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High Court looks at ‘shadow directors’, ‘de facto directors’ and reckless trading

March 28, 2013 by SPCS Leave a Comment

Shadow directors, de facto directors and duties not to trade recklessly

A recent decision of the High Court, Delegat v Norman [2012] NZHC 2358 provides a useful illustration of the application of the following Companies Act 1993 provisions:

  • when a person will be deemed to be the director of a company as either a ‘shadow director’ or a ‘de facto director’ under section 126 of the Act; and
  • when a director will be in breach of the duties relating to reckless trading and incurring obligations under sections 135 and 136 of the Act, or be in breach of the duty to act in good faith and in the best interests of the company (under section 131) or the duty to exercise the care, diligence and skill of a reasonable director (under section 137), particularly where a company is of doubtful solvency.
  • For analysis see Company Law in the Courts – Issue No. 19 of Corporate Reporter, Bell Gully’s regular round-up of corporate and general commercial matters (27 March 2013)
  • http://www.bellgully.co.nz/newsletters/corporate_reporter/27mar13.asp

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Filed Under: Enforcement Tagged With: 'de facto director', 'shadow director', reckless trading

Bylaw hopes to ban Steve Crow’s Boobs on Bikes – Sunlive

March 21, 2013 by SPCS Leave a Comment

Sunlive News: 21 March 2013: Tauranga City Council’s special bylaw aimed at banning topless women riding through town on motorbikes was passed this week.

The changes to Tauranga’s Street Use and Public Places Bylaw were called for after promoter Steve Crow rode over the previous one when he brought the Boobs on Bikes parade to Tauranga in August 2011.

Councillors attempted to stop the parade by denying a permit, but were unable to as under the old bylaw a parade could only be halted due to traffic management issues.

Claims that the parade is offensive are ineffectual because the New Zealand High Court has ruled that it is not an offence for a woman to bare her breasts in public.

The revamped section 19 of the bylaw still uses ‘offensive’ as a reason to ban a parade, but it has gone a step further.

Under the changes council can refuse permission if the parade gives rise to some form of public disorder, for example, whether viewed objectively it may have a reasonable likelihood of dissuading others from enjoying their right to use the public place by entering or remaining in it.

In other words, if the council staff think some people might want to stay away from the city while the parade goes past, or because of any other assembly in town, then that is a reason to ban it.

A parade can also now be banned if council reasonably believes the activity will unreasonably impede pedestrian or vehicular traffic access to or along any public place or to any shops or premises.

“We will probably end up in court anyway, but we will have some grounds,” says corporate solicitor Joanne Gread.

Source: Article by Andrew Campbell

Thursday 21st Mar, 2013

http://www.sunlive.co.nz/news/40678-bylaw-hopes-to-ban-boobs-on-bikes.html

Earlier story

Wednesday 13th June 2012

http://www.sunlive.co.nz/news/26803-antiboob-rule-passed.html

________________________

On October 12th, 2008, former ACT Part MP Stephen Franks wrote on his blog on the Subject “Boobs on Bikes”

How will Morning Report reflect candidate comments on Steve Crow’s plan to run his Boobs on Bikes parade in Wellington on election day?

When Radio NZ called this evening I found myself resenting the attention to Crow’s stunt, and wanting to find some way to make the issue so boring that RNZ would drop the item. Before calling RNZ back I wondered whether my instinct was just envy, prompted by the lack of RNZ interest in what seem to me more important questions facing Wellington voters.

I felt my resentment was not prudery, because I could not imaging myself being offended by the parade, even if it seems tawdry. Pictures of the Auckland parade make the crowds seem curious but shortchanged more than anything else.

The Radio NZ interest shows that Crow will attract enough controversy to mix with titillation to get his crowds. I’d be very surprised if the Wellington City Council could stop the parade. I’m not sure that they should be free to stop it. 

So why would I prefer Crow to fail?

I think it is because exploitation of the power to cause offence is such a cheap tactic, and because it cheapens those whose reactions make it work, yet if they do not react their values are cheapened. 

Many things cause offense to some section of our community that do not offend others. For example some Christians are deeply offended by blasphemy. Some conscience stricken liberals are upset by ethnic stereotype jokes. Some Maori are put off by people sitting on tables where food is served. None of those behaviours would upset me, except in one circumstance – that is where there are people present who do find them offensive.

In that case I  feel embarrassed in anticipation of the rudeness shown by causing such offense, even where I can not feel the underlying offense.

I think we should feel vicarious offense on behalf of our fellows, where the offense is pointless, and able to be avoided with simple good manners. A civilised society has social pressures to sustain such manners. Causing pointless offence should have a cost that outweighs the benefits from challenging a taboo to gain notoriety for its own sake.

Succcess for Steve Crow’s stunt weakens those social sanctions. His parade will be offensive to some sincere people. Crow’s cause is Crow’s mercenary interest. And so, because he is likely to benefit from the media interest, and the portrayal of at least some of those who will be offended as fuddy-duddy, I hope that he falls on his face, without much expectation that it will happen.

I covered this briefly with Radio NZ. I wonder how much of this angle will be in their item in the morning?

Source:

http://www.stephenfranks.co.nz/boobs-on-bikes/

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Filed Under: Censorship, Enforcement, Pornography Tagged With: Boobs on Bikes, bylaw, Stephen Franks, Steve Crow, Tauranga City Council

Hohepa Morehu-Barlow: Kiwi fraudster jailed for defrauding Queensland Government of A$16 (NZ$20M)

March 20, 2013 by SPCS Leave a Comment

A flamboyant Kiwi fraudster who defrauded the Queensland Government of A$16 million ($20 million) has been sentenced to 14 years in an Australian prison. Former Brisbane socialite Hohepa Morehu-Barlow, who grew up in Thames, has admitted systematically stealing the money while working for Queensland Health.

Morehu-Barlow, who was also known as Joel Barlow, pleaded guilty to eight charges relating to fraud and drug offences when he appeared in the Brisbane District Court today.

His offending, the largest ever fraud against the state government, funded an extravagant lifestyle that made Morehu-Barlow one of Brisbane’s fashionable high flyers.

For more see:

http://www.odt.co.nz/news/world/australia/250045/kiwi-pleads-guilty-20m-fraud

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Filed Under: Crime, Enforcement Tagged With: Fraud, fraudster, Hohepa Morehu-Barlow

Thames man pleads guilty to defrauding Queensland health department of A$16.6 million (NZ$20.91)

March 19, 2013 by SPCS Leave a Comment

A former Thames man who fleeced A$16.6 million ($20.91m) from Queensland taxpayers forged documents carrying the health minister’s name, a court has been told.

A sentencing hearing for Hohepa Morehu-Barlow, also know as Joel, has also been told he had previously faced court for stealing from an employer in New Zealand.

[Source: AAP – Stuff News report 19 March 2012]

The 37-year-old pleaded guilty in the Brisbane District Court today to eight offences including aggravated fraud as an employee, forgery, uttering a forged document and possessing drugs.

The charges relate to him defrauding the Queensland health department of millions of dollars when he worked there between 2007 and 2011.

He ripped off taxpayers while pretending to be a Tahitian prince, and led an extravagant lifestyle while showering lavish gifts on friends and colleagues.

Prosecutor Todd Fuller SC told the court Morehu-Barlow had previously appeared in court for stealing from an employer across the Tasman.

In 1999, he received an eight-month non-residential sentence in New Zealand for a charge of stealing around $32,000 as a servant.

He received a similar sentence at the same time for using a document for fraudulent advantage.

No details were given as to the identity of his employer at the time.

Fuller said the offending was in a similar vein to his latest offences, which involved him approving payments from Queensland Health.

Most payments were siphoned from a special minister’s fund that was designed to provide revenue to charities.

Morehu-Barlow forged a document purporting to be from former health minister Paul Lucas approving a charitable grant, and then transferred the cash to himself, the court heard.

He also used other official documents for his own fraudulent activity.

The fraudulent transactions increased in size until he approved an A$11 million payment to himself, which had purportedly been approved for a university dental scheme.

The hearing continues.

Source: AAP dated 19 March 2013

See: Thames man admits Queensland health service fraud

http://www.stuff.co.nz/waikato-times/news/8445189/Thames-man-admits-Queensland-health-service-fraud

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Filed Under: Crime, Enforcement Tagged With: aggravated fraud, forgery, fraudulent transactions, Hohepa Morehu-Barlow, Queensland health department, Queensland taxpayers

New defender of NZ business reputation

March 12, 2013 by SPCS Leave a Comment

The new Registrar of Companies has signalled a crackdown on dodgy shell companies that take advantage of New Zealand’s reputation for clean business.

Low-profile public servant Mandy McDonald took over from the long-serving Neville Harris earlier this month and in one of her first speaking engagements, at the Corporate Registries Forum in Auckland, said New Zealand had to be vigilant in protecting its reputation.

“Over the past decade we have taken pride in our consistently high World Bank rankings for ease of starting a business and ease of doing business. For a small and distant nation, this remains an important aspect of attracting foreign investment,” she said.

“There have been cases of the misuse of New Zealand-registered companies, leveraging off the good reputation that the New Zealand corporate regulatory regime enjoys internationally.”

McDonald said the Companies and Limited Partnership Bill, awaiting its third reading in Parliament, would give regulators more teeth to investigate suspect companies. The Bill would also require all New Zealand-registered companies to reveal their ultimate owners and have a local director who would be required to disclose their date and place of birth.

“The Bill provides the New Zealand corporate registries system with effective tools to maintain its integrity and deal with those who seek to take advantage of it,” she said.

The forum, a gathering of company registries from 41 countries, finishes on Friday.

McDonald has previously served as general manager of the Insolvency and Trustee Service and has worked as a deputy secretary in the ministries of health, justice and defence.

During his 24-year tenure, her predecessor Harris oversaw the transition of the Companies Office online, a process that began in 1996, and the implementation of the Personal Properties Securities Register in 2002.

McDonald also became the Official Assignee and the Commissioner of Patents, Trademarks, Designs and Plant Variety Types.

Source: Fairfax NZ News. Story by Matt Nippert. Published 12/03/13

http://www.stuff.co.nz/business/industries/8415283/New-defender-of-NZ-business-reputation

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Filed Under: Enforcement Tagged With: dodgy shell companies, Mandy McDonald, Registrar of Companies, shell companies

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