Variable Capital Companies Act 2018 · 2020 Revised Edition · Part 6 · Management and Administration
53. Directors must be fit and proper persons
Feedback & supportA VCC must appoint only fit and proper persons as the VCC’s directors.
VCC
“VCC” or “variable capital company” means a body corporate incorporated as such under this Act;
The Registrar may by notice direct a VCC to remove a director or replace the director where the Registrar —
Registrar
“Registrar” means the Registrar of VCCs appointed under this Act, and includes any Deputy or Assistant Registrar of VCCs;
is satisfied that the director is not a fit and proper person to act as director; and
considers that the removal or replacement is necessary in the interests of the VCC, the VCC’s shareholders or potential shareholders, the public or a section of the public.
In determining whether a person is a fit and proper person to act as a director of a VCC, the Registrar may consider such factors as may be prescribed.
director
“director” has the meaning given by section 4(1) of the Companies Act 1967;
Before directing a VCC under subsection (2), the Registrar must notify the VCC and the director in writing that —
the Registrar intends to make the direction; and
the VCC and the director may show cause within such time as may be specified in the notice why that director should not be removed or replaced.
The Registrar may give a direction under subsection (2) only if the VCC and the director —
fail to show cause within the time specified in the notice mentioned in subsection (4) or within such extended period of time as the Registrar may allow; or
fail to show sufficient cause.
The direction under subsection (2) must state the date on or before which the removal or replacement of the director must take effect.
Any person who is aggrieved by a direction of the Registrar under subsection (2) may, within 30 days after receiving the direction, appeal to the Minister.
Despite the lodging of an appeal under subsection (7), a direction under subsection (2) has effect pending the decision of the Minister.
Subject to subsection (11), a VCC that fails to comply with subsection (1), and every officer of the VCC who is in default, shall each be guilty of an offence and shall each be liable on conviction to a fine not exceeding $5,000 and, in the case of a continuing offence, to a further fine not exceeding $500 for every day or part of a day during which the offence continues after conviction.
officer
“officer”, in relation to a VCC or other corporation, includes —(a)any director or secretary of the corporation or a person employed in an executive capacity by the corporation;(b)a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instrument; and(c)any liquidator of the corporation (being a VCC or company) appointed in a voluntary winding up,but does not include —(d)any receiver who is not also a manager;(e)any receiver and manager appointed by the Court;(f)any liquidator appointed by the Court or by the creditors; or(g)a judicial manager appointed by the Court under Part 8A of the Companies Act 1967 (if applicable);
Subject to subsection (11), a VCC that fails to comply with any direction of the Registrar under subsection (2), and every officer of the VCC who is in default, shall each be guilty of an offence and shall each be liable on conviction to a fine not exceeding $10,000, and also to a default penalty.
default penalty
“default penalty” means a default penalty within the meaning of section 147;
No criminal or civil liability is incurred by a VCC, or any person acting on behalf of the VCC, in respect of anything done or omitted to be done with reasonable care and in good faith in the discharge or purported discharge of the obligations of the VCC under this section.