4 Interpretation

(1)

In this schedule, unless the context otherwise requires,—

arrangement

(a)

means any arrangement between an entity and its creditors (including an arrangement that relates to the governance or management of the entity); but

(b)

does not include an arrangement to the extent that it contravenes clause 30

BDH means business debt hibernation under this schedule

board means,—

(a)

in relation to a company within the meaning of this Act, the board of the company:

(b)

in relation to a partnership (other than a limited partnership), the partners:

(c)

in relation to a limited partnership, the general partners:

(d)

in relation to a body corporate or unincorporate, other than a company, partnership, or limited partnership, the committee or other governing body by whatever name called

broker has the same meaning as in section 77A(1) of the Financial Advisers Act 2008

creditor

(a)

includes—

(i)

a person who, in a liquidation, would be entitled to claim in accordance with section 303 that a debt or liability is owing to that person by the entity; and

(ii)

a secured creditor; but

(b)

does not include a person to the extent that the person is owed or must be paid an excluded debt

director means,—

(a)

in relation to a company or an overseas company, any person occupying the position of a director of the company, by whatever name called:

(b)

in relation to a partnership (other than a limited partnership), any partner:

(c)

in relation to a limited partnership, any general partner:

(d)

in relation to a body corporate or unincorporate, other than a company, partnership, or limited partnership, any person occupying a position in the body that is comparable with that of a director of a company

electronic vote has the meaning set out in subclause (2)

enforce, in relation to a charge over property of an entity in BDH, includes—

(a)

to appoint a receiver of property of the entity under a power contained in an instrument relating to the charge:

(b)

to obtain an order for the appointment of a receiver of that property for the purpose of enforcing the charge:

(c)

to enter into possession, or assume control, of that property for that purpose:

(d)

to appoint a person to enter into possession or assume control (whether as agent for the secured creditor or for the entity) for that purpose:

(e)

to exercise, as secured creditor or as a receiver or person so appointed, a right, power, or remedy existing because of the charge, whether arising under an instrument relating to the charge, under a written or unwritten law, or otherwise

enforcement process, in relation to property, means—

(a)

execution against that property; or

(b)

any other enforcement process in relation to that property that involves a court or a sheriff (within the meaning of section 239C)

enters into BDH has the meaning set out in subclause (4)

entity means any of the following:

(a)

a company:

(b)

an overseas company registered under Part 18 of this Act:

(c)

a limited partnership registered under the Limited Partnerships Act 2008:

(d)

an overseas limited partnership registered under that Act:

(e)

any other body corporate:

(f)

a partnership (within the meaning of the Partnership Law Act 2019):

(g)

an unincorporated body of persons

entity in BDH has the meaning set out in subclause (4)

excluded debt

(a)

means—

(i)

a debt that was incurred after the entity enters into BDH; or

(ii)

any salary, wages, or other amounts owed by the entity to an employee in connection with the employment relationship; or

(iii)

any amount withheld or deducted from the salary or wages of an employee as required by the Income Tax Act 2007, the Tax Administration Act 1994, the Child Support Act 1991, the KiwiSaver Act 2006, or the Student Loan Scheme Act 2011 and any such amount that should have been withheld or deducted from the salary or wages by the entity; or

(iv)

any amount payable by an entity to the Commissioner of Inland Revenue in accordance with subpart 3 of Part 3 of the KiwiSaver Act 2006; or

(v)

any other amount payable by an entity to the Commissioner of Inland Revenue that is subject to an instalment arrangement under section 177B of the Tax Administration Act 1994 that was entered into before the entity enters into BDH; or

(vi)

any other debt or claim of a kind prescribed in the regulations; but

(b)

does not include—

(i)

interest or penalties (regardless of when they fall due for payment) if the interest or penalties relate to a debt that was incurred before the entity enters into BDH; or

(ii)

any other amount that falls due for payment after the entity enters into BDH if the obligation to pay the amount is imposed under a contract or a deed that was entered into by the entity before the entity enters into BDH

general security holder has the meaning set out in clause 21

protection period has the meaning set out in clause 13

regulations means regulations made under section 395B

secured creditor, in relation to an entity, means a person entitled to a charge on or over property owned by that entity

voting date means—

(a)

the last date on which a creditor may vote on the resolution referred to in clause 9; or

(b)

if the entity decides to hold a meeting of creditors to vote on that resolution, the date of the meeting.

(2)

For the purposes of this schedule, a creditor may make an electronic vote by giving the creditor’s vote in electronic form, whether by means of an electronic communication or otherwise (for example, a vote sent by email).

(3)

In subclause (2), electronic and electronic communication have the same meanings as in section 209 of the Contract and Commercial Law Act 2017.

(4)

For the purposes of this schedule, an entity—

(a)

is an entity in BDH if the protections in Part 5 of this schedule apply to the entity; and

(b)

enters into BDH when the protections in Part 5 of this schedule start to apply to the entity (see clause 14).

(5)

Any term or expression that is defined or used in another part of this Act and used in this schedule has, in relation to an entity other than a company, the same meaning as in the other part of this Act (but applied with all necessary modifications as if it were a company).

Schedule 13 clause 4: inserted, on 16 May 2020, by section 3 of the COVID-19 Response (Further Management Measures) Legislation Act 2020 (2020 No 13).