DOIA 2223 1328 C.A.of the family Mattheiss response letter.pdf

3 February 2023

Ref: DOIA 2223-1328

C. A. of the family Mattheiss
Email: [FYI request #21436 email]

Tēnā koe C. A. of the family Mattheiss

Thank you for your email of 16 December 2022 to the Ministry of Business, Innovation and Employment
(MBIE) requesting information under the Official Information Act 1982 (the OIA). Your email contains a
number of requests for information, which wil be dealt with by setting out your questions in italics and our
response below that.

At the outset, I would like to clarify and explain certain matters which overlap in your queries below.

MBIE’s role in relation to Companies, Charitable Trust Boards and Incorporated Societies

The Companies Office, which is a business unit of MBIE, operates statutory registers, which include the
registers of companies, charitable trust boards and incorporated societies. Each register is administered in
accordance with its own legislative requirements which are set out in the Companies Act 1993 (the CA), the
Incorporated Societies Act 1908 and the Charitable Trusts Act 1957 (the CTA).

For clarity, we will assume that your reference to profiles in the various questions below refers to an entity’s
information contained on the various registers maintained by the Companies Office.

Role of the Registrar in relation to Charitable Trust Boards

The role of the Registrar of Incorporated Societies under the CTA is restricted to registering charitable
trust board applications, amendments to trust deeds, changes of registered office addresses and
dissolutions of boards. He has no power under the CTA to inquire into a Board’s activities or operations.

Section 58 of the CTA gives the Attorney-General the power to examine and inquire into the condition
and management of all or any charities in New Zealand. The Attorney-General can be contacted at the
Crown Law Office in Wellington.

Charitable Trust Board Register v Charities Register

The CTA permits a charitable trust board to be established by individuals (trustees as a board) or by an
unincorporated society (society as a board).

The charities register is a different register which is overseen by Charities Services (part of the Department
of Internal Affairs). The entities registered on it include companies, incorporated charitable trust boards,
incorporated societies, unincorporated private trusts and other institutions or unincorporated entities that
are considered to be charitable under the Charities Act 2005 (the Charities Act). The role of Charities
Services, amongst other things, is to maintain and monitor charitable organisations in New Zealand,

promote public trust in charitable organisations, encourage best practice in governance and use of
resources, and provide advice on matters relating to charities.

Being a board incorporated under the CTA is not the same as being registered under the Charities Act.
Entities  registered  under  the  Charities  Act  have  “charitable  status”  which  makes  them  eligible  for
exemptions from income tax on al  or some of their income. If a charitable trust board is not registered
with Charities Services, it does not mean that it ceases to function or is no longer active – it just means that
it is carrying out its charitable activities without being a registered charitable entity under the Charities Act.

Responses to your questions

1.
I have used your Companies' website (. .) search menu to find that many companies/trust registered
in New Zealand advertise using different names publicly, which is not the same as their registered
company/trust name. Please inform me of who regulates these companies/trust under your ministry
to be sure that they are fol owing the Fair Trading Act 1986 and other related laws of New Zealand
and internationally, to hold current and valid information on their company/trust profiles to be
correct?

The Companies Office is not responsible for ensuring that companies/trusts comply with the Fair Trading
Act 1986. This falls within the jurisdiction of the Commerce Commission. The responsibility of ensuring that
current and valid information is held on the companies register and/or the charitable trusts register falls
on the director(s) and/or trustee(s) of the particular entity.

In relation to a company, the directors have a duty to update the companies register with regard to
information such as the registered office and address for service, the details of the directors and
shareholders, the company’s constitution (if it has one), the issue of shares and changes in shareholding,
the filing of the annual return, and applications for the removal of the company. If non-compliance comes
to the attention of the Registrar, then it is investigated by the Compliance Team and/or the Integrity and
Enforcement Team within the Companies Office.

In relation to a charitable trust board, the trustees have a duty under the CTA to keep certain information
up to date, including the trust board’s registered office address, changes to the trust board’s name and any
changes to the trust board’s trust deed or rules.

2.
I have recently experienced incorporated societies (3) being removed from your New Zealand
Companies' website but other incorporated societies remaining on there even when removed for a
very long time stil  today- why would these incorporated societies history be completely removed
from your Companies' website? The three incorporated societies include the fol owing- the Upper
Clutha River Guardians, Alpine Community Link and the Clutha Mata-Au River Parkway Group,
Incorporated Society, also known as the Clutha River Parkway Steering Group. The Upper Clutha River
Guardians and the Clutha Mata-Au River Parkway Group, Incorporated Society, were deregistered by
Charities Services.

Please be advised that information is not removed from the incorporated societies register where the
incorporated societies or charitable trust boards are dissolved. Some historical information and information
prior to computerisation of the incorporated societies register in the early 2000s may be held at Archives
New Zealand.
In relation to the two incorporated societies, Upper Clutha River Guardians Incorporated - 2279511 and
Clutha Mata-Au  River Parkway Group Incorporated -  1469066,  as advised  above, deregistration from
Charities Services does not mean that the incorporated society or charitable trust board has ceased to
operate. It means that it is no longer a registered charitable entity. The incorporated societies register

indicates that Upper Clutha River Guardians Incorporated was dissolved and removed from that register on
27 February 2013. Clutha Mata-Au River Parkway Group Incorporated  is currently registered on the
incorporated societies register and you can access documents for this incorporated society on the register.

We cannot locate any information for an incorporated society or charitable trust board called  Alpine
Community Link.
3.
By law, how long are you required to keep up incorporated societies on your New Zealand Companies'
website? When an incorporated society is deregistered by Charities Services, and then you are to
deregister them, how long does it take you to show their de-registration status? How long are you
required by law to keep the incorporated society listed as removed or deregistered?

Details about dissolved incorporated societies remain on the incorporated societies register after
dissolution. Records for incorporated societies that were dissolved before the early 2000s may be available
at Archives New Zealand. This information is retained there under the relevant Public Records legislation.

Charities Services sends lists of incorporated societies that they have deregistered from their register to
the Companies Office. Deregistration from the charities register does not necessarily mean the
incorporated society can be dissolved by the Registrar. It may continue to operate. Before dissolving an
incorporated society, the Registrar must be satisfied that the society is no longer carrying on its operations.

The details of an incorporated society that has been dissolved by the Registrar will remain on the register.
It is always possible that a dissolved society may apply to the Registrar to have their dissolution revoked at
any time in the future.

4.
I have seen registered companies/trusts on your Companies website (. .), whether they be charitable
or not, to have outdated information on them and not to include actual signatories on their
company's/trust's profile who are supposed to be active members. Can you please inform me of who
the person is at your ministry who oversees this sort of information? In other words, who monitors
your website to be sure that companies/trusts registered in New Zealand are fol owing the New
Zealand Acts, Laws and Bil s, to actually exist as a valid registered company/trust under your
ministry?

The Registrar of Companies and the Registrar of Incorporated Societies oversee the information that is on
the respective companies and charitable trust board registers. As stated above, it is the directors and
trustees who have a duty to ensure the information on the relevant register is accurate. In relation to the
holding of signatories – if there is no requirement in the relevant Act, then there is no need for such
information to be held on the register. Directors and shareholders in companies only provide their
signatures on consent forms when a company is first registered or when a new director is appointed and
on statutory documents that are required to be signed by directors and/or shareholders, such as
constitutions and financial statements.

Where company information may be inaccurate or out-of-date, and the Registrar is advised of this, the
company will be contacted to update its information on the register. The Registrar’s Integrity and
Enforcement Team may also make  enquiries  of  companies  and  directors  to  ensure  that  information
provided to the Registrar is accurate.

There is no obligation under the CTA for charitable trust boards to advise the Registrar of the names and
addresses of their trustees on an ongoing basis. The Registrar permits trust boards to do this online on a
voluntary basis,  so this is why you may see that some trust boards have the names of their trustees
recorded on the register and others do not.

5.
I have seen legal persons place their name on a company/trust profile on your website but not include
their signatory information of when they actually became a confirmed member to be able to verify
their actual legal involvement. Who is in-charge of monitoring this information at your ministry?

Whether or not signatory information is available on the respective registers is dependent on whether the
relevant Act requires this. Please see the response above for who monitors information provided to the
Companies Office.

6.
I have witnessed legal persons of company/trust profiles remove old documents on your website to
potentially hide factual or historical data of their members on their company/trust profile. Who
monitors this information on your website (. .) to be sure that companies/trusts are not making errors
or miscarriages or potentially committing acts of fraud or deceit to members of the public on their
company's/trust's profile?

Information uploaded on the respective registers cannot be removed by people, including members of the
public, unilaterally.

The CA permits the Registrar to correct or rectify the companies register but public advertising of intended
corrections or rectifications in the New Zealand Gazette must occur first. The Registrar must also be
satisfied that particular information has been wrongly entered in, or omitted from the register, before he
can undertake a correction or rectification.

If non-compliance occurs or allegations of fraud are made or comes to the attention of the relevant
Registrar, then it is investigated by the Compliance Team and/or the Integrity and Enforcement Team in
the Companies Office. You should note that fraud is a criminal offence so this activity is likely to be referred
to the New Zealand Police.

Please refer to the role of the Attorney-General set out earlier in this response to their role in examining
and enquiring into the condition and management of charities (including registered charitable trust
boards).

7.
Please inform me of how the Ministry of Economic Development monitors company/trust profiles on
your website? Who is in charge of this?

The Ministry of Economic Development no longer exists as it was merged with various other Ministries to
form the Ministry of Business, Innovation and Employment.

How the registers operate in terms of the col ection and monitoring of information has already been set
out above in response to question 4.

8.
Where can a member of the public request information for companies/trusts who have removed
information from their company/trust profile that can be evidenced as being on their profile before
removal? Who monitors this information at your ministry, please?

Please see the earlier response under question 6 about the correction and rectification process under
section 360A of the CA.

9.
Please inform me of who the person is at your ministry who monitors inactive companies/trusts on
your website. I see some companies/trusts on your website remaining inactive for a number of years
and stil being allowed to remain current on your website despite this. Who monitors these inactive
companies/trusts at your ministry on your website?

Details of removed companies and dissolved charitable trust boards will remain on their respective
registers. As a result of their removal or dissolution, they no longer exist as registered bodies corporate.
Please note that removed companies can be restored to the companies register, and dissolved charitable
trust boards can have their dissolutions revoked so that they can resume carrying on business or carrying
on their operations, as the case may be.

10.  When a charity has been deregistered on the Charities Services website, how long does it take your
ministry to receive this information and deregister them from your Companies' website (. .)? In the
past, I have witnessed charities that have been deregistered from the Charities Services website and
then fairly quickly removed from your Companies' website (. .). However, a charity in particular which
I am unable to mention in this request has stil  not been deregistered from your Companies' website
for nearly one year, although it has been deregistered from Charities Services. Can you please refer
me to the person at your ministry who is in-charge of investigating these types of matters when their
is potentially charity fraud involved as an indication of their de-registration?

Please see the response to question three above and to question eleven below.

11.  For acts of charity fraud by charitable trusts registered on your website, which government branches
does your ministry involve itself with for these sorts of investigations to take place?

The Companies Office is not involved in investigations of charity fraud. As fraud is a criminal offence,
investigations are likely to be conducted by the New Zealand Police and possibly by the Serious Fraud Office,
if necessary. If a charitable trust or a charitable trust board is registered with Charities Services, that office
may look at fraudulent activity in conjunction with the New Zealand Police and the Serious Fraud Office.
Under the CTA, the Attorney-General may also inquire into the condition and management of a charity.

12.  Please inform me of how your ministry regulates the names of persons being claimed as members of
charitable trusts. Does your ministry require legal names of persons to be used who make-up a
company/trust or do you accept non-legal names to register a company/trust?

The Companies Office does not undertake the verification of names of people at the time companies and
charitable trust boards are incorporated. While the CA and the CTA require legal names and addresses to
be provided at incorporation, there is no requirement in the legislation that these be verified. For
companies, section 365 of the CA permits the Registrar to require a person to confirm that information
provided to the Registrar is correct and if it is not, to require the person to correct it. If a correction is not
made, the Registrar may commence action to remove the company from the companies register. There is
no such power in the CTA.

13.  I know of a case where a nonlegal name was used and your ministry actually induced false
representation by legally validating their contracts using a non-legal name. Please inform me of who
is in-charge at your ministry of the legality of contracts and persons name used on contracts to be
legally valid when provided to your ministry to be processed for approval to obtain donor status and
benefits for charitable purposes in New Zealand?

Obtaining donor status and benefits for charitable purposes is not something that is monitored by the
Companies Office.
14.  Does your ministry require legal identifications to be used for these companies or trusts when they
submit their applications to you?

Please see the response to question 12 above.

15.  After 2012, your ministry for some reason stopped requiring charitable trusts to obtain charity status
through your agency before obtaining this status through Charities Services, which was a common
practice in the past. Can you please inform me of when this change was made by law and reference
the act in which this change has been confirmed by the New Zealand Government as effective?

As explained at the outset of this response, the Companies Office maintains the charitable trust board
register, which is completely separate from Charities Services. There is no requirement for charitable trust
boards registered under the CTA to be registered under the Charities Act.

16.  Please inform me of when a lawyer/barrister initially signs for company/trust under your ministry and
that lawyer/barrister stops being active within that company/trust, does your ministry allow them to
remain inactive? If so, how long?

The CA and the CTA do not require the Companies Office to undertake this type of monitoring.

17.  Is there a time period of a lawyer's inactivity for a company./trust that would prevent the lawyer who
initially signed-off on a company/trust to be unable to claim property for that company/trust in the
future? If so, please reference this period or law under your ministry and the act in which it was
decided by the New Zealand Government.

We have interpreted part of your question to be whether there is a defined period of time in which a lawyer
can act for a company or a charitable trust board. This would be something between the lawyer and the
company or charitable trust board as their client. When a company is wound up and removed from the
companies register, its property would be dealt with during the winding up process. If the company was
not wound up but simply removed from the register, its property would vest in the Crown automatically
under the CA by operation of law. If the company was later restored to the register, the property could re-
vest in the company. When a charitable trust board is wound up and dissolved, its property would be dealt
with in accordance with the provisions in its trust deed or rules. The property of a charitable trust board
may also be dealt with by way of schemes under Parts 3 and 4 of the CTA, but these are not administered
by the Companies Office and must be laid before the Attorney-General. A lawyer may assist a company or
a charitable trust board during the winding up process.

18.  Who at your ministry is in-charge of monitoring lawyers/barristers who initially sign for
companies/trusts to remain active members or not?

Please see the response to question 16.

If you wish to discuss any aspect of your request or this response, or if you require any further assistance,
please contact [email address].

You have the right to seek an investigation and review by the Ombudsman of this decision. Information
about how to make a complaint is available at www.ombudsman.parliament.nz or freephone 0800 802
602.

Nāku noa, nā

James Betton
Registry Operations Manager, Business Registries
Market Integrity