Investigations and prosecutions

Who can refer a case or complaint to the Enforcement Unit?

Any member of the public can refer a complaint to the Enforcement Unit regarding breaches of any legislation it administers and enforces.

The nature of the complaints ranges widely.  For example, they can relate to a director allegedly managing a company while being prohibited, to the actual conduct of a company director.  There is also an obligation placed on a liquidator or receiver to report alleged breaches of relevant legislation, or concerns the liquidator or receiver may have over the conduct of directors in relation to the management of the affairs of the company.  These concerns generally relate to issues such as reckless trading, lack of books and records and undercapitalisation that could form the basis for the consideration of banning directors.

Complaints are received from members of the public, however the majority of referrals received are from the Official Assignee and Registrar of Companies.  Referrals are also received from other government departments, such as the New Zealand Police, Commerce Commission, and Financial Markets Authority, among others.  Complaints are also received from liquidators, receivers, statutory managers, the New Zealand Credit and Finance Institute, and other professional associations.

How we select cases for prosecution

Although the Solicitor General’s guidelines are used when evaluating new complaints, the unit also
considers the following:

• public interest
• the extent of the offending
• the seriousness of the offending
• the statute of limitations
• whether other remedies are available.

A high standard of proof is required before any case can proceed toward prosecution.  The manager has full discretion in the selection of cases.