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New Zealand law explained for everyone

Companies Act 1993

Directors and their powers and duties

126: Meaning of director

You could also call this:

“Who counts as a director of a company”

In this law, a director of a company is not just someone with the title of director. It includes:

  • Anyone who does the job of a director, no matter what they’re called.

  • For some parts of the law, it also means:

    • Someone who tells a director or the board what to do.
    • Someone who controls powers that the board would usually have.
    • Someone the board gives their powers to.
    • Someone who tells any of these people what to do about their director duties.

A receiver is not counted as a director.

If shareholders have powers that the board would usually have, they might be treated as directors when using those powers.

If shareholders make decisions about the board’s powers, they might be treated as directors for those decisions.

These rules don’t apply to people who are just doing their professional job, like lawyers or accountants.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM320630.

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Part 8 Directors and their powers and duties

126Meaning of director

  1. In this Act, director, in relation to a company, includes—

  2. a person occupying the position of director of the company by whatever name called; and
    1. for the purposes of sections 131 to 141, 145 to 149, 291A to 293, 298, 299, 301, 318(1)(bb), 383, 385, 385AA, 386A to 386F, and clause 3(4)(b) of Schedule 7,—
      1. a person in accordance with whose directions or instructions a person referred to in paragraph (a) may be required or is accustomed to act; and
        1. a person in accordance with whose directions or instructions the board of the company may be required or is accustomed to act; and
          1. a person who exercises or who is entitled to exercise or who controls or who is entitled to control the exercise of powers which, apart from the constitution of the company, would fall to be exercised by the board; and
          2. for the purposes of sections 131 to 149, 291A to 293, 298, 299, 301, 318(1)(bb), 383, 385, 385AA, 386A to 386F, and clause 3(4)(b) of Schedule 7, a person to whom a power or duty of the board has been directly delegated by the board with that person's consent or acquiescence, or who exercises the power or duty with the consent or acquiescence of the board; and
            1. for the purposes of sections 145 to 149, and clause 3(4)(b) of Schedule 7, a person in accordance with whose directions or instructions a person referred to in paragraphs (a) to (c) may be required or is accustomed to act in respect of his or her duties and powers as a director.

              1. In this Act, director, in relation to a company, does not include a receiver.

              2. If the constitution of a company confers a power on shareholders which would otherwise fall to be exercised by the board, any shareholder who exercises that power or who takes part in deciding whether to exercise that power is deemed, in relation to the exercise of the power or any consideration concerning its exercise, to be a director for the purposes of sections 131 to 138.

              3. If the constitution of a company requires a director or the board to exercise or refrain from exercising a power in accordance with a decision or direction of shareholders, any shareholder who takes part in—

              4. the making of any decision that the power should or should not be exercised; or
                1. the making of any decision whether to give a direction,—
                    1. as the case may be, is deemed, in relation to making any such decision, to be a director for the purposes of sections 131 to 138.

                  1. Paragraphs (b) to (d) of subsection (1) do not include a person to the extent that the person acts only in a professional capacity.

                  Notes
                  • Section 126(1)(b): amended, on , by section 3 of the COVID-19 Response (Further Management Measures) Legislation Act 2020 (2020 No 13).
                  • Section 126(1)(b): amended, on , by section 37(1) of the Companies Amendment Act 2014 (2014 No 46).
                  • Section 126(1)(b): amended, on , by section 58 of the Companies Amendment Act 2014 (2014 No 46).
                  • Section 126(1)(b): amended, on , by section 36(1) of the Companies Amendment Act 2006 (2006 No 56).
                  • Section 126(1)(b): amended, on , by section 3(1) of the Companies Amendment Act 2004 (2004 No 10).
                  • Section 126(1)(b): amended, on , by section 9 of the Companies Act 1993 Amendment Act 2001 (2001 No 18).
                  • Section 126(1)(c): amended, on , by section 3 of the COVID-19 Response (Further Management Measures) Legislation Act 2020 (2020 No 13).
                  • Section 126(1)(c): amended, on , by section 37(2) of the Companies Amendment Act 2014 (2014 No 46).
                  • Section 126(1)(c): amended, on , by section 58 of the Companies Amendment Act 2014 (2014 No 46).
                  • Section 126(1)(c): amended, on , by section 36(2) of the Companies Amendment Act 2006 (2006 No 56).
                  • Section 126(1)(c): amended, on , by section 3(2) of the Companies Amendment Act 2004 (2004 No 10).
                  • Section 126(1)(c): amended, on , by section 9 of the Companies Act 1993 Amendment Act 2001 (2001 No 18).
                  • Section 126(1)(d): amended, on , by section 36(3) of the Companies Amendment Act 2006 (2006 No 56).
                  • Section 126(1)(d): amended, on , by section 3(3) of the Companies Amendment Act 2004 (2004 No 10).
                  • Section 126(1A): inserted, on , by section 16 of the Companies Act 1993 Amendment Act 1994 (1994 No 6).