Encumbrances

The Treasury on behalf of the Crown can discharge an encumbrance held in the name of a removed company. 

To make an application, please provide the following:

1. A statutory declaration by a director of the removed company ("the Company") (or someone else associated with the Company) at the time the Company was removed 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 removal 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 removed 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 director(s) of the Company.
2. An application form 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.
3. A copy of the encumbrance filed in the Land Transfer Office and a copy of the certificate of title to which the encumbrance relates.
4. Evidence that the obligations secured by the encumbrance have been satisfied (where possible).
5. Extracts from the Companies Office for the Company showing when it was registered and when it was removed.
6. Your undertaking to pay our fee ($400 inclusive of GST) 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. For more information, see How to deal with property of a company removed from the Companies Register.

Template forms of the statutory declaration and the application and indemnity are available below. 
 

Templates

Statutory Declaration - Encumbrance (Word, 28KB)

If you have any specific questions not covered, please email [email protected].