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Financial Markets Authority Act 2011

General information-gathering and enforcement powers - FMA may exercise person’s right of action

35: Requirements for FMA exercising person’s right of action

You could also call this:

“Rules for when the FMA can start or take over a legal case for someone else”

The Financial Markets Authority (FMA) can start legal actions on behalf of someone else, but there are rules they must follow. If the person hasn’t started their own legal action yet, the FMA needs to tell them in writing that they plan to do so. After that, the FMA must wait 30 working days. During this time, if the person doesn’t start their own legal action or tell the FMA in writing that they don’t want the FMA to act, then the FMA can go ahead.

The FMA can start the legal action sooner if the person tells them in writing that it’s okay. This means the FMA doesn’t have to wait for the 30 working days to pass.

If a legal action has already started, the FMA can take it over only if the person agrees in writing or if the High Court says it’s okay. When the FMA takes over a case, they might need to ask the High Court for an order to help make the takeover happen smoothly.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3231717.

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34: FMA may exercise person’s right of action, or

"FMA can take legal action for someone else to protect the public"

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36: High Court may grant leave in certain circumstances, or

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Part 3 General information-gathering and enforcement powers
FMA may exercise person’s right of action

35Requirements for FMA exercising person’s right of action

  1. The FMA may commence proceedings under section 34(1)(a) without the leave of the High Court only if—

  2. person A has not yet commenced proceedings in respect of the matter; and
    1. the FMA serves written notice on person A of its intention to commence proceedings; and
      1. within 30 working days of the FMA giving that notice, person A does not—
        1. commence proceedings; or
          1. give written notice to the FMA that it objects to the FMA commencing the proceedings.

          2. However, the FMA may commence proceedings under section 34(1)(a) before the 30-working-day period referred to in subsection (1)(c) expires (without the leave of the High Court) if person A gives written notice to the FMA that he, she, or it consents to the FMA commencing the proceedings.

          3. The FMA may exercise a power under section 34(1)(b) only if—

          4. person A gives written notice to the FMA that he, she, or it consents to the FMA taking over the proceedings (in which case the High Court may, on an application from the FMA, make an order under section 38 to facilitate the takeover); or
            1. the leave of the High Court is given under section 36.