In the previous issue of Corporate Reporter we noted the Court of Appeal's decision in Tiroa E & Te Hape B Trusts v CE Land Information New Zealand 2012 [NZCA] 355 which provides overseas investors with further clarity on one of the four core criteria which make up the 'investor test' under New Zealand's overseas investment regime. See the article Crafar farms acquisition provides further guidance on the overseas investment regime's 'investor test' for further details.
Since publishing the article, the Supreme Court has dismissed an application by the two Maori trusts (who were members of a consortium interested in purchasing the Crafar farms) for leave to appeal the Court of Appeal's finding that there were no errors in the approach adopted by the Overseas Investment Office and the Ministers in reaching a decision on the business experience and acumen requirement set out in s 16(1)(a) of the Overseas Investment Act 2005.
The Supreme Court considered that the points which the proposed appeal would raise were too dependent on the specific facts of the case to raise questions qualifying for an appeal. In the court's opinion the conclusions that the controlling individuals of the proposed purchaser of the Crafar farms (namely the directors of Milk NZ's parent company, the China-based Shanghai Pengxin Group Co Ltd) had the requisite business experience and acumen, and that the information before the responsible Ministers was sufficient for them to so conclude, were essentially assessments which turned on the particular circumstances of the applicant and application. The Supreme Court found no obvious error in the careful and common factual assessments made by the High Court and Court of Appeal.
The Supreme Court's decision Tiroa E & Te Hape B Trusts v Chief Executive of Land Information 2012 [NZSC] 86 is available here.