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Trustee Companies Amendment Act 1987 (No. 30 of 1987)

COOK ISLANDS

TRUSTEE COMPANIES AMENDMENT ACT 1987

ANALYSIS

Title

1. Short Title
2. Interpretation
3. Application of this Act

4. Restriction on acting as a trustee company

5. Application for provisional registration as a trustee company
6. New sections
7. Registration fee
8. Publication in the Gazette
9. Cancellation of registration
10. Temporary continuation for winding up
11. Transfer of shares
12. Share capital
13. Transitional

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1987, No. 30

An Act to amend the Trustee Companies Act 1981-82

(21 December 1987

BE IT ENACTED by the Parliament of the Cook Islands, in Session assembled, and by the authority of the same, as follows:

1. Short Title - This Act may be cited as the Trustee Companies Amendment Act 1987 and shall be read together with and deemed part of the Trustee Companies Act 1981-82 (hereinafter referred to as "the principal Act").

2. Interpretation - Section 2 of the principal Act is amended -

(a) By inserting after the definition of the term "Monetary Board" the following definition -

"Provisionally registered" means provisionally registered as a trustee company pursuant to section 5C (as inserted in the principal Act by section 6 of this Act) and "provisional registration" shall have a corresponding meaning;" and

(b) By deleting the definition of the term "Registered" and substituting the following definition -

"means registered as a trustee company pursuant to section 5E" (as inserted in the principal Act by section 6 of this Act) and "registration" shall have a corresponding meaning;" and

(c) By deleting the definition of the term "Registrar".

3. Application of this Act - Section 3 of the principal Act is repealed and the following section substituted -

"3. Application of this Act - The provisional registration of a company as a trustee company under section 5C or the registration of a company under section 5E as a trustee company shall not relieve that company from compliance with the provisions of the Companies Act 1970-71."

4. Restriction on acting as a trustee company - Section 4 of the principal Act is amended by deleting the word "registered" and substituting the words "either provisionally registered under section 5C or registered under section 5E."

5. Application for provisional registration as a trustee company - Section 5 of the principal Act is repealed and the following substituted -

"5. Application for provisional registration as a trustee company - (1) A company that is incorporated pursuant to the provisions of the Companies Act 1970-71 may make application to the Board for provisional registration to carry on business as a trustee company and upon application shall pay to the Board such fee and in such manner as may be prescribed by regulation.

(2) There may be prescribed from time to time such forms and declarations as may be required for the purposes of this section and the Board may, in addition to the information in such forms and declarations require the applicant to provide such further or other information as the Board in its discretion may require.

(3) There shall be provided to the Board all agreements affecting the management, shareholding, profit sharing or control of the applicant, and notwithstanding that such agreements may not be in existence at the date of application to the Board, all such agreements shall be provided to the Board upon their coming into existence during the period for which the applicant may be provisionally registered."

6. New sections - The principal Act is amended by inserting after section 5 (as amended by this Act) the following new sections -

"5A Board to refer applications to Advisory Committee - (1) Upon receipt of an application pursuant to section 5 the Board shall refer the application either in whole or in part as the Board may decide to the Advisory Committee referred to in subsection (2); Provided that the Board shall not disclose to any member appointed pursuant to paragraph (d) of subsection (2) the details of information provided to the Board pursuant to paragraph (d) of subsection (3) of section 5B.

(2) There shall be an Advisory Committee of the Board which shall have the function of receiving applications referred to it by the Board and the power to make recommendations to the Board in respect of such applications.

(3) The Advisory Committee shall consist of -

(a) The Chairman of the Board or his representative;

(b) The Solicitor-General;

(c) The Financial Secretary;

(d) Two representatives of trust companies registered pursuant to the provisions of section 5E, nominated by those trust companies.

5B. Applicant to satisfy criteria - (1) No application shall be granted by the Board unless the Board, after taking into account the recommendations of the Advisory Committee, is satisfied that the applicant complies with those matters set out in the following subsections.

(2) Where 75 per cent or more of the legal and beneficial ownership of the share capital of the applicant is vested in Cook Islanders or permanent residents, those persons in whom the total share capital is vested and the officers of the applicant shall possess the required professional qualifications expertise competence and integrity to enable the applicant to carry on business in the Cook Islands as a trustee company.

(3) Where more than 25 per cent of the legal or beneficial ownership of the share capital of the applicant is vested in persons other than Cook Islanders or permanent residents those persons in whom the total share capital is vested, the officers of the applicant and the applicant (as the case may be) shall satisfy the following -

(a) Each person in whom share capital is vested (whether legal or equitable) and every officer shall have had substantial previous experience in the nature of carrying on business as defined in section 2;

(b) Each shareholder and officer shall be of good character and standing;

(c) The applicant shall be able to commence carrying on business as a trustee company within 3 months of provisional registration under section 5C;

(d) The applicant shall disclose particulars to the Board of the nature of the business to be transacted by the applicant the volume of such business and the applicant's proposals to expand such business to markets in geographical areas other than those adequately served by existing trustee companies;

(e) The administration and management of the applicant's business shall occur within the Cook Islands;

(f) The persons to be employed by the applicant shall be of such number and have such professional qualifications competence and experience as are necessary for the applicant to carry on business as a trustee company;

(g) The business of the applicant shall not be detrimental to the interests of the Cook Islands;

(h) The applicant shall have sufficient financial means as will enable the applicant to carry on business as a trustee company;

(4) For the purposes of this section -

(a) Cook Islander, means a person belonging to that part of the Polynesian race indigenous to the Cook Islands and includes a person descended from a Cook Islander;

(b) Permanent resident, means a person who has been granted a certificate conferring on him the status of a permanent resident pursuant to the Entry Residence and Departure Act 1971-72.

5C. Registration to be provisional - (1) Every application pursuant to section 5 for provisional registration of a company as a trustee company shall, if granted, be granted provisionally for a period of 2 years from the date of provisional registration.

(2) The Board may grant provisional registration upon such reasonable terms and conditions (other than the payment of share capital) as it thinks fit.

(3) No company shall be entitled as of right to be provisionally registered and the Board may grant or reject any application.

5D. Board may revoke provisional registration - (1) The Board may at any time upon the receipt of any complaint or on its own motion revoke the provisional registration of a trustee company where the Board is of the opinion that the company -

(a) Has contravened or failed to comply with any condition or term of its provisional registration; or

(b) Is in breach of any of the provisions of this Act; or

(c) Has contravened any other Act which imposes duties or obligations upon it; or

(d) Has, or any of its officers have in the course of their duties, committed a criminal offence; or

(e) Has failed to satisfy or continue to satisfy any of the matters set out in subsection (3) of section 5B; or

(f) Has failed to carry on business as a trustee company in accordance with information supplied by the company or its officers to the Board; or

(g) Has failed to disclose such information as may be required under this Act.

(2) The Board shall not revoke the provisional registration of a trustee company except on the grounds referred to in paragraphs (a) to (g) of subsection (1), and shall where provisional registration is revoked notify the trustee company of the reasons therefor.

(3) Where a company that is provisionally registered is dissatisfied with the decision of the Board that company may make application to the High Court to vary or annul that decision and upon such application the High Court may confirm vary or annul the decision of the Board.

(4) Where pursuant to subsection (1) the Board revokes the provisional registration of a trustee company the company shall subject to section 9 (as inserted in the principal Act by section 10 of this Act) cease to carry on business as a trustee company.

5E. Expiry of provisional registration - (1) If the Board has not already revoked the provisional registration of a trustee company pursuant to section 5D, that company may upon the expiry of 2 years from the date of its provisional registration, make application to the Board, to be registered as a trustee company.

(2) The Board shall, upon receipt of an application pursuant to subsection (1), register that company as a trustee company."

7. Registration fee - Section 6 of the principal Act is repealed and the following section substituted -

"6. Annual fee - Every company that is provisionally registered or registered by the Board shall pay to the Board such fee in respect of each year of provisional registration or registration as may be prescribed by regulation."

8. Publication in the Gazette - Section 7 of the principal Act is amended by inserting after the words "of any company" the words "provisionally registered or".

9. Cancellation of registration - Section 8 of the principal Act is repealed and the following section substituted -

"8. Revocation of registration - (1) If the Board is of the opinion that a trustee company registered pursuant to section 5E -

(a) is in breach of any of the provisions of this Act; or

(b) has contravened any other Act which imposes duties or obligations upon it; or

(c) has committed a criminal offence,

and the Board considers that, having regard to the nature of the contravention, failure, or offence it is undesirable that the company should continue to be registered, it shall notify the company of its opinion and of the reasons therefor and shall require the company to make representations within a specified period being not less than 28 days, as to why the company should continue to be so registered.

(2) On receipt of any representations made under subsection (1) and after due consideration of those representations or, on expiry of the prescribed period if no such representations are made, the Board shall decide whether -

(a) to revoke the registration of the trustee company; or

(b) to take no further action; or

(c) to issue a rebuke to the trustee company.

(3) Where the Board decides to revoke the registration of a trustee company under subsection (2) (a) then -

(a) the Board shall inform the trustee company of its decision and of the reasons therefor; and

(b) the trustee company, not later than 31 days after being informed of the Board's decision, may appeal to the Court which may confirm, vary or reverse the decision of the Board.

(4) Where the Court has confirmed a decision to revoke the registration of a trustee company under subsection (3)(b), or where a trustee company has been informed of the Board's decision to revoke its registration and has not appealed within the time prescribed in that subsection, the Board shall notify that revocation in the Cook Islands Gazette, and the revocation, subject to section 9 (as inserted in the principal Act by section 10) shall take effect from the date specified in that notice.".

10. Temporary continuation for winding up - Section 9 of the principal Act is repealed and the following section substituted -

"9. Continuation of business where registration revoked (1) The Board in its discretion may fix a date being a date not less than 3 months from the date of its decision to revoke the provisional registration or registration of a company as a trustee company for the purpose of enabling the company upon the revocation of such provisional registration or registration to wind up its affairs, and any such date shall be notified to the company and be published in the Gazette.

(2) Upon receipt of any notice of revocation, a company shall not carry on business as a trustee company except insofar as is necessary for the company to wind up its affairs within the period so specified in the notice.".

11. Transfer of shares - Section 10 of the principal Act is repealed and the following section substituted -

"10. Transfer or increase of shares - (1) Any -

(a) Transfer of shares (whether legal or equitable) in a trustee company, whether provisionally registered or registered;

(b) Increase in share capital of a trustee company, whether provisionally registered or registered, subscribed to -

(i) By a person other than an existing shareholder (whether in law or equity) either in whole or in part; or

(ii) By existing shareholders other than in proportion to and upon the same terms, conditions and rights as their existing shareholding,

shall not be valid or of any effect unless upon application to the Board the Board's approval is first obtained.

(2) Every application made pursuant to subsection (1) shall be referred by the Board to the Advisory Committee for its recommendation.

(3) The Board in considering whether its approval should be granted and the Advisory Committee in making recommendations to the Board, -

(a) In the case of a legal and beneficial transferee or a legal and beneficial subscriber who is a Cook Islander or permanent resident, shall ensure that the provisions of section 5B (2) are satisfied;

(b) In the case of a legal or beneficial transferee or a legal or beneficial subscriber who is not a Cook Islander or permanent resident, shall ensure that the provisions of section 15B (3), insofar as they may be applicable are satisfied.

(4) The Board may approve or reject any application and if approved, may impose such terms and conditions upon the transferee or subscriber (as the case may be) as to the performance of the transferee or subscriber in the carrying on of business as the Board may in its discretion determine:

Provided that approval by the Board pursuant to this subsection shall not be unreasonably withheld in the case of a transferee or subscriber who satisfies the relevant provisions of section 5B (2) or section 5B (3) as the case may be.

(5) For the purposes of subsection (1), any -

(a) issue of shares or other securities; or

(b) sale transfer or other disposition of shares; or

(c) change in the Articles of Association or governing rules; or

(d) matter or thing,

having the effect of altering the effective ownership or control of any company which has any direct or indirect legal or beneficial interest in a trustee company (whether provisionally registered or registered) shall be deemed to be a transfer of shares in that trustee company.

(6) For the purpose of this section -

(a) Cook Islander means a person belonging to that part of the Polynesian race indigenous to the Cook Islands and includes a person descended from a Cook Islander;

(b) Permanent resident means a person who has been granted a certificate conferring on him the status of a permanent resident pursuant to the Entry Residence and Departure Act 1971-72."

12. Share capital - The principal Act is amended by inserting after section 10 (as inserted by section 11 of this Act) the following section -

"10A. Share capital - Every company making application pursuant to section 5 to be provisionally registered as a trustee company shall have a share capital of not less than $250,000.".

13. Transitional - (1) Every company, which on the date of coming into force of this Act, was registered as a trustee company shall be deemed to have been registered as a trustee company pursuant to the provisions of section 5E of this Act.

(2) The provisions of this Act insofar as they may be applied shall have application to a company deemed to be registered as a trustee company pursuant to subsection (l) in respect of that company's dealings after the date of coming into force of this Act.

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This Act is administered by the Cook Islands Monetary Board