138Moratorium—court and tribunal proceedings

138 Moratorium—court and tribunal proceedings

(1) Subject to subsections (2) and (5), a person must not begin or continue a proceeding in a court or tribunal covered by subsection (7) in respect of a body corporate if section 137 applies to the body corporate.

Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.

(2) Subsection (1) does not apply if:

(a) the court or tribunal grants leave for the proceedings to be begun or continued on the ground that the person would be caused hardship if leave were not granted; and

(b) the beginning or continuing of the proceedings is in accordance with such terms (if any) as the court or tribunal imposes.

(3) A person intending to apply for leave of the court or tribunal under paragraph (2)(a) must give the Reserve Bank at least 10 days notice of the intention to apply (or a shorter period, if the court or tribunal considers that exceptional circumstances make this necessary).

(4) The Reserve Bank may apply to the court or tribunal to be joined as a party to the proceedings for leave. If the Reserve Bank is joined as a party, the court or tribunal must have regard to the Reserve Bank’s views in deciding:

(a) whether to grant leave under paragraph (2)(a); and

(b) if the court or tribunal decides to grant the leave—whether to impose terms as mentioned in paragraph (2)(b); and

(c) if the court or tribunal decides to impose such terms—the nature of those terms.

(5) Subsection (1) also does not apply if:

(a) the Reserve Bank consents in writing to the proceedings beginning or continuing; or

(b) for a body corporate under statutory management—the statutory manager, after considering the Reserve Bank’s views, consents to the proceedings beginning or continuing.

(6) The Reserve Bank (or the statutory manager) cannot revoke a consent given for the purposes of subsection (5).

(7) A proceeding in a court or tribunal is covered by this subsection in respect of a body corporate if it is any of the following:

(a) a proceeding against the body corporate (including a cross‑claim or third party claim against the body corporate);

(b) a proceeding in relation to property of the body corporate;

(c) a proceeding to enforce any security (including a mortgage or charge) granted by the body corporate, or by a related body corporate of the body corporate, over any property that the body corporate owns, uses, possesses, occupies or in which the body corporate otherwise has an interest.

(8) Subsection (7) does not cover a proceeding in respect of an offence or a contravention of a provision of a law for which a pecuniary penalty (however described) may be imposed.