NZX's disciplinary arm to review penalties, flags director fines, infringement notices

Monday 20th April 2015

NZX is looking to beef up the penalties its disciplinary arm imposes for breaches of stock market rules, including the introduction of fines for directors of companies which break listing rules.

The NZ Markets Disciplinary Tribunal, established in 2004, is an independent body and the front line regulator for enforcing the stock market's rules, including those for listed companies, traders and shareholders. NZX is looking for feedback on whether the tribunal has sought appropriate penalties in relation to rule breaches, and on the possibility of a new infringement notice regime for minor rule breaches and fines for directors or officers of companies, the Wellington based stock market operator said in a statement.

“Given the tribunal has been in operation since May 2004, we consider that now is an appropriate time to review the penalty provisions available to the tribunal, to ensure that they remain fit for purpose,” said Hamish Macdonald, NZX head of policy.

The tribunal reviews cases passed to it by NZX Regulation, to determine whether breaches have been made, and is able to impose penalties if breaches are found. NZXR doesn't pass every rule breach on to the tribunal, and last year there were 114 breaches noted, of which 18 were referred to the tribunal, NZX said.

The tribunal can impose fines of up to $500,000 for an issuer and can fine market participants additional fines of up to three times the amount of any profit made by the market participant. NZX found in a review that tribunal penalties over the last four years have fallen within the lower end of the fine range, while some existing penalty bands were not being used and their application was unclear.

If a rule is broken by an issuer there is no obligation for individual directors or officers to pay any of the imposed fines. The NZX wants to be able to impose penalties on individuals, similar to the power of the Financial Markets Authority.

The NZX proposes an alternative penalty regime, which looks at the overall conduct of either the issuer or market participant, rather than a single rule breach. The bands would be broken into three categories of minor, medium or serious breaches, to allow better flexibility in relation to the fines needed.

The tribunal also has the power to publically censure after breaches, although it uses its discretion when it comes to minor infringements. The stock market operator is seeking feedback on whether the tribunal needs further guidance on when to name issuers or market participants for breaches.

Earlier this month, the tribunal censured Pyne Gould Corp, whose 2014 accounts are being looked into by the Financial Markets Authority, after it failed to ensure it had at least two independent directors, its second breach of corporate governance rules in recent months. The censure included paying $960 in NZX costs. Last week, RIS Group, a shell company listed on the NZAX, was publicly censured and fined $80,000 plus costs after missing the deadline to file its 2014 annual report, the third such breach since 2011.

BusinessDesk.co.nz

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