New Zealand is a country with many advantages for investors. New Zealand has a stable economic base that is well set up for long term international competitiveness. New Zealand has one of the world’s most efficient, competition-friendly economies. The New Zealand Government has and continues to endeavour to provide an economic setting that enables international investors to set up or join forces with New Zealand based companies.
New Zealand is also a country well placed geographically to take advantage of increasing trade with Asia and other Pacific Rim countries. New Zealand’s close trade and legal relationship with Australia gives businesses operating from New Zealand free access to a population of 24 million. This free trade relationship along with recent co-operation agreements with Singapore and Thailand, not to mention the recently agreed free trade agreement with the People’s Republic of China, have significantly increased the size of the New Zealand consumer market.
New Zealand also has a very fast and efficient business start-up regime. To establish a company, obtain the appropriate Inland Revenue Department registrations and commence business can all be done in a very short time and the procedures are considered to be some of the simplest and most straight forward of all the OECD nations. There are also very few restrictions placed on businesses operating in New Zealand with a freedom of choice in regard to the nature of the business, its size and its location.
New Zealand had a population of approximately 4,300,000 with more than 75% of New Zealanders live in the North Island and approximately 30% of New Zealanders living in the area comprising greater Auckland.
New Zealand has as its the base monetary unit - the New Zealand dollar. The dollar has a floating exchange rate and there are no restrictions on the amount of funds which may be brought into or taken out of New Zealand.
New Zealand is a parliamentary democracy with power highly centralised in a one-chamber Parliament in the capital city of Wellington. General elections are held every three years under a "mixed member proportional" representation system.
Almost all legislation relating to the conduct of business and the operation of companies in New Zealand is enacted by Parliament and administered by Government agencies. As New Zealand is not a federal state, all legislation is passed by a single body, the House of Representatives, which is the highest law-making body in the country.
Second tier Government also operates in New Zealand, in the form of a number of territorial and local authorities. The members of these organisations are also democratically elected on a regular basis. However the national political parties do not play a significant role in the Local Government process other than in enacting statutory reforms such as the recent creation of the "Auckland Council" which has resulted in a single unitary authority covering the greater Auckland region. It is hoped that the establishment of this Super City will bring the many and varied council operational bylaws into one unified set of rules under which development and business may operate more efficiently. Most of these Local Government organisations have the power to raise their own money and set and collect their own rates and levies. Generally these bodies do not play a large role in the governing of the economy, but specific business proposals may require planning, environmental or building consent. As such, businesses may therefore have to deal with Local Government requirements as well.
The Reserve Bank of New Zealand is New Zealand’s central bank. The three main functions of the Reserve Banks are:
Following a significant deregulation in the banking sector, New Zealand has maintained a relatively open policy on the entry of new registered banks into the market place. Banking licences are now available to any banking organisation that can demonstrate banking expertise and that has a good standing in the financial community.
The largest of the commercial trading banks in New Zealand are owned by foreign banking organisations with the largest number being owned by Australian banking organisations.
Most commercial banking services are still provided by the commercial trading banks and these banks offer the usual range of banking and business services such as letters of credit, bills of exchange, commercial bill facilities, term loans and forward exchange dealing facilities.
NZX's three securities markets are the NZSX (New Zealand Stock Market), the NZDX (New Zealand Debt Market) and the NZAX (New Zealand Alternative Market). These markets form a diverse offering for companies wishing to raise capital and for investors looking for secure investment products. These markets feature many of the nation's most established and proven companies and offer new opportunities for emerging new companies and listed issuers.
The NZSX is home to many of New Zealand's best known brands. Informally known in the past as the Main Board, the companies listed here stand out as symbols of success in their own right and as proof of the potential of local investment in the local market and beyond. They are the cornerstone companies of NZX and New Zealand's economy. There are currently about 168 companies listed on the NZSX.
The NZDX offers a range of investment securities including corporate and government bonds and fixed income securities. The goal for this market is to expand and grow the facility that already exists, providing companies and a broader spectrum of investors with more opportunities for investment diversification and growth.
The NZAX is tailor-made to facilitate growth and is specifically designed for fast-growing, developing companies, and companies with non-traditional structures (such as co-operatives) – all with a common need for market facilitation.
Overseas companies can establish their presence in New Zealand in one of two ways:
The following are factors which need to be considered in determining whether a foreign company should establish its presence by way of a branch or subsidiary in New Zealand:
In the case of both branches and subsidiaries an annual return fee is payable to the Registrar of Companies each year when annual accounts are filed.
If a branch or a subsidiary is established in New Zealand, as opposed to buying an existing company and converting it to a subsidiary, a variety of incorporation documents must be filed in the Companies Office. If an existing company is acquired, then documents recording the change of directors and shareholders must be filed.
If the cost of setting up a business in New Zealand, or the cost of any acquisition exceeds $NZ100 million, or is in respect of a "Specified Business" or "Sensitive Land", the consent of the Overseas Investment Office ("OIO") will be required. If the consideration does not exceed this figure and the business is not a Specified Business or adjoining or involving Sensitive Land, then generally the only consent required is from the Registrar of Companies for the use of the company name.
The exception to the general rules relating to overseas investment in New Zealand is that relating to investments by Australians in New Zealand which will come into effect in the middle of 2011. These investments will have a higher threshold as a result of the closer economic relationship between Australia and New Zealand. That threshold is currently $477 million. The exception will not apply if the acquisition involves Sensitive Land.
This Act applies to three categories of investment by overseas persons in New Zealand, being:
The Act requires consent to be obtained for a transaction before the overseas investment is given effect under the transaction. Overseas persons are all persons who are not ordinarily resident in New Zealand, any company that is not incorporated in New Zealand and any company incorporated in New Zealand the shares of which are controlled as to 25% or more by an "overseas person".
Every person or associate making an overseas investment must apply to the OIO for consent to the overseas investment transaction. A considerable amount of information is required to be included in any application for consent, including information about the applicant, details of the investment, the rationale for the investment and evidence that the investment meets the relevant criteria in the Act. The consent process takes, on average, 3 months. If the application involves Sensitive Land it will most likely be referred to the Ministers of Finance and Land Information for final approval.
The threshold for business investments has increased so that screening is required for significant business assets which are non-land business assets valued at over $100 million. Screening is also necessary where Sensitive Land is being acquired but not on land adjoining some non-sensitive reserves. Land will not, however, be screened based on value alone. This means therefore that purchases of land by overseas persons with unimproved value of more than $10 million will no longer require consent where the land is not screened for other reasons. The removal of this requirement is only expected to affect purchases of land in the main central business districts.
All overseas investments subject to the screening regime will continue to be required to meet the "investor" test and, in the case of acquisitions of Sensitive Land will also be required to meet the "benefit" test or the "economic interests" test. In balancing these matters OIO may well consider "mitigating" factors in deciding if the acquisition by foreign interests may proceed. The investor test requires the applicant to show business acumen, financial commitment and good character. Further, it requires that the applicant does not contravene provisions of the Immigration Act 1987 dealing with criminal records, deportees and terrorist activities. Under the benefit test the applicant must demonstrate a real and identifiable benefit to New Zealand, whether through the creation or retention of jobs, technology, further investment in growing the business or the expansion of markets or the introduction of investment for development purposes. Issues such as the "economic interest" test and the "mitigating" factors are relatively new and were only established by new regulations brought into effect late in 2010. Guidance is available in the form of a "directive letter" which is updated from time to time by the OIO. The updates directive letter may be found on the New Zealand Government website: www.treasury.govt.nz/publications/informationreleases/overseasinvestment/review2009
New Zealand has a land ownership scheme based on a central register. This system is similar to the "Torrens" system in Australia and means that almost every parcel of land has its own separate unique identifier ("title").
Once the purchaser's name is noted on a title as the registered proprietor the rights to ownership of that land are guaranteed by the New Zealand Government. This therefore means that if there are any errors in the chain of ownership, this will not affect the validity of the title and there is no need to trace the history in order to prove ownership. The only exception to this guarantee is if the registered owner has obtained title by way of fraud.
In New Zealand it is possible to purchase property personally or as a company or as a trust. There are different tax implications and processes in place for companies and trusts and further advice should be sought regarding the appropriate structure of, and vehicles for, such purchases.
Land Information New Zealand (LINZ) is responsible for providing New Zealand's land information and registration system. LINZ has automated its land titles and survey business functions in a computer system called Landonline. Landonline provides remote access facilities to subscribing customers such as lawyers, surveyors, real estate agents and local authorities. Landonline operates a system called "e-Dealing" which is a mechanism that transfers property immediately using internet protocols. The result of this e-Dealing is that once the electronic instruments are certified, signed and released by a lawyer or conveyancing professional for registration the computer land register will be instantaneously and automatically altered so as to record the purchaser of a piece of land as the registered proprietor of the title.
In order to have a legally binding contract for sale and purchase of land, the contract or agreement must be signed by the parties in writing. A contract can however be subject to conditions. Common conditions could be that it is subject to the purchaser being able to raise finance or the purchaser being satisfied with the Land Information Memorandum ("LIM") relating to the property. The LIM is provided by the local territorial authority. If the conditions of the contract are not satisfied by the due date, then either party may elect to cancel the contract at any time thereafter. The parties however, have a duty to take all reasonable steps to satisfy the conditions, and if the conditions are not satisfied and the contract comes to an end any deposit paid is generally refundable in full unless the parties have agreed otherwise.
In New Zealand the construction of buildings is controlled by the Building Act 2004 which applies not only to the construction of new buildings, but also to the alteration, demolition and maintenance of existing buildings. The main reason for having building controls is to ensure buildings are safe and healthy to live or work in. There is a three-part framework for setting out these controls:
The migration of people into New Zealand is controlled by the Government through the New Zealand Immigration Service. The majority of tourists and visitors are generally permitted to enter New Zealand for brief stays with a minimum of immigration formality. Temporary entry is normally granted through a visitor's visa which can be approved for a period of up to nine months. Other types of visas are available. They are:
There are five categories under which prospective immigrants may qualify for permanent residence in New Zealand. Under the present policy. The categories are as follows:
The first three categories are reviewed as follows:
Applicants are assessed against a points system. The basis upon which points are awarded changes from time to time, however, it is generally reassessed annually and details publicised shortly after the reassessment.
Points may be awarded on various criteria, such as the applicant's educational and vocational background as well as age and financial standing.
In terms of age, applicants aged between 25 and 29 years receive a maximum of 10 points with a sliding scale down to 54 years of age. Those aged above 55 years do not qualify under this category.
In addition, points may be awarded for a family sponsor and if the applicant has a genuine employment offer.
An adequate knowledge of the English language, good health and character are also required.
There are two Business Investor Categories at present. They are:
To be approved residence under the Entrepreneur Category, an applicant generally needs to:
As the rules and requirements relating to immigration change from time to time, it is impossible to set out the full details at length. We suggest that you check out details on the Immigration New Zealand website (www.immigration.govt.nz) so that you can obtain the most up-to-date information and criteria:
In New Zealand the Government collects and administers tax through the Inland Revenue Department ("IRD"). The IRD collects tax under two primary pieces of legislation. They are:
The latter is a consumption tax commonly called "GST". In addition import tariffs and miscellaneous excise duties, rates and gift duty as direct and indirect taxes are collected. However, a bill is currently before the House of Representatives that will repeal all gift duty in New Zealand. Some of the important features of the New Zealand tax system and policy environment are that there is no capital gains tax in respect of certain transactions, no employee payroll tax and no social security tax.
As at 1 October 2010, a New Zealand resident company is taxable on its worldwide income at a rate of 28%. All companies, whether resident or non-resident are taxed at the same rate. However it should be noted that an overseas company is taxed at the same rate but only in respect of its income that has a New Zealand source.
As from 1 October 2010 income tax for individuals is as follows:
|Income $0 - $14,000||10.5%|
|Income $14,001 - $48,000||17.5%|
|Income $48,001 - $70,000||30%|
|Income in excess of $70,000||33%|
Individuals are regarded as resident in New Zealand for income taxation purposes if they have a permanent residence in New Zealand (regardless if they also have one elsewhere) or if they are personally present in New Zealand for more than 183 days within a 12 month period.
Companies are considered to be resident in New Zealand if they:
GST is currently charged at a fixed rate of 15% (subject to change) on the supply of most goods and services (with the sale and purchase of shares and financial transactions being the notable exception). Also on certain types of transactions between registered parties GST is charged at 0%. Typically these are business sales and purchases where the transaction is considered a "going concern" and some land transactions where they meet the requirements of the GST Act for 0 rating.
The 0% rate for land transactions between registered parties is a very recent change and it only became effective as at 1 April 2011. The change was implemented so as to streamline and simplify the sales and purchase process for land between parties that are registered for GST purposes. The change will not affect common land transactions such as the lease of land or buildings. Those types of transactions will still be subject to GST at 15%.
GST is intended to be borne by the final consumer of goods and services.
Residential property sales are exempt from GST in New Zealand although a residential property developer will usually be liable to pay GST on the sale of the property. Businesses are able to register for GST and claim a credit for any GST they incur in conducting their business while charging GST on their sales.
A person can register for GST provided that they are, or are going to be, conducting a taxable activity. A taxable activity is any activity carried on continuously and involves the supply of goods or services to another person for money.
Being GST registered is compulsory when supplies made in New Zealand have exceeded, or are likely to exceed NZ$60,000 in any 12 month period. All GST registered entities are required to file regular returns on GST collected by them and to account to the IRD for such GST.
With the exception of certain exempt companies, all companies are required to comply with the Financial Reporting Act 1993. Companies are required to produce "financial statements" which include a balance sheet, profit and loss statement and a statement of cashflows as at the end of each financial year. The financial statements must give a "true and fair view" of:
The Financial Reporting Act 1993 distinguishes between "exempt companies" and "reporting entities". Exempt companies are those which are not overseas persons and which do not have assets of more than $NZ450,000, or turnover which exceeds $NZ1,000,000 and do not form a group of companies. These companies are required to comply with the accounting standards prescribed from time to time by the Minister of Justice. A "reporting entity" includes all other companies. Reporting entities must prepare their financial statements in accordance with generally accepted accounting practice.
The Companies Act 1993 and the Financial Reporting Act 1993 also require that companies with overseas shareholdings carrying 25% or more voting power must be audited and their accounts filed in the Companies Office. Financial statements must be completed within five months of the end of each financial year.
The New Zealand Society of Chartered Accountants controls the profession in New Zealand, and is a member of the International Accounting Standards Committee. Generally, international standards are incorporated within New Zealand and most accounts are prepared using historic costs, recognising income on an accruals basis.
Companies are required to retain most of their business records, i.e. books of account recording receipts, payments, income or expenditure and vouchers, bank statements, invoices, receipts and all other financial accounts relating to the business for a period of seven years after the end of the income year to which they relate. These records must be in the English language so as to enable the Commissioner of Inland Revenue in New Zealand to readily ascertain the assessable income derived by the taxpayer and allowable deductions.
All taxpayers, individuals and companies are required to furnish a return of income on the prescribed date for the income year ending on the preceding 31 March. If the Commissioner of Inland Revenue consents, a taxpayer may adopt an income year which ends on the date of the annual balance date of the taxpayer's accounts. In addition, companies are required to report certain payments made to residents and non-residents at the time the company return is furnished.
Legislation introduced in 2007 introduced a number of changes to the rules relating to financial arrangements and ensures that tax payers that adopt International Financial Reporting Standards ("IFRS") can continue to use tax rules that rely on accounting practice. For other tax payers the existing tax spreading methodologies continue to apply but without the option of using the Financial Reporting methods.
Set out below are details of some of the most significant legislation affecting businesses in New Zealand.
This Act is a continuation of the "no fault" compensation scheme for accidental injuries, whether in the workplace or at home.
Negligence suits in respect of personal injury for accidents are not possible in New Zealand and instead compensation must be sought from a governmental authority. In addition, it means that except in exceptional circumstances employers may not be sued by their employees if they are accidentally injured at work, however the employer may be prosecuted under the Health and Safety in Employment Act 1998. The Act provides that each employer is liable to pay an Accident Compensation levy in respect of each employee.
The levels of compensation provided under the legislation are subject to major limitations and are generally perceived to be less than adequate.
One of the primary objectives of the Commerce Act 1986 is to provide the framework for effective competition in New Zealand. The Commerce Act prohibits any company or individual carrying on certain anti-competitive practices and also prohibits the acquiring or strengthening of a dominant market position. The prior clearance or authorisation of merger or takeover proposals by the Commerce Commission is only necessary if the participants in the transaction believe that the transaction could result in a person acquiring a dominant position in a market or strengthening a dominant position in a market. The fines for failure to obtain clearance or authorisation where this is the case are substantial.
The Companies Act 1993 codifies the law relating to companies and lays down a wide range of rules.
The Companies Act covers such matters as choice of company name, procedures for incorporation of companies, the powers of the company and its officers, the duties of directors, the conduct of meetings, the raising of money for the company, the issue of shares and shareholders and their rights as well as other matters.
The Consumer Guarantees Act 1993 creates statutory guarantees to protect the consumer purchasing goods and services. The Act applies to the supply of goods or services by persons in trade (including manufacturers, importers and distributors) to a consumer.
A consumer is defined in the Act as a person who buys goods or services of a kind ordinarily bought for their personal, domestic or household use, but not for resale, use in production or in the case of goods, repair to goods or fixtures on land.
The Credit Contracts and Consumer Finance Act 2003 creates a statutory regime that is designed to offer consumers more protection against unfair credit practices and loan sharks – for example, inadequate disclosure of financial information and excessive lending fees. The Act applies to credit contracts entered into by persons primarily for personal, domestic or household purposes and also covers consumer leases in some circumstances. The Act does not apply to leases in the course of trade.
The Act requires the lender or supplier under a contract to undertake continuous disclosure and is primarily designed to provide flexible and fair rules relating to fees and interest charges on credit contracts. It allows the lender to impose any fee as long as it is not unreasonable and it regulates the manner in which interest can be charged.
The Act also provides for the modification of consumer contracts where the consumer is suffering hardship and, in a situation where it is determined that the credit contract may be oppressive, the Act provides for the credit contract to be modified.
The Employment Relations Act 2000 creates a statutory regime that is designed to regulate the relationship between employers and employees in New Zealand.
Underpinning the Act is the obligation on all parties to employment relationships to deal with each other in good faith. Simply, they must not mislead or deceive each other.
The Act sets out the minimum terms and conditions of employment and regulates matters relating to both individual employment agreements and collective employment agreements.
The Act has established the Employment Relations Authority which is intended to function as an informal but efficient forum for the determining of legal issues relating to employment matters. It has very wide powers and the intention is to enable problems to be dealt with at the lowest possible level at the first instance, and as quickly as possible.
The operation of the Act is overseen by the Department of Labour which also offers mediation services between employers and employees.
The Fair Trading Act 1986 is intended to ensure that consumers are given full and accurate information about goods and services. Its main operative provision states that "no person, in trade, shall engage in conduct which is misleading or deceptive". This legislation provides a significant degree of consumer protection which has been further expanded by the Consumer Guarantees Act 1993.
The Financial Reporting Act 1993 creates a statutory regime that is designed to protect the public in relation to matters pertaining to the issue of securities in the marketplace.
All companies and issuers (entities which issue securities to the public) are obliged to complete financial statements in accordance with the requirements of the Act.
The Act established the Accounting Standards Review Board. The primary function of this Board is to review and approve financial reporting standards which are the standards that prescribe the content of financial statements.
Under the Act all companies are either "reporting entities" or "exempt companies".
Reporting entities are:
Every reporting entity must have a balance date in each calendar year. There are regulations clearly stipulating the basis upon which reporting entities must prepare and report their financial statements and requiring that its financial statements be audited.
Exempt entities are all companies, other than reporting entities.
The requirement for exempt entities are similar to those of reporting entities, however, the degree of oversight and audit is slightly less.
As stated at the outset, the overall intent of the Act is to ensure that those offering securities to the public are preparing accounts that are to a minimum set standard, that are audited and that are registered and available for review. Their aim is to ensure that the public are protected against misleading prospectuses and other issue documents.
The primary purpose of this law is to encourage employers to take responsibility for the management of health and safety in the workplace. There is a general duty on employers to take all practical steps in this regard. These steps include providing and maintaining a safe work environment, maintaining facilities for the safety of employees, ensuring machinery and equipment is designed and set up to be safe for employees to operate, ensuring that employees are not exposed to hazards, and developing and implementing procedures for dealing with emergencies. Employers must ensure that employees are capable of operating machinery or plant which they may be required to use as part of their employment. Employers are required to investigate and record any accident at work, preserve the accident scene where practicable, and notify the Department of Labour as soon as possible after the accident has occurred. A breach of the Act may result in significant penalties.
This Act established a new regime for the recognition and registration of security interests in all personal (non real estate) property. It is modelled on Article 9 of the American Uniform Commercial Code in various Personal Property Security Acts enacted in the Canadian provinces.
This Act is designed to protect the privacy of individuals in relation to the collection, use, access, correction and disclosure of personal information about individuals. The Act established 12 individual privacy principles for the protection of personal information. These principles are the key part of the Act. In business the application of the Act arises in areas such as sales and marketing, credit control and employment.
The Resource Management Act 1991 in general terms deals with managing the land, air and water of New Zealand in a manner that is sustainable. It deals not only with planning approvals but generally with the effects of developments and creates responsibilities for dealing with these effects.
Each investment proposal needs to be separately considered in light of both this legislation and the regional and district plans adopted by territorial authorise under it.
The Securities Act and its regulations provide minimum standards which must be complied with if shares or other investment securities are to be offered to the public. It established the Securities Commission and provides that no shares or other securities may be offered to the public unless the offer is accompanied by a registered prospectus, or is made in the form of an authorised advertisement. Certain minimum standards fixed by the Securities Act must be followed in respect of registered prospectuses and authorised advertisements to ensure that fair and accurate information is supplied to the public. The Securities Act has no application to offers made otherwise than to the public. For example, it does not apply to offers made only to relatives or close business associates of the issuer. However, these exceptions are very limited.
The Takeovers Act 1993 and its regulations provide minimum standards which must be complied with if an offeror is attempting to acquire shares in a company in New Zealand. The Act established the "Takeovers Code" and also implemented the "Takeovers Panel" which sits in deliberation on takeover offers.
The Takeovers Panel has both a policy role in that it reviews legislation relating to takeovers and the application of the legislation to specified companies and then based on those reviews, the Takeovers Panel makes recommendations to the Government in respect of proposed amendments to legislation in New Zealand.
The Takeovers Panel also has the responsibility for enforcing the provisions of the Takeovers Code. The Takeovers Panel has quite wide reaching powers of investigation and enforcement when it suspects a breach of, or intended breach, of the Takeovers Code.
The Takeovers Panel also has the ability to grant exemptions from the provisions of the Takeovers Code. The Takeovers Panel may grant exemptions from compliance with any provision of the Takeovers Code. Exemptions may be granted to any person or any class of persons or class of transaction or class of offer, and may be made subject to terms and conditions.
IMPORTANT NOTE: DISCLAIMER This paper was prepared by Burton Partners, Solicitors, Auckland, New Zealand ("Burton Partners") on the basis of facts known to it at the time of preparation. However, any person reading this paper should seek specific advice in respect of specific proposals and should not rely on the general information contained in this paper. Burton Partners is not liable for any loss or damage arising as a result of any information contained in this paper for any reason whatsoever.