Plain language law

New Zealand law explained for everyone

Companies Act 1993

Offences and penalties

386A: Director of failed company must not be director, etc, of phoenix company with same or substantially similar name

You could also call this:

“Failed company directors can't lead similarly named businesses for 5 years”

If you were a director of a company that failed, you can’t be involved with a new company that has the same or a very similar name for 5 years after your old company started to be closed down. This means you can’t:

  1. Be a director of the new company
  2. Help start or run the new company
  3. Be involved in running a business with the same or similar name as your old company

You can only do these things if a court says it’s okay, or if special rules allow it. These special rules are explained in other parts of the law.

If you break this rule, you’re committing a crime. If you’re found guilty, you’ll face the punishment described in another part of this law.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM323263.

Topics:
Business > Industry rules
Business > Fair trading
Crime and justice > Criminal law
Previous

386: Liability for contravening section 385 or section 385AA, or

“Consequences for ignoring company director ban notices”

Next

386B: Definitions for purpose of phoenix company provisions, or

“Explaining terms used for companies that restart after failing”

Part 21 Offences and penalties

386ADirector of failed company must not be director, etc, of phoenix company with same or substantially similar name

  1. Except with the permission of the court, or unless one of the exceptions in sections 386D to 386F applies, a director of a failed company must not, for a period of 5 years after the date of commencement of the liquidation of the failed company,—

  2. be a director of a phoenix company; or
    1. directly or indirectly be concerned in or take part in the promotion, formation, or management of a phoenix company; or
      1. directly or indirectly be concerned in or take part in the carrying on of a business that has the same name as the failed company's pre-liquidation name or a similar name.

        1. A person who contravenes subsection (1) commits an offence and is liable on conviction to the penalty set out in section 373(4).

        Compare
        • Insolvency Act 1986 s 216 (UK)
        Notes
        • Section 386A: inserted, on , by section 35 of the Companies Amendment Act 2006 (2006 No 56).
        • Section 386A(2): amended, on , by section 413 of the Criminal Procedure Act 2011 (2011 No 81).