) Notwithstanding section 7 of this Act, a person born outside New
Zealand shall be deemed to be a New Zealand citizen otherwise than by descent
if that person’s father or mother is then—
(a) A New Zealand citizen, or a New Zealand citizen by descent,
pursuant to this Act; and
(b) Either—
(i) a head of mission or head of post within the meaning of the
Foreign Affairs Act 1988; or
(ii) an employee in any part of the State services, or a member of
the Armed Forces, on service overseas; or
(iia) a person working overseas for the public service of Niue,
Tokelau, or the Cook Islands; or
(iii) an officer or employee of New Zealand Trade and Enterprise
(as established by the New Zealand Trade and Enterprise Act
2003) on service overseas; or
(iv) an officer or employee of the New Zealand Tourism Board (as
established by the New Zealand Tourism Board Act 1991) on
service overseas.
(5) Despite section 7, a person is a New Zealand citizen by birth if—
(a) The person is born in the Independent State of Samoa; and
(b) But for reasons of medical necessity requiring the mother to travel
from Tokelau to the Independent State of Samoa to give birth to the
person, the person would have been born in Tokelau; and
(c) At the time of the person’s birth the person would have been a
New Zealand citizen by birth under subsection (1), had the person
been born on that date in Tokelau.
(6) A person who is a New Zealand citizen by birth does not lose his or her
New Zealand citizenship by reason of the person being adopted by a parent or
parents who are neither—
(a) New Zealand citizens; nor
(b) Persons entitled to reside indefinitely in New Zealand in terms of
the Immigration Act 1987 or entitled to reside indefinitely in the
Cook Islands, Niue, or Tokelau.

7 Citizenship by descent

(1) Every person born outside New Zealand on or after 1 January 1978 is a
New Zealand citizen by descent if, at the time of the person’s birth,—
(a) His or her mother or father was a New Zealand citizen otherwise
than by descent; or
(b) His or her mother or father was a New Zealand citizen by descent,
and the person would otherwise be stateless.

Citizenship Act 1977 (NZ)

269
(2) A person who is a New Zealand citizen by virtue of subsection (1) may apply for his or her citizenship status to be registered in accordance with regulations made under this Act.
(3) For the purposes of this section, the Secretary may issue a certificate stating a person’s status under this section and, in the absence of evidence to the contrary, a certificate to such effect signed by the Secretary, or by a person authorised for the purpose by the Secretary, shall be sufficient evidence of the matters stated in the certificate.
(4) The citizenship of any New Zealand citizen by descent that has lapsed
before the commencement of the Citizenship Amendment Act 2000 is reinstated
with effect from the time it lapsed.

8 Citizenship by grant

(1) The Minister may authorise the grant of New Zealand citizenship to
any person, including a person who may be a New Zealand citizen by descent, who—
(a) Has attained the age of 16 years; and
(b) Is of full capacity; and
(c) Applies for citizenship in the prescribed manner; and
(d) Satisfies the Minister that he or she meets each of the requirements
specified in subsection (2).
(2) The requirements referred to in subsection (1)(d) are as follows:
(a) That the applicant is entitled in terms of the Immigration Act 1987
to be in New Zealand indefinitely;
(b) That the applicant was present in New Zealand –
(i) for a minimum of 1 350 days during the 5 years immediately
preceding the date of the application; and
(ii) for at least 240 days in each of those 5 years,
being days during which the applicant was entitled in terms of the Immigration
Act 1987 to be in New Zealand indefinitely –
(c) That the applicant is of good character;
(d) That the applicant has sufficient knowledge of the responsibilities
and privileges attaching to New Zealand citizenship;
(e) That the applicant has sufficient knowledge of the English language;
(f) That the applicant intends, if granted New Zealand citizenship,
either—
(i) to continue to reside in New Zealand; or
(ii) to enter into or continue in Crown service under the New
Zealand Government, or service under an international
organisation of which the New Zealand Government is a
member, or service in the employment of a person, company,
society, or other body of persons resident or established in New
Zealand.
(3) For the purposes of subsection (2)(a), a person will not be treated as
entitled to be in New Zealand indefinitely if—
(a) Requirements have been imposed under the Immigration Act 1987
on the person’s entitlement to reside in New Zealand indefinitely;
and
(b) Those requirements have not been met in full or cancelled at the
time of the person’s application for citizenship.
270 Niue Laws 2006 Vol 1
(4) The Minister may, after consultation with the Minister of Immigration, – (a) Waive the requirement in subsection (2)(a) if satisfied that an applicant is entitled to reside indefinitely in the Cook Islands, Niue,
or Tokelau;
(b) Waive the requirement in subsection (2)(b) if satisfied that an
applicant was present in the Cook Islands, Niue, or Tokelau –
(i) for a minimum of 1 350 days during the 5 years immediately
preceding the date of the application; and
(ii) for at least 240 days in each of those 5 years,—
being days during which the applicant was entitled to reside indefinitely in the
Cook Islands, Niue, or Tokelau.
(5) For the purposes of subsection (2)(b), the Minister may treat the
applicant as having been in New Zealand for any period within the period of 5
years immediately preceding the date of application for citizenship during which—
(a) The applicant was in Crown service under the New Zealand
Government; or
(b) The applicant was outside New Zealand because the applicant was
accompanying his or her spouse or civil union or de facto partner
who was a New Zealand citizen in Crown service under the New
Zealand Government.
(6) For the purposes of subsection (4)(b), the Minister may treat the
applicant as having been present in the Cook Islands, Niue, or Tokelau for any
period within the period of 5 years immediately preceding the date of the
application for citizenship during which—
(a) The applicant served in the public service of the Government of
the Cook Islands, Niue, or Tokelau; or
(b) The applicant was outside New Zealand because the applicant was
accompanying his or her spouse or civil union or de facto partner
who was a New Zealand citizen serving in the public service of the
Cook Islands, Niue, or Tokelau.
(7) If the Minister is satisfied in a particular case that there are exceptional
circumstances particular to the applicant that would justify such a course, the
Minister may accept the presence by the applicant for a lesser number of days as
being sufficient compliance with—
(a) The requirements of subsection (2)(b), so long as the applicant—
(i) was physically present in New Zealand for not less than 450
days during the 20-month period immediately preceding the
date of the application for citizenship; and
(ii) was entitled in terms of the Immigration Act 1987 to be in New
Zealand indefinitely during each of those 450 days.
(b) The requirements of subsection (4)(b), so long as the applicant—
(i) was physically present in the Cook Islands, Niue, or Tokelau
for not less than 450 days during the 20-month period
immediately preceding the date of the application for
citizenship; and
(ii) was entitled to be in the Cook Islands, Niue, or Tokelau
indefinitely during each of those 450 days.
(8) The Minister may waive the requirement in subsection (2)(e) if satisfied
in a particular case that, because of the applicant’s age or standard of education,
or for any other reason personal to the applicant, the applicant would suffer undue
hardship if compliance with the requirement of that provision were insisted upon.
(9) For the purposes of subsection (2)(f),—

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271
(a) The intention referred to in subsection (2)(f)(i) must be a continuing intention throughout the period from the date of application for citizenship until the date that the applicant becomes a citizen under section 12;
(b) the Minister may treat an applicant as intending to continue to reside in New Zealand if the applicant intends to accompany his or her New Zealand citizen spouse or civil union or de facto partner on Crown service for the New Zealand Government or public service for the Government of the Cook Islands, Niue, or Tokelau.

9 Grant of citizenship in special cases

(1) Without limiting anything in section 8, the Minister may, upon
application in the prescribed manner, authorise the grant of New Zealand citizenship to any person, including a person who may be a New Zealand citizen by descent,—
(a) Who has not yet attained the age of 16 years; or
(b) Whose father or mother was, at the time of that person’s birth, a
New Zealand citizen by descent; or
(c) If the Minister is satisfied that granting a certificate of New Zealand
citizenship to the applicant would be in the public interest because
of exceptional circumstances of a humanitarian or other nature
relating to the applicant; or
(d) If the person would otherwise be stateless.
(2) In considering whether to authorise the grant of New Zealand
citizenship to any person under subsection (1), the Minister—
(a) May have regard to such of the requirements of section 8(2) (as
subject to section 8(3) to (9)) as the Minister thinks fit; and
(b) Must have regard to the requirements of section 9A (1) (but subject
to the Minister ’s discretion under section 9A(2) and (3)).

9A Disqualifying convictions

(1) Except as provided in subsection (2), the Minister must not authorise a
grant of citizenship under section 8 or section 9 to a person who has been convicted
of an offence if—
(a) The person was sentenced on conviction to—
(i) a term of imprisonment of 5 years or more; or
(ii) an indefinite term of imprisonment capable of running for 5
years or more; or
(b) Within the preceding 7 years the person was subject to a sentence
of imprisonment of less than 5 years or was subject to release under
subpart 2 of Part 1 of the Parole Act 2002; or
(c) Within the preceding 3 years the person was convicted of an offence
but did not receive a sentence of imprisonment.
(2) The Minister may however authorise a grant of citizenship to a person
to whom subsection (1) applies and who otherwise meets the requirements of
section 8 or section 9 if satisfied that there are exceptional circumstances relating
to the conviction such that a grant of citizenship should not be precluded.
(3) Nothing in this section limits the Minister ’s discretion to refuse a grant
of citizenship if the Minister is not satisfied that the applicant is of good character.
272 Niue Laws 2006 Vol 1

9B Minister may rescind approval at any time up until applicant becomes citizen

Notwithstanding that the Minister may have authorised a grant of citizenship under section 8 or section 9, the Minister may rescind that authorisation at any time before the date that the person becomes a citizen under section 12, if no longer satisfied that the person meets the requirements for a grant of citizenship.

10 Grant of citizenship as of right in certain cases

(1) Notwithstanding anything in section 8 or section 9 of this Act, the
Minister shall, upon application made to him in the prescribed manner, authorise
the grant of New Zealand citizenship to any person who was born before the 1st
day of January 1978 if, at the time of that person’s birth, his mother was a New
Zealand citizen otherwise than by descent.
(2) This section does not apply to a person who has previously been
deprived of New Zealand citizenship by order under section 16 or section 17, or
renounced his or her citizenship under section 15.

11 Minister may require oath or affirmation of allegiance to be taken

(1) The Minister may, in such case or class of cases as the Minister thinks
fit, make the grant of New Zealand citizenship conditional upon the applicant
taking an oath of allegiance in the form specified in Schedule 1, or making an
affirmation to similar effect.
(2) Unless the Minister agrees otherwise, the oath or affirmation must be
taken or made at a public citizenship ceremony.

12 Certificate of New Zealand citizenship

(1) Where the Minister authorises the grant of New Zealand citizenship to
any person, the Secretary shall issue to that person a certificate of New Zealand
citizenship in the prescribed form.
(2) A person to whom a certificate of New Zealand citizenship is issued
under subsection (1) of this section shall be a New Zealand citizen as from the
specified date.
(3) Where a certificate of New Zealand citizenship is issued to a person
who is a New Zealand citizen by descent, he shall cease to have that status as
from the specified date.
(4) For the purposes of subsections (2) and (3) of this section the specified
date shall be –
(a) In the case of a person required under section 11 of this Act to take
an oath of allegiance, the date on which he takes that oath or makes
an affirmation to the same effect;
(b) In every other case, the date specified in the certificate.

Transitional Provisions Relating to Citizenship

13 Existing rights of citizenship protected

(1) Notwithstanding the repeal of the British Nationality and New Zealand
Citizenship Act 1948 by section 30 of this Act, every person who, by virtue of that
Act, was a New Zealand citizen immediately before the commencement of this
Act, shall, subject to the succeeding provisions of this Part of this Act, continue to
be a New Zealand citizen.
(2) Notwithstanding subsection (1) of this section, a person who, by virtue
of the British Nationality and New Zealand Citizenship Act 1948, was, immediately
before the commencement of this Act, a New Zealand citizen by descent only,
shall, for the purposes of this Act, be deemed to be a New Zealand citizen by
descent only.

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273
(3) Without limiting subsection (1) or subsection (2) of this section, but subject to subsection (4) of this section, every person born outside New Zealand on or after the 1st day of January 1949 but before the 1st day of January 1978 shall be a New Zealand citizen by descent if –
(a) In any case, his father was a New Zealand citizen at the time of that person’s birth; or
(b) In the case of a person born on or after the 1st day of January 1970 (being the date of the commencement of the Status of Children Act
1969), his mother was a New Zealand citizen at the time of his birth.
(4) A person shall not be a New Zealand citizen by virtue of subsection (3)
of this section if that person’s relevant parent was a New Zealand citizen by descent
only, unless—
(a) That person or his relevant parent was born in a protectorate,
protected state, mandated territory, or trust territory, or any place
in a foreign country where by treaty, capitulation, grant, usage,
sufferance, or other lawful means Her Majesty then had jurisdiction
over British subjects; or
(b) In the case of a person born in a place other than a place mentioned
in paragraph (a) of this subsection, his birth [or citizenship by
descent] is registered, in accordance with regulations made under
this Act, before that person has attained the age of 16 years; or
(c) The relevant parent of that person was, at the time of the person’s
birth, in Crown service under the New Zealand Government.

14 Applications made under British Nationality and New Zealand

Citizenship Act 1948 may be proceeded with under this Act

If a person has, before the commencement of this Act,—
(a) Applied for registration as a New Zealand citizen; or
(b) Given notice of his intention to apply for a certificate of
naturalisation; or
(c) Applied for a certificate of naturalisation –
in accordance with the provisions of the British Nationality and New Zealand
Citizenship Act 1948, the application (if it has not been finally determined under
that Act) or notice may be dealt with in accordance with this Act as if it were an
application for the grant of New Zealand citizenship under this Act.

Loss of Citizenship

15 Renunciation of citizenship

(1) A New Zealand citizen who has attained the age of 18 years and is of
full capacity and who is recognised by the law of another country as a citizen of
that country may, at any time, make a declaration of renunciation of his New
Zealand citizenship in the prescribed manner.
(2) Subject to subsection (3) of this section, the Minister shall cause every
declaration made under subsection (1) of this section to be registered in the
prescribed manner, and, as from the date of that registration, the declarant shall
cease to be a New Zealand citizen.
(3) The Minister may decline to register a declaration of renunciation if –
(a) The declarant is resident in New Zealand; or
(b) A state of war exists between New Zealand and any other country.
(4) A person who has ceased to be a New Zealand citizen under this section
may regain New Zealand citizenship only by way of a grant of citizenship under
section 8 or section 8A or section 9.
274 Niue Laws 2006 Vol 1

16 Deprivation of New Zealand citizenship [in special cases]

Subject to section 19 of this Act, the Minister may, by order, deprive a person
of his New Zealand citizenship if he is satisfied that the person has, while a New
Zealand citizen and while of or over the age of 18 years and of full capacity,—
(a) Acquired the nationality or citizenship of another country by any
voluntary and formal act, and acted in a manner that is contrary to
the interests of New Zealand; or
(b) Voluntarily exercised any of the privileges or performed any of the
duties of another nationality or citizenship possessed by him in a
manner that is contrary to the interests of New Zealand.

17 Deprivation of New Zealand citizenship in case of fraud, etc

(1) This section applies to a New Zealand citizen who has acquired that
citizenship –
(a) By registration under the British Nationality and New Zealand
Citizenship Act 1948; or
(b) By naturalisation under that Act; or
(c) By grant under this Act or the Citizenship (Western Samoa) Act
1982.
(2) Subject to section 19 of this Act, the Minister may, by order, deprive a
New Zealand citizen to whom this section applies of his New Zealand citizenship
if he is satisfied that the registration, naturalisation, grant, or any grant requirement
was procured by fraud, false representation, or wilful concealment of relevant
information, or by mistake.
(3) The Minister may not deprive a person of New Zealand citizenship
under subsection (2) if –
(a) The citizenship was acquired by mistake; and
(b) To deprive the person of that citizenship would leave the person
stateless.

18 Effect of order

A person in respect of whom an order is made under section 16 or section
17 of this Act shall cease to be a New Zealand citizen as from the date of the order.

19 Court review of grounds for depriving person of citizenship

(1) Before making an order under section 16 or section 17 of this Act
depriving any person of New Zealand citizenship, the Minister shall serve on that
person a notice –
(a) Stating that he intends to make such an order; and
(b) Citing the section of this Act under which he considers that he has
grounds to make such an order; and
(c) Specifying the grounds on which he intends to make such an order;
and
(d) Advising the person of his right to have the matter reviewed by the
Court in accordance with the succeeding provisions of this section.
(2) Every person upon whom a notice is served under subsection (1) of
this section may, within 28 days after it is served on him, apply to the High Court
for a declaration that there are insufficient grounds to justify the making of an
order under section 16 or, as the case may require, section 17 of this Act depriving
the applicant of New Zealand citizenship; and the Court may make or refuse to
make such a declaration accordingly.
(3) Notwithstanding any of the foregoing provisions of this section, in any

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275
case where the whereabouts of the person concerned are unknown or for any other reason service on him of a notice under this section is not practicable, the Minister may apply to the Court for the dispensing of the requirement to serve notice; and, in such a case, if the Court dispenses with that requirement, it shall proceed to consider the merits of the case, in accordance with the provisions of this section, as if the person concerned had applied to the Court for a declaration of the kind referred to in subsection (2) of this section.
(4) Where the Court makes such a declaration, the Minister shall not thereafter, without fresh cause, make an order under section 16 or section 17 of this Act depriving the applicant of New Zealand citizenship.
(5) [Repealed]
(6) Subject to the succeeding provisions of this section, the procedure in
respect of an application under this section shall be in accordance with the rules
of Court.
(7) When hearing any application under this section the Court may receive
as evidence any statement, document, information, or matter that, in the opinion
of the Court, may assist it to deal justly with the application before it, whether or
not the same would be otherwise admissible in proceedings before the Court.
(8) Where the Court is satisfied that it is desirable to do so by reason of the
confidential nature of any evidence submitted or to be submitted to it in respect of
any application under this section, the Court may, of its own motion or on the
application of any party to the proceedings, –
(a) Take or hear the evidence in private;
(b) Make an order prohibiting the publication of any report or account
of the whole or any part of any such evidence (whether heard or
taken in public or private).
(9) The determination of the High Court on any such application shall be
final.

20 Saving of obligations incurred before loss of citizenship, etc

A person who ceases to be a New Zealand citizen shall not thereby be
discharged from any obligation, duty, or liability in respect of any act or thing
done or omitted to be done before he ceased to be a New Zealand citizen.

Miscellaneous Provisions Relating to Citizenship

21 Evidentiary certificates

(1) Any person who wishes to obtain confirmation of whether he or she is
or is not a New Zealand citizen may apply to the Minister in the prescribed manner
for a certificate confirming the person’s status in that respect.
(2) The Minister shall, if satisfied that any such person is or is not a New
Zealand citizen, issue a certificate to that effect.
(3) A certificate issued under this section shall, unless it is proved that the
issue of the certificate was procured by fraud, false representation, or the wilful
concealment of relevant information, or was the result of administrative error, be
evidence that the person named in the certificate was or was not, on the date on
which the certificate was issued, a New Zealand citizen, but without prejudice to
any evidence that he or she was or was not a New Zealand citizen at an earlier
date.
276 Niue Laws 2006 Vol 1

22 Minister may delegate functions and powers to overseas representatives (1) The Minister may from time to time, by writing under his hand, authorise any New Zealand overseas representative in any country to perform and exercise in that country any of the Minister ’s functions and powers under

this Part of this Act.
(2) In the performance or exercise of any such functions or powers, the
New Zealand overseas representative shall act in accordance with all directions
in that behalf given to him by the Minister, whether generally or in a particular
case.
(3) Any authority and any directions under this section may be given to a specified person, or to the holder for the time being of a specified office.
PART 2
MISCELLANEOUS PROVISIONS

23 Capacity as to property

(1) Subject to subsection (2) of this section and to any other enactment,
every person who is not a New Zealand citizen shall be entitled to take, acquire,
hold, and dispose of real or personal property in the same manner in all respects
as if he were a New Zealand citizen.
(2) Subsection (1) of this section shall not—
(a) Qualify an alien for any office, or for any parliamentary or other
franchise, for which he is not otherwise qualified;
(b) Qualify an alien to be the owner of a ship registered in New Zealand,
or of a share in any such ship;
(c) Entitle an alien to acquire property without any consent required
under the Overseas Investment Act 2005;
(d) Entitle a person to any right or privilege as a New Zealand citizen,
except the rights and privileges conferred on him in respect of
property by that subsection.

24 General provisions as to certificates and other documents

(1) For the purposes of this section the term document means a certificate
or other document issued under this Act; and includes a certificate or other
document issued under any enactment referred to in section 25(1) of this Act; and
also includes a duplicate of any such certificate or other document.
(2) No person shall alter or deface a document otherwise than pursuant to
this Act.
(3) Every person to whom a document is or has been issued shall, on the
expiry or revocation of the document, or of the exemption or condition or status
evidenced by it, deliver the document to the Secretary.
(4) If a document that has been damaged to the extent that it is no longer
legible is returned to the Secretary, or if the Secretary is satisfied that a document
has been destroyed, lost, or stolen, the Secretary shall, upon application by the
person to whom the document was issued and upon payment of the prescribed
fee, issue a duplicate of the document.

25 Evidence

(1) Every document purporting to be a notice, certificate, or declaration,
or an entry in a register, or a subscription of an oath of allegiance given, granted,
or made under this Act, the British Nationality and Status of Aliens (in New
Zealand) Act 1923 or any enactment repealed by that Act, the British Nationality
and Status of Aliens (in New Zealand) Act 1928, or the Registration of Aliens Act
1917, or any enactment repealed by section 30 of this Act shall be received in

Citizenship Act 1977 (NZ)

277
evidence, and shall, unless the contrary is proved, be deemed to have been given, granted, or made by or on whose behalf it purports to have been given, granted, or made.
(2) Evidence of any document to which subsection (1) of this section applies may be given by production of a document purporting to be certified as a true copy thereof by such person and in such manner as may be prescribed.
(3) Any entry in a register made under this Act or any other Act referred to in subsection (1) of this section shall be received as evidence of the matters stated in the entry.
(4) For the purposes of this Act, a certificate given by or on behalf of the Minister that a person was at any time in Crown service under the New Zealand Government shall be conclusive evidence of that fact.

26 Discovery of documents held under this Act

(1) Notwithstanding section 17 or section 27 of the Crown Proceedings
Act 1950, but subject to subsection (2) of this section, no Court shall have power in any civil proceedings to require the Crown to make discovery of a document or to produce a document for inspection if the document is held by or on behalf of the Crown for any of the purposes of this Act.
(2) Subsection (1) of this section does not apply to proceedings relating to
any matter arising under this Act to which the Crown is a party.

26A Disclosure of citizenship information to certain specified agencies for certain purposes

(1) The purpose of this section is to authorise the disclosure of citizenship information to certain specified agencies for certain purposes.
(2) The Secretary and the chief executive of a specified agency listed in the first column of Schedule 4 may enter into an agreement for the disclosure by the Secretary to the chief executive of citizenship information only for the purpose described in the second column in relation to the specified agency.
(3) For the purposes of subsection (2), an agreement made in relation to
citizenship information to be used to verify whether a person is eligible to hold a
New Zealand passport, must be entered into by the Secretary in his or her capacity
as the holder of citizenship information with himself or herself in the capacity as
the holder of information under the Passports Act 1992.
(4) An agreement entered into under subsection (2) may be varied by the
Secretary and the chief executive.
(5) The Secretary may disclose citizenship information to the chief executive
only in accordance with Schedule 4 and an agreement entered into under subsection
(2).
(5A) Despite anything in this section, the Secretary may disclose information about a person’s citizenship status or the citizenship status of a person’s parent or parents to the Registrar-General appointed under section 79 (1) of the Births, Deaths, and Marriages Registration Act 1995 for the purpose of recording that person’s citizenship status on his or her birth record.
(6) In this section, –
“citizenship information” means information held by the Secretary that
relates to the acquisition or loss of citizenship by, or the citizenship
status of, any person; and includes information as to any change of
identity or gender
“specified agency” has the meaning given to it by section 97 of the Privacy
Act 1993.
278 Niue Laws 2006 Vol 1

26B Access to information for citizenship purposes

(1) The Secretary and the chief executive of the Department of Labour (the
chief executive) may enter into an agreement for access by the Secretary, or officers
of the Department of Internal Affairs designated by the Secretary for the purpose,
to information held by the chief executive by virtue of being responsible for the
administration of the Immigration Act 1987 that is needed for or relevant to –
(a) Citizenship investigations and the accurate assessment of
applications for a grant of citizenship; or
(b) Determining whether a person is a New Zealand citizen by birth.
(2) An agreement entered into under subsection (1) may be varied by the
Secretary and the chief executive.
(3) Before entering into an agreement under subsection (1), or varying an
agreement under subsection (2), the Secretary and the chief executive must consult
with the Privacy Commissioner on the terms of the agreement or variation.
(4) The Privacy Commissioner may require the Secretary and the chief
executive to review an agreement under this section, and report on the result of
the review to the Privacy Commissioner, at intervals not shorter than 12 months.
(5) For citizenship purposes, the Secretary or designated officers of the
Department of Internal Affairs may access information held by the chief executive
only in accordance with an agreement entered into under this section.

27 Offences and penalties

(1) Every person commits an offence, and is liable on conviction on
indictment to imprisonment for a term not exceeding 5 years or a fine not exceeding
$15,000, or both, who –
(a) For the purpose of procuring anything to be done or not to be done
under this Act, –
(i) makes any statement that he or she knows to be false in a
material particular; or
(ii) recklessly makes any statement that is false in a material
particular; or
(b) Knowingly or recklessly submits false or forged documents to
support a citizenship application; or
(c) In contravention of section 24, knowingly—
(i) alters or defaces a document; or
(ii) fails to deliver a document; or
(d) Knowingly or recklessly lends or parts with a document (as defined
in section 24(1)) for unlawful purposes; or
(e) Knowingly resists, obstructs, or deceives any person who is
exercising or attempting to exercise any function or power imposed
or conferred under this Act.
(2) Every person commits an offence, and is liable on conviction on
indictment to imprisonment for a term not exceeding 10 years or a fine not
exceeding $50,000, or both, who, knowingly and without reasonable excuse,—
(a) Records, deletes, or alters any entry in a citizenship register or
database; or
(b) Takes a citizenship document (including any blank certificate) from
where it is officially kept; or
(c) Issues a citizenship document to a person who has no lawful
entitlement to the document.

Citizenship Act 1977 (NZ)

279

28 Regulations

(1) The Governor-General may from time to time, by Order in Council,
make regulations for all or any of the following purposes –
(a) Prescribing anything that under this Act is to be prescribed;
(b) Providing for the registration of anything required or authorised
under this Act to be registered;
(c) Providing for the administration and taking of oaths of allegiance
under this Act, prescribing the time within which oaths of allegiance
shall be taken, and providing for the registration of oaths of
allegiance;
(d) Providing for the giving of any notice required or authorised to be
given to any person under this Act;
(e) Providing for the cancellation and amendment of certificates of
naturalisation and certificates of New Zealand citizenship, and for
the cancellation of the registration of such certificates, relating to
persons deprived of New Zealand citizenship under this Act, and
providing for the surrender of such certificates by such persons;
(f) Providing for the registration, by officers in the service of the New
Zealand Government –
(i) of the births and deaths of persons of any class or description
born or dying in any Commonwealth country, or in a protected
state, or in any foreign country;
(ii) of citizenship by descent of persons born in any Commonwealth
country, or in a protected state, or in any foreign country.
(g) Enabling the births and deaths, and the citizenship by descent, of
New Zealand citizens and British protected persons to be registered
in any country in which the New Zealand Government has for the
time being no overseas representatives –
(i) By persons serving in the diplomatic, consular, or other foreign
service of any country that, by arrangement with the New
Zealand Government, has undertaken to represent that
Government’s interests in that country; or
(ii) By any person authorised in that behalf by the Governor-
General.
(h) Providing for the keeping of records, registers, and indexes for the
purposes of this Act, and enabling persons to inspect and make
copies of any entry in any such record, register, or index –
(i) Prescribing the fees payable, or the rate at which fees are to be
calculated, and providing for the recovery and application of such
fees, in respect of—
(i) any application made under this Act;
(ii) the registration of any document under this Act;
(iii) the making of any declaration under this Act;
(iv) the taking of an oath of allegiance under this Act;
(v) the grant of any certificate under this Act;
(vi) the issue of any copy (whether certified or not) of any notice,
certificate, order, declaration, or entry given, granted, or made
under this Act;
(vii) the inspection of any record, register, or index kept under this
Act;
280 Niue Laws 2006 Vol 1
(viia) the giving of written advice or the provision of written information, by or on behalf of the Secretary and whether generally or in relation to a particular case, in respect of all or any of the following:
(A) The eligibility of any person for citizenship by descent; (B) The acquisition by any person of citizenship;
(C) The status of any person under this Act;
(viib) The issue of a certificate under section 7 (3) of this Act;
(viii) Any other matter arising under this Act;
(j) [Repealed]
(k) Prescribing offences in respect of the contravention of or non­
compliance with any regulations made under this Act, and
prescribing the amount of any fine that may be imposed in respect
of any such offence, being an amount not exceeding $200 and, where
the offence is a continuing one, a further amount not exceeding $20
for every day during which the offence has continued;
(l) Providing for such other matters as are contemplated by or necessary
for giving full effect to the provisions of this Act and for the due
administration thereof.
(2) Every fee prescribed by or under regulations made under this section
shall be reasonable, having regard to the costs and expenses incurred and borne
by or on behalf of the Secretary in respect of the matter for which the fee is payable.

29 Application of Act to Cook Islands, Niue, and Tokelau

(1) Whereas in accordance with Article 46 of the Constitution of the Cook
Islands (as set out in Schedule 2 to the Cook Islands Constitution Amendment Act
1965) the Government of the Cook Islands has requested and consented to the
enactment of a provision extending all of the provisions of this Act to the Cook
Islands as part of the law of the Cook Islands: Be it therefore enacted as follows:
The provisions of this Act shall extend to the Cook Islands as part of the
law of the Cook Islands.
(2) Whereas in accordance with Article 36 of the Constitution of Niue (as
set out in Schedule 2 to the Niue Constitution Act 1974) the Niue Assembly has by
resolution requested and consented to the enactment of a provision extending all
of the provisions of this Act to Niue as part of the law of Niue: Be it therefore
enacted as follows:
The Niue Act 1966 is hereby amended by inserting, after section 684, the
following section:
“684A Citizenship Act in force in Niue
“The Citizenship Act 1977 shall extend to and be in force in Niue.”
(3) The provisions of this Act shall be in force in Tokelau.

30 Repeals, consequential amendments, and revocation

(1) The enactments specified in Schedule 2 to this Act are hereby
consequentially repealed.
(2) The enactments specified in Schedule 3 to this Act are hereby
consequentially amended in the manner indicated in that Schedule.
(3) The Citizenship Deprivation Rules 1949 are hereby consequentially
revoked.

Citizenship Act 1977 (NZ)

SCHEDULES

SCHEDULE 1

Oath of allegiance

281

Section 11

I, [Full name], swear that I will be faithful and bear true allegiance to Her [or His] Majesty [Specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second, Queen of New Zealand,] Her [or His] heirs and successors, according to law, and that I will faithfully observe the laws of New Zealand and fulfil my duties as a New Zealand citizen.

SCHEDULE 2

Enactments consequentially repealed

1948, No 15 – The British Nationality and New Zealand Citizenship Act 1948.

1948, No 28 – The Aliens Act 1948: Sections 3 to 13.

Section 30(1)

1959, No 38 – The British Nationality and New Zealand Citizenship Amendment Act 1959.

1965, No 71 – The Aliens Amendment Act 1965: So much of the Schedule as relates to sections

3 to 13 of the Aliens Act 1948.

1965, No 72 – The British Nationality and New Zealand Citizenship Amendment Act 1965.

1967, No 56 – The Aliens Amendment Act 1967.

1969, No 70 – The British Nationality and New Zealand Citizenship Amendment Act 1969.

1970, No 123 – The Western Samoa Amendment Act 1970.

1973, No 51 – The British Nationality and New Zealand Citizenship Amendment Act 1973.

SCHEDULE 3

Enactments consequentially amended

Enactment Amendment

Section 30(2)

1955, No 93 – By repealing section 16(2)(e), and substituting the following paragraph:

The Adoption Act “(e) Subject to the Citizenship Act 1977, the adoption order shall not affect the

282 Niue Laws 2006 Vol 1

SCHEDULE 4

Disclosure of information to specified agencies

Specified agency Purpose

Section 26A

Department of Internal Affairs To verify whether a person is eligible to hold a New Zealand passport

Registrar-General For the Registrar-General to he satisfied whether or not a

appointed under section 79 person is a New Zealand citizen

(1) of the Births, Deaths,

and Marriages Registration

Act 1995

Department of Inland Revenue To verify the identity of a person to establish—

(a) The tax file number of the person;

(b) The details of an applicant for child support

Department of Labour To verify—

(a) A person’s citizenship status;

(b) A person’s entitlement to reside in New Zealand

Department of Work To

and Income (a) verify a person’s eligibility or continuing eligibility for

benefits, war pensions, loans, or allowances

(b) verify a person’s eligibility or continuing eligibility for a

community services card

Ministry of Education To verify and update student information on the National Student

Index

283

CIVIL AVIATION ACT 1999

1999/250 – 15 August 1999

53-54 [Spent]

284 Niue Laws 2006 Vol 1

To regulate civil aviation and for related purposes

PART 1
PRELIMINARY

1 Short title

This is the Civil Aviation Act 1999.

2 Interpretation

(1) In this Act –
“accident” means an occurrence that –
(a) Is associated with the operation of an aircraft; and
(b) Takes place between the time a person boards the aircraft with the
intention of flight and such time as each such person has
disembarked form the aircraft and its engine and any propeller or
rotor have come to rest,
being an occurrence –
(c) In which a person is fatally or seriously injured as a result of –
(i) being in the aircraft; or
(ii) direct contact with a part of the aircraft, including a part that
has become detached from the aircraft; or
(iii) direct exposure to jet blast,
except when the injury is self-inflicted or inflicted by another person,
or when the injury is to a stowaway hiding outside the areas normally
available to passengers and crew; or
(d) In which the aircraft sustains damage or structural failure that –
(i) adversely affects the structural strength, performance, or flight
characteristics of the aircraft; and
(ii) would normally require major repair or replacement of the
affected component,
except engine failure or damage that is limited to the engine, its cowling,
or an accessory, or damage that is limited to a propeller, a wing tip, a
rotor, an antenna, a tyre, a brake, a fairing, a small dent, or a puncture
hole in the aircraft’s skin; or
(e) In which the aircraft is missing or is completely inaccessible’
“Acting Director” means a person appointed under section 7;
“aeronautical product” means a thing that –
(a) comprises or is intended to comprise a part of an aircraft; or
(b) is or is intended to be installed in or fitted or supplied to an aircraft
including fuel and similar consumable items necessary for the
operation of an aircraft;
“aircraft” means a machine that can derive support in the atmosphere from
the reactions of the air otherwise than by the reactions of the air against
the surface of the earth;
“airport” means the Hanan International Airport and includes the buildings,
installations, and equipment on or adjacent to the airport used in
connection with the airport or its administration;
“aviation document” means a document issued under this Act to or in
respect of a person, aircraft, aerodrome, aeronautical procedure,
aeronautical product, or aviation related service;

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285
“aviation related service” means any – (a) equipment; or
(b) facility; or
(c) service,
operated in support of or in conjunction with the civil aviation system
and includes the provision of aeronautical products;
“Convention” means the Convention on International Civil Aviation signed
on behalf of the Government of Niue in Chicago on 7 December 1944
and includes –
(a) Any amendment to the Convention which has entered into force
under article 94 (a) of the Convention and has been ratified by or
on behalf of Niue; and
(b) Any Annex or amendment to the Convention accepted under article
90 of the Convention; and
(c) The international standards and recommended practices from time
to time accepted and amended by the ICAO under article 37 of the
Convention.
“Director” means the person appointed to be the Director of Civil Aviation
under section 5 but if –
(a) The Director is unable to perform the functions and duties of his
office; or
(b) The office of Director is vacant;
means the Acting Director;
“ICAO” means –
(a) The International Civil Aviation Organisation established under the
Convention; but
(b) If that Organisation ceases to exist, the successor to that
Organisation;
“incident” means an occurrence other than an aircraft accident that –
(a) Is associated with the operation of an aircraft; and
(b) Affects or could affect the safety of that operation;
“Minister” means the Minister to whom responsibility for civil aviation
has been assigned;
“navigation installation” means a building, facility, work, apparatus,
equipment or place (whether or not part of the airport) intended –
(a) To assist in the control of air traffic; or
(b) As an aid to air navigation,
and includes any land adjacent to and used in connection with any
such building, facility, work, apparatus, equipment, or place;
“Niue aircraft” means an aircraft registered in Niue under this Act;
“operate”, in relation to an aircraft, means –
(a) to fly or use the aircraft, or
(b) to cause or permit the aircraft to fly, be used, or be in a place, whether
or not the person is present with the aircraft, and “operator” has a
corresponding meaning;
“owner”, in relation to an aircraft, includes a person lawfully entitled to
the possession of the aircraft for a period of 28 days or longer;
“pilot-in-command”, in relation to an aircraft, means the pilot responsible
for the operation and safety of the aircraft;
“this Act” includes regulations made under this Act.
(2) In this Act a reference to the Civil Aviation Act 1990 of New Zealand
includes any Act of New Zealand that is to be read together with and deemed
part of the Civil Aviation Act 1990 of New Zealand.
286 Niue Laws 2006 Vol 1
(3) If a penalty is set out at the foot of a section or subsection of this Act it means that a contravention of the section or subsection whether by act or omission is an offence punishable by a fine not exceeding the amount stated or by imprisonment not exceeding the period stated or both.

3 Act binds the Crown

This Act binds the Crown.
PART 2
APPOINTMENTS, DUTIES AND FUNCTIONS

4 Duty of the Minister

(1) It is the duty of the Minister –
(a) To promote safety in civil aviation; and
(b) To ensure that Niue’s obligations under international civil aviation
agreements are implemented.
(2) In particular, the Minister must –
(a) Administer Niue’s participation in the Convention and any other
international aviation convention, agreement, or understanding to
which Niue is a party; and
(b) Ensure that aviation security services are provided at the airport.

5 Appointment of Director

(1) There is established the office of the Director.
(2) The Niue Public Service Commission must appoint a suitably qualified
person to be the Director of Civil Aviation.
(3) The Cabinet may permit the Director to carry on his duties wile
permanently resident outside Niue.

6 Duty of the Director

(1) It is the duty of the Director to administer this Act.
(2) In particular, the Director must –
(a) Monitor adherence to safety and security standards within the civil
aviation system; and
(b) Ensure regular reviews of the civil aviation system to promote the
improvement and development of its safety and security; and
(c) Investigate and review civil aviation accidents and incidents; and
(d) Prepare and maintain an aviation security programme for Niue and
ensure its implementation; and
(e) Provide the Minister with any information and advice the Minister
requires.
(3) The Minister does not have the power to direct the Director on the
performance of his duties.

7 Acting Director

(1) There is established the office of Acting Director of Civil Aviation.
(2) The Niue Public Service Commission may appoint a suitably qualified
public officer to be the Acting Director to carry out the duties and perform the
functions of the Director if –
(a) The Director is unable to do so; or
(b) The office of Director is vacant.

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287

8 Safety and security inspections and monitoring

(1) The Director may in writing require a person who –
(a) Holds an aviation document; or
(b) Operates, maintains, or services, or does any other act in respect of
an aircraft, aeronautical product, aviation related service, air traffic
service, or aeronautical procedure,
to undergo or carry out inspections and monitoring the Director considers
necessary in the interests of civil aviation safety and security.
(2) The Director may in respect of a person described in subsection (1)(a)
or (b) carry out inspections and monitoring the Director considers necessary in
the interests of civil aviation safety and security.
(3) In order to inspect or monitor a person in accordance with subsection
(2) the Director may serve on the person a written notice requiring the person to
produce to the Director such information as the Director considers relevant to the
inspection or monitoring within any reasonable time specified in the notice.
(4) A person must comply with a requirement made under subsection (1)
or (3).
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;
or
(b) In the case of a body corporate, a fine not exceeding 50 penalty
units.

9 Powers of Director

(1) If the Director is satisfied that –
(a) The operation of an aircraft or of a class or aircraft; or
(b) The use of an aeronautical product or a class of aeronautical
products;
may endanger a person or property, the Director may –
(i) detain the aircraft or aircraft of that class or
(ii) seize the aeronautical product or aeronautical products of that
class; or
(iii) prohibit or impose conditions on –
(A) The operation of the aircraft or aircraft of that class; or
(B) The use of an aeronautical product or aeronautical products
of that class.
(2) A detention or seizure under subsection (1) –
(a) Must not be maintained for longer than is necessary in the interest
of safety; but
(b) If the aircraft, aeronautical product, or a part of an aircraft or
aeronautical product is required as evidence in a prosecution – may
be maintained for as long as is necessary for that purpose.
(3) The Director must as soon as practicable provide a written reason for a
detention or seizure under this section.

10 Airworthiness directions

(1) The Director may issue an airworthiness directive in respect of –
(a) An aircraft; or
(b) Aeronautical product,
of a specified design if the Director is satisfied –
(i) that an unsafe condition exists in an aircraft or aeronautical
product of that design; and
(ii) that the condition is likely to exist in an or develop in any other
aircraft or aeronautical product of the same design.
288 Niue Laws 2006 Vol 1
(2) An airworthiness directive comes into force on the date specified in it. (3) A person must comply with an airworthiness direction.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units; (b) In the case of a body corporate, a fine not exceeding 50 penalty
units.

11 Exemption power of Director

(1) The Director may exempt a person, aircraft, aeronautical product, or
aviation related service from a requirement contained in regulations made under
this Act if –
(a) The Director considers it appropriate to do so; and
(b) It is not specifically provided by the regulations that exemptions
are not to be granted.
(2) Before granting an exemption the Director must satisfy himself –
(a) That –
(i) the requirement has been substantially complied with and that
further compliance is unnecessary; or
(ii) the action taken or provision made in respect of the matter to
which the requirement relates is as effective or more effective
than actual compliance with the requirement; or
(iii) the requirement is clearly unreasonable or inappropriate in the
particular case; or
(iv) an event has occurred that makes the requirement unnecessary
or inappropriate in the particular case; and
(b) That the risk to safety will not be significantly increased if the
exemption is granted.
(3) The Director may grant an exemption subject to compliance with any
condition the Director considers appropriate.

12 Director may suspend an aviation document

(1) The Director may –
(a) Suspend an aviation document; or
(b) Impose a condition in respect of an aviation document, if the
Director –
(c) Considers the action is necessary in the interests of safety; and
(d) Also –
(i) considers the action is necessary to ensure compliance with
this Act; or
(ii) is satisfied that the holder has failed to comply with a condition
of an aviation document or with a requirement of section 29;
or
(iii) is satisfied the holder has contravened or failed to comply with
section 47;
(iv) considers that the privileges or duties for which the document
has been granted are being carried out by the holder in a careless
or incompetent manner.
(2) Without limiting subsection (1) the Director may –
(a) Suspend an aviation document relating to the use of an aircraft,
aeronautical product, or the provision of a service; or
(b) Impose a condition in respect of an aviation document;
if the Director considers that there is a reasonable doubt as to –
(c) The airworthiness of the aircraft; or

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(d) The quality or safety of the aeronautical product or service, to which the document relates.
(3) The –
(a) Suspension of an aviation document; or
(b) Imposition of a condition in respect of an aviation document,
remains in force until the Director has determined, after due investigation, the
action to be taken in respect of the causes requiring the suspension or imposition
of the condition.
(4) Despite subsection (3) the –
(a) Duration of a suspension; or
(b) The period of imposition of a condition,
cannot exceed 14 days unless the Director directs that a further specified period is
necessary to complete the investigation.
(5) After an investigation the Director may –
(a) Suspend the aviation document for a further period; or
(b) Continue the imposition of the condition for a further period; or
(c) Revoke the aviation document.
(6) A person whose aviation document has been revoked, suspended, or
made subject to a condition must forthwith produce the document to the Director.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;
(b) In the case of a body corporate, a fine not exceeding 50 penalty
units.
(7) The whole or part of an aviation document may be suspended.
(8) A person in respect of whom a decision is taken under this section may
appeal against that decision to the Minister.

13 Director may revoke or amend an aviation document

(1) The Director may if requested to do so by the holder of an aviation
document –
(a) Amend the document in the manner requested; or
(b) Revoke it.
(2) Subject to subsection (3), the Director may –
(a) Amend an aviation document to reflect the fact that the holder of
the document –
(i) is no longer carrying out a privilege or duty for which the
document was granted; or
(ii) is no longer able to carry out that privilege or duty; or
(b) Revoke an aviation document if the holder of the document –
(i) is no longer able to carry out each of the privileges or duties
for which the document was granted; or
(ii) is no longer able to carry out each of those privileges or duties;
or
(c) Amend an aviation document to correct a clerical error or obvious
mistake on the face of the document.
(3) The Director must notify the holder of the aviation document before
taking action under subsection (2) and give the holder a reasonable opportunity
to comment or make submissions on the proposed action.
(4) The power to amend an aviation document includes –
(a) The power to revoke the document and issue a new document in
its place; and
(b) The power to impose reasonable conditions.
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(5) If the Director notifies the holder of an aviation document that a specified action is proposed under this section the holder must forthwith produce the document to the Director.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units; (b) In the case of a body corporate, a fine not exceeding 50 penalty
units.

14 Duties of pilot-in-command

The pilot-in-command of an aircraft –
(a) Is responsible for –
(i) the safe operation of the aircraft in flight; and
(ii) the safety and well-being of its passengers and crew; and
(iii) the safety of its cargo; and
(b) Has the final authority –
(i) to control the aircraft while in his command; and
(ii) for the maintenance of discipline by each person on board the
aircraft; and
(c) Subject to section 15, is responsible for compliance with each
requirement of this Act relating to the aircraft.

15 Duties during emergencies

(1) A pilot-in-command of an aircraft may in an emergency arising in flight
breach this Act if the pilot is satisfied that –
(a) The emergency involves a danger to life or property; and
(b) The extent of the breach of the provision does not go further than is
necessary to deal with the emergency; and
(c) There is no other reasonable means to alleviate, avoid, or assist with
the emergency; and
(d) The degree of danger in complying with the provision is clearly
greater than the degree of danger involved in deviating from the
provision.
(2) If an emergency (not being an emergency arising in flight) necessitates
the urgent transportation of a person or supplies for the protection of life or
property the pilot-in-command of the aircraft or its operator may breach this Act
if –
(a) The emergency involves a danger to life or property; and
(b) The extent of the breach of the provision does not go further than is
necessary to deal with the emergency; and
(c) There is no other reasonable means to alleviate, avoid, or assist with
the emergency; and
(d) The degree of danger involved in deviating from the provision is
clearly less than the degree of risk in failing to attend to the
emergency.
(3) Subsection (2) does not permit –
(a) The operation of an aircraft not registered in Niue or elsewhere; or
(b) The breach of this Act as to the airworthiness of an aircraft; or
(c) The operation of an aircraft by a person who is not lawfully entitled
to do so.

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(4) A pilot-in-command or an operator who breaches this Act under this section must –
(a) Immediately notify the relevant air traffic control service of the action; and
(b) As soon as practicable –
(i) notify the Director of the action and of the circumstances that
necessitated it; and
(ii) if requested to do so by the Director, within any time specified
by the Director provide the Director with a written report in
respect of the action.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;
(b) In the case of a body corporate, a fine not exceeding 50 penalty
units.

16 Obligation to notify aircraft accidents and incidents

(1) The pilot-in-command of an aircraft involved in an aircraft accident
must notify the Director of the accident as soon as practicable.
Penalty: A fine not exceeding 10 penalty units.
(2) If a pilot-in-command of an aircraft is for any reason unable to give the
notification required by subsection (1) its operator must do so.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;
or
(b) In the case of a body corporate, a fine not exceeding 50 penalty
units.
(3) A person –
(a) Who does an act in respect of an aircraft, aeronautical product, or
aviation related service; and
(b) Who when doing that act is involved in an aircraft incident, must
notify the Director of the incident if it is a serious incident under
the Convention.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;
(b) In the case of a body corporate, a fine not exceeding 50 penalty
units.
(4) If the Director is given notification under this section the Director may
require the person who gave the information to provide additional information.
(5) A person must comply with a requirement made under subsection (4)
as soon as possible.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;
or
(b) In the case of a body corporate, a fine not exceeding 50 penalty
units.

17 Aviation security

It is the duty of the police –
(a) To safeguard civil aviation operations against acts of unlawful
interference; and
(b) To protect people and property from dangers arising from the
commission or attempted commission of acts of unlawful
interference in respect of civil aviation operations.
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18 Police to provide aviation security services

It is the duty of the police in respect of aviation security services at the
airport –
(a) To carry out passenger and baggage screening of aircraft passenger services and, if necessary, to undertake searches of passengers, baggage, cargo, aircraft, the airport and its navigation installations; and
(b) To carry out airport security patrols and patrols of the airport’s navigation installations; and
(c) To review, inquire into, and keep itself informed of security techniques, systems, devices, practices, and procedures related to the protection of civil aviation and people employed in or using civil aviation; and
(d) To undertake, or encourage or supervise, experimental or research work in aviation security; and
(e) To co-operate –
(i) with the authorities administering airport security services of
other countries; and
(ii) with appropriate international organisations.

19 Security areas

(1) The Director may declare by a sign or signs fixed at the perimeter of an
area within the airport that the area is a security area.
(2) Subject to subsection (3), a person other than –
(a) A constable; or
(b) A person authorised by the Director,
must not enter a security area.
(3) For the purpose of this section a person referred to in subsection (2)(b)
is not a person authorised by the Director to enter a security area unless –
(a) The person is wearing any identification device provided by the
Director identifying that person as a person authorised by the
Director to enter that security area; and
(b) The person is in the security area solely for the purpose of
performing the duties or carrying out the functions for which the
person was authorised by the Director to be in that security area.
(4) A person in a security area must if requested to do so by a constable –
(a) State to the constable –
(i) the person’s name and address; and
(ii) the person’s reason for being in the security area, and
(iii) the person’s authority (if any) to enter the area; and
(b) produce to the constable satisfactory evidence of the correctness of
that name and address.
(5) A person must not fail to comply with a request made under subsection
(4).
Penalty: A fine not exceeding 10 penalty units.
(6) A constable may order a person to leave a security area if –
(a) The person fails or refuses to provide the constable with satisfactory
evidence of the person’s name and address if requested to do so by
the constable; or
(b) The person fails to satisfy the constable that the person is authorised
to be in that security area.

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(6).
(7) A person must not fail to comply with an order made under subsection
Penalty: A fine not exceeding 10 penalty units.
(8) A constable may arrest without warrant a person who fails to comply
with a request made under subsection (4) or an order made under subsection (6).
(9) A constable, and any person whom the constable calls on for assistance,
may use such force as is reasonably necessary –
(a) To remove from a security area a person who fails or refuses to
leave the security area after having been ordered to do so under
subsection (6); or
(b) To arrest a person under subsection (8).
(10) A passenger embarking or disembarking directly through a gateway
or thoroughfare in the airport approved for that purpose by the Director is to be
taken to be authorised by the Director to pass through any security area forming
part of the gateway or thoroughfare.

20 General power of entry and arrest

(1) To implement this Act a constable or a person authorised for the purpose
by the Director may –
(a) Enter an aircraft, a building, or place; or
(b) Require the owner, occupier, or operator of an aircraft, aeronautical
product, or aviation related service –
(i) to produce a document the owner, occupier, or operator is
required to keep by virtue of this Act; and
(ii) to surrender the document; or
(c) If the constable or authorised person has reasonable grounds to
suspect that –
(i) a breach of this Act is being or is about to be committed; or
(ii) a situation exists within the civil aviation system or is about to
exist within that system that constitutes a danger to a person
or property, enter and inspect an aircraft, building, or place.
(2) An authorised person exercising the power of entry under subsection
(1) must produce the person’s authorisation from the Director if required to do so.

21 Powers of entry in respect of the airport

(1) A person authorised by the Director to do so may –
(a) Enter land to gain access to equipment used by the Government to
carry out the Government’s functions in respect of the airport; and
(b) Perform operations necessary to inspect, maintain, replace or repair
that equipment.
(2) A person who enters land in accordance with subsection (1) must
produce the person’s authorisation from the Director if required to do so by the
owner or occupier of the land.
PART 3
ENTRY INTO THE AVIATION SYSTEM

22 Requirement to register aircraft

(1) Except as otherwise provided in this Act, a person lawfully entitled to
the possession of an aircraft for a period of 28 days or longer which flies to, from,
within, or over Niue territory must register the aircraft and hold a valid certificate
of registration for it from –
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(a) The Director; or
(b) The appropriate aeronautical authority of a contracting State of
ICAO; or
(c) The appropriate aeronautical authority of another State that is party
to an agreement with Niue which provides for the acceptance of
each other ’s registrations.
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
12 months or a fine not exceeding 1,000 penalty units;
(b) In the case of a body corporate, fine not exceeding 100 penalty units.
(2) An aircraft cannot be registered in or remain registered in Niue if it is
registered in another country.
(3) The Director may decline to register an aircraft under regulations made
under this Act.
(4) A person in respect of whom a decision is taken under this section may
appeal against that decision to the Minister.

23 Regulations in respect of aviation documents

(1) Regulations or rules may require that aviation documents are required
by –
(a) People, aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system; or
(b) Classes of people, aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system,
as may, in the interests of safety or security, be specified in the regulations, and may, in particular, provide that aviation documents are required in respect of all or any of the following –
(c) Niue registered aircraft;
(d) Aircraft pilots;
(e) Flight crew members;
(f) Air traffic service personnel;
(g) Aviation security service personnel;
(h) Aircraft maintenance personnel;
(i) Air services;
(j) Air traffic services;
(k) Aviation security services;
(l) Aviation meteorological services;
(m) Aviation communications services.
(2) The regulations may prescribe the requirements, standards, and
application procedure for each aviation document, and the maximum period for
which each document may be issued.

24 Duration of aviation documents

Subject to the regulations, an aviation document may be issued by the
Director for such period and subject to such conditions as the Director considers
appropriate in each particular case.

25 Application for aviation document

(1) An application for the grant or renewal of an aviation document must
be made to the Director in the prescribed form or if there is no prescribed form in
such form as the Director may approve.

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(2) An applicant for an aviation document must include the applicant’s address for service in Niue including a telephone and facsimile number.
(3) The holder of an aviation document must promptly notify the Director of any change to the address, telephone number, or facsimile number of the holder. Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units; (b) In the case of a body corporate, a fine not exceeding 50 penalty
units.
(4) The Director must record all information provided under this section
is a register maintained by the Director for the purpose.
(5) Service of a notification under this Act on a holder of, or applicant for,
an aviation document is effective service if served on the address last provided by
that holder or applicant under this section.

26 Grant or renewal of aviation document

(1) After considering an applicant for the grant or renewal of an aviation
document the Director must grant the application if the Director is satisfied that –
(a) All things in respect of which the document is sought meet the
relevant prescribed requirements; and
(b) The applicant and any person who is to have or is likely to have
control over the exercise of the privileges under the document –
(i) either has the relevant prescribed qualifications and experience
or has such foreign qualifications as are acceptable to the
Director under subsection (2); and
(ii) is a fit and proper person to have such control or hold the
document; and
(iii) meets all other relevant prescribed requirements; and
(c) It is not contrary to the interests of aviation safety for the document
to be granted or renewed.
(2) For the purpose of granting or renewing an aviation document the
Director may, subject to the regulations, accept such foreign qualifications or
recognise such foreign certifications as the Director considers appropriate in each
case.
(3) It is an implied condition of an aviation document that the holder and any person who has or is likely to have control over the exercise of the privileges under the document continue to satisfy the fit and proper person test specified in subsection (1)(b)(ii).
(4) If the Director declines to grant an application for the grant or renewal of an aviation document the applicant may appeal against that decision to the Minister.

27 Criteria for fit and proper person test

(1) For the purpose of determining whether a person is a fit and proper
person for the purpose of section 26(1)(b)(ii) the Director must, having regard to
the degree and nature of the person’s proposed involvement in the Niue civil
aviation system, have regard to, and give such weight as the Director considers
appropriate to –
(a) The person’s compliance history with transport safety regulatory
requirement; and
(b) The person’s related experience (if any) within the transport
industry; and
(c) The person’s knowledge of the applicable civil aviation system
regulatory requirements; and
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(d) Any history of physical or mental health or serious behavioural problems; and
(e) Any conviction for a transport safety offence whether or not – (i) the conviction was in a Niue court; or
(ii) the offence was committed before the commencement of this
Act; and
(f) Any evidence that the person has committed a transport safety
offence or has contravened or failed to comply with regulations
made under this Act.
(2) The Director is not confined to consideration of the matters specified
in subsection (1) but may take into account other matters and evidence the Director
considers relevant.
(3) To determine if a person is a fit and proper person the Director may –
(a) Seek and receive any information (including medical reports) the
Director considers relevant; and
(b) Consider information obtained from any source.
(4) In its application to a body corporate subsection (1) has effect as if –
(a) Paragraphs (a), (b), (c), (e) and (f) refer to the body corporate and
its officers; and
(b) Paragraph (d) refers only to the officers of the body corporate.

28 Applying for aviation document while disqualified

(1) A person must not apply for or obtain an aviation document while
disqualified by an order of a court from obtaining an aviation document.
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 500 penalty
units.
(2) A document obtained contrary to subsection (1) is of no effect.

29 General requirements for participants in civil aviation system

(1) A person who does anything for which an aviation document is required
(in this section called an aviation participant) must ensure that the appropriate
aviation document and all the necessary qualifications and other documents are
held.
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 500 penalty
units.
(2) An aviation participant must comply with this Act and the conditions
attached to the relevant aviation document.
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 500 penalty
units.
(3) An aviation participant must ensure that the activities or functions for
which the aviation document has been granted are carried out –
(a) By the participant and by persons for whom the participant is
responsible; and
(b) Under the relevant prescribed safety standards and practices.
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 500 penalty
units.
(4) An aviation participant who holds an aviation document that authorises
the provision of a service within the civil aviation system must –

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(a) If required to do so by regulations made under this Act, establish and follow a management system that will ensure compliance with the relevant prescribed safety standards and the conditions attached to the document; and
(b) Provide training and supervision to employees of the participant who are engaged in doing anything to which the document relates, so as to maintain compliance with the relevant prescribed safety standards and the conditions attached to the document and to promote safety; and
(c) Provide sufficient resources to ensure compliance with the relevant prescribed safety standards and the conditions attached to the document.
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units; (b) In the case of a body corporate, a fine not exceeding 500 penalty
units.

30 Endangerment caused by holder of aviation document

(1) The holder of an aviation document must not, in respect of an activity
or service to which the document relates, do or omit to do an act or cause or
permit an act or omission, if the act or omission causes unnecessary danger to
another person or to property.
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
12 months or a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 1,000 penalty
units.
(2) Subsection (1) is in addition to and not in derogation of any regulations
made under this Act.

31 Court may disqualify holder of aviation documents

(1) If a court convicts a person of an offence under section 29, section 47 or
section 48 it may in addition to any other penalty it imposes –
(a) Disqualify the person from holding or obtaining an aviation
document or a particular aviation document; or
(b) Impose on an aviation document held by or issued to the person
such restrictions or conditions or both as the court thinks fit having
regard to the circumstances of the offence;
for a period not exceeding 12 months.
(2) Subsection (1) does not affect or prevent the exercise by the Director of
his powers under section 26.
PART 4
AIR SERVICE OPERATIONS

32 Scheduled air service operations

A person must not engage in a scheduled air service operation between
Niue and elsewhere except –
(a) Under the authority of and in conformity with the terms and
conditions of an air service licence granted under this Act; or
(b) If stops are only made in Niue for non-traffic purposes.
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 500 penalty
units.
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33 Non-scheduled flights

(1) An aircraft of a state other than Niue that is not engaged in scheduled
international air service operation may –
(a) Make a non-scheduled flight in transit non-stop across Niue
territory; or
(b) Make a stop in Niue for a non-traffic purpose.
(2) The Director may require an aircraft referred to in subsection (1) –
(a) To land; or
(b) To obtain special permission for the flight.
(3) A person must not fail to comply with a requirement of the Director
imposed under subsection (2).
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 500 penalty
units.
(4) The pilot of an aircraft of a state other than Niue that is not engaged in
a scheduled international air service operation must not make a non-scheduled
flight across Niue territory with a stop in Niue for traffic purposes except –
(a) With the approval of the Director; and
(b) In compliance with any condition or limitation the Director imposes
on that approval.
Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, a fine not exceeding 500 penalty
units.

34 Cabinet is licensing authority

(1) Cabinet may grant an air service licence.
(2) Cabinet may appoint a person to inquire into and report upon a matter
in relation to –
(a) An air service licence; or
(b) An application for an air service licence.

35 Application for an air service licence

(1) An application for an air service licence must –
(a) Be made to the Cabinet; and
(b) Be accompanied by such information and documents in support of
the application as Cabinet requires.
(2) Cabinet may –
(a) Refuse an application for an air service licence; or
(b) Grant it –
(i) in whole or in part; and
(ii) subject to any condition Cabinet considers necessary in the
public interest.
(3) An air service licence is to be in a form approved by Cabinet.

36 Duration of air service licence

(1) An air service licence –
(a) Takes effect on the date stated in it; and
(b) Unless sooner revoked or expressed to expire earlier expires 2 years
later.
(2) If –
(a) An application for the renewal of an air service licence has been
made; but

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(b) The application has not been disposed of before the date of expiry of the licence,
the licence continues in force until the application is disposed of unless Cabinet otherwise directs.

37 Terms of air service licence may be varied during currency

(1) Cabinet may if Cabinet considers it to be in the public interest to do
so –
(a) Amend or revoke a term or condition of an air service licence; or
(b) Add a new term or condition in an air service licence.
(2) Before exercising a power under subsection (1) Cabinet must give –
(a) The licensee; and
(b) Any other person Cabinet believes is likely to be affected,
at least 21 days notice of his intention to do so.

38 Renewal of air service licences

(1) An application for the renewal of an air service licence must –
(a) Be made to Cabinet; and
(b) Be accompanied by such information and documents in support of
the application as Cabinet requires.
(2) Cabinet may –
(a) Refuse an application for the renewal of an air service licence; or
(b) Grant it –
(i) in whole or in part; and
(ii) subject to any condition Cabinet considers necessary in the
public interest.
(3) The renewal of an air service licence –
(a) Unless sooner revoked or expressed to expire earlier expires 2 years
after it takes effect; and
(b) May be granted in advance to take effect on the expiry date of the
licence being renewed.

39 Inquiries as to air service licence

(1) Cabinet may appoint a person to hold a public inquiry to determine if
an air service operation being carried on under the authority of an air service
licence is being carried on in conformity with its terms and conditions.
(2) A person appointed under subsection (1) must give at least 21 days
notice of his intention to hold the inquiry to –
(a) The licensee; and
(b) Any other person he or she believes has an interest in the air service
licence.
(3) The notice must –
(a) State the day, time, and place fixed for the inquiry; and
(b) Contain details of the matter proposed to be inquired into.

40 Revocation of air service licences

Cabinet may revoke an air service licence or suspend it for any period the
Cabinet considers appropriate –
(a) If the air service operation authorised by the licence is not started
on the date specified in it for the start of the operation; or
(b) If the licensee abandons or curtails the air service operation
authorised by the licence; or
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(c) If after receiving the report of a person appointed to hold an inquiry Cabinet is satisfied that the licensee is not carrying on the air service operation in conformity with the licence; or
(d) If Cabinet is satisfied that the licensee has disposed of the air service operation authorised by the licence to another person without –
(i) transferring the licence to that person; or
(ii) obtaining Cabinet’s consent to the transfer.

41 Transfer of licence

(1) A licensee under an air service licence must not transfer the licence
without Cabinet’s written consent.
(2) An application for Cabinet’s consent to transfer an air service licence
must –
(a) Be made to Cabinet; and
(b) Be accompanied by such information and documents in support of
the application as Cabinet requires.
(3) Cabinet may –
(a) Refuse consent for the transfer of an air service licence; or
(b) Give it –
(i) in whole or in part; and
(ii) subject to any condition Cabinet considers necessary in the
public interest.

42 Licensee to provide information

It is an implied condition of an air service licence that the person authorised
to carry on an air service operation by virtue of the licence must provide the
Minister with any financial and statistical returns and statements the Minister
requires.

43 Nuisance, trespass, and responsibility for damage

(1) An action for nuisance cannot be brought in respect of the noise or
vibration caused by an aircraft or its engines while on, or taking off from, or landing
at, the airport.
(2) An action for trespass or nuisance cannot be brought in respect of the
flight of an aircraft over property at a height that is reasonable in the circumstances.
(3) If damage or loss is caused to property –
(a) By an aircraft while in flight, taking off or landing; or
(b) By a person or article in or falling from an aircraft;
damages are recoverable from the owner of the aircraft without proof of cause of
action as if the damage or loss was caused by the owner ’s fault unless the damage
or loss was caused by or contributed to by the fault of the person who suffered the
damage or loss.
(4) If –
(a) Damage or loss is caused in the manner described in subsection
(3); and
(b) Damages are recoverable from the owner of an aircraft solely by
virtue of subsection (3); and
(c) Another person is liable to pay damages in respect of the damage
or loss, the owner is entitled to be indemnified by that other person
against any claim in respect of the damage or loss.
(5) If damage or loss is caused by a person descending from an aircraft by
parachute –

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301
(a) Damages are not recoverable by virtue of subsection (4) from the owner of the aircraft; but
(b) Unless the damage or loss is caused by a person descending from an aircraft by parachute to avoid injury or death – damages are recoverable from the person descending and this section applies as if the person descending were the owner of the aircraft.
(6) If –
(a) An aircraft is hired by its owner to a person for a period of 28 days
or longer; and
(b) During that period no pilot, commander, navigator, or operative
member of the crew of the aircraft is an employee of the owner,
this section applies during the period as if each reference in it to the owner were a
reference to the person to whom the aircraft is hired.
(7) In this section “fault” means an act or omission which gives rise to a
liability in tort.
PART 5
OFFENCES

44 Dangerous activity involving aircraft, aeronautical product or aviation

related service

(1) A person must not –
(a) Operate, maintain, or service; or
(b) Do any other act,
in respect of an aircraft, aeronautical product, or aviation related service, in a
manner which causes unnecessary danger to a person or to property.
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
12 months or a fine not exceeding 25 penalty units;
(b) In the case of a body corporate, a fine not exceeding 250 penalty
units.
(2) A person must not –
(a) Cause or permit an aircraft, aeronautical product, or aviation related
service to be operated, maintained, or serviced; or
(b) Cause or permit an act to be done in respect of an aircraft,
aeronautical product, or aviation related service,
in a manner which causes unnecessary danger to a person or property.
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
12 months or a fine not exceeding 25 penalty units; or
(b) In the case of a body corporate, a fine not exceeding 250 penalty
units.

45 Operating aircraft in careless manner

A person must not operate an aircraft in a careless manner.
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
12 months or a fine not exceeding 25 penalty units;
(b) In the case of a body corporate, a fine not exceeding 250 penalty
units.
302 Niue Laws 2006 Vol 1

46 Communicating false information affecting safety

A person must not provide to another person information relating to the
safety of –
(a) An aircraft; or
(b) The airport; or
(c) An aeronautical product; or
(d) An aviation related service; or
(e) Any other facility or product used in or connected with aviation; or
(f) A person associated with aviation,
knowing the information to be false or in a manner reckless as to whether it is
false.
Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;
(b) In the case of a body corporate, a fine not exceeding 50 penalty
units.

47 Failing to disclose information relevant to aviation document

A person must not –
(a) Provide to the Director information relevant to the Director ’s
exercise of powers under this Act knowing it to be false; or
(b) Being an applicant for an aviation document, fail, without
reasonable excuse, to provide the Director information known to
the person which is relevant to the Director ’s exercise of a power
under this Act; or
(c) Being the holder of an aviation document, fail, without reasonable
excuse, to provide the Director information known to the person
which is relevant to the condition specified in section 26(3).
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
12 months or a fine not exceeding 50 penalty units;
(b) In the case of a body corporate, fine not exceeding 300 penalty units.

48 Acting without necessary aviation document

A person must not –
(a) Operate, maintain, or service; or
(b) Do any other act in respect of,
an aircraft, aeronautical product, or aviation related service –
(c) Without holding the appropriate current aviation document; or
(d) Knowing –
(i) that a current aviation document is required to be held in respect
of that aircraft, product, or service before that act may lawfully
be done; and
(ii) that the appropriate aviation document is not held.
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
18 months or a fine not exceeding 100 penalty units;
(b) In the case of a body corporate, fine not exceeding 1,000 penalty
units.

49 Obstruction of authorised person

(1) A person must not obstruct or impede a person who is authorised by
the Director to perform a duty or exercise a power while performing that duty or
exercising that power.

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303
Penalty: (a) In the case of an individual, imprisonment for a term not exceeding
3 months or a fine not exceeding 20 penalty units; or
(b) In the case of a body corporate, fine not exceeding 100 penalty units.
(2) Subsection (1) applies only if the person obstructed or impeded is in
uniform or produces evidence of his authority.

50 Trespass

A person must not, without reasonable excuse, enter or remain within the
airport or a building or area in which are operated technical facilities or services
for civil aviation if directed not to enter or remain –
(a) By a person authorised by the Director for that purpose; or
(b) By a constable; or
(c) By a notice or notices displayed for the purpose by the Director.
Penalty: Imprisonment for a term not exceeding 3 months or a fine not exceeding
20 penalty units.
PART 6
REGULATIONS AND RULES

51 Power to make regulations

(1) The Cabinet may make regulations –
(a) To implement Niue’s obligations under the Convention; and
(b) In respect of any matter necessary or incidental to the
implementation of this Act.
(2) The Cabinet may, in particular, make regulations to prescribe fees and
charges payable generally for the purposes of civil aviation.
(3) The regulations may impose penalties for a breach of the regulations
not exceeding a fine of 50 penalty units or 6 months imprisonment, or both in the
case of an individual, or a fine not exceeding 250 penalty units in the case of a
body corporate.
(4) There may be incorporated by reference into regulations made under
this section all or any of the following –
(a) A standard, requirement, or recommended practice of an
international aviation organisation;
(b) A standard, requirement, or rule prescribed under law by another
contracting State of ICAO;
(c) A standard, requirement, or rule of an aviation sport or aviation
recreational organisation;
(d) Any other written material or document that in the opinion of the
Minister is too large or impractical to be printed as part of the
regulations.
(5) Material incorporated in regulations in accordance with subsection (4)
forms part of the regulations and unless otherwise provided in the regulations
any amendment to the material subsequently made by the person or organisation
that originated it also forms part of the regulations.
(6) A regulation is not invalid because –
(a) It confers a discretion upon or allows a matter to be determined or
approved by a person; or
(b) It allows a person to impose a requirement as to the performance
of an activity.
304

52

Niue Laws 2006 Vol 1

New Zealand Civil Aviation Rules to apply

(1) The New Zealand Civil Aviation Rules made under Part 3, Civil Aviation
Act 1990 of New Zealand shall extend to and be in force in Niue as from time to time amended and in force in New Zealand.
(2) An amendment made to the New Zealand Civil Aviation Rules shall not extend to and be in force in Niue if the Cabinet so resolves.
(3) Any provision of the New Zealand Civil Aviation Rules as extended to and in force in Niue by virtue of this Act shall cease to extend to and be in force if the Cabinet so resolves.

53-54 [Spent]

305

CIVIL LIST ACT 1999

1999/248 – 1 July 1999

8 Period for which Members’ remuneration and allowances are payable

9 Advance of remuneration

10 Advance of overseas travel allowance

11 Allowances to be treated as taxable income

12 [Spent]

SCHEDULE

To prescribe under article 25(2) of the Constitution the remuneration and other entitlements of the Premier, other Ministers, the Members of the Assembly who are not Ministers, and the Speaker

1 Short title

This is the Civil List Act 1999.

2 [Spent]

3 Interpretation

In this Act –
“Acting Premier” means a Minister discharging the functions of Premier
pursuant to article 9(1) or (2) of the Constitution;
“Member” means a person elected as a member of the Assembly under
article 16 of the Constitution but does not include the Premier, a Minister
or the Speaker;
“Minister” means a member of the Cabinet but does not include the Premier
or a temporary Minister;
“Premier” means a member of the Assembly elected under article 4 of the
Constitution but does not include an Acting Premier;
“Speaker” means the Speaker of the Niue Assembly elected under article
20 of the Constitution but does not include a member of the Assembly
performing the functions of the Speaker under that article;
“temporary Minister” means a Member appointed as a temporary Minister
under article 8 of the Constitution.
“Associate Minister” means a Member designed as an Associate Minister
for the purpose of assisting the Minister in the exercise of official duties.
306 Niue Laws 2006 Vol 1

4 Remuneration and allowances

There is payable to the Premier, Ministers, Members, and the Speaker the
remuneration and allowances specified in the Schedule.

5 Appropriation

A remuneration or allowance payable under this Act is to be paid out of
the Niue Government Account without further appropriation.

6 Payment of remuneration

A remuneration specified in Part 1 of the Schedule is payable by equal
fortnightly instalments in arrears with a proportionate payment for any fraction
of a fortnight served.

7 Period for which the Premier ’s and Ministers’ remuneration and allowances are payable

The remuneration and allowances of the Premier and each Minister of Cabinet shall commence on the day on which he/she is appointed under article 4 and 5 of the Niue Constitution and ending on the day that he/she vacates his/her office under article 3 or 7 of the Niue Constitution.

8 Period for which Members’ remuneration and allowances are payable

(1) The remuneration and allowance of each member shall commence on
the day the Chief Electoral Officer publicly declares him/her to be elected and
shall cease on the day a new Member has been declared by the Chief Electoral
Officer or unless his/her seat becomes vacant by death or otherwise as the case
may be.
(2) Where a member is returned unopposed his/her period of remuneration
shall recommence on the date that the Chief Electoral Officer declares him/her to
be elected and shall cease on the date a new Member has been declared by the
Chief Electoral Officer or unless his/her seat becomes vacant by death or otherwise
as the case may be.

9 Advance of remuneration

If a person who is entitled to be paid a remuneration under Part 1 of the
Schedule is due to be absent from Niue he or she may be paid that remuneration
in advance –
(a) If the person is due to be absent from Niue on official business
connected with his or her position in the Assembly, for such part of
the absence as the person is due to spend on that official business;
or
(b) In any other case, for the period of his or her absence from Niue up
to a maximum period of 4 weeks from his or her departure from
Niue.

10 Advance of overseas travel allowance

(1) An overseas travel allowance payable may be paid in advance of the
travel.
(2) If on the return of a person to whom an overseas travel allowance has
been paid in advance it is found that the allowance was paid in respect of too few days allowance in respect of the additional days is to be paid to the person.
(3) If on the return of a person to whom an overseas travel allowance has been paid in advance it is found that the allowance was paid in respect of too

Civil List Act 1999

307
many days the allowance paid in respect of the additional days is to be refunded by the person to whom it was paid within 7 days of his or her return to Niue under Part 2 of the Schedule.
(4) Any overseas travel allowance not repaid by a person under subsection
(3) may be deducted from any other money payable to that person under this Act.

11 Allowances to be treated as taxable income

An allowance referred to in Part 2 of the Schedule except for the Clothing
Allowance, Overseas Travel Allowance, Premier ’s Entertainment and Residence
Allowance, is to be treated as taxable income for income tax purposes.

12 [Spent]

SCHEDULE

PART 1 – REMUNERATION

Office Rate of Remuneration

Premier $60,803 a year

Minister $39,315 a year

Speaker $18,025 a year

Member $14,729 a year

PART 2 – ALLOWANCES

Type of allowance	Amount of allowance
Premier ’s entertainment allowance Payable to the Premier to cover costs incurred by the Premier in hosting official functions.	$1,323 a year
Premier ’s residence allowance Payable to the Premier to cover the cost of maintaining the Premier ’s residence	$6,000 a year
The Ministers Payable to a minister annually	$3,000 a year
Acting Premier ’s allowance Payable to a Minister when acting as Premier	$60 a day in addition to remuneration as a Minister
Acting Minister ’s allowance Payable to a Member when acting as a Minister	$50 a day in addition to remuneration as Member
Clothing allowance	Premier $800 payable every 3 years Minister $750 payable every 3 years Speaker $500 payable every 3 years Member $500 payable every 3 years

308 Niue Laws 2006 Vol 1

	The allowance is payable on the person first becoming a member of the Assembly and is then payable not sooner than 3 years after the payment of any previous clothing allowance of any amount.
Overseas travel allowance Payable to the Premier, a Minister, a Member and the Speaker in connection with the person’s official duties – To cover accommodation, meals and incidental expenses necessarily incurred in carrying out such duties.	Daily amount as determined by the Niue Public Service Commission The allowance may differ in respect of the office in the Assembly held by the person travelling and by the country or countries to be visited by the person The allowance payable is to be reduced by an equal amount to any allowance that is to be paid by a person other than the Government of Niue to cover accommodation, meals and incidental expenses.
Extra duties allowance Payable to a Member who at the request of a Minister and with the approval of the Premier provides assistance to that Minister in the exercise of that Ministers official duties.	$50 a day in addition to Associate Minister remuneration as a Member
Select Committee Member ’s Allowance Payable to a Select Committee Member who attends Select Committee meetings	For meetings outside of normal working hours $70 per day For meetings between 8.30am-12.30pm during normal working hours $30 per day For meetings during normal working hours between 8.30am and 4.00pm and beyond, $50 per meeting
Speaker ’s Allowance Payable to the Speaker to cover costs incurred in relation to official duties and representation at functions	$1,000 a year

309

COMMISSIONS OF INQUIRY ACT 1968
1968/50 – 1 October 1968
1	Short title	8	Protection of witnesses and counsel
2	Interpretation	9	Witnesses’ allowances
3	Cabinet may appoint Commissions of	10 Payment of witnesses’ allowances
	Inquiry	11 Non-attendance of witness
4	Members of Commissions protected	12 Reference of point of law to Court
5	Commissioners’ powers	13 Power to award costs
6	Persons interested entitled to be heard at	14 Enforcing orders for costs
	inquiry	15 Powers of Judges when Commissioners
7	Service of summons

1 Short title

This is the Commissions of Inquiry Act 1968.

2 Interpretation

In this Act –
“ship” means every description of vessel used in navigation however
propelled.

3 Cabinet may appoint Commissions of Inquiry

(1) Cabinet may appoint any person or persons (including a member of
Cabinet) to be a Commission to inquire into and report upon any question arising
out of or concerning –
(a) The administration of the Government; or
(b) The working of any existing law; or
(c) The necessity of expedience of any legislation; or
(d) The conduct of any officer in the service of the Crown; or
(e) Any disaster or accident including any shipping casualty (whether
due to natural causes or otherwise) in which members of the public
were killed or injured or were or might have been exposed to risk
of death or injury.
(2) For the purpose of subsection (1) (e), a shipping casualty shall be deemed
to occur –
(a) When on or near the coast of Niue any ship is lost, abandoned, stranded or materially damaged or has been in collision with any ship; or
(b) When any loss of life ensues by reason of any casualty occurring to
any ship on or near the coast of Niue; or
(c) When in any place any such loss, abandonment, stranding, material
damage, or casualty as aforesaid occurs, and any witness is found
in Niue; or
310 Niue Laws 2006 Vol 1
(d) When in any place any such loss, abandonment, stranding, material damage, or casualty as aforesaid occurs or is supposed to have occurred to any ship registered in Niue under the provisions of any law made in that behalf and for the time being in force; or
(e) When any ship proceeds to sea from any harbour in Niue and is lost or is supposed to have been lost and any evidence is obtainable in Niue as to the circumstances under which she proceeded to sea or was last heard of.

4 Members of Commissions protected

So long as any member of any such Commission acts bona fide in the
discharge of his duties, no action shall lie against him for anything he may report
or say in the course of the inquiry.

5 Commissioners’ powers

Every such Commission shall for the purpose of the inquiry have the power
and status of a Judge of the Court in respect of citing parties interested in the
inquiry, summoning witnesses, administering oaths, hearing evidence, and
conducting and maintaining order at the inquiry.

6 Persons interested entitled to be heard at inquiry

Any person interested in the inquiry shall, if he satisfies the Commission
that he has an interest in the inquiry apart from any interest in common with the
public, be entitled to appear and be heard at the inquiry as if he had been cited as
a party to the inquiry.

7 Service of summons

Every summons to a witness shall be served either by delivering the same
to the person summoned or by leaving the same at his usual place of abode within
a reasonable time before his attendance is required.

8 Protection of witnesses and counsel

Every witness attending and giving evidence in pursuance of any such
summons, and every counsel appearing before any Commission, shall have the
same privileges and immunities as witnesses and counsel in the Court.

9 Witnesses’ allowances

(1) Every witness attending in pursuance of any such summons shall be
entitled to expenses for travelling and maintenance during his absence from his
usual place of abode under the scale allowed to witnesses in civil cases by the
rules of the Court.
(2) Persons prosecuting any claim before a Commission shall not be entitled
to be paid any money under this section.

10 Payment of witnesses’ allowances

(1) Where the Commission has obtained the authority in writing of the
Resident Commissioner for summoning any witness, the expenses of that witness
shall, if certified by the Chairman of the Commission be paid by the Treasurer out
of the Niue Government Account.
(2) In every other case the person requiring the evidence of any witness
shall, before the summons is issued, deposit with the Commission such sum of
money as the Commission deems sufficient, and the expenses of the witness shall
be paid out of the sum so deposited.

Commissions of Inquiry Act 1968

311

11 Non-attendance of witness

(1) Every person who, after being duly summoned to attend before the
Commission, or to produce to it any books, papers, writings or documents –
(a) Fails to appear under the exigency of such summons; or
(b) Refuses to be sworn or to give evidence, or to make answer to such
questions as may be put to him by the Commission or any member
thereof touching the subject of the inquiry; or
(c) Fails to produce any such books, papers, writings, or documents;
is liable for every such default to a fine not exceeding 0.5 penalty units.
(2) No person so summoned shall be liable to any such fine unless at the
time of the service of the summons there was made to him a payment or a tender
of his travelling expenses, according to the scale allowed to witnesses in civil cases
by the rules of the Court.

12 Reference of point of law to Court

(1) Subject to section 15 the Commission may refer any disputed point of
law arising in the course of an inquiry to the Court for decision, and for this purpose
may either conclude the inquiry subject to such decision or may at any stage of
the inquiry adjourn it until after the decision has been given.
(2) The question shall be in the form of a special case to be drawn up by
the parties (if any) to the inquiry, and, if the parties do not agree or if there are no
parties, to be settled by the Commission.
(3) The decision of the Court shall be final and binding upon all parties to
the inquiry and upon the Commission.

13 Power to award costs

(1) The Commission, upon the hearing of an inquiry, may order that the
whole or any portion of the costs of the inquiry or of any party thereto shall be
paid by any of the parties to the inquiry, or by all or any of the persons who have
procured the inquiry to be held.
(2) No such order shall be made against any person who has not been
cited as a party or authorised by the Commission, pursuant to section 6 to appear
and be heard at the inquiry or summoned to attend and give evidence at the inquiry.

14 Enforcing orders for costs

For the purpose of enforcing any order of the Commission for the payment
of costs, a duplicate of such order may be filed by the person to whom the costs
are payable in any office of the Court and shall thereupon be enforceable in all
respects as a final judgment of that Court in its civil jurisdiction.

15 Powers of Judges when Commissioners

(1) In every case where under this Act, or any other enactment Cabinet
appoints one or more Judges of the Court to be members of a Commission for the
purpose of holding an inquiry, every such Judge, and the Commission of which
he is a member, shall for all the purposes of such inquiry, have the same powers,
privileges and immunities as are possessed by a Judge of the High Court in the
exercise of its civil jurisdiction.
(2) For the purpose of enforcing any order made by such Commission the
order shall, as soon as conveniently may be after the making thereof, be drawn up
and signed by the Chairman (whose signatures and status shall be judicially
noticed), and may be filed in any office of the Court, whereupon the order shall be
enforceable in the same manner as a final judgment of the Court in civil
proceedings.

312 Niue Laws 2006 Voll

313

COMMUNICATIONS ACT 1989

1989/131 – June 1989

19 Obligation

PART 2

POSTAL SERVICES

20 Interpretation

21 Control on carriage of postal articles

22 Control on creation of postage stamps

23 Stealing postal articles

24 Delay and interference with postal articles

25 Divulging contents of postal articles

26 Prohibited material

27 Penalties

28 Lawful opening of postal articles

29 Insufficient postage

30 Regulations

PART 3

ELECTRONIC ADDRESSING

30A Interpretation

30B Objectives and obligations

30C Niue Information Technology Committee

30D Appointed Manager/s of electronic

addressing

30E Cabinet may give directions to the

Appointed Manager of electronic

addressing

30F Delegation of powers

31-32 [Spent]

PART 4

REPEAL AND SAVINGS

To make provisions in respect of communications within Niue and between Niue and elsewhere

1 Short title

This is the Communications Act 1989.
PART 1
TELECOMMUNICATIONS

2 Objectives and obligations

(1) In the administration of this Part the Cabinet and the Director shall
have regard to the objectives of –
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Niue Laws 2006 Vol 1

(a) Facilitating the development of communications both within Niue and between Niue and elsewhere;
(b) Providing within Niue public communications services of a kind and quality appropriate to the social, cultural, educational and economic needs of Niue;
(c) Ensuring that effective means exist to control and supervise the
programmes transmitted by any public communications service
within Niue so that they benefit the Niuean community; and
(d) Providing the people of Niue with a reliable and efficient telephone
service at a reasonable cost.
(2) In the administration of this Part the Cabinet and the Director shall, so
far as practicable, act in accordance with any applicable standards, rules and
regulations set by international agreements binding upon Niue.

3 Interpretation

In this Part –
“Cabinet” includes any person authorised by the Cabinet to exercise a power
of the Cabinet under this Part;
“Director” means the person for the time being carrying out the duties of
the head of the Telecommunications Department of the Government;
“operate”, in respect of any transmission or reception installation, does
not include the operation of an ordinary telephone handset;
“radiocommunications transmitter” means a transmission installation
designed to transmit electromagnetic energy without continuous
artificial guide;
“radiocommunications receiver” means a reception installation designed
to receive electromagnetic energy without continuous artificial guide;
“reception”, in respect of a reception installation, includes interception;
“reception installation” –
(a) Means an apparatus designed to receive by means of electric or
electromagnetic energy either with or without –
(i) sounds (including speech and music);
(ii) visual images;
(iii) any other signals for the purpose of communications, or for
the actuation or control of machinery or apparatus; but
(b) does not include an installation designed solely to receive signals
intended for direct reception by the general public;
“transmission installation” –
(a) Means an apparatus designed to transmit, by means of electric or
electromagnetic, either with or without artificial guide –
(i) sounds (including speech and music);
(ii) visual images;
(iii) any other signals for the purpose of communications, or for
the actuation or control of machinery or apparatus; but
(i) does not include an installation which –
(I) is not a radiocommunication transmitter;
(II) is confined within a single property boundary; and
(III) is not connected to the Niue telephone system; or
(ii) an aerial and lines which are not used except to receive a signal
intended for direct reception by the general public and to
distribute that signal free of charge without alteration.

Communications Act 1989

315

4 Control of transmission installations

(1) Subject to subsection (2), a person shall not operate a transmission
installation unless authorised to do so by the licence granted under this Part.
(2) Subsection (1) does not apply to –
(a) A person acting on behalf of the Government in accordance with
general or specific authorisation given by the Cabinet or by a person
authorised by the Cabinet to give that authorisation;
(b) A member of the crew of a foreign registered vessel or aircraft
operating a transmission installation on board the vessel or aircraft
under any directions of the Director; or
(c) A person operating a transmission installation in circumstances
where that person reasonably believes it necessary to do so because
an emergency exists.
(3) A person who operates a transmission installation contrary to the
provisions of this Part or contrary to the provisions of any licence granted under
this Part is guilty of an offence and is liable on conviction to a fine not exceeding 2
penalty units or to imprisonment for a term not exceeding 3 months, or to both
such fine and imprisonment.

5 Control of reception installations

(1) Subject to subsection (2), a person shall not operate a reception
installation with intent to receive signals (other than signals intended for direct
reception by the general public) emanating from outside Niue unless authorised
to do so by a licence granted under this Part.
(2) Subsection (1) does not apply in relation to a person acting on behalf of
the Government under a general or specific authorisation given by the Cabinet or
by a person authorised by the Cabinet to give that authorisation.
(3) A person who operates a reception installation contrary to this Part or
contrary to the provisions of any licence granted under this Part is guilty of an
offence and is liable on conviction to a fine not exceeding 1 penalty unit or to
imprisonment for a term not exceeding 3 months, or to both such fine and
imprisonment.

6 Public communications service licence

(1) A public communications service licence authorises the licensee to
operate a service the primary purpose of which is the transmission of sound or
visual images, or both, for direct reception by the general public.
(2) Where –
(a) A member of the general public is not entitled to receive sound or a
visual image except upon payment of a fee to a licensee; or
(b) Sound or a visual image is transmitted in an encoded form,
that fact shall not, by itself, be taken to indicate that the sound or visual image was
not intended for direct reception by the general public.

7 Private communications service licence

A private communications service licence authorises the licensee to operate
a service, the primary purpose of which is the transmission of sound or visual
images, or both, and the direct reception of those sound or visual images, or both,
by persons within a specified group of persons (other than the general public).
316 Niue Laws 2006 Vol 1

8 Radiocommunications licence

A radiocommunications licence authorises a person to operate one or more
of the following, namely –
(a) A radiocommunications transmitter;
(b) A radiocommunications receiver;
(c) A radiocommunications transceiver.

9 Grant of public communications service licences

(1) The Cabinet may grant public communications service licences.
(2) The Cabinet may grant a licence under subsection (1) for any period
not exceeding 5 years and may renew such a licence for further periods each not
exceeding 5 years.
(3) A licence granted under subsection (1) is subject to such conditions as
are specified in it.
(4) The Cabinet may revoke, or vary any condition specified in a licence
granted under subsection (1) and may make such a licence subject to additional
conditions.
(5) The Cabinet may refuse to renew a licence granted under subsection
(1) or may revoke such a licence if, in its opinion, the licensee –
(a) Has failed to comply with any condition of the licence or with any
law relating to the operation of the transmission installation; or
(b) Is no longer a suitable person to hold the licence or no longer has
the financial, technical or management capability to provide a
service appropriate to the general public of Niue.
(6) The Cabinet may either generally or in any particular case authorise
another person to exercise all or any of its powers under this section.

10 Grant of private communications service licences and radiocommuni­

cations licence

(1) The Director may grant –
(a) Private communications service licences; and
(b) Radiocommunication licences.
(2) The Director may refuse to grant a licence under subsection (1) if, in his
opinion –
(a) The applicant has insufficient training to operate the relevant transmission or reception installation; or
(b) In the case of a private communications service licence, any person within the specified group of persons referred to in section 7 has insufficient training to operate the relevant transmission or reception installation.
(3) The Director may grant a licence under subsection (1) for a period of 1
year and may renew such a licence for further periods of 1 year.
(4) A licence granted under subsection (1) is subject to such conditions as
are specified in it.
(5) The Director may revoke or vary any condition specified in a licence
granted under subsection (1) and may make such a licence subject to additional
conditions.
(6) The Director may refuse to renew a licence granted under subsection
(1) or may, at any time, revoke such a licence if, in his opinion, the licensee has
failed to comply with any condition of the licence or with any provision of this or
any other law relating to the operation of the transmission or reception installation.

Communications Act 1989

317
(7) The Cabinet may, within 28 days of the Director taking any action under this section, review that action.
(8) Where the Cabinet, after reviewing any action of the Director, decides that no action or different action should have been taken, the decision shall have effect and the action of the Director shall cease to have effect.

11 Schedule of transmission and reception installations

(1) Before a public or private communications service licence is issued, the
Director shall prepare a schedule for the licence setting out the specifications of all
the transmission or reception installations to be used to provide the service
authorised by the licence.
(2) A public or private communications service licence authorises the
licensee to operate transmission or reception installations complying with the
specifications set out in the schedule to the licence for the purpose of the service
authorised by the licence but for no other purpose.
(3) The Director may, after giving the licensee reasonable notice of his
intention to do so, vary a schedule to a public or private communications service
licence.

12 Programmes of public communications service

(1) The licensee under a public communications service licence –
(a) Shall not transmit any advertisement unless authorised to do so in
writing by the Cabinet; and
(b) Shall comply with any programme guidelines issued by the
Programme Advisory Committee established under section 13.
(2) For the purpose of subsection (1) “advertisement” does not include –
(a) A community announcement; or
(b) Programme promotion,
transmitted without charge.

13 Programme Advisory Committee

(1) There is established by this Act a Programme Advisory Committee
consisting of not less than 3 members nor more than 6 members appointed by the
Cabinet.
(2) The Programme Advisory Committee shall –
(a) Advise licensees under public communications services licences on
all aspects of the services authorised by their licences, including
the nature and diversity of their programmes, the suitability of
programmes for Niue, the hours of transmission of the services,
and the amount of any fee which may be charged for the reception
of the services; and
(b) In consultation with licensees under public communications service
licences, prepare and subsequently publish a set of programme
guidelines for public communication services.
(3) Programme guidelines may, in addition to other matters, include
guidelines in respect of –
(a) Material offensive to community standards of behaviour in Niue;
(b) The depiction of sexual activities, violence and the use of drugs;
(c) The amount of times to be assigned for educational, informational
and religious programmes; and
(d) The classification of programmes as suitable for transmission at
various times of the day.
318 Niue Laws 2006 Vol 1
(4) For the purposes of subsection (3) (a) and (b), the Programme Advisory Committee may in consultation with the Censor of Films appointed under the Film and Public Entertainment Act 1979, apply the same guidelines as those applied by the Censor of Films.
(5) Where the Cabinet has authorised the transmission of advertisements, programme guidelines may also include guidelines in respect of –
(a) The content of advertisements;
(b) The products which may or may not be advertised; and
(c) The amount of transmission time allocated to the transmission of
advertisements.

14 Power of Cabinet to require certain transmissions

(1) When required to do so by the Cabinet, the licensee under a public
communications service licence shall make the service available to transmit any
programme or other matter the Cabinet considers to be in the national interest.
(2) A licensee shall not be obliged to make his service available under
subsection (1) for more than 3 hours in any period of 24 hours.
(3) During any period of national emergency proclaimed under section 2
of the Public Emergency Act 1979 –
(a) The limitation referred to in subsection (2) shall not apply; and
(b) The licensee under any public or private communications service
licence or radiocommunications licence shall make the service or
his radiocommunications transmitter, as the case may be, available
to authorised officers of the Government to transmit such matter
as the Cabinet considers necessary.
(4) The power of the Cabinet under subsection (1) does not include power
to require a licensee to transmit any programme or other matter that could
reasonably be interpreted as promoting or opposing –
(a) The election of a candidate as a member of the Assembly; or
(b) A particular point of view in relation to an issue or matter that is
being submitted to the electorate in an election of members of the
Assembly.

15 Forfeiture

(1) Where a person is convicted of an offence under this Part the court
may order that any transmission or reception installation used in connection with
that offence be forfeited to the Government.
(2) Any transmission or reception installation forfeited to the Government
under subsection (1) becomes the property of the Government which may retain
the installation or dispose of it in such manner as it thinks fit.

16 Director may give directions

(1) Subject to compliance with any direction given to him by the Cabinet,
the Director may give a person directions in respect of all or any of the following,
namely –
(a) The technical standards and requirements of any transmission or reception installation;
(b) The frequencies, power and location of any radiocommunication equipment;
(c) The location of any line, pole or associated equipment used in
connection with the provisions of a public or private
communications service, and situated outside land owned or
occupied by the licensee.

Communications Act 1989

319
(2) A person who fails to comply with a direction given to him under subsection (1) is guilty of an offence and is liable on conviction to a fine not exceeding 0.5 penalty units.

17 Exemptions

(1) Subject to subsection (2), the Director may exempt a reception or
transmission installation or reception or transmission installation within a specified
class of reception or transmission installation from all or any of the provisions of
this Part.
(2) Subsection (1) does not apply to or in respect of any transmission
installation used for or in connection with the transmission of sound or visual
images, or both, intended for direct reception by the general public.

18 Regulations (Part 1)

The Cabinet may make regulations for carrying out this Part and without
in any way limiting the generality of the foregoing such regulation may provide
for –
(a) The charges which may be levied for services provided by the
Government;
(b) The fees which may be charged for the grant or renewal of a licence
under this Part;
(c) Periodic fees which may be payable in respect of a licence under
this Part;
(d) The prevention of harmful interference with any transmission
installation or any signals transmitted to, from, or within Niue;
(e) The conditions upon which persons may subscribe to the Niue
telephone system;
(f) The conditions upon which any private communication service may
be connected to the Niue telephone system; and
(g) Penalties, not exceeding 1 penalty unit for any breach of the
regulations.

19 Obligation

PART 2
POSTAL SERVICES
In the administration of this Part the Cabinet, the Niue Post Office and the Postmaster shall, so far as practicable, act under any applicable standards, rules and regulations set by international agreements binding upon Niue.

20 Interpretation

In this Part –
“Niue Post Office” means that Department of Government established to
conduct postal services both within Niue and between Niue and
elsewhere and includes –
(a) The officers and employees of that Department;
(b) Any person authorised by the Postmaster to collect or deliver postal
articles for fee or commission on behalf of the Niue Post Office; and
(c) Any casual or contract staff of the Niue Post Office;
“postal article” means any article transmissible by post, including a letter,
postcard, packet or package, or a telegram which is to be conveyed or
otherwise dealt with in the manner of a posted letter;
“Postmaster” means the person for the time being carrying out the duties
of the office in the public service having the designation Postmaster.
320 Niue Laws 2006 Vol 1

21 Control on carriage of postal articles

(1) Subject to subsection (2), a person commits an offence if he carries or
conveys or causes to be carried or conveyed a postal article for reward.
(2) Subsection (1) does not apply –
(a) To the Niue Post Office; or
(b) To a person acting under an agreement with the Niue Government
or the Niue Post Office for the carriage of postal articles within Niue
or between Niue or elsewhere.

22 Control of creation of postage stamps

(1) Subject to subsection (2), a person is guilty of an offence if he creates a
Niue postage stamp.
(2) Subsection (1) does not apply in relation to –
(a) The Niue Post Office; or
(b) A person acting with and under the authorisation of the Cabinet.

23 Stealing postal articles

A person is guilty of an offence if he steals a postal article in the possession
of the Niue Post Office.

24 Delay and interference with postal articles

(1) A person is guilty of an offence if he unlawfully opens a postal article
in the possession of the Niue Post Office.
(2) An officer, employee or person acting on behalf of the Niue Post Office
is guilty of an offence if, contrary to his duty, he –
(a) Opens or procures or suffers to be opened a postal article in the
possession of the Niue Post Office; or
(b) Wilfully delays or detains a postal article in the possession of the
Niue Post office or procures or suffers such a postal article to be
delayed or detained.
(3) A person who receives from the Niue Post Office a postal article not
intended for him is guilty of an offence if he wilfully opens, keeps, detains or
destroys the postal article.

25 Divulging contents of postal articles

(1) Subject to subsection (2), an officer, employee or person acting on behalf
of the Niue Post Office is guilty of an offence if he divulges to another person
information from, or as to the contents of, a postal article that is or was in the
possession of the Niue Post Office and that came to his knowledge in the course of
his duty.
(2) Subsection (1) does not apply in respect of information an officer,
employee or person is lawfully entitled or obliged to divulge.

26 Prohibited material

(1) A person is guilty of an offence if he posts a postal article knowing it to
contain a prohibited material.
(2) For the purpose of subsection (1) “prohibited material” means –
(a) Explosive, dangerous or destructive substances or fluids;
(b) Noxious animals and other things;
(c) Indecent or obscene writings, pictures or articles;
(d) Sharp articles, fluids or other injurious thing when not properly
packed.

Communications Act 1989

321

27 Penalties

A person convicted of an offence under this Part is liable on conviction –
(a) In the case of an offence under section 22 to a fine not exceeding 10
penalty units or to imprisonment for a term not exceeding 12 months
or to both such fine and imprisonment;
(b) In the case of an offence under sections 21, 23, 24 of 25 to a fine not
exceeding 2 penalty units or to imprisonment for a term not
exceeding 6 months or to both such fine and imprisonment; and
(c) In the case of an offence under section 26 to a fine not exceeding 2
penalty units.

28 Lawful opening of postal articles

(1) The Postmaster may, when authorised to do so by the Cabinet, detain
and open a postal article in the possession of the Niue Post Office which he
reasonably believes to contain prohibited material as defined in section 26 (2).
(2) The Postmaster shall not open a postal article under subsection (1) unless
he has given the sender and intended recipient of the article notice of his intention
to open the article and a reasonable opportunity to be present when he does so.
(3) Subsection (2) does not apply in relation to as sender or intended
recipient of a postal article who is not in Niue.
(4) If a postal article opened under this section is found to contain
prohibited material the Postmaster may destroy the article or direct that it be
forfeited to the Government, or direct that the article be returned to its sender.
(5) A person is not entitled to compensation in respect of any damage
suffered by him as the result of the opening of a postal article under this section.

29 Insufficient postage

(1) The Niue Post Office may refuse to carry a postal article in respect of
which insufficient postage has been paid.
(2) The Niue Post Office may refuse to deliver a postal article in respect of
which insufficient postage has been paid except upon payment of any prescribed
surcharge.

30 Regulations

(1) The Cabinet may make regulations for carrying out this Part and
without in any way limiting the generality of the foregoing such regulations may
provide –
(a) For the prescription of fees for the carriage of postal articles; and
(b) Penalties, not exceeding 1 penalty unit, for any breach of the
regulations.
(2) Regulations made for the purposes specified in subsection (1) may be
made by reference to regulations either as in force on a specified date or as in force
in New Zealand and either with or without amendments of those regulations.

30A Interpretation

In this Part –
PART 3
ELECTRONIC ADDRESSING
“NITC” means the Niue Information Technology Committee; “ccTLD” means country code Top Level Domain;
“.nu” means the ccTLD two letter code designated and applying to Niue;
322 Niue Laws 2006 Vol 1
“electronic addressing” means the use of any scheme for organising, distributing or assigning any type of symbolic reference, name, address, code which is pertinent to the transfer of information within and between information systems. Including but not exclusive to internet addressing schemes including those referred to by the ISO 3166;
“ISO 3166” means Standard 3166 of the International Organisation for
Standardisation.

30B Objectives and obligations

(1) In the administration of this Part, Cabinet shall have regard to the
objectives of –
(a) Facilitating the development of Information Technology and
electronic addressing both within Niue, between Niue and
elsewhere;
(b) The recognition that the ccTLD .nu is a National resource for which
the prime authority is the Government of Niue;
(c) Ensuring that effective means exist to control and supervise the
information transmitted or made available by any appointed
Manager of the Niue ccTLD.nu;
(d) Ensure that the ccTLD .nu is managed consistent with the interests
and matters of public importance of the Niuean community and
consistent with the public policy objectives of the Government.
(2) In the administration of this Part the Cabinet shall, so far as practicable,
act under any applicable standards, rules and regulations set by international
agreements binding upon Niue.

30C Niue Information Technology Committee

(1) There is established by this Act the NITC consisting of not less than 3
members nor more than 6 members appointed by the Cabinet.
(2) The NITC shall be the only designated Registry Manager of the Niue
ccTLD .nu.
(3) The NITC shall –
(a) Advise Cabinet on all matters related to and associated with
Information Technology and the management of the ccTLD .nu;
(b) Be responsible for establishing and monitoring any and all
contractual relationships entered into relating to the management
of the ccTLD .nu;
(c) When and where appropriate appoint technical and administrative
advisors.

30D Appointed Manager/s of electronic addressing

(1) Cabinet on the advice of the NITC determine for the purposes of this
Part, a specified person or association as an appointed manager of electronic
addressing in relation to a specified kind of listed carriage services utilizing the
ccTLD .nu.
(2) The appointment has effect accordingly.
(3) Cabinet must not make a re-appointment under subsection (1) in
relation to a particular person or association unless –
(a) The NITC recommends Cabinet to do so;
(b) The NITC is of the opinion that the person or association is
managing electronic addressing in accordance with the interests,
principles and standards of the Niuean community and the public
policy of the Government.

Communications Act 1989

323
(4) The Cabinet may give written directions to the NITC in relation to its advisory role.

30E Cabinet may give directions to the Appointed Manager of electronic addressing

(1) The Cabinet may, by written notice given to an Appointed Manager of electronic addressing in relation to a particular kind of carriage service, directing manager to do, or refrain from doing, a specified act or thing relating to electronic addressing in connection with that kind of carriage service utilising the ccTLD
.nu.
(2) The Cabinet may not give a direction under this section unless, in the opinion of the Cabinet, the issues pertaining to the electronic addressing is of public importance to the Niuean community.
(3) In determining whether the electronic addressing is of public importance the Cabinet must have regard to the extent to which the addressing is of significant social and/or economic importance to –
(a) Service providers; and
(b) End-users of carriage services.
(4) Subsection (3) does not, by implication, limit the matters to which
Cabinet may have regard.
(5) Before giving a direction under this section, the Cabinet must consult
the NITC.
(6) A person must comply with a direction under this section.
(7) A person or association who intentionally or recklessly contravenes
subsection (6) is guilty of an offence punishable on conviction by a fine not
exceeding US 5,000,000.

30F Delegation of powers

Cabinet may delegate all or part of its powers vested under this Act to the
NITC.

21-22 [Spent]

PART 4
REPEAL AND SAVINGS

324 Niue Laws 2006 Vall

325

COMPANIES ACT 2006

1 Short title

PART 1

Issue of shares

25 Issue of initial shares

26 Issue of other shares

27 Time of issue of shares

2 [Spent]

PRELIMINARY PROVISIONS

Distributions – general

3 Interpretation

4 Overview

5 Act binds the Government

28 Distributions prohibited unless solvency test satisfied

29 Recovery of improper distributions

PART 2

INCORPORATING NEW COMPANIES

Subpart 1 – Incorporation

30 Dividends

Dividends

6 Application for incorporation

7 Certificate of incorporation

8 Effect of incorporation

9 Registration as private company or

public company

Subpart 2 – Names

10 Name of company

11 Change of name

12 Direction to change name

13 Use of company name

Subpart 3 – Company rules

14 Adoption and alteration of rules

15 Model rules

16 Contents and effect of rules

Subpart 4 – Registered office and postal address

17 Registered office and postal address

18 Change of registered office and postal

address

19 Requirement to change registered office

or postal address

PART 3 SHARES General

20 Legal nature of shares

21 No nominal value

22 Minimum number of shares

24 Shares must not impose liabilities on

holder

Acquisition of own shares

31 Company may acquire its own shares

32 Cancellation of shares acquired by

company

33 Enforcement of contract to repurchase

shares

Redeemable shares

34 Redeemable shares

35 Redemption of redeemable shares

Assistance by company in purchase of its own shares

36 Financial assistance

Cross-holdings

37 Cross-holdings

Transfer of shares

38 Transfer of shares

39 Transfer of shares by operation of law

Share register

40 Company to maintain share register

41 Share register as evidence of legal title

42 Power of Court to rectify share register

43 Trusts not to be entered on register

44 Registration of personal representative

or assignee of bankrupt

326 Niue Laws 2006 Vol 1

Share certificates

45 Share certificates

PART 4

SHAREHOLDERS

Subpart 1 – General

46 Every company must have at least 1

shareholder

47 Liability of shareholders

48 Decisions that must be made by

shareholders

49 Decisions that may be made by

shareholders

50 Shareholder approval of major transactions

51 Unanimous shareholder approval

52 Shareholder written resolutions

53 Shareholder meetings

Subpart 2 – Alteration of shareholder rights

54 Alteration of shareholder rights

55 Repurchase of dissenter ’s shares

Subpart 3 – Disclosure to shareholders

56 Annual report to shareholders

57 Inspection of company records by

shareholders

58 Request for information held by company

59 Company must provide requested

information

60 Reasons for refusing information

61 Shareholder may withdraw request

62 Court may order company to provide

requested information

63 Investigation at request of shareholder

PART 5

DIRECTORS

Subpart 1 – Powers and duties

Powers

64 Management of company

Duties

65 Fundamental duties of directors

66 Duty of directors to comply with Act

67 Duty of directors to comply with rules

68 Interest of director in company transactions

69 Use and disclosure of company

information

70 Standard of care of directors

71 Obligations of directors in connection with

insolvency

72 Effect of unanimous shareholder approval

on certain duties of directors

73 Persons deemed to be directors for liability

purposes

Companies Act 2006

Personal actions by shareholderss Subpart 4 – Accounting and audit

327

99 Personal actions by shareholders against company

100 Personal actions by shareholders against directors

101 Representative actions

Prejudiced shareholders

102 Prejudiced shareholders

103 Certain conduct deemed prejudicial

104 Alteration to rules by Court

Certain applications

105 Effect of arbitration clause in rules

106 Application for relief by Registrar

PART 7

ADMINISTRATION OF COMPANIES

Subpart 1 – Dealings with third parties

Binding company

107 Authority to bind company

108 Attorneys

109 Validity of dealings with third parties

110 Assumptions that may be made by third

parties

111 Transactions in which directors are

interested

112 Transactions entered into by directors in

breach of certain duties

113 Effect on third parties

Pre-incorporation contracts

114 Pre-incorporation contracts may be ratified

115 Warranties implied in pre-incorporation

contracts

116 Failure to ratify

Subpart 2 – Company records

117 Company records

118 Form of records

119 Alternative locations of records

120 Inspection of records by directors

121 Inspection of records by shareholders

122 Inspection of records by public

123 Manner of inspection

129 Accounting records to be kept

130 Financial statements to be prepared

131 Application

132 Appointment of auditor

133 When auditor ceases to hold office

134 Registrar may appoint auditor on request

of shareholder

135 Qualifications of auditor

136 Statement by auditor in relation to

resignation or removal

137 Auditor to avoid conflict of interest

138 Auditor ’s report

139 Access to information

140 Auditor ’s attendance at shareholders’

meeting

Subpart 5 – Company charges

141 Charges may be registered

PART 8

AMALGAMATIONS, ETC

Subpart 1 – Amalgamations

142 Amalgamations

143 Notice of proposed amalgamation

144 Registration of amalgamation proposal

145 Certificate of amalgamation

146 Effect of certificate of amalgamation

147 Registers

148 Powers of Court in relation to

amalgamations

Subpart 2 – Approval of amalgamations, etc, by

Court

149 Interpretation

150 Approval of amalgamations, etc

151 When Court may approve amalgamations,

etc

152 Initial Court orders

153 Court may make additional orders

154 Copy of orders to be delivered to Registrar

PART 9

INSOLVENT COMPANIES

Subpart 1 – Administrations

Purpose

Subpart 3 – Documents to be sent to

124 Annual returns

125 Registrar may send annual return form to

company

126 Other documents to be sent to Registrar

127 Annual report to shareholders

128 Other documents to be sent to shareholders

156 Purpose

Beginning of Administration

157 When administration begins

Restrictions on Appointment of Administrator

158 Restrictions on appointment of

administrator

328 Niue Laws 2006 Vol 1

How administrator may be appointed

159 Who may appoint administrator

160 Directors may appoint administrator

161 Liquidator may appoint administrator

162 Secured creditor may appoint

administrator

163 Appointment of administrator not to be

revoked

164 Court may remove administrator

Notices

165 Notices given by administrator

166 Notice given by secured creditor

167 Requirements for notices given under

sections 165 or 166

168 Notice of administration

Investigation of company’s affairs

169 Administrator to investigate company’s

affairs

170 Directors to deliver documents to

administrator

171 Directors to give administrator statement

of company’s affairs

172 Directors must give administrator other

information

173 Offence not to comply with sections 170 to

172

Administrator’s rights to company’s documents

174 Restriction on enforcement of lien over

company’s documents

175 Delivery of company’s documents held by

secured creditor

176 Notice to deliver company’s documents to

administrator

177 Offence not to comply with sections 174 to

176

First creditors’ meeting

178 Preparation for first creditors’ meeting

179 Notice of first creditors’ meeting

180 Proceedings at first creditors’ meeting

181 Offence not to comply with sections 178 or

179

Reports by administrators

182 Reports by administrators

183 Court may direct administrator to lodge

report

Watershed meeting

184 What is watershed meeting

185 Administrator must convene watershed

meeting

186 Notice of watershed meeting

187 When watershed meeting must be held

188 What creditors may decide at watershed

meeting

End of administration

189 When administration ends

190 Normal way for administration to end

191 Other ways in which administration may

end

192 Notice of end of administration

Creditors’ resolution approving compromise

193 Effect of creditors’ resolution approving

compromise

194 Contents of compromise document

195 Application of subpart 2 to compromise

proposed by administrator

196 Notice of approval of compromise

Creditors’ resolution approving appointment of liquidator

197 Creditors’ resolution approving appointment of liquidator

198 Notice of appointment of liquidator

Protection of persons during administration

199 Protection of persons dealing with

administrator, etc

200 Validity of things done during

administration

201 General power to make orders

202 Court order protecting creditors or

shareholders

203 Court orders to protect creditors during

administration

Subpart 2 – Compromises with creditors

204 Compromise proposal

205 Notice of proposed compromise

206 Effect of compromise

207 Variation of compromise

208 Powers of Court

209 Effect of compromise in liquidation of

company

210 Costs of compromise

Subpart 3 – Liquidations

Purpose

211 Purpose

Beginning of liquidation

212 When liquidation begins

Restrictions on appointment of liquidator

213 Restrictions on appointment of liquidator

Companies Act 2006

329

How liquidator may be appointed

214 Board may appoint liquidator

215 Shareholders may appoint liquidator

216 Creditors may appoint liquidator

217 Court may appoint liquidator

218 Interim liquidator

219 Meaning of unable to pay its debts

220 Evidence and other matters

221 Statutory demand

222 Court may set aside statutory demand

223 Additional powers of Court on application

to set aside statutory demand

Notices

224 Notices given by liquidator

225 Documents to state company in liquidation

Obligations to liquidators

226 Directors, etc, to identify and deliver

company property

227 Obligations of suppliers of essential

services

Liquidators’ rights to company’s documents

228 Liquidator may require director, etc, to

deliver documents

229 Liquidator may require director, etc, to

provide information

230 Reasonable expenses may be paid

231 Examination by liquidator

232 Court may order person to comply with

section 228

233 Self-incrimination no excuse

234 Restriction on enforcement of lien over

204 Compromise proposal

235 Delivery of document held by secured

creditor

236 Documents held by receiver

Meetings

237 Notice of first creditors’ meeting

238 Timing of first creditors’ meeting

239 Purpose of first creditors’ meeting

240 Replacement liquidator

241 Effect of directors resolving company able

to pay its debts

242 Other creditors’ meetings

243 Liquidator may dispense with meetings of

creditors

244 Meetings of creditors or shareholders

245 Views of creditors and shareholders at

meetings to be considered

Reports

246 First report

247 Six-monthly reports

248 Exemption from reporting requirements

Creditors’ claims

249 Preferential claims

250 Claims of other creditors and distribution

of surplus assets

End of liquidation

251 Completion of liquidation

252 Final report and accounts

253 Liquidation surplus account

254 Termination of liquidation by Court

255 Notice of termination of liquidation

256 Effect of compromise on liquidation

PART 10

REMOVAL OF COMPANIES FROM REGISTER

257 Removal from register

258 Grounds for removal from register

259 Request for company to be removed from

register

260 Requirements to be met before company

must be removed from register

Notices

261 Notice of intention to remove company that

has ceased to carry on business

262 Contents of notice

263 Notice of intention to remove in other cases

Objections

264 Objection to removal from Niue register

265 Duties of Registrar if objection received

266 Powers of Court

Effect of removal from register

267 Property of company removed from

register

268 Disclaimer of property by Government

269 Effect of disclaimer

270 Liability of directors, shareholders, and

others to continue

271 Liquidation of company removed from

Niue register

Restoration of removed company to Niue register

272 Registrar may restore company to Niue register

273 Requirements to be met before restoring company to Niue register

274 Registrar not to restore company to Niue register if objection received

275 Court directions

276 Court may restore company to Niue

register

330 Niue Laws 2006 Vol 1

277 Restoration to register

278 Vesting of property in company on

restoration to register

PART 11

OVERSEAS COMPANIES

279 Meaning of carrying on business

280 Name must comply with section 10

281 Overseas companies to register under this

Act

282 Validity of transactions not affected

283 Application for registration

284 Registration of overseas company

285 Use of name by overseas company

286 Further information to be provided by

overseas company

287 Annual return of overseas company

288 Overseas company ceasing to carry on

business in Niue

289 Attorneys of overseas companies

290 Liquidation of assets in Niue

291 Exemption from requirements of this Part

PART 12

TRANSFER OF REGISTRATION

292 Overseas companies may be registered

293 Application for registration

294 Overseas companies must be authorised

to register

295 Overseas companies that cannot be

registered

296 Registration

297 Effect of registration

298 Companies may transfer incorporation

299 Application to transfer incorporation

300 Approval of shareholders

301 Company to give public notice

302 Companies that cannot transfer

incorporation

303 Removal from register

304 Effect of removal from register

PART 13

REGISTRAR OF COMPANIES

Subpart 1 – Registrar

Powers

311 Registrar may require information and

copies of documents

312 Registrar may amend registers

313 Registrar ’s powers of inspection

314 Registrar not to be obstructed

315 Certain Acts not affected by Registrar ’s

power of inspection

316 Disclosure of information and reports

317 Information and report to be given to

Registrar

318 Restrictions on disclosing information

319 Inspector ’s report admissible in liquidation

proceedings

Appeals

320 Appeals

321 Exercise of inspection power not affected

by appeal

322 Destruction and admissibility of

293 Application for registration

Subpart 2 – Registers kept by Registrar

Registers

323 Registers

Inspections of registers

324 Inspection of registers

325 Certified copies

326 Evidence

Registration

327 Registration of documents

328 Rejection of documents

329 When document registered

330 No presumption of validity or invalidity

PART 14

REREGISTRATION OF INTERNATIONAL BUSINESS

COMPANIES

331 Period for reregistration

332 Rules of reregistered company

333 Documents to be filed

334 Effect of reregistration

335 Failure to reregister

305 Registrar

Office

Miscellaneous

PART 15

306 Deputy Registrars

307 Transitional

Notices by Registrar

308 Notices: general

309 Notices to individuals

310 Admissibility of notices given by

Registrar

Subpart 1 – Offences

336 Proceedings for offences

337 False statements on documents

338 Fraudulent use or destruction of company

perty

339 Falsification of records

Companies Act 2006

331

340 Carrying on business fraudulently

Subpart 2 – Privileged communications and service of documents

341 Privileged communications

342 Service of documents on companies in legal

proceedings

343 Service of other documents on companies

344 Service of documents on overseas

companies in legal proceedings

345 Service of other documents on overseas

companies

346 Service of documents on shareholders and

creditors

347 Additional provisions relating to service

348 Regulations

13 Selling shareholder to give written notice to company

14 Company to give written notice to shareholders

15 Written notice is offer by selling shareholder

16 Notice agreeing to purchase shares given within specified time

17 Notice agreeing to purchase shares not given within specified time

18 No shareholder wishes to purchase selling shareholder ’s shares

19 Selling shareholder not obliged to sell some shares

20 Directors may require evidence of terms

Transfer of shares

Subpart 4 – Repeals and	21	Transfer of shares
transitional provisions	22	Share certificates
349 International business companies 350 Repeals and revocations		Meetings of shareholders
	23	Meetings of shareholders
SCHEDULE 1	24	Notice of meetings
	25	Methods of holding meetings
	26	Quorum
	27	Chairperson
	28	Voting
	29	Votes of joint shareholders
	30	Proxies
	31	Corporations may act by representatives
	32	Minutes

Miscellaneous

33 Annual meetings and special meetings of

shareholders

34 Written resolutions of shareholders

35 Voting in interest groups

36 Shareholders entitled to receive

distributions

37 Shareholders entitled to exercise pre­

emptive rights

38 Shareholders entitled to attend and vote at

meetings

39 Distributions to shareholders

40 Company may acquire its own shares and

provide financial assistance

41 Annual report to shareholders

42 Deemed approval by all shareholders for

certain purposes

PART 3

DIRECTORS

43 Appointment and removal of directors

44 Resignation of director

45 Notice of change in directors

332 Niue Laws 2006 Vol 1

46	Powers and duties of directors
47	Standard of care of directors
48	Obligations of directors in connection with
insolvency
49	Interested directors
50	Use and disclosure of company information
51	Indemnities and insurance for directors or
employees
52	Remuneration of directors
53	Procedure at meetings of directors
54	Chairperson
55	Notice of meeting
56	Methods of holding meetings
57	Quorum
58	Voting
59	Minutes
60	Unanimous resolution
61	Managing director and other executive
directors
62	Delegation to managing director
63	Remuneration of managing director and
director
PART 4
COMPANY RECORDS
64	Company records
65	Form of records
66	Access to records
67	Documents to be sent to Registrar
68	Documents to be sent to shareholders
PART 5
ACCOUNTS AND AUDIT
69	Accounting records to be kept
70	Financial statements to be prepared
71	Appointment of auditor
72	Auditor ’s attendance at shareholders’
meeting
PART 6
LIQUIDATION AND REMOVAL FROM REGISTER
73	Resolution to appoint liquidator
74	Distribution of surplus assets
PART 7
MISCELLANEOUS
75	Service of documents on shareholders
76	Interpretation
SCHEDULE 3
MODEL RULES FOR SINGLE
SHAREHOLDER COMPANY
PART 1
GENERAL PROVISIONS
1	Name of company

Companies Act 2006

333

PART 6
LIQUIDATION AND REMOVAL FROM REGISTER
40	Resolution to appoint liquidator
41	Distribution of surplus assets
PART 7
MISCELLANEOUS
42	Service of documents on shareholder
43	Interpretation
SCHEDULE 4
MODEL RULES FOR PUBLIC COMPANIES
PART 1
GENERAL PROVISIONS
1	Name of company
2	Public company
3	Rules
PART 2
SHARES AND SHAREHOLDERS
General provisions
4	Number of shares
5	Rights attaching to shares
6	Initial issue of shares
7	Process for issuing shares
8	Transferability of shares
Share register
9	Company to keep share register
10	Form and location of share register
11	Status of registered shareholders
Transfer of shares and share certificates
12	Transfer of shares
13	Share certificates
Meetings of shareholders
14	Meetings of shareholders
15	Notice of meetings
16	Methods of holding meetings
17	Quorum
18	Chairperson
19	Voting
20	Votes of joint shareholders
21	Proxies
22	Corporations may act by representatives
23	Postal votes
24	Duty of person authorised to receive and
count postal votes
25	Duty of chairperson concerning postal
votes
26	Minutes
Miscellaneous
27	Annual meetings and special meetings of
shareholders

334 Niue Laws 2006 Vol 1

4	Short form amalgamation
SCHEDULE 7
COMPANY CHARGES
Preliminary provisions
1	Meaning of registrable charge
2	Charges that are not registrable charges
apply
3	Constructive	notice	of	registered
documents

Rectification of register and extension of time

4 Court orders

5 Grounds for Court orders

Registration

6 Registrable documents

7 Who may apply for registration

8 Time for submitting registrable documents

9 What must accompany copy of registrable

document

Rejection of non-complying document

10 Registrar may reject non-complying

document

11 Consequences of rejecting non-complying

document

Registration of document

12 When document is registered

13 Certificate of registration

14 No presumption of validity

Satisfaction of company charge, etc

15 Entries of satisfaction and release of

property from registered charge of price

for shares

16 Prescribed time for submitting notices

17 Matters on which notice may be deferred

18 Registrar must enter memorandum of

satisfaction in register

19 Court may order entry of memorandum in

register

SCHEDULE 8

POWERS, FUNCTIONS, AND LIABILITIES

OF ADMINISTRATORS

PART 1

PRELIMINARY PROVISIONS

1 Administrator is company’s agent

2 Administrator has qualified privilege

3 Administrator may seek directions

4 Exercise of powers, etc, by 2 or more

administrators

Companies Act 2006

335

5 Exercise of powers, etc, by 2 or more administrators under compromise

PART 2

POWERS AND FUNCTIONS OF ADMINISTRATORS

6 General powers of administrator

7 Limitations on administrator ’s powers

8 Dealing with property subject to floating

charge that has become fixed charge

9 When administrator may dispose of

encumbered property

PART 3

LIABILITY OF ADMINISTRATORS

General liability

10 Administrator not liable in damages for

refusing consent

11 Liability of administrator for company’s

debts

12 Liability of administrator for debts incurred

by administrator

Liability for rent, etc

13 Application of clauses 14 to 17

14 Liability of administrator for rent

Indemnity

15 Notice stating company does not propose

to exercise rights over property

16 Effect of notice

17 When notice ceases to have effect

Indemnity

18 Administrator is entitled to indemnity

19 Administrator ’s indemnity has priority

over unsecured debts, etc

20 Exception for debts secured by floating

charge

21 Extent of administrator ’s indemnity when

floating charge has priority

SCHEDULE 9

OFFICE OF ADMINISTRATOR

Restrictions on appointment of administrators

1 Who may not be appointed or act as

administrator

2 Validity of acts of administrators

3 Person must consent to being appointed

administrator

4 Court may declare whether administrator

validly appointed

Vacancy in office of administrator

5 Vacancy in office of administrator

6 Replacement administrator to hold

creditors’ meeting

7 Court order if vacancy in office of administrator

8 Vacancy in office of administrator under compromise

Administrator’s remuneration

9 Remuneration of administrator

SCHEDULE 10

EFFECT OF ADMINISTRATION

PART 1

PRELIMINARY PROVISION

1 Time for doing act does not run while act

prevented by administration

PART 2

Effect on company’s officers

and shareholders, etc

2 Functions and powers of company officers

suspended

3 Effect of administration on company’s

shareholders

4 Restrictions on putting company into

propose to exercise rights over property

PART 3

EFFECT ON PROCEEDINGS, ETC

5 Stay of civil proceedings

6 Suspension of enforcement process

7 Duties of court officer in relation to

property of company

8 Court officer must deliver company

property, etc, to administrator

9 Good faith buyer under execution process

gets good title

PART 4

RESTRICTIONS ON DEALING WITH

COMPANY’S PROPERTY

General provisions

10 Only administrator may deal with

company’s property

11 Offence for company officer to enter into

void transaction or dealing

12 Order for compensation

13 Owner or lessor not to recover

propertyused by company

14 Exception: perishable property

15 Exception: recovery of property before

administration

16 Court may limit powers of receiver, etc, in

relation to property used by company

17 Giving notice relating to property used by

company

336 Niue Laws 2006 Vol 1

Secured creditors Voting

Companies Act 2006

337

6	No enforcement of rights over company’s
property
7	Restriction on rights of creditors to
complete execution, distraint, or
attachment
8	Duties of court officer in execution process
PART 4
EFFECT ON CERTAIN CONDUCT
9	Certain conduct prohibited
SCHEDULE 16
LIQUIDATION COMMITTEES
PART 1
LIQUIDATION COMMITTEE
1	Appointment of members
2	Membership
3	Powers
4	Application of company’s rules
5	Inability to act
6	Restriction on purchase of company’s
assets by liquidation committee
7	Members not entitled to benefit from
dealings with company’s assets
8	No remuneration
9	Disallowance or recovery of benefits or
payments
PART 2
PROCEEDINGS AT MEETINGS
10	Frequency of meetings
11	Majorities
12	Resignation
13	Office becoming vacant
14	Removal of member
15	Vacancy filled
16	Committee with vacancy may act
SCHEDULE 17
VOIDABLE TRANSACTIONS AND CHARGES
Voidable transactions
1	Definitions
2	Voidable transactions
VOIDABLE CHARGES
3	Definitions
4	Voidable charges
5	Exception: certain kinds of substituted
charges
6	Exception: charge that secures unpaid
purchase price
7	Payments received by secured party
Procedure for setting aside voidable
transactions and charges

commencement of liquidation 8 Procedure

338 Niue Laws 2006 Vol 1

9 Other orders

10 Additional provisions relating to setting

aside transactions and charges

PART 2

RECOVERY IN OTHER CASES

Transactions at undervalue

11 Definitions

12 Transactions at undervalue

Transactions for inadequate or excessive consideration with directors, etc

13 Definitions

14 Transactions for excessive consideration

with directors, etc

15 Transactions for inadequate consideration

with directors, etc

Court may set aside certain securities and charges

16 Court may set aside certain securities and charges

17 Certain securities exempted

18 Other orders, etc

Contribution for not keeping proper accounting records

19 Contribution for not keeping proper accounting records

20 When Court may not make declaration under clause 19

Court may require persons to repay money or

PART 2

SECURED CLAIMS

7 Powers of secured creditors

8 Realising secured property

9 Valuation of security

10 Liquidator ’s duties on receipt of claim by

secured creditor

11 Liquidator may redeem security

12 Liquidator may require secured creditor to

exercise powers

13 Offence to make false or misleading claim

PART 3

PREFERENTIAL CLAIMS

14 Definitions

15 First priority claims

16 Second priority claims

17 Third priority claims

18 Ranking of claims in clauses 16 and 17

19 When landlord or other person has

distrained on goods, etc

PART 4

MUTUAL CREDIT AND SET-OFF

20 Definitions

21 Mutual credit and set-off

22 Proof for person who is not related

23 Proof for person who is related person

24 Exceptions for amounts paid or payable by

shareholder

PART 5

MISCELLANEOUS

25 Interest on claims

26 Trade discounts

27 Periodical payments

28 Employees’ claims

29 Notice to creditors to claim

30 Failure to claim by day fixed for claims

31 Failure to establish priority by day fixed for

claims

32 Dividends in respect of rejected claims

33 Costs of proceedings relating to

SCHEDULE 19

LIQUIDATION OF ASSETS OF OVERSEAS COMPANIES

1 Modified application of subpart 3 of Part 9

2 Rights of action not affected

SCHEDULE 20

ENACTMENTS REPEALED

SCHEDULE 21

REGULATIONS REVOKED

339

COMPANIES ACT 2006

2006/275 – 1 August 2006

An Act to provide for the formation and governance of companies in Niue

set out in Schedule 1.

4 Overview

In this Act –
(a) This Part deals with preliminary matters;
(b) Part 2 deals with incorporating new companies. It also contains
provisions concerning changes to company names, company rules,
and changes to the registered office and postal address of companies.
Schedules 2 to 4 contain model rules:
(c) Part 3 deals with shares;
(d) Part 4 deals with shareholders. Schedule 5 sets out the procedure
for the minority buy-out procedure;
(e) Part 5 deals with the powers, duties, and liabilities of directors;
(f) Part 6 deals with enforcement;
(g) Part 7 deals with company administration. Subpart 1 sets out
dealings with third parties–– how to bind the company. Subpart 2
relates to company records. Subpart 3 sets out the documents that
must be sent to the Registrar (for example, the annual return) and
the shareholders (for example, the annual report). Subpart 4 sets
out requirements concerning accounting records, financial
statements, and auditors;
(h) Part 8 deals with amalgamations. Further provisions are set out in
Schedule 6;
(i) Part 9 contains various procedures for insolvent companies.
Schedule 7 sets out the procedure and other matters for registering
company charges under this Act. Subpart 1 deals with
administrations. Schedules 8 to 12 supplement that subpart. Subpart
2 deals with compromises with creditors and Schedule 12
supplements that subpart. Subpart 3 deals with liquidations and
Schedules 12 to 18 supplement that subpart;
(j) Part 10 relates to the removal of companies from the Niue register;
(k) Part 11 deals with overseas companies and Schedule 19 (which
relates to the liquidation of the assets of overseas companies)
supplements that Part;
(l) Part 12 relates to the transfer of registration of overseas companies;
(m) Part 13 deals with the Registrar of Companies, the registers under
this Act, and registration requirements;
340 Niue Laws 2006 Vol 1
(n) Part 14 sets out the requirements for reregistering existing international business companies under this Act;
(o) Part 15 sets out some miscellaneous provisions, including some more offence provisions, regulation-making powers, repeals, and transitional and savings provisions. In particular, it provides that no further companies may be incorporated under the International Business Companies Act 1994, with immediate effect, and that that Act and certain related Acts are repealed with effect from 31
December 2006.

5 Act binds the Government

This Act binds the Government.
PART 2
INCORPORATING NEW COMPANIES

Subpart 1 – Incorporation

6 Application for incorporation

(1) An application for incorporation of a company must be made to the
Registrar in the prescribed form.
(2) An application for incorporation of a company must specify –
(a) The name of the company, which must comply with section 10; and
(b) Whether the company is a private company or a public company;
and
(c) Whether the rules of the company differ from the model rules set
out in Schedule 2 (in the case of a private company) or Schedule 4
(in the case of a public company); and
(d) The full name, residential address, and postal address of every
director of the proposed company; and
(e) The full name of every shareholder of the proposed company, and
the number of shares to be issued to every shareholder; and
(f) The registered office of the proposed company; and
(g) The postal address of the company, which may be the registered
office or any other postal address.
(3) An application for incorporation must be accompanied by –
(a) A consent by each person named as a director to act as a director of
the company, in the prescribed form; and
(b) A copy of the rules of the company, if they differ from the model
rules; and
(c) The prescribed fee.

7 Certificate of incorporation

As soon as the Registrar receives an application for incorporation that
complies with section 6, the Registrar must –
(a) Enter the company on the Niue register; and
(b) Issue a certificate of incorporation in respect of the company.

8 Effect of incorporation

(1) A certificate of incorporation of a company is conclusive evidence that –
(a) All the requirements of this Act as to incorporation have been
complied with; and
(b) On and from the date of incorporation stated in the certificate, the
company is incorporated under this Act.

Companies Act 2006

341
(2) A company incorporated under this Act is a legal entity in its own right separate from its shareholders, and continues in existence until it is removed from the Niue register.

9 Registration as private company or public company

(1) A company may be registered as a private company if –
(a) Its rules prohibit it from offering its securities to the public; and
(b) Its rules restrict the number of shareholders in the company to not
more than 100; and
(c) It has not more than 100 shareholders.
(2) A company that is not registered as a private company is a public
company.
(3) A public company may apply to the Registrar to be registered as a
private company if –
(a) The company meets the requirements in subsection (1); and
(b) The application has been approved by shareholders by special
resolution.
(4) If a public company applies to the Registrar under subsection (3), the
Registrar must –
(a) Amend the registration of the company accordingly; and
(b) Issue a new certificate of incorporation for the company in the
prescribed form.
(5) A private company may apply to the Registrar to be registered as a
public company, with the approval of shareholders by special resolution.
(6) A private company must apply to be registered as a public company if
it ceases to meet the requirements in subsection (1).
(7) The Registrar must register the company as a public company, and issue
a new certificate of incorporation for the company in the prescribed form if –
(a) An application is made to the Registrar in accordance with
subsections (5) or (6); or
(b) It comes to the Registrar ’s attention that a private company has
ceased to satisfy the requirements of subsection (1).

10 Name of company

Subpart 2 – Names

(1) The name of a company must end with the word “Limited”. (2) The Registrar must not register a company with a name –
(a) That is identical or almost identical to the name of another company;
or
(b) The use of which would contravene any enactment in relation to
the use of names; or
(c) That contravenes regulations made under this Act in relation to
company names; or
(d) That the Registrar considers to be offensive.
(3) If an application for incorporation of a company specifies a name that
does not meet the requirements of this section, the Registrar must incorporate the
company with a name in the form “Company number x Limited”, where “x” is a
unique number assigned to the company by the Registrar for this purpose.
342 Niue Laws 2006 Vol 1

11 Change of name

(1) An application to change the name of a company must be –
(a) In the prescribed form; and
(b) Signed by a director of the company; and
(c) Accompanied by the prescribed fee.
(2) An application to change the name of a company is not an amendment
of the rules of the company for the purposes of this Act.
(3) As soon as the Registrar receives a properly completed application
under this section that complies with subsection (1) and with the requirements in
section 10, the Registrar must –
(a) Enter the new name of the company on the Niue register; and
(b) Issue a certificate of incorporation for the company recording the
change of name of the company.
(4) A change of name of a company –
(a) Takes effect from the date specified in the certificate issued under
subsection (3); and
(b) Does not affect rights or obligations of the company, or legal
proceedings by or against the company.
(5) Legal proceedings that might have been continued or commenced
against the company under its former name may be continued or commenced
against it under its new name.

12 Direction to change name

(1) If the Registrar believes on reasonable grounds that a company has
been registered under a name that contravenes section 10 at the time of registration,
the Registrar may serve written notice on the company to change its name by a
date specified in the notice that is not less than 20 working days after the date on
which the notice is served.
(2) If the company does not change its name within the period specified in
the notice, the Registrar may enter on the Niue register a new name for the company
in the form “Company number x Limited”, where “x” is a unique number assigned
to the company by the Registrar for this purpose.
(3) If the Registrar registers a new name under subsection (2) –
(a) The Registrar must issue a certificate of incorporation for the
company recording the new name of the company; and
(b) Section 11(4) applies in relation to the registration of the new name
as if the name of the company had been changed under section 11.

13 Use of company name

(1) A company must ensure that its name is clearly stated in –
(a) Every written communication sent by, or on behalf of, the company;
and
(b) Every document issued or signed by, or on behalf of, the company
that evidences or creates a legal obligation of the company.
(2) If –
(a) A document that evidences or creates a legal obligation of a
company is issued or signed by or on behalf of the company; and
(b) The name of the company is not correctly stated in the document –
every person who issued or signed the document is liable to the same
extent as the company if the company fails to discharge the
obligation.
(3) Subsection (2) does not apply if –

Companies Act 2006

343
(a) The person who issued or signed the document proves that the person in whose favour the obligation was incurred was aware at the time the document was issued or signed that the obligation was incurred by the company; or
(b) The Court is satisfied that it would not be just and equitable for the person who issued or signed the document to be so liable.
(4) For the purposes of subsections (1) to (3) and section 107 (which relates to the manner in which a company may enter into contracts and other obligations), a company may use a generally recognised abbreviation of a word or words in its name if it is not misleading to do so.
(5) If, within the period of 12 months immediately before a company gives public notice of any matter, the name of the company was changed, the company must ensure that the notice states –
(a) That the name of the company was changed in that period; and
(b) The former name or names of the company.
(6) If a company fails to comply with subsections (1) or (5) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 10 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 10 penalty units.

Subpart 3 – Company rules

14 Adoption and alteration of rules

(1) A company may adopt rules at the time of its incorporation by –
(a) Filing those rules with its application for incorporation; or
(b) In the case of model rules set out in Schedules 2, 3, or 4, indicating
in its application for incorporation that it wishes to adopt those
model rules as its rules.
(2) Subject to any restrictions in its rules, a company may, by special
resolution, adopt new rules or alter its rules.
(3) Within 10 working days of the adoption of new rules by a company, or
the alteration of the rules of a company, as the case may be, the company must
deliver a notice in the prescribed form to the Registrar for registration.
(4) If a company fails to comply with subsection (3), every director of the
company commits an offence and is liable on conviction to a fine not exceeding 50
penalty units.

15 Model rules

(1) The model rules set out in Schedule 2 have effect as the rules of a private
company except to the extent that the company has –
(a) Adopted the model rules set out in another schedule as its rules; or
(b) Adopted rules that exclude, or modify, or are inconsistent with, the
model rules.
(2) The model rules set out in Schedule 4 have effect as the rules of a public
company except to the extent that the company has –
(a) Adopted the model rules set out in another schedule as its rules; or
(b) Adopted rules that exclude, or modify, or are inconsistent with, the
model rules.
(3) A company may resolve to adopt the model rules in Schedules 2, 3, or
4 as its rules in accordance with section 14(2).
344 Niue Laws 2006 Vol 1

16 Contents and effect of rules

(1) The rules of a company may contain –
(a) Matters contemplated by this Act for inclusion in the rules of a
company;
(b) Any other matters that the company wishes to include in its rules.
(2) Subject to subsection (3) –
(a) The rules of a company have effect and may be enforced as if they
constituted a contract –
(i) between the company and its shareholders; and
(ii) between the company and each director; and
(b) The shareholders and directors of a company have the rights,
powers, duties, and obligations set out in the rules of the company.
(3) The rules of a company are of no effect to the extent that they are
inconsistent with this Act.

Subpart 4–Registered office and postal address

17 Registered office and postal address

(1) A company must always have a registered office and postal address in
Niue.
(2) Subject to section 18 –
(a) The registered office of a company at a particular time is the place
that is described as its registered office on the Niue register at that
time; and
(b) The postal address of a company at a particular time is the place
that is described as its postal address on the Niue register at that
time.
(3) The description of the registered office of a company must describe the
location of the registered office in enough detail to enable the registered office to be readily identified for the purposes of this Act.

18 Change of registered office and postal address

(1) Subject to the company’s rules and to subsection (3), the directors of a
company may change the registered office and postal address of the company at
any time.
(2) Notice in the prescribed form of the change must be given to the
Registrar for registration.
(3) The change in the registered office or postal address, as the case may
be, takes effect on the later of –
(a) The date that is 5 working days after the notice is received by the
Registrar; or
(b) Any date specified in the notice as the date on which the change is
to be effective.

19 Requirement to change registered office or postal address

(1) Subject to this section, a company must change its registered office or
postal address if it is required to do so by the Registrar.
(2) The Registrar may require a company to change its registered office or
postal address, as the case may be, by notice in writing sent to the company at its
postal address.
(3) The notice must –
(a) State that the company is required to change its registered office or
postal address by a date stated in the notice that is not earlier than

Companies Act 2006

345
20 working days after the date of the notice; and
(b) State the reasons for requiring the change; and
(c) State that the company has the right to appeal to the Court under
this Act; and
(d) be dated and signed by the Registrar.
(4) A copy of the notice must also be sent to each director of the company.
(5) The company must change its registered office or postal address, as the
case may be –
(a) by the date stated in the notice; or
(b) If it appeals to the Court and the appeal is dismissed, within 5
working days after the decision of the Court.
(6) If a company fails to comply with this section –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 10 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 10 penalty units.

20 Legal nature of shares

PART 3
SHARES

General

A share in a company is personal property.

21 No nominal value

(1) A share must not have a nominal or par value.
(2) Nothing in subsection (1) prevents the issue by a company of a
redeemable share.

22 Minimum number of shares

Every company must have at least 1 issued share.

23 Rights and powers attached to shares

(1) Subject to the rules of the company and to the terms on which it is
issued, a share in a company confers on the holder –
(a) The right to 1 vote on a poll at a meeting of the company on any
resolution, including any resolution to –
(i) appoint or remove a director or auditor;
(ii) adopt new rules;
(iii) alter the company’s rules;
(iv) approve a major transaction;
(v) approve an amalgamation of the company;
(vi) approve reregistration of a public company as a private
company, or of a private company as a public company;
(vii) put the company into liquidation;
(viii) approve the transfer of registration of the company to another
country;
(b) The right to an equal share in dividends paid by the company;
(c) The right to an equal share in the distribution of the surplus assets
of the company in a liquidation.
(2) Subject to its rules, a company may issue different classes of shares.
(3) Without limiting subsection (2), shares in a company may –
(a) be redeemable; or
346 Niue Laws 2006 Vol 1
(b) Confer preferential rights to distributions of capital or income; or
(c) Confer special, limited, or conditional voting rights; or
(d) Not confer voting rights.

24 Shares must not impose liabilities on holder

(1) A company must not issue a share that is partly paid, or that otherwise
imposes any liability to make a payment to the company on its holder.
(2) Nothing in subsection (1) –
(a) Prevents a company from attaching conditions, limits, or restrictions
to the rights and powers attached to the share; or
(b) Prevents a company from issuing a share on credit terms that
provide for a liability to make future payments to the company on
the part of the person to whom it is first issued.

25 Issue of initial shares

A company must –

Issue of shares

(a) Immediately after the registration of the company, issue to any person named in the application for registration as a shareholder the number of shares specified in the application as being the number of shares to be issued to that person or those persons;
(b) In the case of an amalgamated company, immediately after the amalgamation is effective, issue to any person entitled to a share or shares under the amalgamation proposal, the share or shares to which that person is entitled.

26 Issue of other shares

(1) A company may issue shares –
(a) In accordance with its rules; or
(b) With the approval of all shareholders under section 51.
(2) A company must deliver to the Registrar for registration, within 10
working days of the issue of any shares, a notice in the prescribed form of the
issue of the shares by the company.
(3) If the rights attached to the shares are not set out in full in the rules, the
notice must be accompanied by a document setting out the terms of issue of the
shares.
(4) If a company fails to comply with subsection (2), every director of the company commits an offence and is liable on conviction to a fine not exceeding 50 penalty units.

27 Time of issue of shares

A share is issued when the name of the holder is entered on the share register.

Distributions – general

28 Distributions prohibited unless solvency test satisfied

A company must not make a distribution to shareholders unless there are
reasonable grounds for believing that, after that distribution is made, the company
will satisfy the solvency test.

29 Recovery of improper distributions

(1) A distribution made to a shareholder in breach of sections 28, 30, or 31
may be recovered by the company from the shareholder unless –

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(a) The shareholder received the distribution in good faith and without knowledge of the company’s breach of sections 28, 30, or 31, as the case may be; and
(b) The shareholder has altered the shareholder ’s position in reliance on the validity of the distribution; and
(c) It would be unfair to require repayment in full or at all.
(2) If a distribution has been made in breach of section 28, any person who
authorised the making of the distribution at a time when that person knew, or
ought to have known, that the distribution did not comply with section 28 is liable
to repay to the company so much of that distribution as is not reasonably
recoverable from the recipients under subsection (1).
(3) If, in an action brought under this section, the Court is satisfied that the
company could, by making a distribution of a lesser amount, have satisfied the
requirements of section 28, the Court may permit a shareholder to retain, or excuse
a person who authorised the distribution from liability in respect of, an amount
equal to the value of any distribution that could properly have been made.

30 Dividends

Dividends

(1) Subject to section 28 and to subsection (2), a company may pay a dividend to shareholders if, and only if, that dividend is authorised –
(a) By all shareholders under section 51; or
(b) If the company’s rules so provide, by the directors.
(2) A dividend authorised by the directors must comply with any
conditions or restrictions set out in the rules.
(3) Subject to its rules and to the terms of issue of any share, a company
must not pay a dividend –
(a) In respect of some, but not all, shares; or
(b) That is of a greater value per share in respect of some shares than of
others.
(4) Subsection (3) does not apply if the payment of that dividend in that
manner is approved by all shareholders under section 51.
(5) In this section, dividend means any distribution other than –
(a) A distribution by way of repurchase or redemption of shares; or
(b) A distribution of the surplus assets of the company in a liquidation.

Acquisition of own shares

31 Company may acquire its own shares

(1) A company may acquire its own shares only –
(a) In accordance with subsection (2) or section 55; and
(b) Subject to section 28.
(2) A company may acquire its own shares by agreement with a
shareholder –
(a) In accordance with its rules; or
(b) With the approval of all shareholders under section 51.
(3) A company must deliver to the Registrar for registration, within 10
working days of the acquisition of any shares, a notice in the prescribed form of
the acquisition of the shares by the company.
(4) The notice required under subsection (3) must also be sent to each
shareholder within 20 working days of the acquisition of the shares if an acquisition
of shares by a company does not result from an offer made to all shareholders
that –
348 Niue Laws 2006 Vol 1
(a) Would, if accepted, leave unaffected relative voting and distribution rights; and
(b) Affords a reasonable time for acceptance of the offer.
(5) If a company fails to comply with subsections (3) or (4), every director
of the company commits an offence and is liable on conviction to a fine not
exceeding 50 penalty units.

32 Cancellation of shares acquired by company

(1) If a company acquires its own shares, those shares are deemed to be
cancelled immediately on acquisition unless the rules of the company expressly
provide otherwise.
(2) If a company acquires its own shares and the rules provide that those
shares are not cancelled on acquisition, the rights attached to those shares may
not be exercised by or against the company at any time at which it would, apart
from this section, be entitled to –
(a) Exercise those rights; or
(b) Give directions to the holder of that share as to the manner in which
any of those rights should be exercised.
(3) For the purposes of this section, a company acquires a share at the time
at which it would, apart from this section, become entitled to –
(a) Exercise the rights attached to that share; or
(b) Give directions to the holder of that share as to the manner in which
any rights attached to that share should be exercised.

33 Enforcement of contract to repurchase shares

(1) A contract with a company providing for the acquisition by the company
of its shares is specifically enforceable against the company except to the extent
that performance would breach section 28.
(2) The company has the burden of proving that performance of the contract
would breach section 28.
(3) Until the company has fully performed a contract referred to in
subsection (1), the other party to the contract retains the status of a claimant entitled
to be paid as soon as the company is lawfully able to do so or, before the removal
of the company from the Niue register, to be ranked subordinate to the rights of
creditors but in priority to the other shareholders.

34 Redeemable shares

Redeemable shares

(1) For the purposes of this Act, a share is redeemable if the rules or the terms of issue of the share make provision for the redemption of that share by the company –
(a) At the option of the company; or
(b) At the option of the holder of the share; or
(c) On a date specified in the rules or the terms of issue of the share –
for a consideration that is –
(d) Specified; or
(e) To be calculated by reference to a formula; or
(f) Required to be fixed by a suitably qualified person who is not
associated with, or interested in, the company.
(2) To avoid doubt, the auditor of a company is not associated with, or
interested in, the company for the purposes of subsection (1)(f).

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35 Redemption of redeemable shares

(1) A company must redeem a redeemable share in accordance with its
rules and the terms of issue of the share, except to the extent that the company
would, by doing so, breach section 28.
(2) The company has the burden of proving that redemption of a share
would breach section 28.
(3) Until the company has fully redeemed a share in accordance with
subsection (1), the former holder of the share retains the status of a claimant entitled
to be paid as soon as the company is lawfully able to do so or, before the removal
of the company from the Niue register, to be ranked subordinate to the rights of
creditors but in priority to the other shareholders.
(4) Redeemable shares are deemed to be cancelled immediately on the date
on which the rules or their terms of issue provide for them to be redeemed, unless
the rules or terms of issue provide otherwise.
(5) A company must deliver to the Registrar for registration, within 10
working days of the redemption of any shares, a notice in the prescribed form of
the redemption of the shares by the company.
(6) If a company fails to comply with subsection (5), every director of the
company commits an offence and is liable on conviction to a fine not exceeding 10
penalty units.

Assistance by company in purchase of its own shares

36 Financial assistance

A company may give financial assistance to a person for the purpose of, or
in connection with, the purchase of a share issued or to be issued by the company,
whether directly or indirectly, only if –
(a) The company gives the assistance in the normal course of its
business and on usual terms and conditions; or
(b) The giving of the assistance is authorised by the directors or by all
shareholders under section 51, and –
(i) there are reasonable grounds for believing that, after providing
the assistance, the company will satisfy the solvency test; and
(ii) the company complies with any conditions or restrictions in
its rules.

37 Cross-holdings

Cross-holdings

(1) Subject to this section, a subsidiary must not hold shares in its holding company.
(2) An issue of shares by a holding company to its subsidiary is void and of no effect.
(3) A transfer of shares in a holding company to its subsidiary is void and of no effect.
(4) If a company that holds shares in another company becomes a
subsidiary of that other company, the subsidiary –
(a) May, despite subsection (1), continue to hold those shares; but
(b) May not exercise any voting rights or other rights attaching to those
shares, other than rights to receive distributions and to receive
notices and other information from the company.
(5) Nothing in this section prevents a subsidiary holding shares in its
holding company in its capacity as a personal representative or a trustee unless
350 Niue Laws 2006 Vol 1
the holding company or another subsidiary has a beneficial interest under the trust other than an interest that arises by way of security for the purposes of a transaction made in the ordinary course of the business of lending money.
(6) This section applies to a nominee for a subsidiary in the same way as it applies to the subsidiary.

38 Transfer of shares

Transfer of shares

(1) Subject to any limitation or restriction on the transfer of shares in the rules, a share in a company is transferable.
(2) A share is transferred by entry in the share register in accordance with section 40.
(3) The personal representative of a deceased shareholder may transfer a share even though the personal representative is not a shareholder at the time of transfer.

39 Transfer of shares by operation of law

(1) Subject to subsection (2), shares in a company may pass by operation
of law despite anything in the rules of the company.
(2) The rules of a company may provide that, if a share passes by operation
of law, the voting rights attached to that share cease to be exercisable until it is
transferred in accordance with the rules of the company.

Share register

40 Company to maintain share register

(1) A company must maintain a share register that records the shares issued
by the company and states –
(a) The names, alphabetically arranged, and the last known address of
each person who is, or has within the last 7 years been, a shareholder;
and
(b) The number of shares of each class held by each shareholder within
the last 7 years; and
(c) The date of any issue of shares to, repurchase or redemption of
shares from, or transfer of shares by or to, each shareholder within
the last 7 years, and in relation to the transfer, the name of the person
to or from whom the shares were transferred.
(2) The share register must be kept –
(a) In a form permitted under section 118; and
(b) At the registered office of the company, or any other place or places
permitted under section 119.
(3) The share register of the company may be maintained by an agent on
behalf of the company.
(4) If a company fails to comply with the requirements of this section –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.

41 Share register as evidence of legal title

(1) Subject to section 42, the entry of the name of a person in the share
register as holder of a share is evidence that legal title to the share vests in that
person.
(2) A company must treat the registered holder of a share as the only person

Companies Act 2006

entitled to –
(a) Exercise the right to vote attaching to the share; and
(b) Receive notices; and
(c) Receive a distribution in respect of the share; and
(d) Exercise the other rights and powers attaching to the share.
351

42 Power of Court to rectify share register

(1) If the name of a person is wrongly entered in, or omitted from, the
share register of a company, the person aggrieved, or a shareholder, may apply to
the Court for rectification of the share register, or compensation for loss sustained,
or both.
(2) The Court may, on an application under this section, order –
(a) Rectification of the register;
(b) Payment of compensation by the company or a director of the
company for any loss sustained;
(c) Rectification and payment of compensation.
(3) The Court may, on an application under this section, decide –
(a) A question relating to the entitlement of a person who is a party to
the application to have his or her name entered in, or omitted from,
the register; and
(b) A question necessary or expedient to be decided for rectification of
the register.

43 Trusts not to be entered on register

No notice of a trust, whether express, implied, or constructive, may be
entered on the share register.

44 Registration of personal representative or assignee of bankrupt

(1) Despite section 43, but subject to section 39, a personal representative
of a deceased person whose name is registered in a share register of a company as
the holder of a share in that company is entitled to be registered as the holder of
that share as personal representative.
(2) Despite section 43, but subject to section 39(2), the assignee of the
property of an insolvent natural person registered in a share register of a company
as the holder of a share in that company is entitled to be registered as the holder of
that share as the assignee of the property of that person.
(3) The registration of a trustee, executor, administrator, or of an assignee
under this section does not constitute notice of a trust.
(4) For the purposes of this section, assignee means a person in whom the
property of an insolvent natural person is vested pursuant to insolvency legislation
applicable to that natural person.

45 Share certificates

Share certificates

(1) A shareholder may apply to the company for a share certificate relating to some or all of the shareholder ’s shares in the company.
(2) On receipt of an application for a share certificate under subsection (1),
the company must, within 20 working days after receiving the application –
(a) If the application relates to some but not all of the shares, separate
the shares shown in the register as owned by the applicant into
separate parcels; 1 parcel being the shares to which the share
certificate relates, and the other parcel being any remaining shares;
and
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(b) In all cases send to the shareholder a certificate stating – (i) The name of the company; and
(ii) the class of shares held by the shareholder; and
(iii) the number of shares held by the shareholder to which the
certificate relates.
(3) If a share certificate has been issued, a transfer of the shares to which it
relates must not be registered by the company unless the form of transfer required
by that section is accompanied by –
(a) The share certificate relating to the share; or
(b) Evidence as to its loss or destruction and, if required, an indemnity
in a form required by the board.
(4) If shares to which a share certificate relates are to be transferred, and
the share certificate is sent to the company to enable the registration of the transfer,
the share certificate must be cancelled and no further share certificate issued except
at the request of the transferee.
(5) If a company fails to comply with subsection (2) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 10 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 10 penalty units.
Part 4
SHAREHOLDERS

Subpart 1 – General

46 Every company must have at least 1 shareholder

A company must, at all times, have at least 1 shareholder.

47 Liability of shareholders

(1) A shareholder is not liable for an obligation of the company by reason
only of being a shareholder.
(2) The liability of a shareholder to the company is limited to –
(a) Any liability to repay a distribution that is recoverable under section
29;
(b) Any liability under section 73.
(3) Nothing in this section affects the liability of a shareholder to a company
under a contract (including a contract for the issue of shares) or liability incurred
in any other capacity (including as a director of the company) or liability for any
tort, or breach of a fiduciary duty, or other actionable wrong committed by the
shareholder.

48 Decisions that must be made by shareholders

The following powers must be exercised by the shareholders of a company
by special resolution, and may not be delegated under the rules or otherwise –
(a) The power to approve reregistration of a public company as a private
company under section 9(3), or of a private company as a public company under
section 9(5);
(b) The power to adopt new rules, or to amend the company’s rules,
under section 14(2);
(c) The power to approve an amalgamation of the company under
section 144 and Schedule 6;
(d) The power to approve a major transaction under section 50(1)(b)(i);
(e) The power to put the company into liquidation;

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353
(f) The power to approve an extension of time for the completion of a private company’s financial statements under section 130(3);
(g) The power to approve the transfer of registration of the company to another country under section 298.

49 Decisions that may be made by shareholders

(1) Unless the rules provide otherwise, the following powers are exercised
by shareholders –
(a) The power to appoint or remove a director;
(b) The power to appoint an auditor.
(2) The rules may provide for other matters to be decided by shareholders,
or approved by shareholders.
(3) Unless the rules provide otherwise, the powers referred to in subsection
(1), and any other powers conferred on shareholders under subsection (2), may be
exercised –
(a) by ordinary resolution; or
(b) In accordance with section 51.

50 Shareholder approval of major transactions

(1) A company must not enter into a major transaction unless –
(a) The rules expressly authorise it to enter into that transaction, or
transactions of that class; or
(b) Entry into the transaction is approved by shareholders –
(i) by special resolution; or
(ii) in accordance with section 51; or
(c) The transaction is conditional on approval by shareholders in
accordance with paragraph (b).
(2) In this section – assets includes property of any kind, whether tangible
or intangible major transaction, in relation to a company, means –
(a) The acquisition of, or an agreement to acquire, whether contingent
or not, assets the value of which is more than half the value of the
company’s assets before the acquisition; or
(b) The disposition of, or an agreement to dispose of, whether
contingent or not, assets of the company the value of which is more
than half the value of the company’s assets before the disposition;
or
(c) A transaction that has, or is likely to have, the effect of the company
acquiring rights or interests or incurring obligations or liabilities
the value of which is more than half the value of the company’s
assets before the transaction.
(3) Nothing in paragraph (c) of the definition of major transaction in
subsection (2) applies by reason only of the company giving, or entering into an
agreement to give, a charge secured over assets of the company the value of which
is more than half the value of the company’s assets for the purpose of securing the
repayment of money or the performance of an obligation.
(4) Nothing in this section applies to a major transaction entered into by a
receiver appointed under a document creating a charge over property of a company.
354 Niue Laws 2006 Vol 1

51 Unanimous shareholder approval

(1) If all the shareholders of a company consent to or concur in any action
taken by the company or a director, the taking of that action is deemed to be validly
authorised by the company despite –
(a) Anything to the contrary in its rules; or
(b) The absence of express authority to take that action in its rules.
(2) The matters that may be authorised in accordance with subsection (1)
include, but are not limited to, the following –
(a) The issue of shares;
(b) The making of a distribution;
(c) The repurchase of shares;
(d) Giving financial assistance for the purpose of, or in connection with,
the purchase of shares in the company;
(e) The payment of remuneration to a director, or the making of a loan
to a director, or the conferral of any other benefit on a director;
(f) The making of a contract between the company and a director, or
of any other contract in which a director has an interest;
(g) Entry into a major transaction;
(h) The ratification after the event of any action that could have been
authorised under this section.
(3) A company must not authorise a distribution under this section unless
there are reasonable grounds for believing that, after that distribution is made,
the company will satisfy the solvency test.
(4) Section 29 applies to a distribution made in breach of subsection (3) as
if –
(a) The distribution had been made in breach of section 28; and
(b) The distribution was authorised by all shareholders.

52 Shareholder written resolutions

(1) Subject to subsection (3), a resolution in writing signed by shareholders
who together hold not less than 75% of the votes entitled to be cast on that resolution
at a meeting of shareholders is as valid as if it had been passed at a meeting of
those shareholders.
(2) A resolution in writing is made in accordance with this Act or the rules
of the company, as the case may be, if the resolution –
(a) Relates to a matter that is required by this Act or by the rules to be
decided at a meeting of the shareholders of a company; and
(b) Is signed by the shareholders referred to in subsection (1).
(3) If, in respect of any matter, the rules of a company –
(a) Require approval by a higher majority than 75% of those
shareholders entitled to vote and voting, the reference in subsection
(1) to 75% is taken to be a reference to that higher majority;
(b) Specify additional requirements for approval of such matters, those
requirements must also be satisfied in order for the resolution to be
valid.
(4) Within 5 working days of a resolution being passed under this section,
the company must send a copy of the resolution to every shareholder who did not
sign the resolution.
(5) A resolution may be signed under subsections (1) or (2) without any
prior notice being given to shareholders.
(6) If a company fails to comply with subsection (4) –

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355
(a) The company commits an offence and is liable on conviction to a fine not exceeding 10 penalty units; and
(b) Every director of the company commits an offence and is liable on conviction to a fine not exceeding 10 penalty units.

53 Shareholder meetings

(1) The rules of a company must include provisions –
(a) For holding meetings of shareholders of the company; and
(b) That govern proceedings at meetings of shareholders of the
company.
(2) Meetings of the shareholders of a company must be held in accordance
with the rules of the company.
(3) A special meeting of shareholders entitled to vote on an issue –
(a) May be called at any time by a director; and
(b) Must be called by the directors on the written request of
shareholders holding shares carrying together not less than 5% of
the votes that may be cast on the issue.

Subpart 2 – Alteration of shareholder rights

54 Alteration of shareholder rights

(1) A company must not take action that affects the rights attached to shares
unless that action has been approved by –
(a) A special resolution of each interest group; or
(b) All shareholders under section 51.
(2) For the purposes of subsection (1), the rights attached to a share
include –
(a) The rights, privileges, limitations, and conditions attached to the share by this Act or the rules, including voting rights and rights to distributions;
(b) The right to have any provisions of the rules in relation to the issue of further shares observed by the company;
(c) The right to have the procedure set out in this section, and any
further procedure required by the rules for the amendment or
alteration of rights, observed by the company;
(d) The right that a procedure required by the rules for the amendment
or alteration of rights not be amended or altered.
(3) In this section –
class means a class of shares having attached to them identical rights,
privileges, limitations, and conditions
interest group, in relation to any action or proposal affecting rights attached
to shares, means a group of shareholders –
(a) whose affected rights are identical; and
(b) Whose rights are affected by the action or proposal in the same
way; and
(c) Subject to subsection (4)(b), who comprise the holders of 1 or more
classes of shares in the company.
(4) For the purposes of this section and the definition of
interest group –
(a) 1 or more interest groups may exist in relation to any action or
proposal; and
(b) Holders of shares in the same class may fall into 2 or more interest
356 Niue Laws 2006 Vol 1
groups if –
(i) action is taken in relation to some holders of shares in a class
and not others; or
(ii) a proposal expressly distinguishes between some holders of
shares in a class and other holders of shares of that class.

55 Repurchase of dissenter’s shares

(1) A shareholder is entitled to require the company to purchase shares in
accordance with the procedure set out in Schedule 5 if –
(a) The shareholder is entitled to vote on the exercise of 1 or more of
the powers set out in –
(i) section 48(b) and the proposed alteration imposes or removes
a restriction on the activities of the company; or
(ii) section 48(c) or (d); and
(b) The shareholders resolve to exercise the power; and
(c) The shareholder cast all the votes attached to shares registered in
the shareholder ’s name and having the same beneficial owner
against the exercise of the power.
(2) A shareholder is entitled to require the company to purchase shares in
accordance with the procedure set out in Schedule 5 if –
(a) An interest group of which the shareholder was a member has,
under section 54, approved, by special resolution, the taking of
action that affects the rights attached to those shares; and
(b) The company becomes entitled to take the action; and
(c) The shareholder cast all the votes attached to the shares registered
in that shareholder ’s name and having the same beneficial owner
against approving the action.
(3) If a resolution of shareholders or of an interest group is made in writing
in accordance with section 52, subsections (1) and (2) apply as if references to a
shareholder who cast all the votes attached to shares registered in the shareholder ’s
name and having the same beneficial owner against the matter in question were
references to a shareholder who did not sign the written resolution in respect of
those shares.

Subpart 3 – Disclosure to shareholders

56 Annual report to shareholders

(1) Subject to subsection (2), the directors of every company must, within
20 working days after the date on which the company is required to complete its
financial statements under section 130 –
(a) Prepare an annual report on the affairs of the company during the
accounting period ending on that date; and
(b) Send a copy of that report to each shareholder.
(2) The rules of a private company may provide that the directors are only
required to prepare an annual report in respect of an accounting period if a
shareholder has given written notice to the company before the end of that
accounting period requiring the annual report to be prepared.
(3) Every annual report for a company must –
(a) be in writing and be dated; and
(b) Include financial statements for the accounting period that comply
with section 130; and
(c) If an auditor ’s report is required for the financial statements
included in the report, include that auditor ’s report; and

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357
(d) State the names of the persons holding office as directors of the company as at the end of the accounting period and the names of any persons who ceased to hold office as directors of the company during the accounting period; and
(e) Contain any other information that may be required by – (i) regulations made under this Act; and
(ii) the rules; and
(f) be signed on behalf of the directors by 2 directors of the company
or, if the company has only 1 director, by that director.
(4) If the directors of a company fail to comply with subsection (1), every
director of the company commits an offence and is liable on conviction to a fine
not exceeding 50 penalty units.

57 Inspection of company records by shareholders

A shareholder is entitled to inspect company records in accordance with
section 121.

58 Request for information held by company

(1) A shareholder may, at any time, make a written request to a company
for information held by the company.
(2) The request must specify the information sought in enough detail to
enable it to be identified.

59 Company must provide requested information

(1) Within 10 working days of receiving a request under section 58, the
company must –
(a) Provide the information; or
(b) Agree to provide the information within a specified period; or
(c) Agree to provide the information within a specified period if the
shareholder pays a reasonable charge to the company (which must
be specified and explained) to meet the cost of providing the
information; or
(d) Refuse to provide the information, specifying the reasons for the
refusal.

60 Reasons for refusing information

Without limiting the reasons for which a company may refuse to provide
information under section 59, a company may refuse to provide information if
the –
(a) Disclosure of the information would be likely to prejudice the commercial position of the company; or
(b) Disclosure of the information would be likely to prejudice the commercial position of any other person, whether or not that person supplied the information to the company; or
(c) Request for the information is frivolous or vexatious.

61 Shareholder may withdraw request

If the company requires the shareholder to pay a charge for the information,
the shareholder may withdraw the request, and is deemed to have done so unless,
within 10 working days of receiving notification of the charge, the shareholder
informs the company that the shareholder –
358 Niue Laws 2006 Vol 1
(a) Will pay the charge; or
(b) Considers the charge to be unreasonable.

62 Court may order company to provide requested information

(1) The Court may, on the application of a person who has requested
information, make an order requiring the company to provide the information
within any time and on payment of any charge that the Court thinks fit if it is
satisfied that –
(a) The company does not have sufficient reason to refuse to provide
the information; or
(b) The period specified for providing the information is unreasonable;
or
(c) The charge set by the company is unreasonable.
(2) If the Court makes an order under subsection (1), it may specify the
use that may be made of the information and the persons to whom it may be
disclosed.
(3) On an application for an order under this section, the Court may make
any order for the payment of costs that it thinks fit.

63 Investigation at request of shareholder

(1) On the application of a shareholder of a company, the Court may make –
(a) An order authorising a person named in the order, at a time specified
in the order, to inspect and to make copies of, or take extracts from,
the records or other documents of the company, or any of the records
or documents of the company specified in the order; and
(b) Any ancillary order that it thinks fit, including an order that the
accounts of the company be audited by that person.
(2) The Court may make an order under subsection (1) only if it is satisfied
that –
(a) In making the application, the shareholder is acting in good faith and that the inspection is proposed to be made for a proper purpose; and
(b) The person to be appointed is a proper person for the task.
(3) A person appointed by the Court under subsection (1) must diligently
carry out the inspection and, having done so, must make a full report to the Court. (4) On receiving the report of an inspector, the Court may make any order
in relation to the disclosure and use that may be made of the records and information obtained that it thinks fit.
(5) An order made under subsection (4) may be varied from time to time. (6) The reasonable costs of the inspection must be met by the company
unless the Court orders otherwise.
(7) A person may only disclose or make use of information or records
obtained under this section in accordance with an order made under subsections
(4) or (5).
(8) A person who discloses or makes use of information or records obtained
under this section other than in accordance with an order made under subsections
(4) or (5) commits an offence and is liable on conviction to a fine not exceeding 50
penalty units.

Companies Act 2006

PART 5
DIRECTORS

Subpart 1 – Powers and duties

POWERS
359

64 Management of company

Except to the extent that this Act or the company’s rules provide otherwise –
(a) The business and affairs of a company must be managed by, or
under the direction or supervision of, the directors of the company;
and
(b) The directors of a company have all the powers necessary for
managing, and for directing and supervising the management of,
the business and affairs of the company.
DUTIES

65 Fundamental duties of directors

Every director of a company must, when exercising powers or performing
duties as a director, act –
(a) In good faith; and
(b) In a manner that the director believes to be in the interests of the
company.

66 Duty of directors to comply with Act

A director of a company must not act, or agree to the company acting, in a
manner that contravenes this Act.

67 Duty of directors to comply with rules

A director of a company must not act, or agree to the company acting, in a
manner that contravenes the company’s rules.

68 Interest of director in company transactions

(1) A director must not exercise any power as a director if the director is
directly or indirectly materially interested in the exercise of that power, unless –
(a) This Act expressly authorises the director to exercise the relevant
power despite that interest; or
(b) The director has reasonable grounds for believing that the company
will satisfy the solvency test after that power is exercised, and
either –
(i) the rules expressly authorise the director to exercise the relevant
power despite that interest, following disclosure of the interest
in accordance with subsection (2); or
(ii) the exercise of the power by the director has been approved by
all shareholders under section 51, following disclosure of the
nature and extent of the director ’s interest to all shareholders
who are not otherwise aware of those matters.
(2) A director who is directly or indirectly materially interested in the
exercise of any power may only be authorised by the rules to exercise that power
if the rules require that, before the exercise of the power, the director discloses the
nature and extent of that interest in writing –
(a) If there is at least 1 other director who is not directly or indirectly
materially interested in the transaction or proposed transaction, to
the directors of the company;
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(b) If paragraph (a) does not apply, to all shareholders other than the director.

69 Use and disclosure of company information

A director of a company who has information in his or her capacity as a
director or employee of the company, being information that would not otherwise
be available to him or her, must not disclose that information to any person, or
make use of or act on the information, except –
(a) In the interests of the company; or
(b) As required by law; or
(c) If there are reasonable grounds for believing that the company will
satisfy the solvency test after the director takes that action and that
action –
(i) is authorised by the rules; or
(ii) is approved by shareholders under section 51.

70 Standard of care of directors

Subject to the company’s rules, a director of a company, when exercising
powers or performing duties as a director, must exercise the care, diligence, and
skill that a reasonable person would exercise in the same circumstances taking
into account, but without limitation –
(a) The nature of the company; and
(b) The nature of the decision; and
(c) The position of the director and the nature of the responsibilities
undertaken by him or her.

71 Obligations of directors in connection with insolvency

(1) A director of a company must call a meeting of directors within 10
working days to consider whether the directors should appoint an administrator
or liquidator if the director –
(a) Believes that the company is unable to pay its debts as they fall due
in the normal course of business; or
(b) Is aware of matters that would put any reasonable person on inquiry
as to whether the company is unable to pay its debts as they fall
due in the normal course of business.
(2) At a meeting called under this section, the directors must consider
whether to appoint an administrator or liquidator or to continue to carry on the
business of the company.
(3) A director is liable to any creditor to whom the company incurred an
obligation after the time that the director failed to comply with subsection (1) if –
(a) At the time of that failure, the company was unable to pay its debts
as they fell due in the normal course of business; and
(b) The company is later placed in liquidation.
(4) Each director who did not participate in the meeting and did not vote
in favour of appointing an administrator or a liquidator is liable to any creditor to
whom the company incurred an obligation after the date of the meeting in
accordance with subsection (5) if –
(a) At a meeting called under this section, the directors do not resolve
to appoint an administrator or liquidator; and
(b) At the time of that meeting there were no reasonable grounds for
believing that the company was able to pay its debts as they fell
due; and

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(c) The company is later placed in liquidation.
(5) A director who is liable to a creditor under subsections (3) or (4) in
respect of an obligation of the company is liable to that creditor for the amount of
any loss suffered by that creditor as a consequence of the company’s failure to
perform that obligation, unless the director establishes that the creditor –
(a) Knew or ought to have known of the circumstances that called into
question the solvency of the company; or
(b) Otherwise assumed the risk of dealing with the company in those
circumstances.
(6) If more than 1 director is liable to a creditor under this section, the
liability of those directors is joint and several.

72 Effect of unanimous shareholder approval on certain duties of directors If a director exercises any power or takes any other action in his or her capacity as a director with the consent or concurrence of shareholders under section

51 –
(a) The director is deemed to be acting in accordance with the requirements of section 67; and
(b) If, at the time the director so acts, there are reasonable grounds for believing that the company is able to meet its debts as they fall due, the director is deemed to be acting in accordance with the requirements of sections 65 and 70.

Subpart 2 – Liabilities

73 Persons deemed to be directors for liability purposes

(1) A person (principal) in accordance with whose directions or instructions
a director is required or is accustomed to act is liable under sections 65 to 71 to the
same extent as that director, unless the principal shows that the director was not
in fact acting in accordance with the principal’s directions or instructions in acting
or failing to act in the manner giving rise to liability on the part of the director.
(2) A person who exercises, or who is entitled to exercise, or who controls
or who is entitled to control the exercise, of powers that, apart from the rules of
the company, would fall to be exercised by the directors, is liable under sections
65 to 70 in connection with the exercise of those powers as if that person were a
director.
(3) Without limiting subsection (2), if the rules of a company confer a power
on shareholders that would otherwise fall to be exercised by directors under this
Act, any shareholder who exercises that power or who takes part in deciding
whether to exercise that power is liable under sections 65 to 70 in connection with
the exercise of that power as if that person were a director.
(4) A person to whom a power or duty of the directors has been directly
delegated by the directors with that person’s consent or acquiescence, or who
exercises the power or duty with the consent or acquiescence of the directors, is
liable under sections 65 to 70 in connection with the exercise of those powers as if
that person were a director.
(5) To avoid doubt, if any action is approved by all shareholders under
section 51 –
(a) No shareholder is liable under section 67 in respect of that action;
(b) If there are reasonable grounds for believing that the company is
able to meet its debts as they fall due, no shareholder is liable under
sections 65 or 68 or 69 or 70 in respect of that action.
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Indemnities and insurance for directors

74 Certain indemnities prohibited

(1) A company may not indemnify a director of the company or of any
related company in respect of –
(a) Any criminal liability; or
(b) Any liability to the company or a related company for any act or
omission in his or her capacity as a director of the company or of
the related company, as the case may be; or
(c) Any liability to any person arising out of a breach by that person of
a duty to the company or related company, as the case may be,
under any of sections 65 to 71.
(2) An indemnity given in breach of this section is void.
(3) In this section –
director includes –
(a) A person who is liable under any of sections 65 to 71 by virtue of
section 73;
(b) A former director
indemnify includes relieve or excuse from liability, whether before or after the
liability arises; and indemnity has a corresponding meaning.

75 Company may indemnify or insure directors

Subject to section 74, a company may provide an indemnity or purchase
insurance for a director of the company or of a related company –
(a) In accordance with its rules; or
(b) With the approval of shareholders under section 51.

76 Defences for directors

Defences

(1) It is a defence to a director charged with an offence in relation to a duty imposed on the directors of a company if the director proves that –
(a) The directors took all reasonable and proper steps to ensure that the requirements would be complied with; or
(b) The director took all reasonable and proper steps to ensure that the directors complied with the requirements; or
(c) In the circumstances, the director could not reasonably have been
expected to take steps to ensure that the directors complied with
the requirements.
(2) It is a defence to a director charged with an offence in relation to a duty
imposed on the company if the director proves that –
(a) The company took all reasonable and proper steps to ensure that
the requirements would be complied with; or
(b) The director took all reasonable steps to ensure that the company
complied with the requirements; or
(c) In the circumstances, the director could not reasonably have been
expected to take steps to ensure that the company complied with
the requirements.

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Subpart 3 – Prohibition and disqualification of directors

77 Persons prohibited from managing companies

(1) A person must not, during the period of 5 years after the conviction or
the judgment, be a director or promoter of, or in any way, whether directly or
indirectly, be concerned or take part in the management of, a company if the person
has been convicted of an offence –
(a) In connection with the promotion, formation, or management of a
company punishable by imprisonment for a term exceeding 2 years,
whether or not a sentence of imprisonment was imposed; or
(b) Under any of sections 337 to 340 of this Act or under any of sections
180 to 183, 191 to 205A, or 207 to 211 of the Niue Act 1966.
(2) Subsection (1) does not apply if the person first obtains the leave of the
Court, which may be given on any conditions that the Court thinks fit.
(3) A person who intends to apply for the leave of the Court under
subsection (2) must give to the Registrar not less than 10 working days’ notice of
that person’s intention to apply.
(4) The Registrar, and any other persons that the Court thinks fit, may
attend and be heard at the hearing of any application under this section.
(5) Every person who fails to comply with this section or any order made
under this section, commits an offence and is liable on conviction to imprisonment
for a term not exceeding 7 years or to a fine not exceeding 1000 penalty units, or
both.
(6) In this section, company includes an overseas company that carries on business in Niue.

78 Court may disqualify directors

(1) The Court may make an order that a person must not, 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, a company for any
period, not exceeding 10 years, that may be specified in the order if the person
has –
(a) Been convicted of any offence in connection with the promotion, formation, or management of a company punishable by imprisonment for a term exceeding 2 years, whether or not a sentence of imprisonment was imposed; or
(b) Been convicted of an offence under any of sections 337 to 340 of this Act or under any of sections 180 to 183, 191 to 205A, or 207 to
211 of the Niue Act 1966; or
(c) Committed an offence for which the person is liable (whether
convicted or not) under this Part; or
(d) While a director of a company and whether convicted or not –
(i) persistently failed to comply with this Act, or, if the company
has failed to so comply, persistently failed to take all reasonable
steps to obtain compliance; or
(ii) been guilty of fraud in relation to the company or of a breach
of duty to the company or a shareholder; or
(iii) acted in a reckless or incompetent manner in the performance
of his or her duties as director; or
(e) Been convicted of an offence in any other country that corresponds
to the offences referred to in paragraphs (a) to (c); or
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(f) Been prohibited under the law of any other country from acting as a director of a company, or being concerned or taking part in the management of a company; or
(g) Become of unsound mind.
(2) An order may be made under this section even though the person
concerned may be criminally liable in respect of the matters on the ground of
which the order is to be made.
(3) The Registrar of the Court must, as soon as practicable after the making
of an order under this section, give notice to the Registrar that the order has been
made and the Registrar must give public notice of the name of the person against
whom the order is made.
(4) Every person who fails to comply with an order under this section
commits an offence and is liable on conviction to imprisonment for a term not
exceeding 7 years or to a fine not exceeding 1000 penalty units, or both.
(5) In this section and sections 79 and 80, company includes an overseas
company.

79 Persons entitled to apply for order under section 78

(1) An application for an order under section 78 may be made by the
Registrar, or by the liquidator of the company, or by a person who is, or has been,
a shareholder or creditor of the company.
(2) The Registrar or liquidator must appear and call the attention of the
Court to any matters that seem to him or her to be relevant, and may give evidence
or call witnesses on the hearing of an application for –
(a) An order under section 78 by the Registrar or the liquidator; or
(b) Leave under section 78 by a person against whom an order has
been made on the application of the Registrar or the liquidator.

80 Notice of application for order under section 78

(1) A person who intends to apply for an order under section 78 must give
not less than 10 working days’ notice of that intention to the person against whom
the order is sought.
(2) On the hearing of the application, the person against whom the order
is sought may appear and give evidence or call witnesses.

81 Application of sections 82 to 84

Sections 82 to 84 apply to a company –
(a) That has been put into liquidation because of its inability to pay its
debts as and when they became due;
(b) The liquidation of which has been completed, whether or not the
company has been removed from the Niue register;
(c) That has ceased to carry on business because of its inability to pay
its debts as and when they became due;
(d) In respect of which execution is returned unsatisfied in whole or in
part;
(e) In respect of the property of which a receiver, or a receiver and
manager, has been appointed by a Court or pursuant to the powers
contained in a document, whether or not the appointment has been
terminated;
(f) In respect of which, or the property of which, a person has been
appointed as a receiver and manager, or a judicial manager, or as a
manager, or to exercise control, under an enactment, whether or
not the appointment has been terminated;

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(g) That has entered into a compromise or arrangement with its creditors.

82 Court may prohibit persons from managing companies

(1) The Court may, on the application of the Registrar, make an order that
a person must not, without the leave of the Court, be a director or promoter of a
company, or in any way, whether directly or indirectly, be concerned in, or take
part in the management of, a company for any period, not exceeding 5 years, that
is specified in the order if –
(a) The person was, within a period of 5 years before a notice was given
to that person under section 83 (whether that period commenced
before or after the commencement of this Act), a director of, or
concerned in, or a person who took part in, the management of, a
company in relation to which this section applies; and
(b) The manner in which the affairs of the company were managed
was wholly or partly responsible for the company being a company
in relation to which this section applies; and
(c) The person bears a significant degree of responsibility for the
manner in which the affairs of the company were managed.
(2) If a person was, within a period of 5 years before a notice was given to
that person under section 83 (whether that period commenced before or after the
commencement of this Act), a director of, or concerned in, or a person who took
part in, the management of, 2 or more companies to which this section applies,
subsection (1)(b) and (c) are presumed to be satisfied in relation to each of those
companies unless that person satisfies the Court to the contrary.
(3) The Registrar must give public notice of the making of any order under
subsection (1).
(4) Every person who fails to comply with an order under this section
commits an offence and is liable on conviction to imprisonment for a term not
exceeding 7 years or to a fine not exceeding 1000 penalty units, or both.
(5) In this section and sections 83 and 84, company includes an overseas
company that carries on business in Niue.

83 Notice of application

(1) The Registrar must not make an application under section 82(1) unless –
(a) Not less than 10 working days’ notice of the fact that the Registrar
intends to consider making the application is given to the person
and the Registrar considers any representations made by the person;
and
(b) The Registrar appoints a suitably qualified accountant to advise
the Registrar in relation to the making of the application. That
accountant may also be appointed to inquire into the affairs of the
company under section 313; and
(c) The accountant appointed under paragraph (b), after considering
the information in the Registrar ’s possession, any representations
made by the person concerned to the Registrar, and if the accountant
thinks fit, any representations made by that person to the
accountant, advises the Registrar that, in his or her professional
opinion –
(i) the manner in which the affairs of the company were managed
was wholly or partly responsible for the company being a
company to which this section applies; and
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(ii) the person bears a significant degree of responsibility for the manner in which the affairs of the company were managed.
(2) If the Registrar has made an application under section 82(1) in respect of a person, the Registrar may give a notice to that person prohibiting that person from being a director or promoter of a company, or being concerned in, or taking part, whether directly or indirectly, in the management of, a company pending the determination by the Court of that application. The Registrar must give public notice of every such notice.
(3) No person to whom a notice under subsection (2) applies may be a
director or promoter of a company, or be concerned or take part (whether directly
or indirectly) in the management of a company.
(4) If a person to whom the Registrar has issued a notice under subsection
(2) appeals against the issue of the notice under this Act or otherwise seeks judicial
review of the notice, the notice remains in full force and effect pending the
determination of the appeal or review, as the case may be.
(5) The Registrar may, by notice in writing to a person to whom a notice
under subsection (2) has been given –
(a) Revoke that notice; or
(b) Exempt that person from the notice in relation to a specified
company or companies, on such conditions as the Registrar thinks
fit. The Registrar must give public notice of every such notice.
(6) Every person to whom a notice under subsection (2) is given who fails
to comply with the notice commits an offence and is liable on conviction to
imprisonment for a term not exceeding 7 years or to a fine not exceeding 1000
penalty units, or both.

84 Liability for contravening sections 77, 78, or 82

(1) A person who acts as a director of a company in contravention of section
77 or an order made under section 78 is, while that person was so acting, personally
liable to –
(a) A liquidator of the company for every unpaid debt incurred by the company; and
(b) A creditor of the company for a debt to that creditor incurred by the company.
(2) A person who acts in contravention of an order or a notice under section
82 is, while that person was so acting, personally liable to –
(a) A liquidator of the company for every unpaid debt incurred by the
company; and
(b) A creditor of the company for a debt to that creditor incurred by
the company.

Subpart 4 – Office of director

APPOINTMENT AND RETIREMENT OF DIRECTORS

85 Qualifications of directors

(1) A person may be appointed and hold office as a director of a company
only if the person –
(a) Is a natural person; and
(b) Is not disqualified from being a director under subsection (2).
(2) The following persons are disqualified from being a director of a
company –
(a) A person who is under 21 years of age;

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(b) A person who is an undischarged bankrupt;
(c) A person who is prohibited from being a director or promoter of,
or being concerned or taking part in the management of, a company
under sections 77, 78, or 82;
(d) A person in respect of whom a trustee order is in force under section
501 of the Niue Act 1966, or in respect of whom an order of medical
custody is in force under section 602 of that Act;
(e) In relation to any particular company, a person who does not comply
with any qualifications for directors contained in the rules of that
company.
(3) A person who is disqualified from being a director but who acts as a
director is treated as a director for the purposes of any provision of this Act that
imposes a duty or an obligation on a director of a company.

86 Appointment of directors

(1) A person named as a director in an application for registration or in an
amalgamation proposal holds office as a director from the date of registration or
the date the amalgamation proposal is effective, as the case may be, until that
person ceases to hold office as a director in accordance with this Act.
(2) All subsequent directors of a company may, unless the rules of the
company provide otherwise, be appointed by ordinary resolution.
(3) The appointment of a person as a director is not effective until that
person has consented in writing to act as a director of the company.

87 Director ceasing to hold office

(1) The office of director of a company is vacated if the person holding
that office –
(a) Resigns in accordance with subsection (2); or
(b) Is removed from office in accordance with subsection (4) or the rules
of the company; or
(c) Becomes disqualified from being a director under section 85(2); or
(d) Dies; or
(e) Otherwise vacates office in accordance with the rules of the
company.
(2) A director of a company may resign by signing a written notice of
resignation and delivering it to the registered office of the company.
(3) Subject to subsections (5) and (6), the notice is effective when it is
received at that address or at a later time specified in the notice.
(4) Subject to the company’s rules, a director may be removed by ordinary
resolution.
(5) If a company has only 1 director, that director may not resign office –
(a) Until that director has called a meeting of shareholders to receive
notice of the resignation; or
(b) If the company has only 1 shareholder, until that director has given
not less than 10 working days’ notice of the resignation to that
shareholder.
(6) A notice of resignation given by the sole director of a company does
not take effect, despite its terms, until the earlier of the appointment of another
director of the company or –
(a) The time and date for which a meeting of shareholders is called
under subsection (5)(a); or
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(b) If the company has only 1 shareholder, 10 working days after notice of the resignation has been given to that shareholder.
(7) Despite the vacation of office, a person who held office as a director remains liable under the provisions of this Act that impose liabilities on directors in relation to acts and omissions and decisions made while that person was a director.

88 Notice of change of directors

(1) A company must ensure that the following notices in the prescribed
form are delivered to the Registrar for registration –
(a) Notice of a change in the directors of a company, whether as the
result of a director ceasing to hold office or the appointment of a
new director, or both;
(b) Notice of a change in the name or the residential address or the
postal address of a director of a company.
(2) A notice under subsection (1) must –
(a) Specify the date of the change; and
(b) Include the full name and residential address and postal address of
every person who is a director of the company from the date of the
notice; and
(c) In the case of the appointment of a new director, have attached a
consent by that person to act as a director, in the prescribed form;
and
(d) be delivered to the Registrar within 20 working days of –
(i) the change occurring, in the case of the appointment or
resignation of a director; or
(ii) the company first becoming aware of the change, in the case of
the death of a director or a change in the name or residential
address or postal address of a director.
(3) If a company fails to comply with this section –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.

Miscellaneous

89 Remuneration of directors

Directors may receive remuneration and other benefits from the company –
(a) In accordance with its rules; or
(b) With the approval of shareholders under section 51.

90 Proceedings of directors

(1) The rules of a company must include provisions –
(a) For holding meetings of directors of the company; and
(b) That govern proceedings at meetings of directors of the company.
(2) Meetings of the directors of a company must be held in accordance
with the rules of the company.

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PART 6
ENFORCEMENT

Injunctions

91 Injunctions to require compliance with Act and rules

(1) Without limiting section 16(2) or this Part, the Court may, on an
application under this section, make an order restraining a company that, or a
director of a company who, proposes to engage in conduct that would contravene
the rules of the company or this Act from engaging in that conduct.
(2) An application may be made by –
(a) The company; or
(b) A director or shareholder of the company.
(3) If the Court makes an order under subsection (1), it may also grant any
consequential relief that it thinks fit.
(4) An order may not be made under this section in relation to conduct or
a course of conduct that has been completed.
(5) The Court may, at any time before the final determination of an
application under subsection (1), make, as an interim order, any order that it is
empowered to make under that subsection.

Derivative actions

92 Leave to bring proceedings

Subject to section 95, the Court may, on the application of a person referred
to in section 93, grant leave to that person to –
(a) Bring proceedings in the name and on behalf of the company or
any subsidiary of the company; or
(b) Intervene in proceedings to which the company or any subsidiary
company is a party for the purpose of continuing, defending, or
discontinuing the proceedings on behalf of the company or
subsidiary, as the case may be.

93 Who may apply for leave to bring proceedings

An application for leave to bring proceedings or to intervene in proceedings
under section 92 may be made by –
(a) A director of the company; or
(b) A shareholder or shareholders representing not less than 10% of
the voting rights of all shareholders entitled to vote on a resolution
to amend the rules of the company.

94 Matters that Court must consider

Without limiting section 92, in determining whether to grant leave under
that section, the Court must consider –
(a) The likelihood of the proceedings succeeding; and
(b) The costs of the proceedings in relation to the relief likely to be
obtained; and
(c) Any action already taken by the company or subsidiary to obtain
relief; and
(d) The interests of the company or subsidiary in the proceedings being
commenced, continued, defended, or discontinued, as the case may
be.
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95 When leave may be granted

Leave to bring proceedings or intervene in proceedings may be granted
only if the Court is satisfied that either –
(a) The company or subsidiary does not intend to bring, diligently
continue or defend, or discontinue the proceedings, as the case may
be; or
(b) It is in the interests of the company or subsidiary that the conduct
of the proceedings should not be left to the directors or to the
determination of the shareholders as a whole.

96 Procedural matters

(1) Notice of the application must be served on the company or subsidiary.
(2) The company or subsidiary –
(a) Must inform the Court whether or not it intends to bring, continue,
defend, or discontinue the proceedings, as the case may be; and
(b) May appear and be heard.
(3) Except as otherwise provided, a shareholder is not entitled to bring or
intervene in any proceedings in the name of, or on behalf of, a company or its
subsidiaries.
(4) No proceedings brought or intervened in with leave of the Court may
be settled or compromised or discontinued without the approval of the Court.

97 Powers of Court

The Court may, at any time, make any order that it thinks fit in relation to
proceedings brought or intervened in with leave of the Court and, without
limitation, may –
(a) Make an order authorising the person to whom leave was granted
or any other person to control the conduct of the proceedings;
(b) Give directions for the conduct of the proceedings;
(c) Make an order requiring the company or the directors to provide
information or assistance in relation to the proceedings;
(d) Make an order directing that any amount ordered to be paid by a
defendant in the proceedings must be paid, in whole or part, to
former and present shareholders of the company or subsidiary
instead of to the company or the subsidiary.

98 Costs of derivative action to be met by company

The Court must, on the application of the person to whom leave was
granted, order that the reasonable costs of bringing or intervening in the
proceedings, including any costs relating to any settlement, compromise, or
discontinuance approved by the Court, must be met by the company unless the
Court considers that it would be unjust or inequitable for the company to bear
those costs, or to bear the whole of those costs.

Personal actions by shareholders

99 Personal actions by shareholders against company

(1) A shareholder of a company may bring an action against the company
for breach of a duty owed by the company to him or her as a shareholder.
(2) The Court may, on the application of a shareholder of a company, if it is
satisfied that it is just and equitable to do so, make an order requiring the company
to take any action that is required to be taken by the rules of the company or this
Act, whether or not the company owes a duty to the shareholder to take that
action.

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(3) On making an order under this section, the Court may grant any consequential relief that it thinks fit.

100 Personal actions by shareholders against directors

(1) A shareholder or former shareholder may bring an action against a
director for breach of a duty owed to him or her as a shareholder.
(2) An action may not be brought under subsection (1) to recover any loss
in the form of a reduction in the value of shares in the company or a failure of the
shares to increase in value by reason only of a loss suffered, or a gain forgone, by
the company.
(3) The Court may, on the application of a shareholder of a company, if it is
satisfied that it is just and equitable to do so, make an order requiring a director of
the company to take any action that is required to be taken by the directors under
the rules of the company or this Act, whether or not the director owes a duty to
the shareholder to take that action.
(4) On making an order under this section, the Court may grant any
consequential relief that it thinks fit.

101 Representative actions

(1) The Court may appoint a shareholder of a company to represent all or
some of the shareholders having the same or substantially the same interest if –
(a) The shareholder brings proceedings against the company or a
director; and
(b) Other shareholders have the same, or substantially the same, interest
in relation to the subject matter of the proceedings.
(2) On making an order under subsection (1), the Court may, for that
purpose, make any other order that it thinks fit, including an order –
(a) As to the control and conduct of the proceedings;
(b) As to the costs of the proceedings;
(c) Directing the distribution of any amount ordered to be paid by a
defendant in the proceedings among the shareholders represented.

Prejudiced shareholders

102 Prejudiced shareholders

(1) A shareholder or former shareholder of a company may apply to the
Court for an order under subsection (2) if the shareholder considers that the affairs
of a company have been, or are being, or are likely to be, conducted in a manner
that is, or any act or acts of the company have been, or are, or are likely to be,
oppressive, unfairly discriminatory, or unfairly prejudicial to him or her in that
capacity or in any other capacity.
(2) If the Court considers that it is just and equitable to do so, it may make
any order that it thinks fit, including an order –
(a) Requiring the company or any other person to acquire the
shareholder ’s shares; or
(b) Requiring the company or any other person to pay compensation
to a person; or
(c) Regulating the future conduct of the company’s affairs; or
(d) Altering or adding to the company’s rules; or
(e) Appointing a receiver of the company; or
(f) Directing the rectification of the records of the company; or
(g) Putting the company into liquidation; or
(h) Setting aside action taken by the company or the board in breach of
this Act or the rules of the company.
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(3) No order may be made against the company or any other person under subsection (2) unless the company or that person is a party to the proceedings in which the application is made.

103 Certain conduct deemed prejudicial

Failure to comply with any of the following sections of this Act is conduct
that is deemed to be unfairly prejudicial for the purposes of section 102 –
(a) Section 26(1) (which relates to the issue of shares);
(b) Section 30 (which relates to dividends);
(c) Section 31 (which relates to acquisitions of its own shares by a
company);
(d) Section 34 (which relates to redeemable shares);
(e) Section 36 (which relates to the provision of financial assistance by
a company to purchase its own shares);
(f) Section 50 (which relates to major transactions);
(g) Section 54 (which relates to the alteration of shareholder rights).

104 Alteration to rules by Court

(1) Despite anything in this Act, but subject to the order, if the Court makes
an order under section 102 altering or adding to the rules of a company, the rules
must not, to the extent that they have been altered or added to by the Court, again
be altered or added to without the leave of the Court.
(2) Any alteration or addition to the rules of a company made by an order
under section 102 has the same effect as if it had been made by the shareholders of
the company under section 14, and this Act applies to the rules as altered or added
to.
(3) Within 10 working days of the making of an order under section 102 altering or adding to the rules of a company, the company must ensure that a copy of the order and a copy of the rules as altered or added to are delivered to the Registrar for registration.
(4) If a company fails to comply with subsection (3) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.

Certain applications

105 Effect of arbitration clause in rules

A shareholder is entitled to apply to the Court for relief under sections 91
to 100 and 102 despite any provision in the rules of a company requiring disputes
relating to the affairs of the company to be referred to arbitration, or otherwise
seeking to prohibit the shareholder from making the application.

106 Application for relief by Registrar

(1) The Registrar may apply to the Court for an order in respect of a public
company under sections 91 to 100 and 102 as if the Registrar were a shareholder
of that company if –
(a) The Registrar is requested to do so in writing by a shareholder or
shareholders who would be entitled to make the application in
question; and
(b) The Registrar considers that it is in the public interest that the
application be made; and

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(c) The Registrar considers that it is unreasonable to expect the person or persons making the request to pursue the application themselves.
(2) If the Registrar considers that the persons making a request under subsection (1) should bear some of the costs of any application to be made by the Registrar under this section, the Registrar may require them to pay an amount towards those costs, or to enter into an agreement to contribute to those costs. If they fail to do so, the Registrar may decline to make the application, or to take any further steps in relation to the application.
(3) If an application made by the Registrar under this section results in an
award of costs or any other monetary award in favour of the Registrar or the
company or the shareholders of the company, the Registrar has a first claim on
that award for payment of the costs incurred by the Registrar in making the
application.
PART 7
ADMINISTRATION OF COMPANIES

Subpart 1 – Dealings with third parties

BINDING COMPANY

107 Authority to bind company

(1) A contract or other enforceable obligation may be entered into by a
company as follows –
(a) An obligation that, if entered into by a natural person, would, by
law, be required to be by deed, may be entered into on behalf of the
company in writing signed under the name of the company by –
(i) 2 or more directors of the company; or
(ii) if there is only 1 director, by that director, whose signature must
be witnessed; or
(iii) if the rules of the company so provide, a director, or other person
or class of persons. If the rules provide for signature by 1 person,
that person’s signature must be witnessed; or
(iv) 1 or more attorneys appointed by the company in accordance
with section 108;
(b) An obligation that, if entered into by a natural person, is, by law,
required to be in writing, may be entered into on behalf of the
company –
(i) in the manner specified in paragraph (a); or
(ii) in writing by a person acting under the company’s express or
implied authority;
(c) An obligation that, if entered into by a natural person, is not, by
law, required to be in writing, may be entered into on behalf of the
company by a person acting under the company’s express or
implied authority.
(2) Nothing in subsection (1) prevents a company from affixing its common
seal to a contract or document, if it has one. But despite anything in the rules of
the company, the absence of a seal does not affect the enforceability of an obligation
entered into in accordance with subsection (1).
(3) Subsection (1) applies to a contract or other obligation whether or not –
(a) That contract or obligation was entered into in Niue; and
(b) The law governing the contract or obligation is the law of Niue.
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108 Attorneys

(1) Subject to its rules, a company may, by an instrument in writing executed
in accordance with section 107(1)(a), appoint a person as its attorney either
generally or in relation to a specified matter.
(2) An act of the attorney in accordance with the instrument binds the
company.
(3) Part XII of the Property Law Act 1952 applies, with the necessary
modifications, in relation to a power of attorney executed by a company to the
same extent as if the company was a natural person and as if the commencement
of the liquidation or, if there is no liquidation, the removal from the Niue register,
of the company was the death of a person within the meaning of that Part.

109 Validity of dealings with third parties

(1) Subject to sections 111 and 112, the validity of a transaction entered
into by a company is not affected by –
(a) A failure to comply with this Act (except section 107);
(b) A failure to comply with the company’s rules;
(c) The absence of express authority to enter into the transaction in the
company’s rules;
(d) A failure by the company or its directors to take any steps required
by the company’s rules to authorise entry into the transaction;
(e) The fact that the transaction is not in the interests of the company;
(f) A breach of duty by a director in connection with entry into the
transaction.
(2) Subsection (1) does not limit –
(a) Section 91 (which relates to injunctions to restrain conduct by a
company that would contravene its rules); or
(b) Sections 92 to 98 (which relate to derivative actions); or
(c) Section 99 (which relates to actions by shareholders against a
company); or
(d) Section 100 (which relates to actions by shareholders against
directors); or
(e) The obligations and the liabilities of directors of a company in
respect of any contract or other obligation, or transfer of property
to or by the company.
(3) In this section and sections 111 to 113, transaction –
(a) Includes any contract or other obligation entered into by a company,
or any transfer of property to or by a company; but
(b) Does not include –
(i) A distribution to shareholders; or
(ii) An indemnity provided to a director under section 75; or
(iii) remuneration or other benefits given to a director in accordance
with section 89.

110 Assumptions that may be made by third parties

(1) Without limiting section 109, neither a company nor any person
claiming under or through a company, nor a guarantor of an obligation of a
company, may assert against a person dealing with the company or against a person
who has acquired property, rights, or interests from the company that –
(a) A person named as a director of the company in the most recent
notice received by the Registrar under section 88 or in the most
recent annual return delivered to the Registrar –

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(i) is not a director of a company; or
(ii) has not been duly appointed; or
(iii) does not have authority to exercise a power that a director of a
company carrying on business of the kind carried on by the
company customarily has authority to exercise;
(b) A person held out by the company as a director, employee, or agent
of the company –
(i) has not been duly appointed; or
(ii) does not have authority to exercise a power that a director,
employee, or agent of a company carrying on business of the
kind carried on by the company customarily has authority to
exercise;
(c) A person held out by the company as a director, employee, or agent
of the company with authority to exercise a power that a director,
employee, or agent of a company carrying on business of the kind
carried on by the company does not customarily have authority to
exercise, does not have authority to exercise that power;
(d) A document issued on behalf of a company by a director, employee,
or agent of the company with actual or usual authority to issue the
document is not valid or not genuine –
unless the person has, or ought to have by virtue of his or her position with or
relationship to the company, knowledge of the matters referred to in any of
paragraphs (a) to (d).
(2) Subsection (1) applies even though a person of the kind referred to in
that subsection acts fraudulently or forges a document that appears to have been
signed on behalf of the company, unless the person dealing with the company or
with a person who has acquired property, rights, or interests from the company
has actual knowledge of the fraud or forgery.
(3) A person is not affected by, or deemed to have notice or knowledge of
the contents of, the rules of, or any other document relating to, a company merely
because the rules or document are –
(a) Registered on the Niue register; or
(b) Available for inspection by that person under subpart 2.

111 Transactions in which directors are interested

(1) A transaction entered into by a company in which a director is directly
or indirectly materially interested is voidable at the option of the company, unless –
(a) This Act or the company’s rules expressly authorise entry into the
transaction despite such an interest; or
(b) The transaction has been entered into with the approval of
shareholders under section 51 following disclosure of the nature
and extent of the director ’s interest to all shareholders who were
not otherwise aware of those matters; or
(c) The other party to the transaction is a person other than the director
or a person associated with the director and either –
(i) that person did not know of the interest of the director; or
(ii) the company received fair value under the transaction.
(2) For the purposes of this section and section 112, a person is associated
with a director if the director –
(a) Is the parent, child, or spouse of that person; or
(b) Is a director, employee, or trustee of that person; or
(c) Has a material financial interest in that other person.
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112 Transactions entered into by directors in breach of certain duties

A transaction entered into by a company as the result of action taken by a
director in breach of sections 65, 66, or 67 is voidable at the option of the company
if –
(a) The other party to the transaction is the director or a person associated with the director; or
(b) The other party to the transaction is a person with knowledge of the circumstances giving rise to the breach of sections 65, 66, or 67, and the company did not receive fair value under the transaction.

113 Effect on third parties

The setting aside of a transaction under sections 111 or 112 does not affect
the title or interest of a person in or to property that the person has acquired if the
property was acquired –
(a) From a person other than the company; and
(b) For valuable consideration; and
(c) Without knowledge of the circumstances that entitle the company
to set aside the transaction under which the property was acquired
from the company.

Pre-incorporation contracts

114 Pre-incorporation contracts may be ratified

(1) In this section and in sections 115 and 116, pre-incorporation contract
means –
(a) A contract purporting to be made by a company before its incorporation; or
(b) A contract made by a person on behalf of a company before, and in
contemplation of, its incorporation.
(2) Despite any enactment or rule of law, a pre-incorporation contract may
be ratified by the company within any period that may be specified in the contract,
or if no period is specified, within a reasonable time after the incorporation of the
company in the name of which, or on behalf of which, it has been made.
(3) A pre-incorporation contract that is ratified is as valid and enforceable
as if the company had been a party to the contract when it was made.
(4) A pre-incorporation contract may be ratified by a company in the same
manner as a contract may be entered into on behalf of a company under section
107.
(5) Despite any other Act, if a pre-incorporation contract has not been ratified by a company, or validated by the Court under section 116, the company may not enforce it or take the benefit of it.

115 Warranties implied in pre-incorporation contracts

(1) Despite any enactment or rule of law, in a pre-incorporation contract,
unless a contrary intention is expressed in the contract, there is an implied warranty
by the person who purports to make the contract in the name of, or on behalf of,
the company –
(a) That the company will be incorporated within the period specified
in the contract or, if no period is specified, within a reasonable time
after the making of the contract; and
(b) That the company will ratify the contract within the period specified
in the contract or, if no period is specified, within a reasonable time
after the incorporation of the company.

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(2) The amount of damages recoverable in an action for breach of a warranty implied by subsection (1) is the same as the amount of damages that would be recoverable in an action against the company for damages for breach by the company of any unperformed obligations under the contract if the contract had been ratified.
(3) If, after its incorporation, a company enters into a contract in the same
terms as, or in substitution for, a pre-incorporation contract (not being a contract
ratified by the company under section 114), the liability of a person under
subsection (1) (including any liability under an order made by the Court for the
payment of damages) is discharged unless a contrary intention is expressed in the
pre-incorporation contract.

116 Failure to ratify

(1) A party to a pre-incorporation contract that has not been ratified by the
company after its incorporation may apply to the Court for an order –
(a) Directing the company to return to that party property of any kind
acquired by the company from that party by virtue of the contract;
or
(b) For any other relief in favour of that party relating to the property.
(2) The Court may, if it considers it just and equitable to do so, make any
order or grant any relief that it thinks fit and may do so whether or not an order
has been made under section 115(2).

117 Company records

Subpart 2 – Company records

(1) Subject to section 119, a company must keep the following documents at its registered office –
(a) The rules of the company;
(b) Minutes of all meetings and resolutions of shareholders within the
last 7 years;
(c) Minutes of all meetings and resolutions of directors and directors’
committees within the last 7 years;
(d) The full names and residential and postal addresses of the current
directors;
(e) Copies of all written communications to all shareholders or all
holders of the same class of shares during the last 7 years, including
annual reports;
(f) The accounting records required by section 129 for the current
accounting period and for the last 7 completed accounting periods
of the company;
(g) Copies of all financial statements required to be completed under
section 130 for the last 7 completed accounting periods of the
company;
(h) The share register.
(2) The references in subsection (1)(b), (c), and (e) to 7 years and the
references in subsection (1)(f) and (g) to 7 completed accounting periods include
any lesser periods that the Registrar may approve by notice in writing to the
company.
(3) If a company fails to comply with subsection (1) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
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(b) Every director of the company commits an offence and is liable on conviction to a fine not exceeding 50 penalty units.

118 Form of records

(1) The records of a company must be kept –
(a) In written form; or
(b) In a form or in a manner that allows the records to be readily
accessible so as to be usable for subsequent reference, and
convertible into written form.
(2) The directors must ensure that adequate measures exist to –
(a) Prevent the records being falsified; and
(b) Detect any falsification of them.
(3) If the directors fail to comply with subsection (2), every director commits
an offence and is liable on conviction to a fine not exceeding 50 penalty units.

119 Alternative locations of records

(1) The records referred to in section 117(1)(a) to (g) may be kept at a place
in Niue other than the company’s registered office, provided that notice of that
place is given to the Registrar in accordance with subsection (7).
(2) The share register may, if expressly permitted by the rules, be divided
into 2 or more registers kept in different places.
(3) The principal register must be kept in Niue. Any other share register
may be kept at a place outside Niue.
(4) If a share register is divided into 2 or more registers kept in different
places –
(a) Notice of the place where each register is kept must be delivered to the Registrar in accordance with subsection (7) within 10 working days after the share register is divided or any place where a register is kept is altered; and
(b) A copy of every register must be kept at the same place as the principal register; and
(c) If an entry is made in a register other than the principal register, a corresponding entry must be made within 10 working days in the copy of that register kept with the principal register.
(5) In this section, principal register, in relation to a company, means –
(a) If the share register is not divided into 2 or more registers, the share
register; or
(b) If the share register is divided into 2 or more registers, the register
described as the principal register in the last notice sent to the
Registrar under this section.
(6) A company need not keep its accounting records in Niue, but if the
records are not kept in Niue –
(a) The company must ensure that accounts and returns for the
operations of the company that –
(i) disclose with reasonable accuracy the financial position of the
company at intervals not exceeding 6 months; and
(ii) will enable the preparation in accordance with this Act of the
company’s financial statements and any other document
required by this Act –
are sent to, and kept at, a place in Niue; and

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(b) Notice of the place where –
(i) The accounting records; and
(ii) the accounts and returns required under paragraph (a) –
are kept must be given to the Registrar in accordance with subsection (7).
(7) If any records are not kept at the registered office of the company, or
the place at which they are kept is changed, the company must ensure that within
10 working days of their first being kept elsewhere or moved, as the case may be,
notice is given to the Registrar of the places where the records are kept.
(8) If a company fails to comply with subsections (3), (4), (6), or (7) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.

120 Inspection of records by directors

(1) Subject to subsection (2), every director of a company is entitled, on
giving reasonable notice, to inspect the records of the company –
(a) In written form; and
(b) Without charge; and
(c) At a reasonable time specified by the director.
(2) The Court may, on application by the company, direct that the records
need not be made available for inspection or limit the inspection of them in any
manner it thinks fit if it is satisfied that –
(a) It would not be in the company’s interests for a director to inspect
the records; or
(b) The proposed inspection is for a purpose that is not properly
connected with the director ’s duties.

121 Inspection of records by shareholders

(1) A company must keep the following records available for inspection in
the manner prescribed in section 123 by a shareholder of the company, or by a
person authorised in writing by a shareholder for the purpose, who serves written
notice of intention to inspect on the company –
(a) Minutes of all meetings and resolutions of shareholders;
(b) Copies of written communications to all shareholders or to all
holders of a class of shares during the preceding 7 years, including
annual reports and financial statements;
(c) The records that must be available for public inspection under
section 122.
(2) If a company fails to comply with subsection (1) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.

122 Inspection of records by public

(1) A company must keep the following records available for inspection in
the manner prescribed in section 123 by any person who serves written notice of
intention to inspect on the company –
(a) The certificate of incorporation or registration of the company;
(b) The rules of the company, if they differ from the model rules;
(c) The share register;
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(d) The full names and residential addresses of the directors;
(e) Details of the registered office of the company and of its postal
address, if different from the registered office;
(f) Details of any place other than the registered office at which records
are kept in accordance with section 119.
(2) If a company fails to comply with subsection (1) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.

123 Manner of inspection

(1) Documents that may be inspected under sections 121 or 122 must be
available for inspection at the place at which the company’s records are kept
between the hours of 9.00 am and 4.00 pm on each working day during the
inspection period.
(2) In this section, inspection period means the period commencing on the
third working day after the day on which notice of intention to inspect is served
on the company by the person or shareholder concerned and ending with the
eighth working day after the day of service.
(3) A person may require a copy of, or extract from, a document that is
available for inspection by him or her under sections 121 or 122 to be sent to him
or her –
(a) Within 5 working days after he or she has made a request in writing for the copy or extract; and
(b) If he or she has paid a reasonable copying and administration fee prescribed by the company.
(4) If a company fails to provide a copy of, or extract from, a document in accordance with a request under subsection (3) –
(a) The company commits an offence and is liable on conviction to a fine not exceeding 10 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 10 penalty units.

Subpart 3 – Documents to be sent to Registrar and shareholders

124 Annual returns

(1) The directors of a company must ensure that there is delivered to the
Registrar each year, for registration, during the month allocated to the company
for the purpose, an annual return –
(a) In the prescribed form or in a form approved by the Registrar by
public notice or in a form approved by the Registrar for use by the
company under subsection (8), or as near to it as circumstances
allow; and
(b) Containing the prescribed information or the information approved
by the Registrar by public notice; and
(c) Accompanied by the prescribed annual return fee.
(2) The annual return must be dated as at a day within the month during
which the return is required to be delivered to the Registrar, and the information
required to be contained in it must be compiled as at that date.
(3) The annual return must be signed by a director of the company or by a
solicitor or public accountant authorised for that purpose.

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(4) On registration of a company under Part 2 or reregistration under Part
14, the Registrar must allocate a month to the company for the purposes of this
section.
(5) The Registrar may, by written notice to a company, alter the month
allocated to the company under subsection (4).
(6) Despite subsection (1) –
(a) A company need not make an annual return in the calendar year of
its incorporation; and
(b) A subsidiary may, with the written approval of the Registrar, make
an annual return during the month allocated to its holding company
instead of during the month allocated to it.
(7) Different forms of annual return may be prescribed or approved by the
Registrar by public notice in respect of different classes of companies.
(8) The Registrar may, on the application of any person, approve the use,
by such company or companies as the Registrar may specify, of a form of annual
return different from that prescribed or approved by the Registrar by public notice,
and may at any time revoke, in whole or in part, that approval.
(9) If the directors of a company fail to comply with subsections (1) or (2),
every director of the company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units.

125 Registrar may send annual return form to company

(1) The Registrar may send to a company an annual return form that sets
out the prescribed information as it appears on the Niue register –
(a) For approval in accordance with section 124(3) if the information
set out in the form is current as at a date in the month in which the
return is required to be made; or
(b) For such correction as may be required, and approval of the
corrected information in accordance with section 124(3).
(2) If the annual return contains –
(a) An address of the registered office of the company; or
(b) A postal address of the company –
that is different from the address of the registered office or the postal address of
the company entered on the Niue register, the Registrar may alter the Niue register
accordingly.

126 Other documents to be sent to Registrar

In addition to the annual return required under section 124, a company
must send the following documents to the Registrar under this Act –
(a) Notice of the adoption of new rules by a company, or the alteration
of the rules of a company, under section 14;
(b) Notice of a change in the registered office or postal address of the
company under section 18;
(c) Notice of the issue of shares by the company, under section 26;
(d) Notice of the acquisition by the company of its own shares under
section 31;
(e) Notice of the redemption of a share under section 35;
(f) Notice of a change in the directors of the company, or of a change
in the name or residential address of a director, under section 88;
(g) Notice of the making of an order under section 102 altering or
adding to the rules of a company;
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(h) Notice of any place other than the registered office of the company where records are kept, or of any change in the place where records are kept, under section 119;
(i) documents requested by the Registrar under section 311.

127 Annual report to shareholders

An annual report must be sent to shareholders in accordance with section
56.

128 Other documents to be sent to shareholders

In addition to any annual report required under section 56, a company
must send the following documents to shareholders –
(a) Notice of any repurchase of shares to which section 31(4) applies;
(b) Notice of a written resolution approved under section 52;
(c) Financial statements required to be sent under section 130;
(d) A written statement by an auditor under section 136;
(e) A report by an auditor under section 138.

Subpart 4 – Accounting and audit

129 Accounting records to be kept

(1) The directors of a company must ensure accounting records are kept
that –
(a) Correctly record and explain the transactions of the company; and
(b) Will at any time enable the financial position of the company to be
determined with reasonable accuracy; and
(c) Will enable the directors to ensure that the financial statements of
the company comply with section 130 and with any regulations
made under this Act; and
(d) Will enable the financial statements of the company to be readily
and properly audited.
(2) Without limiting subsection (1), the accounting records must contain –
(a) Entries of money received and spent each day and the matters to
which it relates; and
(b) A record of the assets and liabilities of the company; and
(c) If the company’s business involves dealing in goods –
(i) a record of goods bought and sold, and relevant invoices; and
(ii) a record of stock held at the end of the financial year together
with records of any stocktakings during the year; and
(d) If the company’s business involves providing services, a record of
services provided and relevant invoices.
(3) If a company sells goods or provides services for cash in the ordinary
course of carrying on a retail business –
(a) Invoices need not be kept in respect of each retail transaction for
the purposes of subsection (2); and
(b) A record of the total money received each day in respect of the sale
of goods or provision of services, as the case may be, is sufficient to
comply with subsection (2) in respect of those transactions.
(4) The accounting records must be kept –
(a) In a form permitted under section 118; and
(b) At the registered office of the company, or any other place permitted
under section 119.

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(5) If the directors of a company fail to comply with the requirements of this section, every director of the company commits an offence and is liable on conviction to a fine not exceeding 50 penalty units.

130 Financial statements to be prepared

(1) The directors of every company must ensure that –
(a) Within 4 months after the balance date of the company, or within
any extended period applicable under subsection (3), financial
statements that comply with subsection (2) are completed in relation
to the company and that balance date; and
(b) Within 20 working days of the date on which the financial
statements must be completed under paragraph (a), those financial
statements are sent to all shareholders. This requirement may be
satisfied by sending the financial statements to shareholders in an
annual report in accordance with section 56.
(2) The financial statements of a company must –
(a) Give a true and fair view of the matters to which they relate; and
(b) Comply with any applicable regulations made under this Act; and
(c) be dated and signed on behalf of the directors by 2 directors of the
company or, if the company has only 1 director, by that director.
(3) The period within which a private company must comply with the
requirements of subsection (1)(a) may be extended by special resolution to a period
not greater than 7 months.
(4) The following periods must not exceed 15 months –
(a) The period between the date of incorporation of a company and its
first balance date;
(b) The period between any 2 balance dates of a company.
(5) If the directors of a company fail to comply with subsection (1), every
director of the company commits an offence and is liable on conviction to a fine
not exceeding 50 penalty units.

131 Application

(1) This section and sections 132 to 134 apply to a company in respect of an
accounting period if –
(a) It is registered as a public company at any time during that
accounting period; or
(b) The company’s rules require it to appoint an auditor in respect of
that accounting period; or
(c) A shareholder or shareholders holding shares that together carry
the right to receive more than 20% of distributions made by the
company give written notice to the company before the end of the
accounting period requiring the financial statements of the company
for that period to be audited.
(2) If this section and sections 132 to 134 apply to a company in respect of
an accounting period, but do not apply in respect of a subsequent accounting
period –
(a) The financial statements of the company for the accounting period in respect of which this section applies must be audited; and
(b) The directors may give notice to all shareholders within 4 months of the commencement of a subsequent accounting period that this section and sections 132 to 134 no longer apply to the company, and that the auditor will cease to hold office unless a notice is given
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by shareholders under subsection (1)(c) by a date specified in the notice, which must be not less than 30 working days from the date on which the notice is given; and
(c) If a notice has been given under paragraph (b), and no notice under subsection (1)(c) is received by the company by the date specified in that notice, the auditor ceases to hold office on the later of –
(i) The date specified in the notice; or
(ii) the date on which the audit of the financial statements of the
company for the previous accounting period is completed.

132 Appointment of auditor

(1) A company to which this section applies must appoint an auditor –
(a) To hold office as auditor until the auditor ceases to hold office under
section 133; and
(b) To audit the financial statements of the company.
(2) A company must appoint an auditor –
(a) Within 30 working days of the date on which this section first applies
to the company;
(b) Within 30 working days of any vacancy arising in the office of
auditor.

133 When auditor ceases to hold office

An auditor ceases to hold office if he or she –
(a) Ceases to hold office under section 131(2); or
(b) Resigns by delivering a written notice of resignation to the registered
office of the company not less than 20 working days before the date
on which the notice is expressed to be effective; or
(c) becomes disqualified from being the auditor of the company under
section 135; or
(d) Is replaced as auditor by an ordinary resolution appointing another
person as auditor in his or her place, following notice to the auditor
in accordance with section 136(2); or
(e) Dies; or
(f) becomes subject to a trustee order under section 501 of the Niue
Act 1966, or an order of medical custody under section 602 of that
Act.

134 Registrar may appoint auditor on request of shareholder

(1) The Registrar may, at the request of any shareholder, appoint an auditor
if –
(a) This section applies to a company; and
(b) The company has neglected or failed to appoint an auditor.
(2) If the Registrar appoints an auditor, the Registrar may determine the
fees to be paid by the company to the auditor.
(3) Any fees determined by the Registrar may be recovered as if they were
provided for in a contract between the company and the auditor.

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135 Qualifications of auditor

(1) A person must not be appointed or act as an auditor of a company
unless –
(a) The person is entitled to practise as an accountant in Niue, and meets any further requirements in respect of practice as an auditor in Niue that may be prescribed by regulations made under this Act; or
(b) If the audit is to be carried out outside Niue, the person is eligible to act as an auditor in the country, state, or territory in which the audit is to be carried out, and –
(i) The person is a member, fellow, or associate of an association of accountants constituted outside Niue that has been approved for the time being for the purposes of this section by the Registrar by public notice; or
(ii) the person has been approved for the time being for the
purposes of this section by the Registrar by public notice.
(2) The following persons must not be appointed or act as auditor of a
company –
(a) A director or secretary or employee of the company, or any other
person responsible for keeping the accounting records of the
company;
(b) A person who is a partner, or in the employment, of a person referred
to in paragraph (a);
(c) A liquidator or administrator or a person who is a receiver in respect
of the property of the company;
(d) A corporation;
(e) A person who, by virtue of any of paragraphs (a) to (c), may not be
appointed or act as auditor of a related company.

136 Statement by auditor in relation to resignation or removal

(1) If an auditor resigns from office, the directors must, if requested to do
so by that auditor –
(a) Distribute to all shareholders, at the expense of the company, a
written statement of the auditor ’s reasons for resigning; or
(b) Permit the auditor or his or her representative to explain at a
shareholders’ meeting the reasons for the resignation.
(2) A company must not appoint a new auditor in the place of an auditor
who is qualified to hold that office, unless –
(a) At least 20 working days’ written notice of a proposal to do so has
been given to the auditor; and
(b) The auditor has been given a reasonable opportunity to make
representations to the shareholders on the appointment of another
person either in writing or by the auditor or his or her representative
speaking at a shareholders’ meeting (whichever the auditor may
choose).
(3) An auditor is entitled to be paid reasonable fees and expenses by the
company for making the representations to shareholders referred to in subsections
(1) or (2).
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137 Auditor to avoid conflict of interest

An auditor of a company must ensure, in carrying out the duties of an
auditor under this Part, that his or her judgment is not impaired by reason of any
relationship with, or interest in, the company or any related company.

138 Auditor’s report

The auditor of a company to which sections 131 to 134 apply must make a
report to the shareholders on the financial statements audited by him or her that
states –
(a) The work done by the auditor; and
(b) The scope and limitations of the audit; and
(c) The existence of any relationship (other than that of auditor) that
the auditor has with, or any interests that the auditor has in, the
company or any related company; and
(d) Whether the auditor has obtained all information and explanations
that he or she has required; and
(e) Whether, in the auditor ’s opinion, as far as appears from an
examination of them, proper accounting records have been kept by
the company; and
(f) Whether, in the auditor ’s opinion and having regard to any
information or explanations that may have been added by the
company, the financial statements –
(i) give a true and fair view of the matters to which they relate;
and
(ii) Comply with any applicable regulations made under this Act –
and, if they do not, the respects in which they fail to give such a
view or comply with such requirements, as the case may be; and
(g) Any other matter prescribed for the purposes of this section by
regulations made under this Act.

139 Access to information

(1) The directors of a company must ensure that an auditor of the company
has access at all times to the accounting records and other documents of the
company.
(2) An auditor of a company is entitled to require from a director or
employee of the company such information and explanations that he or she thinks
necessary for the performance of his or her duties as auditor.
(3) If the directors of a company fail to comply with subsection (1), every
director commits an offence and is liable on conviction to a fine not exceeding 50
penalty units.
(4) A director or employee who fails to comply with subsection (2) commits
an offence and is liable on conviction to a fine not exceeding 50 penalty units.
(5) It is a defence to an employee charged with an offence against subsection
(4) if the employee proves that –
(a) He or she did not have the information required in his or her
possession or under his or her control; or
(b) by reason of the position occupied by him or her or the duties
assigned to him or her, he or she was unable to give the explanations
required.

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140 Auditor’s attendance at shareholders’ meeting

(1) The directors of a company must ensure that an auditor of the
company –
(a) Is permitted to attend a meeting of shareholders of the company;
and
(b) Receives the notices and communications that a shareholder is
entitled to receive relating to meetings and resolutions of
shareholders; and
(c) May be heard at a meeting of shareholders that he or she attends
on any part of the business of the meeting that concerns him or her
as auditor.
(2) If the directors of a company fail to comply with subsection (1), every
director of the company commits an offence and is liable on conviction to a fine
not exceeding 50 penalty units.

Subpart 5 – Company charges

141 Charges may be registered

(1) A registrable charge may be, but is not required to be, registered under
this Act in accordance with Schedule 7.
(2) Where any property of a company is subject to a registered charge and
an unregistered registrable charge, the registered charge has priority unless the
person entitled to the benefit of the registered charge –
(a) Has agreed otherwise; or
(b) Had notice at the time that the registered charge was granted that
the unregistered charge existed, and applied to the relevant property
or class of property.
(3) Where any property of a company is subject to more than 1 registered
company charge, those charges rank among themselves according to the date of
registration, unless the person entitled to the benefit of one registered company
charge (the first registered charge) that was registered before another company
charge (the second registered charge) –
(a) Has agreed to accept a lesser priority than this provision would
otherwise confer; or
(b) Had notice at the time that the first registered charge was granted
that the second registered charge existed, and that it applied to the
relevant property or class of property.

142 Amalgamations

PART 8
AMALGAMATIONS, ETC

Subpart 1 – Amalgamations

Two or more companies may amalgamate, and continue as 1 company, in accordance with this subpart.

143 Notice of proposed amalgamation

The directors of each amalgamating company must, not less than 20 working
days before the amalgamation is proposed to take effect –
(a) Send a copy of the amalgamation proposal to every secured creditor
of the company; and
(b) Give public notice of the proposed amalgamation, including a
statement that –
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(i) copies of the amalgamation proposal are available for inspection by any shareholder or creditor of an amalgamating company or any person to whom an amalgamating company is under an obligation at the registered offices of the amalgamating companies and at any other places specified during normal business hours; and
(ii) a shareholder or creditor of an amalgamating company or any person to whom an amalgamating company is under an obligation is entitled to be supplied free of charge with a copy of the amalgamation proposal on request to an amalgamating company.

144 Registration of amalgamation proposal

For the purpose of effecting an amalgamation, the following documents
must be delivered to the Registrar for registration –
(a) An amalgamation proposal approved in accordance with Schedule
6;
(b) A certificate signed by the directors of each amalgamating company
stating that the amalgamation has been approved in accordance
with this Act and the company’s rules;
(c) A document in the prescribed form signed by each of the persons
named in the amalgamation proposal as a director of the
amalgamated company containing his or her consent to be a director.

145 Certificate of amalgamation

(1) Immediately after receipt of the documents required under section 144,
the Registrar must issue a certificate of amalgamation in the prescribed form.
(2) If an amalgamation proposal specifies a date on which the
amalgamation is intended to become effective, and that date is the same as, or
later than, the date on which the Registrar receives the documents, the certificate
of amalgamation must be expressed to have effect on the date specified in the
amalgamation proposal.

146 Effect of certificate of amalgamation

On the date shown in a certificate of amalgamation –
(a) The amalgamation is effective; and
(b) Subject to section 10, the amalgamated company has the name
specified in the amalgamation proposal; and
(c) The amalgamated company is entitled to all the property, rights,
powers, and privileges of each of the amalgamating companies;
and
(d) The amalgamated company is subject to all the liabilities and
obligations of each of the amalgamating companies; and
(e) Proceedings pending by, or against, an amalgamating company may
be continued by, or against, the amalgamated company; and
(f) A conviction, ruling, order, or judgment in favour of, or against, an
amalgamating company may be enforced by, or against, the
amalgamated company; and
(g) Any provisions of the amalgamation proposal that provide for the
conversion of shares or rights of shareholders in the amalgamating
companies have effect according to their tenor.

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147 Registers

(1) If an amalgamation becomes effective, neither the Registrar of the Land
Court nor any other person charged with the keeping of any books or registers is
obliged, solely by reason of the amalgamation becoming effective, to change the
name of an amalgamating company to that of an amalgamated company in those
books or registers or in any documents.
(2) The presentation to the Registrar of the Land Court or any other person
of any instrument (whether or not comprising an instrument of transfer) by the
amalgamated company –
(a) Executed or appearing to be executed by the amalgamated
company; and
(b) Relating to any property held immediately before the amalgamation
by an amalgamating company; and
(c) Stating that that property has become the property of the
amalgamated company by virtue of this subpart –
is, in the absence of evidence to the contrary, sufficient evidence that the property
has become the property of the amalgamated company.
(3) Without limiting subsections (1) or (2), if any security issued by any
person or any rights or interests in property of any person become, by virtue of
this subpart, the property of an amalgamated company, that person, on
presentation of a certificate signed on behalf of the amalgamated company, stating
that that security or any such rights or interests have, by virtue of this subpart,
become the property of the amalgamated company, must, despite any other
enactment or rule of law or the provisions of any instrument, register the
amalgamated company as the holder of that security or as the person entitled to
such rights or interests, as the case may be.
(4) Except as expressly provided in this section, nothing in this subpart
derogates from the provisions of the Land Act 1969.

148 Powers of Court in relation to amalgamations

(1) If the Court is satisfied that giving effect to an amalgamation proposal
would unfairly prejudice a shareholder or creditor of an amalgamating company
or a person to whom an amalgamating company is under an obligation, it may, on
the application, made at any time before the date on which the amalgamation
becomes effective, of that person, make any order it thinks fit in relation to the
proposal, and may, without limiting the generality of this section, make an order –
(a) Directing that effect must not be given to the proposal;
(b) Modifying the proposal in such manner as may be specified in the
order;
(c) Directing the company or its directors to reconsider the proposal
or any part of it.
(2) An order may be made under subsection (1) on any conditions that the
Court thinks fit.

Subpart 2 – Approval of amalgamations, etc, by Court

149 Interpretation

In this subpart, unless the context otherwise requires –
arrangement includes a reorganisation of the share capital of a company by the
consolidation of shares of different classes, or by the division of shares into shares
of different classes, or by both those methods
390 Niue Laws 2006 Vol 1
company –
(a) Means a company; and
(b) Includes an overseas company that is registered on the overseas
register.

150 Approval of amalgamations, etc

(1) Subject to section 150, but despite any other provision or the rules of a
company, the Court may, on the application of a company or any shareholder or
creditor of a company, order that an amalgamation, arrangement, or compromise
is binding on the company and on any other persons or classes of persons specified
by the Court.
(2) The order may be made on any conditions that the Court thinks fit.
(3) An order made under this section has effect on and from the date
specified in the order.

151 When Court may approve amalgamations, etc

(1) An amalgamation, arrangement, or compromise may be approved
under this subpart only if it is not practicable for the amalgamation, arrangement,
or compromise to be effected under subpart 1 or subpart 2 of Part 9, or under
both.
(2) To avoid doubt, it is not impracticable for an amalgamation, arrangement, or compromise to be effected under subpart 1 or under subpart 2 of Part 9 by reason only that the compromise has not been, or would not be likely to be, approved in accordance with the procedure set out in those subparts.

152 Initial Court orders

(1) Before making an order under section 150(1), the Court may, on the
application of the company or any shareholder or creditor or other person who
appears to the Court to be interested, or of its own motion, make any 1 or more of
the following orders –
(a) An order that notice of the application, together with such
information relating to it as the Court thinks fit, be given in the
form and manner and to any persons or classes of persons specified
by the Court;
(b) An order directing the holding of a meeting or meetings of
shareholders or any class of shareholders or creditors or any class
of creditors of a company to consider and, if thought fit, to approve,
in such manner as the Court may specify, the proposed arrangement
or amalgamation or compromise and, for that purpose, the Court
may determine the shareholders or creditors that constitute a class
of shareholders or creditors of a company;
(c) An order requiring that a report on the proposed arrangement or
amalgamation or compromise be prepared for the Court by a person
specified by the Court and, if the Court thinks fit, be supplied to
the shareholders or any class of shareholders or creditors or any
class of creditors of a company or to any other person who appears
to the Court to be interested;
(d) An order as to the payment of the costs incurred in the preparation
of the report;
(e) An order specifying the persons who are entitled to appear and be
heard on the application to approve the amalgamation,
arrangement, or compromise.

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(2) In making an order under subsection (1), the Court must have regard to the procedures for amalgamations under subpart 1 and for compromises under subpart 2 of Part 9.
(3) An order made under this section has effect on and from the date specified in the order.

153 Court may make additional orders

(1) Without limiting section 150, the Court may, for the purpose of giving
effect to any amalgamation, arrangement, or compromise approved under that
section, either by the order approving the amalgamation, arrangement, or
compromise, or by any later order, provide for, and prescribe terms and conditions
relating to –
(a) The transfer or vesting of real or personal property, assets, rights,
powers, interests, liabilities, contracts, and engagements;
(b) The issue of shares, securities, or policies of any kind;
(c) The continuation of legal proceedings;
(d) The liquidation of any company;
(e) The provisions to be made for persons who voted against the
amalgamation, arrangement, or compromise at any meeting called
in accordance with any order made under section 152(1)(b) or who
appeared before the Court in opposition to the application to
approve the amalgamation, arrangement, or compromise;
(f) Any other matters that are necessary or desirable to give effect to
the amalgamation, arrangement, or compromise.
(2) An order made under this section has effect on and from the date
specified in the order.

154 Copy of orders to be delivered to Registrar

(1) Within 10 working days of an order being made by the Court under
this subpart, the company must ensure that a copy of the order is delivered to the
Registrar for registration.
(2) If a company fails to comply with subsection (1), every director of the
company commits an offence and is liable on conviction to a fine not exceeding 50
penalty units.

155 Application of section 209

Section 209 applies, with the necessary modifications, to any compromise
approved under section 151.

156 Purpose

PART 9
INSOLVENT COMPANIES

Subpart 1–Administrations

PURPOSE
(1) The purpose of this subpart and Schedules 8 to 12 is to provide for the business, property, and affairs of an insolvent company to be administered in a way that –
(a) Maximises the chances of the company, or the whole or any part of its business, continuing in existence as a viable business; or
(b) Results in a better return for the company’s creditors and
shareholders than would result from an immediate liquidation of
the company.
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(2) The provisions relating to administrations are set out in – (a) This subpart; and
(b) Schedules 8 and 9, which apply to administrators; and
(c) Schedule 10, which sets out the effect of administration; and
(d) Schedule 11, which applies to creditors’ committees; and
(e) Schedule 12, which, with the necessary modifications, applies to
meetings of creditors.

Beginning of administration

157 When administration begins

The administration of a company begins when an administrator of the
company is appointed.

Restrictions on appointment of administrator

158 Restrictions on appointment of administrator

(1) The following persons must not be appointed as an administrator –
(a) A person who must not be appointed as an administrator under
clause 1 of Schedule 9, unless the Court orders otherwise;
(b) A person who has not consented in writing to his or her appointment
as an administrator.
(2) Every person who acts as an administrator in contravention of
subsection (1)(a) commits an offence and is liable on conviction to a fine not
exceeding 50 penalty units.

How administrator may be appointed

159 Who may appoint administrator

(1) An administrator of a company may be appointed by –
(a) The board of directors of a company; or
(b) If the company is in liquidation, the liquidator; or
(c) If an interim liquidator has been appointed, the interim liquidator;
or
(d) A chargeholder holding a charge over the whole, or substantially
the whole, of the company’s property; or
(e) The Court.
(2) If the company is already in administration, an administrator may be
appointed only by –
(a) The Court; or
(b) The creditors, as a replacement administrator for an administrator
that the creditors have removed; or
(c) The appointer of the first administrator, if that administrator has
died, resigned, or become disqualified.

160 Directors may appoint administrator

(1) The board of directors of a company may appoint an administrator of
the company if the board of directors has resolved at a meeting called under section
71 that –
(a) In the opinion of the directors voting for the resolution, the company is unable, or is likely to become unable, to pay its debts in the normal course of business; and
(b) An administrator of the company should be appointed for the purposes of achieving 1 of the purposes set out in section 156.

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(2) Subsection (1) does not apply –
(a) To a company that is already in liquidation;
(b) If a receiver has been appointed in respect of the whole of the
property of the company, unless the person by whom the receiver
was appointed has consented to the appointment of an
administrator;
(c) If an administrator has been appointed on a previous occasion,
unless leave of the Court is first obtained.
(3) The appointment must be in writing.

161 Liquidator may appoint administrator

(1) A liquidator or interim liquidator of a company may appoint an
administrator of the company if the liquidator or interim liquidator is of the opinion
that –
(a) The company is unable, or is likely to become unable, to pay its debts in the normal course of business; and
(b) An administrator should be appointed for the purposes of achieving
1 of the purposes set out in section 156.
(2) A liquidator or interim liquidator of a company may appoint himself
or herself as an administrator, with the leave of the Court.
(3) The appointment must be in writing.
(4) The appointment of any administrator while the company is in
liquidation does not terminate the appointment of the liquidator or interim
liquidator unless the Court makes such an order under section 254 on the
application of the liquidator or interim liquidator, or of the administrator.

162 Secured creditor may appoint administrator

(1) A person who is entitled to enforce a charge over all of a company’s
property may appoint an administrator of the company if –
(a) The charge has become, and is still, enforceable; and
(b) The secured creditor is of the opinion that an administrator should
be appointed for the purposes of achieving 1 of the purposes under
section 156.
(2) Subsection (1) does not apply to a company that is already in liquidation.
(3) The appointment must be in writing.

163 Appointment of administrator not to be revoked

The appointment of a person as administrator of a company may be revoked
only –
(a) By order of the Court under section 164; or
(b) By a decision of creditors under section 180 or under clause 6 of
Schedule 9 to appoint someone else as administrator of the company.

164 Court may remove administrator

On the application of the Registrar or of a creditor of the company
concerned, the Court may –
(a) Remove from office the administrator of a company under
administration or under a compromise approved under this subpart;
and
(b) Subject to section 158(1), appoint someone else as administrator of
the company or under the compromise.
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Notices

165 Notices given by administrator

(1) An administrator of a company must –
(a) Lodge a notice of the appointment with the Registrar before the
end of the next working day after the appointment; and
(b) Give public notice of the appointment within 10 working days after
the appointment; and
(c) Before the end of the next working day after the administrator is
appointed, give a written notice of the appointment to –
(i) every person who holds a charge on all of the company’s
property; and
(ii) every person who holds 1 or more charges on property of the
company if the property of the company subject to the charges
constitutes all, or substantially all, of the company’s property;
and
(iii) every secured party who holds a registered charge.
(2) An administrator need not give a notice under subsection (1)(c) to the
person who appointed the administrator.

166 Notice given by secured creditor

Before the end of the next working day after appointing an administrator
of a company, the secured creditor must give to the company a written notice of
the appointment.

167 Requirements for notices given under sections 165 or 166

A notice given under sections 165 or 166 must be in the prescribed form
and must contain –
(a) The full name of the administrator; and
(b) The date of appointment of the administrator; and
(c) The administrator ’s business address, telephone and fax numbers,
and email address (if any).

168 Notice of administration

(1) A company under administration must set out, in every agreement
entered into or document issued by the company, and in every negotiable
instrument, after the company’s name where it first appears, the expression
“(administrator appointed)” or, if an administrator has been appointed under
section 161, the expression “(administrator appointed and in liquidation)”.
(2) Every person who fails to comply with subsection (1) commits an
offence and is liable on conviction to a fine not exceeding 25 penalty units.

Investigation of company’s affairs

169 Administrator to investigate company’s affairs

As soon as practicable after the administration of a company begins, the
administrator must –
(a) Investigate the company’s business, property, affairs, and financial
circumstances; and
(b) Form an opinion about each of the following matters –
(i) whether it would be in the interests of the company’s creditors
to approve a compromise binding on the company and its
creditors or a class of creditors;

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(ii) whether it would be in the creditors’ interests for the administration to end;
(iii) whether it would be in the creditors’ interests for a liquidator of the company to be appointed.

170 Directors to deliver documents to administrator

As soon as practicable after the administration of a company begins, each
director of the company must –
(a) Deliver to the administrator all records and documents in the
director ’s possession that relate to the company and that the director
is not entitled, as against the company and the administrator, to
retain; and
(b) If the director knows where other records and documents relating
to the company are, tell the administrator where they are.

171 Directors to give administrator statement of company’s affairs

(1) Within 5 working days after the administration of a company begins,
the directors must give to the administrator a statement about the company’s
business, property, affairs, and financial circumstances.
(2) The administrator may extend the time for compliance with subsection
(1).
(3) The administrator must table the directors’ statement – (a) At the first creditors’ meeting; or
(b) If the administrator has extended the time for compliance by the directors, at the watershed meeting.

172 Directors must give administrator other information

A director of a company under administration must –
(a) Attend on the administrator at any times that the administrator
reasonably requires; and
(b) Give the administrator all information about the company’s
business, property, affairs, and financial circumstances that the
administrator reasonably requires.

173 Offence not to comply with sections 170 to 172

A person who, without reasonable excuse, fails to comply with any of
sections 170 to 172 commits an offence and is liable on conviction to a fine not
exceeding 50 penalty units.

Administrator’s rights to company’s documents

174 Restriction on enforcement of lien over company’s documents

(1) A person is not entitled, as against the administrator of a company, to –
(a) Retain possession of records and documents of the company; or
(b) Claim or enforce a lien on them.
(2) A lien is not, apart from subsection (1), otherwise prejudiced.

175 Delivery of company’s documents held by secured creditor

(1) Section 174 does not apply to a secured creditor who, otherwise than
because of a lien, is entitled to possession of records and documents of a company.
(2) Despite subsection (1), an administrator is, at any reasonable time,
entitled to inspect, and make copies of, those records and documents.
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176 Notice to deliver company’s documents to administrator

(1) An administrator may give to a person a written notice requiring the
person to deliver to the administrator the records and documents of a company
that are specified in the notice and that are in the person’s possession.
(2) A notice under subsection (1) must specify a period of at least 3 working
days as the period within which the notice must be complied with.

177 Offence not to comply with sections 174 to 176

Every person who fails to comply with any of sections 174 to 176 commits
an offence and is liable on conviction to a fine not exceeding 50 penalty units.

First creditors’ meeting

178 Preparation for first creditors’ meeting

An administrator of a company must –
(a) Compile and maintain, for each class of creditors of the company, a
list of creditors known to the administrator, setting out –
(i) the amount owing or estimated to be owing to each of them;
and
(ii) the number of votes that each of them is entitled to cast at a
meeting of creditors held under this subpart; and
(b) Within 10 working days after the administration begins, hold a first
creditors’ meeting.

179 Notice of first creditors’ meeting

At least 5 working days before the first creditors’ meeting, the administrator
must give –
(a) Written notice of the meeting to all secured parties who hold a
registered charge over any property of the company; and
(b) Written notice of the meeting to as many of the company’s other
creditors as reasonably practicable; and
(c) Public notice of the meeting.

180 Proceedings at first creditors’ meeting’

(1) At the first creditors’ meeting, the company’s creditors may, by
resolution –
(a) Determine whether to appoint a creditors’ committee, and, if so,
appoint the committee’s members; or
(b) Appoint someone else as administrator of the company; or
(c) End the administration.
(2) Schedule 11 applies to creditors’ committees.
(3) Schedule 12 applies, with the necessary modifications, to meetings of
creditors held under this subpart (including meetings of creditors’ committees).

181 Offence not to comply with sections 178 or 179

Every person who does not comply with sections 178 or 179 commits an
offence and is liable on conviction to a fine not exceeding 50 penalty units.

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Reports by administrators

182 Reports by administrators

(1) In the circumstances set out in subsection (2), an administrator of a
company must –
(a) Lodge a report with the Registrar about the matter as soon as
practicable; and
(b) Give the Registrar any information, and access to any facilities for
inspecting and taking copies of documents, that the Registrar
requires.
(2) The circumstances are that it appears to the administrator that –
(a) A past or present officer, or a shareholder, of the company may
have been guilty of an offence in relation to the company; or
(b) A person who has taken part in the formation, promotion,
administration, management, or liquidation of the company may
have –
(i) misapplied or retained, or may have become liable or
accountable for, money or property (in Niue or elsewhere) of
the company; or
(ii) been guilty of negligence, default, breach of duty, or breach of
trust in relation to the company.
(3) The administrator may also lodge further reports specifying any other
matter that, in his or her opinion, should be brought to the Registrar ’s notice.

183 Court may direct administrator to lodge report

(1) In the circumstances set out in subsection (2), the Court may, on the
application of an interested person or of its own motion, direct the administrator
to lodge a report.
(2) The circumstances are that –
(a) It appears to the Court that –
(i) a past or present officer, or a shareholder, of a company under
administration has been guilty of an offence in relation to the
company; or
(ii) a person who has taken part in the formation, promotion,
administration, management, or liquidation of a company
under administration has engaged in conduct of a kind referred
to in section 181(2)(b)(i) or (ii) in relation to the company; and
(b) The administrator has not lodged a report about the matter.

Watershed meeting

184 What is watershed meeting

The watershed meeting is the meeting of creditors called by the
administrator to decide the future of the company and, in particular, whether the
company and creditors should enter into a compromise under subpart 2.

185 Administrator must convene watershed meeting

(1) The administrator must convene the watershed meeting within the
convening period.
(2) The convening period is the period of 20 working days after the date
on which the administrator is appointed, and includes any period for which it is
extended under subsection (3).
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(3) The Court may, on the administrator ’s application, extend the convening period, but must not do so if the application is made after the convening period has expired, unless the Court is satisfied that a substantial injustice will result if the convening period is not extended.

186 Notice of watershed meeting

(1) The administrator must convene the watershed meeting by –
(a) Giving written notice of the meeting to as many of the company’s
creditors as reasonably practicable; and
(b) Publishing a notice of the meeting in a national newspaper.
(2) The administrator must take the steps in subsection (1) not less than 5
working days before the meeting.
(3) The notice given to creditors under subsection (1)(a) must be
accompanied by –
(a) A report by the administrator about the company’s business,
property, affairs, and financial circumstances and setting out the
basis of remuneration or proposed remuneration of the
administrator; and
(b) A statement setting out the administrator ’s opinion (including his
or her reasons for the opinion) about each of the following matters –
(i) whether it would be in the creditors’ interests for the company
to enter into a compromise that is binding on the company and
its creditors or a class of creditors;
(ii) whether it would be in the creditors’ interests for the
administration to end;
(iii) whether it would be in the creditors’ interests for a liquidator
of the company to be appointed; and
(c) If a compromise is proposed, a statement setting out details of the
proposed compromise in accordance with section 205(2)(b), but it
is not necessary for the administrator to give a separate notice under
that section; and
(d) A copy of the list or lists of creditors referred to in section 178.

187 When watershed meeting must be held

(1) The watershed meeting must be held within 5 working days after the
end of the convening period or extended convening period, as the case may be.
(2) The watershed meeting may be adjourned, but only to a day that is not
more than 30 working days after the first day on which the meeting was held.
(3) However, the Court may, on the administrator ’s application, order that
the meeting be adjourned for more than 30 working days.

188 What creditors may decide at watershed meeting

(1) At a watershed meeting, the creditors may resolve –
(a) To approve a compromise that is binding on its creditors or a class
of creditors as specified in the resolution (even if it differs from the
proposed compromise (if any), details of which accompanied the
notice of meeting, as a result of any amendment adopted at the
meeting); or
(b) That the administration should end; or
(c) If the administrator has so recommended, that a liquidator of the
company be appointed.
(2) Despite anything in Schedule 12 –

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(a) A resolution for the purposes of subsection (1)(a) is adopted if a majority in number and value of the creditors or class of creditors, voting in person or by proxy, vote in favour of the resolution; and
(b) Section 206(3) applies to such a resolution.

End of administration

189 When administration ends

The administration of a company ends on the happening of whichever event
of a kind referred to in sections 190 or 191 happens first after the administration
begins.

190 Normal way for administration to end

The normal outcome of the administration of a company is that –
(a) A compromise is approved by creditors that is binding on the
company and its creditors or a class of creditors; or
(b) The company’s creditors resolve that the administration should end;
or
(c) The company’s creditors resolve that a liquidator of the company
be appointed.

191 Other ways in which administration may end

The administration of a company may also end because –
(a) the Court orders that the administration is to end, for example,
because the Court is satisfied that the company is solvent; or
(b) The convening period for a watershed meeting ends –
(i) without the meeting being convened in accordance with section
186; and
(ii) without an application being made for the Court to extend the
convening period for the watershed meeting; or
(c) An application for the Court to extend the convening period is
finally determined or otherwise disposed of other than by the Court
extending the convening period; or
(d) The convening period, as extended, ends without the meeting being
convened in accordance with section 186; or
(e) A watershed meeting called under section 184 ends (whether or
not it was earlier adjourned) without a resolution under section
188(1) being passed at the meeting; or
(f) The Court appoints an interim liquidator of the company or
appoints a liquidator of the company.

192 Notice of end of administration

If a meeting of the company’s creditors resolves that the administration
should end, or resolves that a liquidator be appointed, the administrator must,
immediately after the declaration of the result of the resolution of creditors –
(a) Lodge a notice with the Registrar that the administration is at an
end or that a liquidator has been appointed, as the case may be;
and
(b) Cause a public notice to be published that the administration is at
an end or that a liquidator has been appointed, as the case may be.
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Creditors’ resolution approving compromise

193 Effect of creditors’ resolution approving compromise

If, at a creditors’ meeting, a company’s creditors approve a compromise –
(a) The administrator of the company is the administrator under the
compromise unless the creditors, by resolution passed at the
meeting, appoint someone else to be administrator under the
compromise; and
(b) The administrator must prepare a document setting out the terms
of the compromise (compromise document).

194 Contents of compromise document

The compromise document must specify all the following –
(a) The administrator of the compromise and the basis for determining
his or her remuneration;
(b) The property of the company (whether or not already owned by
the company when it executes the deed) that is to be available to
pay creditors’ claims;
(c) The nature and duration of any moratorium period for which the
compromise provides;
(d) To what extent (if any) the company is to be released from its debts;
(e) The conditions (if any) for the compromise to come into operation;
(f) The conditions (if any) for the compromise to continue in operation;
(g) The circumstances in which the compromise terminates;
(h) The order in which proceeds of realising the property referred to in
paragraph (b) will be distributed among creditors bound by the
compromise;
(i) The day (not later than the day when the administration began) on
or before which creditors’ claims must have arisen if they are to be
admissible under the compromise;
(j) Any other matters prescribed by regulations.

195 Application of subpart 2 to compromise proposed by administrator

The provisions of subpart 2 apply to a compromise proposed by an
administrator except as expressly modified or excluded by this subpart.

196 Notice of approval of compromise

(1) Within 10 working days after a compromise is approved at a creditors’
meeting, the administrator must –
(a) Send a written notice of the result of the voting of the creditors to –
(i) each creditor of the company; and
(ii) the company; and
(iii) any receiver of the company; and
(iv) any liquidator of the company; and
(b) Give public notice of the result of the voting of the creditors; and
(c) Give written notice of the voting of the creditors to, and lodge a
copy of the compromise document with, the Registrar.
(2) Every person who fails to comply with subsection (1) commits an
offence and is liable on conviction to a fine not exceeding 50 penalty units.

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Creditors’ resolution approving appointment of liquidator

197 Creditors’ resolution approving appointment of liquidator

(1) If a company’s creditors approve the appointment of a liquidator –
(a) Subject to subsection (3), the administrator is the liquidator with
effect from the date and time at which the resolution is passed; and
(b) The liquidator need not –
(i) call a meeting of creditors; or
(ii) give a notice under section 237(1); or
(iii) give public notice if the liquidator has lodged a notice with the
Registrar under section 237(2); but
(c) Except as expressly provided otherwise, subpart 3 applies, with
the necessary modifications, to the liquidation.
(2) The administrator must record the time and date at which the resolution
was passed or the contravention occurred, and the time and date at which the
administration begins.
(3) The creditors may, by resolution, appoint a named person other than
the administrator to be the liquidator of the company. If that person has consented
in writing to the appointment before it is made, that person is the liquidator with
effect from the date and time at which the resolution is passed. Otherwise, that
person becomes liquidator with effect from the date and time at which he or she
consents in writing to the appointment, and until such time the administrator is
the liquidator in accordance with subsection (1).

198 Notice of appointment of liquidator

Within 10 working days after the day on which the liquidator is appointed
at a creditors’ meeting, the liquidator must lodge with the Registrar a written
notice –
(a) Stating that a liquidator of the company has been appointed; and
(b) Specifying the date on which, and time at which, the liquidation
begins.

Protection of persons during administration

199 Protection of persons dealing with administrator, etc

(1) A person is entitled, in relation to the person’s dealings with an
administrator of a company or another person who has, or appears to have, directly
or indirectly acquired title to property of the company from the administrator, to
assume that –
(a) The company’s rules and this Act have been complied with;
(b) Any person who appears, from information provided by the
administrator or company that is available to the public, to be an
administrator of the company –
(i) has been appointed; and
(ii) has authority to exercise the powers and perform the functions
customarily exercised or performed by an administrator of a
similar company;
(c) Anyone who is held out by an administrator or the company to be
an agent of the administrator or an officer or agent of the company –
(i) has been appointed; and
(ii) has authority to exercise the powers and perform the functions
customarily exercised or performed by that kind of officer or
agent of a similar company or by that kind of agent of the
administrator;
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(d) The administrator, officers and agents of the company, and agents of the administrator, properly perform their duties to the company;
(e) A document has been duly executed by the company if the document appears to have been signed by the administrator;
(f) A document has been executed by a company that has a common seal if –
(i) the company’s common seal appears to have been fixed to the document; and
(ii) the fixing of the common seal appears to have been witnessed
by the administrator;
(g) An administrator of the company who has authority to issue a
document or a certified copy of a document on its behalf also has
authority to warrant that the document is genuine or is a copy.
(2) Subsection (1) –
(a) Applies even if the administrator or an officer or agent of the
company acts fraudulently, or forges a document, in connection
with the dealings; but
(b) Does not apply if the person who is entitled to make the assumptions
in that subsection knew or suspected that the assumption was
incorrect.

200 Validity of things done during administration

A payment made, transaction entered into, or any other act or thing done,
in good faith, by, or with the consent of, the administrator of a company under
administration –
(a) Is valid and effectual for the purposes of this Act; and
(b) Is not liable to be set aside in a liquidation of the company.

201 General power to make orders

(1) The Court may, on any conditions that it thinks fit, make any order that
it thinks appropriate about how this subpart is to operate in relation to the
administration of a particular company (for example, that the administration of
the company is to end).
(2) An order may be made on the application of –
(a) The company; or
(b) A creditor of the company; or
(c) In the case of a company under administration, the administrator
of the company; or
(d) In the case of a company that has entered into a compromise, the
administrator (if any) under the compromise; or
(e) The Registrar; or
(f) Any other interested person.

202 Court orders protecting creditors or shareholders

The Court may, on the application of the Registrar or of a creditor or
shareholder of a company, make any order that the Court thinks just if the Court
is satisfied that the administrator of a company under administration, or under a
compromise –
(a) Has managed, or is managing, the company’s business, property,
or affairs in a way that is prejudicial to the interests of some or all of
the company’s creditors or shareholders; or
(b) Has acted or has not acted, or proposes to act or not to act, in a way
that is or would be prejudicial to those interests.

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203 Court orders to protect creditors during administration

(1) The Court may, on the application of the Registrar or of a creditor of a
company, make any order that it thinks necessary to protect the interests of the
company’s creditors while the company is under administration.
(2) An order may be made subject to conditions.

Subpart 2 – Compromises with creditors

204 Compromise proposal

Any of the following persons may propose a compromise under this subpart
if that person has reason to believe that a company is or will be unable to pay its
debts as they become due in the normal course of business –
(a) The directors of the company;
(b) A receiver appointed in relation to the whole or substantially the
whole of the assets and undertaking of the company;
(c) A liquidator or an administrator of the company.

205 Notice of proposed compromise

(1) The proponent must compile, in relation to each class of creditors of
the company, a list of creditors known to the proponent who would be affected by
the proposed compromise, setting out –
(a) The amount owing or estimated to be owing to each of them; and
(b) The number of votes that each of them is entitled to cast on a
resolution to approve the compromise.
(2) The proponent must give to each known creditor, the company, any
receiver or liquidator, and deliver to the Registrar for registration –
(a) Notice in accordance with Schedule 12 of the intention to hold a
meeting of creditors, or any 2 or more classes of creditors, for the
purpose of voting on the resolution; and
(b) A statement –
(i) containing the name and address of the proponent and the
capacity in which the proponent is acting; and
(ii) containing the address and telephone number to which
inquiries may be directed during normal business hours; and
(iii) setting out the terms of the proposed compromise and the
reasons for it; and
(iv) setting out the reasonably foreseeable consequences for
creditors of the company of the compromise being approved;
and
(v) setting out the extent of any interest of a director in the proposed
compromise; and
(vi) Explaining that the proposed compromise and any amendment
to it proposed at a meeting of creditors or any classes of creditors
will be binding on all creditors, or on all creditors of that class,
if approved in accordance with section 206; and
(vii) containing details of any procedure proposed as part of the
proposed compromise for varying the compromise following
its approval; and
(c) A copy of the list or lists of creditors referred to in subsection (1).
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206 Effect of compromise

(1) A compromise, including any amendment proposed at the meeting, is
approved by creditors, or a class of creditors, if, at a meeting of creditors or that
class of creditors conducted in accordance with Schedule 12, the compromise,
including any amendment, is adopted in accordance with that schedule.
(2) A compromise, including any amendment, approved by creditors or a
class of creditors of a company in accordance with this subpart is binding on the
company and on all creditors, or, if there is more than 1 class of creditors, on all
creditors of that class, to whom notice of the proposal was given.
(3) If a resolution proposing a compromise, including any amendment, is
put to the vote of more than 1 class of creditors, it is to be presumed, unless the
contrary is expressly stated in the resolution, that the approval of the compromise,
including any amendment, by each class is conditional on the approval of the
compromise, including any amendment, by every other class voting on the
resolution.
(4) The proponent must give written notice of the result of the voting to
each known creditor, the company, any receiver or liquidator, and the Registrar.

207 Variation of compromise

(1) An approved compromise may be varied or terminated either –
(a) In accordance with any procedure for variation or termination
incorporated in the compromise as approved; or
(b) by the approval of a proposal to vary or terminate the compromise
in accordance with this subpart that, for that purpose, applies, with
all necessary modifications, as if any the proposal were a proposed
compromise.
(2) This subpart applies to any compromise that is varied in accordance
with this section.

208 Powers of Court

(1) On the application of the proponent or the company, the Court may –
(a) Give directions in relation to a procedural requirement imposed by
this subpart, or waive or vary any such requirement, if it is satisfied
that it would be just to do so; or
(b) Order that, during a period specified in the order, beginning not
earlier than the date on which notice was given of the proposed
compromise and ending not later than 10 working days after the
date on which notice was given of the result of the voting on it –
(i) Proceedings in relation to a debt owing by the company be
stayed; or
(ii) A creditor refrain from taking any other measure to enforce
payment of a debt owing by the company.
(2) Nothing in subsection (1)(b) affects the right of a secured creditor during
that period to take possession of, realise, or otherwise deal with, property of the
company over which that creditor has a charge.
(3) The Court may order that the creditor is not bound by the compromise
or make any other order that it thinks fit if the Court is satisfied, on the application
of a creditor of a company who was entitled to vote on a compromise, that –
(a) Not enough notice of the meeting or of the matter required to be
notified under section 205 was given to that creditor; or
(b) There was some other material irregularity in obtaining approval
of the compromise; or

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(c) In the case of a creditor who voted against the compromise, the compromise is unfairly prejudicial to that creditor, or to the class of creditors to which that creditor belongs.
(4) An application under subsection (3) must be made not later than 10 working days after the date on which notice of the result of the voting was given to the creditor.

209 Effect of compromise in liquidation of company

(1) If a compromise is approved, the Court may, on the application of –
(a) The company; or
(b) A receiver appointed in relation to property of the company; or
(c) With the leave of the Court, any creditor or shareholder of the
company –
make such order as the Court thinks fit with respect to the extent, if any, to which
the compromise will, if the company is put into liquidation, continue in effect and
be binding on the liquidator of the company.
(2) If a compromise is approved and the company is later put into
liquidation, the Court may, on the application of any person described in subsection
(3), make any order that the Court thinks fit with respect to the extent, if any, to
which the compromise will continue in effect and be binding on the liquidator of
the company.
(3) The persons referred to in subsection (2) are –
(a) The liquidator; or
(b) A receiver appointed in relation to property of the company; or
(c) With the leave of the Court, any creditor or shareholder of the
company.

210 Costs of compromise

Unless the Court orders otherwise, the costs incurred in organising and
conducting a meeting of creditors for the purpose of voting on a proposed
compromise –
(a) Must be met by the company; or
(b) If incurred by a receiver or an administrator or a liquidator, are a
cost of the receivership or administration or liquidation; or
(c) If incurred by any other person, are a debt due to that person by
the company.

211 Purpose

Subpart 3–Liquidations

PURPOSE
(1) The purpose of this subpart and Schedules 12 to 18 is to provide for a liquidator of a company –
(a) To take possession of, protect, realise, and distribute the assets, or the proceeds of the realisation of the assets, of the company to its creditors in accordance with this Act; and
(b) If there are surplus assets remaining, to distribute them, or the proceeds of the realisation of the surplus assets, in accordance with section 250.
(2) The provisions relating to liquidations are set out in – (a) This subpart; and
(b) Schedule 12, which, with the necessary modifications, applies to meetings of creditors; and
406 Niue Laws 2006 Vol 1
(c) Schedules 13 and 14, which apply to liquidators; and
(d) Schedule 15, which sets out the effect of liquidation; and
(e) Schedule 16, which applies to liquidation committees; and
(f) Schedule 17, which applies to voidable transactions and charges
and recoveries in other cases in a liquidation; and
(g) Schedule 18, which applies to creditors’ claims.

Beginning of liquidation

212 When liquidation begins

(1) The liquidation of a company begins on the date on which, and at the
time at which, the liquidator is appointed.
(2) The liquidator must be a named person.
(3) If any question arises as to whether, on the date on which a liquidator
was appointed, an act was done or a transaction was entered into or effected before
or after the time at which the liquidator was appointed, that act or transaction is,
in the absence of proof to the contrary, deemed to have been done or entered into
or effected, as the case may be, after that time.

Restrictions on appointment of liquidator

213 Restrictions on appointment of liquidator

(1) Unless the Court orders otherwise, none of the persons referred to in
clause 1 of Schedule 14 may be appointed or act as a liquidator of a company.
(2) The appointment of a person as a liquidator is of no effect unless that
person has consented in writing to the appointment.
(3) Every person who acts as a liquidator in contravention of subsection
(1) commits an offence and is liable on conviction to a fine not exceeding 50 penalty
units.

How liquidator may be appointed

214 Board may appoint liquidator

(1) A liquidator may be appointed by the resolution of the board of directors
of the company on the occurrence of an event specified in the company’s rules.
(2) The board of directors of the company must record, in the document
appointing the liquidator, the date on which, and the time at which, the liquidator
was appointed.

215 Shareholders may appoint liquidator

(1) A liquidator may be appointed by special resolution of those
shareholders entitled to vote and voting on the question.
(2) The shareholders must record in the special resolution appointing the
liquidator the date on which, and the time at which, the special resolution was
passed.

216 Creditors may appoint liquidator

A liquidator may be appointed by resolution of the creditors of the company
under administration in accordance with section 188(1)(c).

217 Court may appoint liquidator

(1) A liquidator may be appointed by the Court on the application of –
(a) The company; or
(b) A director of the company; or
(c) A shareholder of the company; or

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(d) A creditor of the company (including any contingent or prospective creditor); or
(e) An administrator under a compromise approved at a creditors’
meeting; or
(f) The Registrar.
(2) The Court may appoint a liquidator if it is satisfied that –
(a) The company is unable to pay its debts; or
(b) The company or the directors have persistently or seriously failed
to comply with this Act; or
(d) It is just and equitable that the company be put into liquidation.
(3) The Court must record in the order appointing the liquidator the date
on which, and the time at which, the order was made.

218 Interim liquidator

(1) If an application has been made to the Court for an order that a company
be put into liquidation, the Court may, if it is satisfied that it is necessary or
expedient for the purpose of maintaining the value of assets owned or managed
by the company, appoint a named person as interim liquidator.
(2) Subject to subsection (3), an interim liquidator has the rights and powers
of a liquidator to the extent necessary or desirable to maintain the value of assets
owned or managed by the company, including power to appoint an administrator.
(3) The Court may limit the rights and powers of an interim liquidator in
the manner that it thinks fit.
(4) The appointment of an interim liquidator takes effect on the date on
which, and at the time at which, the order appointing that interim liquidator is
made.
(5) The Court must record in the order appointing the interim liquidator the date on which, and the time at which, the order was made.
(6) If any question arises as to whether, on the date on which an interim
liquidator was appointed, an act was done or a transaction was entered into or
effected before or after the time at which the interim liquidator was appointed,
that act or transaction is, in the absence of proof to the contrary, deemed to have
been done or entered into or effected, as the case may be, after that time.

219 Meaning of unable to pay its debts

Unless the contrary is proved, and subject to section 220, a company is
presumed to be unable to pay its debts if –
(a) The company has failed to comply with a statutory demand; or
(b) Execution issued against the company in respect of a judgment debt
has been returned unsatisfied in whole or in part; or
(c) A person entitled to a charge over all or substantially all of the
property of the company has appointed a receiver under the
document creating the charge; or
(d) A compromise between a company and its creditors has been put
to a vote in accordance with subpart 2.

220 Evidence and other matters

(1) On an application to the Court for an order that a company be put into
liquidation, evidence of failure to comply with a statutory demand is not admissible
as evidence that a company is unable to pay its debts unless the application is
made within 30 working days after the last date for compliance with the demand.
408 Niue Laws 2006 Vol 1
(2) Section 219 does not prevent proof by other means that a company is unable to pay its debts.
(3) Information or records acquired under section 57 or, if the Court so orders, under section 62, may be received as evidence that a company is unable to pay its debts.
(4) In determining whether a company is unable to pay its debts, contingent
or prospective liabilities may be taken into account.
(5) An application to the Court for an order that a company be put into
liquidation on the ground that it is unable to pay its debts may be made by a
contingent or prospective creditor only with the leave of the Court; and the Court
may give such leave, with or without conditions, only if it is satisfied that a prima
facie case has been made out that the company is unable to pay its debts.

221 Statutory demand

(1) A statutory demand is a demand by a creditor in respect of a debt owing
by a company made in accordance with this section.
(2) A statutory demand must –
(a) be in respect of a debt that is due and is not less than the prescribed
amount; and
(b) Be in writing; and
(c) Be served on the company; and
(d) Require the company to do any of the following things to the
reasonable satisfaction of the creditor, within 15 working days of
the date of service, or any longer period that the Court may order –
(i) pay the debt;
(ii) enter into a compromise under subpart 2;
(iii) otherwise compound with the creditor;
(iv) give a charge over its property to secure payment of the debt.

222 Court may set aside statutory demand

(1) The Court may, on the application of the company, set aside a statutory
demand.
(2) The application must be –
(a) Made within 10 working days of the date of service of the demand;
and
(b) Served on the creditor within 10 working days of the date of service
of the demand.
(3) No extension of time may be given for making or serving an application
to have a statutory demand set aside, but, at the hearing of the application, the
Court may extend the time for compliance with the statutory demand.
(4) The Court may grant an application to set aside a statutory demand if
it is satisfied that –
(a) There is a substantial dispute as to whether or not the debt is owing
or is due; or
(b) The company appears to have a counterclaim, set-off, or cross-
demand and the amount specified in the demand less the amount
of the counterclaim, set-off, or cross-demand is less than the
prescribed amount; or
(c) The demand ought to be set aside on other grounds.
(5) A demand must not be set aside by reason only of a defect or irregularity
unless the Court considers that substantial injustice would be caused if it were
not set aside.

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(6) In subsection (5), defect includes a material misstatement of the amount due to the creditor and a material misdescription of the debt referred to in the demand.
(7) An order under this section may be made subject to conditions.

223 Additional powers of Court on application to set aside statutory demand (1) If, on the hearing of an application under section 222, the Court is satisfied that there is a debt due by the company to the creditor that is not the subject of a substantial dispute, or is not subject to a counterclaim, set-off, or cross- demand, the Court may, on the ground that the company is unable to pay its

debts –
(a) Order the company to pay the debt within a specified period and that, in default of payment, the creditor may make an application to put the company into liquidation; or
(b) Dismiss the application and immediately make an order putting
the company into liquidation.
(2) For the purposes of the hearing of an application to put the company
into liquidation under an order made under subsection (1)(a), the company is
presumed to be unable to pay its debts if it failed to pay the debt within the specified
period under the order.

224 Notices given by liquidator

NOTICES
(1) A liquidator must, immediately after being appointed or being notified of his or her appointment, give public notice of –
(a) The liquidator ’s appointment; and
(b) The date and time of the commencement of the liquidation; and
(c) The address, telephone and fax numbers, and email address to
which, during normal business hours, inquiries may be directed
by a creditor or shareholder.
(2) A liquidator must, within 10 working days of being appointed or being
notified of his or her appointment, deliver to the Registrar for registration a notice
of the liquidator ’s appointment.

225 Documents to state company in liquidation

Every document entered into, made, or issued by a liquidator of a company
on behalf of the company must state, in a prominent position, that the company is
in liquidation.

Obligations to liquidators

226 Directors, etc, to identify and deliver company property

(1) A present or former director or employee of a company in liquidation
must –
(a) Immediately after the company is put into liquidation, give the liquidator details of property of the company in his or her possession or under his or her control; and
(b) On being required to do so by the liquidator, immediately or within any time that may be specified by the liquidator, deliver the property to the liquidator or any other person that the liquidator may direct, or dispose of the property in any manner that the liquidator may direct.
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(2) A person who fails to comply with subsection (1) commits an offence and is liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding 250 penalty units, or both.

227 Obligations of suppliers of essential services

(1) Despite any other Act or any contract, a supplier of an essential service
must not –
(a) Refuse to supply the service to a liquidator, or to a company in liquidation, by reason of the company’s default in paying charges due for the service in relation to a period before the commencement of the liquidation; or
(b) Make it a condition of the supply of the service to a liquidator, or to
a company in liquidation, that payment be made of outstanding
charges due for the service in relation to a period before the
commencement of the liquidation; or
(c) Make it a condition of the supply of the service to a company in
liquidation that the liquidator personally guarantees payment of
the charges that would be incurred for the supply of the service.
(2) The charges incurred by a liquidator for the supply of an essential
service are an expense incurred by the liquidator for the purposes of clause 15(a)
of Schedule 18.

Liquidators’ rights to company’s documents

228 Liquidator may require director, etc, to deliver documents

A liquidator may, by notice in writing, require a director or shareholder of
the company or any other person to deliver to the liquidator any records or
documents of the company in that person’s possession or under that person’s
control as the liquidator requires.

229 Liquidator may require director, etc, to provide information

(1) A liquidator may, from time to time, by notice in writing, require the
following persons to do any of the things specified in subsection (2) –
(a) A director or former director of the company;
(b) A shareholder of the company;
(c) A person who was involved in the promotion or formation of the
company;
(d) A person who is, or has been, an employee of the company;
(e) A receiver, administrator, accountant, auditor, bank officer, or other
person having knowledge of the affairs of the company;
(f) A person who is acting, or who has at any time acted, as a solicitor
for the company.
(2) A person referred to in subsection (1) may be required to –
(a) Attend on the liquidator at such reasonable time or times and at
such place as may be specified in the notice;
(b) Provide the liquidator with such information about the business,
accounts, or affairs of the company as the liquidator requests;
(c) be examined on oath or affirmation by the liquidator or by a barrister
or solicitor acting on behalf of the liquidator on any matter relating
to the business, accounts, or affairs of the company;
(d) Assist in the liquidation to the best of the person’s ability.
(3) Without limiting subsection (2)(a), a person may be required to attend
on the liquidator under that subsection at a meeting of creditors of the company.

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230 Reasonable expenses may be paid

(1) Without limiting subsection (2), the liquidator may pay to a person
referred to in section 229(1)(d), (e), or (f), who is not an employee of the company,
reasonable travelling and other expenses in complying with a requirement of the
liquidator under that section.
(2) The Court may, on the application of the liquidator or a person referred
to in section 229(1)(d), (e), or (f), who is not an employee of the company, order
that that person is entitled to receive reasonable remuneration and travelling and
other expenses in complying with a requirement of the liquidator under that
section.
(3) A person referred to in section 229(1)(d), (e), or (f) is not entitled to
refuse to comply with a requirement of the liquidator under that section by reason
only that –
(a) An application to the Court to be paid remuneration or travelling and other expenses has not been made or determined; or
(b) Remuneration or travelling and other expenses to which that person is entitled have not been paid in advance; or
(c) The liquidator has not paid that person travelling or other expenses.

231 Examination by liquidator

(1) A liquidator, or a barrister or solicitor acting on behalf of the liquidator,
may administer an oath to, or take the affirmation of, a person required to be
examined under section 229.
(2) A person required to be examined under section 229 is entitled to be
represented by a barrister or solicitor.
(3) A liquidator, or a barrister or solicitor acting on behalf of the liquidator,
who conducts an examination under section 229 must ensure that the examination
is recorded in writing or by means of a sound recording, video and sound recording,
or other similar means.

232 Court may order person to comply with section 228

(1) The Court may, on the application of the liquidator, order a person
who has failed to comply with a requirement of the liquidator under section 229
to comply with that requirement.
(2) The Court may, on the application of the liquidator, order a person to
whom section 229 applies to –
(a) Attend before the Court and be examined on oath or affirmation
by the Court or the liquidator, or a barrister or solicitor acting on
behalf of the liquidator, on any matter relating to the business,
accounts, or affairs of the company;
(b) Produce any documents relating to the business, accounts, or affairs
of the company in that person’s possession or under that person’s
control.
(3) If a person is examined under subsection (2)(a) –
(a) The examination must be recorded in writing; and
(b) The person examined must sign the record.
(4) Subject to any directions by the Court, a record of an examination under
this section is admissible in evidence in any proceedings under section 78 or this
subpart.
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233 Self-incrimination no excuse

(1) A person is not excused from answering a question in the course of
being examined under sections 229 or 232 on the ground that the answer may
incriminate or tend to incriminate that person.
(2) The testimony of the person examined is not admissible as evidence in
criminal proceedings against that person except on a charge of perjury in relation
to that testimony.

234 Restriction on enforcement of lien over company’s documents

(1) A person is not entitled, as against the liquidator of a company, to claim
or enforce a lien over documents of the company.
(2) If the lien arises in relation to a debt for the provision of services to the
company before the commencement of the liquidation, the debt is a preferential
claim against the company under section 249 to the extent of $500 or such greater
amount as may be prescribed at the commencement of the liquidation.
(3) Nothing in this section applies to a company that was put into
liquidation under sections 214 or 215 if –
(a) The directors of the company passed a resolution of the kind referred
to in section 241; and
(b) Section 242 does not apply in relation to the company.

235 Delivery of document held by secured creditor

(1) A person is required to deliver a document to a liquidator under section
228 even though possession of the document creates a charge over property of a
company.
(2) Production of the document to the liquidator does not prejudice the
existence or priority of the charge, and the liquidator must make the document
available to the person entitled to it for the purpose of dealing with, or realising
the charge over, the secured property.

236 Documents held by receiver

(1) A receiver is not required to deliver to a liquidator any documents that
the receiver requires for the purpose of exercising any powers or functions as
receiver in relation to property of a company in liquidation.
(2) The liquidator may, from time to time, by notice in writing, require the
receiver –
(a) To make any records and documents available for inspection by the liquidator at any reasonable time or times; and
(b) To provide the liquidator with copies of any records and documents or extracts from them.
(3) The liquidator may take copies of any records and documents made
available for inspection or extracts from them.
(4) The liquidator must pay the reasonable expenses of the receiver in
complying with a requirement of the liquidator under subsection (2).

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Meetings

237 Notice of first creditors’ meeting

(1) A liquidator must give to every known creditor a notice in writing of a
meeting of creditors, and –
(a) If section 246(1) applies, the notice must be given together with the
report and notice referred to in that subsection; and
(b) If the liquidator receives a notice under section 243(1)(c) requiring
a meeting of creditors to be called, the notice must be given within
10 working days after receiving the notice.
(2) Not less than 5 working days before the creditors’ meeting, a liquidator
must also give public notice of the meeting.

238 Timing of first creditors’ meeting

(1) Except if section 237(1)(b) applies, a meeting of creditors must be held –
(a) In the case of a liquidator appointed under sections 214 or 215,
within 10 working days of the liquidator ’s appointment; or
(b) In the case of a liquidator appointed under section 217, within 30
working days of the liquidator ’s appointment; or
(c) In either case, within such longer period as the Court may allow.
(2) If section 237(1)(b) applies, a meeting of creditors must be held within
15 working days after the liquidator receives a notice under section 243(1)(c)
requiring a meeting of creditors to be called.

239 Purpose of first creditors’ meeting

(1) Subject to sections 241 and 243, the liquidator of a company must call a
meeting of the creditors of the company for the purpose –
(a) In the case of a liquidator appointed under sections 214 or 215, of
resolving whether to confirm the appointment of that liquidator or
to appoint another liquidator in place of the liquidator so appointed;
(b) In the case of a liquidator appointed under section 217, of resolving
whether to confirm the appointment of that liquidator or to make
an application to the Court for the appointment of a liquidator in
place of the liquidator so appointed;
(c) In either case, of determining whether to pass a resolution for the
purposes of section 245(1)(c).
(2) If the appointment of a liquidator under sections 214 or 215 is not
confirmed at a meeting of creditors and another liquidator is not appointed in
place of that liquidator, the appointment of the liquidator under either of those
sections continues until another liquidator is appointed.

240 Replacement liquidator

(1) If at a meeting of creditors it is resolved to appoint a person as liquidator
of the company in place of the liquidator appointed under sections 214 or 215, the
person who it is resolved to appoint as liquidator is, subject to section 213,
appointed as the liquidator of the company.
(2) If at a meeting of creditors it is resolved to apply to the Court for the
appointment of a person as liquidator in place of the liquidator appointed under
section 217 –
(a) The liquidator of the company must immediately apply to the Court
for the appointment of that person as liquidator; and
(b) The Court may, if it thinks fit, appoint that person as the liquidator
of the company.
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241 Effect of directors’ resolving company able to pay its debts

Nothing in sections 237 to 240 applies to the liquidator of a company
appointed under sections 214 or 215 if, within 20 working days before the
appointment of the liquidator, the directors of the company resolved that the
company would, on the appointment of a liquidator under either of those sections,
be able to pay its debts and a copy of the resolution is delivered to the Registrar
for registration.

242 Other creditors’ meetings

(1) Subject to section 243, the liquidator of a company who was not, by
reason of section 237, required to call a meeting of creditors of the company, must
immediately call a meeting of the creditors of the company for the purpose specified
in section 239(1)(a) or (b), if the liquidator is satisfied that –
(a) The directors who voted in favour of a resolution referred to in that
subsection did not have reasonable grounds to believe that the
company would, on the appointment of a liquidator under section
214 or 215, be able to pay its debts; or
(b) The company is not able to pay its debts.
(2) Section 239 applies with the necessary modifications.

243 Liquidator may dispense with meetings of creditors

(1) A liquidator is not required to call a meeting of creditors under sections
237 or 242, as the case may be, if –
(a) The liquidator considers that no such meeting should be held,
having regard to –
(i) the assets and liabilities of the company; and
(ii) the likely result of the liquidation of the company; and
(iii) any other relevant matters; and
(b) The liquidator gives notice in writing to the creditors stating –
(i) that the liquidator does not consider that a meeting should be
held; and
(ii) the reasons for the liquidator ’s view; and
(iii) that no such meeting will be called unless a creditor gives notice
in writing to the liquidator, within 10 working days after
receiving the notice, requesting a meeting to be called and
giving reasons why a meeting should be called; and
(c) No notice requesting a meeting to be called is received by the
liquidator within that period or, if a notice requesting a meeting to
be called is received within that period, the Court directs the
liquidator that, having regard to the reasons given in the notice
and the circumstances of the company considered by the liquidator
under paragraph (a), it is not necessary for the liquidator to call a
meeting.
(2) Notice under subsection (1)(b) must be given to every known creditor –
(a) If section 244(1) applies, together with the report and notice referred
to in that section; or
(b) If section 244(1) is not applicable, at the time the liquidator would
have been required to send the report and notice referred to in that
section if it were applicable.

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244 Meetings of creditors or shareholders

(1) At any time in the course of the liquidation, the liquidator may, at the
request in writing of any creditor or shareholder or on the liquidator ’s own motion,
call a meeting of creditors or shareholders –
(a) To vote on a proposal that a liquidation committee be appointed to
act with the liquidator in accordance with Schedule 16; and
(b) If it is so decided, to choose the members of the committee.
(2) A liquidator may decline a request by a creditor or shareholder to call a
meeting on the ground that –
(a) The request is frivolous or vexatious; or
(b) The request was not made in good faith; or
(c) Except if a creditor or shareholder agrees to meet the costs, the costs
of calling a meeting would be out of all proportion to the value of
the company’s assets.
(3) The decision of a liquidator to decline the request may be reviewed by
the Court on the application of any creditor or shareholder, as the case may be.
(4) Subject to subsections (2) and (3), a liquidator who receives a request to
call –
(a) A meeting of creditors must immediately call a meeting in accordance with Schedule 12; or
(b) A meeting of shareholders, must immediately call a meeting in accordance with the company’s rules, except the liquidator has power to give notice of a meeting of shareholders and to act as, or appoint, the chairperson of the meeting.
(5) The sole shareholder of a company may present to the liquidator a view
on any matter that could have been decided at a meeting of shareholders under this section, and that view must, for all purposes, be treated as though it were a decision taken at a meeting of shareholders.

245 Views of creditors and shareholders at meetings to be considered

(1) The liquidator must consider the views of –
(a) Creditors set out in a resolution passed at a meeting convened under
subpart 1 at which a resolution under section 188(1)(c) to appoint a
liquidator is passed;
(b) The shareholders by whom any special resolution was passed at a
meeting held for the purposes of section 215 set out in a resolution
passed at that meeting;
(c) Creditors set out in any resolution passed at a meeting held for the
purposes of section 239;
(d) Creditors or shareholders set out in a resolution passed at a meeting
called in accordance with subsection (2);
(e) Any liquidation committee given in writing to the liquidator.
(2) For the purposes of subsection (1), a liquidator –
(a) Must summon meetings of shareholders at such times as may be
specified by any resolution of shareholders passed at a meeting
held for the purposes of section 215;
(b) Must summon meetings of creditors at any times that may be
specified by any resolution of creditors passed at a meeting held
for the purposes of subpart 1 or section 239;
(c) Must summon a meeting of shareholders immediately when
required to do so by notice in writing given by shareholders holding
not less than 10% of all shares issued by the company;
416 Niue Laws 2006 Vol 1
(d) Must summon a meeting of creditors immediately when required to do so by notice in writing given by creditors to whom is owed not less than 10% of the total amount owed to all creditors of the company;
(e) May, at his or her discretion, summon a meeting of shareholders or creditors of the company.
(3) A liquidator who calls a meeting of creditors or shareholders must call a meeting –
(a) In accordance with the rules of the company, in the case of a meeting
of shareholders; or
(b) In accordance with Schedule 12, in the case of a meeting of creditors.
(4) For the purposes of holding a meeting of shareholders under subsection
(3)(a), the liquidator is deemed to have power under the company’s rules to call a
meeting of shareholders despite anything in the company’s rules, and references
in the company’s rules to chairman or chairperson must be read as references to
the liquidator.
(5) Nothing in this section limits or prevents a liquidator from exercising
his or her discretion in carrying out his or her functions and duties under this Act.

246 First report

Reports

(1) A liquidator must, within the applicable period –
(a) Prepare a list of every known creditor of the company; and
(b) Prepare and send to every known creditor, every shareholder, and
the Registrar for registration –
(i) a report containing a statement of the company’s affairs,
proposals for conducting the liquidation, and, if practicable,
the estimated date of its completion; and
(ii) a notice explaining the right of a creditor or shareholder to
require the liquidator to call a meeting of creditors or
shareholders (as the case may be) under section 244.
(2) For the purposes of subsection (1), applicable period means –
(a) In the case of a liquidator appointed under sections 214, 215, or
216, 5 working days after the liquidator ’s appointment; or
(b) In the case of a liquidator appointed under section 217, 25 working
days after the liquidator ’s appointment; or
(c) In either case, any longer period that the Court may allow.

247 Six-monthly report

A liquidator must, within 2 months of the end of each period of 6 months
following the date of commencement of the liquidation, prepare and send to every
known creditor and every shareholder, and send or deliver to the Registrar, a
report –
(a) On the conduct of the liquidation during the preceding 6 months;
and
(b) Of any further proposals that the liquidator has for completing the
liquidation.

248 Exemption from reporting requirements

(1) The Court may, on the application of a liquidator and on any conditions
that the Court thinks fit –
(a) Exempt the liquidator from compliance with sections 246 or 247; or
(b) Modify the application of those sections in relation to the liquidator.

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417
(2) The liquidator need not comply with sections 246 or 247 if the liquidator is satisfied that the value of the assets of the company available for distribution to unsecured creditors who are not preferential creditors is not likely to exceed $0.20, or any other prescribed sum, in every dollar owed to those creditors.
(3) If subsection (2) applies, and the liquidator does not intend to comply with sections 246 or 247, the liquidator must give notice to the Registrar that he or she does not intend to comply with those sections.

249 Preferential claims

Creditors’ claims

(1) The liquidator must pay out of the assets of the company the expenses, fees, and claims set out in Part 3 of Schedule 18 to the extent and in the order of priority specified in that schedule.
(2) Without limiting clause 18 of Schedule 18, assets in subsection (1) does not include assets subject to a charge unless the charge is surrendered or taken to be surrendered or redeemed under Part 2 of that schedule.

250 Claims of other creditors and distribution of surplus assets

(1) After paying preferential claims in accordance with section 249, the
liquidator must apply the assets of the company in satisfaction of all other claims.
(2) The claims referred to in subsection (1) rank equally among themselves
and must be paid in full, unless the assets are insufficient to meet them, in which
case payment abates rateably among all claims.
(3) If, before the commencement of a liquidation, a creditor agrees to accept
a lower priority in respect of a debt than that which it would otherwise have
under this section, nothing in this section prevents the agreement from having
effect according to its terms.
(4) A person whose shares have been repurchased by the company, or a
person whose shares have been redeemed by the company, but who has not
received payment in full of the repurchase price or redemption price (as the case
may be) is taken to have agreed to subordinate his or her claim for any unpaid
balance of the repurchase price or redemption price (as the case may be) to the
rights of other creditors of the company.
(5) Subject to clause 25 of Schedule 18, after paying the claims referred to
in subsections (1) and (3), the liquidator must distribute the company’s surplus
assets –
(a) In accordance with the company’s rules; or
(b) If the company’s rules do not provide for the distribution of surplus
assets, in accordance with section 23(1)(c) and any preferential rights
as to distributions of capital attached to shares issued by the
company in accordance with section 23(3)(d).

End of liquidation

251 Completion of liquidation

The liquidation of a company is completed when the liquidator –
(a) Complies with section 252(2); or
(b) Delivers to the Registrar for registration –
(i) a copy of any order made by the Court under section 252(3)(a);
or
(ii) a copy of any order made by the Court under section 252(3)(b)
together with any documents required to comply with the order.
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252 Final report and accounts

(1) As soon as practicable after completing his or her duties in relation to
the liquidation, the liquidator of a company must prepare and send to every
creditor whose claim has been admitted and to every shareholder –
(a) The final report and statement of realisation and distribution in
respect of the liquidation; and
(b) A statement that –
(i) all known assets have been disclaimed, or realised, or
distributed without realisation; and
(ii) all proceeds of realisation have been distributed; and
(iii) the company is ready to be removed from the Niue register;
and
(c) A summary of the applicable grounds on which the creditor or
shareholder may object to the removal of the company from the
Niue register under section 261.
(2) As soon as practicable after completing his or her duties in relation to
the liquidation, the liquidator of a company must send or deliver copies of the
documents referred to in subsection (1) to the Registrar for registration.
(3) The Court may, on the application of a liquidator and on any conditions
that the Court thinks fit –
(a) Exempt the liquidator from compliance with subsections (1) or (2);
or
(b) Modify the application of those provisions in relation to the
liquidator.

253 Liquidation surplus account

(1) Money representing unclaimed assets of a company standing to the
credit of a liquidator must, after completion of the liquidation, be paid to the
Registrar to be held on trust and dealt with in accordance with this section.
(2) At the expiration of a period of 12 months after the date on which the
money is paid, the Registrar must, after deduction of any amount required to
meet the claim of any person that is established within that period, pay the balance
into an account entitled the “Liquidation Surplus Account” for distribution in
accordance with this section.
(3) Money held in the Liquidation Surplus Account may be invested in
accordance with the law as to the investment of trust funds by trustees. Interest
on any investment must be distributed in accordance with this section.
(4) Money held in the Liquidation Surplus Account may be –
(a) Paid or distributed to any person entitled to payment or distribution
in the liquidation of a company any money representing the surplus
assets of which has been credited to the Liquidation Surplus
Account; or
(b) Paid, subject to such conditions as the Registrar may impose, in
meeting costs incurred in the course of liquidation of a company
for the purpose of proceedings brought by the company, including
legal or other expert advice, or the costs of any expert witness, if
the Registrar is satisfied that it is fair and reasonable for those costs
to be met out of the Liquidation Surplus Account.
(5) In making a payment under this section, the Registrar is not required
to ascertain that money or sufficient money was received on account of any
company to which the claim for payment relates.

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254 Termination of liquidation by Court

(1) The Court may, at any time after the appointment of a liquidator of a
company, if it is satisfied that it is just and equitable to do so, make an order
terminating the liquidation of the company.
(2) An application may be made by –
(a) The liquidator of the company; or
(b) A director of the company; or
(c) A shareholder of the company; or
(d) A creditor of the company or
(e) An administrator of the company under administration or acting
under a compromise approved by a resolution of creditors in
accordance with section 188(1)(a); or
(f) The Registrar.
(3) The Court may require the liquidator of the company to give a report
to the Court with respect to any facts or matters relevant to the application.
(4) If the Court makes an order, the company ceases to be in liquidation
and the liquidator ceases to hold office with effect on and from the making of the
order or any other date specified in the order.
(5) The Court may, on, or at any time after, making an order, make any
other order that it thinks fit in connection with the termination of the liquidation.

255 Notice of termination of liquidation

(1) The person who applied for a Court order terminating the liquidation
or the liquidator, in the case of the creditors terminating the liquidation, must,
within 10 working days after the order was made, or the resolution was passed,
(as the case may be), deliver a notice of the order, or the passing of the resolution,
to the Registrar for registration.
(2) Every person who fails to comply with subsection (1) commits an
offence and is liable on conviction to a fine not exceeding 50 penalty units.

256 Effect of compromise on liquidation

Unless the Court orders otherwise under section 254, a company does not
cease to be in liquidation and the liquidator continues to hold office subject to the
terms of a compromise where –
(a) The liquidator has appointed an administrator of the company; and
(b) A compromise that binds the company and its creditors, or a class
of creditors, has been approved by a resolution of creditors in
accordance with section 188(1)(a).
PART 10
REMOVAL OF COMPANIES FROM REGISTER

257 Removal from register

A company is removed from the Niue register when a notice signed by the
Registrar stating that the company is removed from the Niue register is registered
under this Act.

258 Grounds for removal from register

Subject to section 260, the Registrar must remove a company from the Niue
register if –
(a) The Registrar is satisfied that –
(i) the company has ceased to carry on business; and
(ii) there is no other reason for the company to continue in
existence; or
420 Niue Laws 2006 Vol 1
(b) The company has been put into liquidation, and – (i) no liquidator is acting; or
(ii) the prescribed documents confirming that the liquidation of the company has been completed have not been sent or delivered to the Registrar within 6 months after the completion of the liquidation; or
(c) There is sent or delivered to the Registrar a request that the company be removed from the Niue register on either of the grounds specified in section 259(1) made by –
(i) a shareholder or any other person authorised to make the request by a special resolution of shareholders entitled to vote and voting on the question; or
(ii) a director or any other person, if the rules of the company so require or permit; or
(d) A liquidator sends or delivers to the Registrar the prescribed
documents confirming that the liquidation of the company has been
completed.

259 Request for company to be removed from register

(1) A request that a company be removed from the Niue register under
section 258(c) may be made on the grounds that the company –
(a) Has ceased to carry on business, has discharged in full its liabilities
to all its known creditors, and has distributed its surplus assets in
accordance with its rules and this Act; or
(b) Has no surplus assets after paying its debts in full or in part, and
no creditor has applied to the Court for an order putting the
company into liquidation.
(2) A request that a company be removed from the Niue register under
section 258(c) must be accompanied by a written notice from the Financial Secretary
stating that the Financial Secretary has no objection to the company being removed
from the Niue register.

260 Requirements to be met before company must be removed from register

(1) The Registrar must remove a company from the Niue register under
section 258(a) only if –
(a) The Registrar has complied with sections 261 and 262; and
(b) The company has not satisfied the Registrar that it is carrying on
business or that reason exists for the company to continue in
existence; and
(c) The Registrar –
(i) is satisfied that no person has objected to the removal under
section 264; or
(ii) if an objection to the removal has been received, has complied
with section 265.
(2) The Registrar must remove a company from the Niue register under
section 258(b), (c), or (d), only if –
(a) The Registrar is satisfied that notice has been given in accordance
with section 263; and
(b) The Registrar –
(i) is satisfied that no person has objected to the removal under
section 264; or
(ii) if an objection to the removal has been received, has complied
with section 265.

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NOTICES

261 Notice of intention to remove company that has ceased to carry on

business

Before a company can be removed from the Niue register under section
258(a), the Registrar must –
(a) Give notice to the company in accordance with section 262(1); and
(b) Give notice of the matters set out in section 262(2) to any person
who is entitled to a registered charge in respect of property of the
company; and
(c) Give public notice of the matters set out in section 262(2).

262 Contents of notice

(1) The notice to be given under section 261(a) must –
(a) State the section under, and the grounds on which, it is intended to
remove the company from the Niue register; and
(b) State that the company will be removed from the Niue register
unless –
(i) by the date specified in the notice, which must not be less than
20 working days after the date of the notice, the company
satisfies the Registrar by notice in writing that it is still carrying
on business or there is other reason for it to continue in
existence; or
(ii) the Registrar does not, in accordance with section 265, proceed
to remove the company from the Niue register.
(2) The notice to be given under section 261(b) and (c) must specify –
(a) The name of the company; and
(b) The section under which, and the grounds on which, it is intended
to remove the company from the Niue register; and
(c) The date by which an objection to the removal must be delivered to
the Registrar, which must not be less than 20 working days after
the date of the notice.

263 Notice of intention to remove in other cases

(1) If a company is to be removed from the Niue register under section
258(b), the Registrar must give public notice of the matters set out in subsection
(4).
(2) If a company is to be removed from the Niue register under section
258(c) or (d), the applicant, or the liquidator, as the case may be, must give public
notice of the matters set out in subsection (4).
(3) If a company is to be removed from the Niue register under section
258(b), the Registrar, or, if it is to be removed from the Niue register under section
258(c), the applicant, as the case may be, must also give notice of the matters set
out in subsection (4) to –
(a) The company; and
(b) A person who is entitled to a registered charge in respect of property
of the company.
(4) The notice to be given under this section must specify –
(a) The name of the company; and
(b) The section under which, and the grounds on which, it is intended
to remove the company from the Niue register; and
(c) The date by which an objection to the removal under section 266
must be delivered to the Registrar, which must be not less than 20
working days after the date of the notice.
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Objections

264 Objection to removal from Niue register

(1) If a notice is given of an intention to remove a company from the Niue
register, any person may deliver to the Registrar, not later than the date specified
in the notice, an objection to the removal on any 1 or more of the following
grounds –
(a) That the company is still carrying on business or there is other reason for it to continue in existence;
(b) That the company is a party to legal proceedings;
(c) That the company is in receivership, or liquidation, or both;
(d) That the person is a creditor, or a shareholder, or a person who has
an undischarged claim against the company;
(e) That the person believes that there exists, and intends to pursue, a
right of action on behalf of the company under Part 6;
(f) That, for any other reason, it would not be just and equitable to
remove the company from the Niue register.
(2) For the purposes of subsection (1)(d) –
(a) A claim by a creditor against a company is not an undischarged
claim if –
(i) the claim has been paid in full; or
(ii) the claim has been paid in part under a compromise entered
into under subpart 2 of Part 9 or by being otherwise
compounded to the reasonable satisfaction of the creditor; or
(iii) the claim has been paid in full or in part by a receiver or a
liquidator in the course of a completed receivership or
liquidation; or
(iv) a receiver or a liquidator has notified the creditor that the assets
of the company are not sufficient to enable any payment to be
made to the creditor; and
(b) A claim by a shareholder or any other person against a company is
not an undischarged claim if –
(i) payment has been made to the shareholder or that person in
accordance with a right under the company’s rules to receive
or share in the company’s surplus assets; or
(ii) a receiver or liquidator has notified the shareholder or that
person that the company has no surplus assets.

265 Duties of Registrar if objection received

(1) If an objection to the removal of a company from the Niue register is
made on a ground specified in section 264(1)(a), (b), or (c), the Registrar must not
proceed with the removal unless the Registrar is satisfied that –
(a) The objection has been withdrawn; or
(b) Any facts on which the objection is based are not, or are no longer,
correct; or
(c) The objection is frivolous or vexatious.
(2) If an objection to the removal of a company from the Niue register is
made on a ground specified in section 264(1)(d), (e), or (f), the Registrar must give
notice to the person objecting that the Registrar intends to proceed with the
removal, unless notice of an application to the Court by that person for an order –
(a) That the company be put into liquidation; or
(b) Under section 266, that, on any ground specified in section 264, the
company not be removed from the Niue register –

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is served on the Registrar not later than 20 working days after the date of the notice.
(3) The Registrar must proceed with the removal if –
(a) Notice of such an application to the Court is not served on the
Registrar; or
(b) The application is withdrawn; or
(c) On the hearing of such an application, the Court refuses to grant
either an order putting the company into liquidation or an order
that the company not be removed from the Niue register.
(4) Every person who makes such an application must give the Registrar
notice in writing of the decision of the Court within 5 working days of the decision
being given.
(5) The Registrar must send to a person who sent or delivered to the
Registrar a request that the company be removed from the Niue register under
section 258(c) or, while acting as liquidator, sent or delivered to the Registrar the
documents referred to in section 258(d) –
(a) A copy of an objection under section 264; and
(b) A copy of a notice given by or served on the Registrar under this
section; and
(c) If the company is removed from the Niue register, notice of the
removal.

266 Powers of Court

(1) A person who gives a notice objecting to the removal of a company
from the Niue register on a ground specified in section 264(1)(d), (e), or (f) may
apply to the Court for an order that the company not be removed from the Niue
register on any ground set out in that subsection.
(2) On an application for an order under subsection (1), the Court may
make an order that the company is not to be removed from the Niue register if the
Court is satisfied that the company should not be removed from the Niue register
on any of those grounds.

Effect of removal from register

267 Property of company removed from register

(1) Property that, immediately before the removal of a company from the
Niue register, had not been distributed or disclaimed, vests in the Government
with effect from the removal of the company from the Niue register.
(2) For the purposes of this section, property of the former company –
(a) Includes leasehold property and all other rights vested in or held
on trust for the former company; but
(b) Does not include property held by the former company on trust for
any other person.
(3) The Financial Secretary must, immediately on becoming aware of the
vesting of the property, give public notice of the vesting, setting out the name of
the former company and details of the property.
(4) If property is vested in the Government under this section, a person
who would have been entitled to receive all or part of the property, or payment
from the proceeds of its realisation, if it had been in the hands of the company
immediately before the removal of the company from the Niue register, or any
other person claiming through that person, may apply to the Court for an order –
(a) Vesting all or part of the property in that person; or
(b) For payment to that person by the Government of compensation of
an amount not greater than the value of the property.
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(5) On an application made under subsection (4), the Court may –
(a) Decide any question concerning the value of the property, the
entitlement of any applicant to the property or to compensation,
and the apportionment of the property or compensation among 2
or more applicants; or
(b) Order that the hearing of 2 or more applications be consolidated;
or
(c) Order that an application be treated as an application on behalf of
all persons, or all members of a class of persons, with an interest in
the property; or
(d) Make an ancillary order.
(6) Compensation ordered to be paid under subsection (4) must be paid
out of the Niue Government Account without further appropriation than this
section.

268 Disclaimer of property by Government

(1) The Financial Secretary may, by notice in writing, disclaim the
Government’s title to property vesting in the Government if the property is onerous
property.
(2) The Financial Secretary must immediately give public notice of the
disclaimer.
(3) Property that is disclaimed under this section is deemed not to have
vested in the Government.
(4) Subject to any order of the Court, the Financial Secretary is not entitled
to disclaim property unless –
(a) The property is disclaimed within 12 months after the vesting of
the property in the Government first comes to the notice of the
Financial Secretary; or
(b) If before the expiry of that 12 month period, any person gives notice
in writing to the Financial Secretary requiring the Financial Secretary
to elect, before the close of such date as is stated in the notice, not
being a date that is less than 60 working days after the date on
which the notice is received by the Financial Secretary, whether to
disclaim the property, the property is disclaimed before the close of
that date.
(5) A statement in a notice disclaiming property under this section that the
vesting of the property in the Government first came to the notice of the Financial
Secretary on a specified date is, in the absence of proof to the contrary, evidence of
the fact stated.
(6) For the purposes of this section, onerous property means –
(a) An unprofitable contract; or
(b) Property of the company that is unsaleable, or not readily saleable,
or which may give rise to a liability to pay money or perform an
onerous act.

269 Effect of disclaimer

(1) A disclaimer under section 268 –
(a) Brings to an end on and from the date of the disclaimer the rights,
interests, and liabilities of the Government in relation to the property
disclaimed; and
(b) Does not, except so far as necessary to release the Government from
a liability, affect the rights or liabilities of any other person.

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(2) A person suffering loss or damage as a result of a disclaimer under section 268 may –
(a) Claim as a creditor of the company for the amount of the loss or damage, taking account of the effect of any order made by the Court under paragraph (b); or
(b) Apply to the Court for an order that the disclaimed property be
delivered to or vested in that person.
(3) The Court may make an order under subsection (2)(b) if it is satisfied
that it is just that the property should be vested in the applicant.

270 Liability of directors, shareholders, and others to continue

The removal of a company from the Niue register does not affect the liability
of any former director or shareholder of the company or any other person in respect
of any act or omission that took place before the company was removed from the
Niue register and that liability continues and may be enforced as if the company
had not been removed from the Niue register.

271 Liquidation of company removed from Niue register

(1) Despite the fact that a company has been removed from the Niue
register, the Court may appoint a liquidator of the company as if the company
continued in existence.
(2) If a liquidator is appointed in accordance with subsection (1) –
(a) Subpart 3 of Part 9 applies, with the necessary modifications, to the
liquidation;
(b) Section 278 applies, with the necessary modifications, to property
of the company that is vested in the Government as if the company
had been restored to the Niue register.

Restoration of removed company to Niue register

272 Registrar may restore company to Niue register

(1) Subject to sections 273 and 274, the Registrar must, on the application
of a person referred to in subsection (2), and may, on his or her own motion, restore
a company that has been removed from the Niue register to the Niue register if he
or she is satisfied that, at the time the company was removed from the Niue
register –
(a) The company was still carrying on business or other reason existed for the company to continue in existence; or
(b) The company was a party to legal proceedings; or
(c) The company was in receivership, or liquidation, or administration.
(2) Any person may apply under subsection (1) if the person was, at the
time the company was removed from the Niue register –
(a) A shareholder or director of the company; or
(b) A creditor of the company; or
(c) An administrator, a liquidator, or a receiver of the property, of the
company.
(3) Nothing in this section or sections 273 to 275 limits or affects section
276.

273 Requirements to be met before restoring company to Niue register

(1) Before the Registrar restores a company to the Niue register –
(a) In the case of a company that was removed from the Niue register
under section 258(a) or (b), the Registrar must give public notice
setting out –
426 Niue Laws 2006 Vol 1
(i) the name of the company; and
(ii) the name and address of the applicant; and
(iii) the section under, and the grounds on which, the application is
made or the Registrar proposes to act, as the case may be; and
(iv) the date by which an objection to restoring the company to the
Niue register must be delivered to the Registrar, not being less
than 20 working days after the date of the notice; and
(b) In the case of a company that was removed from the Niue register
under section 258(c) or (d), the person who made the application
under section 272(1) must give public notice setting out –
(i) The name of the company; and
(ii) the person’s name and address; and
(iii) the section under which, and the grounds on which, the
application is made; and
(iv) the date by which an objection to restoring the company to the
Niue register must be delivered to the Registrar, not being less
than 20 working days after the date of the notice.
(2) Before the Registrar restores a company to the Niue register, the
Registrar may require any of the provisions of this Act or any other Act or any
regulations made under this Act or any other Act, being provisions with which
the company had failed to comply before it was removed from the Niue register,
to be complied with.

274 Registrar not to restore company to Niue register if objection received

The Registrar must not restore a company to the Niue register if the Registrar
receives an objection to the restoration within the period stated in the notice.

275 Court directions

The Court may, on the application of the Registrar or the applicant, give
any directions or make any orders that may be necessary or desirable for the
purpose of placing a company that is restored to the Niue register under section
272 and any other persons as nearly as possible in the same position as if the
company had not been removed from the register.

276 Court may restore company to Niue register

(1) The Court may, on the application of a person referred to in subsection
(2), order that a company that has been removed from the Niue register be restored
to the Niue register if it is satisfied that –
(a) At the time the company was removed from the Niue register –
(i) the company was still carrying on business or other reason
existed for the company to continue in existence; or
(ii) the company was a party to legal proceedings; or
(iii) the company was in receivership, or liquidation, or
administration; or
(iv) the applicant was a creditor, or a shareholder, or a person who
had an undischarged claim against the company; or
(v) the applicant believed that a right of action existed, or intended
to pursue a right of action, on behalf of the company under
Part 6; or
(b) For any other reason it is just and equitable to restore the company
to the Niue register.

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(2) The following persons may make an application under subsection (1) – (a) Any person who, at the time the company was removed from the
Niue register –
(i) Was a shareholder or director of the company; or
(ii) was a creditor of the company; or
(iii) was a party to any legal proceedings against the company; or
(iv) had an undischarged claim against the company; or
(v) was the administrator, or liquidator, or a receiver of the property
of, the company;
(b) The Registrar;
(c) With the leave of the Court, any other person.
(3) Before the Court makes an order restoring a company to the Niue
register under this section, it may require any provisions of this Act or any other
Act or any regulations made under this Act or under any other Act, being provisions
with which the company had failed to comply before it was removed from the
Niue register, to be complied with.
(4) The Court may give any directions or make any orders that may be
necessary or desirable for the purpose of placing the company and any other
persons as nearly as possible in the same position as if the company had not been
removed from the Niue register.

277 Restoration to register

(1) A company is restored to the Niue register when a notice signed by the
Registrar stating that the company is restored to the Niue register is registered
under this Act.
(2) A company that is restored to the Niue register is deemed to have
continued in existence as if it had not been removed from the register.

278 Vesting of property in company on restoration to register

(1) Subject to this section, property of a company that is, at the time the
company is restored to the Niue register, vested in the Government pursuant to
section 267, vests in the company on its restoration to the Niue register as if the
company had not been removed from the Niue register.
(2) Nothing in subsection (1) applies to any property vested in the
Government under section 267 if the Court has made an order for the payment of
compensation to any person under section 267(4)(b) in respect of that property.
(3) Nothing in subsection (1) applies to land or any estate or interest in
land that has vested in the Government if transmission to the Government of the
land or that estate or interest in land has been registered under the Land Act 1969.
(4) If transmission to the Government of land or any estate or interest in
land that has vested in the Government under section 267 has been registered
under the Land Act 1969, the Court may, on the application of the company, make
an order –
(a) For the transfer of the land or the estate or interest to the company;
or
(b) For the payment by the Government to the company of
compensation –
(i) Of an amount not greater than the value of the land or the estate
or interest as at the date of registration of the transmission; or
428 Niue Laws 2006 Vol 1
(ii) if the land or the estate or interest has been sold or contracted to be sold, of an amount equal to the net amount received or receivable from the sale.
(5) On an application under subsection (4), the Court may decide any question concerning the value of the land or the estate or interest.
(6) Compensation ordered to be paid under subsection (4) must be paid
out of the Niue Government Account without further appropriation than this
section.
PART 11
OVERSEAS COMPANIES

279 Meaning of carrying on business

For the purposes of this Part –
(a) A reference to an overseas company carrying on business in Niue
includes a reference to the overseas company –
(i) establishing or using a share transfer office or a share
registration office in Niue; or
(ii) administering, managing, or dealing with property in Niue as
an agent, or personal representative, or trustee, and whether
through its employees or an agent or in any other manner;
(b) An overseas company does not carry on business in Niue merely
because in Niue it –
(i) Is or becomes a party to a legal proceeding or settles a legal
proceeding or a claim or dispute; or
(ii) holds meetings of its directors or shareholders or carries on
other activities concerning its internal affairs; or
(iii) maintains a bank account; or
(iv) effects a sale of property through an independent contractor;
or
(v) solicits or procures an order that becomes a binding contract
only if the order is accepted outside Niue; or
(vi) creates evidence of a debt or creates a charge on property; or
(vii) secures or collects any of its debts or enforces its rights in
relation to securities relating to those debts; or
(viii) conducts an isolated transaction that is completed within a
period of 30 working days, not being one of a number of similar
transactions repeated from time to time; or
(ix) invests its funds or holds property.

280 Name must comply with section 10

(1) An overseas company must not carry on business in Niue on or after
the commencement of this Act under a name that could not be registered under
section 10.
(2) If an overseas company contravenes this section –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.

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281 Overseas companies to register under this Act

(1) An overseas company that, on or after the commencement of this Act,
commences to carry on business in Niue must apply for registration under this
Part in accordance with section 283 within 20 working days of commencing to
carry on business.
(2) An overseas company that, immediately before the commencement of
this Act, was carrying on business in Niue and, on the commencement of this Act,
continues to carry on business in Niue, must apply for registration under this Part
in accordance with section 283 within 40 working days of the commencement of
this Act.
(3) An overseas company that changes its name must send or deliver to
the Registrar a notice in the prescribed form of the change of name within 10
working days of the change of name.
(4) If an overseas company fails to comply with this section –
(a) The overseas company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units; and
(b) Every director of the overseas company commits an offence and is
liable on conviction to a fine not exceeding 50 penalty units.

282 Validity of transactions not affected

A failure by an overseas company to comply with sections 280 or 281 does
not affect the validity or enforceability of any transaction entered into by the
overseas company.

283 Application for registration

(1) An application for registration of an overseas company under this Part
must be delivered to the Registrar and must be –
(a) In the prescribed form; and
(b) Signed by or on behalf of the overseas company.
(2) Without limiting subsection (1), the application must –
(a) State the name of the overseas company; and
(b) State the full names and residential addresses and postal addresses
of the directors of the overseas company at the date of the
application; and
(c) State the full address of the place of business in Niue of the overseas
company or, if the overseas company has more than 1 place of
business in Niue, the full address of the principal place of business
in Niue of the overseas company; and
(d) State the postal address in Niue of the overseas company; and
(e) Have attached evidence of incorporation of the overseas company,
and, if not in English, a certified translation of that document; and
(f) State the full name of 1 or more persons resident or incorporated in
Niue who are authorised to accept service in Niue of documents
on behalf of the overseas company, and the postal address and
residential or business address of each those persons.
430 Niue Laws 2006 Vol 1

284 Registration of overseas company

(1) If the Registrar receives a properly completed application for
registration under this Part of an overseas company, the Registrar must
immediately register the overseas company on the overseas register.
(2) If an overseas company is deemed to be registered under this Part, the
Registrar must, immediately after the commencement of this Act, transfer the
registration of the overseas company to the overseas register.
(3) If the Registrar receives a notice of a change of name of an overseas
company in accordance with section 281(5), the Registrar must register the change
of name on the overseas register.

285 Use of name by overseas company

(1) Every overseas company that carries on business in Niue must ensure
that its full name, and the name of the country where it was incorporated, are
clearly stated in –
(a) Written communications sent by, or on behalf of, the company; and
(b) Documents issued or signed by, or on behalf of, the company that
evidence or create a legal obligation of the company.
(2) For the purposes of subsection (1), a generally recognised abbreviation
of a word or words may be used in the name of an overseas company if it is not
misleading to do so.

286 Further information to be provided by overseas company

(1) An overseas company that carries on business in Niue must ensure
that, within 20 working days of the change, notice in the prescribed form is given
to the Registrar of –
(a) A change in the directors or in the names or residential addresses
or postal addresses of the directors of the overseas company; or
(b) A change in the address of the place of business or principal place
of business of the overseas company; or
(c) A change in the postal address in Niue of the overseas company; or
(d) A change in any person or in the postal address or residential or
business address of any person authorised to accept service in Niue
of documents on behalf of the overseas company.
(2) An overseas company must, within 20 working days of being required
to do so by the Registrar, deliver to the Registrar –
(a) A certified copy of the document constituting or defining its
constitution; or
(b) A certified copy of any alterations to that document since a copy of
the document was last provided to the Registrar; and
(c) If the relevant documents are not in English, a certified translation
of those documents. The Registrar must require delivery of the
relevant documents by the overseas company under this subsection
if requested to do so by any creditor of that overseas company in
Niue, unless the Registrar considers that the request is frivolous or
vexatious.
(3) If an overseas company fails to comply with subsections (1) or (2) –
(a) The overseas company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units; and
(b) Every director of the overseas company commits an offence and is
liable on conviction to a fine not exceeding 50 penalty units.

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287 Annual return of overseas company

(1) Every overseas company that carries on business in Niue must ensure
that the Registrar receives each year, during the month allocated to the overseas
company for the purposes of this section, an annual return in the prescribed form
confirming that the information on the overseas register in respect of the overseas
company referred to in the return is correct at the date of the return.
(2) The annual return must be dated as at a day within the month during
which the return is required to be received by the Registrar.
(3) On registration of an overseas company under this Part, the Registrar
must allocate a month to the company for the purposes of this section.
(4) The Registrar may, by written notice to an overseas company, alter the
month allocated to the company under subsection (3).
(5) Despite subsection (1), an overseas company that is deemed to be
registered under this Part need not make an annual return in the calendar year of
its registration under this Part.
(6) If an overseas company fails to comply with subsections (1) or (2) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the overseas company commits an offence and is
liable on conviction to a fine not exceeding 50 penalty units.

288 Overseas company ceasing to carry on business in Niue

(1) An overseas company registered under this Part that intends to cease
to carry on business in Niue must –
(a) Give public notice of that intention; and
(b) Give notice to the Registrar in the prescribed form stating the date
on which it will cease to carry on business in Niue.
(2) The Registrar must remove an overseas company from the overseas
register as soon as practicable after –
(a) The date specified in the notice given in accordance with subsection
(1)(b); or
(b) Receipt of a written notice given by a liquidator that the liquidation
of the assets in Niue of the overseas company has been completed.

289 Attorneys of overseas companies

(1) Part XII of the Property Law Act 1952 applies, with the necessary
modifications, to a power of attorney executed by an overseas company registered
under this Part to the same extent as if the company were a person and as if the
commencement of the liquidation of the company was the death of a person within
the meaning of Part XII of that Act.
(2) A declaration endorsed on or annexed to a document appointing, or
appearing to appoint, an attorney of an overseas company, made or appearing to
be made by one of the directors before a person authorised by section 76 of the
Niue Act 1966 to take an affidavit for use in Niue, in the country concerned, to the
effect that –
(a) The company is incorporated under the name stated in the
document in accordance with the law of the country in which it is
so incorporated, the name of which is stated in the declaration; and
(b) The document has been executed, and the powers appearing to be
conferred on the attorney are authorised to be conferred under the
constitution of the company, or under the Act or document under
which the company is incorporated, or by any other document
constituting or defining the constitution of the company; and
432 Niue Laws 2006 Vol 1
(c) The person making the declaration is a director of the company –
is conclusive evidence of those facts.

290 Liquidation of assets in Niue

(1) An application may be made to the Court for the liquidation of the
assets in Niue of an overseas company in accordance with subpart 3 of Part 9,
subject to the modifications and exclusions set out in Schedule 19.
(2) An application may be made under subsection (1) whether or not the
overseas company –
(a) Is registered under this Part; or
(b) Has given public notice of an intention to cease to carry on business
in Niue; or
(c) Has given notice to the Registrar of the date on which it will cease
to carry on business in Niue; or
(d) Has been dissolved, or otherwise ceased to exist as a company, under
or by virtue of the laws of any other country.

291 Exemption from requirements of this Part

Regulations may be made providing for any class or classes of overseas
company to be exempted from the application of any or all of the requirements of
this Part, or modifying the application of this Part to such overseas companies, on
such terms and conditions as may be prescribed in those regulations.
PART 12
TRANSFER OF REGISTRATION

292 Overseas companies may be registered as companies under this Act

Subject to this Part, an overseas company may be registered as a company
under this Act.

293 Application for registration

(1) An application by an overseas company to register as a company under
this Act must be in the prescribed form and must be accompanied by –
(a) A certified copy of its certificate of incorporation or other similar
document that evidences its incorporation; and
(b) A certified copy of its rules or other similar document; and
(c) Evidence acceptable to the Registrar that the company is not
prevented from being registered as a company under this Act by
either sections 294 or 295; and
(d) The documents and information that are required to register a
company under this Act; and
(e) Any other documents and information the Registrar may require.
(2) The Registrar may direct that a document that has been delivered to
the Registrar or registered under Part 11 need not accompany the application.

294 Overseas companies must be authorised to register

An overseas company must not be registered as a company under this Act
unless –
(a) The company is authorised to transfer its incorporation under the law of the country in which it is incorporated; and
(b) The company has complied with the requirements of that law in
relation to the transfer of its incorporation; and

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(c) If that law does not require its shareholders, or a specified proportion of them, to consent to the transfer of its incorporation, the transfer has been consented to by not less than 75% of its shareholders entitled to vote and voting in person or by proxy at a meeting of which not less than 15 working days’ notice is given specifying the intention to transfer the company’s incorporation.

295 Overseas companies that cannot be registered

An overseas company must not be registered as a company under this Act
if –
(a) The company is in liquidation; or
(b) A receiver or manager has been appointed, whether by a Court or
not, in relation to the property of the company; or
(c) The company has entered into a compromise or arrangement with
a creditor that is in force; or
(d) An application has been made to a Court and has not been dealt
with, whether in Niue or in another country –
(i) to put the company into liquidation or to wind it up; or
(ii) For the approval of a compromise or arrangement between the
company and a creditor.

296 Registration

(1) As soon as the Registrar receives a properly completed application for
registration of an overseas company as a company under this Act, the Registrar
must –
(a) Enter the company on the Niue register; and
(b) Issue a certificate of registration in the prescribed form.
(2) A certificate of registration of a company issued under this section is
conclusive evidence that –
(a) All the requirements as to registration have been complied with;
and
(b) On and from the date of registration stated in the certificate, the
company is registered under this Act.
(3) If an application for registration of an overseas company as a company
under this Act specifies a date on which the registration is intended to become
effective, and that date is the same as, or later than, the date on which the Registrar
receives the documents, the certificate of registration must be expressed to have
effect on the date specified in the application.

297 Effect of registration

(1) The registration of an overseas company under this Act does not –
(a) Create a new legal entity; or
(b) Prejudice or affect the identity of the body corporate constituted by
the company or its continuity as a legal entity; or
(c) Affect the property, rights, or obligations of the company; or
(d) Affect proceedings by or against the company.
(2) Proceedings that could have been commenced or continued by or
against the overseas company before registration under this Act may be
commenced or continued by or against the company after registration.
434 Niue Laws 2006 Vol 1

298 Companies may transfer incorporation

Subject to this Part, a company may be removed from the Niue register in
connection with becoming incorporated under the law in force in, or in any part
of, another country.

299 Application to transfer incorporation

An application by a company for removal from the Niue register in
connection with becoming incorporated under the law in force in, or in any part
of, another country must be in the prescribed form and must be accompanied
by –
(a) Evidence acceptable to the Registrar that sections 300 and 301 have been complied with; and
(b) Evidence acceptable to the Registrar that the removal of the company from the Niue register is not prevented by section 302; and
(c) Written notice from the Financial Secretary that the Financial Secretary has no objection to the company being removed from the Niue register; and
(d) Evidence acceptable to the Registrar that the company is incorporated under that law, or will be incorporated under that law no later than the date on which it is to be removed from the Niue register; and
(e) Any other documents or information that the Registrar may require.

300 Approval of shareholders

A company must not apply to be removed from the Niue register under
section 299 unless the making of the application has been approved by special
resolution.

301 Company to give public notice

(1) A company must not apply to be removed from the Niue register under
section 299 unless –
(a) The company gives public notice –
(i) stating that it intends, after the date specified in the notice,
which must not be less than 20 working days after the date of
the notice, to apply under section 299 for the company to be
removed from the Niue register in connection with the company
becoming incorporated under the law in force in, or in any part
of, another country; and
(ii) specifying the country or part of the country under the law of
that it is proposed that the company will become incorporated;
and
(b) The application is made after the date specified in the notice.
(2) If the Court is satisfied that the proposed removal of a company from
the Niue register under this Part would unfairly prejudice a shareholder or creditor
of the company or a person to whom the company is under an obligation, it may,
on the application of that person made at any time before the date on which the
removal becomes effective, make any of the following orders –
(a) An order restraining the removal of the company from the Niue
register under this Part;
(b) An order specifying conditions that must be met by the company
before being removed from the Niue register under this Part;

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435
(c) If an order is made under paragraphs (a) or (b), orders granting any consequential or ancillary relief that the Court thinks fit.

302 Companies that cannot transfer incorporation

A company must not be removed from the Niue register under section 303
if –
(a) The company is in administration or liquidation, or an application has been made to the Court to put the company into liquidation; or
(b) A receiver or manager has been appointed, whether by the Court or not, in relation to any property of the company; or
(c) A compromise has been approved by the Court under subpart 2 of Part 8 in relation to the company or an application has been made to the Court to approve a compromise under that subpart; or
(d) The company has entered into a compromise with creditors or a class of creditors under subpart 2 of Part 9 or a compromise has been proposed under that subpart in relation to the company; or
(e) An order restraining its removal from the Niue register has been made under section 301, or any conditions specified in an order made under section 301 have not been satisfied by the company.

303 Removal from register

(1) As soon as the Registrar receives a properly completed application to
remove a company from the Niue register, the Registrar must enter on the register
a notice signed by the Registrar that the company has been removed from the
Niue register in accordance with this Part.
(2) If an application for removal of a company from the Niue register under
this Part specifies a date on which the removal is intended to become effective,
and that date is the same as, or later than, the date on which the Registrar receives
the application, the notice of removal must be expressed to have effect on the date
specified in the application.

304 Effect of removal from register

(1) The removal of a company from the Niue register under section 303
does not –
(a) Prejudice or affect the identity of the body corporate that was constituted under this Act or its continuity as a legal person; or
(b) Affect the property, rights, or obligations of that body corporate; or
(c) Affect proceedings by or against that body corporate.
(2) Proceedings that could have been commenced or continued by or
against a company before the company was removed from the Niue register under
section 303 may be commenced or continued by or against the body corporate
that continues in existence after the removal of the company from the Niue register.

305 Registrar

PART 13
REGISTRAR OF COMPANIES

Subpart 1–Registrar

OFFICE
The Minister must appoint a person to hold office as Registrar of Companies.

306 Deputy Registrars

(1) The Registrar may appoint as many Deputy Registrars of Companies
as may be necessary for the purposes of this Act.
436 Niue Laws 2006 Vol 1
(2) Subject to the control of the Registrar, a Deputy Registrar has and may exercise the powers, duties, and functions of the Registrar under this Act.
(3) The fact that a Deputy Registrar exercises those powers, duties, or functions is conclusive evidence of his or her authority to do so.

307 Transitional

The person holding office as Registrar of International Business Companies
under the International Business Companies Act 1994 immediately before the
commencement of this Act is deemed to have been appointed as Registrar of
Companies.

308 Notices; general

Notices by Registrar

Section 347 applies, with the necessary modifications, to the giving of notices by the Registrar.

309 Notices to individuals

(1) A notice that the Registrar is required by this Act to give to an individual,
must 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 to an
individual by –
(a) Having it delivered to that person; or
(b) Posting it to that person at his or her last known postal address; or
(c) Faxing it to a fax number used by that person; or
(d) Having it published in a newspaper or other publication in
circulation in the area where that person lives or is believed to live.

310 Admissibility of notices given by Registrar

A document is admissible in legal proceedings if the document –
(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.
POWERS

311 Registrar may require information and copies of documents

(1) The Registrar may give notice to a company requiring that company to
provide, by the date specified in the notice –
(a) Corrected or updated details of any matter entered on any of the
registers for that company; or
(b) A certified copy of any document that has been or ought to have
been delivered to the Registrar for registration under this Act, or
under any other Act for that company.
(2) The date specified in the notice must not be less than 10 working days
from the date on which the notice is sent to the company.
(3) If a company fails to comply with a notice given under subsection (1) –
(a) The company commits an offence and is liable on conviction to a
fine not exceeding 50 penalty units; and
(b) Every director of the company commits an offence and is liable on
conviction to a fine not exceeding 50 penalty units.
(4) In this section and section 312, company includes an overseas company.

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312 Registrar may amend registers

If information provided to the Registrar by a company under section 311
differs from the information shown on any of the registers for that company, the
Registrar may amend the registers accordingly.

313 Registrar’s powers of inspection

(1) The Registrar, or any person authorised by the Registrar, may, for the
purposes set out in subsection (2) and if the Registrar considers that it is in the
public interest to do so, do any of the following –
(a) Require a person, including a person carrying on the business of
banking, to produce for inspection relevant documents within that
person’s possession or control;
(b) Inspect and take copies of relevant documents;
(c) Take possession of relevant documents and remove them from the
place where they are kept, and retain them for a reasonable time,
for the purpose of taking copies;
(d) Retain relevant documents for a period that is, in all the
circumstances reasonable, if there are reasonable grounds for
believing that they are evidence of the commission of an offence.
(2) The purposes referred to in subsection (1) are to –
(a) Ascertain whether a company or a director of a company is
complying, or has complied, with this Act; or
(b) Ascertain whether the Registrar should exercise any of his or her
rights or powers under this Act; or
(c) Detect offences against this Act.
(3) Every person who fails to comply with subsection (1)(a) commits an
offence and is liable on conviction to a fine not exceeding 50 penalty units.
(4) In this section –
company includes an overseas company
relevant document, in relation to a company, means a document that
contains information relating to –
(a) The company; or
(b) Money or other property that is, or has been, managed, supervised,
controlled, or held in trust by or for the company.

314 Registrar not to be obstructed

(1) A person must not obstruct or hinder the Registrar, or a person
authorised by the Registrar, while exercising a power conferred by section 313.
(2) Every person who fails to comply with subsection (1) commits an
offence and is liable on conviction to a fine not exceeding 50 penalty units.

315 Certain Acts not affected by Registrar’s power of inspection

Nothing in sections 313 to 314 limits or affects the Income Tax Act 1961.

316 Disclosure of information and reports

(1) A person authorised by the Registrar for the purpose of section 313
must, if directed to do so by the Registrar, give the following documents,
information, or reports to the persons described in subsection (2) –
(a) Any document or information obtained in the course of making an
inspection under that section; or
(b) Any report prepared in relation to an inspection under that section.
438 Niue Laws 2006 Vol 1
(2) The persons referred to in subsection (1) are – (a) The Minister; or
(b) The Secretary; or
(c) Any person authorised by the Registrar to receive the document,
information, or report for the purposes of, or in connection with,
the exercise of powers conferred by this Act; or
(d) A liquidator for the purposes of the liquidation of a company; or
(e) Any person authorised by the Registrar to receive the document,
information, or report for the purposes of detecting or investigating
offences against any Act.
(3) Every person who fails to comply with this section commits an offence
and is liable on conviction to a fine not exceeding 50 penalty units.

317 Information and report to be given to Registrar

(1) A person authorised by the Registrar for the purposes of section 313
must give the following documents, information, or reports to the Registrar or a
Deputy Registrar when directed to do so by any person who holds any of those
offices –
(a) Any document or information obtained in the course of making an inspection under that section; or
(b) Any report prepared in relation to an inspection under that section.
(2) Every person who fails to comply with this section commits an offence
and is liable on conviction to a fine not exceeding 50 penalty units.

318 Restrictions on disclosing information

(1) A person authorised by the Registrar for the purposes of section 313
must not disclose any of the documents, information, or reports referred to in that
section except –
(a) In accordance with that section; or
(b) Subject to the approval of the Registrar, with the consent of the
person to whom it relates; or
(c) Subject to the approval of the Registrar, for the purposes of, or in
connection with, the exercise of powers conferred by this Act; or
(d) To the extent that the information, or information contained in the
document or report, is available under any Act or in a public
document; or
(e) Subject to the approval of the Registrar, to a liquidator for the
purposes of the liquidation of a company or the assets of an overseas
company; or
(f) In the course of criminal proceedings; or
(g) Subject to the approval of the Registrar, for the purpose of detecting
offences against any Act.
(2) Every person who fails to comply with this section commits an offence
and is liable on conviction to a fine not exceeding 50 penalty units.

319 Inspector’s report admissible in liquidation proceedings

Despite any other Act or rule of law, a report prepared by a person in relation
to an inspection carried out by him or her under section 313 is admissible in
evidence at the hearing of an application to the Court to appoint a liquidator.

320 Appeals

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Appeals

439
(1) A person who is aggrieved by an act or decision of the Registrar under this Act may appeal to the Court within 15 working days after the date of notification of the act or decision, or within any further time that the Court may allow.
(2) On hearing the appeal, the Court may –
(a) Approve the Registrar ’s act or decision;
(b) Give any directions that the Court thinks fit;
(c) Make any determination in the matter that the Court thinks fit.

321 Exercise of inspection power not affected by appeal

Subject to section 322, but despite any other provision of any Act or any
rule of law, if a person appeals or applies to the Court in relation to an act or
decision of the Registrar or a person authorised by the Registrar under section
313, until a decision on the appeal or application is given –
(a) The Registrar, or that person, may continue to exercise the powers
under that section as if no such appeal or application had been made;
and
(b) No person is excused from fulfilling an obligation under that section
by reason of that appeal or application.

322 Destruction and admissibility of Registrar’s documents

If an appeal or application to which section 321 applies is allowed or granted,
as the case may be –
(a) The Registrar must ensure that, immediately after the decision of
the Court is given, any copy of a document taken or retained by the
Registrar, or by a person authorised by the Registrar in respect of
that act or decision, is destroyed; and
(b) No information acquired under that section in relation to that act
or decision is admissible in evidence in any proceedings unless the
Court hearing the proceedings in which it is sought to adduce the
evidence is satisfied it was not obtained unfairly.

323 Registers

Subpart 2 – Registers kept by Registrar

REGISTERS
(1) The Registrar must ensure that the following registers (registers) are kept in any place in Niue or overseas that the Registrar determines from time to time –
(a) A register of companies (Niue register); and
(b) A register of overseas companies (overseas register); and
(c) A register of charges in the prescribed form (if any) for each company
(register of charges).
(2) The registers may be kept in any manner that 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.
440 Niue Laws 2006 Vol 1

324 Inspection of registers

Inspection of registers

(1) A person may, on payment of any prescribed fees, inspect –
(a) A registered document that is part of any of the registers referred to
in section 323(1) (registered document);
(b) Details of any registered document that have been entered on any
device or facility referred to in section 323(3);
(c) Any registered document of which details have been entered in
any such device or facility.
(2) The inspection must take place during the hours when the office of the
Registrar is open to the public for the transaction of business on a working day.

325 Certified copies

A person may, on payment of any fees that are prescribed, require the
Registrar to give or certify –
(a) A certificate of incorporation of a company; or
(b) A copy of, or extract from, a registered document
(c) Details of any registered document that have been entered in any
device or facility referred to in section 323(3); or
(d) A copy of, or extract from, a registered document details of which
have been entered in any such device or facility.

326 Evidence

(1) A process must not issue from the Court without the leave of the Court
to compel the production of –
(a) A registered document kept by the Registrar; or
(b) Evidence of the entry of details of a registered document in any
device or facility referred to in section 323(3).
(2) A process that issues from the Court with the leave of the Court under
subsection (1) must have on its face, or attached to it, a statement that it is issued
with the leave of the Court.
(3) A copy of, or extract from, a registered document certified to be a true
copy or extract by the Registrar is admissible in evidence in legal proceedings to
the same extent as the original document.
(4) An extract certified by the Registrar as containing details of a registered
document that have been entered in any device or facility referred to in section
323(3) is, in the absence of proof to the contrary, conclusive evidence of the entry
of those details.

327 Registration of documents

Registration

As soon as a document is received for registration under this Act, the
Registrar must –
(a) Subject to section 328, register the document in the appropriate
register; and
(b) In the case of a document that is not an annual return, give written
advice of the registration to the person from whom the document
was received.

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441

328 Rejection of documents

(1) The Registrar may refuse to register a document that –
(a) Is not in the prescribed form, if any; or
(b) Does not comply with this Act or regulations made under this Act;
or
(c) Is not printed or typewritten; or
(d) If the relevant register is kept wholly or partly by means of a device
or facility referred to in section 323(3), is not in a form that enables
details to be entered directly by electronic or other means in the
device or facility; or
(e) Has not been properly completed; or
(f) Contains material that is not clearly legible; or
(g) Is not accompanied by the prescribed fee.
(2) If subsection (1) applies, the Registrar may require either that –
(a) The document is submitted for registration again, appropriately
amended or completed, or accompanied by the prescribed fee; or
(b) A fresh document is submitted in its place.

329 When document registered

For the purposes of this Act, a document is registered when –
(a) The document itself becomes part of the register to which it relates;
or
(b) Details of the document are entered in any device or facility referred
to in section 323(3).

330 No presumption of validity or invalidity

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 in it.
PART 14
REREGISTRATION OF INTERNATIONAL
BUSINESS COMPANIES

331 Period for reregistration

(1) An international business company may reregister under this Act at
any time during the transition period.
(2) In this Part, transition period means the period beginning on the date
of the commencement of this Part and ending with the close of 31 December 2006.

332 Rules of reregistered company

(1) Subject to subsections (3) and (4), on reregistration –
(a) The memorandum of association of an international business
company is deemed to form part of the articles of association of the
company; and to the extent of any inconsistency between the
memorandum of association and the articles of association of the
company, the memorandum of association prevails; and
(b) The articles of association of an international business company
(which incorporate its memorandum of association in accordance
with paragraph (a)) continue as the rules of the company for the
purposes of this Act; and
442 Niue Laws 2006 Vol 1
(c) All shares issued by the international business company before reregistration are deemed to be converted into shares of no par value; but that conversion does not affect the rights and obligations attached to the shares, and, in particular, does not affect –
(i) the entitlements of the holder of the shares in respect of distributions, voting, the redemption of any redeemable shares, or the distribution of surplus assets of the company in a liquidation;
(ii) any unpaid liability of a shareholder in respect of a share.
(2) Despite anything in the articles of the international business company,
the holder of a share at the time of reregistration is personally liable for any liability
(including a liability for calls) attached to the share; and, in the event of a transfer
of the share after reregistration, that liability remains with the shareholder at the
time of reregistration, and does not pass to the transferee of the share.
(3) An international business company may resolve to adopt the model
rules in Schedules 2, 3, or 4 as its rules on reregistration under this Act.
(4) An international business company may resolve to adopt new rules
that differ from the model rules on reregistration under this Act.
(5) A resolution under subsections (3) or (4) must be approved before
reregistration in the same manner as would be required under the International
Business Companies Act 1994 and the company’s memorandum of association
and articles of association for approval of a resolution altering the company’s
articles of association.

333 Documents to be filed

(1) An application for reregistration of an international business company
under this Act must be made to the Registrar in the prescribed form.
(2) An application for reregistration of a international business company
must specify –
(a) The name of the company; and
(b) Whether the company is to be registered under this Act as a private
company or a public company; and
(c) The full name and residential address and postal address of every
director of the company; and
(d) In the case of a private company, the full name of every shareholder
of the company, and the number and class of shares held by each
shareholder; and
(e) The registered office of the company; and
(f) The postal address of the company, which may be the postal address
of the registered office or any other postal address; and
(g) Details of the location of any records of the company referred to in
section 117 that are not kept at the registered office of the company.
(3) An application for reregistration must be accompanied by –
(a) A copy of –
(i) any resolution of the company under section 332(3) or (4); and
(ii) any rules adopted by a company under section 332(4); or
(iii) certified copies of the existing memorandum of association and
articles of association of the company, if it is reregistering with
its existing constitutional documents under section 332(1); and
(b) The prescribed fee for reregistration.

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334 Effect of reregistration

(1) As soon as the Registrar receives an application for reregistration that
complies with section 333, the Registrar must –
(a) Enter the company on the Niue register; and
(b) Issue a certificate of reregistration in respect of the company in the
prescribed form.
(2) A certificate of reregistration of a company issued under subsection (1)
is conclusive evidence that –
(a) All the requirements as to reregistration have been complied with;
and
(b) On and from the date of reregistration stated in the certificate, the
company is registered under this Act.
(3) The reregistration of an existing company under this Act does not –
(a) Prejudice or affect the identity of the body corporate that was
constituted under the International Business Companies Act 1994
or its continuity as a legal person; or
(b) Affect the property, rights, or obligations of that body corporate; or
(c) Affect proceedings by or against that body corporate.

335 Failure to reregister

If an international business company fails to reregister before the expiry of
the transition period, the following provisions apply with effect from the expiry
of the transition period –
(a) The international business company is deemed to have been
dissolved on the last day of the transition period;
(b) The international business company may, despite the expiry of the
transition period and its deemed dissolution, reregister in
accordance with the procedures set out in this Part, and sections
276 to 278 of this Act apply with the necessary modifications as if
the company had been removed from the Niue register under this
Act.
PART 15
MISCELLANEOUS

Subpart 1 – Offences

336 Proceedings for offences

(1) Despite anything to the contrary in the Niue Act 1966, any information
for an offence under this Act may be laid at any time within 3 years after the date
of the offence.
(2) Nothing in this Act affects the liability of any person under any other
Act, but no person may be convicted of an offence against this Act and any other
Act in respect of the same conduct.

337 False statements on documents

(1) Every person commits an offence who, with respect to a document
required by or for the purposes of this Act –
(a) Makes, or authorises the making of, a statement in it that is false or
misleading in a material particular knowing it to be false or
misleading; or
(b) Omits, or authorises the omission from it of, any matter knowing
that the omission makes the document false or misleading in a
material particular.
444 Niue Laws 2006 Vol 1
(2) Every director or employee of a company commits an offence who makes or provides, or authorises or permits the making or providing of, a statement or report that relates to the affairs of the company and that is false or misleading in a material particular, to –
(a) A director, employee, auditor, shareholder, debenture holder, or trustee for debenture holders of the company; or
(b) An administrator, a liquidator, liquidation committee, or receiver or manager of property of the company; or
(c) If the company is a subsidiary, a director, employee, or auditor of
its holding company –
knowing it to be false or misleading.
(3) Every person who commits an offence against subsections (1) or (2) is
liable on conviction to imprisonment for a term not exceeding 7 years or to a fine
not exceeding 1000 penalty units, or both.
(4) For the purposes of this Act, a person who voted in favour of the making
of a statement at a meeting is deemed to have authorised the making of the
statement.

338 Fraudulent use or destruction of company property

(1) Every director, employee, or shareholder of a company commits an
offence who –
(a) Fraudulently takes or applies property of the company for his or
her own use or benefit, or for a use or purpose other than the use or
purpose of the company; or
(b) Fraudulently conceals or destroys property of the company.
(2) Every person who commits an offence against subsection (1) is liable
on conviction to imprisonment for a term not exceeding 7 years or to a fine not
exceeding 1000 penalty units, or both.

339 Falsification of records

(1) Every director, employee, or shareholder of a company commits an
offence who, with intent to defraud or deceive a person –
(a) Destroys, parts with, mutilates, alters, or falsifies, or is a party to
the destruction, mutilation, alteration, or falsification of any register,
accounting records, book, paper, or other document belonging or
relating to the company; or
(b) Makes, or is a party to the making of, a false entry in any register,
accounting records, book, paper, or other document belonging or
relating to the company.
(2) Every person commits an offence who, in relation to a mechanical,
electronic, or other device used in connection with the keeping or preparation of
any register, accounting or other records, index, book, paper, or other document
for the purposes of a company or this Act –
(a) Records or stores in the device, or makes available to a person from
the device, matter that he or she knows to be false or misleading in
a material particular; or
(b) With intent to falsify or render misleading any such register,
accounting or other records, index, book, paper, or other document,
destroys, removes, or falsifies any matter recorded or stored in the
device, or fails or omits to record or store any matter in the device.
(3) Every person who commits an offence against subsections (1) or (2) is
liable on conviction to imprisonment for a term not exceeding 7 years or to a fine
not exceeding 1000 penalty units, or both.

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340 Carrying on business fraudulently

(1) Every person commits an offence who is knowingly a party to a
company carrying on business with intent to defraud creditors of the company or
any other person or for a fraudulent purpose.
(2) Every director of a company commits an offence who –
(a) By false pretences or other fraud induces a person to give credit to
the company; or
(b) With intent to defraud creditors of the company –
(i) gives, transfers, or causes a charge to be given on, property of
the company to any person; or
(ii) causes property to be given or transferred to any person; or
(iii) caused or was a party to execution being levied against property
of the company.
(3) Every person who commits an offence against subsections (1) or (2) is
liable on conviction to imprisonment for a term not exceeding 7 years or to a fine
not exceeding 1000 penalty units, or both.

Subpart 2 – Privileged communications and service of documents

341 Privileged communications

(1) Nothing in this Act requires a legal practitioner to disclose a privileged
communication.
(2) For the purposes of this Act, a communication is a
privileged communication only if –
(a) It is a confidential communication, whether oral or written, passing
between –
(i) a legal practitioner in his or her professional capacity and
another legal practitioner in that capacity; or
(ii) a legal practitioner in his or her professional capacity and his
or her client –
whether made directly or indirectly through an agent; and
(b) It is made or brought into existence for the purpose of obtaining or
giving legal advice or assistance; and
(c) It is not made or brought into existence for the purpose of
committing or furthering the commission of an illegal or wrongful
act.
(3) If the information or document consists wholly of payments, income,
expenditure, or financial transactions of a specified person (whether a legal
practitioner, his or her client, or any other person), it is not a privileged
communication if it is contained in, or comprises the whole or part of, a book,
account, statement or other record prepared or kept by the legal practitioner in
connection with a trust account of the legal practitioner.
(4) The Court may, on the application of any person, determine whether
or not a claim of privilege is valid and may, for that purpose, require the information
or document to be produced.

342 Service of documents on companies in legal proceedings

A document, including a writ, summons, notice, or order, in any legal proceedings
may be served on a company as follows –
(a) By delivery to a person named as a director of the company on the
Niue register; or
(b) By delivery to an employee of the company at the company’s head
office or principal place of business; or
446 Niue Laws 2006 Vol 1
(c) By leaving it at the company’s registered office; or
(d) By serving it in accordance with any directions as to service given
by the Court having jurisdiction in the proceedings; or
(e) In accordance with an agreement made with the company; or
(f) By serving it at an address for service given in accordance with the
rules of the Court having jurisdiction in the proceedings or by such
means as a solicitor has, in accordance with those rules, stated that
the solicitor will accept service.

343 Service of other documents on companies

A document, other than a document in any legal proceedings, may be served
on a company as follows –
(a) By any of the methods set out in section 342(a), (b), (c), or (e);
(b) By posting it to the company’s postal address;
(c) By faxing it to a fax number at the company’s registered office or its
head office or principal place of business.

344 Service of documents on overseas companies in legal proceedings

A document, including a writ, summons, notice, or order, in any legal
proceedings may be served on an overseas company in Niue as follows –
(a) By delivery to a person named in the overseas register as a director
of the overseas company and who is resident in Niue;
(b) By delivery to a person named in the overseas register as being
authorised to accept service in Niue of documents on behalf of the
overseas company;
(c) By delivery to an employee of the overseas company at the overseas
company’s place of business in Niue or, if the overseas company
has more than 1 place of business in Niue, at the overseas company’s
principal place of business in Niue;
(d) By serving it in accordance with any directions as to service given
by the Court having jurisdiction in the proceedings;
(e) In accordance with an agreement made with the overseas company.

345 Service of other documents on overseas companies

A document, other than a document in any legal proceedings, may be served
on an overseas company as follows –
(a) By any of the methods set out in section 344(a), (b), (c), or (e);
(b) By posting it to the postal address in Niue of the overseas company;
(c) By posting it to the postal address of a person named in the overseas
register as being authorised to accept service in Niue of documents
on behalf of the overseas company;
(d) By faxing it to a fax number at the principal place of business in
Niue of the overseas company.

346 Service of documents on shareholders and creditors

(1) A notice, statement, report, accounts, or other document to be sent to a
shareholder or creditor who is a natural person may be –
(a) Delivered to that person; or
(b) Posted to that person’s postal address; or
(c) Faxed to a fax number used by that person.
(2) A notice, statement, report, accounts, or other document to be sent to a
shareholder or creditor that is a company or an overseas company may be sent by
any of the methods of serving documents referred to in section 342 or section 344,
as the case may be.

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447
(3) A notice, statement, report, accounts, or other document to be sent or given to a creditor that is a body corporate, not being a company or an overseas company, may be –
(a) Delivered to a person who is a principal officer of the body corporate; or
(b) Delivered to an employee of the body corporate at the principal
office or principal place of business of the body corporate; or
(c) Delivered in such manner as the Court directs; or
(d) Delivered in accordance with an agreement made with the body
corporate; or
(e) Posted to the postal address of the body corporate; or
(f) Faxed to a fax number at the principal office or principal place of
business of the body corporate.

347 Additional provisions relating to service

(1) Subject to subsection (2), for the purposes of sections 342 to 346 –
(a) If a document is to be served by delivery to a natural person, service
must be made –
(i) by handing the document to the person; or
(ii) if the person refuses to accept the document, by bringing it to
the attention of, and leaving it in a place accessible to, the
person;
(b) A document that is posted is deemed to be received 5 working days
after it is posted;
(c) A document that is faxed is deemed to have been received on the
working day following the day on which it was faxed;
(d) In proving service of a document by post, it is sufficient to prove
that –
(i) the document was properly addressed; and
(ii) all postal or delivery charges were paid; and
(iii) the document was posted;
(e) In proving service of a faxed document, it is sufficient to prove that
the document was properly faxed to the person concerned.
(2) A document is not to be deemed to have been served or sent or delivered
to a person if the person proves that, through no fault on the person’s part, the
document was not received within the time specified.

348 Regulations

Subpart 3 – Regulation-making powers

(1) Cabinet may make regulations for all or any of the following purposes;

Fees

(a) Prescribing fees or other amounts payable to the Registrar in respect
of the performance of functions and the exercise of powers under
this Act;
(b) Prescribing amounts payable to the Registrar by way of penalty for
failure to deliver a document to the Registrar within the time
prescribed by this Act;
(c) Prescribing fees or other amounts payable to the Registrar in respect
of any other matter under this Act;
(d) Prescribing fees or other amounts payable to the Registrar of the
High Court in respect of any Court proceedings under this Act;
448 Niue Laws 2006 Vol 1

Forms

(e) Prescribing forms (including Court forms) for the purposes of this
Act; and those regulations may require –
(i) The inclusion in, or attachment to, forms of specified
information or documents;
(ii) forms to be signed by specified persons;

Registration requirements

(f) Prescribing requirements, not inconsistent with this Act, with which
documents delivered for registration must comply;

Financial reporting requirements

(g) Regulating the financial reporting of a company, overseas company,
or class of companies or overseas companies, including (without
limitation) –
(i) prescribing requirements in respect of the adoption by directors
of a balance date for a company;
(ii) regulating changes to the balance date of a company;
(h) Prescribing requirements, not inconsistent with this Act, in relation
to the form or content of financial statements, or any other matters
in respect of financial statements, including (without limitation) –
(i) prescribing different requirements in respect of different classes
of company;
(ii) requiring compliance with standards issued or published by a
specified body or bodies, with or without modifications;

Liquidations

(i) regulating, in a manner not inconsistent with this Act, the conduct
of liquidations;
(j) Fixing an amount or prescribing a rate or rates in respect of the
remuneration of liquidators, and without limiting what may be
prescribed by such regulations, those regulations may –
(i) prescribe an hourly or other rate or rates of remuneration and
different rates may be prescribed in respect of work undertaken
in the liquidation by different classes of persons;
(ii) prescribe a rate or rates by reference to the net value of the
assets realised by the liquidator, together with any other
amounts that may be specified;
(iii) prescribe a rate or rates in respect of the exercise of a particular
function or power;
(iv) prescribe a rate or rates by reference to any other criteria that
may be specified;

Court proceedings under this Act

(k) Providing for and regulating any Court proceedings under this Act;

Exemption from requirements of Part 11

(l) Providing for any class or classes of overseas company to be
exempted from the application of any or all of the requirements of
Part 11, or modifying the application of Part 11 to such overseas
companies, on any terms and conditions;

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449

Transitional and savings provisions

(m) Prescribing transitional and savings provisions relating to the
coming into force of this Act;

Modifying Schedules

(n) Amending the model rules in Schedules 2, 3, and 4;
(o) Replacing all or any of the model rules in Schedules 2, 3, and 4;
(p) Specifying the class or classes of companies to which the amended
model rules or replaced model rules will apply;
(q) Specifying the date or occasion on which the amended model rules
or replaced model rules take effect or will apply;
(r) Without limiting paragraphs (p) and (q), specifying whether the
amended model rules or replaced model rules apply to all
companies to which the relevant model rules apply, or only to
companies incorporated after the date on which the amended model
rules or replaced model rules take effect;
(s) Amending the provisions of Schedules 7, 11, 12, 16, 18, and 19;

General

(t) Providing for any other matters contemplated by this Act, necessary
for its administration, or necessary for giving it full effect.
(2) The Registrar may refuse to perform a function or exercise a power
until the prescribed fee or amount is paid.
(3) Any regulations made under subsection (1) may authorise the Registrar
to waive, in whole or in part and on any conditions that may be prescribed,
payment of any amount referred to in paragraph (b) of that subsection.
(4) If the Registrar requires a company to change its name, no fee is payable
in respect of an application to change the name of the company.
(5) Any fee or amount payable to the Registrar is recoverable by the
Registrar in any Court of competent jurisdiction as a debt due to the Government.

Subpart 4–Repeals and transitional provisions

349 International business companies

(1) No company may be incorporated under the International Business
Companies Act 1994 after this section comes into force, despite section 3 of that
Act.
(2) The International Business Companies Act 1994 is repealed on, and with effect from, 31 December 2006.

350 Repeals and revocations

(1) The enactments specified in Schedule 20 are repealed on the expiry of
the transition period.
(2) The regulations specified in Schedule 21 are revoked on the expiry of
the transition period.
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SCHEDULE 1
s 3
INTERPRETATION

1	Definitions	4	Meaning of related company
2	Meaning of subsidiary	5	Solvency test
3	Meaning of holding company

–––––––––––––––––

1 Definitions

In this Act, unless the context otherwise requires –
accounting period, in relation to a company, means a year ending on a
balance date of the company and, if as a result of the date of the
registration of the company or a change of the balance date of the
company, the period ending on that date is longer or shorter than a
year, that longer or shorter period is an accounting period
administrator means an administrator appointed under subpart 1 of Part 9
alteration document means a document that provides for the alteration of
a registered charge
arrangement includes a reorganisation of the share capital of a company
by the consolidation of shares of different classes, or by the division of
shares into shares of different classes, or by both those methods
assignee means the person to whom the benefit of a registered charge is
assigned
assignment document means a document that provides for the assignment
of a registered charge
balance date, in relation to a company, means the close of 31 March or of
any other date that the directors of the company adopt as the company’s
balance date in accordance with any regulations made under this Act
board and board of directors, in relation to a company, means –
(a) Directors of the company who number not less than the required
quorum acting together as a board of directors; or
(b) If the company has only 1 director, that director –
broadcasting means any transmission of programmes, whether or not
encrypted, by radio waves or other means of telecommunication for
reception by the public by means of broadcasting receiving apparatus;
but does not include any such transmission of programmes –
(a)Made on the demand of a particular person for reception only by
that person; or
(b) Made solely for performance or display in a public place
charge document –
(a) Means a document that creates, or provides for, a company charge;
and
(b) In the case of an issue by a company of a series of debentures,
includes a deed that contains, or refers to, a charge created by the
company that entitles the debenture holders of the series to rank
equally
committee of creditors, in relation to a company under administration,
means a committee of creditors of the company appointed under
subpart 1 of Part 9

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451
company means a company registered or reregistered under this Act compromise means a compromise between a company and its creditors,
including a compromise –
(a) Cancelling all or part of a debt of the company; or
(b) Varying the rights of its creditors or the terms of a debt; or
(c) Relating to an alteration of a company’s rules that affects the
likelihood of the company being able to pay a debt
convening period, in relation to an administration of a company –
(a) means a period of 20 working days commencing on the day when
the administration begins; and
(b) Includes any extension to that period granted by the Court
court officer means a constable or the Registrar or other officer of the Court
creditor –
(a) in subpart 2 of Part 8 (approval of amalgamations, etc, by Court), subpart 1 of Part 9 (administrations), and subpart 2 of Part 9 (compromises with creditors) includes –
(i) a person who, in a liquidation, would be entitled to claim that a debt is owing to that person by the company; and
(ii) a secured creditor;
(b) In subpart 3 of Part 9 (liquidations) –
(i) Means a person who, in a liquidation, would be entitled to claim
in accordance with clause 2 of Schedule 18 that a debt is owing
to that person by the company; and
(ii) includes a secured creditor only –
(A) For the purposes of sections 217, 221, and 254 and clause 5 of
Schedule 15; or
(B) To the extent of the amount of any debt owing to the secured creditor
in respect of which the secured creditor claims under Part 2 of
Schedule 18 as an unsecured creditor
decision period, in relation to a charge on property of a company under
administration, means the period –
(a) Beginning on the day when –
(i) if notice of the appointment of the administrator must be given
to the secured creditor, the notice is given; or
(ii) otherwise, the administration begins; and
(b) Ending at the end of 15 working days after that day
director, in relation to a company –
(a) includes a person occupying the position of director of the company
by whatever name called; but
(b) Does not include a receiver
directors has the same meaning as the definitions of board and board of
directors
distribution, in relation to a distribution by a company to a shareholder,
means –
(a) the direct or indirect transfer of money or property, other than the
company’s own shares, to or for the benefit of the shareholder; or
(b) The incurring of a debt to or for the benefit of the shareholder –
in relation to shares held by that shareholder, whether by means of a
dividend, a purchase, redemption or other acquisition of shares, a
distribution of indebtedness, or some other means
document –
452 Niue Laws 2006 Vol 1
(a) means information in written or electronic form, or both; and
(b) Includes anything from which information may be reproduced
(with or without the aid of anything else)
electronic includes electrical, digital, magnetic, optical, electromagnetic,
biometric, and photonic
enforce, in relation to a charge on property of a company under
administration, includes –
(a) Appointing a receiver of property of the company under a power
contained in a charge document; and
(b) Obtaining an order for the appointment of a receiver of the property
for the purpose of enforcing the charge; and
(c) Entering into possession, or assuming control, of the property for
that purpose; and
(d) Appointing a person to enter into possession or to assume control
(whether as agent for the secured creditor or for the company); and
(e) Exercising, as secured creditor or as a receiver or person so
appointed, a right, power, or remedy existing because of the charge,
whether arising under the charge document, under a written or
unwritten law, or otherwise
enforcement process, in relation to property, means –
(a) Execution against that property; or
(b) Any other enforcement process in relation to that property that
involves a Court
essential service means –
(a) the retail supply of electricity;
(b) The retail supply of fuel and other similar consumable items
necessary for the generation of electricity;
(c) The retail supply of gas;
(d) The supply of water;
(e) Telecommunications services
existing charge means a charge that was created by an existing company
or overseas company, as the case may be, before the commencement of
this Act
financial statements, in relation to a company and a balance date, means –
(a) A statement of financial position for the company as at the balance
date; and
(b) In the case of –
(i) a company trading for profit, a statement of financial
performance for the company in relation to the accounting
period ending at the balance date; and
(ii) a company not trading for profit, an income and expenditure
statement for the company in relation to the accounting period
ending at the balance date; and
(c) If required by regulations made under this Act, a statement of cash
flows for the company in relation to the accounting period ending
on the balance date; and
(d) Any other financial statements in relation to the company or any
group of companies of which it is the holding company as may be
required by regulations made under this Act; and
(e) Any notes or documents giving information relating to the
statement of financial position and other statements
information includes information (whether in its original form or otherwise)

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453
that is in the form of a document, a signature, a seal, data, text, images, sound, or speech
international business company means a company registered under the
International Business Companies Act 1994
liquidator means a liquidator appointed under subpart 3 of Part 9
major transaction has the meaning set out in section 50(2)
model rules means the model rules of incorporation set out in Schedules 2,
3, or 4
Minister means the Minister responsible for the administration of this Act
Niue register means the register kept by the Registrar under section 323(1)(a)
onerous property means –
(a) An unprofitable contract; or
(b) Property of the company that is unsaleable, or not readily saleable,
or which may give rise to a liability to pay money or perform an
onerous act
overseas company means a corporation that is incorporated outside Niue,
whether or not it is registered under Part 11
overseas register means the register kept by the Registrar under section
323(1)(b)
preferential claim means a claim referred to in Part 3 of Schedule 18 (except
clause 15 of that schedule)
prescribed form means a form prescribed by regulations or, if no form is
prescribed by regulations, a form approved by the Registrar
priority document means a document that has the effect of postponing the
priority of a registered charge
private company means a company that is registered as a private company
on the Niue register
property includes –
(a) Real and personal property; and
(b) An estate or interest in real or personal property; and
(c) A debt; and
(d) Any thing in action; and
(e) Any other rights, interests, and claims of any kind in relation to
property
proponent means a person who proposed a compromise in accordance with
subpart 2 of Part 9
public company means a company that is registered as a public company
on the Niue register
receiver means a receiver, or a manager, or a receiver and manager in respect
of any property appointed –
(a) By or under any deed or agreement; or
(b) By the Court in the exercise of a power conferred on the Court or in
the exercise of its inherent jurisdiction –
whether or not the person appointed is empowered to sell any of the property in
receivership; but does not include –
(c) A mortgagee who, whether personally or through an agent,
exercises a power –
(i) to receive income from mortgaged property; or
(ii) to enter into possession or assume control of mortgaged
property; or
(iii) to sell or otherwise alienate mortgaged property; or
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(d) An agent of any such mortgagee
registered charge means a charge registered in accordance with Schedule 7
registered document means a document –
(a) that forms part of any of the registers referred to in section 323(1);
(b) Details of which have been entered in any device or facility referred
to in section 323(3)
registered office, in relation to a company, has the meaning set out in section
17
registrable charge has the meaning set out in clause 1 of Schedule 7
Registrar means the Registrar of Companies appointed under section 305
rules means the rules of a company
Secretary means the Financial Secretary
shareholder means a person whose name is entered on the share register of
a company as the holder of 1 or more shares in the company
solvency test means the solvency test referred to in clause 5
special resolution means a resolution –
(a) Approved in accordance with section 52; or
(b) Approved at a meeting of shareholders called to consider that
resolution on not less than 10 working days’ notice –
(i) by a majority of 75% (or such higher majority as may be
specified in the rules) of the votes of shareholders entitled to
vote and voting on the question; and
(ii) in accordance with any additional requirements specified in
the rules in respect of such resolutions
telecommunications services –
(a) means the conveyance by electromagnetic means from 1 device to
another of any encrypted or non-encrypted sign, signal, impulse,
writing, image, sound, instruction, information, or intelligence of
any nature, whether for the information of any person using the
device or not; but
(b) Does not include any conveyance that constitutes broadcasting.

2 Meaning of subsidiary

(1) For the purposes of this Act, a company is a subsidiary of another
company if, but only if –
(a) That other company –
(i) controls the composition of the board of the company; or
(ii) is in a position to exercise, or control the exercise of, more than
one-half the maximum number of votes that may be exercised
at a meeting of the company; or
(iii) holds more than one-half of the issued shares of the company,
other than shares that carry no right to participate beyond a
specified amount in a distribution of either profits or capital;
or
(iv) is entitled to receive more than one-half of every dividend paid
on shares issued by the company, other than shares that carry
no right to participate beyond a specified amount in a
distribution of either profits or capital; or
(b) The company is a subsidiary of a company that is that other
company’s subsidiary.
(2) In subsection (1), company includes a corporation.

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455

3 Meaning of holding company

(1) For the purposes of this Act, a company is another company’s holding
company if that other company is its subsidiary.
(2) In subsection (1), company includes a corporation.

4 Meaning of related company

(1) For the purposes of this Act, a company is related to another company
if –
(a) The other company is its holding company or subsidiary; or
(b) More than half of the issued shares of the company, other than shares
that carry no right to participate beyond a specified amount in a
distribution of either profits or capital, is held by the other company
and companies related to that other company (whether directly or
indirectly, but other than in a fiduciary capacity); or
(c) More than half of the issued shares, other than shares that carry no
right to participate beyond a specified amount in a distribution of
either profits or capital, of each of them is held by members of the
other (whether directly or indirectly, but other than in a fiduciary
capacity); or
(d) The businesses of the companies have been so carried on that the
separate business of each company, or a substantial part of it, is not
readily identifiable; or
(e) There is another company to which both companies are related; –
and related company has a corresponding meaning.
(2) In subsection (1), company includes a corporation.

5 Solvency test

(1) For the purposes of this Act, a company satisfies the solvency test if –
(a) The company is able to pay its debts as they become due in the
normal course of business; and
(b) The value of the company’s assets is not less than the value of its
liabilities.
(2) A person required to consider whether a company satisfies the solvency
test in subsection (1) may have regard to –
(a) Financial statements prepared on the basis of accounting practices
and principles that are reasonable in the circumstances; and
(b) Valuations of assets or liabilities; and
(c) Such other information in relation to the financial position of the
company as is reasonable in all the circumstances.
(3) If the rules of a company provide for a solvency margin that must be
maintained by the company, subsection (1)(b) applies in relation to that company
as if that solvency margin were a liability of the company, except where the surplus
assets of the company are being distributed –
(a) In a liquidation; or
(b) Before the removal of the company from the Niue register in
accordance with Part 10.
––––––––––––––––––––
456 Niue Laws 2006 Vol 1
SCHEDULE 2
MODEL RULES FOR PRIVATE COMPANY
s 15(1)

PART 1
GENERAL PROVISIONS
1	Name of company
2	Private company
3	Rules
PART 2
SHARES AND SHAREHOLDERS
General provisions
4	Number of shares
5	Rights attaching to shares
6	Issue of shares
7	Process for issuing shares
8	Transferability of shares
Share register
9	Company to keep share register
10	Form and location of share register
11	Status of registered shareholder
Pre-emptive rights
12	Restriction on selling shares
13	Selling shareholder to give written notice
to company
14	Company to give written notice to
shareholders
15	Written notice is offer by selling
shareholder
16	Notice agreeing to purchase shares given
within specified time
17	Notice agreeing to purchase shares not
given within specified time
18	No shareholder wishes to purchase selling
shareholder ’s shares
19	Selling shareholder not obliged to sell some
shares
20	Directors may require evidence of terms
Transfer of shares
21	Transfer of shares
22	Share certificates
Meetings of shareholders
23	Meetings of shareholders
24	Notice of meetings
25	Methods of holding meetings
26	Quorum
27	Chairperson
28	Voting
29	Votes of joint shareholders
30	Proxies

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457

64	PART 4 COMPANY RECORDS Company records	72	Auditor ’s attendance at shareholders’ meeting
65	Form of records		PART 6
66	Access to records		LIQUIDATION AND REMOVAL FROM REGISTER
67	Documents to be sent to Registrar	73	Resolution to appoint liquidator
68	Documents to be sent to shareholders	74	Distribution of surplus assets

	PART 5		PART 7
	ACCOUNTS AND AUDIT		MISCELLANEOUS
69	Accounting records to be kept	75	Service of documents on shareholders
70	Financial statements to be prepared	76	Interpretation
71	Appointment of auditor

1 Name of company

––––––––––––––––––––

PART 1
GENERAL PROVISIONS
(1) The name of the company at the time of registration under the Act appears on the application for registration or for reregistration, as the case may be.
(2) The name of the company may be changed in accordance with section
11 of the Act only with the prior approval of all shareholders.

2 Private company

(1) The company is a private company.
(2) The company must not offer any of its shares or other securities to the
public.
(3) The company must not have more than 100 shareholders.
(4) If a share transfer is presented to the company for entry on the share
register that would result in a breach of this restriction, the directors must decline to register the transfer.

3 Rules

(1) The company may adopt new rules in place of these rules by special
resolution, in accordance with section 14(2) of the Act.
(2) Subject to the Act –
(a) These rules have effect and may be enforced as if they constituted a
contract –
(i) between the company and its shareholders; and
(ii) between the company and each director; and
(b) The shareholders and directors of the company have the rights,
powers, duties, and obligations set out in these rules.

4 Number of shares

PART 2
SHARES AND SHAREHOLDERS

General provisions

(1) At the time of registration under the Act, the company has the number of shares specified in the application for registration or reregistration, as the case may be.
(2) If the company was first registered under Part 2 of the Act, the company
must immediately after its registration issue to any person named in the application
458 Niue Laws 2006 Vol 1
for registration as a shareholder the number of shares specified in the application as being the number of shares to be issued to that person or those persons.

5 Rights attaching to shares

Subject to clause 7(2), each share carries the following rights –
(a) The right to 1 vote on a poll at a meeting of the company on any
resolution, including any resolution to –
(i) appoint or remove a director or auditor;
(ii) adopt new rules;
(iii) alter the company’s rules;
(iv) approve a major transaction;
(v) approve an amalgamation of the company;
(vi) approve reregistration of the company as a public company;
(vii) put the company into liquidation;
(viii) approve the transfer of registration of the company to another
country;
(b) The right to an equal share in dividends paid by the company;
(c) The right to an equal share in the distribution of the surplus assets
of the company in a liquidation.

6 Issue of shares

The directors may issue shares –
(a) In accordance with clause 7; or
(b) To shareholders or any other persons on any other basis, with the
prior approval of all shareholders.

7 Process for issuing shares

(1) The directors may issue shares in accordance with the following
process –
(a) The shares must first be offered to all shareholders proportionally, on such terms as the directors think fit, pursuant to an offer that, if accepted by all shareholders, would not affect relative voting or distribution rights. The shareholders must have a reasonable opportunity to consider and respond to the offer;
(b) Any shares not accepted by the shareholders to whom they were
offered under paragraph (a) must then be offered to those
shareholders who did accept the shares offered to them under
paragraph (a), on a fair and equitable basis determined by the
directors and on the same terms and conditions as the offer made
under paragraph (a);
(c) Any shares offered under paragraph (b), but not taken up by
shareholders may then be offered by the directors to shareholders
or any other persons in such manner as the directors think fit, on
the same terms and conditions as the offer made under paragraph
(a).
(2) With the prior approval of all shareholders, the company may issue
more than 1 class of shares. In particular, shares may be issued that –
(a) Are redeemable; or
(b) Confer preferential rights to distributions of capital or income; or
(c) Confer special, limited, or conditional voting rights; or
(d) Do not confer voting rights.

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459
(3) If the company issues shares, it must give the prescribed notice to the Registrar under section 26(2) of the Act within 10 working days of the issue of any shares.
(4) If the rights attached to the shares differ from those set out in clause 5, the notice must be accompanied by a document setting out the terms of issue of the shares.

8 Transferability of shares

The shares of the company are, subject to clauses 12(1) and 21(4) and their
terms of issue, transferable by entry in the share register in accordance with
subclauses 21(1) to (3).

Share register

9 Company to keep share register

(1) The company must maintain a share register that records the shares
issued by the company and states –
(a) The names, alphabetically arranged, and the last known address of
each person who is, or has within the last 7 years been, a shareholder;
and
(b) The number of shares of each class held by each shareholder within
the last 7 years; and
(c) The date of any –
(i) issue of shares to; or
(ii) repurchase or redemption of shares from; or
(iii) transfer of shares by or to –
each shareholder within the last 7 years, and in relation to the transfer, the
name of the person to or from whom the shares were transferred.
(2) No notice of a trust, whether express, implied, or constructive, may be
entered on the share register.
(3) The company may appoint an agent to maintain the share register.

10 Form and location of share register

The share register must be kept –
(a) In a form that complies with clause 65; and
(b) At the company’s registered office, or at any other place in Niue
notice of which has been given to the Registrar under section 119 of
the Act.

11 Status of registered shareholder

(1) The company must treat the registered holder of a share as the only
person entitled to –
(a) Exercise the right to vote attaching to the share; and
(b) Receive notices; and
(c) Receive a distribution in respect of the share; and
(d) Exercise the other rights and powers attaching to the share.
(2) If a joint holder of a share dies, the remaining holders must be treated
by the company as the holders of that share.
(3) If the sole holder of a share dies, that shareholder ’s legal representative
is the only person recognised by the company as having any title to, or interest in,
the share.
(4) Any person who becomes entitled to a share as a consequence of the
death, bankruptcy or insolvency, or incapacity of a shareholder may be registered
460 Niue Laws 2006 Vol 1
as the holder of that shareholder ’s shares on making a request in writing to the company to be so registered, accompanied by proof satisfactory to the directors of that entitlement.

Pre-emptive rights

12 Restriction on selling shares

(1) A shareholder is not entitled to sell or otherwise dispose of his or her
shares in the company without first offering to sell them to the other holders of
shares of the same class in accordance with the procedure set out in clauses 13 to
20, unless all the other shareholders agree otherwise.
(2) Any share transfer delivered to the company by a shareholder who has
not complied with subclause (1) is of no effect, and the transfer must not be entered
on the share register.

13 Selling shareholder to give written notice to company

A shareholder who wishes to dispose of some or all of his or her shares
(selling shareholder) must give written notice to the company of –
(a) The number of shares to be sold; and
(b) The price at which the selling shareholder is willing to sell the shares.

14 Company to give written notice to shareholders

The company must, within 10 working days, give a copy of the written
notice referred to in clause 13 to each shareholder, together with a notice advising
each holder of shares of the same class –
(a) That that shareholder is entitled to purchase a proportional number
of the shares that the selling shareholder wishes to sell (rounded in
an appropriate manner determined by the directors); and
(b) That, if that shareholder wishes to purchase those shares, he or she
must give written notice to that effect to the company within 10
working days of the date of the notice.

15 Written notice is offer by selling shareholder

The notice referred to in clause 14 is deemed to be an offer by the selling
shareholder to the recipient to sell the number of shares referred to in the notice at
the price specified by the selling shareholder in the notice given under clause 13,
on the terms set out in these rules.

16 Notice agreeing to purchase shares given within specified time

Subject to clause 19, if a notice is given by a shareholder within the specified
time agreeing to purchase the shares offered to that shareholder in a notice given
under clause 14 –
(a) There is deemed to be a contract between that shareholder and the
selling shareholder for the sale and purchase of the relevant number
of shares; and
(b) The company must immediately advise the selling shareholder of
the acceptance, and send him or her a copy of –
(i) the notice given under clause 14 by the company; and
(ii) the notice of acceptance given by the shareholder in question.

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461

17 Notice agreeing to purchase shares not given within specified time

(1) If any shareholder does not give notice agreeing to purchase the shares
offered to that shareholder within the specified time, the shares that were offered
to that shareholder must be offered to those shareholders who did accept the shares
offered to them, on a fair and equitable basis determined by the directors.
(2) Clauses 15 and 16 apply to any notice given to a shareholder, and to
any notice of acceptance given by a shareholder, under this clause.

18 No shareholder wishes to purchase selling shareholder’s shares

If no shareholder wishes to purchase the selling shareholder ’s shares at the
specified price, the selling shareholder may, at any time in the 12 months following
the giving of notice by the selling shareholder, sell some or all of those shares to
any other person at a price not less than the specified price.

19 Selling shareholder not obliged to sell some shares

(1) The selling shareholder is not obliged to sell all of the shares that he or
she wishes to dispose of.
(2) In the event that the selling shareholder has not been notified under
clause 16 of acceptances by other shareholders in respect of all the shares referred
to in the notice given under clause 13 within 40 working days of the date on which
that notice was given to the company, the selling shareholder may, at his or her
option, give written notice to the company terminating the offer to sell the shares
to the other shareholders.
(3) If such a notice is given, clause 18 applies as if no shareholder had
wished to purchase the selling shareholder ’s shares.

20 Directors may require evidence of terms

The directors may require reasonable evidence of the terms (including price)
on which the shares were sold to accompany any share transfer in respect of those
shares.

21 Transfer of shares

Transfer of shares

(1) If shares are to be transferred, a form of transfer signed by the holder or by his or her agent or attorney must be delivered to the company.
(2) The personal representative of a deceased shareholder may transfer a share even though the personal representative is not a shareholder at the time of transfer.
(3) Subject to clause 12 and subclause (4), the company must immediately on receipt of a properly executed share transfer enter the name of the transferee in the share register as holder of the shares transferred.
(4) If any amount payable to the company by the shareholder is due but unpaid, the directors may resolve to refuse to register a transfer of a share within
30 working days of receipt of the transfer.
(5) If the directors resolve to refuse to register a transfer for this reason,
they must give notice of the refusal to the shareholder within 5 working days of
the date of the resolution.

22 Share certificates

(1) A shareholder may apply to the company for a share certificate relating
to some or all of the shareholder ’s shares in the company.
462 Niue Laws 2006 Vol 1
(2) On receipt of an application for a share certificate under subclause (1), the company must, within 20 working days after receiving the application –
(a) If the application relates to some but not all of the shares, separate the shares shown in the register as owned by the applicant into separate parcels; 1 parcel being the shares to which the share certificate relates, and the other parcel being any remaining shares; and
(b) In all cases send to the shareholder a certificate stating – (i) the name of the company; and
(ii) the class of shares held by the shareholder; and
(iii) the number of shares held by the shareholder to which the
certificate relates.
(3) If a share certificate has been issued, a transfer of the shares to which it
relates must not be registered by the company unless the form of transfer required
by that section is accompanied by –
(a) The share certificate relating to the share; or
(b) Evidence as to its loss or destruction and, if required, an indemnity
in a form determined by the directors.
(4) If shares to which a share certificate relates are to be transferred, and
the share certificate is sent to the company to enable the registration of the transfer,
the share certificate must be cancelled and no further share certificate issued except
at the request of the transferee.

Meetings of shareholders

23 Meetings of shareholders

(1) Clauses 24 to 32 set out the procedure to be followed at, and in relation
to, meetings of shareholders.
(2) A meeting of shareholders may determine its own procedure to the
extent that it is not governed by these rules.

24 Notice of meetings

(1) Written notice of the time and place of a meeting of shareholders must
be given to every shareholder entitled to receive notice of the meeting and to
every director and any auditor of the company not less than 10 working days
before the meeting.
(2) The notice must set out –
(a) The nature of the business to be transacted at the meeting in enough
detail to enable a shareholder to form a reasoned judgment in
relation to it; and
(b) The text of any special resolution to be submitted to the meeting.
(3) An irregularity in a notice of a meeting is waived if all the shareholders
entitled to attend and vote at the meeting attend the meeting without protest as to
the irregularity, or if all such shareholders agree to the waiver.
(4) An accidental omission to give notice of a meeting to, or the failure to
receive notice of a meeting by, a shareholder does not invalidate the proceedings
at that meeting.
(5) If a meeting of shareholders is adjourned for less than 30 working days,
it is not necessary to give notice of the time and place of the adjourned meeting
other than by announcement at the meeting that is adjourned.

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463

25 Methods of holding meetings

A meeting of shareholders may be held either –
(a) By a number of shareholders, who constitute a quorum, being
assembled together at the place, date, and time appointed for the
meeting; or
(b) By means of audio, or audio and visual, communication by which
all shareholders participating and constituting a quorum, may
simultaneously hear each other throughout the meeting.

26 Quorum

(1) Subject to subclause (3), no business may be transacted at a meeting of
shareholders if a quorum is not present.
(2) A quorum for a meeting of shareholders is present if shareholders or
their proxies are present who are between them able to exercise a majority of the
votes to be cast on the business to be transacted by the meeting.
(3) If a quorum is not present within 30 minutes after the time appointed
for the meeting, the meeting is adjourned to the same day in the following week
at the same time and place, or to such other date, time and place as the directors
may appoint.
(4) If, at the adjourned meeting, a quorum is not present within 30 minutes
after the time appointed for the meeting, the shareholders present or their proxies
are a quorum.

27 Chairperson

(1) If the directors have elected a chairperson of the directors, and the
chairperson of the directors is present at a meeting of shareholders, he or she
must chair the meeting.
(2) If no chairperson of the directors has been elected or if, at any meeting
of shareholders, the chairperson of the directors is not present within 15 minutes
of the time appointed for the commencement of the meeting, the shareholders
present may choose 1 of their number to be the chairperson of the meeting.

28 Voting

(1) In the case of a meeting of shareholders held under clause 25(a), unless
a poll is demanded, voting at the meeting must take place by whichever of the
following methods is determined by the chairperson of the meeting –
(a) Voting by voice; or
(b) Voting by show of hands.
(2) In the case of a meeting of shareholders held under clause 25(b), unless
a poll is demanded, voting at the meeting must take place by shareholders
signifying individually their assent or dissent by voice.
(3) A declaration by the chairperson of the meeting that a resolution is
carried by the requisite majority is conclusive evidence of that fact unless a poll is
demanded in accordance with subclause (4).
(4) At a meeting of shareholders a poll may be demanded by –
(a) Not fewer than 5 shareholders having the right to vote on the
question at the meeting; or
(b) A shareholder or shareholders representing not less than 10% of
the total voting rights of all shareholders having the right to vote
on the question at the meeting.
(5) A poll may be demanded either before or after a vote is taken on a
resolution.
464 Niue Laws 2006 Vol 1
(6) If a poll is taken, votes must be counted according to the votes attached to the shares of each shareholder present and voting.
(7) The chairperson of a shareholders’ meeting is not entitled to a casting
vote.

29 Votes of joint shareholders

If 2 or more persons are registered as the holder of a share, the vote of the
person named first in the share register and voting on a matter must be accepted
to the exclusion of the votes of the other joint holders.

30 Proxies

(1) A shareholder may exercise the right to vote either by being present in
person or by proxy.
(2) A proxy for a shareholder is entitled to attend and participate in a
meeting of shareholders as if the proxy were the shareholder.
(3) A proxy must be appointed by notice in writing signed by the
shareholder.
(4) The notice must state whether the appointment is for a particular
meeting, or for a specified term.
(5) No proxy is effective in relation to a meeting unless a copy of the notice
of appointment is given to the company at least 24 hours before the start of the
meeting.

31 Corporations may act by representatives

(1) A corporation that is a shareholder may appoint a representative to
attend a meeting of shareholders on its behalf by notice in writing signed by a
director or secretary of the corporation.
(2) The notice must state whether the appointment is for a particular
meeting, or for a specified term.

32 Minutes

(1) The directors must ensure that minutes are kept of all proceedings at
meetings of shareholders.
(2) Minutes that have been signed correct by the chairperson of the meeting
are prima facie evidence of the proceedings at the meeting.

Miscellaneous

33 Annual meetings and special meetings of shareholders

(1) Subject to subclause (3) and clause 34(3), the directors must call an
annual meeting of the company to be held –
(a) Once in each calendar year; and
(b) Not later than 5 months after the balance date of the company (or,
if the time for completing the financial statements of the company
has been extended under clause 70(1)(a), not later than 20 working
days after the financial statements are required to be completed);
and
(c) Not later than 15 months after the previous annual meeting.
(2) The meeting must be held on the date on which it is called to be held.
(3) The company need not hold its first annual meeting in the calendar
year of its incorporation, but must hold that meeting within 18 months of its
incorporation.

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465
(4) A special meeting of shareholders entitled to vote on an issue – (a) May be called at any time by a director; and
(b) Must be called by the directors on the written request of shareholders holding shares carrying together not less than 5% of the votes that may be cast on that issue.

34 Written resolutions of shareholders

(1) A resolution in writing signed by shareholders, who together hold not
less than 75% of the votes entitled to be cast on that resolution at a meeting of
shareholders, is as valid as if it had been passed at a meeting of those shareholders.
(2) Any such resolution may consist of several documents (including fax
or other similar means of communication) in like form each signed or assented to
by 1 or more shareholders.
(3) The company need not hold an annual meeting if everything required
to be done at that meeting (by resolution or otherwise) is done by resolution in
accordance with subclause (1).
(4) Within 5 working days of a resolution being passed under subclause
(1), the company must send a copy of the resolution to every shareholder who did
not sign it.
(5) A resolution may be signed under subclause (1) without any prior notice
being given to shareholders.

35 Voting in interest groups

If the company proposes to take action that affects the rights attached to
shares within the meaning of section 54 of the Act, the action may not be taken
unless it is approved by a special resolution of each interest group, as defined in
section 54(3) of the Act.

36 Shareholders entitled to receive distributions

(1) The shareholders who are entitled to receive distributions are –
(a) If the directors fix a date for this purpose, those shareholders whose
names are registered in the share register on that date;
(b) If the directors do not fix a date for this purpose, those shareholders
whose names are registered in the share register on the day on which
the distribution is approved.
(2) A date fixed under subclause (1) must not precede by more than 20
working days the date on which the proposed action will be taken.

37 Shareholders entitled to exercise pre-emptive rights

The shareholders who are entitled to pre-emptive rights to acquire shares
in accordance with clause 12 are those shareholders whose names are registered
in the share register on the day on which notice is given to the company by the
selling shareholder under clause 13.

38 Shareholders entitled to attend and vote at meetings

(1) The shareholders who are entitled to receive notice of a meeting of
shareholders are –
(a) If the directors fix a date for this purpose, those shareholders whose
names are registered in the share register on that date;
(b) If the directors do not fix a date for this purpose, those shareholders
whose names are registered in the share register at the close of
business on the day immediately preceding the day on which the
notice is given.
466 Niue Laws 2006 Vol 1
(2) A date fixed under subclause (1)(a) must not precede by more than 30 working days the date on which the meeting is to be held.
(3) Before a meeting of shareholders, the company may prepare a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order, and showing the number of shares held by each shareholder –
(a) If a date has been fixed under subclause (1)(a), as at that date; or
(b) If no such date has been fixed, as at the close of business on the day
immediately preceding the day on which the notice is given.
(4) A person named in a list prepared under subclause (3) is entitled to
attend the meeting and vote in respect of the shares shown opposite his or her
name in person or by proxy, except to the extent that –
(a) That person has, since the date on which the shareholders entitled
to receive notice of the meeting were determined, transferred any
of his or her shares to some other person; and
(b) The transferee of those shares has been registered as the holder of
those shares, and has requested before the commencement of the
meeting that his or her name be entered on the list prepared under
subclause (3).
(5) A shareholder may, on 2 working days’ notice, examine any list prepared
under subclause (3) during normal business hours at the registered office of the
company.

39 Distributions to shareholders

(1) The company must not pay a dividend or make any other distribution
to shareholders unless there are reasonable grounds for believing that, after that
distribution is made –
(a) The company will be able to pay its debts as they become due in
the normal course of business; and
(b) The value of the company’s assets will not be less than the value of
its liabilities.
(2) Subject to subclause (1) and to the terms of issue of any shares, the
company may pay a dividend to shareholders –
(a) Of the same amount in respect of each share of the same class, if the
payment of the dividend is authorised by the directors; or
(b) On any other basis, with the prior approval of all shareholders.
(3) A distribution made in breach of subclauses (1) or (2) may be recovered
by the company from the recipients or from the persons approving the distribution,
in accordance with section 29 of the Act.

40 Company may acquire its own shares and provide financial assistance

(1) The company may agree to acquire its own shares from a shareholder –
(a) With the prior approval of all shareholders; and
(b) Subject to the solvency test in clause 39(1).
(2) If the company acquires its own shares, those shares are deemed to be
cancelled immediately on acquisition.
(3) The company may give financial assistance to a person for the purpose
of, or in connection with, the purchase of a share issued or to be issued by the
company, whether directly or indirectly, only if –
(a) After providing the assistance, the company will satisfy the solvency
test in clause 39(1); and
(b) All shareholders have approved the giving of the assistance.

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41 Annual report to shareholders

(1) Subject to subclause (2), the directors of the company must, within 20
working days after the date on which the company is required to complete its
financial statements under section 130 of the Act –
(a) Prepare an annual report on the affairs of the company during the
accounting period ending on that date; and
(b) Send a copy of that report to each shareholder.
(2) The directors are only required to prepare an annual report in respect
of an accounting period if a shareholder has given written notice to the company
before the end of that accounting period requiring such a report to be prepared.
(3) If the directors are not required to prepare an annual report in respect
of an accounting period, they must send a notice to each shareholder to that effect
within the period referred to in subclause (1).
(4) Every annual report for the company must –
(a) Be in writing and be dated; and
(b) Include financial statements for the accounting period that comply
with section 130 of the Act; and
(c) If an auditor ’s report is required in relation to the financial
statements included in the report, include that auditor ’s report; and
(d) State the names of the persons holding office as directors of the
company as at the end of the accounting period and the names of
any persons who ceased to hold office as directors of the company
during the accounting period; and
(e) Contain any other information that may be required by regulations
made under the Act; and
(f) Be signed on behalf of the directors by 2 directors of the company
or, if the company has only 1 director, by that director.

42 Deemed approval by all shareholders for certain purposes

For the purposes of clauses 6, 7(2), and 40(1) and (3), a decision is deemed
to have been approved by all shareholders if –
(a) Notice of the proposed decision has been given to all shareholders
in accordance with clause 75; and
(b) No shareholder has responded within 10 working days objecting
to that decision; and
(c) Shareholders entitled to cast not less than 75% of the votes in relation
to a resolution to alter these rules have responded within 10 working
days approving that decision.
PART 3
DIRECTORS

43 Appointment and removal of directors

(1) The shareholders may by ordinary resolution fix the number of directors
of the company.
(2) A director may be appointed or removed by ordinary resolution passed
at a meeting called for the purpose, or by a written resolution in accordance with
clause 34(1).
(3) A director vacates office if he or she –
(a) Is removed from office in accordance with subclause (2); or
(b) Resigns in accordance with clause 44; or
(c) Becomes disqualified from being a director under section 85 of the
Act; or
(d) Dies.
468 Niue Laws 2006 Vol 1

44 Resignation of director

(1) A director may resign by delivering a signed written notice of
resignation to the registered office of the company.
(2) Subject to subclauses (3) and (4), a notice of resignation is effective when
it is received at the registered office, or at any later time specified in the notice.
(3) If the company has only 1 director, that director may not resign –
(a) Until that director has called a meeting of shareholders to receive
notice of the resignation; or
(b) If the company has only 1 shareholder, until that director has given
not less than 10 working days’ notice of the resignation to that
shareholder.
(4) A notice of resignation given by the sole director of the company does
not take effect, despite its terms, until the earlier of the appointment of another
director of the company or –
(a) The time and date for which the meeting of shareholders is called
under subclause (3)(a); or
(b) If the company has only 1 shareholder, 10 working days after notice
of the resignation has been given to that shareholder.

45 Notice of change in directors

(1) The company must ensure that notice in the prescribed form of the
following is delivered to the Registrar –
(a) A change in the directors of the company, whether as the result of a
director ceasing to hold office or the appointment of a new director,
or both;
(b) A change in the name or the residential address of a director of the
company.
(2) In the case of the appointment of a new director, a consent by that person
to act as a director, in the prescribed form, must also be delivered to the Registrar.

46 Powers and duties of directors

(1) Subject to section 50 of the Act (which relates to major transactions),
the business and affairs of the company must be managed by, or under the direction
or supervision of, the directors.
(2) The directors have all the powers necessary for managing, and for
directing and supervising the management of, the business and affairs of the
company.
(3) The directors may delegate any of their powers to a committee of
directors, or to a director or employee.
(4) The directors must monitor, by means of reasonable methods properly
used, the exercise of powers by any delegate.
(5) The provisions of these rules relating to proceedings of the directors
also apply to proceedings of any committee of directors, except to the extent the
directors determine otherwise.
(6) The directors have the duties set out in the Act, and, in particular –
(a) Each director must act in good faith and in a manner that the director
believes to be in the interests of the company; and
(b) A director must not act, or agree to the company acting, in a manner
that contravenes the Act or these rules.

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47 Standard of care of directors

A director of the company, when exercising powers or performing duties
as a director, must exercise the care, diligence, and skill that a reasonable person would exercise in the same circumstances taking into account, but without limitation –
(a) The nature of the company; and
(b) The nature of the decision; and
(c) The position of the director and the nature of the responsibilities
undertaken by him or her.

48 Obligations of directors in connection with insolvency

(1) A director of the company must call a meeting of directors within 10
working days to consider whether the directors should appoint an administrator
or liquidator, in accordance with section 71 of the Act, if the director –
(a) Believes that the company is unable to pay its debts as they fall
due; or
(b) Is aware of matters that would put any reasonable person on inquiry
as to whether the company is unable to pay its debts as they fall
due.
(2) At a meeting called under section 71 of the Act, the directors must
consider whether to –
(a) Appoint an administrator or liquidator; or
(b) Continue to carry on the business of the company.

49 Interested directors

(1) A director must not exercise any power as a director in circumstances
where that director is directly or indirectly materially interested in the exercise of
that power ,unless –
(a) The Act expressly authorises the director to exercise the relevant
power despite such an interest; or
(b) The director has reasonable grounds for believing that the company
will satisfy the solvency test after that power is exercised, and
either –
(i) these rules expressly authorise the director to exercise the
relevant power despite such an interest; or
(ii) the matter in question has been approved by shareholders
under section 51 of the Act, following disclosure of the nature
and extent of the director ’s interest to all shareholders who are
not otherwise aware of those matters.
(2) A director who is directly or indirectly materially interested in any
transaction or proposed transaction must, within 10 working days of becoming
aware of that interest, disclose the nature and extent of that interest in writing –
(a) If there is at least 1 other director who is not directly or indirectly
materially interested in the transaction or proposed transaction, to
the directors of the company; or
(b) If paragraph (a) does not apply, to all shareholders other than the
director.
(3) A director may give a general disclosure in writing to all other
shareholders that the director is a director or employee or shareholder of another
company, or is otherwise associated with another company or another person.
That general disclosure is a sufficient disclosure of the director ’s interest in any
transaction entered into with that other company or person for the purposes of
subclause (2).
470 Niue Laws 2006 Vol 1
(4) A transaction entered into by the company in which a director is directly or indirectly materially interested is voidable at the election of the company in accordance with section 111 of the Act.
(5) A transaction entered into by the company as the result of action taken by a director in breach of sections 65, 66, or 67 of the Act is voidable at the option of the company in accordance with section 112 of the Act.

50 Use and disclosure of company information

(1) A director of the company who has information in his or her capacity
as a director or employee of the company, being information that would not
otherwise be available to him or her, must not disclose that information to any
person, or make use of or act on the information, except –
(a) In the interests of the company; or
(b) As required by law; or
(c) If there are reasonable grounds for believing that the company will
satisfy the solvency test after the director takes that action, and that
action –
(i) is approved by all shareholders under section 51 of the Act; or
(ii) is authorised by any contract of employment entered into
between that director and the company, the relevant terms of
which have been approved by shareholders by ordinary
resolution.
(2) No director may vote on a resolution to approve such terms in relation
to himself or herself.

51 Indemnities and insurance for directors or employees

(1) Subject to section 74 of the Act, the company may provide an indemnity
or purchase insurance for a director of the company or of a related company with
the approval of –
(a) Shareholders by ordinary resolution.; or
(b) All shareholders under section 51 of the Act.
(2) No director may vote on a resolution concerning an indemnity or
insurance to be provided for the director.
(3) In this clause –
director includes –
(a) A person who is liable under any of sections 65 to 67 of the Act by
virtue of section 73 of the Act; and
(b) A former director
indemnify includes relieve or excuse from liability, whether before or after
the liability arises; and indemnity has a corresponding meaning.

52 Remuneration of directors

(1) Directors may receive remuneration and other benefits from the
company with the approval of –
(a) Shareholders by ordinary resolution; or
(b) All shareholders under section 51 of the Act.
(2) No director may vote on a resolution concerning remuneration or
benefits to be received by the director.

53 Procedure at meetings of directors

(1) Clauses 54 to 60 set out the procedure to be followed at meetings of
directors.

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471
(2) A meeting of directors may determine its own procedure to the extent that it is not governed by these rules.

54 Chairperson

(1) The directors may elect 1 of their number as chairperson of directors
and may determine the period for which the chairperson is to hold office.
(2) If no chairperson is elected, or if at a meeting of the directors the
chairperson is not present within 5 minutes after the time appointed for the
commencement of the meeting, the directors present may choose 1 of their number
to be the chairperson of the meeting.

55 Notice of meeting

(1) A director or, if requested by a director to do so, an employee of the
company, may convene a meeting of directors by giving notice in accordance with
this clause.
(2) Not less than 24 hours notice of a meeting of directors must be given to
every director who is in Niue, or who can readily be contacted outside Niue.
(3) An irregularity in the notice of a meeting is waived if all directors
entitled to receive notice of the meeting attend the meeting without protest as to
the irregularity, or if all directors entitled to receive notice of the meeting agree to
the waiver.

56 Methods of holding meetings

A meeting of directors may be held either –
(a) By a number of the directors who constitute a quorum, being
assembled together at the place, date, and time appointed for the
meeting; or
(b) By means of audio, or audio and visual, communication by which
all directors participating and constituting a quorum, may
simultaneously hear each other throughout the meeting.

57 Quorum

(1) A quorum for a meeting of directors is a majority of the directors.
(2) No business may be transacted at a meeting of directors if a quorum is
not present.

58 Voting

(1) Every director has 1 vote.
(2) The chairperson has a casting vote.
(3) A resolution of the directors is passed if it is agreed to by all directors
present without dissent, or if a majority of the votes cast on it are in favour of it.
(4) A director present at a meeting of directors is presumed to have agreed
to, and to have voted in favour of, a resolution of the directors unless he or she
expressly dissents from, or votes against, the resolution at the meeting.

59 Minutes

The directors must ensure that minutes are kept of all proceedings at
meetings of the directors.

60 Unanimous resolution

(1) A resolution in writing, signed or assented to by all directors, is as valid
and effective as if it had been passed at a meeting of the directors duly convened
and held.
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(2) Any such resolution may consist of several documents (including fax or other similar means of communication) in like form each signed or assented to by 1 or more directors.
(3) A copy of any such resolution must be entered in the minute book of the directors’ proceedings.

61 Managing director and other executive directors

(1) The directors may, from time to time, appoint a director as managing
director for such period and on such terms as they think fit.
(2) Subject to the terms of a managing director ’s appointment, the directors
may at any time cancel the appointment of a director as managing director.
(3) A director who holds office as managing director ceases to hold office
as managing director if he or she ceases to be a director of the company.

62 Delegation to managing director

(1) The directors may delegate to the managing director, subject to any
conditions or restrictions that they consider appropriate, any of their powers that
may be lawfully delegated.
(2) Any such delegation may at any time be withdrawn or varied by the
directors.
(3) The delegation of a power of the directors to the managing director
does not prevent the exercise of the power by the directors, unless the terms of the
delegation expressly provide otherwise.

63 Remuneration of managing director and director

(1) Subject to shareholder approval in accordance with clause 52, the
managing director, or a director (other than the managing director) who is
employed by the company, may be paid such remuneration as he or she may
agree with the directors.
(2) The remuneration may be by way of salary, commission, participation
in profits, or any combination of these methods, or any other method of fixing
remuneration.

64 Company records

PART 4
COMPANY RECORDS
(1) The company must keep all the following documents at its registered office or at some other place notice of which has been given to the Registrar in accordance with section 119 of the Act –
(a) The rules of the company;
(b) Minutes of all meetings and resolutions of shareholders within the
last 7 years;
(c) Minutes of all meetings and resolutions of directors and directors’
committees within the last 7 years;
(d) The full names and residential and postal addresses of the current
directors;
(e) Copies of all written communications to all shareholders or all
holders of the same class of shares during the last 7 years, including
annual reports made under section 56 of the Act;
(f) Copies of all financial statements required to be completed under
section 130 of the Act for the last 7 completed accounting periods
of the company;

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473
(g) The accounting records required by section 129 of the Act for the current accounting period and for the last 7 completed accounting periods of the company;
(h) The share register.
(2) The references in subclause (1)(b), (c), and (e) to 7 years and the
references in subclause (1)(f) and (g) to 7 completed accounting periods include
such lesser periods as the Registrar may approve by notice in writing to the
company, in accordance with section 117(2) of the Act.

65 Form of records

(1) The records of the company must be kept –
(a) In written form; or
(b) In a form or in a manner that allows the documents and information
that comprise the records to be readily accessible so as to be usable
for subsequent reference, and convertible into written form.
(2) The directors must ensure that adequate measures exist to –
(a) Prevent the records being falsified; and
(b) Detect any falsification of them.

66 Access to records

(1) The directors of the company are entitled to access to the company’s
records in accordance with section 120 of the Act.
(2) A shareholder of the company is entitled –
(a) To inspect the documents referred to in section 121 of the Act, in
the manner specified in section 123 of the Act; and
(b) To require copies of, or extracts from, any document that he or she
may inspect within 5 working days of making a request in writing
for the copy or extract, on payment of any reasonable copying and
administration fee prescribed by the company.
(3) The fee may be determined by any director, subject to any directions
from the directors.

67 Documents to be sent to Registrar

In addition to any annual return required under section 124 of the Act, the
company must send all the following documents to the Registrar under the Act –
(a) Notice of the adoption of new rules by the company, or the alteration
of the rules of the company, under section 14 of the Act;
(b) Notice of a change in the registered office or postal address of the
company under section 18 of the Act;
(c) Notice of the issue of shares by the company, under section 26 of
the Act;
(d) Notice of the acquisition by the company of its own shares, under
section 31 of the Act;
(e) Notice of the redemption of a share, under section 35 of the Act;
(f) Notice of a change in the directors of the company, or of a change
in the name or residential address or postal address of a director,
under section 88 of the Act;
(g) Notice of the making of an order under section 102 of the Act altering
or adding to the rules of a company;
(h) Notice of any place other than the registered office of the company
where records are kept, or of any change in the place where records
are kept, under section 119 of the Act;
(i) documents requested by the Registrar under section 311 of the
Act.
474 Niue Laws 2006 Vol 1

68 Documents to be sent to shareholders

In addition to any annual report required under section 56 of the Act, the
company must send all the following documents to shareholders under the Act –
(a) Notice of any repurchase of shares to which section 31(4) of the Act
applies;
(b) Notice of a written resolution approved under section 52 of the
Act;
(c) Financial statements required to be sent under section 130 of the
Act;
(d) Any written statement by an auditor under section 136 of the Act;
(e) Any report by an auditor under section 138 of the Act.
PART 5
ACCOUNTS AND AUDIT

69 Accounting records to be kept

(1) The directors of the company must cause accounting records to be kept
that –
(a) Correctly record and explain the transactions of the company; and
(b) Will at any time enable the financial position of the company to be
determined with reasonable accuracy; and
(c) Will enable the directors to ensure that the financial statements of
the company comply with section 130 of the Act; and
(d) Will enable the financial statements of the company to be readily
and properly audited.
(2) Without limiting clause 68, the accounting records must contain –
(a) Entries of money received and spent each day and the matters to
which it relates; and
(b) A record of the assets and liabilities of the company; and
(c) If the company’s business involves dealing in goods –
(i) a record of goods bought and sold, and relevant invoices;
(ii) a record of stock held at the end of the financial year together
with records of any stocktakings during the year; and
(d) If the company’s business involves providing services, a record of
services provided and relevant invoices.
(3) If the company sells goods or provides services for cash in the ordinary
course of carrying on a retail business –
(a) Invoices need not be kept in respect of each retail transaction for
the purposes of subclause (2); and
(b) A record of the total money received each day in respect of the sale
of goods or provision of services, as the case may be, is sufficient to
comply with subclause (2) in respect of those transactions.
(4) The accounting records must be kept –
(a) In a form permitted under clause 65; and
(b) At the registered office of the company, or any other place permitted
under section 119 of the Act.

70 Financial statements to be prepared

(1) The directors must ensure that –
(a) Within 4 months after the balance date of the company, or with the
approval of shareholders by special resolution, within an extended
period not exceeding 7 months after the balance date of the
company, financial statements that comply with subclause (2) are
completed in relation to the company and that balance date; and

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475
(b) Within 20 working days of the date on which the financial statements must be completed under paragraph (a), those financial statements are sent to all shareholders. This requirement may be satisfied by sending the financial statements to shareholders in an annual report, in accordance with section 56 of the Act.
(2) The financial statements of the company must –
(a) Give a true and fair view of the matters to which they relate; and
(b) Comply with any applicable regulations made under the Act; and
(c) Be dated and signed on behalf of the directors by 2 directors of the
company, or, if the company has only 1 director, by that director.
(3) The following periods must not exceed 15 months –
(a) The period between the date of incorporation of the company and
its first balance date;
(b) The period between any 2 balance dates of the company.
(4) In this clause, financial statements, in relation to the company and a
balance date, means –
(a) A statement of financial position for the entity as at the balance
date; and
(b) In the case of –
(i) a company trading for profit, a statement of financial
performance for the company in relation to the accounting
period ending at the balance date; and
(ii) a company not trading for profit, an income and expenditure
statement for the company in relation to the accounting period
ending at the balance date; and
(c) If required by regulations made under the Act, a statement of cash
flows for the company in relation to the accounting period ending
on the balance date; and
(d) Such other financial statements in relation to the company or any
group of companies of which it is the holding company as may be
required by regulations made under the Act; and
(e) Any notes or documents giving information relating to the
statement of financial position and other statements.

71 Appointment of auditor

(1) If required to do so under subclause (2), the company must appoint an
auditor who is qualified to hold that office under section 135 of the Act to –
(a) Audit the financial statements of the company in respect of an
accounting period; and
(b) Hold office until those financial statements have been audited in
accordance with the Act or until he or she ceases to hold office under
subclause (3).
(2) The company must appoint an auditor within 30 working days if –
(a) A shareholder or shareholders holding shares that together carry
the right to receive more than 20% of distributions made by the
company give written notice to the company before the end of an
accounting period requiring the financial statements of the company
for that period to be audited; or
(b) A vacancy in the office of auditor arises before the financial
statements in respect of a period for which an audit is required
have been audited.
476 Niue Laws 2006 Vol 1
(3) An auditor ceases to hold office if he or she –
(a) Resigns by delivering a written notice of resignation to the registered
office of the company not less than 20 working days before the date
on which the notice is expressed to be effective; or
(b) Is replaced as auditor by an ordinary resolution appointing another
person as auditor in his or her place, following notice to the auditor
in accordance with section 133 of the Act; or
(c) Becomes disqualified from being the auditor of the company under
section 135 of the Act; or
(d) Dies; or
(e) Becomes subject to a trustee order under section 501 of the Niue
Act 1966, or an order of medical custody under section 602 of that
Act; or
(f) Ceases to hold office under subclause (5); or
(g) Is removed by all shareholders in accordance with subclause (6).
(4) An auditor may be appointed –
(a) By ordinary resolution; or
(b) If the office of auditor is vacant, by the directors. If an auditor is
appointed by the directors, the directors must, within 10 working
days, give notice of the appointment to all shareholders.
(5) If the company is required to appoint an auditor in respect of an
accounting period but is not required to do so in respect of a subsequent accounting
period –
(a) The audit of the financial statements of the company for the accounting period in respect of which an audit is required must be completed in accordance with this section; and
(b) The directors may give notice to all shareholders within 4 months
of the commencement of a subsequent accounting period that the
company is no longer required to appoint an auditor, and that the
auditor will cease to hold office unless a notice is given by
shareholders under subclause (2)(a) by a date specified in the notice,
which must be not less than 30 working days from the date on which
the notice is given; and
(c) If a notice has been given under paragraph (b), and no notice under
subclause (2)(a) is received by the company by the date specified in
that notice, the auditor ceases to hold office on the later of –
(i) the date specified in the notice; or
(ii) the date on which the audit of the financial statements of the
company for the previous accounting period is completed.
(6) Despite the other provisions of this clause, all shareholders may agree,
in writing –
(a) To dispense with an audit for any accounting period; and
(b) To remove the auditor of the company.
(7) The fees payable to the auditor must be agreed between the auditor
and the directors.

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72 Auditor’s attendance at shareholders’ meeting

The directors must ensure that an auditor of the company –
(a) Is permitted to attend a meeting of shareholders of the company;
and
(b) Receives the notices and communications that a shareholder is
entitled to receive relating to meetings and resolutions of
shareholders; and
(c) May be heard at a meeting of shareholders that he or she attends
on any part of the business of the meeting that concerns him or her
as auditor.
PART 6
LIQUIDATION AND REMOVAL FROM REGISTER

73 Resolution to appoint liquidator

(1) The shareholders may resolve to liquidate the company by special
resolution.
(2) The directors may resolve to liquidate the company at a meeting called
under section 71 of the Act, if they consider that the company is unable to meet its
debts as they become due in the normal course of business.

74 Distribution of surplus assets

(1) The surplus assets of the company available for distribution to
shareholders after all creditors of the company have been paid must be distributed
in proportion to the number of shares held by each shareholder, subject to the
terms of issue of any shares.
(2) The liquidator may, with the approval of a special resolution, distribute
the surplus assets of the company among the shareholders in kind. For this purpose,
the liquidator may set such value as he or she considers fair on any property to be
divided, and may determine how the division will be carried out as between the
shareholders or different classes of shareholders.
PART 7
MISCELLANEOUS

75 Service of documents on shareholders

(1) A notice, statement, report, accounts, or other document to be sent to a
shareholder who is a natural person may be –
(a) Delivered to that person; or
(b) Posted to that person’s postal address; or
(c) Faxed to a fax number used by that person.
(2) A notice, statement, report, accounts, or other document to be sent to a
shareholder that is a company or an overseas company may be sent by any of the
methods of serving documents referred to in sections 342 or 344 of the Act, as the
case may be.

76 Interpretation

(1) In these rules, Act means the Companies Act 2005.
(2) Unless the context otherwise requires, any term or expression that is
defined in the Act or any regulations made under the Act and used, but not defined,
in these rules has the same meaning as in the Act or the regulations.
––––––––––––––––––––
478 Niue Laws 2006 Vol 1
SCHEDULE 3
MODEL RULES FOR SINGLE SHAREHOLDER COMPANY
s 15(3)

PART 1
GENERAL PROVISIONS
1	Name of company
2	Private company with 1 shareholder
3	Rules
PART 2
SHARES AND SHAREHOLDERS
4	Shares
5	Company to keep share register
6	Form and location of share register
7	Status of registered shareholder
8	Transfer of shares
9	Share certificates
10	Shareholder decisions and exercise of
shareholder powers
11	Distributions to shareholders
12	Company may acquire its own shares and
provide financial assistance
13	Annual report to shareholders
PART 3
DIRECTORS
14	Appointment and removal of directors
15	Powers and duties of directors
16	Standard of care of directors
17	Obligations of directors in connection with
insolvency
18	Interested directors
19	Use and disclosure of company information
20	Indemnities and insurance for directors or
employees
21	Remuneration of directors
22	Procedure at meetings of directors
23	Chairperson

1 Name of company

PART 1
GENERAL PROVISIONS
(1) The name of the company at the time of registration under the Act appears on the application for registration or for reregistration, as the case may be.
(2) The name of the company may be changed in accordance with section
11 of the Act only with the prior approval of the shareholder.

2 Private company with 1 shareholder

(1) The company is a private company.
(2) The company must not offer any of its shares or other securities to the
public.

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479
(3) The company has 1 shareholder.
(4) These rules are designed for a company with 1 shareholder; if the
company proposes to increase the number of shareholders, it must first adopt
new rules.
(5) The company must not have more than 1 shareholder.
(6) If a share transfer is presented to the company for entry on the share
register that would result in a breach of this restriction, the directors must decline
to register the transfer.

3 Rules

(1) The company may adopt new rules in place of these rules by special
resolution, in accordance with section 14(2) of the Act.
(2) Subject to the Act –
(a) These rules have effect and may be enforced as if they constituted a
contract –
(i) between the company and the shareholder; and
(ii) between the company and each director; and
(b) The shareholder and the directors of the company have the rights,
powers, duties, and obligations set out in these rules.

4 Shares

PART 2
SHARES AND SHAREHOLDERs
(1) At the time of registration under the Act, the company has the number of shares specified in the application for registration or reregistration, as the case may be.
(2) If the company was first registered under Part 2 of the Act, the company
must immediately after its registration issue to the person named in the application
for registration as the shareholder the number of shares specified in the application
as being the number of shares to be issued to that person.
(3) With the prior approval of the shareholder, the company may –
(a) Issue shares to the shareholder; and
(b) Issue more than 1 class of shares.
(4) If the company issues shares, it must give the prescribed notice to the
Registrar under section 26(2) of the Act within 10 working days of the issue of any
shares.
(5) If the rights attached to the shares differ from those set out in section 23 of the Act, the notice must be accompanied by a document setting out the terms of issue of the shares.
(6) The shares of the company are, subject to clause 8(4) and their terms of issue, transferable by entry in the share register in accordance with clause 8(1) to (3).

5 Company to keep share register

(1) The company must maintain a share register that records the shares
issued by the company and states –
(a) The names, alphabetically arranged, and the latest known address
of each person who is, or has within the last 7 years been, a
shareholder; and
(b) The number of shares of each class held by each shareholder within
the last 7 years; and
480 Niue Laws 2006 Vol 1
(c) The date of any –
(i) issue of shares to; or
(ii) repurchase or redemption of shares from; or
(iii) transfer of shares by or to –
each shareholder within the last 7 years, and in relation to the transfer, the name
of the person to or from whom the shares were transferred.
(2) No notice of a trust, whether express, implied, or constructive, may be
entered on the share register.
(3) The company may appoint an agent to maintain the share register.

6 Form and location of share register

The share register must be kept –
(a) In a form that complies with clause 32; and
(b) At the company’s registered office, or at any other place in Niue
notice of which has been given to the Registrar under section 119 of
the Act.

7 Status of registered shareholder

(1) The company must treat the registered holder of a share as the only
person entitled to –
(a) Exercise the right to vote attaching to the share; and
(b) Receive notices; and
(c) Receive a distribution in respect of the share; and
(d) Exercise the other rights and powers attaching to the share.
(2) If a shareholder dies, that shareholder ’s legal representative is the only
person recognised by the company as having any title to, or interest in, the share.
(3) Any person who becomes entitled to a share as a consequence of the
death, bankruptcy or insolvency or incapacity of a shareholder may be registered
as the holder of that shareholder ’s shares on making a request in writing to the
company to be so registered, accompanied by proof satisfactory to the directors of
that entitlement.

8 Transfer of shares

(1) If shares are to be transferred, a form of transfer signed by the holder
or by his or her agent or attorney must be delivered to the company.
(2) The personal representative of a deceased shareholder may transfer a
share even though the personal representative is not a shareholder at the time of
transfer.
(3) Subject to subclause (4), the company must, immediately on receipt of
a properly executed share transfer, enter the name of the transferee in the share
register as holder of the shares transferred.
(4) If any amount payable to the company by the shareholder is due but
unpaid, the directors may resolve to refuse to register a transfer of a share within
30 working days of receipt of the transfer.
(5) If the directors resolve to refuse to register a transfer under subclause
(4), they must give notice of the refusal to the shareholder within 5 working days
of the date of the resolution.

9 Share certificates

(1) The shareholder may apply to the company for a share certificate
relating to some or all of the shareholder ’s shares in the company.

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481
(2) On receipt of an application for a share certificate, the company must, within 20 working days after receiving the application –
(a) If the application relates to some but not all of the shares, separate the shares shown in the register as owned by the shareholder into separate parcels: 1 parcel being the shares to which the share certificate relates, and the other parcel being any remaining shares; and
(b) In all cases send to the shareholder a certificate stating – (i) the name of the company; and
(ii) the class of shares held by the shareholder; and
(iii) the number of shares held by the shareholder to which the
certificate relates.
(3) If a share certificate has been issued, a transfer of the shares to which it
relates must not be registered by the company unless the form of transfer required
by that section is accompanied by –
(a) The share certificate relating to the share; or
(b) Evidence as to its loss or destruction and, if required, an indemnity
in a form determined by the directors.
(4) If shares to which a share certificate relates are to be transferred, and
the share certificate is sent to the company to enable the registration of the transfer,
the share certificate must be cancelled and no further share certificate issued except
at the request of the transferee.

10 Shareholder decisions and exercise of shareholder powers

A resolution in writing signed by the shareholder is as valid as if it had
been passed at a meeting of shareholders.

11 Distributions to shareholders

(1) The payment of a dividend or the making of any other distribution
must be approved by the shareholder.
(2) The company must not make a distribution to the shareholder unless
there are reasonable grounds for believing that, after that distribution is made –
(a) The company will be able to pay its debts as they become due in
the normal course of business; and
(b) The value of the company’s assets will not be less than the value of
its liabilities.
(3) A distribution made in breach of subclause (2) may be recovered by the
company from the shareholder, in accordance with section 29 of the Act.

12 Company may acquire its own shares and provide financial assistance

(1) The company may agree to acquire its own shares from the shareholder,
subject to the solvency test in clause 11(2).
(2) If the company acquires its own shares, those shares are deemed to be
cancelled immediately on acquisition.
(3) The company may give financial assistance to the shareholder for the
purpose of, or in connection with, the purchase of a share issued or to be issued
by the company, whether directly or indirectly, only if after providing the assistance
the company will satisfy the solvency test in clause 11(2).

13 Annual report to shareholders

The directors of the company are not required to prepare an annual report
in respect of any accounting period, unless requested to do so by the shareholder
by notice in writing.
482 Niue Laws 2006 Vol 1
PART 3
DIRECTORS

14 Appointment and removal of directors

(1) The shareholder may fix the number of directors of the company by
notice in writing to the company.
(2) A director may be appointed or removed by the shareholder by notice
in writing to the company.
(3) A director vacates office if he or she –
(a) Is removed from office in accordance with subclause (2); or
(b) Resigns in accordance with subclause (4); or
(c) Becomes disqualified from being a director under section 85 of the
Act; or
(d) Dies.
(4) A director may resign by delivering a signed written notice of
resignation to the registered office of the company and to the shareholder. Subject
to subclause (5), the notice is effective when it is received at the registered office,
or at any later time specified in the notice.
(5) If the company has only 1 director, that director may not resign until
that director has given not less than 10 working days’ written notice of the
resignation to the shareholder. A notice of resignation given by the sole director of
the company does not take effect, despite its terms, until the earlier of –
(a) The expiry of 10 working days after written notice of the resignation
has been given to the shareholder; or
(b) The appointment of another director of the company.
(6) The company must ensure that notice in the prescribed form of all the
following is delivered to the Registrar –
(a) A change in the directors of the company, whether as the result of a
director ceasing to hold office or the appointment of a new director,
or both;
(b) A change in the name or the residential address of a director of the
company.
(7) In the case of the appointment of a new director, a consent by that person
to act as a director, in the prescribed form, must also be delivered to the Registrar.

15 Powers and duties of directors

(1) The business and affairs of the company must be managed by, or under
the direction or supervision of, the directors subject to –
(a) Section 50 of the Act, which relates to major transactions; and
(b) Any directions given to the board in writing by the shareholder.
(2) The directors have all the powers necessary for managing, and for
directing and supervising the management of, the business and affairs of the
company.
(3) The directors may delegate to a committee of directors, or to a director
or employee, any of their powers. The directors must monitor, by means of
reasonable methods properly used, the exercise of powers by any delegate.
(4) The provisions of these rules relating to proceedings of the directors
also apply to proceedings of any committee of directors, except to the extent the
directors determine otherwise.
(5) The directors have the duties set out in the Act, and, in particular –
(a) Each director must act in good faith and in a manner that the director
believes to be in the interests of the company; and

Companies Act 2006

483
(b) A director must not act, or agree to the company acting, in a manner that contravenes the Act or these rules.

16 Standard of care of directors

A director of the company, when exercising powers or performing duties as a
director, must exercise the care, diligence, and skill that a reasonable person would
exercise in the same circumstances taking into account, but without limitation –
(a) The nature of the company; and
(b) The nature of the decision; and
(c) The position of the director and the nature of the responsibilities
undertaken by him or her.

17 Obligations of directors in connection with insolvency

(1) A director of the company must call a meeting of directors within 10
working days to consider whether the directors should appoint an administrator
or liquidator, in accordance with section 71 of the Act, if the director –
(a) Believes that the company is unable to pay its debts as they fall
due; or
(b) Is aware of matters that would put any reasonable person on inquiry
as to whether the company is unable to pay its debts as they fall
due.
(2) At a meeting called under section 71 of the Act, the directors must
consider whether to –
(a) Appoint an administrator or liquidator; or
(b) Continue to carry on the business of the company.

18 Interested directors

(1) A director must not exercise any power as a director in circumstances
where that director is directly or indirectly materially interested in the exercise of
that power unless the matter in question has been approved by the shareholder.
(2) A transaction entered into by the company in which a director is directly
or indirectly materially interested is voidable at the election of the company in
accordance with section 111 of the Act.
(3) A transaction entered into by the company as the result of action taken
by a director in breach of sections 65, 66, or 67 of the Act is voidable at the option
of the company in accordance with section 112 of the Act.

19 Use and disclosure of company information

A director of the company who has information in his or her capacity as a
director or employee of the company, being information that would not otherwise
be available to him or her, must not disclose that information to any person, or
make use of or act on the information, except –
(a) In the interests of the company; or
(b) As required by law; or
(c) To the shareholder; or
(d) If there are reasonable grounds for believing that the company will
satisfy the solvency test after the director takes that action, and that
action –
(i) is approved by the shareholder; or
(ii) is authorised by any contract of employment entered into
between that director and the company, the relevant terms of
which have been approved by the shareholder.
484 Niue Laws 2006 Vol 1

20 Indemnities and insurance for directors or employees

(1) Subject to section 74 of the Act, the company may provide an indemnity
or purchase insurance for a director of the company or of a related company with
the approval of the shareholder.
(2) In subclause (1) –
director includes –
(a) A person who is liable under any of sections 65 to 71 of the Act by
virtue of section 73 of the Act; and
(b) A former director
indemnify includes relieve or excuse from liability, whether before or after
the liability arises; and
indemnity has a corresponding meaning.

21 Remuneration of directors

Directors may receive remuneration and other benefits from the company
with the approval of the shareholder.

22 Procedure at meetings of directors

(1) Clauses 23 to 29 set out the procedure to be followed at meetings of
directors.
(2) A meeting of directors may determine its own procedure to the extent
that it is not governed by these rules.

23 Chairperson

(1) The shareholder may appoint a director as chairperson of directors and
may determine the period for which the chairperson is to hold office.
(2) If no chairperson is appointed, or if at a meeting of the directors the
chairperson is not present within 5 minutes after the time appointed for the
commencement of the meeting, the directors present may choose 1 of their number
to be the chairperson of the meeting.

24 Notice of meeting

(1) A director or, if requested by a director to do so, an employee of the
company, may convene a meeting of directors by giving notice in accordance with
this clause.
(2) Not less than 24 hours notice of a meeting of directors must be given to
every director who is in Niue, or who can readily be contacted outside Niue.
(3) An irregularity in the notice of a meeting is waived if all directors
entitled to receive notice of the meeting attend the meeting without protest as to
the irregularity, or if all directors entitled to receive notice of the meeting agree to
the waiver.

25 Methods of holding meetings

A meeting of directors may be held either –
(a) By a number of the directors who constitute a quorum, being
assembled together at the place, date, and time appointed for the
meeting; or
(b) By means of audio, or audio and visual, communication by which
all directors participating and constituting a quorum, may
simultaneously hear each other throughout the meeting.

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485

26 Quorum

(1) A quorum for a meeting of directors is a majority of the directors.
(2) No business may be transacted at a meeting of directors if a quorum is
not present.

27 Voting

(1) Every director has 1 vote.
(2) The chairperson has a casting vote.
(3) A resolution of the board is passed if it is agreed to by all directors
present without dissent, or if a majority of the votes cast on it are in favour of it.
(4) A director present at a meeting of directors is presumed to have agreed
to, and to have voted in favour of, a resolution of the directors unless he or she
expressly dissents from, or votes against, the resolution at the meeting.

28 Minutes

The directors must ensure that minutes are kept of all proceedings at
meetings of the directors.

29 Unanimous resolution

(1) A resolution in writing signed or assented to by all directors is as valid
and effective as if it had been passed at a meeting of the directors duly convened
and held.
(2) Any such resolution may consist of several documents (including fax
or other similar means of communication) in like form each signed or assented to
by 1 or more directors.
(3) A copy of any such resolution must be entered in the minute book of
the directors’ proceedings.

30 Managing director and other executive directors

(1) The shareholder may from time to time appoint a director as managing
director for such period and on such terms as the shareholder thinks fit.
(2) The remuneration of the managing director must be approved by the
shareholder.
(3) Subject to the terms of a managing director ’s appointment, the
shareholder may at any time cancel the appointment of a director as managing
director.
(4) A director who holds office as managing director ceases to hold office
as managing director if he or she ceases to be a director of the company.
(5) The directors may, with the prior approval of the shareholder, delegate
to the managing director, subject to any conditions or restrictions that they consider
appropriate, any of their powers that may be lawfully delegated.
(6) Any such delegation may at any time be withdrawn or varied by the
directors. The delegation of a power of the directors to the managing director
does not prevent the exercise of the power by the directors, unless the terms of the
delegation expressly provide otherwise.
(7) A director other than the managing director who is employed by the
company may be paid such remuneration as may be approved by the shareholder.
486 Niue Laws 2006 Vol 1

31 Company records

PART 4
COMPANY RECORDS
(1) The company must keep all the following documents at its registered office or at some other place notice of which has been given to the Registrar in accordance with section 119 of the Act –
(a) The rules of the company;
(b) Minutes of all meetings and resolutions of shareholders within the
last 7 years;
(c) Minutes of all meetings and resolutions of directors and directors’
committees within the last 7 years;
(d) The full names and residential and postal addresses of the current
directors;
(e) Copies of all written communications to all shareholders or all
holders of the same class of shares during the last 7 years, including
annual reports made under section 56 of the Act;
(f) Copies of all financial statements required to be completed under
section 130 for the last 7 completed accounting periods of the
company;
(g) The accounting records required by section 129 for the current
accounting period and for the last 7 completed accounting periods
of the company;
(h) The share register.
(2) The references in subclause (1)(b), (c), and (e) to 7 years and the
references in subclause (1)(f) and (g) to 7 completed accounting periods include
any lesser periods that the Registrar may approve by notice in writing to the
company, in accordance with section 117(2) of the Act.

32 Form of records

(1) The records of the company must be kept –
(a) In written form; or
(b) In a form or in a manner that allows the documents and information
that comprise the records to be readily accessible so as to be usable
for subsequent reference, and convertible into written form.
(2) The directors must ensure that adequate measures exist to –
(a) Prevent the records being falsified; and
(b) Detect any falsification of them.

33 Access to records

(1) The directors of the company are entitled to access to the company’s
records in accordance with section 120 of the Act.
(2) The shareholder of the company is entitled to access to the company’s
records as if that shareholder were a director.

34 Documents to be sent to Registrar

In addition to the annual return required under section 124 of the Act, the company
must send all the following documents to the Registrar under the Act –
(a) Notice of the adoption of new rules by the company, or the alteration
of the rules of the company, under section 14 of the Act;
(b) Notice of a change in the registered office of the company, under
section 18 of the Act;

Companies Act 2006

487
(c) Notice of the issue of shares by the company, under section 26 of the Act;
(d) Notice of the acquisition by the company of its own shares, under section 31 of the Act;
(e) Notice of the redemption of a share, under section 35 of the Act;
(f) Notice of a change in the directors of the company, or of a change
in the name or residential address or postal address of a director,
under section 88 of the Act;
(g) Notice of the making of an order under section 102 of the Act altering
or adding to the rules of a company;
(h) Notice of any place other than the registered office of the company
where records are kept, or of any change in the place where records
are kept, under section 119 of the Act;
(i) Documents requested by the Registrar under the Act.

35 Documents to be sent to shareholders

In addition to any annual report required under section 56 of the Act, the
company must send all the following documents to the shareholder under the
Act –
(a) Financial statements required to be sent under section 130 of the
Act;
(b) Any written statement by an auditor under section 136 of the Act;
(c) Any report by an auditor under section 138 of the Act.
PART 5
ACCOUNTS AND AUDIT

36 Accounting records to be kept

(1) The directors of the company must cause accounting records to be kept
that –
(a) Correctly record and explain the transactions of the company; and
(b) Will at any time enable the financial position of the company to be
determined with reasonable accuracy; and
(c) Will enable the directors to ensure that the financial statements of
the company comply with section 130 of the Act; and
(d) Will enable the financial statements of the company to be readily
and properly audited.
(2) Without limiting subclause (1), the accounting records must contain –
(a) Entries of money received and spent each day and the matters to
which it relates; and
(b) A record of the assets and liabilities of the company; and
(c) If the company’s business involves dealing in goods –
(i) a record of goods bought and sold, and relevant invoices; and
(ii) a record of stock held at the end of the financial year together
with records of any stocktakings during the year; and
(d) If the company’s business involves providing services, a record of
services provided and relevant invoices.
(3) If the company sells goods or provides services for cash in the ordinary
course of carrying on a retail business –
(a) Invoices need not be kept in respect of each retail transaction for
the purposes of subclause (2); and
(b) A record of the total money received each day in respect of the sale
of goods or provision of services, as the case may be, is sufficient to
488 Niue Laws 2006 Vol 1
comply with subclause (2) in respect of those transactions. (4) The accounting records must be kept –
(a) In a form permitted under clause 32; and
(b) At the registered office of the company, or any other place permitted
under section 119 of the Act.

37 Financial statements to be prepared

(1) The directors of every company must ensure that within 4 months after
the balance date of the company or, if the shareholder agrees in writing, within an
extended period not exceeding 7 months after the balance date of the company,
financial statements that comply with subclause (2) are –
(a) Completed in relation to the company and that balance date; and
(b) Given to the shareholder.
(2) The financial statements of the company must –
(a) Give a true and fair view of the matters to which they relate; and
(b) Comply with any applicable regulations made under the Act; and
(c) Be dated and signed on behalf of the directors by 2 directors of the
company, or, if the company has only 1 director, by that director.
(3) The period between –
(a) The date of incorporation of the company and its first balance date;
or
(b) Any 2 balance dates of the company –
must not exceed 15 months.
(4) In this clause, financial statements, in relation to the company and a
balance date, means –
(a) A statement of financial position for the entity as at the balance
date; and
(b) In the case of –
(i) a company trading for profit, a statement of financial
performance for the company in relation to the accounting
period ending at the balance date; and
(ii) a company not trading for profit, an income and expenditure
statement for the company in relation to the accounting period
ending at the balance date; and
(c) If required by regulations made under the Act, a statement of cash
flows for the company in relation to the accounting period ending
on the balance date; and
(d) Such other financial statements in relation to the company or any
group of companies of which it is the holding company as may be
required by regulations made under the Act; and
(e) Any notes or documents giving information relating to the
statement of financial position and other statements.

38 Appointment of auditor

(1) The shareholder may, by notice in writing to the company, appoint an
auditor who is qualified to hold that office under section 135 of the Act to –
(a) Hold office as auditor for the period specified in the notice; and
(b) Audit the financial statements of the company.
(2) The shareholder may remove an auditor by notice in writing to the
company and to that auditor.

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489

39 Auditor’s attendance at shareholders’ meeting

The directors of the company must ensure that an auditor of the company –
(a) Is permitted to attend a meeting of shareholders of the company;
and
(b) Receives the notices and communications that a shareholder is
entitled to receive relating to meetings and resolutions of
shareholders; and
(c) May be heard at a meeting of shareholders that he or she attends
on any part of the business of the meeting that concerns him or her
as auditor.
PART 6
LIQUIDATION AND REMOVAL FROM REGISTER

40 Resolution to appoint liquidator

(1) The shareholder may resolve to liquidate the company by special
resolution.
(2) The directors may resolve to liquidate the company at a meeting called
under section 71 of the Act if they consider that the company is unable to meet its
debts as they become due in the normal course of business.
(3) The directors must give not less than 5 working days’ notice to the
shareholder of any meeting called under section 71 of the Act, and must permit
the shareholder to attend and speak at that meeting.

41 Distribution of surplus assets

(1) The surplus assets of the company available for distribution to
shareholders after all creditors of the company have been paid must be distributed
to the shareholder.
(2) The liquidator may, with the approval of the shareholder, distribute
the surplus assets of the company to the shareholder in kind.
PART 7
MISCELLANEOUS

42 Service of documents on shareholder

(1) A notice, statement, report, accounts, or other document to be sent to a
shareholder who is a natural person may be –
(a) Delivered to that person; or
(b) Sent by any other method approved in writing by that shareholder.
(2) A notice, statement, report, accounts, or other document to be sent to a
shareholder that is a company or an overseas company may be sent by any of the
methods of serving documents referred to in sections 342 or 344 of the Act, as the
case may be.

43 Interpretation

(1) In these rules, Act means the Companies Act 2005.
(2) Unless the context otherwise requires, any term or expression that is
defined in the Act or any regulations made under the Act and used, but not defined,
in these rules has the same meaning as in the Act or the regulations.
490 Niue Laws 2006 Vol 1
Schedule 4 s 15(2)
Model rules for public companies

PART 1

GENERAL PROVISIONS

1 Name of company

2 Public company

3 Rules

PART 2

SHARES AND SHAREHOLDERS

General provisions

4 Number of shares

5 Rights attaching to shares

6 Initial issue of shares

7 Process for issuing shares

8 Transferability of shares

Share register

9 Company to keep share register

10 Form and location of share register

11 Status of registered shareholders

Transfer of shares and share certificates

12 Transfer of shares

13 Share certificates

Meetings of shareholders

14 Meetings of shareholders

15 Notice of meetings

16 Methods of holding meetings

17 Quorum

18 Chairperson

19 Voting

20 Votes of joint shareholders

21 Proxies

22 Corporations may act by representatives

23 Postal votes

24 Duty of person authorised to receive and

count postal votes

25 Duty of chairperson concerning postal

votes

26 Minutes

Miscellaneous

27 Annual meetings and special meetings of

shareholders

28 Written resolutions of shareholders

29 Voting in interest groups

30 Shareholders entitled to receive dividends

31 Notice of meetings and voting

32 Distributions to shareholders

33 Company may acquire its own shares and

provide financial assistance

34 Annual report to shareholders

Companies Act 2006

491

72	Managing director and other executive	81	Financial statements to be prepared
	directors		82	Appointment of auditor
73	Delegation to managing director	83	Auditor ’s attendance at shareholders’
74	Remuneration of managing director and		meeting
executive directors
PART 6
		PART 4		LIQUIDATION AND REMOVAL FROM REGISTER
		COMPANY RECORDS	84	Resolution to appoint liquidator
75	Company records	85	Distribution of surplus assets
76	Form of records
77	Access to records				PART 7
78	Documents to be sent to Registrar			MISCELLANEOUS
79	Documents to be sent to shareholders	86	Service of documents on shareholders
			87	Interpretation
PART 5
ACCOUNTS AND AUDIT
80	Accounting records to be kept

––––––––––––––––––––

1 Name of company

PART 1
GENERAL PROVISIONS
(1) The name of the company at the time of registration under the Act appears on the application for registration or for reregistration, as the case may be.
(2) The name of the company may be changed in accordance with section
10 of the Act with the prior approval of the directors.

2 Public company

The company is a public company.

3 Rules

(1) The company may adopt new rules in place of these rules by special
resolution, in accordance with section 14(2) of the Act.
(2) Subject to the Act –
(a) These rules have effect and may be enforced as if they constituted a
contract –
(i) between the company and its shareholders; and
(ii) between the company and each director; and
(b) The shareholders and directors of the company have the rights,
powers, duties, and obligations set out in these rules.

4 Number of shares

PART 2
SHARES AND SHAREHOLDERS

General provisions

At the time of registration under the Act the company has the number of shares specified in the application for registration or reregistration, as the case may be.
492 Niue Laws 2006 Vol 1

5 Rights attaching to shares

Subject to clause 7(4), each share carries all the following rights –
(a) The right to 1 vote on a poll at a meeting of the company on any
resolution, including any resolution to –
(i) appoint or remove a director or auditor;
(ii) adopt new rules;
(iii) alter the company’s rules;
(iv) approve a major transaction;
(v) approve an amalgamation of the company;
(vi) approve reregistration of a public company as a private
company, or of a private company as a public company;
(vii) put the company into liquidation;
(viii) approve the transfer of registration of the company to another
country; and
(b) The right to an equal share in dividends paid by the company; and
(c) The right to an equal share in the distribution of the surplus assets
of the company in a liquidation.

6 Initial issue of shares

If the company was first registered under Part 2 of the Act, the company
must immediately after its registration issue to any person named in the application
for registration as a shareholder the number of shares specified in the application
as being the number of shares to be issued to that person or those persons.

7 Process for issuing shares

(1) The directors may issue shares –
(a) Pursuant to an offer made to all shareholders proportionally, that,
if accepted by all shareholders, would not affect relative voting or
distribution rights, on such terms as the directors think fit (including
issuing shares without consideration, or instead of dividends). The
shareholders must have a reasonable opportunity to consider and
respond to the offer; or
(b) To shareholders or any other persons for a consideration determined
by the directors. The directors must use reasonable endeavours to
obtain the best price reasonably obtainable for those shares.
(2) The directors may issue more than 1 class of shares. In particular, shares
may be issued that –
(a) Are redeemable; or
(b) Confer preferential rights to distributions of capital or income; or
(c) Confer special, limited, or conditional voting rights; or
(d) Do not confer voting rights.
(3) If the company issues shares, it must give the prescribed notice to the
Registrar under section 26(2) of the Act within 10 working days of the issue of any
shares.
(4) If the rights attached to the shares differ from those set out in clause 5, the notice must be accompanied by a document setting out the terms of issue of the shares.

8 Transferability of shares

The shares of the company are, subject to clause 7(4) and their terms of
issue, transferable by entry in the share register in accordance with clauses 12(1)
to (3).

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Share register

9 Company to keep share register

(1) The company must maintain a share register that records the shares
issued by the company and states –
(a) The names, alphabetically arranged, and the last known address of
each person who is, or has within the last 7 years been, a shareholder;
and
(b) The number of shares of each class held by each shareholder within
the last 7 years; and
(c) The date of any –
(i) issue of shares to; or
(ii) repurchase or redemption of shares from; or
(iii) transfer of shares by or to –
each shareholder within the last 7 years, and in relation to the transfer, the name
of the person to or from whom the shares were transferred.
(2) No notice of a trust, whether express, implied, or constructive, may be
entered on the share register.
(3) The company may appoint an agent to maintain the share register.

10 Form and location of share register

The share register must be kept –
(a) iIn a form that complies with clause 76; and
(b) At the company’s registered office, or at any other place in Niue
notice of which has been given to the Registrar under section 119 of
the Act.

11 Status of registered shareholders

(1) The company must treat the registered holder of a share as the only
person entitled to –
(a) Exercise the right to vote attaching to the share; and
(b) Receive notices; and
(c) Receive a distribution in respect of the share; and
(d) Exercise the other rights and powers attaching to the share.
(2) If a joint holder of a share dies, the remaining holders must be treated
by the company as the holders of that share.
(3) If the sole holder of a share dies, that shareholder ’s legal representative
is the only person recognised by the company as having any title to or interest in
the share.
(4) Any person who becomes entitled to a share as a consequence of the
death, bankruptcy or insolvency or incapacity of a shareholder may be registered
as the holder of that shareholder ’s shares on making a request in writing to the
company to be so registered, accompanied by proof satisfactory to the directors of
that entitlement.

Transfer of shares and share certificates

12 Transfer of shares

(1) If shares are to be transferred, a form of transfer signed by the holder
or by his or her agent or attorney must be delivered to the company.
(2) The personal representative of a deceased shareholder may transfer a
share even though the personal representative is not a shareholder at the time of
transfer.
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(3) Subject to subclause (4), the company must, immediately on receipt of a properly executed share transfer, enter the name of the transferee in the share register as holder of the shares transferred.
(4) The directors may resolve to refuse to register a transfer of a share within
30 working days of receipt of the transfer, if any amount payable to the company
by the shareholder is due but unpaid.
(5) If the directors resolve to refuse to register a transfer for this reason,
they must give notice of the refusal to the shareholder within 5 working days of
the date of the resolution.

13 Share certificates

(1) A shareholder may apply to the company for a share certificate relating
to some or all of the shareholder ’s shares in the company.
(2) On receipt of an application for a share certificate under subclause (1),
the company must, within 20 working days after receiving the application –
(a) If the application relates to some but not all of the shares, separate
the shares shown in the register as owned by the applicant into
separate parcels; 1 parcel being the shares to which the share
certificate relates, and the other parcel being any remaining shares;
and
(b) In all cases send to the shareholder a certificate stating –
(i) the name of the company; and
(ii) the class of shares held by the shareholder; and
(iii) the number of shares held by the shareholder to which the
certificate relates.
(3) If a share certificate has been issued, a transfer of the shares to which it
relates must not be registered by the company unless the form of transfer required
by that section is accompanied by –
(a) The share certificate relating to the share; or
(b) Evidence as to its loss or destruction and, if required, an indemnity
in a form determined by the directors.
(4) If shares to which a share certificate relates are to be transferred, and
the share certificate is sent to the company to enable the registration of the transfer,
the share certificate must be cancelled and no further share certificate issued except
at the request of the transferee.

Meetings of shareholders

14 Meetings of shareholders

(1) Clauses 15 to 27 set out the procedure to be followed at, and in relation
to, meetings of shareholders.
(2) A meeting of shareholders may determine its own procedure to the
extent that it is not governed by these rules.

15 Notice of meetings

(1) Written notice of the time and place of a meeting of shareholders must
be given to every shareholder entitled to receive notice of the meeting and to
every director and any auditor of the company not less than 15 working days
before the meeting.
(2) The notice must set out –
(a) The nature of the business to be transacted at the meeting in
sufficient detail to enable a shareholder to form a reasoned judgment
in relation to it; and

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(b) The text of any special resolution to be submitted to the meeting. (3) An irregularity in a notice of a meeting is waived if all the shareholders
entitled to attend and vote at the meeting attend the meeting without protest as to the irregularity, or if all such shareholders agree to the waiver.
(4) An accidental omission to give notice of a meeting to, or the failure to receive notice of a meeting by, a shareholder does not invalidate the proceedings at that meeting.
(5) If a meeting of shareholders is adjourned for less than 30 working days, it is not necessary to give notice of the time and place of the adjourned meeting other than by announcement at the meeting that is adjourned.

16 Methods of holding meetings

A meeting of shareholders may be held either –
(a) By a number of shareholders, who constitute a quorum, being
assembled together at the place, date, and time appointed for the
meeting; or
(b) By means of audio, or audio and visual, communication by which
all shareholders participating and constituting a quorum, may
simultaneously hear each other throughout the meeting.

17 Quorum

(1) Subject to subclause (3), no business may be transacted at a meeting of
shareholders if a quorum is not present.
(2) A quorum for a meeting of shareholders is present if 5 or more
shareholders or their proxies are present who are between them able to exercise a
majority of the votes to be cast on the business to be transacted by the meeting.
(3) If a quorum is not present within 30 minutes after the time appointed
for the meeting, the meeting is adjourned to the same day in the following week
at the same time and place, or to such other date, time and place as the directors
may appoint.
(4) If, at the adjourned meeting, a quorum is not present within 30 minutes
after the time appointed for the meeting, the shareholders present or their proxies
are a quorum.

18 Chairperson

(1) If the directors have elected a chairperson of the directors, and the
chairperson of the directors is present at a meeting of shareholders, he or she
must chair the meeting.
(2) If no chairperson of the directors has been elected or if, at any meeting
of shareholders, the chairperson of the directors is not present within 15 minutes
of the time appointed for the commencement of the meeting, the shareholders
present may choose 1 of their number to be the chairperson of the meeting.

19 Voting

(1) In the case of a meeting of shareholders held under clause 16(a), unless
a poll is demanded, voting at the meeting will take place by whichever of the
following methods is determined by the chairperson of the meeting –
(a) Voting by voice;
(b) Voting by show of hands.
(2) In the case of a meeting of shareholders held under clause 16(b), unless
a poll is demanded, voting at the meeting will take place by shareholders signifying
individually their assent or dissent by voice.
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(3) A declaration by the chairperson of the meeting that a resolution is carried by the requisite majority is conclusive evidence of that fact unless a poll is demanded in accordance with subclause (4).
(4) At a meeting of shareholders a poll may be demanded by –
(a) Not fewer than 5 shareholders having the right to vote on the
question at the meeting; or
(b) A shareholder or shareholders representing not less than 10% of
the total voting rights of all shareholders having the right to vote
on the question at the meeting.
(5) A poll may be demanded either before or after a vote is taken on a
resolution.
(6) If a poll is taken, votes must be counted according to the votes attached
to the shares of each shareholder present and voting.
(7) The chairperson of a shareholders’ meeting is not entitled to a casting
vote.

20 Votes of joint shareholders

If 2 or more persons are registered as the holder of a share, the vote of the
person named first in the share register and voting on a matter must be accepted
to the exclusion of the votes of the other joint holders.

21 Proxies

(1) A shareholder may exercise the right to vote either by being present in
person or by proxy.
(2) A proxy for a shareholder is entitled to attend and participate in a
meeting of shareholders as if the proxy were the shareholder.
(3) A proxy must be appointed by notice in writing signed by the
shareholder. The notice must state whether the appointment is for a particular
meeting, or for a specified term.
(4) No proxy is effective in relation to a meeting unless a copy of the notice
of appointment is given to the company at least 24 hours before the start of the
meeting.

22 Corporations may act by representatives

(1) A corporation that is a shareholder may appoint a representative to
attend a meeting of shareholders on its behalf by notice in writing signed by a
director or secretary of the corporation.
(2) The notice must state whether the appointment is for a particular
meeting, or for a specified term.

23 Postal votes

(1) A shareholder may exercise the right to vote at a meeting by casting a
postal vote in accordance with this clause.
(2) The notice of a meeting at which shareholders are entitled to cast a
postal vote must state the name of the person authorised by the directors to receive
and count postal votes at that meeting.
(3) A shareholder may cast a postal vote on all or any of the matters to be
voted on at the meeting by sending a notice of the manner in which his or her
shares are to be voted to a person authorised to receive and count postal votes at
that meeting. The notice must reach that person not less than 48 hours before the
start of the meeting.

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(4) A shareholder who has submitted a postal vote on any resolution – (a) May attend and speak at the meeting; and
(b) Must not vote on that resolution in person at the meeting.

24 Duty of person authorised to receive and count postal votes

(1) If no person has been authorised to receive and count postal votes at a
meeting, or if no person is named as being so authorised in the notice of the meeting,
every director is deemed to be so authorised.
(2) It is the duty of a person authorised to receive and count postal votes at
a meeting –
(a) To collect together all postal votes received by him or her or by the
company; and
(b) In relation to each resolution to be voted on at the meeting, to count –
(i) the number of shareholders voting in favour of the resolution
and the number of votes cast by each shareholder in favour of
the resolution; and
(ii) the number of shareholders voting against the resolution, and
the number of votes cast by each shareholder against the
resolution; and
(c) To sign a certificate that he or she has carried out the duties set out
in paragraphs (a) and (b) and that sets out the results of the counts
required by paragraph (b); and
(d) To ensure that the certificate required by paragraph (c) is presented
to the chairperson of the meeting.

25 Duty of chairperson concerning postal votes

(1) If a vote is taken at a meeting on a resolution on which postal votes
have been cast, the chairperson of the meeting must –
(a) On a vote by show of hands, count each shareholder who has
submitted a postal vote for or against the resolution; and
(b) On a poll, count the votes cast by each shareholder who has
submitted a postal vote for or against the resolution.
(2) The chairperson of a meeting must call for a poll on a resolution on
which he or she holds sufficient postal votes, that he or she believes, that if a poll
is taken, the result may differ from that obtained on a show of hands.
(3) The chairperson of a meeting must ensure that a certificate of postal
votes held by him or her is annexed to the minutes of the meeting.

26 Minutes

(1) The directors must ensure that minutes are kept of all proceedings at
meetings of shareholders.
(2) Minutes that have been signed correct by the chairperson of the meeting
are prima facie evidence of the proceedings at the meeting.

Miscellaneous

27 Annual meetings and special meetings of shareholders

(1) Subject to subclause (3) and clause 28(3), the directors must call an
annual meeting of the company to be held –
(a) Once in each calendar year; and
(b) Not later than 5 months after the balance date of the company; and
(c) Not later than 15 months after the previous annual meeting.
(2) The meeting must be held on the date on which it is called to be held.
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(3) The company need not hold its first annual meeting in the calendar year of its incorporation, but must hold that meeting within 18 months of its incorporation.
(4) A special meeting of shareholders entitled to vote on an issue – (a) May be called at any time by a director; and
(b) Must be called by the directors on the written request of
shareholders holding shares carrying together not less than 5% of
the votes that may be cast on that issue.

28 Written resolutions of shareholders

(1) A resolution in writing signed by shareholders, who together hold not
less than 75% of the votes entitled to be cast on that resolution at a meeting of
shareholders, is as valid as if it had been passed at a meeting of those shareholders.
(2) Any such resolution may consist of several documents (including fax
or other similar means of communication) in like form, each signed or assented to
by 1 or more shareholders.
(3) The company need not hold an annual meeting if everything required
to be done at that meeting (by resolution or otherwise) is done by resolution in
accordance with subclause (1).
(4) Within 5 working days of a resolution being passed under subclause
(1), the company must send a copy of the resolution to every shareholder who did
not sign it.
(5) A resolution may be signed under subclause (1) without any prior notice
being given to shareholders.

29 Voting in interest groups

If the company proposes to take action that affects the rights attached to
shares within the meaning of section 54 of the Act, the action may not be taken
unless it is approved by a special resolution of each interest group, as defined in
section 54(3) of the Act.

30 Shareholders entitled to receive dividends

(1) The shareholders who are entitled to receive dividends are –
(a) If the directors fix a date for this purpose, those shareholders whose
names are registered in the share register on that date;
(b) If the directors do not fix a date for this purpose, those shareholders
whose names are registered in the share register on the day on which
the dividend is approved.
(2) A date fixed under subclause (1)(a) must not precede by more than 20
working days the date on which the proposed action will be taken.

31 Notice of meetings and voting

(1) The shareholders who are entitled to receive notice of a meeting of
shareholders are –
(a) If the directors fix a date for this purpose, those shareholders whose
names are registered in the share register on that date;
(b) If the directors do not fix a date for this purpose, those shareholders
whose names are registered in the share register at the close of
business on the day immediately preceding the day on which the
notice is given.
(2) A date fixed under subclause (1)(a) must not precede by more than 30
working days the date on which the meeting is to be held.

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(3) Before a meeting of shareholders, the company may prepare a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order, and showing the number of shares held by each shareholder –
(a) If a date has been fixed under subclause (1)(a), as at that date; or
(b) If no such date has been fixed, as at the close of business on the day
immediately preceding the day on which the notice is given.
(4) A person named in a list prepared under subclause (3) is entitled to
attend the meeting and vote in respect of the shares shown opposite his or her
name in person or by proxy, except to the extent that –
(a) That person has, since the date on which the shareholders entitled
to receive notice of the meeting were determined, transferred any
of his or her shares to some other person; and
(b) The transferee of those shares has been registered as the holder of
those shares, and has requested, before the commencement of the
meeting, that his or her name be entered on the list prepared under
subclause (3).
(5) A shareholder may on 2 working days’ notice examine any list prepared
under subclause (3) during normal business hours at the registered office of the
company.

32 Distributions to shareholders

(1) The company must not pay a dividend or make any other distribution
to shareholders unless there are reasonable grounds for believing that, after that
distribution is made –
(a) The company will be able to pay its debts as they become due in
the normal course of business; and
(b) The value of the company’s assets will not be less than the value of
its liabilities.
(2) Subject to subclause (1) and to the terms of issue of any shares, the
company may pay a dividend to shareholders –
(a) Of the same amount in respect of each share of the same class, if the
payment of the dividend is authorised by the directors; or
(b) On any other basis, with the prior approval of all shareholders.
(3) A distribution made in breach of subclauses (1) or (2) may be recovered
by the company from the recipients or from the persons approving the distribution,
in accordance with section 29 of the Act.
(4) No dividend or other distribution bears interest against the company
unless the applicable terms of issue of a share expressly provide otherwise.
(5) All dividends and other distributions unclaimed for 1 year after the
due date for payment may be invested or otherwise made use of by the directors
for the benefit of the company until claimed.
(6) The company is entitled to mingle the unclaimed distribution with other
money of the company and is not required to hold it or to regard it as being
impressed with any trust but, subject to compliance with the solvency test, must
pay the distribution to the person producing evidence of entitlement to receive it.

33 Company may acquire its own shares and provide financial assistance

(1) Subject to the solvency test, the company may agree to acquire its own
shares from a shareholder –
(a) Pursuant to an offer to acquire shares made to all holders of shares
of the same class that would, if accepted by all persons to whom
the offer is made, leave unaffected relative voting and distribution
rights; or
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(b) On any other basis, with the prior approval of shareholders by special resolution.
(2) If the company acquires its own shares, those shares are deemed to be cancelled immediately on acquisition.
(3) The company may give financial assistance to a person for the purpose of, or in connection with, the purchase of a share issued or to be issued by the company, whether directly or indirectly, only if –
(a) The company gives the assistance in the normal course of its business and on usual terms and conditions; or
(b) The giving of the assistance is authorised by the directors or by all shareholders under section 51 of the Act, and there are reasonable grounds for believing that, after providing the assistance, the company will satisfy the solvency test.

34 Annual report to shareholders

(1) The directors of the company must, within 5 months after the balance
date of the company –
(a) Prepare an annual report on the affairs of the company during the
accounting period ending on that date; and
(b) Send a copy of that report to each shareholder.
(2) Every annual report for the company must –
(a) Be in writing and be dated; and
(b) Include financial statements for the accounting period that comply
with section 130 of the Act; and
(c) Include the auditor ’s report required under section 138 of the Act;
and
(d) State the names of the persons holding office as directors of the
company as at the end of the accounting period and the names of
any persons who ceased to hold office as directors of the company
during the accounting period; and
(e) Contain such other information as may be required by regulations
made under the Act; and
(f) Be signed on behalf of the directors by 2 directors of the company
or, if the company has only 1 director, by that director.

Compulsory acquisitions

35 Compulsory acquisition of minority holdings below 10%

(1) A shareholder who holds 90% of the voting shares of the company
(majority shareholder) may give a notice to the other holders of voting shares
(minority shareholders) in accordance with this clause, requiring the minority
shareholders to sell their voting shares to the majority shareholder.
(2) The majority shareholder must also give the notice to the company,
and give public notice of the fact that such a notice has been given.
(3) A notice may be given under subclause (1) by a majority shareholder at
any time within 6 months after that majority shareholder first becomes interested
in not less than 90% of the voting shares of the company.

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36 Price for voting share

(1) The majority shareholder must pay a price for each voting share that
is –
(a) Equal to the highest price paid for a voting share by that majority shareholder in an arms length sale and purchase of such shares during the 6-month period ending on the date on which the majority shareholder first became interested in not less than 90% of the voting shares; or
(b) If the majority shareholder so elects, a price to be fixed by an
independent arbitrator.
(2) The majority shareholder must ask the directors of the company to
nominate an independent arbitrator for this purpose.
(3) If the directors fail to do so within 10 working days of receiving such a
request, the majority shareholder may nominate the arbitrator.

37 Notice under clause 35: general requirements

(1) A notice given under clause 35 must specify –
(a) The name of the majority shareholder; and
(b) The date on which the majority shareholder first became interested
in not less than 90% of the voting shares of the company; and
(c) If the price to be paid for each voting share has been determined
under clause 36(1)(a), that price, which must be certified by the
majority shareholder as meeting the requirements of clause 36(1)(a);
and
(d) If the price to be paid for each voting share is to be fixed by an
arbitrator under clause 36(1)(b), the name of the arbitrator and the
date on which and place at which the arbitration is to be held; and
(e) The rights of minority shareholders under clause 39.
(2) The date referred to in subclause (1)(d) must not be less than 60 working
days from the date on which the notice is given to minority shareholders.

38 Requirements for price for voting share determined under clause 36(1)(a)

If the price to be paid for each voting share has been determined under
clause 36(1)(a), a notice given under clause 35 must also –
(a) Specify a date not less than 20 working days from the date of the
notice on which the price will be paid, and the shares will be
acquired by the majority shareholder (transfer date); and
(b) Advise the shareholder that no payment will be received by the
shareholder until any share certificate that has been issued in respect
of the voting shares has been delivered to the company; and
(c) Require the shareholder to specify the manner in which payment
for the voting shares is to be made to that shareholder; and
(d) Advise shareholders that payment may be made by cheque to be
collected from the company at a specified address, or posted to a
postal address specified by the shareholder, and may provide for
other payment options.

39 Requirements for price for voting share determined under clause 36(1)(b)

(1) If the price to be paid for each voting share is to be determined under
clause 36(1)(b) and, if any minority shareholder considers that the arbitrator is not
suitably qualified to value the shares, or is not independent, the minority
shareholder may give notice to the company within 10 working days requiring
the company to apply to the Court for appointment of another person as arbitrator.
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(2) If a notice under subclause (1) is received, the company must immediately apply to the Court for the appointment of an arbitrator.
(3) If a notice is given under subclause (1), or if for any other reason the arbitration does not proceed on the date and at the place specified in the notice, not less than 40 working days’ notice of the altered date and place must be given to each minority shareholder.
(4) Each minority shareholder is entitled to attend the arbitration and to be heard, in person or by a representative (who may, but need not, be a lawyer or a public accountant).
(5) The arbitrator must expeditiously determine a fair and reasonable price per share for the shares to be acquired.
(6) The price must not include any discount or premium to reflect the size
of the parcels of shares to be acquired, or the circumstances of the acquisition.
(7) The costs of the arbitration must be paid by the majority shareholder.

40 Notice of determination of price by arbitrator

Within 10 working days of the determination by the arbitrator, the company
must give a notice to each minority shareholder that –
(a) Advises the shareholder of the price that has been determined by
the arbitrator; and
(b) Specifies a date not less than 10 working days and not more than 20
working days from the date of the notice on which the price will be
paid, and the shares will be acquired by the majority shareholder
(transfer date); and
(c) Advises the shareholder that no payment will be received by the
shareholder until any share certificate that has been issued in respect
of the voting shares has been delivered to the company; and
(d) Requires the shareholder to specify the manner in which payment
for the voting shares is to be made to that shareholder; and
(e) Advises the shareholders that payment may be made by cheque to
be collected from the company at a specified address, or posted to
a postal address specified by the shareholder, and may provide for
other payment options.

41 Requirements on transfer date

(1) On the transfer date –
(a) The majority shareholder must pay the full amount of the price for
all voting shares held by minority shareholders to the company, to
be held on trust by the company for the benefit of those shareholders.
The payment must be made in cleared funds; and
(b) All voting shares held by minority shareholders are deemed to be
transferred to the majority shareholder on payment to the company
in accordance with paragraph (a), and the company must register
the majority shareholder as the holder of those shares despite any
outstanding share certificates in respect of those shares.
(2) Subject to subclause (5), within 3 working days of the transfer date the
company must pay each minority shareholder the price for that shareholder ’s
voting shares, in the manner specified by that shareholder.
(3) If the shareholder has specified that a cheque will be collected from the
company by that shareholder, the cheque must be held ready for collection from
that date.

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(4) If the company fails to make a payment, or to make it available for collection, the company must pay interest to the shareholder from the due date to the date on which the payment is made, or is made available for collection, at the rate of 15% per annum, accruing daily and compounding monthly.
(5) If a share certificate has been issued in respect of voting shares held by a minority shareholder, no payment may be made to that minority shareholder until the minority shareholder delivers to the company –
(a) The share certificate; or
(b) Evidence as to its loss or destruction and, if required, an indemnity
in a form determined by the directors.

42 Application of exit rights

Exit rights

(1) Subject to subclause (2), this clause and clauses 43 to 48 apply to a shareholder (acquirer) who –
(a) Acquires shares in the company or otherwise becomes interested in shares in the company (acquisition); and
(b) Before the acquisition, was interested in less than 50% of the voting
shares of the company; and
(c) Following the acquisition, is interested in 50% or more of the voting
shares of the company.
(2) A person may be exempted from the application of this clause and
clauses 43 to 48, either with or without conditions, by a special resolution of holders
of voting shares other than –
(a) Voting shares in which that person is interested; and
(b) Voting shares in which any other person is interested, where that
other person is interested in not less than 50% of the company’s
voting shares.

43 Acquirer to give notice to company

An acquirer must, within 10 working days of first becoming a shareholder
to whom this clause applies, give notice to the company –
(a) Advising the company that the acquirer is a shareholder to whom
this clause applies; and
(b) Identifying the names of the holders of all voting shares in which
the acquirer is interested, and the number of shares held by each of
them in which the acquirer is interested; and
(c) Offering to purchase all voting shares in which the acquirer is not
interested (remaining shares) on the terms set out in clause 44.

44 Consideration for remaining shares

A notice given under clause 43 must be signed by the acquirer or, if the
acquirer is a corporation, by a director of that corporation, and must –
(a) Specify the highest price paid for any voting share in the company
by the acquirer, or by any person holding shares in which the
acquirer is interested, from the date 6 months before the date on
which the acquirer first became a person to whom this clause applies
up to the date of the notice; and
(b) If any shares in which the acquirer is interested were acquired
during this period for a non-cash consideration, describe that
consideration and state an assessment of the cash value to which
that consideration corresponds; and
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(c) Specify the consideration offered by the acquirer for each remaining share, which may, but need not, be a cash consideration (consideration); and
(d) Specify the date on which the acquirer will provide the consideration for any remaining shares in respect of which the offer is accepted, which must be not less than 20 working days nor more than 40 working days from the date on which the notice is given to the company (transfer date); and
(e) Specify the rights of the holders of remaining shares under clause
47.

45 Independent report

A notice given under clause 43 must be accompanied by a report from an
independent, appropriately qualified person previously approved by the company,
confirming that the consideration offered is a fair and reasonable consideration
for a share, without any discount or premium to reflect the size of the parcels of
shares to be acquired or the circumstances of the acquisition.

46 Notice to holders of remaining shares

(1) Within 10 working days of receiving a notice under clause 43, the
company must forward the notice to all holders of remaining shares.
(2) The notice under subclause (1) may, but need not, be accompanied by –
(a) Additional information provided by the directors in relation to the
offer;
(b) A recommendation by the directors as to whether or not the offer
should be accepted.
(3) The company must also immediately give public notice of the notice
given to shareholders.

47 Rights of holders of remaining shares

(1) A shareholder to whom a notice is given under clause 46 –
(a) Is not required to accept the offer;
(b) May accept the offer by notice in writing to the company within 20
working days of the date on which the notice was given to the
shareholder.
(2) If a shareholder gives notice accepting an offer in accordance with
subclause (1)(b), there is deemed to be a contract between the acquirer and the
shareholder for the purchase by the acquirer of the remaining shares held by that
shareholder –
(a) On the transfer date; and
(b) For the consideration.

48 When voting rights not to be exercised

(1) If a shareholder to whom this clause applies fails to give the notice
required under clause 43 within the time specified in that clause, no voting rights
may be exercised in respect of any shares in which that acquirer is interested until
that notice has been given.
(2) If a person who is not a shareholder becomes interested in 40% or more
of the voting shares of the company, no voting rights may be exercised in respect
of any voting shares in which that person is interested unless that person –
(a) Is exempted by a special resolution under clause 42(2); or
(b) Undertakes to the company to make an offer as if that person were
an acquirer, and complies with that undertaking.

49 Number of directors

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PART 3
DIRECTORS
505
(1) The minimum number of directors is 2. (2) The maximum number of directors is 10.
(3) The shareholders may, by ordinary resolution, vary the minimum or
maximum number of directors of the company.

50 Appointment and removal of directors

A director may be appointed or removed by ordinary resolution passed at
a meeting called for the purpose, or by a written resolution in accordance with
clause 28(1).

51 Term of office

(1) The resolution appointing a director may specify the period for which
the director is to hold office.
(2) On the expiry of any period specified in this manner, the director ceases
to hold office unless reappointed.

52 When director vacates office

A director vacates office if he or she –
(a) Is removed from office in accordance with clause 50; or
(b) Ceases to hold office in accordance with clause 51; or
(c) Resigns in accordance with clause 53; or
(d) Becomes disqualified from being a director under section 85 of the
Act; or
(e) Dies; or
(f) Is absent from 3 consecutive meetings of the directors without leave
being granted by a resolution of the directors, and the directors
resolve that that director has vacated office.

53 Resignation of director

(1) A director may resign by delivering a signed written notice of
resignation to the registered office of the company.
(2) Subject to subclauses (3) and (4), the notice is effective when it is received
at the registered office, or at any later time specified in the notice.
(3) If the company has only 1 director, that director may not resign –
(a) Until that director has called a meeting of shareholders to receive
notice of the resignation; or
(b) If the company has only 1 shareholder, until that director has given
not less than 10 working days’ notice of the resignation to that
shareholder.
(4) A notice of resignation given by the sole director of the company does
not take effect, despite its terms, until the earlier of the appointment of another
director of the company or –
(a) The time and date for which the meeting of shareholders is called
under subclause (3)(a); or
(b) If the company has only 1 shareholder, 10 working days after notice
of the resignation has been given to that shareholder.
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54 Casual vacancies

The directors may appoint any person to be a director to fill a casual vacancy
until the next annual meeting of the company.

55 Notice of changes in directors

(1) The company must ensure that notice in the prescribed form of the
following is delivered to the Registrar –
(a) A change in the directors of the company, whether as the result of a
director ceasing to hold office or the appointment of a new director,
or both;
(b) A change in the name or the residential address of a director of the
company.
(2) In the case of the appointment of a new director, a consent by that person
to act as a director, in the prescribed form, must also be delivered to the Registrar.

56 Powers and duties of directors

(1) Subject to section 50 of the Act (which relates to major transactions) the
business and affairs of the company must be managed by, or under the direction
or supervision of, the directors.
(2) The directors have all the powers necessary for managing, and for
directing and supervising the management of, the business and affairs of the
company.
(3) The directors may delegate any of their powers to a committee of
directors, or to a director or employee.
(4) The directors must monitor, by means of reasonable methods properly
used, the exercise of powers by any delegate.
(5) The provisions of these rules relating to proceedings of the directors
also apply to proceedings of any committee of directors, except to the extent the
directors determine otherwise.
(6) The directors have the duties set out in the Act, and, in particular –
(a) Each director must act in good faith and in a manner that the director
believes to be in the interests of the company; and
(b) A director must not act, or agree to the company acting, in a manner
that contravenes the Act or these rules.

57 Standard of care of directors

A director of the company, when exercising powers or performing duties
as a director, must exercise the care, diligence, and skill that a reasonable person
would exercise in the same circumstances, taking into account, but without
limitation –
(a) The nature of the company; and
(b) The nature of the decision; and
(c) The position of the director and the nature of the responsibilities
undertaken by him or her.

58 Obligations of directors in connection with insolvency

(1) A director of the company must call a meeting of directors within 10
working days to consider whether the directors should appoint an administrator
or liquidator, in accordance with section 71 of the Act, if the director –
(a) Believes that the company is unable to pay its debts as they fall
due; or

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507
(b) Is aware of matters that would put any reasonable person on inquiry as to whether the company is unable to pay its debts as they fall due.
(2) At a meeting called under section 71 of the Act the directors must consider whether to appoint an administrator or liquidator, or to continue to carry on the business of the company.

59 Interested directors

(1) A director must not exercise any power as a director in circumstances
where that director is directly or indirectly materially interested in the exercise of
that power unless –
(a) The Act expressly authorises the director to exercise the relevant
power despite such an interest; or
(b) The director has reasonable grounds for believing that the company
will satisfy the solvency test after that power is exercised, and
either –
(i) these rules expressly authorise the director to exercise the
relevant power despite such an interest, and the interest has
been disclosed in accordance with clause 63(4); or
(ii) the matter in question has been approved by shareholders
under section 51 of the Act, following disclosure of the nature
and extent of the director ’s interest to all shareholders who are
not otherwise aware of those matters.
(2) A transaction entered into by the company in which a director is directly
or indirectly materially interested is voidable at the election of the company in
accordance with section 111 of the Act.
(3) A transaction entered into by the company as the result of action taken
by a director in breach of sections 65, 66, or 67 of the Act is voidable at the option
of the company in accordance with section 112 of the Act.

60 Use and disclosure of company information

A director of the company who has information in his or her capacity as a
director or employee of the company, being information that would not otherwise
be available to him or her, must not disclose that information to any person, or
make use of or act on the information, except –
(a) In the interests of the company; or
(b) As required by law; or
(c) If there are reasonable grounds for believing that the company will
satisfy the solvency test after the director takes that action, and that
action –
(i) is approved by all shareholders under section 51 of the Act; or
(ii) is authorised by any contract of employment entered into
between that director and the company, the relevant terms of
which have been disclosed in the interests register referred to
in clause 63.

61 Indemnities and insurance for directors or employees

(1) Subject to section 74 of the Act, the company may provide an indemnity
or purchase insurance for a director of the company or of a related company with
the approval of –
(a) The directors; but no director may vote on a resolution concerning
an indemnity or insurance to be provided for him or her; or
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(b) Shareholders by ordinary resolution; but no director may vote on a resolution concerning an indemnity or insurance to be provided for him or her; or
(c) All shareholders under section 51 of the Act. (2) In subclause (1) –
director includes –
(a) A person who is liable under any of sections 65 to 71 of the Act by
virtue of section 73 of the Act; and
(b) A former director
indemnify includes relieve or excuse from liability, whether before or after
the liability arises; and
indemnity has a corresponding meaning.

62 Remuneration of directors

Directors may receive remuneration and other benefits from the company
with the approval of –
(a) The directors; but no director may vote on a resolution concerning
remuneration or other benefits to be provided for him or her; or
(b) Shareholders by ordinary resolution; but no director may vote on a
resolution concerning remuneration or benefits to be received by
him or her; or
(c) All shareholders under section 51 of the Act.

63 Disclosure of interests by directors

(1) The company must –
(a) Maintain an interests register; and
(b) Permit any director or shareholder to inspect the interests register
as if sections 120 and 121 of the Act applied to the interests register.
(2) The annual report of the company under section 56 of the Act in respect
of any accounting period must contain all entries made in the interests register in
the course of that accounting period.
(3) The directors must enter in the interests register details of any –
(a) Contract of employment to which clause 60(c) applies; and
(b) Indemnity or insurance provided for a director under clause 61;
and
(c) Details of any remuneration or other benefits provided to directors
under clause 62; and
(d) Disclosure by a director under subclauses (4) or (5).
(4) A director who is in any way directly or indirectly materially interested
in a transaction or proposed transaction with the company must, within 10 working
days of becoming aware of that interest –
(a) Disclose that interest in writing to the directors; and
(b) Ensure that details of that disclosure are entered in the interests
register.
(5) A director may disclose to the other directors, and enter in the interests
register, a general disclosure that the director is a director or employee or
shareholder of another company, or is otherwise associated with another company
or another person.
(6) Disclosure under subclause (5) is disclosure of the director ’s interest in
any transaction entered into with that other company or person for the purposes
of subclause (4).

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64 Procedure at meetings of directors

(1) Clauses 65 to 74 set out the procedure to be followed at meetings of
directors.
(2) A meeting of directors may determine its own procedure, to the extent
that it is not governed by these rules.

65 Chairperson

(1) The directors may elect 1 of their number as chairperson of directors
and may determine the period for which the chairperson is to hold office.
(2) If no chairperson is elected, or if at a meeting of the directors the
chairperson is not present within 5 minutes after the time appointed for the
commencement of the meeting, the directors present may choose 1 of their number
to be the chairperson of the meeting.

66 Notice of meeting

(1) A director or, if requested by a director to do so, an employee of the
company, may convene a meeting of directors by giving notice in accordance with
this clause.
(2) Not less than 24 hours’ notice of a meeting of directors must be given
to every director who is in Niue, or who may readily be contacted outside Niue.
(3) An irregularity in the notice of a meeting is waived if all directors
entitled to receive notice of the meeting attend the meeting without protest as to
the irregularity, or if all directors entitled to receive notice of the meeting agree to
the waiver.

67 Methods of holding meetings

A meeting of directors may be held either –
(a) By a number of the directors who constitute a quorum, being
assembled together at the place, date, and time appointed for the
meeting; or
(b) By means of audio, or audio and visual, communication by which
all directors participating and constituting a quorum, may
simultaneously hear each other throughout the meeting.

68 Quorum

(1) A quorum for a meeting of directors is a majority of the directors.
(2) No business may be transacted at a meeting of directors if a quorum is
not present.

69 Voting

(1) Every director has 1 vote.
(2) The chairperson has a casting vote.
(3) A resolution of the directors is passed if it is agreed to by all directors
present without dissent, or if a majority of the votes cast on it are in favour of it.
(4) A director present at a meeting of directors is presumed to have agreed
to, and to have voted in favour of, a resolution of the directors unless he or she
expressly dissents from or votes against the resolution at the meeting.

70 Minutes

The directors must ensure that minutes are kept of all proceedings at
meetings of the directors.
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71 Unanimous resolution

(1) A resolution in writing signed or assented to by all directors is as valid
and effective as if it had been passed at a meeting of the directors duly convened
and held.
(2) Any such resolution may consist of several documents (including fax
or other similar means of communication) in like form, each signed or assented to
by 1 or more directors.
(3) A copy of any such resolution must be entered in the minute book of
the directors’ proceedings.

72 Managing director and other executive directors

(1) The directors may, from time to time, appoint a director as managing
director for such period and on such terms as they think fit.
(2) Subject to the terms of a managing director ’s appointment, the directors
may, at any time, cancel the appointment of a director as managing director.
(3) A director who holds office as managing director ceases to hold office
as managing director if he or she ceases to be a director of the company.

73 Delegation to managing director

(1) The directors may delegate to the managing director, subject to any
conditions or restrictions that they consider appropriate, any of their powers that
may be lawfully delegated.
(2) Any such delegation may at any time be withdrawn or varied by the
directors.
(3) The delegation of a power of the directors to the managing director
does not prevent the exercise of the power by the directors, unless the terms of the
delegation expressly provide otherwise.

74 Remuneration of managing director and executive directors

(1) The managing director may be paid such remuneration as he or she
may agree with the directors.
(2) A director (other than the managing director) who is employed by the
company may be paid such remuneration as may be agreed between that director
and the other directors.
(3) The remuneration referred to in subclauses (1) and (2) may be by way
of salary, commission, participation in profits or any combination of these methods,
or any other method of fixing remuneration.

75 Company records

PART 4
COMPANY RECORDS
(1) The company must keep all the following documents at its registered office or at some other place notice of which has been given to the Registrar in accordance with section 119 of the Act –
(a) The rules of the company;
(b) Minutes of all meetings and resolutions of shareholders within the
last 7 years;
(c) Minutes of all meetings and resolutions of directors and directors’
committees within the last 7 years;
(d) The full names and residential and postal addresses of the current
directors;

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511
(e) Copies of all written communications to all shareholders or all holders of the same class of shares during the last 7 years, including annual reports made under section 56 of the Act;
(f) Copies of all financial statements required to be completed under section 130 of the Act for the last 7 completed accounting periods of the company;
(g) The accounting records required by section 129 of the Act for the current accounting period and for the last 7 completed accounting periods of the company;
(h) The share register.
(2) The references in subclause (1)(b), (c), and (e) to 7 years and the
references in subclause (1)(f) and (g) to 7 completed accounting periods include
any lesser periods that the Registrar may approve by notice in writing to the
company, in accordance with section 117(2) of the Act.
(3) The interests register required to be kept under clause 63 must be –
(a) Kept at the same place as the written communications to
shareholders referred to in clause 75(1)(e); and
(b) Kept in a form that complies with clause 76; and
(c) Made available to shareholders in the same manner as records to
which clause 76(2) applies.

76 Form of records

(1) The records of the company must be kept –
(a) In written form; or
(b) In a form or in a manner that allows the documents and information
that comprise the records to be readily accessible so as to be usable
for subsequent reference, and convertible into written form.
(2) The directors must ensure that adequate measures exist to –
(a) Prevent the records being falsified; and
(b) Detect any falsification of them.

77 Access to records

(1) The directors of the company are entitled to access to the company’s
records in accordance with section 120 of the Act.
(2) A shareholder of the company is entitled –
(a) To inspect the documents referred to in section 121 of the Act, in
the manner specified in section 123 of the Act; and
(b) To require copies of or extracts from any document that he or she
may inspect within 5 working days of making a request in writing
for the copy or extract, on payment of any reasonable copying and
administration fee prescribed by the company.
(3) The fee may be determined by any director, subject to any directions
from the directors.

78 Documents to be sent to Registrar

In addition to the annual return required under section 124 of the Act, the
company must send all the following documents to the Registrar under the Act –
(a) Notice of the adoption of new rules by the company, or the alteration
of the rules of the company, under section 14;
(b) Notice of a change in the registered office of the company, under
section 17 of the Act;
(c) Notice of the issue of shares by the company, under section 26 of
the Act;
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(d) Notice of the acquisition by the company of its own shares, under section 31 of the Act;
(e) Notice of the redemption of a share, under section 35 of the Act;
(f) Notice of a change in the directors of the company, or of a change
in the name or residential address or postal address of a director,
under section 88 of the Act;
(g) Notice of the making of an order under section 103 of the Act altering
or adding to the rules of a company;
(h) Notice of any place other than the registered office of the company
where records are kept, or of any change in the place where records
are kept, under section 119 of the Act;
(i) Documents requested by the Registrar under the Act.

79 Documents to be sent to shareholders

In addition to the annual report required under section 56 of the Act, the
company must send all the following documents to shareholders under the Act –
(a) Notice of any repurchase of shares to which section 31(4) of the Act
applies;
(b) Notice of a written resolution approved under section 53 of the
Act;
(c) Financial statements required to be sent under section 130 of the
Act;
(d) Any written statement by an auditor under section 136 of the Act
(e) The report by the auditor under section 138 of the Act.
PART 5
ACCOUNTS AND AUDIT

80 Accounting records to be kept

(1) The directors of the company must cause accounting records to be kept
that –
(a) Correctly record and explain the transactions of the company; and
(b) Will at any time enable the financial position of the company to be
determined with reasonable accuracy; and
(c) Will enable the directors to ensure that the financial statements of
the company comply with section 130 of the Act; and
(d) Will enable the financial statements of the company to be readily
and properly audited.
(2) Without limiting subclause (1), the accounting records must contain –
(a) Entries of money received and spent each day and the matters to
which it relates; and
(b) A record of the assets and liabilities of the company; and
(c) If the company’s business involves dealing in goods –
(i) a record of goods bought and sold, and relevant invoices; and
(ii) a record of stock held at the end of the financial year together
with records of any stocktakings during the year; and
(d) If the company’s business involves providing services, a record of
services provided and relevant invoices.
(3) If the company sells goods or provides services for cash in the ordinary
course of carrying on a retail business –
(a) Invoices need not be kept in respect of each retail transaction for
the purposes of subclause (2); and

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513
(b) A record of the total money received each day in respect of the sale of goods or provision of services, as the case may be, is sufficient to comply with subclause (2) in respect of those transactions.
(4) The accounting records must be kept –
(a) In a form permitted under clause 76; and
(b) At the registered office of the company, or any other place permitted
under section 119 of the Act.

81 Financial statements to be prepared

(1) The directors must ensure that –
(a) Within 4 months after the balance date of the company, financial
statements that comply with subclause (2) are completed in relation
to the company and that balance date; and
(b) Within 20 working days of the date on which the financial
statements must be completed under paragraph (a), those financial
statements are sent to all shareholders. This requirement may be
satisfied by sending the financial statements to shareholders in an
annual report, in accordance with section 56 of the Act.
(2) The financial statements of the company must –
(a) Give a true and fair view of the matters to which they relate; and
(b) Comply with any applicable regulations made under the Act; and
(c) Be dated and signed on behalf of the directors by 2 directors of the
company, or, if the company has only 1 director, by that director.
(3) The period between –
(a) The date of incorporation of the company and its first balance date;
or
(b) Any 2 balance dates of the company –
must not exceed 15 months.
(4) In this clause, financial statements, in relation to the company and a
balance date, means –
(a) A statement of financial position for the entity as at the balance
date; and
(b) In the case of –
(i) A company trading for profit, a statement of financial
performance for the company in relation to the accounting
period ending at the balance date; and
(ii) A company not trading for profit, an income and expenditure
statement for the company in relation to the accounting period
ending at the balance date; and
(c) If required by regulations made under the Act, a statement of cash
flows for the company in relation to the accounting period ending
on the balance date; and
(d) Such other financial statements in relation to the company or any
group of companies of which it is the holding company as may be
required by regulations made under the Act; and
(e) Any notes or documents giving information relating to the
statement of financial position and other statements.

82 Appointment of auditor

(1) The company must appoint an auditor who is qualified to hold that
office under section 135 of the Act to –
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(a) Audit the financial statements of the company in respect of an accounting period; and
(b) Hold office until those financial statements have been audited in accordance with the Act or until he or she ceases to hold office.
(2) The company must appoint an auditor within 30 working days in the event of a vacancy in the office of auditor.
(3) An auditor ceases to hold office if he or she –
(a) Resigns by delivering a written notice of resignation to the registered
office of the company not less than 20 working days before the date
on which the notice is expressed to be effective; or
(b) Is replaced as auditor by an ordinary resolution appointing another
person as auditor in his or her place, following notice to the auditor
in accordance with section 133 of the Act; or
(c) Becomes disqualified from being the auditor of the company; or
(d) Becomes subject to a trustee order under section 501 of the Niue
Act 1966, or an order of medical custody under section 602 of that
Act; or
(e) Dies.
(4) An auditor may be appointed –
(a) By ordinary resolution; or
(b) If the office of auditor is vacant, by the directors. If an auditor is
appointed by the directors, the directors must, within 10 working
days, give notice of the appointment to all shareholders.
(5) The fees payable to the auditor must be agreed between the auditor
and the directors.

83 Auditor’s attendance at shareholders’ meeting

The directors must ensure that an auditor of the company –
(a) Is permitted to attend a meeting of shareholders of the company;
and
(b) Receives the notices and communications that a shareholder is
entitled to receive relating to meetings or resolutions of
shareholders; and
(c) May be heard at a meeting of shareholders that he or she attends
on any part of the business of the meeting that concerns him or her
as auditor.
PART 6
LIQUIDATION AND REMOVAL FROM REGISTER

84 Resolution to appoint liquidator

(1) The shareholders may resolve to liquidate the company by special
resolution.
(2) The directors may resolve to liquidate the company at a meeting called
under section 71 of the Act, if they consider that the company is unable to meet its
debts as they become due in the normal course of business.

85 Distribution of surplus assets

(1) The surplus assets of the company available for distribution to
shareholders after all creditors of the company have been paid must be distributed
in proportion to the number of shares held by each shareholder, subject to the
terms of issue of any shares.

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515
(2) The liquidator may, with the approval of a special resolution, distribute the surplus assets of the company among the shareholders in kind.
(3) For the purposes of subclause (2), the liquidator may –
(a) Set such value as he or she considers fair on any property to be
divided; and
(b) Determine how the division will be carried out as between the
shareholders or different classes of shareholders.
PART 7
MISCELLANEOUS

86 Service of documents on shareholders

(1) A notice, statement, report, accounts, or other document to be sent to a
shareholder who is a natural person may be –
(a) Delivered to that person; or
(b) Posted to that person’s postal address; or
(c) Faxed to a fax number used by that person for the transmission of
documents.
(2) A notice, statement, report, accounts, or other document to be sent to a
shareholder that is a company or an overseas company may be sent by any of the
methods of serving documents referred to in section 342 or section 344 of the Act,
as the case may be.

87 Interpretation

(1) In these rules, Act means the Companies Act 2005.
(2) Unless the context otherwise requires, any term or expression that is
defined in the Act or any regulations made under the Act and used, but not defined,
in these rules has the same meaning as in the Act or the regulations.
(3) For the purposes of these rules –
(a) Voting share means a share that confers on its holder the right to
vote on a resolution to amend the rules;
(b) The percentage of voting shares held by any person is treated as
equal to the percentage of votes that that person is entitled to cast
on such a resolution.
(4) For the purposes of these rules, a person is interested in a voting share
if that person –
(a) Is a beneficial owner of the share; or
(b) Has the power to exercise any right to vote attached to the share; or
(c) Has the power to control the exercise of any right to vote attached
to the share; or
(d) Has the power to acquire or dispose of the share; or
(e) Has the power to control the acquisition or disposition of the share
by another person; or
(f) Under, or by virtue of, any trust, agreement, arrangement or
understanding relating to the share (whether or not that person is a
party to it, and whether or not it is legally enforceable) may, at any
time, have the power to –
(i) exercise any right to vote attached to the share; or
(ii) control the exercise of any right to vote attached to the share;
or
(iii) acquire or dispose of, the share; or
(iv) control the acquisition or disposition of the share by another
person.
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(5) A person who has, or may have, a power referred to in subclause (4)(b)
to (f) is interested in a share, regardless of whether the power is –
(a) Express or implied;
(b) Direct or indirect;
(c) Legally enforceable or not;
(d) Related to a particular share or not;
(e) Subject to restraint or restriction or is capable of being made subject
to restraint or restriction;
(f) Exercisable presently or in the future;
(g) Exercisable only on the fulfilment of a condition;
(h) Exercisable alone or jointly with another person or persons.
–––––––––––––––––––––
SCHEDULE 5
MINORITY BUY-OUT PROCEDURE
s 55

1	Shareholder may give notice requiring	4	Objection to share price
	purchase of shares	5	Nominated price payable if no objection
2	Directors’ duties on receipt of notice	6	Expert determination of price
	requiring purchase	7	Purchase of shares by third party
3	Directors to nominate and give notice of	8	Inability of company to pay purchase price
price for shares

1 Shareholder may give notice requiring purchase of shares

A shareholder of a company who is entitled to require the company to
purchase shares by virtue of section 55 may –
(a) Within 10 working days of the passing of the resolution at a meeting
of shareholders; or
(b) If the resolution was passed under section 53, within 10 working
days of the date on which notice of the passing of the resolution is
given to the shareholder –
give a written notice to the company requiring the company to purchase those
shares

2 Directors’ duties on receipt of notice requiring purchase

Within 20 working days of receiving a notice under clause 1, the directors
must –
(a) Agree to the purchase of the shares by the company; or
(b) Arrange for some other person to agree to purchase the shares; or
(c) Arrange, before taking the action concerned, for the resolution to
be rescinded or decide in the appropriate manner not to take the
action concerned, as the case may be; and
(d) Give written notice to the shareholder of the directors’ decision.

3 Directors to nominate and give notice of price for shares

(1) If the directors agree under clause 2(a) to the purchase of the shares by
the company, the directors must, on giving notice under that clause or within 5
working days after giving that notice –

Companies Act 2006

517
(a) Nominate a date on which the shares will be acquired by the company (purchase date), which must not be less than 10 working days or more than 20 working days from the date of giving notice to the shareholder; and
(b) Nominate a fair and reasonable price for the shares to be acquired;
and
(c) Give notice of the price to the holder of those shares.
(2) On the purchase date –
(a) The shares are deemed to be transferred to the company; and
(b) The company is liable to pay for the shares in accordance with this
clause, subject to section 28.
(3) For the purposes of this schedule, a price for a share is a fair and
reasonable price if it is a fair and reasonable price for a share in the company as at
the purchase date, disregarding –
(a) Any premium or discount in respect of the size of parcels of shares
to be acquired;
(b) The fact that the shares are being acquired under section 55;
(c) The effect or likely effect on the value of the company and its shares
of the company approving the resolution, the approval of which
entitled the shareholder to require the company to purchase his or
her shares.

4 Objection to share price

(1) A shareholder who considers that the price nominated by the directors
is not fair or reasonable must, within 10 working days, give notice of objection to
the company.
(2) If, within 10 working days of giving notice to a shareholder under clause
3(1), an objection to the price has been received by the company, the company
must –
(a) Refer the question of what is a fair and reasonable price to determination by an expert in accordance with clause 6; and
(b) On the purchase date, pay a provisional price in respect of each
share equal to the price nominated by the directors.

5 Nominated price payable if no objection

If, within 10 working days of giving notice to a shareholder under clause
3(1), no objection to the price has been received by the company, the price to be
paid for the shares is the nominated price.

6 Expert determination of price

(1) If the company is required to refer the price for shares to expert
determination in accordance with clause 4(2)(a), the company must, within 10
working days, nominate an independent person with appropriate expertise as
the expert to determine the price, and give notice of that appointment to the
shareholder.
(2) The shareholder may, within 10 working days of receiving the notice
referred to in subclause (1), give notice to the company that he or she objects to the
expert nominated by the company, on the grounds that that person –
(a) Is not independent; or
(b) Does not have the appropriate expertise.
(3) If, within 10 working days of receipt of notice by a shareholder under
subclause (1), no objection to the expert has been received by the company, the
518 Niue Laws 2006 Vol 1
expert must expeditiously determine a fair and reasonable price for the shares to be purchased.
(4) If, within 10 working days of receipt of notice by a shareholder under subclause (1), an objection to the expert has been received by the company, the company must immediately apply to the Court for the appointment of an expert. The Court may appoint the person nominated by the company, or any person nominated by the shareholder, or such other independent person with appropriate expertise as the Court may think fit. The expert appointed by the Court must, immediately on being appointed, proceed to expeditiously determine a fair and reasonable price for the shares to be purchased.
(5) If the price determined by the expert –
(a) Exceeds the provisional price, the company must, subject to section
28, immediately pay the balance owing to the shareholder;
(b) Is less than the provisional price paid, the company may recover
the excess paid from the shareholder.
(6) The expert may award interest on any balance payable or excess to be
repaid under subclause (5) at such rate as he or she thinks fit.
(7) The determination by the expert is final and is made by the expert as
an expert, and not as an arbitrator.

7 Purchase of shares by third party

(1) Clauses 3 to 6 apply to the purchase of shares by a person with whom
the company has entered into an arrangement for purchase in accordance with
clause 2(b), subject to such modifications as may be necessary and, in particular,
as if references in that section to the directors and the company were references to
that person.
(2) Every holder of shares that are to be purchased in accordance with the
arrangement is indemnified by the company in respect of loss suffered by reason
of the failure by the person who has agreed to purchase the shares to purchase
them at the price nominated or fixed by arbitration, as the case may be.

8 Inability of company to pay purchase price

Section 33 applies to the purchase of shares under this schedule as if there
were a contract between the shareholder and the company for the purchase of
shares in accordance with this schedule.
––––––––––––––––––––––
SCHEDULE 6
AMALGAMATIONS
s 144

1	Approval of amalgamation proposal	3	Process for approving amalgamation
2	Contents of amalgamation proposal		proposal
		4	Short form amalgamation

1 Approval of amalgamation proposal

(1) Subject to subclause (2), an amalgamation proposal must be approved
in accordance with clause 3 and the rules of each amalgamating company. (2) An amalgamation proposal that relates to the amalgamation –
(a) Of a company with 1 or more other companies that is or that are

Companies Act 2006

519
directly or indirectly wholly owned by it; or
(b) Of 2 or more companies each of which is directly or indirectly wholly
owned by the same person –
may be approved in accordance with clause 4.

2 Contents of amalgamation proposal

(1) An amalgamation proposal must set out the terms of the amalgamation
and, in particular –
(a) The name of the amalgamated company, which may be the name
of 1 of the amalgamating companies, or a new name that complies
with section 10; and
(b) Whether the amalgamated company is a private company or a
public company; and
(c) The full name and residential address and postal address of every
proposed director of the amalgamated company; and
(d) The registered office of the amalgamated company; and
(e) The postal address of the company, which may be either the postal
address of the registered office or any other postal address; and
(f) The manner in which the shares of each amalgamating company
are to be converted into shares of the amalgamated company; and
(g) If shares of an amalgamating company are not to be converted into
shares of the amalgamated company, the consideration that the
holders of those shares are to receive instead of shares of the
amalgamated company; and
(h) Any payment to be made to a shareholder or director of an
amalgamating company, other than a payment of the kind described
in paragraph (g); and
(i) Details of any arrangement necessary to complete the amalgamation
and to provide for the subsequent management and operation of
the amalgamated company.
(2) The amalgamation proposal must –
(a) Specify whether the rules of the amalgamated company will be the
model rules in Schedules 2, 3, or 4; or
(b) Include a copy of the rules of the amalgamated company, if they
differ from the model rules.
(3) An amalgamation proposal may specify the date on which the
amalgamation is intended to become effective.
(4) If shares of 1 of the amalgamating companies are held by or on behalf
of another of the amalgamating companies, the amalgamation proposal –
(a) Must provide for the cancellation of those shares without payment
or the provision of other consideration when the amalgamation
becomes effective; and
(b) Must not provide for the conversion of those shares into shares of
the amalgamated company.

3 Process for approving amalgamation proposal

(1) The directors of each amalgamating company must send to each
shareholder of the company, not less than 20 working days before the
amalgamation is proposed to take effect –
(a) A copy of the amalgamation proposal; and
(b) A statement setting out the rights of shareholders under section
148; and
520

4

Niue Laws 2006 Vol 1

(c) A statement of any material interests of the directors in the proposal, whether in that capacity or otherwise; and
(d) Any further information and explanation that may be necessary to enable a reasonable shareholder to understand the nature and implications for the company and its shareholders of the proposed amalgamation.
(2) The amalgamation proposal must be approved –
(a) By the shareholders of each amalgamating company by special
resolution, as if the proposal were a proposal to alter the rules of
the company; and
(b) If a provision in the amalgamation proposal would, if contained in
an amendment to an amalgamating company’s rules or otherwise
proposed in relation to that company, require the approval of an
interest group, by –
(i) a special resolution of each interest group; or
(ii) all shareholders under section 51.

Short form amalgamation

(1) An amalgamation proposal in relation to a company (parent company)
and 1 or more other companies that is or that are directly or indirectly wholly owned by it may be approved by a resolution of the directors of each amalgamating company, if the amalgamation proposal provides that –
(a) The shares of each amalgamating company, other than the parent company, will be cancelled without payment or other consideration; and
(b) The rules of the amalgamated company will be the same as the rules of the parent company.
(2) An amalgamation proposal in relation to 2 or more companies, each of which is directly or indirectly wholly owned by the same person, may be approved by a resolution of the directors of each amalgamating company, if the amalgamation proposal provides that –
(a) The shares of all but 1 of the amalgamating companies will be
cancelled without payment or other consideration; and
(b) The rules of the amalgamated company will be the same as the
rules of the amalgamating company whose shares are not cancelled.
–––––––––––––––––––
SCHEDULE 7
COMPANY CHARGES
s 141

Registration
6	Registrable documents
7	Who may apply for registration
8	Time for submitting registrable documents
9	What must accompany copy of registrable
Rejection of non-complying document
10	Registrar may reject non-complying
document
11	Consequences of rejecting non-complying
document

Companies Act 2006

521

Registration of document	16	Prescribed time for submitting notices
12	When document is registered	17	Matters on which notices may be deferred
13	Certificate of registration	18	Registrar must enter memorandum of
14	No presumption of validity		satisfaction in register
		19	Court may order entry of memorandum in

Satisfaction of company charge, etc register

15 Entries of satisfaction and release of

property from registered charge

PRELIMINARY PROVISIONS

1 Meaning of registrable charge

In this Act, registrable charge means –
(a) A charge for the purpose of securing an issue of debentures;
(b) In the case of an existing company, a charge on uncalled share capital
of the company;
(c) A charge created or evidenced by a document that, if executed by
an individual, would require registration under the Chattels
Transfer Act 1975;
(d) A charge on any motor vehicle of the company;
(e) A floating charge on any property of the company;
(f) A charge on book debts of the company;
(g) A charge on amounts payable on issued shares of the company, but
not paid;
(h) A charge on a ship or any share in a ship;
(i) A charge on any aircraft;
(j) A charge on goodwill, on a patent or a licence under a patent, on a
trade mark or a licence under a trade mark, or on a copyright or a
licence under a copyright.

2 Charges that are not registrable charges

(1) Despite clause 1, the following are not registrable charges for the
purposes of this schedule –
(a) A charge under a charging order issued by a Court in favour of a
judgment creditor;
(b) If a negotiable instrument has been given to secure the payment of
any book debts of a company, the deposit of the negotiable
instrument for the purposes of securing an advance to the company;
(c) A charge in so far as it relates to land or other real property.
(2) Where a charge relates to land or other real property and to other
property, it may be registered despite subclause (1)(c). Such a charge is treated for
the purposes of this schedule as if it related solely to that other property.

3 Constructive notice of registered documents

Registration of a document under this Act –
(a) Constitutes notice to all persons of the details of the document
entered in the register; but
(b) Does not in itself constitute notice to any person of the contents of
the document.
522 Niue Laws 2006 Vol 1

Rectification of register and extension of time

4 Court orders

(1) The Court may, on the application of the company or any interested
person, order that the omission or misstatement of any information registered
under this schedule be rectified.
(2) An order may be made on any conditions that the Court thinks fit.

5 Grounds for Court orders

The Court may make an order under clause 4 only if the Court is satisfied
that –
(a) The omission or misstatement of anything registered under this schedule was accidental, due to misadventure or some other sufficient cause, or was not of a nature to prejudice the position of creditors or shareholders of the company; or
(b) On other grounds, it is just and equitable to grant relief.

6 Registrable documents

Registration

The following documents may be registered under this Act –
(a) A copy of a charge document executed by the company;
(b) In the case of a series of debentures for which there is no charge
document, a copy of 1 of the debentures of the series;
(c) A copy of a charge document over property acquired by the
company that would, if the charge had been created by the company,
have been capable of being registered under this Act;
(d) A copy of an alteration document executed by the company;
(e) A copy of a document assigning the benefit of a company charge;
(f) A copy of a priority document.

7 Who may apply for registration

(1) The following persons may submit a registrable document for
registration –
(a) In the case of an assignment document, the assignee;
(b) In the case of a priority document, a party to that document;
(c) In all cases, the company or any other interested person.
(2) An interested person is entitled to recover from the following persons
the amount of any fees paid by that person to the Registrar for the registration of
the registrable document –
(a) In the case of an assignment of charge, the assignee;
(b) In all cases, the company.

8 Time for submitting registrable documents

A copy of a registrable document may be submitted to the Registrar at any
time.

9 What must accompany copy of registrable document

Every copy of a registrable document must be accompanied by –
(a) The applicable certificate of execution in the prescribed form (if
any); and
(b) The prescribed fee (if any).

Companies Act 2006

523

Rejection of non-complying document

10 Registrar may reject non-complying document

The Registrar may reject a document that is submitted for registration if
it –
(a) Does not comply with this Act;
(b) Is not in a form that may be entered in the register.

11 Consequences of rejecting non-complying document

(1) If the Registrar rejects a document, the Registrar must inform the person
who submitted the document of the Registrar ’s reasons for rejecting the document,
and request the person to –
(a) Amend the rejected document so that it complies with this Act and
submit the amended document to the Registrar within the time
allowed by the Registrar; or
(b) Submit to the Registrar a new document in its place that complies
with this Act within the time allowed by the Registrar.
(2) If the person submits to the Registrar an amended or new document,
this schedule, with the necessary modifications, applies to the document.
(3) If the person does nothing, the rejected document must be treated as if
it had never been submitted to the Registrar for registration.

Registration of document

12 When document is registered

(1) A document or information is registered when the document or
information is entered in the register.
(2) The Registrar may –
(a) Accept as correct the information in any certificate submitted to
the Registrar for the purposes of this Schedule; and
(b) Enter the certified information in the register.

13 Certificate of registration

(1) The Registrar must give a certificate of the registration (certificate of
registration) of any document that is registered under this Act.
(2) A certificate of registration is conclusive evidence that the registration
requirements in this Act have been met.

14 No presumption of validity

Neither registration, nor the rejection, of a document by the Registrar under
this schedule affects, or creates a presumption about, the validity of the document
or the correctness of the information contained in it.

15

and –

Satisfaction of company charge, etc

Entries of satisfaction and release of property from registered charge

(1) A company must submit to the Registrar the prescribed fee (if any)
(a) A notice in the prescribed form (if any) signed by the secured party of any of the applicable matters specified in subclause (2); or
(b) A notice in any other form approved by the Registrar of any of those applicable matters; or
(c) Provide any other evidence to the satisfaction of the Registrar of any of those applicable matters.
524 Niue Laws 2006 Vol 1
(2) The matters referred to in subclause (1) are that –
(a) The registered charge has been satisfied in whole or part; or
(b) The secured property has been released; or
(c) The secured property has been disposed of subject to the registered
charge.

16 Prescribed time for submitting notices

A notice or evidence to which clause 15 applies must be submitted to the
Registrar within 20 working days after –
(a) The debt for which the registered charge was given has been paid
or satisfied in whole or in part; or
(b) All or any part of the secured property has been released from the
registered charge; or
(c) All or any part of the secured property has been disposed of subject
to the registered charge.

17 Matters on which notice may be deferred

Until a final discharge is signed by the secured party, the company need
not submit to the Registrar a notice or evidence to which clause 15 applies on the
occurrence of –
(a) Any sum being paid to the secured party; or
(b) Any account between the company and the secured party being in
credit.

18 Registrar must enter memorandum of satisfaction in register

On receipt of a notice or other evidence to which clause 19 applies and on
payment of the prescribed fee (if any), the Registrar must enter in the register –
(a) A memorandum of the full or partial satisfaction of the registered
charge;
(b) A memorandum of the fact that all or any part of the secured
property has been released from the registered charge; or
(c) A memorandum of the fact that all or any part of the secured
property has ceased to belong to the company.

19 Court may order entry of memorandum in register

(1) The Court may order that a memorandum under clause 18 be entered
in the register.
(2) If the Court makes an order under subclause (1), the Registrar must
enter the memorandum in the register.
–––––––––––––––––––––

Companies Act 2006

SCHEDULE 8
POWERS, FUNCTIONS, AND LIABILITIES OF ADMINISTRATORS

PART 1

PRELIMINARY PROVISIONS

1 Administrator is company’s agent

2 Administrator has qualified privilege

3 Administrator may seek directions

4 Exercise of powers, etc, by 2 or more

administrators

5 Exercise of powers, etc, by 2 or more

administrators under compromise

PART 2

POWERS AND FUNCTIONS OF ADMINISTRATORS

6 General powers of administrator

7 Limitations on administrator ’s powers

8 Dealing with property subject to floating

charge that has become fixed charge

9 When administrator may dispose of

encumbered property

PART 3

GENERAL LIABILITY

10 Administrator not liable in damages for

refusing consent

525
s 156
PART 1
PRELIMINARY PROVISIONS

1 Administrator is company’s agent

When exercising a power, or performing a function, as administrator of a
company, the administrator is taken to be acting as the company’s agent.

2 Administrator has qualified privilege

A person who is, or has been, the administrator of a company has qualified
privilege in respect of a statement that he or she has made, whether orally or in
writing, in the course of exercising his or her powers, or performing his or her
functions, as administrator of the company.

3 Administrator may seek directions

(1) The administrator of a company, or any person who chairs a meeting
of creditors held under subpart 1 of Part 9, may apply to the Court for directions
about a matter arising in connection with the exercise of his or her powers or the
performance of his or her functions.
(2) The administrator under a compromise approved under subpart 1 of
Part 9 may apply to the Court for directions about a matter arising in connection
with the operation of, or giving effect to, the compromise.

4 Exercise of powers, etc, by 2 or more administrators

(1) If subpart 1 of Part 9 provides for an administrator of a company to be
appointed, 2 or more persons may be appointed as administrators of the company.
526 Niue Laws 2006 Vol 1
(2) If there are 2 or more administrators of a company –
(a) A function or power of an administrator of the company may be
performed or exercised by any 1 of them, or by any 2 or more of
them together, except so far as the document or resolution
appointing them otherwise provides; and
(b) A reference in this Act to an administrator, or to the administrator,
of a company is a reference to whichever 1 or more of those
administrators the case requires.

5 Exercise of powers, etc, by 2 or more administrators under compromise

If there are 2 or more administrators of a compromise approved under
subpart 1 of Part 9 –
(a) A function or power of an administrator under the compromise
may be performed or exercised by any 1 of them, or by any 2 or
more of them together, except so far as the document or resolution
appointing them otherwise provides; and
(b) A reference in this Act to an administrator under a compromise is a
reference to whichever 1 or more of those administrators the case
requires.
PART 2
POWERS AND FUNCTIONS OF ADMINISTRATORS

6 General powers of administrator

While a company is under administration, the administrator has control of
the company’s business, property, and affairs and may –
(a) Carry on the company’s business;
(b) Manage the company’s property and affairs;
(c) Terminate or dispose of all or any part of the company’s business;
(d) Dispose of all or any part of the company’s property;
(e) Exercise any power, and perform any function, that the company
or any of its officers could perform or exercise if the company were
not under administration;
(f) With leave of the Court, remove from office a director of the
company;
(g) With leave of the Court, appoint a person as a director of the
company, whether to fill a vacancy or not;
(h) Execute a document, bring or defend proceedings, or do anything
else, in the company’s name and on its behalf;
(i) Do whatever else is necessary for the purposes of subpart 1 of Part
9.

7 Limitations on administrator’s powers

(1) If clause 23 of Schedule 10 applies, the administrator ’s powers and
functions are subject to the powers and functions of –
(a) The secured creditor; or
(b) A receiver or person of a kind referred to in clause 23 of Schedule
10 (even if appointed after the decision period).
(2) If clause 19 of Schedule 10 applies, then, so far as concerns perishable
property of the company, the administrator ’s powers and functions are subject to
the powers and functions of –
(a) The secured creditor; or
(b) A receiver or person appointed (at any time) as mentioned in
paragraphs (a), (b), or (d) of the definition of

Companies Act 2006

527
enforce in clause 1 of Schedule 1.
(3) If clauses 14, 15, or 20 of Schedule 10 apply, then, so far as concerns the
property referred to in those clauses, the administrator ’s powers and functions
are subject to the powers and functions of the secured creditor, receiver, or other
person.

8 Dealing with property subject to floating charge that has become fixed charge

If a floating charge over property of a company has become a fixed charge, then, subject to this schedule, the administrator may deal with any of that property as if the charge were still a floating charge.

9 When administrator may dispose of encumbered property

(1) The administrator of a company must not dispose of –
(a) Property of the company that is subject to a charge; or
(b) Property that is used or occupied by, or is in the possession of, the
company but of which someone else is the owner or lessor.
(2) Subclause (1) does not prevent a disposal –
(a) In the ordinary course of the company’s business if it is authorised
by the terms of the relevant charge, agreement authorising use or
possession, lease or without agreement of the secured creditor,
owner, or lessor; or
(b) With the written consent of the secured creditor, owner, or lessor,
as the case may be; or
(c) With the leave of the Court.
(3) The Court may give leave under subclause (2)(c) only if it is satisfied
that arrangements have been made to protect adequately the interests of the secured
creditor, owner, or lessor, as the case may be.
PART 3
LIABILITY OF ADMINISTRATORS

General liability

10 Administrator not liable in damages for refusing consent

A company’s administrator is not liable to an action or other proceeding
for damages for refusing to give an approval or consent under subpart 1 of Part 9.

11 Liability of administrator for company’s debts

Except as expressly provided in subpart 1 of Part 9 or in this schedule, the
administrator of a company is not liable for the company’s debts.

12 Liability of administrator for debts incurred by administrator

(1) The administrator of a company is liable for the debts that the
administrator incurs in the exercise of his or her powers, or performance of his or
her functions, as administrator for –
(a) Services rendered;
(b) Goods bought;
(c) Property hired, leased, used, or occupied.
(2) Subclause (1) has effect despite any agreement to the contrary, but
without prejudice to the administrator ’s rights against the company or anyone
else.
528 Niue Laws 2006 Vol 1

Liability for rent, etc

13 Application of clauses 14 to 17

Clauses 14 to 17 apply if, under an agreement made before the
administration of a company began, the company continues to use or occupy, or
to be in possession of, property of which someone else is the owner or lessor.

14 Liability of administrator for rent

(1) Subject to this clause, the administrator is liable for that part of the rent
or other amounts payable by the company under the agreement referred to in
clause 13 for any period –
(a) That begins more than 10 working days after the administration
began; and
(b) Throughout which –
(i) the company continues to use or occupy, or to be in possession
of, the property; and
(ii) the administration continues.
(2) Subclause (1) does not apply to so much of a period that elapses after –
(a) A receiver of the property is appointed; or
(b) A secured creditor appoints an agent, under the provisions of a
charge on the property, to enter into possession, or to assume control,
of the property; or
(c) a secured creditor takes possession, or assumes control, of the
property under the provisions of a charge on the property.
(3) Subclause (1) does not apply in so far as a Court, by order, excuses the
administrator from liability.
(4) Subclauses (2) and (3) do not affect the liability of the company.
(5) The administrator is not taken, because of subclause (1) –
(a) To have adopted the agreement; or
(b) To be liable under the agreement otherwise than as mentioned in
subclause (1).

15 Notice stating company does not propose to exercise rights over property

Within 10 working days after the beginning of the administration, the
administrator may give to the owner or lessor a notice that –
(a) specifies the property; and
(b) States that the company does not propose to exercise rights in
relation to the property.

16 Effect of notice

Despite clause 14, the administrator is not liable for so much of the rent or
other amounts payable by the company under the agreement that is attributable
to a period during which a notice under clause 15 is in force, but such a notice
does not affect a liability of the company.

17 When notice ceases to have effect

(1) A notice under clause 15 ceases to have effect if –
(a) The administrator revokes it in writing given to the owner or lessor;
or
(b) The company exercises, or appears to exercise, a right in relation to
the property.

Companies Act 2006

529
(2) For the purposes of subclause (1), the company does not exercise, or appear to exercise, a right in relation to the property merely because the company continues to occupy, or to be in possession of, the property, unless the company –
(a) Also uses the property; or
(b) Asserts a right, as against the owner or lessor, so to continue.

Indemnity

18 Administrator is entitled to indemnity

(1) The administrator of a company is entitled to be indemnified out of the
company’s property for –
(a) The debts for which the administrator is liable under this Act; and
(b) The costs incurred in relation to holding a meeting of creditors under
subpart 1 of Part 9; and
(c) His or her remuneration.
(2) To secure the administrator ’s indemnity, the administrator has a lien
on the company’s property.
(3) An administrator ’s lien has priority over a charge to the extent that the
indemnity has priority over debts secured by the charge.

19 Administrator’s indemnity has priority over unsecured debts, etc

Subject to claims having preference under Part 3 of Schedule 18, an
administrator ’s indemnity has priority over –
(a) All the company’s unsecured debts; and
(b) Subject to clauses 20 and 21, debts of the company secured by a
floating charge on property of the company.

20 Exception for debts secured by floating charge

An administrator ’s indemnity does not have priority over debts secured
by a floating charge if –
(a) Before the beginning of the administration, the secured party –
(i) appointed a receiver of property of the company under a power
contained in the floating charge document concerned; or
(ii) obtained an order for the appointment of a receiver of property
of the company for the purpose of enforcing the charge; or
(iii) Entered into possession, or assumed control, of property of the
company for the purpose of enforcing the charge; or
(iv) appointed a person so to enter into possession or assume control
(whether as agent for the secured creditor or for the company);
and
(b) The receiver or person is still in office, or the secured party is still in
possession or control of the property.

21 Extent of administrator’s indemnity when floating charge has priority

The extent to which a floating charge has priority over an administrator ’s
indemnity is limited to debts incurred, or remuneration accruing, after the secured
party gave written notice to the administrator of the matter specified in clause
20(a) that gave the secured party priority over the indemnity.
530 Niue Laws 2006 Vol 1
SCHEDULE 9
OFFICE OF ADMINISTRATOR
s 158(1)(a)

	Restrictions on appointment of administrators	6	Replacement administrator to hold
1	Who may not be appointed or act as		creditors’ meeting
	administrator	7	Court order if vacancy in office
2	Validity of acts of administrators		ofadministrator
3	Person must consent to being appointed	8	Vacancy in office of administrator under
	administrator		compromise
4	Court may declare whether administrator

validly appointed Administrators’ remuneration

9 Remuneration of administrator

Vacancy in office of administrator

5 Vacancy in office of administrator

Restrictions on appointment of administrators

1 Who may not be appointed or act as administrator

None of the following may be appointed or act as an administrator of a
company or under a compromise –
(a) A corporation;
(b) A person who is under 21 years of age;
(c) A creditor of the company under administration;
(d) A person who has, within the 2 years immediately before the
commencement of the administration, been a shareholder, director,
auditor, or receiver of the company or of a related company;
(e) An undischarged bankrupt;
(f) A person in respect of whom a trustee order is in force under section
501 of the Niue Act 1966, or in respect of whom an order of medical
custody is in force under section 602 of that Act;
(g) A person who is prohibited from being a director or promoter of,
or being concerned or taking part in the management of, a company
under this Act;
(h) A person who is prohibited from acting as a liquidator under this
Act.

2 Validity of acts of administrators

The acts of a person as an administrator are valid even though that person
may not be qualified to act as an administrator.

3 Person must consent to being appointed administrator

(1) A person must not be appointed as administrator of a company or under
a compromise unless the person has consented in writing to the appointment.
(2) The administrator must deliver a copy of his or her consent to
appointment to the Registrar with the notice of his or her appointment.

4 Court may declare whether administrator validly appointed

(1) If there is doubt on a specific ground about whether the appointment
of a person as administrator of a company is valid, the person, the company, or
any of the company’s creditors may apply to the Court for an order under subclause
(2).

Companies Act 2006

531
(2) The Court may, on application, make an order declaring whether or not the appointment was valid on the ground specified in the application or on some other ground.

Vacancy in office of administrator

5 Vacancy in office of administrator

(1) The person who appointed an administrator of a company may appoint
someone else as administrator of the company if the administrator –
(a) Dies; or
(b) Becomes prohibited from acting as administrator of the company;
or
(c) Resigns by notice in writing given to his or her appointer and to
the company.
(2) Where the board of directors of a company appointed the administrator
of the company, an appointment under subclause (1) may be made by the board
despite clause 2 of Schedule 10.
(3) If a company is under administration, but for some reason no
administrator is acting, the Court may appoint a person as administrator on the
application of the Registrar or a creditor or shareholder of the company or, despite
clause 2 of Schedule 10, of an officer of the company.

6 Replacement administrator to hold creditors’ meeting

(1) Within 10 working days after being appointed as administrator of a
company under clause 5 otherwise than by the Court, the administrator must
hold a meeting of the company’s creditors in accordance with Schedule 12 so that
they may determine whether to appoint someone else as administrator of the
company.
(2) At least 5 working days before a creditors’ meeting is held under this
clause, the administrator must give –
(a) Written notice of the meeting to every secured party who holds a
registered charge over the property of the company; and
(b) Written notice of the meeting to as many of the company’s other
creditors as is reasonably practicable; and
(c) Public notice of the meeting.

7 Court order if vacancy in office of administrator

(1) The Court may make such order as it thinks just if the Court is satisfied
that –
(a) A company is under administration but –
(i) there is a vacancy in the office of administrator of the company;
or
(ii) no administrator of the company is acting; or
(b) A compromise approved under subpart 2 of Part 9 has not yet
terminated; but –
(i) there is a vacancy in the office of administrator under the
compromise; or
(ii) no administrator under the compromise is acting.
(2) The Registrar, or a creditor or shareholder of the company, are the only
persons who may apply for an order under subclause (1).
532 Niue Laws 2006 Vol 1

8 Vacancy in office of administrator under compromise

(1) The Court may appoint someone else as administrator under a
compromise if the administrator –
(a) Dies; or
(b) Becomes prohibited from acting as administrator under the
compromise; or
(c) Resigns by notice in writing given to the company.
(2) If a compromise has not yet terminated, but for some reason no
administrator under the compromise is acting, the Court may appoint a person as
administrator under the compromise.
(3) An appointment may be made on the application of the Registrar or of
an officer, shareholder, or creditor of the company.

Administrators’ remuneration

9 Remuneration of administrator

(1) The administrator of a company under administration, or acting under
a compromise approved by creditors in accordance with section 188(1)(a), is entitled
to –
(a) Any remuneration that is –
(i) fixed by a resolution of the company’s creditors passed at a
meeting convened under section 184; or
(ii) specified by the document setting out the terms of the
compromise; or
(b) If no remuneration is fixed, any remuneration that the Court fixes
on the application of the administrator.
(2) Despite clause 2 of Schedule 10, if remuneration is fixed under subclause
(1)(a), the Court may review the remuneration and confirm, increase, or reduce it
on the application of –
(a) The administrator of the company; or
(b) A director of the company; or
(c) A shareholder of the company; or
(d) A creditor of the company.
––––––––––––––––––––
SCHEDULE 10
EFFECT OF ADMINISTRATION

PART 1 PART 3

s 156(2)(c)

PRELIMINARY PROVISION EFFECT ON PROCEEDINGS, ETC

1 Time for doing act does not run while act 5 Stay of civil proceedings

prevented by administration 6 Suspension of enforcement process

7 Duties of court officer in relation to

PART 2 property of company

EFFECT ON COMPANY’S OFFICERS AND 8 Court officer must deliver company

SHAREHOLDERS, ETC property, etc, to administrator

2 Functions and powers of company officers 9 Good faith buyer under execution process

suspended gets good title

3 Effect on company’s shareholders

4 Restrictions on putting company into

liquidation

Companies Act 2006

533

PART 4
RESTRICTIONS ON DEALING WITH
COMPANY’S PROPERTY
General provisions
10	Only administrator may deal with
company’s property
11	Offence for company officer to enter into
	12	Order for compensation
13	Owner or lessor not to recover property
used by company
14	Exception: perishable property
15	Exception: recovery of property before
administration
16	Court may limit powers of receiver, etc, in
relation to property used by company
17	Giving notice relating to property used by
company
Secured creditors
18	Charge unenforceable

PART 1
PRELIMINARY PROVISIONS

1 Time for doing act does not run while act prevented by administration

If, for any purpose, an act must or may be done within a particular period
or before a particular time, and this Act prevents the act from being done within
that period or before that time, the period is extended, or the time is deferred,
according to how long this Act prevented the act from being done.
PART 2
EFFECT ON COMPANY’S OFFICERS AND SHAREHOLDERS, ETC

2 Functions and powers of company officers suspended

(1) Subject to clauses 19, 20(2), 22, and 23(3), while a company is under
administration, no person (other than the administrator) may, without the
administrator ’s written approval, perform a function, or exercise a power, as an
officer of the company.
(2) Subsection (1) does not have the effect of removing an officer of a
company from his or her office.

3 Effect of administration on company’s shareholders

A transfer of shares in a company, or an alteration in the status of
shareholders of a company, that is made during the administration of the company
is void except –
(a) With the consent of the administrator; or
(b) So far as the Court otherwise orders.

4 Restrictions on putting company into liquidation

If a company is under administration –
(a) The shareholders and the directors of the company must not appoint
a liquidator;
534 Niue Laws 2006 Vol 1
(b) If the Court is satisfied that it is in the interests of the company’s creditors for the company to continue under administration, rather than for a liquidator or an interim liquidator to be appointed, as the case may be –
(i) the Court must adjourn the hearing of an application for an order to appoint a liquidator; and
(ii) the Court must not appoint an interim liquidator.
PART 3
EFFECT ON PROCEEDINGS, ETC

5 Stay of civil proceedings

During the administration of a company, a civil proceeding in a Court
against the company or in relation to any of its property must not be started or
proceeded with, except with –
(a) The administrator ’s written consent; or
(b) The leave of the Court and in accordance with any conditions that
the Court imposes.

6 Suspension of enforcement process

During the administration of a company, any enforcement process in relation
to property of the company must not be started or proceeded with, except –
(a) With the leave of the Court; and
(b) In accordance with any conditions that the Court imposes.

7 Duties of court officer in relation to property of company

A court officer who receives written notice of the fact that a company is
under administration must not –
(a) Take action to sell property of the company under a process of
execution; or
(b) Pay to a person who is not the administrator –
(i) proceeds of selling property of the company (at any time) under
a process of execution; or
(ii) money of the company seized (at any time) under a process of
execution; or
(iii) money paid (at any time) to avoid seizure or sale of property
of the company under a process of execution; or
(c) Take action in relation to the attachment of a debt due to the
company; or
(d) Pay to a person (other than the administrator) money received
because of the attachment of such a debt.

8 Court officer must deliver company property, etc, to administrator

(1) The court officer must –
(a) Deliver to the administrator any property of the company that is
ever in the court officer ’s possession under a process of execution;
and
(b) Pay to the administrator all proceeds or money of a kind referred
to in clause 7(b) or (d) that –
(i) are in the court officer ’s possession; or
(ii) have been paid into the Court and have not since been paid
out.

Companies Act 2006

535
(2) The costs of the execution or attachment are a first charge on property delivered, or proceeds or money paid, to the administrator.
(3) In order to give effect to a charge on proceeds or money, the
court officer may retain, on behalf of the person entitled to the charge, so much of
the proceeds or money as the court officer thinks necessary.
(4) The Court may, if it is satisfied that it is appropriate to do so, permit the
court officer to take action, or to make a payment, that would otherwise be
prevented.

9 Good faith buyer under execution process gets good title

Despite anything in clauses 7 and 8, a person who buys property in good
faith under a sale under a process of execution gets a good title to the property as
against the company and the administrator.
PART 4
RESTRICTIONS ON DEALING WITH COMPANY’S PROPERTY

General provisions

10 Only administrator may deal with company’s property

(1) A transaction or dealing that affects property of a company under
administration is void unless –
(a) The administrator entered into it on the company’s behalf; or
(b) The administrator consented to it in writing before it was entered
into; or
(c) It was entered into under an order of the Court.
(2) Subclause (1) has effect subject to any order that the Court makes after
the transaction or dealing.

11 Offence for company officer to enter into void transaction or dealing

(1) Every officer of a company that is under administration commits an
offence if the officer of the company –
(a) Purported to enter into a void transaction or dealing on the
company’s behalf; or
(b) Was in any other way, by act or omission, directly or indirectly,
knowingly concerned in, or party to, the void transaction or dealing.
(2) Every officer of a company who commits an offence against subclause
(1) is liable on conviction to a fine not exceeding 50 penalty units.

12 Order for compensation

(1) The Court may order a person who has been convicted of an offence
against clause 11(1) to pay compensation of a specified amount to the company or
other person who has suffered loss or damage as a result of the offence.
(2) An order under subclause (1) may be enforced as if it were a judgment
of the Court.
(3) The defences available under section 76 to relieve a person from liability
for an offence referred to in that section extend to relieving a person from liability
to be ordered under this clause to pay compensation.

13 Owner or lessor not to recover property used by company

During the administration of a company, the owner or lessor of property
that is used or occupied by, or is in the possession of, the company must not take
possession of the property or otherwise recover it, except –
536 Niue Laws 2006 Vol 1
(a) Eith the administrator ’s written consent; or
(b) With the leave of the Court.

14 Exception: perishable property

(1) Nothing in clauses 2 or 13 prevents a person from taking possession of,
or otherwise recovering, perishable property.
(2) Clause 10 does not apply in relation to a transaction or dealing that –
(a) Affects perishable property; and
(b) Is entered into for the purpose of enforcing a right of the owner or
lessor of the property to take possession of the property or otherwise
recover it.

15 Exception: recovery of property before administration

If, before the beginning of the administration of a company, a receiver or
other person, for the purpose of enforcing a right of the owner or lessor of property
that is used or occupied by, or in possession of, the company, enters into possession
or assumes control of, or exercises any other power in relation to, the property –
(a) Nothing in clauses 2 or 13 prevents the receiver or other person
from performing a function, or exercising a power, in relation to
the property; and
(b) Clause 10 does not apply in relation to a transaction or dealing that
affects the property and is entered into in the performance of a
function, or exercise of a power, of the receiver or other person.

16 Court may limit powers of receiver, etc, in relation to property used by company

(1) Despite clauses 14 and 15, the Court may, on application by the administrator of a company, order a person not to perform specified functions, or exercise specified powers, in relation to property –
(a) That is used or occupied by, or in the possession of, the company;
and
(b) In respect of which the person, for the purpose of enforcing a right
as owner or lessor of the property, has entered into possession,
assumed control, or exercised any other power.
(2) The Court may make an order only if it is satisfied that what the
administrator proposes to do during the administration will adequately protect
the interests of the owner or lessor.
(3) An order may be made under this clause, and has effect, only during
the administration of the company.

17 Giving notice relating to property used by company

Nothing in clauses 2 or 13 prevents a person from giving a notice to a
company under an agreement relating to property that is used or occupied by, or
is in the possession of, the company.

18 Charge unenforceable

Secured creditors

Subject to clauses 20, 22, and 23, during the administration of a company, a person must not enforce a charge on property of the company, except –
(a) With the administrator ’s written consent; or
(b) With the leave of the Court.

Companies Act 2006

537

19 Exception: charge on perishable property

Despite anything in this schedule, a secured creditor who has a charge over
perishable property of a company under administration, or a receiver or other
appointed person who is entitled to enforce the charge, may –
(a) Enforce the charge on the perishable property;
(b) Enter into a transaction or dealing that affects the perishable
property.

20 Exception: enforcement of charge before administration

(1) If, before the beginning of the administration of a company, a secured
creditor, receiver, or other person, has, for the purpose of enforcing a charge on
property of the company, done any of the things specified in subclause (2) –
(a) Nothing in clauses 2 or 18 prevents the secured creditor, receiver,
or other person from enforcing the charge in relation to the property;
and
(b) Clause 10 does not apply in relation to a transaction or dealing that
affects the property and is entered into –
(i) in the exercise of a power of the secured creditor as secured
creditor; or
(ii) in the performance of a function, or exercise of a power, of the
receiver or other person.
(2) The things referred to in subclause (1) are the secured creditor as secured
creditor or the receiver or other person has –
(a) Entered into possession, or assumed control, of property of the
company; or
(b) Entered into an agreement to sell the property; or
(c) Made arrangements for the property to be offered for sale by public
auction; or
(d) Publicly invited tenders for the purchase of the property; or
(e) Exercised any other power in relation to the property.

21 Court may limit powers of secured creditor, etc, in relation to charged property

(1) Despite clauses 19 and 20, the Court may, on application by the administrator of a company, order a secured creditor, receiver, or other person not to perform specified functions or exercise specified powers if, for the purpose of enforcing a charge on property of a company, the secured creditor, receiver, or other person, does an act of a kind referred to in clause 19.
(2) Subclause (1) does not apply in a case to which clause 23 applies.
(3) The Court may make an order only if it is satisfied that what the
administrator proposes to do during the administration will adequately protect
the secured creditor ’s interests.
(4) An order may be made under this clause, and has effect, only during
the administration of the company.

22 Giving notice under charge

Nothing in clauses 2 or 18 prevents a person from giving a notice under the
charge.
538 Niue Laws 2006 Vol 1

23 When secured creditor acts before or during decision period

(1) This clause applies if –
(a) All of the property of a company under administration is subject to
a charge; and
(b) Before or during the decision period, the secured creditor enforced
the charge in relation to all property of the company subject to the
charge, whether or not the charge was enforced in the same way in
relation to all that property.
(2) This clause also applies if –
(a) A company is under administration; and
(b) The same person is the secured creditor in relation to each of 2 or
more charges on property of the company; and
(c) The property of the company subject to the respective charges
together constitutes all, or almost all, of the company’s property;
and
(d) Before or during the decision period, the secured creditor enforced
the charges in relation to all the charged property –
(i) whether or not the charges were enforced in the same way in
relation to all the charged property; and
(ii) whether or not any of the charges were enforced in the same
way in relation to all the property of the company subject to
that charge; and
(iii) in so far as the charges were enforced in relation to property of
the company in a way referred to in paragraphs (a), (b), or (d)
of the definition of enforce in clause 1 of Schedule 1, whether
or not the same person was appointed in respect of all of that
property.
(3) Nothing in clauses 2 or 18 prevents any of the following from enforcing
the charge, or any of the charges –
(a) The secured creditor entitled to the charge or charges;
(b) A receiver or person referred to in paragraphs (a), (b), or (d) of the
definition of enforce in clause 1 of Schedule 1, as that definition
applies in relation to the charge or any of the charges (even if
appointed after the decision period).
(4) Clause 10 does not apply in relation to a transaction or dealing that
affects property of the company and is entered into by the secured creditor, a
receiver, or person of a kind referred to in subclause (3)(b), in the performance of
a function, or exercise of a power, as secured creditor, or as a receiver, or person,
as the case may be.
PART 5
EFFECT ON GUARANTEES

24 Administration not to trigger liability under guarantee

Except with the leave of the Court and in accordance with any conditions
that the Court imposes, during the administration of a company –
(a) A guarantee of a liability of the company must not be enforced as
against –
(i) a director or shareholder of the company who is a natural
person; or
(ii) a spouse or relative of the director or shareholder; and
(b) Without limiting paragraph (a), a proceeding, in relation to a
guarantee, must not be started against a director, shareholder,
spouse, or relative.

Companies Act 2006

539

25 Court orders

(1) Despite clause 24, the Court may, on application by the creditor, make
1 or more of the following orders –
(a) An order prohibiting a person who is indebted to the guarantor or
to an associate of the guarantor 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;
(b) An order prohibiting a person holding money, securities, futures
contracts or other property, on behalf of the guarantor, or on behalf
of an associate of the guarantor, from paying all or any of the money,
or transferring, or otherwise parting with possession of, the
securities, futures contracts or other property, to, or to another
person at the direction or request of, the person on whose behalf
the money, securities, futures contracts or other property, is or are
held;
(c) An order prohibiting the taking or sending out of the jurisdiction
of Niue by a person, money of the guarantor or of an associate of
the guarantor;
(d) An order prohibiting the taking, sending or transfer by a person of
securities, futures contracts or other property of the guarantor, or
of an associate of the guarantor –
(i) from a place under the jurisdiction of Niue to a place outside
the jurisdiction (including the transfer of securities from a
register in the jurisdiction of Niue to a register outside that
jurisdiction); or
(ii) from a place in Niue to a place outside Niue (including the
transfer of securities from a register in Niue to a register outside
Niue);
(e) An order appointing, a receiver or trustee, having such powers as
the Court orders, of the property or of part of the property of a
person who is an individual;
(f) An order appointing a receiver, having such powers as the Court
orders, of all or any part of the property of a guarantor who is a
body corporate;
(g) An order prohibiting a guarantor who is an individual from leaving
Niue without the consent of the Court.
(2) A reference in subclause (1)(d), (e), or (f) to property of a person includes
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 under subclause (1) prohibiting conduct may prohibit the
conduct either absolutely or subject to conditions.

26 Grounds for making order under clause 25

The Court may make an order under clause 25 if the Court considers it
necessary or desirable to do so for the purpose of protecting the interests of the creditor to whom a guarantor is liable, or may become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for securities, futures contracts, or other property.
540 Niue Laws 2006 Vol 1

27 Interim order

If an application is made to the Court for an order under clause 25, 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.

28 No undertaking as to damages

On an application under clause 25, the Court must not require the applicant
or any other person, as a condition of granting an interim order, to give an
undertaking as to damages.

29 Variation or discharge of order

If the Court has made an order on a person’s application under clause 25,
the Court may, on application by that person or by any person affected by the
order, make a further order discharging or varying the first order.

30 Operation of orders

An order made under clauses 25 or 27 may be expressed to operate for a
specified period or until the order is discharged by a further order.

SCHEDULE 11
CREDITORS’ COMMITTEES

1 Functions of committees of creditors

s 156
(1) The functions of a committee of creditors of a company under administration are –
(a) To consult with the administrator about matters relating to the
administration; and
(b) To receive and consider reports by the administrator.
(2) A committee must not give directions to the administrator, except as
provided in subclause (3).
(3) As and when a committee reasonably requires, the administrator must
report to the committee about matters relating to the administration.
(4) Schedule 12, with the necessary modifications, applies to meetings of
committees of creditors.

2 Membership of committee

A person may be a member of a committee of creditors of a company under
administration if, and only if, he or she is –
(a) A creditor of the company; or
(b) The attorney of such a creditor because of a general power of
attorney; or
(c) Authorised in writing by such a creditor to be such a member.
––––––––––––––––––––

Companies Act 2006

SCHEDULE 12
MEETINGS OF CREDITORS
541
ss 156, 205, 206, 211

Proxies
13	Administrator or liquidator may act as
proxy
14	Irregularity in notice of proxy
15	Limits on holder of proxy
Voting
16	Entitlement to vote, etc, determined by
chairperson
17	Voting by secured creditors
18	When resolution adopted
Postal voting
19	Who may cast postal vote
20	Postal vote cast in respect of different
resolution
21	Person authorised to receive and count
postal votes
22	How to cast postal vote
23	Duty of person authorised to receive and
count postal votes
24	Duty of chairperson

1 Procedure generally

General provisions

Except as provided in this schedule and in any regulations made under this Act, a meeting of creditors may regulate its own procedure.

2 Effect of irregularity or defect

(1) An irregularity or defect in the proceedings at a meeting of creditors
does not invalidate anything done by a meeting of creditors, unless the Court
orders otherwise.
(2) The Court may, on the application of the administrator or liquidator, as
the case may be, or a creditor of the company, make an order under subclause (1)
if it is satisfied that substantial injustice would be caused if the order were not
made.

Methods of holding meetings

3 Methods of holding meetings

A meeting of creditors may be held –
(a) By assembling together those creditors entitled to take part and
who choose to attend at the place, date, and time appointed for the
meeting by the person convening the meeting as being in his or her
opinion the most convenient place, date, and time for the majority
of creditors; or
(b) By means of audio, or audio and visual, communication by which
all creditors participating may simultaneously hear each other
throughout the meeting; or
(c) By conducting a postal ballot, in accordance with clauses 19 to 24,
of those creditors entitled to take part.
542 Niue Laws 2006 Vol 1

4 Notice of meeting

Notice of meeting

At least 5 working days before a creditors meeting, written notice must be sent to every creditor entitled to attend the meeting of –
(a) The time and place of every meeting to be held under clause 3(a);
or
(b) The time and method of communication for every meeting to be
held under clause 3(b); or
(c) The time and address for the return of voting papers for every
meeting to be held under clause 3(a), (b), or (c).

5 Contents of notice

The notice must –
(a) State the nature of the business to be transacted at the meeting in
sufficient detail to enable a creditor to form a reasoned judgment in
relation to it; and
(b) Set out the text of any resolution to be submitted to the meeting;
and
(c) Include a voting paper in respect of each such resolution and voting
and mailing instructions; and
(d) State that if a creditor votes by casting a postal vote in respect of a
resolution that is to be submitted to the meeting and a different
resolution is submitted to the meeting –
(i) the creditor ’s postal vote is invalid in respect of that different
resolution; but
(ii) the creditor may vote, in respect of that different resolution,
either by being present in person or by proxy.

6 Effect of irregularity, etc, in notice

An irregularity in or a failure to receive a notice of a meeting of creditors
does not invalidate anything done by a meeting of creditors if –
(a) The irregularity or failure is not material; or
(b) All the creditors entitled to attend and vote at the meeting attend
the meeting without protest as to the irregularity or failure; or
(c) All such creditors agree to waive the irregularity or failure.

7 Adjournment of meeting

Meeting

(1) If the meeting of creditors agrees, the chairperson may adjourn the meeting from time to time and from place to place.
(2) An adjourned meeting must be held in the same place unless another
place is specified in the resolution for the adjournment.
(3) If a meeting of creditors under clause 3(a) or (b) is adjourned for less
than 30 days, it is not necessary to give notice of the time and place of the adjourned
meeting other than by announcement at the meeting that is adjourned.

8 Chairperson

(1) If an administrator or liquidator, as the case may be, has been appointed
and is present, or if the administrator or liquidator has appointed a nominee and
the nominee is present, he or she must act as the chairperson of a meeting held in
accordance with clause 3(a) or (b).

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543
(2) At any meeting of creditors, if the administrator or liquidator or any nominee of the administrator or liquidator, as is applicable, is not present, or if there is no administrator or liquidator holding office for the time being, the creditors participating must choose 1 of their number to act as the chairperson of the meeting. (3) The person convening a meeting under clause 3(c) must do everything
necessary that would otherwise be done by the person chairing a meeting.

9 Quorum

(1) A quorum for a meeting of creditors is present if –
(a) 3 creditors who are entitled to vote or their proxies are present or
have cast postal votes; or
(b) If the number of creditors entitled to vote does not exceed 3, the
creditors who are entitled to vote or their proxies are present or
have cast postal votes.
(2) If a quorum is not present within 30 minutes after the time appointed
for the meeting, the meeting is adjourned to the same day in the following week
at the same time and place, or to such other date, time, and place as the chairperson
may appoint, and if, at the adjourned meeting, a quorum is not present within 30
minutes after the time appointed for the meeting, the creditors present or their
proxies are a quorum.

10 Corporations may act by representatives

A body corporate that is a creditor may appoint a representative to attend
a meeting of creditors on its behalf.

11 Keeping of record of attendance and minutes

(1) The chairperson of a meeting of creditors, or in the case of a meeting
held under clause 3(c), the person convening the meeting must –
(a) Ensure that an accurate record is kept of all creditors present or
represented at the meeting, including –
(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) Ensure that minutes are kept of all proceedings.
(2) Records of attendance or minutes that have been signed correct by the
chairperson or the person convening the meeting are prima facie evidence of the
details recorded and proceedings of the meeting.

12 Proxies

Proxies

(1) A creditor may exercise the right to vote either by being present in person or by proxy.
(2) A proxy for a creditor is entitled to attend and be heard at a meeting of creditors as if the proxy were the creditor.
(3) A proxy must be appointed by notice in writing signed by the creditor and the notice must state whether the appointment is for a particular meeting or a specified term not exceeding 12 months.
(4) No proxy is effective in relation to a meeting unless a copy of the notice of appointment is delivered to the administrator or liquidator, as the case may be,
544 Niue Laws 2006 Vol 1
or, if no administrator or liquidator is acting in respect of a company in administration or liquidation, to the person by whom the notice convening the meeting was given, not less than 2 working days before the start of the meeting.

13 Administrator or liquidator may act as proxy

(1) A creditor may appoint any person, including the administrator or
liquidator or, if there is no administrator or liquidator, the chairperson of a meeting,
to act as his or her proxy.
(2) Subject to a direction of a meeting of creditors, an administrator or
liquidator must not solicit for proxies.
(3) Without limiting the orders that a Court may make, if an administrator
or liquidator, as the case may be, has not complied with subclause (2), the Court
may –
(a) Order that the administrator or liquidator is not entitled to his or her remuneration;
(b) Make an order removing the administrator or liquidator from office; (c) Make an order declaring any transaction entered into by the administrator or liquidator to be void or overturning any vote, and
granting such consequential relief as the Court thinks fit.

14 Irregularity in notice of proxy

If an irregularity that is not material is contained in the notice of proxy, the
administrator or liquidator or chairperson of a meeting, as the case may be, may
accept the proxy as being valid for voting purposes, if he or she is satisfied that
the proxy holder represents the creditor.

15 Limits on holder of proxy

(1) Subject to subclause (2), no person acting under a proxy may vote in
favour of or against any resolution that would place that person, either directly or
indirectly, in a position to receive any benefit out of the assets of the company
otherwise than as a creditor rateably with the other creditors of the company.
(2) Any person who holds a proxy to vote for the appointment of an
administrator or liquidator, as the case may be, may use the proxy to vote in favour
of the appointment of himself or herself as administrator or liquidator if it is not
inconsistent with the terms of the proxy to do so.
(3) If an administrator or liquidator, as the case may be, who holds a proxy
cannot attend a meeting of creditors called under this Act, he or she may, in writing,
nominate his or her partner (if the administrator or liquidator or the administrator
or liquidator is a member of a partnership) or some person in his or her
employment, to use the proxy on his or her behalf and in such manner as he or
she may direct.
(4) Nothing in subclause (3) authorises the person nominated to vote in a
manner that would be in contravention of subclauses (1) and (2) if the administrator
or liquidator had acted under the proxy personally.

Voting

16 Entitlement to vote, etc, determined by chairperson

(1) For the purpose of determining whether a person is allowed to vote at
a meeting and the value of the person’s claim for voting purposes, the chairperson
has the power to determine, for the purpose of the meeting –
(a) That the person is a creditor of the company; and
(b) The value of a creditor ’s claim against the company.

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545
(2) If the chairperson is uncertain as to whether a person is a creditor of the company or as to the value of the person’s claim against the company, the chairperson must allow the person to vote subject to the vote being subsequently declared invalid in whole or in part by the chairperson.
(3) A creditor who is not entitled to vote, may, with the leave of the administrator or liquidator, attend and speak at a meeting of creditors.
(4) A creditor chairing the meeting does not have a casting vote.

17 Voting by secured creditors

(1) In the case of a meeting of creditors held under subpart 1 of Part 9
(administrations) –
(a) A secured creditor is entitled to vote at the meeting;
(b) A secured creditor who votes at the meeting is not taken to have
surrendered his or her charge over any property of the company.
(2) In the case of a meeting of creditors held under subpart 3 of Part 9
(liquidations) –
(a) A secured creditor is entitled to vote –
(i) for the whole debt if he or she surrenders the charge to the
liquidator for the general benefit of creditors; or
(ii) in respect of the balance of the debt if he or she values the charge
and claims as an unsecured creditor for the balance due; or
(iii) in respect of the balance of the debt if he or she realises property
subject to a charge and claims as an unsecured creditor for any
balance due after deducting the net amount realised;
(b) Subject to this Act, if a secured creditor votes in respect of the
creditor ’s whole debt, the creditor is taken to have surrendered his
or her charge;
(c) A creditor who is not entitled to vote may, with the leave of the
liquidator, attend and speak at the meeting.

18 When resolution adopted

At any meeting of creditors or a class of creditors, a resolution is adopted if
a majority in number and value of the creditors or the class of creditors voting in
person or by proxy or by postal vote, vote in favour of the resolution.

19 Who may cast postal vote

Postal voting

A creditor entitled to vote at a meeting of creditors held in accordance with clause 3(a), (b), or (c) may exercise the right to vote by casting a postal vote in relation to a matter to be decided at that meeting.

20 Postal vote cast in respect of different resolution

If a creditor votes by casting a postal vote in respect of a resolution that is
to be submitted to the meeting and a different resolution is submitted to the
meeting –
(a) The creditor ’s postal vote is invalid in respect of that different resolution; but
(b) The creditor may vote, in respect of that different resolution, either by being present in person or by proxy.
546 Niue Laws 2006 Vol 1

21 Person authorised to receive and count postal votes

(1) The notice of meeting must state the name of the person authorised to
receive and count postal votes in relation to that meeting.
(2) If no person has been authorised to receive and count postal votes in
relation to a meeting, or if no person is named as being so authorised in the notice
of the meeting, the administrator or liquidator is deemed to be so authorised.

22 How to cast postal vote

A creditor may cast a postal vote on all or any of the matters to be voted on
at the meeting by sending a marked voting paper to a person authorised to receive
and count postal votes in relation to that meeting, so as to reach that person not
less than 2 working days before the start of the meeting or, if the meeting is held
under clause 3(c), not later than the date named for the return of the voting paper.

23 Duty of person authorised to receive and count postal votes

(1) It is the duty of a person authorised to receive and count postal votes
in relation to a meeting –
(a) To collect together all postal votes received by him or her; and
(b) In relation to each resolution to be voted on –
(i) to count the number of creditors or creditors belonging to a
class of creditors, as the case may be, voting in favour of the
resolution and determine the total amount of the debts owed
by the company to those creditors; and
(ii) to count the number of creditors or creditors belonging to a
class of creditors, as the case may be, voting against the
resolution and determine the total amount of the debts owed
by the company to those creditors; and
(c) To sign a certificate –
(i) that he or she has carried out the duties set out in paragraphs
(a) and (b); and
(ii) stating the results of the counts and determinations required
by paragraph (b); and
(d) To ensure that the certificate required by paragraph (c) is presented
to the person chairing or convening the meeting.
(2) A certificate given under subclause (1) in relation to the postal votes
cast in respect of a meeting of creditors must be annexed to the minutes of the
meeting.

24 Duty of chairperson

If a vote is taken at a meeting held under clause 3(a) or (b) on a resolution
on which postal votes have been cast, the person chairing the meeting must include
the results of voting by all creditors who have sent in a voting paper duly marked
as for or against the resolution.
––––––––––––––––––––

Companies Act 2006

SCHEDULE 13
POWERS, FUNCTIONS, AND LIABILITIES OF LIQUIDATORS
547
s 211

PART 1
PRELIMINARY PROVISIONS
1	Power to appoint 2 or more liquidators
2	Liquidators to act jointly
3	When liquidator not required to act
PART 2
POWERS OF LIQUIDATORS
4	Liquidator controls company’s assets
5	General powers
6	Specific powers
7	Liquidator may enforce liability of
shareholders
8	Liquidator may disclaim onerous property
9	Liquidator may be required to elect
whether to disclaim onerous property
PART 3
DUTIES OF LIQUIDATORS
10	Principal duties of liquidator
11	Restriction on purchase of company’s

PART 1
PRELIMINARY PROVISIONS

1 Power to appoint 2 or more liquidators

For the purposes of this Act, the power to appoint a liquidator of a company
includes the power to appoint 2 or more persons as liquidators of a company.

2 Liquidators to act jointly

If 2 or more persons are appointed as liquidators of a company, those persons
must act jointly unless the special resolution of shareholders, the resolution of the
directors of the company, or the order of the Court appointing the liquidators
states that the liquidators may exercise their powers individually.

3 When liquidator not required to act

Despite anything in this Act, except if the charge is surrendered or taken to be
surrendered or redeemed, a liquidator may, but is not required to, carry out any
duty or exercise any power in relation to property that is subject to a charge.
PART 2
POWERS OF LIQUIDATORS

4 Liquidator controls company’s assets

With effect from the commencement of the liquidation of a company, the
liquidator has custody and control of the company’s assets.

5 General powers

A liquidator has the powers –
(a) Necessary to carry out the functions and duties of a liquidator under
this Act; and
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Niue Laws 2006 Vol 1

(b) Conferred on a liquidator by this Act.

Specific powers

Without limiting clause 5, a liquidator of a company has power to –
(a) Commence, continue, discontinue, and defend legal proceedings;
(b) Carry on the business of the company, to the extent necessary for
the liquidation;
(c) Appoint a solicitor;
(d) Pay any class of creditors in full;
(e) Make a compromise or an arrangement with creditors or persons
claiming to be creditors or who have or allege the existence of a
claim against the company, whether present or future, actual or
contingent, or ascertained or not;
(f) Compromise calls and liabilities for calls, debts, and liabilities
capable of resulting in debts, and claims, present or future, actual
or contingent, ascertained or not, subsisting or supposed to subsist
between the company and any person and all questions relating to,
or affecting the assets or the liquidation of, the company, on such
terms as may be agreed, and take security for the discharge of any
such call, debt, liability, or claim, and give a complete discharge;
(g) Sell or otherwise dispose of the property of the company;
(h) Act in the name and on behalf of the company and enter into deeds,
contracts, and arrangements in the name and on behalf of the
company;
(i) Prove, rank, and claim in the bankruptcy or insolvency of a
shareholder for any balance against that person’s estate, and to
receive dividends in the bankruptcy or insolvency, as a separate
debt due from the bankrupt or insolvent and rateably with the other
separate creditors;
(j) Draw, accept, make, and endorse a bill of exchange or promissory
note in the name and on behalf of the company, with the same effect
as if the bill or note had been drawn, accepted, made, or endorsed
by or on behalf of the company in the course of its business;
(k) Borrow money on the security of the company’s assets;
(l) Take out, in his or her name as liquidator, letters of administration
to a deceased shareholder, and to do in that name any other act
necessary for obtaining payment of money due from a shareholder
or his or her estate, that cannot be conveniently done in the name
of the company. In all such cases, the money due is, for the purpose
of enabling the liquidator to take out the letters of administration
or recover the money, deemed to be due to the liquidator;
(m) Call a meeting of creditors or shareholders for –
(i) the purpose of informing creditors or shareholders of progress
in the liquidation;
(ii) the purpose of ascertaining the views of creditors or
shareholders on any matter arising in the liquidation;
(iii) such other purpose connected with the liquidation as the
liquidator thinks fit;
(n) Appoint an agent to do anything that the liquidator is unable to do.

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549

7 Liquidator may enforce liability of shareholders

A liquidator may enforce the liability of the shareholder or former
shareholder in respect of any shares issued to the shareholder or former
shareholder.

8 Liquidator may disclaim onerous property

(1) Subject to clause 9, a liquidator may disclaim onerous property even
though the liquidator has taken possession of it, tried to sell it, or otherwise
exercised rights of ownership in relation to it.
(2) A disclaimer –
(a) Brings to an end, on and from the date of the disclaimer, the rights,
interests, and liabilities of the company in relation to the property
disclaimed;
(b) Does not, except so far as necessary to release the company from a
liability, affect the rights or liabilities of any other person.
(3) A liquidator who disclaims onerous property must, within 10 working
days of the disclaimer, give notice in writing of the disclaimer to every person
whose rights are, to the knowledge of the liquidator, affected by the disclaimer.
(4) A person suffering loss or damage as a result of a disclaimer under this
clause may –
(a) Claim as a creditor of the company for the amount of the loss or
damage, taking account of the effect of an order made by the Court
under paragraph (b);
(b) Apply to the Court for an order that the disclaimed property be
delivered to, or vested in, that person.
(5) The Court may make an order under subclause (4)(b) if it is satisfied
that it is just that the property should be vested in the applicant.

9 Liquidator may be required to elect whether to disclaim onerous property

A liquidator is not entitled to disclaim onerous property if –
(a) A person whose rights would be affected by the disclaimer of
onerous property gives the liquidator notice in writing requiring
the liquidator to elect whether to disclaim the onerous property
before the close of a date specified in the notice, which must be at
least 20 working days after the date on which the notice is received
by the liquidator; and
(b) The liquidator does not disclaim the onerous property before the
close of that date.
PART 3
DUTIES OF LIQUIDATORS

10 Principal duties of liquidator

The principal duties of a liquidator of a company are, in a reasonable and
efficient manner –
(a) To take possession of, protect, realise, and distribute the assets, or
the proceeds of the realisation of the assets, of the company to its
creditors in accordance with this Act; and
(b) If there are surplus assets remaining, to distribute them, or the
proceeds of the realisation of the surplus assets, in accordance with
section 250.
550 Niue Laws 2006 Vol 1

11 Restriction on purchase of company’s assets by liquidator

(1) Subject to the leave of the Court, a liquidator must not, either directly
or indirectly, become a purchaser of any part of the company’s assets.
(2) The Court may set aside any purchase made contrary to this clause,
and grant any consequential relief that it thinks fit.
(3) The Court may give its leave on any conditions that it thinks fit.

12 Restriction on purchase of goods or services from persons connected with liquidator

(1) Subject to the leave of the Court, a liquidator must not purchase goods or services for the purposes of the liquidation from any person whose connection with him or her would result in the liquidator directly or indirectly obtaining any benefit arising out of the transaction.
(2) The Court may disallow or recover any benefit made contrary to this
clause.
(3) The Court may give its leave on any conditions that it thinks fit.

13 Deposit of company funds

A liquidator must deposit the funds of a company under his or her
administration in a bank account to the credit of the company or in a trust account
at a bank on trust for the benefit of the company.

14 Investment of funds

(1) Despite clause 13, in any liquidation all or any part of the balance
standing to the credit of the company in any bank account or trust account kept
by the liquidator, and not required for the time being to meet claims made against
the company, may be invested in any bank or in any Government securities or, if
authorised by the Court, any other securities.
(2) All dividends, interest, and other profits from investments must
immediately on being received be paid into the bank account or trust account
kept by the liquidator under clause 13.

15 Duties in relation to accounts

(1) Subject to subclause (2), the liquidator of a company must –
(a) Keep accounts and records of the liquidation and permit those
accounts and records, and the accounts and records in the company,
to be inspected by –
(i) any appointed liquidation committee, unless the liquidator
believes on reasonable grounds that inspection would be
prejudicial to the liquidation; and
(ii) if the Court so orders, a creditor or shareholder; and
(b) Retain the accounts and records of the liquidation and of the
company for not less than 1 year after completion of the liquidation;
and
(c) If a liquidator carries on the business of the company, keep
accounting records for the carrying on of the business of the
company that comply with section 129 to the extent that that section
is applicable.
(2) The Registrar may, whether before or after the completion of the
liquidation –
(a) Authorise the disposal of any accounts and records; and
(b) Require any accounts or records to be retained for longer than 1
year after the completion of the liquidation.

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551

16 Meaning of failure to comply

In clauses 17 to 19, failure to comply means a failure of a liquidator to comply
with a relevant duty arising –
(a) Under this or any other Act or rule of law or rules of Court; or
(b) Under any order or direction of a Court other than an order to
comply made under clause 17.

17 Failure to comply

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 that 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.

18 Consequences of non-compliance with Court order

A Court may, in relation to a person who fails to comply with an order
made under clause 17, or is or becomes disqualified 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, despite being disqualified to act as liquidator.

19 Prohibition order

(1) The Court must make, in relation to a person, a prohibition order for a
period not exceeding 5 years if it is shown to the satisfaction of a Court that the
person is unfit to act as liquidator by reason of –
(a) Persistent failures to comply; or
(b) The seriousness of a failure to comply.
(2) 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; or
(c) Act as an administrator of a company under subpart 1 of Part 9.
(3) The following is, in the absence of special reasons to the contrary,
evidence of persistent failures to comply for the purposes of this clause –
(a) Evidence that on 2 or more occasions within the preceding 5 years,
a Court has made an order to comply under this clause in respect
of the same person;
(b) Evidence that on 2 or more occasions within the preceding 5 years,
an application for an order to comply under this clause 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.
(4) A copy of every prohibition order must, within 10 working days of the
order being made, be delivered by the applicant to the Registrar, who must keep
it on a file indexed by reference to the name of the liquidator concerned.

20 Who may apply for orders under clauses 17 to 19

(1) An application for an order under this Part may be made by –
(a) A liquidator;
(b) A person seeking appointment as a liquidator;
(c) A liquidation committee;
552 Niue Laws 2006 Vol 1
(d) A creditor, shareholder or a director of the company in liquidation; (e) A receiver appointed in relation to property of the company in
liquidation;
(f) The Registrar.
(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.

21 Court orders under clauses 17 to 19: general

(1) In making an order under this clause, a Court may, if it thinks fit –
(a) Make an order extending the time for compliance; or
(b) Impose terms or conditions; or
(c) Make an ancillary order.

22 Court orders

PART 4
COURT SUPERVISION OF LIQUIDATIONS
On the application of the liquidator, a liquidation committee, or, with the leave of the Court, a creditor, shareholder, or director of a company in liquidation, the Court may –
(a) Give directions in relation to any matter arising in connection with the liquidation;
(b) Confirm, reverse, or modify an act or decision of the liquidator; (c) Order an audit of the accounts of the liquidation;
(d) Order the liquidator to produce the accounts and records of the
liquidation for audit and to provide the auditor with the information
concerning the conduct of the liquidation that the auditor requests;
(e) In respect of any period, review or fix the remuneration of the
liquidator at a level that is reasonable in the circumstances;
(f) To the extent that an amount retained by the liquidator as
remuneration is found by the Court to be unreasonable in the
circumstances, order the liquidator to refund the amount;
(g) Declare whether or not the liquidator was validly appointed or
validly assumed custody or control of property;
(h) Make an order concerning the retention or the disposition of the
accounts and records of the liquidation or of the company.

23 Court orders are additional to other Court powers

The powers given by clause 22 –
(a) Are in addition to any other powers a Court may exercise in its
jurisdiction relating to liquidators under this Act; and
(b) May be exercised –
(i) In relation to a matter occurring either before or after the
commencement of the liquidation or the removal of the
company from the Niue register; and
(ii) whether or not the liquidator has ceased to act as liquidator
when the application or the order is made.

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553

24 Defence to act in accordance with Court direction

(1) Subject to subclause (2), a liquidator is entitled to rely on having so
acted as a defence to a claim in relation to anything done or not done in accordance with the direction if the liquidator has –
(a) Obtained a direction of a Court with respect to a matter connected with the exercise of the powers or functions of liquidator; and
(b) Acted in accordance with the direction.
(2) A Court may, on the application of any person, order that, by reason of
the circumstances in which a direction by the Court was obtained, the liquidator
does not have the protection given by subclause (1).
––––––––––––––––––––
SCHEDULE 14
OFFICE OF LIQUIDATOR
s 211

RESTRICTIONS ON APPOINTMENT OF LIQUIDATORS

9 Appointment of liquidator until successor appointed

10 Appointment of successor by Court

11 Notice of appointment given by successor

12 Vacating liquidator ’s successor to be

helped

13 Liquidator ceases to hold office

oncompletion of liquidation

Liquidators’ remuneration

14 Remuneration of liquidators

15 Expenses and remuneration payable out

of assets of company

Restrictions on appointment of liquidators

1 Who may not be appointed or act as liquidator

None of the following may be appointed or act as a liquidator of a
company –
(a) A corporation;
(b) A person who is under 21 years of age;
(c) A creditor of the company;
(d) A person who has, within the 2 years immediately before the
beginning of the liquidation, been a shareholder, director, auditor,
or receiver of the company or of a related company;
(e) An undischarged bankrupt;
(f) A person in respect of whom a trustee order is in force under section
501 of the Niue Act 1966, or in respect of whom an order of medical
custody is in force under section 602 of that Act;
(g) A person who is prohibited from being a director or promoter, or
being concerned or taking part in the management, of a company
under this Act;
(h) A person who is prohibited from acting as an administrator under
this Act.
554 Niue Laws 2006 Vol 1

2 Validity of acts of liquidators

(1) The acts of a person as a liquidator are valid even though that person
may not be qualified to act as a liquidator.
(2) No defect or irregularity in the appointment of a liquidator invalidates
any act done by him or her in good faith.

3 Person must consent to being appointed liquidator

A person must not be appointed as liquidator of a company unless –
(a) The person has consented in writing to the appointment; and
(b) As at the time of the appointment, the person has not withdrawn
the consent.

4 Court may declare whether liquidator validly appointed

(1) If there is doubt on a specific ground about whether the appointment
of a person as liquidator of a company is valid, the person, the company, or any of
the company’s creditors may apply to the’Court for an order under subclause (2).
(2) The Court may, on application, make an order declaring whether or
not the appointment was valid on the ground specified in the application or on
some other ground.

Vacancy in office of liquidator

5 Vacancy in office of liquidator

The office of liquidator becomes vacant if the person holding office resigns,
dies, or is or becomes disqualified to act as liquidator.

6 How liquidator may resign

A person may resign from the office of liquidator by appointing another
person as his or her successor and sending or delivering notice in writing of the
appointment of his or her successor to the Registrar for registration.

7 Court may review appointment of successor

The Court may, on the application of the company, or a shareholder or
other entitled person, or a director or creditor of the company, review the
appointment of a successor to a liquidator and may appoint any person who could
be appointed as liquidator under sections 214, 215, or 217, as the case may be, to
be the liquidator of the company.

8 Vacancy not caused by resignation

If, for any reason other than resignation, a vacancy occurs in the office of
liquidator, written notice of the vacancy must immediately be sent or delivered to
the Registrar by the person vacating office or, if that person is unable to act, by his
or her personal representative.

9 Appointment of liquidator until successor appointed

If, as the result of the vacation of office by a liquidator, no person is acting
as liquidator, the Registrar may appoint a person to act as liquidator until a
successor is appointed under this clause.

10 Appointment of successor by Court

If a vacancy occurs in the office of the liquidator, or a liquidator has been
appointed under clause 9, as the case may be, the Court may, on the application of
the company, or a shareholder or other entitled person, or a director or creditor of

Companies Act 2006

555
the company, or the Registrar, appoint any person who could be appointed as liquidator under sections 214, 215, or 217, as the case may be, to be the liquidator of the company.

11 Notice of appointment given by successor

A liquidator appointed under clause 10 must, within 10 working days of
being appointed or being notified of his or her appointment, deliver a notice of
his or her appointment to the Registrar for registration.

12 Vacating liquidator’s successor to be helped

(1) A person vacating the office of liquidator must, if practicable, provide
such information and give such assistance to that person’s successor as he or she
reasonably requires in taking over the duties of liquidator.
(2) A person vacating the office of liquidator must immediately, or within
any reasonable time that may be specified by that person’s successor, deliver to
his or her successor the following things that are in his or her possession or under
his or her control –
(a) Any records or documents of the company;
(b) Other property of the company;
(c) All claims;
(d) Accounts and records of the liquidation.

13 Liquidator ceases to hold office on completion of liquidation

(1) A liquidator ceases to hold office on the completion of the liquidation.
(2) Subclause (1) does not limit Parts 3 or 4 of Schedule 13.

Liquidators’ remuneration

14 Remuneration of liquidators

(1) Subject to clause 22(f) of Schedule 13, every liquidator appointed under
sections 214 or 215 is entitled to charge reasonable remuneration for carrying out
his or her duties and exercising his or her powers as liquidator.
(2) Unless the Court otherwise orders, every liquidator appointed under
section 217 must charge remuneration either –
(a) Of an amount equal to the amount fixed under regulations made
under this Act; or
(b) At, or in accordance with, such rate or rates as may be prescribed
under regulations made under this Act.

15 Expenses and remuneration payable out of assets of company

The expenses and remuneration of the liquidator are payable out of the
assets of the company.
––––––––––––––––––––
556 Niue Laws 2006 Vol 1
SCHEDULE 15
EFFECT OF LIQUIDATION
s 211

	PART 1	5	Effect on proceedings commenced before
	PRELIMINARY PROVISION		commencement of liquidation
1	Company’s rules not to be altered	6	No enforcement of rights overcompany’s
			property
	PART 2	7	Restriction on rights of creditors to
	EFFECT ON COMPANY’S OFFICERS		complete execution, distraint, or
	AND SHAREHOLDERS, ETC		attachment
2	Functions and powers of company’s	8	Duties of court officer in execution process
	directors suspended

3 Effect on company’s shareholders PART 4

EFFECT ON CERTAIN CONDUCT

PART 3 9 Certain conduct prohibited

4 Legal proceedings not to be commenced or

continued

PART 1
PRELIMINARY PROVISION

1 Company’s rules not to be altered

With effect from the commencement of the liquidation of a company, the
rules of the company cannot be altered.
PART 2
EFFECT ON COMPANY’S OFFICERS AND SHAREHOLDERS, ETC

2 Functions and powers of company’s directors suspended

With effect from the commencement of the liquidation of a company, the
directors remain in office but cease to have powers, functions, or duties other than
those required or permitted to be exercised by this Act.

3 Effect on company’s shareholders

With effect from the commencement of the liquidation of a company –
(a) Unless the Court orders otherwise, a share in the company must
not be transferred;
(b) An alteration must not be made to the rights or liabilities of a
shareholder or former shareholder of the company;
(c) A shareholder must not exercise a power under the rules of the
company or this Act, except for the purposes of this Act.
PART 3
EFFECT ON PROCEEDINGS

4 Legal proceedings not to be commenced or continued

With effect from the commencement of the liquidation of a company, a
person must not, unless the liquidator agrees or the Court orders otherwise,
commence or continue legal proceedings against the company or in relation to its
property.

5 Effect on proceedings commenced before commencement of liquidation

(1) At any time after the making of an application to the Court to appoint
a liquidator of a company and before a liquidator is appointed, the company or
any creditor or shareholder of the company may –

Companies Act 2006

557
(a) In the case of any application or proceeding against the company that is pending in the Court or Court of Appeal, apply to the Court or Court of Appeal, as the case may be, for a stay of the application or proceeding;
(b) In the case of any other application or proceeding pending against the company in any Court or tribunal, apply to the Court to restrain the application or proceeding.
(2) The Court or Court of Appeal, as the case may be, may stay or restrain the application or proceedings on any terms that it thinks fit.

6 No enforcement of rights over company’s property

(1) With effect from the commencement of the liquidation of a company, a
person must not, unless the liquidator agrees or the Court orders otherwise, exercise
or enforce, or continue to exercise or enforce, a right or remedy over or against
property of the company.
(2) Nothing in subclause (1) or in clause 4 affects the right of a secured
creditor to take possession of, realise or otherwise deal with, property of the
company over which that creditor has a charge.

7 Restriction on rights of creditors to complete execution, distraint, or attachment

(1) Subject to subclauses (2) and (3), a creditor is not entitled to retain the benefit of any execution process, distress, or attachment over or against the property of a company unless the execution process, distress, or attachment is completed before –
(a) The passing of a special resolution appointing a liquidator of the company, or the date on which the creditor had notice of the calling of a meeting at which such a resolution was proposed, whichever occurs first; or
(b) The passing of a resolution by the directors of a company appointing a liquidator of the company, or the date on which the creditor had notice of the calling of a meeting at which such a resolution was proposed, whichever occurs first; or
(c) The making of an application to the Court to appoint a liquidator of the company.
(2) Despite subclause (1) –
(a) A person who, in good faith, purchases property of a company from
a court officer charged with an execution process acquires a good
title as against the liquidator of the company;
(b) A person who, in good faith, purchases property of a company on
which distress has been levied acquires a good title as against the
liquidator of the company.
(3) The Court may set aside the application of subclause (1) to the extent
and on any conditions that the Court thinks fit.
(4) For the purposes of this clause –
(a) An execution or distraint against personal property is completed
by seizure and sale;
(b) An attachment of a debt is completed by receipt of the debt;
(c) An execution against land is completed by sale, and, in the case of
an equitable interest, by the appointment of a receiver.
(5) Nothing in this section limits or affects Part 2 of Schedule 17.
558 Niue Laws 2006 Vol 1

8 Duties of court officer in execution process

(1) A court officer must, on being required by a liquidator of a company to
do so, deliver or transfer the company’s property and any money received in
satisfaction or partial satisfaction of an execution or paid to avoid a sale of the
property, as the case may be, to the liquidator if –
(a) The property has been taken in an execution process; and
(b) Before completion of the execution process, the court officer charged
with the execution process receives notice that the liquidator of the
company has been appointed.
(2) The costs of the execution process are a first charge on any property or
money delivered or transferred to the liquidator under subclause (1) and the
liquidator may sell all or some of the property to satisfy that charge.
(3) The court officer must retain the proceeds of sale or the money paid for
10 working days if –
(a) Property of a company is sold in an execution process in respect of
a judgment for a sum exceeding $500; or
(b) Money is paid to the court officer charged with the execution process
to avoid a sale of the property.
(4) The court officer must deduct from the amount the costs of the execution
process and pay the balance to the liquidator if –
(a) Within the period of 10 working days, the court officer has notice
of –
(i) the calling of a meeting at which a special resolution is proposed
to appoint a liquidator; or
(ii) the calling of a meeting of the directors at which a resolution is
proposed to appoint a liquidator or of a meeting of the directors
at which the appointment of a liquidator is to be considered;
or
(iii) the making of an application to the Court to appoint a
liquidator; and
(b) The company is put into liquidation.
(5) A liquidator to whom money is paid under subclause (4) is entitled to
retain it as against the execution creditor.
(6) The Court may set aside the application of this section to the extent,
and on any conditions, that it thinks fit.
PART 4
EFFECT ON CERTAIN CONDUCT

9 Certain conduct prohibited

(1) If a company is in liquidation, or an application has been made to the
Court for an order that a company be put into liquidation, as the case may be, no
person may –
(a) Leave Niue with the intention of –
(i) avoiding payment of money due to the company; or
(ii) avoiding examination in relation to the affairs of the company;
or
(iii) avoiding compliance with an order of the Court or some other
obligation under this Part in relation to the affairs of the
company; or
(b) Conceal or remove property of the company with the intention of
preventing or delaying the liquidator taking custody or control of
it; or

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559
(c) Destroy, conceal, or remove records or other documents of the company.
(2) A person who does not comply with subclause (1) commits an offence and is liable on conviction to a fine not exceeding 250 penalty units or to imprisonment for a term not exceeding 2 years, or both.
––––––––––––––––––––
SCHEDULE 16
LIQUIDATION COMMITTEES
ss 211, 244

	PART 1		PART 2
	LIQUIDATION COMMITTEE		PROCEEDINGS AT MEETINGS
1	Appointment of members	10	Frequency of meetings
2	Membership	11	Majorities
3	Powers	12	Resignation
4	Application of company’s rules	13	Office becoming vacant
5	Inability to act	14	Removal of member
6	Restriction on purchase of company’s	15	Vacancy filled
7 9	assets by liquidation committee Members not entitled to benefit from dealings with company’s assets Disallowance or recovery of benefits or	16	Committee with vacancy may act
	payments

PART 1
LIQUIDATION COMMITTEE

1 Appointment of members

(1) The members of a liquidation committee chosen by a meeting of
creditors or of shareholders take office immediately.
(2) The liquidator must refer the matter to the Court, and the Court may
make any decision that it thinks fit, if there is a difference between the decisions of
meetings of creditors and meetings of shareholders on –
(a) The question of appointing a liquidation committee; or
(b) The membership of a liquidation committee.

2 Membership

A liquidation committee must consist of not fewer than 3 persons who are –
(a) Creditors or shareholders; or
(b) Persons holding general powers of attorney from creditors or
shareholders; or
(c) Authorised directors or representatives of companies that are
creditors or shareholders of the company in liquidation.

3 Powers

A liquidation committee has the power to –
(a) Call for reports from the liquidator on the progress of the liquidation;
and
(b) Call a meeting of creditors or of shareholders; and
(c) Apply to the Court under Parts 3 or 4 of Schedule 13; and
(d) Assist the liquidator, as appropriate, in the conduct of the
liquidation.
560 Niue Laws 2006 Vol 1

4 Application of company’s rules

A meeting of shareholders called under clause 3(b) must be held in
accordance with the company’s rules (except that the liquidator has power to give
notice of a meeting of shareholders and to act as, or appoint, the chairperson of
the meeting).

5 Inability to act

If, by reason of vacancies in a liquidation committee, the committee is unable
to act, the liquidator must call attention to the situation in the next six-monthly
report required to be prepared and sent under section 247.

6 Restriction on purchase of company’s assets by liquidation committee

(1) Subject to the leave of the Court, a member of a liquidation committee
of a company must not, either directly or indirectly, become a purchaser of any
part of the company’s assets.
(2) The Court may set aside any purchase made contrary to this regulation,
and grant any consequential relief that it thinks fit.
(3) The Court may give its leave on any conditions that it thinks fit.

7 Members not entitled to benefit from dealings with company’s assets

(1) Subject to the leave of the Court, no member of a liquidation committee
may directly or indirectly be entitled to –
(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 or her in connection with the administration of
the assets, or for any goods supplied by him or her to the liquidator
for, or on account of, the company; or
(c) Directly or indirectly become the purchaser of any part of the
company’s assets.
(2) If the leave of the Court is sought under subclause (1) in respect of any
payment for services, the leave may be given only if the services performed are of
a special nature and the order must specify the nature of the services for which
leave is given.

8 No remuneration

Except by the leave of the Court, no remuneration may, under any
circumstances, be paid to a member of a liquidation committee for services
rendered by him or her in the discharge of the duties attaching to his or her office
as a member of the committee.

9 Disallowance or recovery of benefits or payments

(1) The Court may disallow or recover any benefit or payment made
contrary to clauses 7 or 8.
(2) The Court may give leave under clauses 7 or 8 on any conditions that it
thinks fit.
PART 2
PROCEEDINGS AT MEETINGS

10 Frequency of meetings

(1) The committee must meet at the times as it from time to time appoints.
(2) The liquidator or a member of the committee may also call a meeting
of the committee as and when necessary.

Companies Act 2006

561

11 Majorities

The committee may act by a majority of its members present at a meeting,
but may not act unless a majority of the committee are present.

12 Resignation

A member of the committee may resign by notice in writing signed by the
member and delivered to the liquidator.

13 Office becoming vacant

The office of a member of the committee becomes vacant if the member –
(a) Becomes bankrupt; or
(b) Compounds or arranges with his or her creditors; or
(c) Is absent from 3 consecutive meetings of the committee without
the leave of those members who together with that member
represent the creditors or shareholders, as the case may be.

14 Removal of member

(1) A member of the committee may be removed by a resolution –
(a) Carried at a meeting of creditors if the member represents creditors;
or
(b) Carried at a meeting of shareholders if the member represents
shareholders.
(2) At least 5 working days’ notice of the resolution must be given, which
states the object of the meeting.

15 Vacancy filled

A vacancy in the committee may be filled by the appointment to the
committee of –
(a) A creditor or shareholder, as the case may be; or
(b) A person holding a general power of attorney from, or being an
authorised director or representative of, a company that is a creditor
or shareholder, as the case may be.

16 Committee with vacancy may act

The continuing members of the committee, if not less than 2, may act even
though a vacancy exists in the committee.
––––––––––––––––––––
562

Niue Laws 2006 Vol 1

SCHEDULE 17
VOIDABLE TRANSACTIONS AND CHARGES AND RECOVERIES IN OTHER CASES

S 211

13	Transactions for inadequate or excessive consideration with directors, etc Definitions
14	Transactions for excessive consideration
15	with directors, etc Transactions for inadequate consideration with directors, etc
16 17 18	Court may set aside certain securities and charges Court may set aside certain securities and charges Certain securities exempted Other orders, etc
19 20	Contribution for not keeping proper accounting records Contribution for not keeping proper accounting records When Court may not make declaration under clause 19
21	Court may require persons to repay money or return property Court may require persons to repay money or return property
22 23	Pooling of assets Pooling of assets of related companies Guidelines for orders

PART 1
VOIDABLE TRANSACTIONS AND CHARGES

Voidable transactions

1 Definitions

In clause 2 –
restricted period means –
(a) The period of 6 months before the date of commencement of the
liquidation together with the period commencing on that date and
ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court,
the period of 6 months before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date on which, and at
the time at which, the order of the Court was made; and
(c) The period of 6 months before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date and at the time
of the commencement of the liquidation if –

Companies Act 2006

563
(i) an application was made to the Court to put a company into liquidation; and
(ii) after the making of the application to the Court a liquidator was appointed under sections 214 or 215; and
(d) In the case of a liquidator appointed under section 188(1)(c), the period of 6 months before the administration begins together with the period commencing on that date and ending at the time the liquidator is appointed
specified period means –
(a) The period of 2 years before the date of commencement of the
liquidation together with the period commencing on that date and
ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court,
the period of 2 years before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date on which, and at
the time at which, the order was made; and
(c) The period of 2 years before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date and at the time
of the commencement of the liquidation if –
(i) an application was made to the Court to put a company into
liquidation; and
(ii) after the making of the application to the Court a liquidator
was appointed under sections 214 or 215; and
(d) In the case of a liquidator appointed under section 188(1)(c), the
period of 2 years before the administration begins together with
the period commencing on that date and ending at the time the
liquidator is appointed
transaction, in relation to a company, means –
(a) A conveyance or transfer of property by the company;
(b) The giving of a security or charge over the property of the company;
(c) The incurring of an obligation by the company;
(d) The acceptance by the company of execution under a judicial
proceeding;
(e) The payment of money by the company, including the payment of
money under a judgment or order of a Court.

2 Voidable transactions

(1) A transaction by a company is voidable on the application of the
liquidator if the transaction – (a) Was made –
(i) at a time when the company was unable to pay its due debts;
and
(ii) within the specified period; and
(b) Enabled another person to receive more towards satisfaction of a
debt than the person would otherwise have received or be likely to
have received in the liquidation.
(2) Subclause (1) does not apply if the transaction took place in the ordinary
course of business.
(3) Unless the contrary is proved, a transaction that took place within the
restricted period is presumed to have been made –
564

Niue Laws 2006 Vol 1

(a) At a time when the company was unable to pay its debts; and
(b) Otherwise than in the ordinary course of business.
(4) In determining whether a transaction took place in the ordinary course
of business, no account is, unless that other person knew that that was the intent
or purpose of the company, to be taken of any intent or purpose on the part of a
company –
(a) To enable another person to receive more towards satisfaction of a
debt than the person would otherwise receive or be likely to receive
in the liquidation; or
(b) To reduce or cancel the liability, whether in whole or in part, of
another person in respect of a debt incurred by the company; or
(c) To contribute towards the satisfaction of the liability, whether in
whole or in part, of another person in respect of a debt incurred by
the company.

3 Definitions

In clause 4 –
restricted period means –

Voidable charges

(a) The period of 6 months before the date of commencement of the liquidation together with the period commencing on that date and ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court, the period of 6 months before the making of the application to the Court together with the period commencing on the date of the making of the application and ending on the date on which, and at the time at which, the order of the Court was made; and
(c) The period of 6 months before the making of the application to the Court together with the period commencing on the date of the making of that application and ending on the date and at the time of the commencement of the liquidation if –
(i) an application was made to the Court to put a company into
liquidation; and
(ii) after the making of the application to the Court a liquidator
was appointed under sections 214 or 215; and
(d) In the case of a liquidator appointed under section 188(1)(c), the
period of 6 months before the administration begins together with
the period commencing on that date and ending at the time the
liquidator is appointed
specified period means –
(a) The period of 1 year before the date of commencement of the
liquidation together with the period commencing on that date and
ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court,
the period of 1 year before the making of the application to the
Court together with the period commencing on the date of the
making of the application and ending on the date on which, and at
the time at which, the order of the Court was made; and
(c) The period of 1 year before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date and at the time
of the commencement of the liquidation if –

Companies Act 2006

565
(i) an application was made to the Court to put a company into liquidation; and
(ii) after the making of the application to the Court a liquidator was appointed under sections 214 or 215; and
(d) In the case of a liquidator appointed under section 188(1)(c), the period of 1 year before the administration begins together with the period commencing on that date and ending at the time the liquidator is appointed.

4 Voidable charges

(1) A charge over any property or undertaking of a company is voidable
on the application of the liquidator if the charge was given within the specified
period, unless –
(a) The charge secures –
(i) money actually advanced or paid; or
(ii) the actual price or value of property sold or supplied to the
company; or
(iii) any other valuable consideration given in good faith by the
grantee of the charge at the time of, or at any time after, the
giving of the charge; or
(b) Immediately after the charge was given, the company was able to
pay its due debts; or
(c) The charge is in substitution for a charge given before the specified
period.
(2) Unless the contrary is proved, a company giving a charge within the
restricted period is presumed to have been unable to pay its due debts immediately
after giving the charge.

5 Exception; certain kinds of substituted charges

Clause 4(1)(c) does not apply to the extent that –
(a) The amount secured by the substituted charge exceeds the amount
secured by the existing charge; or
(b) The value of the property subject to the substituted charge at the
date of the substitution exceeds the value of the property subject to
the existing charge at that date.

6 Exception; charge that secures unpaid purchase price

Nothing in clause 4 applies to a charge given by a company that secures
the unpaid purchase price of property, whether or not the charge is given over
that property, if –
(a) The charge document is executed not later than 30 days after the
sale of the property; or
(b) In the case of the sale of an estate or interest in land, the charge
document is executed not later than 30 days after the final settlement
of the sale.

7 Payments received by secured party

For the purposes of clauses 4(1)(a) and 6, if a charge was given by the
company within the period specified in clause 4, all payments received by the
secured party entitled to the charge after it was given are deemed to have been
appropriated so far as may be necessary –
566 Niue Laws 2006 Vol 1
(a) Towards repayment of money actually advanced or paid by the secured party to the company on or after the giving of the charge; or
(b) Towards payment of the actual price or value of property sold by the secured party to the company on or after the giving of the charge; or
(c) Towards payment of any other liability of the company to the secured party in respect of any other valuable consideration given in good faith on or after the giving of the charge.

Procedure for setting aside voidable transactions and charges

8 Procedure

(1) A liquidator who wishes to have a transaction that is voidable or a
charge that is voidable set aside must –
(a) File in the Court a notice to that effect specifying the transaction or
charge to be set aside and, in the case of a transaction, the property
or value which the liquidator wishes to recover, and also the effect
of subclauses (2), (3), and (4); and
(b) Serve a copy of the notice on the other party to the transaction or
the secured creditor entitled to the charge and on every other person
from whom the liquidator wishes to recover.
(2) A person –
(a) Who would be affected by the setting aside of the transaction or
charge specified in the liquidator ’s notice; and
(b) Who considers that the transaction or charge is not voidable –
may file in the Court a notice objecting to the transaction or charge being set aside,
and serve a copy of that notice on the liquidator, within 20 working days after the
service of the liquidator ’s notice.
(3) Unless a person on whom the liquidator ’s notice was served has given
notice under subclause (2), the transaction or charge is set aside on the 20th working
day after the date of service of the notice.
(4) If 1 or more persons have given notice under subclause (2), the liquidator
may apply to the Court for an order that the transaction or charge be set aside.
That application must be served on every person referred to in paragraph (b) of
subclause (1), whether or not that person gave a notice under subclause (2).

9 Other orders

If a transaction or charge is set aside, the Court may make 1 or more of the
following orders –
(a) An order requiring a person to pay to the liquidator, in respect of
benefits received by that person as a result of the transaction or
charge, such sums as fairly represent those benefits;
(b) An order requiring property transferred as part of the transaction
to be restored to the company;
(c) An order requiring property to be vested in the company if it
represents in a person’s hands the application, either of the proceeds
of sale of property, or of money, so transferred;
(d) An order releasing, in whole or in part, a charge given by the
company;
(e) An order requiring security to be given for the discharge of an order
made under this clause;

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567
(f) An order specifying the extent to which a person affected by the setting aside of a transaction or by an order made under this clause is entitled to claim as a creditor in the liquidation.

10 Additional provisions relating to setting aside transactions and charges

(1) The setting aside of a transaction or an order made under clause 9 does
not affect the title or interest of a person in property that the person has acquired –
(a) From a person other than the company; and
(b) For valuable consideration; and
(c) Without knowledge of the circumstances under which the property
was acquired from the company.
(2) The setting aside of a charge or an order made under clause 9 does not
affect the title or interest of a person in property that the person has acquired –
(a) As the result of the exercise of a power of sale by the secured creditor
entitled to the charge; and
(b) For valuable consideration; and
(c) Without knowledge of the circumstances relating to the giving of
the charge.
(3) Recovery by the liquidator of property or its equivalent value, whether
under clause 9 or any other provision of this Act, or under any other enactment,
or in equity or otherwise, may be denied wholly or in part if –
(a) The person, from whom recovery is sought, received the property
in good faith and has altered his or her position in the reasonably
held belief that the transfer to that person was validly made and
would not be set aside; and
(b) In the opinion of the Court, it is inequitable to order recovery or
recovery in full.
(4) Nothing in the Land Act 1969 restricts the operation of this clause or
clauses 4 to 9.

11 Definitions

In clause 12 –
PART 2
RECOVERY IN OTHER CASES

Transactions at undervalue

specified period means –
(a) The period of 1 year before the date of commencement of the
liquidation together with the period commencing on that date and
ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court,
the period of 1 year before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date on which, and at
the time at which, the order of the Court was made; and
(c) The period of 1 year before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date and at the time
of the commencement of the liquidation if –
(i) an application was made to the Court to put a company into
liquidation; and
(ii) after the making of the application to the Court a liquidator
was appointed under sections 214 or 215; and
568 Niue Laws 2006 Vol 1
(d) In the case of a liquidator appointed under section 188(1)(c), the period of 1 year before the administration begins together with the period commencing on that date and ending at the time the liquidator is appointed
transaction includes the giving of a guarantee by a company.

12 Transactions at undervalue

(1) A liquidator of a company may recover from any other party to a
transaction any amount by which the value of the consideration or benefit provided
by the company exceeded the value of the consideration or benefit received by
the company if –
(a) The transaction was entered into by a company within the specified
period; and
(b) The value of the consideration or benefit received by the company
was less than the value of the consideration provided by the
company, or the company received no consideration or benefit; and
(c) When the transaction was entered into, the company –
(i) Was unable to pay its due debts; or
(ii) was engaged, or about to engage, in business for which its
financial resources were unreasonably small; or
(iii) incurred an obligation knowing that the company would not
be able to perform the obligation when required to do so; and
(d) When the transaction was entered into, the other party to the
transaction knew or ought to have known of the matter referred to
in paragraph (c).
(2) A liquidator of a company may recover from any other party to a
transaction any amount by which the value of the consideration or benefit provided
by the company exceeded the value of the consideration or benefit received by
the company if –
(a) The transaction was entered into by a company within the specified
period; and
(b) The value of the consideration or benefit received by the company
was less than the value of the consideration provided by the
company, or the company received no consideration or benefit; and
(c) The company became unable to pay its due debts as a result of the
transaction; and
(d) When the transaction was entered into, the other party to the
transaction knew or ought to have known that the company would
become unable to pay its due debts as a result of the transaction.

Transactions for inadequate or excessive consideration with directors, etc

13 Definitions

(1) In clause 14, specified period means –
(a) The period of 3 years before the date of commencement of the
liquidation together with the period commencing on that date and
ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court,
the period of 3 years before the making of the application to the
Court together with the period commencing on the date of the
making of the application and ending on the date on which, and at
the time at which, the order of the Court was made; and

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569
(c) The period of 3 years before the making of the application to the Court together with the period commencing on the date of the making of that application and ending on the date and at the time of the commencement of the liquidation if –
(i) an application was made to the Court to put a company into liquidation; and
(ii) after the making of the application to the Court a liquidator was appointed under sections 214 or 215; and
(d) In the case of a liquidator appointed under section 188(1)(c), the
period of 3 years before the administration begins together with
the period commencing on that date and ending at the time the
liquidator is appointed.
(2) For the purposes of clause 14 –
(a) The value of a business or property includes the value of any
goodwill attaching to the business or property;
(b) Without limiting the circumstances in which a company may be
taken to be controlled by a person, a company is controlled by a
person, if that person may, by exercising a power exercisable by
that person (whether with or without the consent or concurrence
of any other person), appoint or remove all the directors of the
company, or any number of directors as together hold a majority of
voting rights at a meeting of directors.

14 Transactions for excessive consideration with directors, etc

A liquidator of a company may recover from the person, relative, company,
or related company, as the case may be, any amount by which the value of the
consideration given for the acquisition of the business, property, or services
exceeded the value of the business, property, or services at the time of the
acquisition if, within the specified period, the company has acquired a business
or property from, or the services of –
(a) A person who was, at the time of the acquisition, a director of the
company, or a nominee or relative of or a trustee for, or a trustee for
a relative of, a director of the company; or
(b) A person, or a relative of a person, who, at the time of the acquisition,
had control of the company; or
(c) Another company that was, at the time of the acquisition, controlled
by a director of the company, or a nominee or relative of, or a trustee
for, or a trustee for a relative of, a director of the company; or
(d) Another company that was, at the time of the acquisition, a related
company.

15 Transactions for inadequate consideration with directors, etc

A liquidator of a company may recover from the person, relative, company,
or related company, as the case may be, any amount by which the value of the
business, property, or services, or the value of the shares, at the time of the
disposition, provision, or issue exceeded the value of any consideration received
by the company if, within the specified period, a company has disposed of a
business or property, or provided services, or issued shares, to –
(a) A person who was, at the time of the disposition, provision, or issue,
a director of the company, or a nominee or relative of or a trustee
for, or a trustee for a relative of, a director of the company; or
570 Niue Laws 2006 Vol 1
(b) A person, or a relative of a person, who, at the time of the disposition, provision, or issue, had control of the company; or
(c) Another company that was, at the time of the disposition, provision, or issue, controlled by a director of the company, or a nominee or relative of or a trustee for, or a trustee for a relative of, a director of the company; or
(d) Another company that, at the time of the disposition, provision, or issue, was a related company.

Court may set aside certain securities and charges

16 Court may set aside certain securities and charges

(1) The Court may, on the application of the liquidator of a company, order
that a security or charge, or part of it, created by the company over any of its
property in favour of any of the persons referred to in subclause (2) must, so far as
any security on the property is conferred, be set aside as against the liquidator if –
(a) The company is unable to meet all its debts; and
(b) The Court considers that, having regard to the circumstances in
which the security or charge was created, the conduct of the person,
relative, company, or related company, as the case may be, in relation
to the affairs of the company, and any other relevant circumstances,
it is just and equitable to make the order.
(2) The persons referred to in subclause (1) are as follows –
(a) A person who was, at the time the security or charge was created, a
director of the company, or a nominee or relative of, or a trustee for,
or a trustee for a relative of, a director of the company; or
(b) A person, or a relative of a person, who, at the time when the security
or charge was created, had control of the company; or
(c) Another company that was, when the security or charge was
created, controlled by a director of the company, or a nominee or
relative of, or a trustee for, or a trustee for a relative of, a director of
the company; or
(d) Another company, that at the time when the security or charge was
created, was a related company.

17 Certain securities exempted

Clause 16 does not apply to a security or charge that has been transferred
by the person (person A) in whose favour it was originally created and has been
purchased by another person (whether or not from person A) if –
(a) At the time of the purchase, the purchaser was not a person specified
in that clause; and
(b) The purchase was made in good faith and for valuable
consideration.

18 Other orders, etc

(1) The Court may make any other orders that it thinks proper for the
purpose of giving effect to an order under this clause.
(2) Nothing in the Land Act 1969 restricts the operation of this clause or
clauses 16 and 17.

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571

Contribution for not keeping proper accounting records

19 Contribution for not keeping proper accounting records

(1) The Court, on the application of the liquidator, may, if it thinks it proper
to do so, declare that any 1 or more of the directors and former directors of a
company is, or are, personally responsible, without limitation of liability, for all or
any part of the debts and other liabilities of the company that the Court may
direct if –
(a) The company that is in liquidation and is unable to pay all its debts has failed to comply with –
(i) section 129 (which relates to the keeping of accounting records);
or
(ii) section 130 (which relates to the preparation of financial
statements); and
(b) The Court considers that –
(i) the failure to comply has contributed to the company’s inability
to pay all its debts, or has resulted in substantial uncertainty as
to the assets and liabilities of the company, or has substantially
impeded the orderly liquidation; or
(ii) for any other reason it is proper to make a declaration.
(2) The Court may give any direction it thinks fit for the purpose of giving
effect to the declaration.
(3) The Court may make a declaration under this clause even though the
person concerned is liable to be convicted of an offence.

20 When Court may not make declaration under clause 19

The Court must not make a declaration under clause 19 in relation to a
person if the Court considers that the person –
(a) Took all reasonable steps to secure compliance by the company with
clause 19(1)(a); or
(b) Had reasonable grounds to believe and did believe that a competent
and reliable person was charged with the duty of seeing that that
provision was complied with and was in a position to discharge
that duty.

Court may require persons to repay money or return property

21 Court may require persons to repay money or return property

(1) The Court may, on the application of the liquidator or a creditor or
shareholder, do any of the things set out in subclause (2) if, in the course of the
liquidation of a company, it appears to the Court that a person who has taken part
in the formation or promotion of the company, or a past or present director,
manager, liquidator, administrator, receiver, or officer of the company, has –
(a) Misapplied, or retained, or become liable or accountable for, money
or property of the company; or
(b) Been guilty of negligence, default, or breach of duty or trust in
relation to the company.
(2) The Court may –
(a) Inquire into the conduct of the promoter, director, manager,
liquidator, administrator, receiver, or officer; and
(b) Order that person –
(i) to repay or restore the money or property or any part of it with
interest at a rate the Court thinks just; or
572 Niue Laws 2006 Vol 1
(ii) to contribute such sum to the assets of the company by way of compensation as the Court thinks just; or
(c) If the application is made by a creditor, order that person to pay or transfer the money or property or any part of it, with interest at a rate the Court thinks just, to the creditor.
(3) This clause has effect even though the conduct may constitute an
offence.

Pooling of assets

22 Pooling of assets of related companies

(1) On the application of the liquidator, or a creditor or shareholder, the
Court, if satisfied that it is just and equitable to do so, may order that –
(a) A company that is, or has been, related to the company in liquidation
must pay to the liquidator the whole or part of any or all of the
claims made in the liquidation;
(b) If 2 or more related companies are in liquidation, the liquidations
in respect of each company must proceed together as if they were 1
company to the extent that the Court so orders and subject to such
terms and conditions as the Court may impose.
(2) The Court may make any other order or give any directions to facilitate
giving effect to an order under subclause (1) that it thinks fit.

23 Guidelines for orders

(1) In deciding whether it is just and equitable to make an order under
clause 22(1)(a), the Court must consider the following matters –
(a) The extent to which the related company took part in the
management of the company in liquidation;
(b) The conduct of the related company towards the creditors of the
company in liquidation;
(c) The extent to which the circumstances that gave rise to the
liquidation of the company are attributable to the actions of the
related company;
(d) Any other matters as the Court thinks fit.
(2) In deciding whether it is just and equitable to make an order under
clause 22(1)(b), the Court must consider the following matters –
(a) The extent to which any of the companies took part in the
management of any of the other companies;
(b) The conduct of any of the companies towards the creditors of any
of the other companies;
(c) The extent to which the circumstances that gave rise to the
liquidation of any of the companies are attributable to the actions
of any of the other companies;
(d) The extent to which the businesses of the companies have been
combined;
(e) Any other matters that the Court thinks fit.
(3) The fact that creditors of a company in liquidation relied on the fact
that another company is, or was, related to it is not a ground for making an order
under clause 22.

Companies Act 2006

SCHEDULE 18
CREDITORS’ CLAIMS
573
s 211

PART 1
PRELIMINARY PROVISIONS
1	Admissible claims
2	Ascertainment of amount of claim
3	Claim not of ascertained amount
4	Fines and penalties
5	Claims relating to debts payable after
commencement of liquidation
6	Claims by unsecured creditors
PART 2
SECURED CLAIMS
7	Powers of secured creditors
8	Realising secured property
9	Valuation of security
10	Liquidator ’s duties on receipt of claim by
secured creditor
11	Liquidator may redeem security
12	Liquidator may require secured creditor to
exercise powers
13	Offence to make false or misleading claim
PART 3
PREFERENTIAL CLAIMS
14	Definitions
15	First priority claims
17	Third priority claims

1 Admissible claims

PART 1
PRELIMINARY PROVISIONS
(1) Subject to subclause (2), a debt or liability, present or future, certain or contingent, whether it is an ascertained debt or a liability for damages, may be admitted as a claim against a company in liquidation.
(2) Fines, monetary penalties, and costs to which clause 4 applies are not claims that may be admitted against a company in liquidation.

2 Ascertainment of amount of claim

(1) The amount of a claim must be ascertained as at the date and time of
commencement of the liquidation.
(2) The amount of a claim based on a debt or liability denominated in a
currency other than the currency of Niue must be converted into the currency of
Niue at the rate of exchange on the date of commencement of the liquidation.

3 Claim not of ascertained amount

(1) If a claim is subject to a contingency, or is for damages, or, if for some
other reason the amount of the claim is not certain, the liquidator may –
574 Niue Laws 2006 Vol 1
(a) Make an estimate of the amount of the claim; or
(b) Refer the matter to the Court for a decision on the amount of the
claim.
(2) On the application of the liquidator, or of a claimant who is aggrieved
by an estimate made by the liquidator, the Court may determine the amount of
the claim as it thinks fit.

4 Fines and penalties

Nothing in this Act limits or affects the recovery of –
(a) A fine imposed on a company, whether before or after the
commencement of the liquidation of the company, for the
commission of an offence; or
(b) A monetary penalty payable to the Government imposed on a
company by a Court, whether before or after the commencement
of the liquidation of the company, for the breach of any enactment;
or
(c) Costs ordered to be paid by the company in relation to proceedings
for the offence or breach.

5 Claims relating to debts payable after commencement of liquidation

(1) A claim in respect of a debt that, but for the liquidation, would not be
payable until a date that is 6 months, or later than 6 months, after the date of
commencement of the liquidation is to be treated, for the purposes of this Part, as
a claim for the present value of the debt.
(2) For the purposes of subclause (1), the present value of a debt is to be
determined by deducting from the amount of the debt interest at an appropriate
rate for the period from the date on which the company is put into liquidation to
the date when the debt is due.

6 Claims by unsecured creditors

(1) A claim by an unsecured creditor against a company in liquidation must
be made in the prescribed form and must –
(a) Contain full details of the claim; and
(b) Identify any documents that evidence or substantiate the claim.
(2) The liquidator may require the production of a document referred to in
subclause (1)(b).
(3) The liquidator –
(a) Must, as soon as practicable, either admit or reject a claim in whole
or in part; and
(b) If the liquidator later considers that a claim has been wrongly
admitted or rejected in whole or in part, may revoke or amend that
decision; and
(c) Must record in writing any decision made under this subclause.
(4) If a liquidator rejects a claim, whether in whole or in part, he or she
must immediately give notice in writing of the rejection to the creditor.
(5) The costs of making a claim under subclause (1) or producing a
document under subclause (2) must be met by the creditor making the claim.
(6) Every person commits an offence and is liable on conviction to
imprisonment for a term not exceeding 2 years or to a fine not exceeding 250
penalty units, or both, if the person –
(a) Makes, or authorises the making of, a claim under this clause that
is false or misleading in a material particular knowing it to be false
or misleading; or

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575
(b) Omits, or authorises the omission, from a claim under this clause of any matter knowing that the omission makes the claim false or misleading in a material particular.
PART 2

Secured claims

7 Powers of secured creditors

(1) A secured creditor may –
(a) Realise property subject to a charge, if entitled to do so; or
(b) Value the property subject to the charge and claim in the liquidation
as an unsecured creditor for the balance due, if any; or
(c) Surrender the charge to the liquidator for the general benefit of
creditors and claim in the liquidation as an unsecured creditor for
the whole debt.
(2) A secured creditor may exercise the power referred to in subclause (1)(a)
whether or not the secured creditor has exercised the power referred to in subclause
(1)(b).

8 Realising secured property

A secured creditor who realises secured property –
(a) May, unless the liquidator has accepted a valuation and claim by
the secured creditor under clause 10, claim as an unsecured creditor
for any balance due after deducting the net amount realised;
(b) Must account to the liquidator for any surplus remaining from the
net amount realised after satisfaction of the debt, including interest
payable in respect of that debt up to the time of its satisfaction, and
after making any proper payments to the holder of any other charge
over the property subject to the charge.

9 Valuation of security

(1) If a secured creditor values the security and claims as an unsecured
creditor for the balance due, if any, the valuation and any claim must be made in
the prescribed form and –
(a) Contain full details of the valuation and any claim; and
(b) Contain full details of the charge including the date on which it
was given; and
(c) Identify any documents that substantiate the claim and the charge.
(2) The liquidator may require production of any document referred to in
subclause (1)(c).

10 Liquidator’s duties on receipt of claim by secured creditor

If a claim is made by a secured creditor under clause 9, the liquidator must –
(a) Accept the valuation and claim; or
(b) Reject the valuation and claim, in whole or in part, but –
(i) If a valuation and claim is rejected in whole or in part, the
creditor may make a revised valuation and claim within 10
working days of receiving notice of the rejection; and
(ii) the liquidator may, if he or she later considers that a valuation
and claim was wrongly rejected, in whole or in part, revoke or
amend that decision; and
(c) Record in writing any decision made by the liquidator under this
clause.
576 Niue Laws 2006 Vol 1

11 Liquidator may redeem security

The liquidator may, unless the secured creditor has realised the property,
at any time, redeem the security on payment of the assessed value if the liquidator –
(a) Accepts a valuation and claim under clause 10(a); or
(b) Accepts a revised valuation and claim under clause 10(b)(i); or
(c) Accepts a valuation and claim on revoking or amending a decision
to reject a claim under clause 10(b)(ii).

12 Liquidator may require secured creditor to exercise powers

(1) The liquidator may at any time, by notice in writing, require a secured
creditor, within 20 working days after receipt of the notice, to –
(a) Elect which of the powers referred to in clause 7 the creditor wishes
to exercise; and
(b) If the creditor elects to exercise the power referred to in clause 7(1)(b)
or (c), exercise the power within that period.
(2) A secured creditor on whom notice has been served under subclause
(1) who fails to comply with the notice, is to be taken as having surrendered the
charge to the liquidator under clause 7(1)(c) for the general benefit of creditors,
and may claim in the liquidation as an unsecured creditor for the whole debt.
(3) A secured creditor who has surrendered a charge under clause 7(1)(c)
or who is taken as having surrendered a charge under subclause (2) may, with the
leave of the Court or the liquidator and subject to any conditions that the Court or
the liquidator thinks fit, at any time before the liquidator has realised the property
charged –
(a) Withdraw the surrender and rely on the charge; or
(b) Submit a new claim under this clause.

13 Offence to make false or misleading claim

Every person commits an offence and is liable on conviction to
imprisonment for a term not exceeding 7 years or to a fine not exceeding 1000
penalty units, or both if the person –
(a) Makes, or authorises the making of, a claim under clause 9 that is
false or misleading in a material particular knowing it to be false or
misleading; or
(b) Omits, or authorises the omission, from a claim under that clause
of any matter knowing that the omission makes the claim false or
misleading in a material particular.

14 Definitions

PART 3
PREFERENTIAL CLAIMS
For the purposes of this Part –
remuneration in respect of a period of holiday or of absence from work
through
sickness or other good cause must be treated as wages in respect of services
rendered to the company during that period
paid annual leave, in relation to a person, means all sums payable
to that person by the company that by or under any Act or any award,
agreement, or contract of service are payable to that person by the
company as holiday pay.

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577

15 First priority claims

The liquidator must first pay, in the order of priority in which they are
listed –
(a) The fees and expenses properly incurred by the liquidator in carrying out the duties and exercising the powers of the liquidator and the remuneration of the liquidator;
(b) The reasonable costs of a person who applied to the Court for an order that the company be put into liquidation, including the reasonable costs of a person appearing on the application whose costs are allowed by the Court;
(c) The actual out-of-pocket expenses necessarily incurred by a liquidation committee.

16 Second priority claims

(1) After paying the claims referred to in clause 15, the liquidator must
next pay the following claims;

Employees’ wages or salary

(a) Subject to subclause (2), all wages or salary of any employee,
whether or not earned wholly or in part by way of commission,
and whether payable for time or for piece work, in respect of services
rendered to the company during the 4 months before the
commencement of the liquidation;

Employees’ annual leave

(b) Subject to subclause (2), paid annual leave becoming payable to an
employee (or if the employee has died, to any other person in the
employee’s right) on the termination of the employment before or
by reason of the commencement of the liquidation;

Accident compensation

(c) Amounts due in respect of any compensation or liability for
compensation payable to an employee or to the dependents of an
employee that accrued before the commencement of the liquidation;

Amounts deducted by company from employees’ wages or salary

(d) Subject to subclause (2), amounts deducted by the company from
the wages or salary of an employee in order to satisfy obligations
of the employee;

Preferential claims under section 234

(e) Amounts that are preferential claims under section 234(2);

Superannuation contributions

(f) Any contributions payable by the company to a superannuation
scheme of an employee;

Priority payments under other enactments

(g) All sums that by any other enactment are required to be paid in
accordance with the priority established by this clause;
578 Niue Laws 2006 Vol 1

Workers’ compensation

(h) Unless the company is being liquidated merely for the purposes of
reconstruction or of amalgamation with another company, or unless
the company has at the commencement of the liquidation under
such a contract of insurance rights capable of being transferred to
and vested in the worker, all amounts due in respect of any workers
compensation or liability for workers compensation accrued before
the relevant date.
(2) The total sum to which priority is to be given under subclause (1)(a),
(b), (d), (e), or (f) must not, in the case of any 1 employee, exceed $3,000 or any
greater amount that is prescribed at the commencement of the liquidation.
(3) If a payment has been made to the following persons out of money
advanced by some person for that purpose, the person by whom the money was
advanced has, in a liquidation, the same right of priority in respect of the money
advanced as the employee, or other person receiving the payment in right of the
employee, would have if the payment had not been made –
(a) An employee of a company on account of wages or salary;
(b) Any such employee or, if the employee has died, to any other person
in the employee’s right, on account of holiday pay.

17 Third priority claims

After paying the sums referred to in clause 16, the liquidator must next pay
the following to the extent that the amount is for the time being unpaid to the
Financial Secretary or to the Collector of Customs, as the case may require;

Income tax

(a) Tax payable by the company;

Tax deductions

(b) Tax deductions made by the company in respect of the earnings of
employees of the company;

Non-resident withholding tax,

(c) Tax deducted by a company on behalf of an agent, absentee or non­
resident;

Customs and excise duty

(d) Duty payable within the meaning of the Customs Act 1966.

18 Ranking of claims in clauses 16 and 17

(1) The claims listed in each of clauses 16 and 17 –
(a) Rank equally among themselves and must be paid in full, unless
the assets are insufficient to meet them, in which case they abate in
equal proportions; and
(b) So far as the assets of the company available for payment of general
creditors are insufficient to meet them, have priority over the claims
of persons in respect of assets that are subject to a floating charge
and must be paid accordingly out of those assets.
(2) To the extent that the claims to which subclause (1) applies are paid out
of assets referred to in paragraph (b) of that subclause, the amount so paid is an
unsecured debt due by the company to the secured party.

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579

19 When landlord or other person has distrained on goods, etc

If a landlord or other person has distrained on goods or effects of the
company within the month before the commencement of the liquidation –
(a) The claims to which priority is given by this Part are a first charge
on the goods or effects so distrained on, or the proceeds from their
sale; but
(b) If any money is paid to a claimant under any such charge, the
landlord or other person has the same rights of priority as that
claimant.

20 Definitions

In this Part –
PART 4
MUTUAL CREDIT AND SET-OFF
related person includes a related company and includes a director of the company in liquidation
restricted period means –
(a) The period of 2 years before the date of commencement of the
liquidation together with the period commencing on that date and
ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court,
the period of 2 years before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date on which, and at
the time at which, the order of the Court was made; and
(c) The period of 2 years before the making of the application to the
Court together with the period commencing on the date of the
making of an application and ending on the date and at the time of
the commencement of the liquidation if –
(i) the application was made to the Court to put a company into
liquidation; and
(ii) after the making of the application to the Court a liquidator
was appointed under sections 214 or 215; and
(d) In the case of a liquidator appointed under section 188(1)(c), the
period of 6 months before the administration begins together with
the period commencing on that date and ending at the time the
liquidator is appointed
specified period means –
(a) the period of 6 months before the date of commencement of the
liquidation together with the period commencing on that date and
ending at the time at which the liquidator is appointed; and
(b) In the case of a company that was put into liquidation by the Court,
the period of 6 months before the making of the application to the
Court together with the period commencing on the date of the
making of that application and ending on the date on which, and at
the time at which, the order of the Court was made; and
(c) The period of 6 months before the making of the application to the
Court together with the period commencing on the date of the
making of an application and ending on the date and at the time of
the commencement of the liquidation if –
(i) the application was made to the Court to put a company into
liquidation; and
580 Niue Laws 2006 Vol 1
(ii) after the making of the application to the Court a liquidator was appointed under sections 214 or 215; and
(d) In the case of a liquidator appointed under section 188(1)(c), the period of 6 months before the administration begins together with the period commencing on that date and ending at the time the liquidator is appointed.

21 Mutual credit and set-off

If there have been mutual credits, mutual debts, or other mutual dealings
between a company and a person who seeks or, but for the operation of this clause,
would seek to have a claim admitted in the liquidation of the company –
(a) An account must be taken of what is due from the one party to the
other in respect of those credits, debts, or dealings; and
(b) An amount due from one party must be set off against an amount
due from the other party; and
(c) Only the balance of the account may be claimed in the liquidation,
or is payable to the company, as the case may be.

22 Proof for person who is not related person

Unless the person proves that, at the time of the transaction or assignment,
the person did not have reason to suspect that the company was unable to pay its
debts as they became due, a person who is not a related person is not entitled to
claim the benefit of a set-off arising from –
(a) A transaction made within the specified period, being a transaction
by which the person gave credit to the company or the company
gave credit to the person; or
(b) The assignment within the specified period to that person of a debt
owed by the company to another person.

23 Proof for person who is related person

Unless the related person proves that, at the time of the transaction or
assignment, the related person did not have reason to suspect that the company
was unable to pay its debts as they became due, the related person is not entitled
to claim the benefit of a set-off arising from –
(a) A transaction made within the restricted period, being a transaction
by which the related person gave credit to the company or the
company gave credit to the related person; or
(b) The assignment within the restricted period to that person of a debt
owed by the company to another person.

24 Exception for amounts paid or payable by shareholder

Clauses 21 to 23 do not apply to an amount paid or payable by a shareholder
or former shareholder –
(a) As the consideration, or part of the consideration, for the issue of a
share; or
(b) In satisfaction of a call in respect of an outstanding liability of the
shareholder made by the directors or by the liquidator.

Companies Act 2006

PART 5
MISCELLANEOUS
581

25 Interest on claims

(1) The amount of a claim may include interest up to the date of
commencement of the liquidation –
(a) At such rate as may be specified or contained in any contract that
makes provision for the payment of interest on that amount; or
(b) In the case of a judgment debt, at such rate as is payable on the
judgment debt.
(2) If any surplus assets remain after the payment of all admitted claims,
interest must be paid at the prescribed rate on those claims from the date of
commencement of the liquidation to the date on which each claim is paid, and if
the amount of the surplus assets is insufficient to pay interest in full on all claims,
payment must abate rateably among all claims.
(3) If any surplus assets remain after the payment of interest in accordance
with subclause (2), interest must be paid on all admitted claims referred to in
subclause (1) from the date of commencement of the liquidation to the date on
which the claim is paid at a rate equal to the excess between the prescribed rate
and the rate referred to in subclause (1)(a), as the case may be, and, if the amount
of the surplus assets is insufficient to pay interest in full on all claims, payment
must abate rateably among all claims.
(4) For the purposes of this clause, prescribed rate means the rate prescribed
in regulations made under this Act or, if no such rate is prescribed, the rate at
which interest is payable on money due under a judgment of the Court.

26 Trade discounts

A creditor making his or her claim must deduct all trade discounts that he
or she would otherwise have given if the company had not gone into liquidation.

27 Periodical payments

(1) When any payment (including rent) falls due at stated periods, and
liquidation commences at any time other than at the beginning of 1 of those periods,
the persons entitled to the payment may claim up to the date of commencement
of liquidation as if the payment accrued on a daily basis.
(2) Nothing in subclause (1) affects the right of the lessor of the property
to claim rent that accrues on or after the commencement of liquidation.

28 Employees’ claims

(1) A person may make a claim on behalf of all or a number of employees
of the company.
(2) A schedule setting out the names of the employees, and the amounts
due to each of them, must be attached to the claim.
(3) Any claim made in compliance with this regulation has the same effect
as if separate claims had been made by each of the employees.
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29 Notice to creditors to claim

(1) Subject to the provisions of the Act, and unless otherwise ordered by
the Court, the liquidator may fix a certain day, which must not be less than 10
working days from the date of the notice, on or before which the creditors of the
company are to make their claims, and to establish any priority their claims may
have under Part 3.
(2) The liquidator must give public notice of the day fixed in accordance
with subclause (1).

30 Failure to claim by day fixed for claims

(1) Subject to subclause (2), any creditor who fails to make a claim on or
before the day fixed in accordance with clause 29 will be excluded from the benefit
of any distribution made before his or her claim is made.
(2) A creditor who makes a claim after the day fixed in accordance with
clause 29 and whose claim is admitted is entitled to receive the benefit of any
distribution from which the creditor was previously excluded if any assets remain,
or, in the opinion of the liquidator, are likely to remain, available for distribution.

31 Failure to establish priority by day fixed for claims

(1) Subject to subclause (2), any creditor who fails to establish any priority
that the creditor ’s claim may have on or before the day fixed in accordance with
clause 29 must be excluded from objecting to any distribution made before the
priority of that claim is established.
(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 the creditor ’s claim after the
day fixed in accordance with clause 29 is entitled to receive the benefit of any
distribution from which the creditor was previously excluded (if any) if any assets
remain, or, in the opinion of the liquidator, are likely to remain, available for
distribution.

32 Dividends in respect of rejected claims

(1) If any creditor applies to the Court for an order reversing or modifying
the decision of a liquidator to reject the creditor ’s claim, the liquidator may in any
such case make provision for the dividend on the claim, and the probable cost of
the application in the event of the claim being admitted.
(2) If no notice of an application has been given within the time specified
in this Act or in regulations made under this Act for appeals to the Court from a
decision of the liquidator, the liquidator must exclude all claims that have been
rejected from participation in the dividend.

33 Costs of proceedings relating to liquidator’s decision on claim

If any creditor applies to the Court for an order reversing or modifying the
decision of a liquidator to reject the creditor ’s claim, the Court may, if it thinks
fit –
(a) Allow any costs of any creditor to be added to the creditor ’s claim;
(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;
(c) Order any costs to be paid by any party to the proceedings other
than the liquidator.
–––––––––––––––––––

Companies Act 2006

SCHEDULE 19
LIQUIDATION OF ASSETS OF OVERSEAS COMPANIES
583
s 290(1)

1 Modified application of subpart 3 of Part 9

Subpart 3 of Part 9 applies to the liquidation of the assets in Niue of an
overseas company, with the following modifications and exclusions –
(a) References to assets are to be taken as references to assets in Niue;
(b) References to a company are to be taken as references to an overseas
company;
(c) References to removal from the Niue register are to be taken as
references to ceasing to carry on business in Niue;
(d) The following provisions do not apply to such a liquidation;
(i) clause 6 of Schedule 13;
(ii) clauses 1 and 3 of Schedule 15;
(e) Clause 2 of Schedule 15 does not affect the tenure of directors of an
overseas company, but the overseas company and its directors cease
to have any powers, functions, or duties in relation to the company’s
assets in Niue, other than those required or permitted to be exercised
by subpart 3 of Part 9;
(f) Section 252 applies to such a liquidation, but instead of making the
statement required by subsection (1)(b)(iii) of that section, the
liquidator must state that the company has ceased to carry on
business in Niue and is ready to be removed from the overseas
register.

2 Rights of action not affected

Nothing in this Act excludes the right of a creditor of an overseas company
in relation to the assets of which a liquidator has been appointed –
(a) To bring proceedings outside Niue against the overseas company
in relation to a debt not claimed in the liquidation or the balance of
a debt remaining unpaid after the completion of a liquidation; or
(b) To bring an action in Niue in relation to the balance of a debt
remaining unpaid after the completion of a liquidation.
–––––––––––––––––––– SCHEDULE 20
[Spent]
–––––––––––––––––––– SCHEDULE 21
[Spent]

584 Niue Laws 2006 Vol 1