The Treasury on behalf of the Crown can discharge an encumbrance held in the name of a struck off company. Before doing so we must be satisfied that the encumbrance has vested in the Crown and that there will be no claims against the Crown resulting from the discharge.
To this end we require the following:
- A statutory declaration by a director of the struck off company ("the Company") (or someone else associated with the Company) at the time the Company was struck off which includes:
1.1 details of the circumstances surrounding the giving of the encumbrance and the satisfaction of the obligations secured by the encumbrance;
1.2 details of the circumstances surrounding the striking off of the Company without first discharging the encumbrance;
1.3 a declaration that the Company held the encumbrance in its own right and not on trust for any other body corporate or any other person; and
1.4 a declaration that all obligations secured by the encumbrance have been satisfied.
If you are unable to locate anyone associated with the Company at the time was struck off we may accept a statutory declaration from someone else with knowledge of the matter. However, their statutory declaration will also need to include details of the steps taken to contact the former Company.
- An application requesting the Crown deal with the matter pursuant to the relevant section of the Companies Act 1993 or Companies Act 1955, together with an indemnity from the applicant in favour of the Crown in respect of all or any liability that may be incurred by the Crown in respect of actions taken in obtaining a discharge of the encumbrance.
- A copy of the encumbrance filed in the Land Transfer Office and a copy of the certificate of title to which the encumbrance relates.
- Evidence that the obligations secured by the encumbrance have been satisfied.
- Extracts from the Companies Office for the Company showing when it was registered and when it was struck off.
- Your undertaking to pay our costs (approximately $400) and to reimburse any advertising costs and other disbursements we need to incur in connection with this matter. We are entitled to recover our costs pursuant to section 75(2) of the Public Finance Act 1989.
Provided that we find the above documents to be satisfactory we will execute an application to the District Land Registrar to have the Crown registered as encumbrancer together with a discharge of the encumbrance. These documents will then be forwarded to you and will need to be registered electronically. We will provide an Authority and Instruction form in favour of the registering law firm to allow this to occur.
As an alternative to seeking a discharge of the encumbrance by the Crown you may also wish to consider an application to restore the Company to the register. In some circumstances this can be a faster and cheaper process than seeking a discharge. On restoration the encumbrance and any other property of the company vest back in the company as if it had not been struck off the register.
Template forms of the statutory declaration and the application and indemnity are available below.
We encourage applicants to provide draft documentation to the Treasury's Legal Team for comment prior to issuing final documentation. This allows the Treasury's Legal Team to identify:
- any issues with documentation, and/or
- any other documents that we require to process the application.
Statutory Declaration - Encumbrance (Word, 28KB)
Application and Indemnity - Encumbrance (Word, 28KB)