John Edward Clancy breached section 159(1)(a) and 159(2)(d) of the Companies Act 1993 when he failed to deliver to the Registrar “within 20 working days of the change occurring“, the required Notice of Change of directors in the case of his appointments of Riani Suhandi as a director to two companies he (Clancy) directed: Renovation Masters Auckland Ltd and Future Proof Building Ltd. Furthermore, the same Consent Certificate signed on 11/06/15 by Suhani relating to Future Proof Building (Co. No. 3972918) has been uploaded by Clancy onto the Companies website and filed with documents relating to Renovation Masters Auckland (Co. No. 1868260).
For background details on this fraudulent documentation submitted by Clancy see:
English-born John Edward Clancy heads a troubled building group in Christchurch
(Photo source: https://nz.linkedin.com/pub/john-clancy/2b/851/941 )
The two Consent of Director forms Suhandi signed on 11 June 2015 were not uploaded onto the Companies Office website until 12 and 15 June 2015 and both stated – as submitted by Clancy – that the appointments of Suhandi as director were made effective on 1 May 2015.
By law such appointments of new directors have to be made at a Board meeting of the company concerned and be properly documented in the Meeting Minutes of each company (required to be kept on file) and as taking effect on that date, if that is the case. Furthermore, s. 152 of the Act (“Director’s consent required”) states:
“A person must not be appointed a director of a company unless he or she has consented in writing to be a director and certified that he or she is not disqualified from being appointed or holding office as a director of a company.”
Some form of written consent/certification from Suhandi, by law, would have to have been available at the Board meetings of 1 May 2015 for Clancy to make the director appointments, and were required to be recorded in the Minutes as effective from that date. Notification to the Registrar of the decisions by way of the prescribed Certificates had to have been completed by law within 20 working days of 1 May 2015. This was not done by Clancy or his accountant Richard Townsend Somerville. Suhandi did not sign the Certificates required by the Registrar until 11 June 2015 – 29 working days AFTER he was appointed as director (1 May 2015) and the documentation was not uploaded onto the website by Clancy until 31 and 33 working days after the appointments had been made effective.
S. 159(3) of the Act
“If the board of a company fails to comply with this section, every director of the company commits an offence and is liable on conviction to the penalty set out in section 374(2).”
The penalty that is prescribed fin s. 374(2) for each of these breaches of the s. 159 of the Act and upon conviction, is “a fine not exceeding $10,000.”