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Niue Development Bank Act 1993

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

NIUE DEVELOPMENT BANK ACT 1993

1994/189 – 6 July 1994

1 Short title
2 Interpretation

PART 1
ESTABLISHMENT AND ADMINISTRATION

3 Niue Development Bank
4 Constitution of Board
5 Responsibilities of directors
6 Term of office of directors
7 Extraordinary vacancies
8 Meetings of the Board
9 Committees
10 Directives by Cabinet
11 General Manager and other employees
12 Consultant and specialist personnel
13 Personal liability

PART 2
CAPITAL

14 Authorised capital
15 Subscription of shares

PART 3
FUNCTIONS, POWERS AND FUNDS

16 Functions of the Bank
17 Powers of the Bank
18 Operating principles
19 Vesting of property in Bank
20 Funds
21 Application of funds
22 Principles and limits on financing and operations
23 Short-term investment
24 Reserve Fund and allocation of net profit

PART 4
ACCOUNTS AND REPORTS

25 Financial year
26 Accounts and audit
27 Reports

PART 5
SECURITIES

28 Security for advances
29 Securities to be taken in name of Bank
30 Assignment of money as security may be irrevocable
31 Alienation and assignment as security for advances
32 Assignments of money from land vested in trustees
33 Advances to be paid as Bank directs
34 Charging order may be made
35 Discharging of charging orders
36 Appointment of receiver to enforce charges

PART 6
MISCELLANEOUS

37 Taxation
38 Contracts of Bank
39 Execution of documents
40 Evidence of documents
41 Penalty for misapplication of loan
42 False statements
43 Disclosure of information
44 Breach of Act or regulations
45 Rules
46 Regulations
47-49 [Spent]

________________

To establish the Niue Development Bank

1 Short title

This is the Niue Development Bank Act 1993.

2 Interpretation

In this Act –

"Audit Office" means the auditor appointed under article 60 of the Constitution;

"Bank" means the Niue Development Bank;

"economic development" means development, in conformity with the priorities of national development goals made by the Government including development of –

(a) Tourism;

(b) Agriculture, livestock, forestry and fishing;

(c) Manufacturing and processing industries;

(d) Engineering, construction and transport;

(e) Commercial activities;

(f) Housing;

(g) Other areas;

"financial assistance" means any –

(a) Equity participation; or

(b) Loan; or

(c) Hire Purchasing; or

(d) Leasing;

"Minister" means the Minister of Finance;

"permanent Niuean resident" means any person who has been granted permanent resident status under section 6 of the Entry Residence and Departure Act 1985;

"recipient" means any Government corporate body, or person, or organisation, to whom the bank provides financial assistance.

PART 1
ESTABLISHMENT AND ADMINISTRATION

3 Niue Development Bank

(1) There is hereby established a Bank called the Niue Development Bank.

(2) The Bank shall be a body corporate with perpetual succession and a common seal and shall be capable of acquiring holding and disposing of real and personal property, suing and being sued and subject to this Act, of doing and suffering all such other acts and things as body corporate may lawfully do and suffer.

4 Constitution of Board

(1) There shall be a Board of Directors of the Bank consisting of –

(a) The Financial Secretary or a person delegated by him in writing as his alternate;

(b) Four persons from the private sector, of good character and standing, who shall each have expertise in one or more different areas of the Bank’s operation and who shall be appointed by Cabinet, but shall not include any Ministers of the Crown or any members of the Assembly.

(2) Cabinet shall appoint a Chairman who shall be one of the directors referred to in subsection (1).

(3) The appointment of directors and Chairman shall be publicly notified in such manner as Cabinet deems appropriate.

(4) The Board may elect one of their members to be Deputy Chairman.

(5) No person shall be deemed to be employed in the public service by reason only of his being a member of the Board.

5 Responsibilities of directors

(1) The Board of Directors shall be responsible to the Cabinet for the proper and efficient operation of the Bank.

(2) Without limiting the generality of subsection (1), the responsibilities of the Board of Directors shall include the responsibility to –

(a) Ensure that the functions of the Bank are carried out efficiently and under proper banking standards;

(b) Maintain the independence and integrity of the Bank;

(c) Ensure that the Bank complies with this Act, the Bank’s policies and any directions given to the Bank under section 10.

6 Term of office of directors

(1) Except as otherwise provided by this Act, every appointed director shall hold office for a period of not less than one year and not more than 2 years commencing on the date of his appointment provided that any director may be reappointed for further terms.

(2) A member of the Board who is not an employee of the public service or any ad-hoc body of the Government shall be paid from the funds of the Bank such remuneration and allowances as Cabinet may determine.

(3) Notwithstanding any other provision in this Act every member whose office is terminated by the effluxion of time shall continue to hold office until his successor is appointed.

7 Extraordinary vacancies

(1) Any appointed director may at any time be removed from office by the Minister with the concurrence of Cabinet –

(a) For disability, bankruptcy, neglect of duty or misconduct proved to the satisfaction of the Minister with the concurrence of Cabinet; or

(b) If that director is absent from Niue for any period exceeding 2 months; or

(c) If the director is absent from 3 consecutive meetings of the Board without leave of absence from the Board.

(2) An appointed director may at any time resign his office by delivering a notice in writing to that effect to Cabinet.

(3) If any director dies or resigns, or is removed from office, his office shall become vacant and the vacancy shall be deemed to be an extraordinary vacancy.

(4) An extraordinary vacancy shall be filled by the appointment of a person in the same manner as the appointment of the vacating member.

(5) Every person appointed to fill an extraordinary vacancy shall be appointed for the residue of the term for which the vacating member was appointed.

(6) The powers of the Board shall not be affected by any vacancy in its membership, provided that no business shall be transacted by the board if at any time its total membership under clause 4 falls below 3 persons.

8 Meetings of the Board

(1) The first meeting of the Board shall be held on a day to be appointed by the Minister.

(2) Subsequent meetings of the Board shall be held at intervals of not more than every 6 weeks, at such times and places as the Board appoints.

(3) The Minister, or the Chairman or any 2 directors may at any time call a special meeting of the Board.

(4) Not less than 3 days notice of every meeting, together with the proposed agenda for that meeting shall be given in writing to every director present in Niue, unless all the directors of the time being in Niue unanimously agree that shorter notice may be given in respect of any particular meeting.

(5) At all meetings of the Board the quorum necessary for the transaction of business other than the adjournment of the meeting shall be not less than 3 members holding office.

(6) The Chairman shall preside at all meetings of the Board at which he is present.

(7) In the absence of the Chairman from any meeting, the Vice-Chairman shall preside, provided that if the Vice-Chairman is also absent, then the directors present shall appoint one of their number to be Chairman.

(8) At any meeting of the Board every director shall be entitled to one vote on any matter, provided that the Chairman or other person presiding shall in the case of equality of votes, also have a casting vote.

(9) Minutes shall be kept of every meeting of the Board. A resolution in writing signed or assented to by letter or facsimile, by all members of the Board shall be as valid and effectual as if it had been passed at a meeting of the Board duly called and constituted.

(10) Subject to this Act and of any regulations under it, the Board may regulate its procedures in such manner as it thinks fit.

(11)

(a) No director shall vote or take part in the discussion of any matter before the Board or before the committee of it in which he has directly or indirectly a pecuniary interest apart from any interest in common with the public.

(b) Any director who knowingly offends against this subsection commits an offence and shall be liable on conviction to a fine not exceeding 10 penalty units.

9 Committees

(1) The Board may by resolution appoint, discharge, alter, continue or reconstitute a committee or committees, consisting of 2 or more members, to advise the Board on such matters as are referred to any committee by the Board.

(2) Any person may be appointed to be a member of any committee appointed under this section notwithstanding that he is not a member of the Board.

(3) Subject to this Act, of any regulations, or of any general or special directives of the Board, any such committee may regulate its procedure in such manner as it thinks fit.

10 Directives by Cabinet

(1) Cabinet may give the Bank in writing such directives as Cabinet thinks fit as to the policy to be followed by the Bank in the exercise of its functions or powers, provided that no such directives shall be given in respect of specific loans or loan applications.

(2) The Bank shall, in the exercise of its functions and powers, give effect to any written directives given to it by the Cabinet under this section.

(3) A copy of every direction given by Cabinet to the bank under this section in any financial year shall be included in the annual report of the Bank for that year laid before the Assembly under section 27(1) (b).

11 General Manager and other employees

(1) The Board shall employ at such remuneration and on such terms and conditions as it may determine, a suitably qualified General Manager, who shall perform such duties as may be prescribed by the Board.

(2) The General Manager may be required to attend all Board meetings unless his presence at any meeting is excused by the Board or when any matter in which he is directly or indirectly privately interested is to be considered at such meeting.

(3) The Board may engage at such remuneration on such terms and conditions and in such number as it may determine, other employees as may be essential for the conduct of the business of the Bank.

(4) The Board may in writing delegate to the General Manager or other employee of the Bank such of the powers or functions of the Board including the power of delegation conferred by this section as it may think fit; provided that in no case shall any power –

(i) to acquire land or buildings; or

(ii) to sell land or building vested in the Bank be delegated.

(5) Subject to any general or special direction given or conditions imposed by the Board or person to whom any powers are delegated as aforesaid, any person to whom any powers are delegated may exercise those powers in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.

(6) Every person purporting to act under any delegation under this section shall be presumed to be acting under the terms of the delegation in the absence of proof to the contrary.

(7) Any delegation under this section may be made to a specified person or to persons of a specified class or may be made to the holder for the time being of a specified office or appointment or to the holders of offices or appointments of a special class.

(8) Any delegation under this section may be revoked at any time.

(9) The delegation of any power by the Board or person shall not prevent the exercise of that power by the Board or as the case may require, by that person.

(10) A copy of every delegation made under this section in any financial year shall be included in the annual report of the bank for that year laid before the Assembly under section 27(1)(b).

(11)Any person in the public service may be appointed to be an officer or employee of the Bank but no such person shall be entitled to hold office concurrently as an officer or employee of the Bank and as a public servant except –

(a) In the case of a person who is a member of the public service with the consent of the Public Service Commission; and

(b) In any other case with the consent of the Minister of the Crown to whose control he is subject.

(12)

(a) Any person who was an officer of the public service and who is employed by the Bank, may within 3 months after his appointment as an officer or employee of the Bank, elect to resume employment in the public service and, in any such case, notwithstanding the provisions of any enactment to the contrary, his employment in the public service shall be deemed to have continued without interruption;

(b) This subsection shall not apply to any person whose employment by the Bank is terminated for misconduct or neglect of duty.

(c) No person shall be entitled to receive any salary as a member of the public service in respect of any period during which he was employed by the Bank.

12 Consultant and specialist personnel

Without limiting this Act, the board may with the approval of the Minister with concurrence of Cabinet appoint consultants, advisers and such specialist personnel as it thinks necessary or appropriate to assist the General Manager or the Bank generally or specifically.

13 Personal liability

No member of the Board or employee of the Bank shall be personally liable for any act or default done or made by the Board or by any director or employee in good faith in the course of the operations of the Bank.

PART 2
CAPITAL

14 Authorised capital

(1) [Spent]

(2) The authorised capital of the Board may be increased to such amount as may be prescribed by Cabinet.

(3) The authorised capital of the Bank shall not be increased otherwise than under this section.

15 Subscription of shares

(1) The Bank shall not allot any of its unissued shares to any person other than Her Majesty or a nominee holding the shares on behalf of Her Majesty.

(2) For the purposes of subsection (1) the Minister may hold and subscribe for shares on behalf of Her Majesty and any statutory body in which the Government holds a controlling interest or ad hoc of Government may be a nominee of Her Majesty for the purpose of subscribing for and being allotted shares on Her behalf.

(3) The shares of the Bank shall not be pledged or encumbered in any manner whatsoever and shall not without the prior approval of Cabinet be transferred or assigned and then, only on such terms and conditions as Cabinet may impose.

(4) The liability of a shareholder shall be limited to the unpaid portion of the par value of shares for which the shareholder subscribed.

PART 3
FUNCTIONS, POWERS AND FUNDS

16 Functions of the Bank

(1) The general functions of the Bank shall be –

(a) To provide finance for the establishment, development, extension or assistance of industry and economic development in Niue;

(b) To encourage and promote investment in the economic development of Niue;

(c) To provide finance for dwellings and improved housing and improved living conditions in Niue;

(d) To provide technical assistance or advice and to generally foster economic development in Niue.

(2) Without limiting the generality of subsection (1), the Bank shall have the following functions –

(a) To provide financial assistance on such terms and conditions as the Board thinks fit, to permanent Niuean residents engaged or about to be or intending to be engaged in any economic development in Niue;

(b) To provide such advisory and technical services either with or without remuneration or fee as the Board considers desirable or expedient in the interest of the community and its economic development;

(c) To assist in obtaining and placing foreign investment on Niue for the purposes of economic development;

(d) To administer on such terms and conditions as may be approved by the board such special funds as may be placed at the disposal of the Bank;

(e) To study and promote onshore investment opportunities for the economic development in Niue;

(f) With the prior approval of Cabinet to acquire by lease or sublease any land or buildings and to develop the same as a building estate by the erection, construction, alteration, maintenance and improvement of dwelling houses or flats, and gardens, recreation parks and other works and buildings for or for the convenience of persons occupying such dwelling houses or flats;

(g) To lease any land in the cause of housing and other urban development, improvements and renewal; provided that the power to sell land contained in here shall not extend to any land acquired by the Government by warrant under section 8 of the Niue Amendment Act 1968 No 2 and provided further that this provision shall not be deemed to extend the powers of the Niue Development Bank in respect of land beyond such powers as the Niue Development Bank would have had prior to the passing of this Act;

(h) To do all matters and things incidental to or connected with the foregoing.

(3) The Board shall have such other functions as are conferred on it by this Act or by any other enactment.

17 Powers of the Bank

(1) The Bank shall have all such powers, rights and authorities as may reasonably be necessary or expedient to carry out its functions.

(2) Without limiting the generality of subsection (1) the Board shall have the following specific powers –

(a) Sell, purchase or subscribe for shares, debentures, bonds or other securities including securities which the Bank has issued or guaranteed or make loans, with or without security, or acquire any other interest;

(b) Finance the purchase, sale or hire of machinery, plant, equipment, materials, goods and articles of every description by means of any arrangement whatsoever, including but without limiting the generality of the foregoing, the purchase and resale and hire of it on such terms as the Board thinks fit; and

(c) Execute, make, draw, accept, endorse, discount, issue and negotiate cheques, promissory notes, bills of exchange, bills of lading, bankers and other drafts, warrants, bonds, debentures, coupons and other negotiable or transferable instruments and buy, sell or otherwise deal in the same, and accept deposits of money;

(d) With the prior approval of Cabinet and upon terms and conditions to be approved by Cabinet, borrow money required by it for the purpose of meeting any of its obligations of discharging any of its functions under this Act provided that the aggregate of the liabilities of the Bank outstanding at any one time, including bonds and debentures if any, issued by the Bank shall not exceed 3 times the amount of its paid-up shares capital and reserves;

(e) Participate, in the discretion of the Board, in the management of enterprises to whose finance it has contributed whether by loan or otherwise;

(f) Organise, participate in, or act as agent for consortium arrangements for the assistance of economic development in Niue;

(g) Act as agent for the government of international financial institutions in the financing of economic development in Niue;

(h) Place funds not immediately required on deposit with any onshore bank, or an overseas bank with Cabinet’s approval;

(i) Take such steps as may be necessary to protect or recover its financial interest in any business;

(j) To accept gifts of leases or subleases of any land, money or other property;

(k) To subdivide or develop any land acquired by or vested in it;

(l) Subject to the provisions of any enactment applicable to the bank, to fix, regulate or make such charges as may be determined from time to time for the use of any dwelling house, flat, building or other facility provided, maintained, controlled or operated by the bank;

(m)To make advances under this Act;

(n) To negotiate and enter into arrangements with and between landowners and householders, and assist by advice and otherwise the development of private housing conditions;

(o) To contract for the execution or provision by any person of any work or services authorised by this or any other enactment to be executed or provided by the Board in such manner and subject to such terms and conditions as the Board thinks fit;

(p) Make such charges for the provision of its service as the Bank thinks fit.

18 Operating principles

(1) In determining whether or not any financial assistance shall be given to any enterprise, the Board shall properly evaluate each proposal and consider –

(a) The prospects of the enterprises being or becoming and remaining financially viable and the prospects of any money lent to it by the Bank being repaid to the Bank;

(b) The degree to which the enterprise is or will become or remain of value to the economy of Niue;

(c) The degree to which persons ordinarily resident in Niue will derive a direct benefit from the enterprise;

(d) Any policy directives given to it by Cabinet.

(2) No financial assistance shall be given in respect of any project, or for housing purposes unless the Board is satisfied –

(a) That the project or recipient has the financial ability and resources to meet all repayments and other obligations imposed by the Bank; or

(b) That the recipient is a permanent Niuean resident or an organisation in which the majority shareholder or principal partner or owner is a permanent Niuean resident.

19 Vesting of property in Bank

(1) Her Majesty may in accordance with section 8 of the Niue Amendment (No 2) Act 1968 grant in respect of the Crown land, any lease, licence, easement or other limited estate, right or interest to the Bank or in the name of the Bank property, rights or privileges, vested in or held on behalf of the Crown and used or administered or to be used or administered for the purposes of or in connection with any housing or industrial projects or town planning schemes subject to any leases, rights, easements and interests subsisting in respect of the land or property at the date of the grant, transfer or assignment.

(2) Any lease by the Crown under subsection (1) may be for such term and provide for such rent and other conditions as the Bank with the prior written approval of the Minister shall accept or approve.

20 Funds

(1) The funds of the Bank shall consist of –

(a) Such sums of money as may be received by the Bank under section 15;

(b) Such sums of money as the Bank may acquire by virtue or grants or raised by way of loan;

(c) Such sums of money as may be appropriated for it by the Assembly; and

(d) Such other sums of money as may accrue to it in the course and on account of its business.

(2) Any special funds shall be kept separate from the other funds specified in subsection (1).

(3) No charge or lien created on any special fund shall operate as a charge or lien upon the funds of the Bank, provided that –

(a) Where in any Appropriation Act or in any estimate of expenditure and revenue accompanying the Appropriation Act for any year any vote or item to which the section applies is noted as being for a specified purpose, it shall not be competent for the Bank to use moneys so appropriated for any purpose other than that specified in such Act or estimate; and,

(b) Where any appropriation is made for the purposes of the Board, the Cabinet may direct the manner in which the moneys appropriated shall be paid to the Board and may require that any such appropriation be used first in payment of any debt due to the Public Account or to any account within the Public Account.

21 Application of funds

The funds of the Bank shall be applied towards –

(a) The payment of salaries and fees due to employees of the Bank;

(b) The repayment of sums raised by way of loan by the bank and the payment of interest on it;

(c) Providing financial assistance under this Act;

(d) The payment of rates, taxes, insurance premiums and other outgoings;

(e) The payment of such dividends as the Board may authorise; and

(f) All other payments necessary for or incidental to the business of the Bank authorised under this Act.

22 Principles and limits on financing and operations

(1) The Bank may alone or in conjunction with other domestic or foreign investors, provide or participate in providing financial assistance in aid of development investment in Niue.

(2) In providing financial assistance the Bank shall –

(a) Maintain a reasonable diversification in its investments among all sectors of economic activity in Niue;

(b) Maintain a satisfactory balance between the dates of maturity or its own obligations and those of the loans it grants; and

(c) As principal objective, operate as a successful business, as profitably and efficiently as comparable businesses in the private sector.

(3) The Bank’s financial assistance shall in the cases of a single recipient or several recipients who are associated with each other in a community of material financial interest, not exceed 20 per centum of the Bank’s paid-up shares, capital and reserves.

(4) In the case of funds invested by the Bank in equity participation –

(a) The aggregate of the amounts so invested shall not exceed 20 per centum of the aggregate of the Bank’s paid-up share capital;

(b) The Bank shall limit such participation, in any recipient or recipients associated with each other in a community of material financial interest, to a maximum of 10 per centum of the Bank’s paid up capital of such recipient; and

(c) The Bank shall seek to rotate its funds by selling such participations to other investors wherever it can do so on satisfactory terms.

23 Short-term investment

The Bank may invest all or any part of its funds not immediately required for the purpose stated in this Act in good and sound investment, to be approved by Cabinet.

24 Reserve Fund and allocation of net profit

(1) The Bank shall provide against any anticipated losses by establishing and maintaining a reserve fund to which shall be allocated at the end of each financial year of the Bank –

(a) Not less than 50 per centum of the net profit of the Bank of that year until the total sum standing to the credit of such reserve fund shall amount to a sum equal to the paid-up share capital of the Bank;

(b) Not less than 10 per centum of the net profit of the Bank of that year if the total sum standing to the credit of such reserve fund exceeds a sum equal to the paid-up share capital of the Bank.

(2) The Board shall determine annually on the allocation of the net profit of the Bank after providing for the Reserve Fund.

PART 4
ACCOUNTS AND REPORTS

25 Financial Year

The financial year of the Bank shall be the period of 12 months ending on 30 June in each year.

26 Accounts and audit

(1) The Board shall cause true and full accounts and records to be kept of all the transactions with which the Bank is concerned, and the books of account and records shall be kept at the principal place of business of the Bank.

(2) The accounts shall be subject to annual audit by the Government’s official Audit Office or their duly authorised representatives.

27 Reports

(1) The Board shall –

(a) Provide to the Minister a quarterly report containing such financial and other information as the Minister may require regarding the operation of the Bank; and

(b) Not later than 3 months after the end of each financial year, submit to the Cabinet a report of its operations, including the annual statement of its accounts for that year, and shall forward a copy of such report and annual statement to the Audit Office;

(c) Submit to Cabinet an audited annual statement of accounts.

(2) Without limiting the content of the annual report required to be made under subsection (1) under (b) such report shall include the following information –

(a) The objectives and policies of the Bank;

(b) The nature and scope of activities being undertaken or to be undertaken;

(c) The ratio of capital to total assets, and definitions of those terms as used in the report;

(d) The accounting policies used in relation to the annual statement included in the report.

(3) Every audited report and annual report submitted to Cabinet under subsection (1)(b) and (c) shall forthwith be laid before the Assembly for debate if the Assembly is then in session, or, if the Assembly is not then in session, within 24 hours of the commencement of the next ensuing session.

PART 5
SECURITIES

28 Security for advances

(1) Advances made by the Bank shall be secured in such manner and on such terms as the Bank thinks fit.

(2) For the purposes of determining whether an application for an advance should be granted, the Bank shall not be bound to insist upon any fixed or definite margin of security.

29 Securities to be taken in name of Bank

Every security for an advance shall be taken in the name of the Bank.

30 Assignment of money as security may be irrevocable

(1) The Bank may require any order on or assignment of money given as security for the repayment of any advance to be expressed to be irrevocable, notwithstanding the death of the person giving the order or assignment, and the order or assignment shall be irrevocable accordingly except with the consent in writing of the Bank.

(2) Notwithstanding anything in any enactment to the contrary, any company, corporate body, or person upon whom any notice of any such order or assignment has been served, shall be bound to accept and to act upon the order or assignment and to pay to the person nominated in that behalf in the order or assignment all money payable under it.

31 Alienation and assignment as security for advances

(1) Notwithstanding anything in Part 19 of the Niue Act 1966, or in section 24 of the Niue Amendment Act (No 2) 1968, it shall be competent for any Niuean or descent of a Niuean to alienate any Niuean freehold land or things growing on or attached to any such land of the rents and profits from any such land as security for any advance made by the Bank for any housing or other purpose.

(2) Notwithstanding anything in the Property Law Act 1952 no power of sale shall be contained or implied in any charge given on any interest in land (not being leasehold interest) to secure the repayment of any advance made by the Bank for any housing or other purpose.

32 Assignments of money from land vested in trustees

(1) For the purpose of securing the repayment of any advance made by the Bank for any housing or other purpose, it shall be competent for any Niuean or descendant of a Niuean to give an order on or an assignment of the proceeds of the alienation of any land (including compensation money for land taken) whether the land is vested in a trustee or not.

(2) Any such order or assignment shall be valid and enforceable for all purposes notwithstanding any other enactment.

33 Advances to be paid as Bank directs

Every advance shall be expended or applied by the Bank, or at its discretion, for any one or more purposes for the benefit or on behalf of the applicant and, unless the Bank otherwise determines, shall not be paid direct to the applicant.

34 Charging order may be made

(1) Notwithstanding anything in the Niue Act 1966, or in any other enactment where a charge on any interest in land has been given as security for the repayment of any advance, the Court, on proof to its satisfaction that the advance has been approved by the Bank, and in anticipation of the advance being made, may make an order changing the land or any interest in it or any part of it or any undivided or partial interest in it with repayment of the amount advanced or to be advanced, together with all interest and other monies which may become payable thereunder and by such instalments and with such directions for giving effect to the charge as the Court thinks expedient.

(2) The certificate of the Bank shall for all purposes be prima facie proof of the amount of the advance and of the rate of interest payable, and may be accepted by the Court accordingly.

(3)

(a) The Court may make a further order varying any former order in respect of any additional advance or by way of apportioning charges in such manner as it thinks expedient or for any other purpose it thinks fit, and every subsequent order shall supersede all prior charging orders so far as it is inconsistent with it.

(b) Where any charge is apportioned, each portion shall be deemed to be a separate charge.

(4) Every order made under this section shall be registered or recorded, as the case may require, in such manner as the Court directs.

35 Discharging of charging orders

The Court may at any time, on the application of the Bank wholly or partially discharge any charging order made under section 34, whether or not the money secured by the charge has been repaid.

36 Appointment of receiver to enforce charges

(1) When by section 34 any charging order has been made in respect of any land or any interest or upon the revenues in it or the proceeds of the alienation of it, the Court may, for the purpose of enforcing that charge, appoint a receiver in respect of the property so charged.

(2) A receiver appointed under this section shall have all such rights, powers, duties and liabilities as may be expressly conferred or imposed on him by the Court and such other incidental powers as may be reasonably necessary for the exercise of the powers so conferred provided that a receiver appointed under this section shall not have power to sell the freehold interest in any Niuean land, or to lease any such land otherwise than as provided in subsection (3).

(3) Notwithstanding any of the provisions of the Niue Act 1966 as to the alienation of Niuean land, a receiver appointed under this section for the purpose of enforcing a charge may, in his own name and with the leave of the Court, grant leases of any land so charged for any term not exceeding 21 years, on such conditions and for such rent or other consideration as he thinks fit.

PART 6
MISCELLANEOUS

37 Taxation

The income and revenue of the Bank shall not be subject to taxation.

38 Contracts of Bank

(1) Any contract which, if made between private persons must be by deed shall, if made by the Bank, be in writing under the common seal of the Bank.

(2) Any contract which, if made between private persons, must be in writing signed by the parties to be charged therewith shall, if made by the Bank be under the common seal of the Bank.

(3) Any contract which, if made between private persons, may be made orally may be similarly made by or on behalf of the Bank by any person acting under its authority, express or implied.

39 Execution of documents

(1) Every document to which the common seal of the Bank is affixed shall be signed by the Chairman or in his absence the Vice-Chairman, and shall be countersigned by either the General Manager of the Bank, or in his absence from Niue, any other director.

(2) Any document which, if executed by a private person, would not require to be executed as a deed may be signed on behalf of the Bank by the Chairman or by the General Manager of the Bank.

(3) No document to which the common seal is required to be affixed, and no contract to which the Bank is a party shall be executed except under a resolution of the directors.

40 Evidence of documents

Every document purporting to be a document executed by or on behalf of the Bank in a manner provided in section 39 shall be received in evidence and be deemed to be so executed in the absence of proof to the contrary.

41 Penalty for misapplication of loan

Any person who knowingly applies any loan or part of it made under this Act to any purpose other than that authorised by the Bank shall be guilty of an offence and on conviction shall be liable to a fine not exceeding 10 penalty units or to imprisonment for a term not exceeding 12 months or to both such fine and imprisonment.

42 False statements

Any applicant for assistance from the Bank by way of loan or otherwise who wilfully fails to disclose any material information within his knowledge, or who wilfully makes any statement which he knows to be false or does not believe to be true shall be guilty of an offence and on conviction shall be liable to a fine not exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months, or to both such fine and imprisonment.

43 Disclosure of information

Any Board member or employee of the Bank who directly or indirectly discloses, or for private purpose uses, any information acquired by him either in the course of his duties or his capacity as an employee of the Bank shall be guilty of an offence and on conviction shall be liable to a fine not exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment.
44 Breach of Act or regulations

Every person who commits or attempts to commit or is concerned in committing or attempting to commit a breach or violation of this Act or of any regulations made under this Act for which no special penalty is provided is liable for every offence to a fine not exceeding 5 penalty units.

45 Rules

The Board may make such rules, consistent with this Act, as it considers necessary or appropriate to facilitate and control its operations, and further the objects and functions of the Bank.

46 Regulations

Cabinet may by publication in the Gazette after consideration of any recommendations thereon made to it by the Bank through the Minister, make all such regulations as may be necessary or expedient for giving full effect to this Act and for the due administration of it.

47-49 [Spent]