Securities Act (Carlin Enterprises Limited and The Styx Mill Country Club Incorporated) Exemption Notice 2005

  • expired
  • Securities Act (Carlin Enterprises Limited and The Styx Mill Country Club Incorporated) Exemption Notice 2005: expired, on 31 January 2010, by clause 3.

Reprint
as at 31 January 2010

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Securities Act (Carlin Enterprises Limited and The Styx Mill Country Club Incorporated) Exemption Notice 2005

(SR 2005/2)

  • Securities Act (Carlin Enterprises Limited and The Styx Mill Country Club Incorporated) Exemption Notice 2005: expired, on 31 January 2010, by clause 3.


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This notice is administered by the Securities Commission.


Pursuant to the Securities Act 1978, the Securities Commission gives the following notice (to which is appended a statement of reasons of the Securities Commission).

Notice

1 Title
  • This notice is the Securities Act (Carlin Enterprises Limited and The Styx Mill Country Club Incorporated) Exemption Notice 2005.

2 Commencement
  • This notice comes into force on the day after the date of its notification in the Gazette.

3 Expiry
  • This notice expires on 31 January 2010.

4 Interpretation
  • (1) In this notice, unless the context otherwise requires,—

    Act means the Securities Act 1978

    communal facilities

    • (a) means the land within the development designated by the developer or the society for use by the owners or certain classes of owners of residential properties; and

    • (b) includes chattels, fixtures, and fittings used, or intended, adopted, or designed for use, in connection with the use of the land by those owners; and

    developer

    • (a) means Carlin Enterprises Limited; and

    • (b) includes Kevin David Carlin, the sole director of Carlin Enterprises Limited, as promoter and manager of the development

    development means the subdivision of land contained in Deposited Plan 325710 (but excluding Lot 602) into residential properties

    excluded facility means the tennis court more particularly described as an estate in fee simple in that piece of land containing 1 106 m2 more or less, being Lot 1001 on the developer’s scheme plan of subdivision (Plan A) to be comprised and described in Certificate of Title 157418 (which title is to be issued on the subdivision of Lot 604, Deposited Plan 325710)

    lease, in relation to the lease by the society of communal facilities in the development, means lease under a memorandum of lease registered under the Land Transfer Act 1952

    Regulations means the Securities Regulations 1983

    residential property means a residential property for which a certificate of title has been or will be issued, or for which a computer register has been or will be created,—

    rules means the rules of the society

    sale agreement means an agreement for the sale of a residential property in the development

    society means The Styx Mill Country Club Incorporated, a society incorporated under the Incorporated Societies Act 1908 that—

    • (a) owns, or will own, the communal facilities in the development; or

    • (b) leases, or will lease, the communal facilities in the development

    specified security means a participatory security in the form of membership of the society that confers rights to participate in the ownership and use of all or part of the communal facilities in the development

    undeveloped land means that piece of land containing 4.447 ha more or less, being Lot 604, Deposited Plan 325710.

    (2) Any term or expression that is defined in the Act or the Regulations and used, but not defined, in this notice has the same meaning as in the Act or the Regulations.

5 Exemptions
  • The developer, the society, and every person acting on behalf of either the developer or the society, are exempted from sections 33(3), 37, 37A, 38A, and 54 of the Act and from the Regulations (except regulation 8) in respect of specified securities of which the developer or the society is an issuer.

6 Conditions of exemptions
  • (1) The exemptions in clause 5 are subject to the following conditions:

    • (a) the developer has supplied to each subscriber for specified securities, before subscription, a copy of each of the following documents:

      • (i) the rules (including a copy of any agreement for the management of the society’s affairs):

      • (ii) a specimen of any deed or agreement providing for the transfer of communal facilities from the developer to the society:

      • (iii) a specimen of the sale agreement:

      • (iv) a specimen of any lease agreement for communal facilities; and

    • (b) the specified securities are subscribed for by each subscriber entering into a sale agreement with the developer; and

    • (c) deposit moneys paid by a subscriber for specified securities are held in any of the following trust accounts until the sale agreement becomes unconditional:

    • (d) no settlement of a sale agreement is completed until,—

      • (i) if the developer represents or agrees that communal facilities will be held by the society, the communal facilities are owned or leased by the society; and

      • (ii) if land is included in the communal facilities, the society’s interest in that land is registered on a certificate of title, or computer register, under the Land Transfer Act 1952 or the society holds a certificate of title for a stratum estate under the Unit Titles Act 1972 for that land; and

    • (e) if communal facilities are leased, or to be leased, by the society,—

      • (i) the communal facilities are owned, or to be owned, by subscribers for specified securities; and

      • (ii) interests in the communal facilities can only be purchased with a purchase of residential property; and

    • (f) in respect of the excluded facility,—

      • (i) the developer has executed in favour of the society a deed of transfer; and

      • (ii) it is a term of the offer that the deed of transfer is registered immediately after the subdivision of the undeveloped land and the issue of a separate certificate of title, or the creation of a computer register, for an estate in fee simple in respect of the land on which the excluded facility is to be situated; and

      • (iii) it is a term of the offer that the developer provides the deed of transfer to the society; and

    • (g) it is a term of the offer that the developer provides to a subscriber or a prospective purchaser of residential property, within 5 working days after receiving a request, a copy of the most recent financial statements of the society; and

    • (h) it is a term of the offer that the financial statements of the society are audited annually and distributed to members of the society as soon as is reasonably practicable after each audit is completed and in any event, no later than 5 months after the end of each accounting period of the society (except for the first financial statement of the society, which must be audited and distributed to members of the society by 31 July 2005); and

    • (i) it is a term of the offer that all moneys paid to the society by its members under the rules are applied solely for the purposes of—

      • (i) holding, administering, and maintaining the communal facilities (including issuing licences to members of the society that confer rights solely on those members to use the communal facilities, and administering those licences in accordance with the rules); or

      • (ii) administering and enforcing a scheme for the regulation and control of matters relating to the use and enjoyment, repair, decoration and landscaping of, and provision of services to, residential properties; and

    • (j) the rules provide that—

      • (i) members of the society have the right to use and enjoy the communal facilities in accordance with the rules, and have the right to vote at meetings of members of the society; and

      • (ii) on a winding up of the society, any interest of the society in communal facilities vests in the members of the society as tenants in common; and

      • (iii) levies, fees, or subscriptions payable to the society by its members are determined by a committee of members of the society constituted or appointed under the rules; and

    • (k) the society does not have as objects—

      • (i) the carrying on of trading activities; or

      • (ii) the carrying on of business for profit.

    (2) This clause is subject to clause 7.

7 Transitional provisions
  • (1) Clause 6(1)(b) does not apply to specified securities that are subscribed for by a person who entered into a sale agreement, whether settled or unsettled, before the date on which this notice comes into force.

    (2) Clause 6(1)(d) and (e) does not apply to specified securities that are subscribed for by a person who entered into a sale agreement that has been settled before the date on which this notice comes into force so long as before the allotment of the specified securities,—

    • (a) if the developer represents or agrees that communal facilities will be held by a society, the communal facilities are owned or leased by the society; and

    • (b) if land is included in the communal facilities, the society’s interest in that land is registered on a certificate of title, or computer register, under the Land Transfer Act 1952 or the society holds a certificate of title for a stratum estate under the Unit Titles Act 1972 for that land.

Dated at Wellington this 21st day of January 2005.

The Common Seal of the Securities Commission was affixed in the presence of:

[Seal]

J Diplock,
Chairperson.


Statement of reasons

This notice comes into force on the day after the date of its notification in the Gazette and expires on 31 January 2010.

This notice exempts Carlin Enterprises Limited, Kevin David Carlin, and The Styx Mill Country Club Incorporated, subject to conditions, from sections 33(3), 37, 37A, 38A, and 54 of the Securities Act 1978 and from the Securities Regulations 1983 (except regulation 8) in respect of the offer of participatory securities in the form of membership in The Styx Mill Country Club Incorporated that confer rights to participate in the ownership and use of all or part of the communal facilities in a residential property development in Christchurch.

The Securities Commission considers that it is appropriate to grant the exemptions because—

  • real estate developments often include communal facilities for the use of residents. Where these facilities are offered in the form of membership of an incorporated society, the interests offered are participatory securities under the Securities Act 1978. The Securities Commission has granted a class notice to allow these offers to be made without the need for a statutory supervisor, registered prospectus, and investment statement. Membership of the society is secondary to the purchase of the real estate interest. In these circumstances, the Securities Commission considers that full compliance with the provisions of the Securities Act 1978 would not provide additional benefits to purchasers that would offset the costs of compliance. The Securities Commission considers that adequate protection could be secured for these purchasers by compliance with the conditions of exemption; and

  • the offer by Carlin Enterprises Limited cannot strictly comply with the terms of a condition of the class notice in that a part of the communal facilities will not be owned by the incorporated society at the time of settlement. As this affects only a small part of the communal facilities, the Securities Commission is satisfied that adequate protection can be secured by compliance with additional conditions requiring representations that the additional facilities will be transferred to the incorporated society as soon as this is possible. In other respects the Securities Commission is satisfied that the offer falls within the policy of the class notice.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 25 January 2005.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Securities Act (Carlin Enterprises Limited and The Styx Mill Country Club Incorporated) Exemption Notice 2005. The reprint incorporates all the amendments to the notice as at 31 January 2010, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that have yet to come into force or that contain relevant transitional or savings provisions are also included, after the principal enactment, in chronological order.

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)
  • Securities Act (Carlin Enterprises Limited and The Styx Mill Country Club Incorporated) Exemption Notice 2005 (SR 2005/2): clause 3