Contents Section Page New Zealand in a Nut Shell 1 Business Landscape 2 Overseas Investment Regime 6 Immigration 10 Structuring the Business 13 Capital Markets and Takeovers 17 Tax 21 Trade Practices 28 International Trade 32 Intellectual Property 34 Employee Relations 36 Real Property and Resource Management 40 Taking Security over Personal Property 42 Corporate Insolvency Law 44 Climate Change and Emissions Trading 47
New Zealand in a Nutshell
New Zealand is made up of two main islands (the North and South Islands), Stewart Island (at the bottom of the South Island), and some smaller outlying islands. The combined area of these islands is 268,000 square kilometres (similar to the size of Japan, Great Britain, or Colorado).
• New Zealand is a culturally diverse nation, with a population of approximately 4.3 million. English is the everyday language. Maori is the other official language, but is not spoken widely. We have no official religion. • We have a culture of innovation and adaptability, and New Zealanders are famous for their "can-do" attitude. Although geographically isolated, travel is deeply embedded in the New Zealand psyche. Many New Zealanders work overseas at some stage in their lives, and many return home inspired by what they have seen. • The New Zealand dollar is the unit of currency. The dollar is freely floated against all major currencies. • The capital city and seat of government is Wellington (at the bottom of the North Island). The largest city is Auckland (at the top of the North Island). • New Zealand is proud of its reputation as one of the least corrupt nations for conducting business. • New Zealand has a largely temperate climate. The warmest summer months are typically January to March. New Zealand's traditional summer holiday period is over Christmas and the New Year. Many businesses close for two weeks over that period. • Public holidays are: New Year: 1 and 2 January Waitangi Day: 6 February Easter: Friday and Monday of Easter weekend (dates vary) Anzac Day: 25 April Queen's Birthday: First Monday in June Labour Day: Last Monday in October Christmas Day: 25 December Boxing Day: 26 December Anniversary Day: Each province observes an anniversary day (dates vary) • Flying direct, it takes about 23 hours to fly from Auckland to London, 12 hours to Los Angeles, San Francisco, Beijing or Hong Kong, 10 hours to Singapore or Tokyo, and three hours to Sydney or Melbourne. • The scenery in New Zealand is superb, varied, and unobscured by pollution. Much of the country is sparsely populated, and we generally enjoy an exceptional quality of life. • For more general information about New Zealand, Tourism New Zealand, and New Zealand Trade and Enterprise have created a helpful website at www.newzealand.com. See also Investment New Zealand at www.investmentnz.govt.nz.
New Zealand is a parliamentary democracy and constitutional monarchy in the British "Westminster" tradition. The New Zealand government is led by the Prime Minister, although Her Majesty Queen Elizabeth II is New Zealand's official head of state. The Governor-General is the Queen's personal representative in New Zealand and fulfils constitutional, ceremonial, and community leadership roles. 2.2 Legal system The legal system is based on the English common law system. Many New Zealand statutes are based on English and/or Australian statutes. The court system is hierarchical, with the courts of first instance being the District Court and the High Court. There are rights of appeal from the District Court to the High Court, and from the High Court to the Court of Appeal. The Supreme Court is New Zealand's final appeal court. There are also a number of specialist courts and tribunals, including the Environment Court, the Employment Court, and the Employment Tribunal. Arbitration is an increasingly common means of resolving disputes. Arbitration is governed by the Arbitration Act 1996 (based on the UNCITRAL Model Law) unless the parties agree otherwise. If parties have agreed to submit a dispute to arbitration, the court must uphold that agreement and stay any court proceedings that are within the scope of an arbitration agreement. The High Court will enforce an arbitral award as though it was a judgment of the court. 2.3 Principal regulators (a) The Overseas Investment Office administers foreign investment policy, in accordance with relevant overseas investment legislation (see section 3 of this guide); (b) The Financial Markets Authority and the Reserve Bank of New Zealand are the main regulators of financial markets, services, investments, insurance and other financial products. The Financial Markets Authority is also the co-regulator (with NZX Limited) of the New Zealand Stock Exchange (see section 6 of this guide); (c) The Commerce Commission enforces anti-trust and consumer protection legislation, and the legislation specific to the telecommunications, dairy, and electricity industries (see section 8 of this guide); and (d) The Accident Compensation Corporation administers New Zealand's no-fault accident compensation regime (described below). 2.4 Monetary policy New Zealand's monetary policy is operated by the Reserve Bank of New Zealand (the central bank). The Reserve Bank is required to formulate and implement monetary policy with the aim of achieving and maintaining price stability. Under current policy the Reserve Bank must aim to keep inflation within a 1-3% range on average over the medium term. Treasury acts as the New Zealand government's principal adviser on financial and economic issues.
2.5 Foreign exchange controls There are no restrictions on the flow of capital or earnings of a New Zealand business to overseas investors. Profits, dividends, interest, royalties, or management fees can be moved freely either into or out of New Zealand, although payments out of New Zealand may be subject to non-resident withholding tax (see section 7 of this guide). No special licences or permits are required to buy or sell foreign currency, unless the person is in the business of changing foreign currency (see section 2.8 of this guide). 2.6 Registered banks Registered banks may conduct banking operations in New Zealand, and there is a relatively open policy on the entry of new registered banks to the market. The banks with the largest presence in New Zealand are: (a) ANZ New Zealand Limited; (b) ASB Bank Limited; (c) Bank of New Zealand; (d) Westpac New Zealand Limited; and (e) Kiwibank Limited (owned and operated through New Zealand's national postal operator). Of these, all but Kiwibank are owned by larger Australian banks. 2.7 "No fault" accident compensation system New Zealand has a statutory no-fault accident compensation scheme providing cover for most individuals who suffer a personal injury by accident in New Zealand. The scheme (which originated in the Accident Compensation Act 1972) is set out in the Accident Compensation Act 2001 (ACC Act). The ACC Act covers personal injuries suffered by any person in New Zealand, including visitors, and wherever they occur – whether at work or otherwise. The ACC Act prohibits legal claims for compensation arising out of or relating to most types of personal injury suffered in New Zealand as a result of an accident. A wide range of cover is available under the ACC Act for most types of personal physical injury suffered as a result of an accident. Means of compensation include payments for loss of earnings, medical treatment, rehabilitation costs, disability allowances, and death benefits for dependants. Accident compensation benefits are available to visitors who are injured in New Zealand, although earnings related compensation is not available where the visitor's income is derived outside New Zealand.
The accident compensation scheme is funded largely through levies on employers, employees, and taxes on vehicle registration and petrol. The scheme is administered by the Accident Compensation Corporation. 2.8 Regulation of financial services industry People in New Zealand who are in the business of providing a "financial service" must be registered on the Financial Service Providers Register. Financial services include acting as an insurer, issuing securities to the public, providing credit under a credit contract, changing foreign currency, providing brokering services, lending or holding debt instruments, or providing financial guarantees and "financial adviser services". All providers of "financial adviser services" and "brokers" are regulated by a financial advisers' regime. A provider of a "financial adviser service" is someone who gives "financial advice" to a client, provides a "discretionary investment management service" to a client, or provides an "investment planning service" to a client. The financial advisers' regime: (a) imposes professional conduct and competency requirements; (b) imposes disclosure obligations on certain financial advisers and brokers; (c) imposes trust accounting obligations on brokers; (d) requires all providers of "financial adviser services" and brokers to be registered; (e) requires people who provide retail clients with "financial adviser services" in relation to complex financial products to be authorised or, in some cases, operate through a "qualifying financial entity"; (f) requires people who provide financial adviser services or broking services to retail clients to be members of an approved dispute resolution scheme; and (g) provides a regime to regulate financial advisers and brokers. 2.9 Money laundering Money laundering is illegal in New Zealand. The money laundering rules are set out in the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AMA/CFT Act). Breach of these rules can give rise to both civil and criminal liability. The AML/CFT Act came into force on 30 June 2013. The anti-money laundering regime imposes a number of counter money laundering and anti-terrorism measures (including customer due diligence, reporting and record-keeping, and surveillance and enforcement powers). Currently the AML/CFT Act applies to financial institutions (broadly defined) and casinos. The effect of the legislation is to align New Zealand's anti-money laundering regime more closely with recommendations issued by the inter-government Financial Action Task Force. It is envisaged that further reforms will be enacted before 2017 (and possibly as early as 2014). Under those reforms, the AML/CFT Act will also apply to certain other businesses and professions, such as accountants, lawyers, conveyancing practitioners, real estate agents, and businesses that deal in high-value goods (eg auctioneers and bullion dealers).
2.10 Contract law There is relatively little regulation of contracting in New Zealand. Parties are generally free to contract on their own terms. Contract law in New Zealand is largely made up of common law principles, subject to certain statutory parameters. For example: (a) certain statutory consumer protection measures will apply irrespective of the terms of the contract (see section 8 of this guide); (b) contracts with minors are subject to the Minors' Contracts Act 1969; (c) credit contracts with consumers are regulated by the Credit Contracts and Consumer Finance Act 2003; (d) certain contracts must be in writing (including those involving interests in land, employment, and mortgages); (e) the Contractual Remedies Act 1979 allows parties to cancel a contract for misrepresentation (in certain circumstances, and provided that the terms of the contract do not provide for their own cancellation regime), and gives the courts power to grant a wide variety of relief; and (f) the Contractual Mistakes Act 1977 allows the courts to grant relief in limited circumstances if a party can establish that it entered a contract due to a genuine mistake. Contract law applies to overseas-owned entities in the same way as it applies to New Zealand entities, although overseas-owned entities may need to obtain consents necessary under the overseas investment rules (described briefly in section 3 of this guide). There are no separate requirements for contracts involving foreign-owned entities. The governing law of a contract between an overseas-owned entity and a New Zealand entity will be determined by the terms of the contract, interpreted in light of the usual common law "conflict of laws" principles.
Overseas Investment Regime 3.1 Regulation of foreign investment in New Zealand Foreign investment in New Zealand is generally encouraged, although there are certain rules in place designed to ensure that sensitive New Zealand assets (land in particular) are protected. The overseas investment rules are set out in the Overseas Investment Act 2005 (Overseas Investment Act) and the Overseas Investment Regulations 2005 (Overseas Investment Regulations) and are administered by the Overseas Investment Office (OIO). The OIO screens all defined categories of "overseas investments" and then monitors "sensitive" assets to ensure they are being managed appropriately going forward. 3.2 When is OIO consent required? The OIO (and, in some cases, the Ministers of Finance and Land Information (Ministers)) must consent to an acquisition by an "overseas person" of "sensitive land", "significant business assets" or fishing quota. Consent must be obtained before the transaction is carried out. (a) What is an "overseas person"? An “overseas person” includes: • an individual who is not a New Zealand citizen or resident; • an overseas registered company; and • a New Zealand registered company with 25% or more of its shares held by an overseas person or persons. (b) What is "sensitive land"? "Sensitive land" is: • non-urban land areas greater than 5 hectares; • land on certain specified islands; or • other parcels of land that are classified as "sensitive" due to their inclusion of, or proximity to, waterways, parks, conservation areas, or areas of historic significance. An acquisition of "sensitive land" will include an investment in a business which owns or leases sensitive land. Acquiring rights or securities of a person which controls "sensitive land" in circumstances which cause that person to become an "overseas person" will also trigger the need for OIO consent, even if that acquisition is immaterial. This needs to be taken into account when investing in any company.
(c) What are "significant business assets"? An acquisition of "significant business assets" includes: • a transaction in which the investor buys 25% or more of a business where the consideration paid for the New Zealand part of the investment exceeds NZ$100 million (or, in the case of an investment by an "Australian non-government investor", NZ$477 million); • a transaction in which the investor buys 25% or more of a business where the value of the New Zealand assets of the business exceed NZ$100 million (or, in the case of an investment by an "Australian non-government investor", NZ$477 million); • a transaction in which the investor acquires any property in New Zealand (including goodwill and other intangible assets) for more than NZ$100 million (or, in the case of an investment by an "Australian non-government investor", NZ$477 million); or • incurring expenditure in establishing a business exceeding NZ$100 million (or, in the case of an investment by an "Australian non-government investor", NZ$477 million). The New Zealand and Australian Governments signed an Investment Protocol in February 2011 that came into effect on 1 March 2013. The threshold for Australians investing in New Zealand business assets increased from NZ$100 million to NZ$477 million. (d) Is it possible to obtain an exemption? The Overseas Investment Regulations automatically exempt certain specific transactions from the requirement for OIO consent. It is also possible to apply for an exemption in certain limited circumstances. 3.3 What is involved in obtaining OIO consent? (a) Application The process starts with the investor submitting an application to the OIO (in the prescribed form) along with an application fee. Template application letters are available from the OIO. (b) Timing The OIO aims to process consent applications within 30 to 70 working days, plus a five day initial review period. The timeframe will vary, depending on the nature of the application. The more complex "sensitive land" applications can take longer. (c) Matters in a consent application The application for consent focuses on whether the overseas person: • has relevant business acumen and experience; • is financially committed to the investment; and • is of good character.
If the investment involves an interest in sensitive land, the applicant must also demonstrate that the purchase will bring a net benefit to New Zealand. The OIO looks at several factors when assessing such an acquisition, including whether the investment will: • create new job opportunities; • create new technology, or introduce new managerial or technical skills; • develop new export markets or increased market access; • add to competition, and create greater efficiency or productivity; • enhance services available in New Zealand; • introduce into New Zealand additional investment for development purposes; or • increase processing of primary products. Other factors which the OIO regularly considers include: • whether mechanisms are in place to protect or enhance indigenous vegetation and wildlife, historic heritage, and walking access; • whether refusal of consent would result in an adverse effect on New Zealand's image/trade relations or a breach of international obligations; • whether the overseas person plans other significant investment or has previously undertaken investment in New Zealand; • whether the investment gives effect to and/or advances government policy or enhances ongoing viability of other investments undertaken; • whether New Zealand's economic interests will be adequately promoted by the overseas investment; and • whether there are opportunities for New Zealand oversight or involvement (eg New Zealand directors or a New Zealand head office). The application for consent should address all of these factors and explain those factors that are relevant and irrelevant to the proposed investment. The applicant may also be asked to provide a management plan and supporting statements detailing how it will manage any sensitive land going forward. To assess a number of the above factors relevant to determining the benefit of an investment, the OIO applies a "with or without" test. This assesses the difference between the benefits to New Zealand "with" the proposed investment and what would happen anyway "without" the proposed investment.
This test is a new test resulting from a High Court ruling in early 2012 regarding a legal challenge to the decision of the OIO to grant consent to an overseas investor. (d) Special rules for farm land, waterways and foreshore If an overseas person wishes to acquire farm land, or shares in a company owning farm land, that land must be marketed for sale in New Zealand for 20 working days (to persons who are not overseas persons) before the OIO is able to consent to the purchase by an overseas person. The Crown has a right of first refusal to purchase certain land which constitutes the beds of certain waterways or foreshore and seabed land. (e) Special rules for large areas of farm land The following factors are given high importance by the OIO if an overseas person wishes to invest in a large area of farm land (ie 10 times the average farm size of the relevant type of farm): • whether the investment will benefit New Zealand; • whether New Zealand's economic interests will be adequately promoted by the overseas investment; and • whether there are opportunities for New Zealand oversight or involvement (eg New Zealand directors or a New Zealand head office). (f) Ongoing monitoring of compliance The OIO monitors the activities of the overseas person post-acquisition to ensure that the investor is complying with the law, any representations made in its application for consent, and any conditions of consent imposed by the OIO. The overseas person is required to report on compliance. 3.4 Extracting or exploiting New Zealand's natural resources Mining activities (including prospecting, exploration and extraction) require a permit under the Crown Minerals Act 1991. If the land in question is conservation land, then the Minister of Conservation must consent to the proposed activities.
Immigration There are a number of options available for non-New Zealanders wishing to work and live in New Zealand on a permanent or temporary basis. Current immigration policy focuses on migrants who can add economic value and enhance the creative industries in New Zealand. For further information on current immigration policies, guides, and forms, please see Immigration New Zealand's website (www.immigration.govt.nz). New Zealand has a visa framework. A visa is an authority for an individual to travel to, or stay in, New Zealand. 4.1 Work visas A person who is not a New Zealand citizen, or does not hold a New Zealand residence class visa, special temporary visa, or military visa, must have a work visa to work in New Zealand. Work visas allow for work in New Zealand for a limited period, generally up to three years, from the date of arrival in New Zealand (but up to five years for certain essential skills workers). For someone seeking to settle permanently in New Zealand, or set up a business, residency is likely to be more appropriate (discussed briefly below). There are a number of categories under which work visas are available, including Essential Skills Work, Work to Residence, Specific Purpose or Event, and Horticulture and Viticulture Seasonal Work. There is also a Canterbury Skill Shortage List which identifies particular skills needed for the Christchurch rebuild following the earthquakes. People with the particular skills will be able to obtain a temporary work visa without Immigration New Zealand conducting the usual labour market check. These categories of work visa are described in more detail on Immigration New Zealand's website (www.immigration.govt.nz). To qualify for a work visa, under any category, the applicant must satisfy basic health and character requirements and have a passport that is valid for at least three months past the date the applicant is due to leave New Zealand. As well as satisfying these requirements, the applicant must also satisfy the specific requirements of the category under which they are applying. For example, if applying under the Essential Skills Work category, the applicant must have a job offer from a New Zealand employer who is either approved to recruit foreign workers or able to prove that there are no suitable New Zealand candidates for the job. 4.2 Long Term Business visa The Long Term Business visa provides an opportunity to those who are interested in residence (under the Entrepreneur category, described below), and interested in establishing a business in New Zealand, to assess the viability of their business and determine whether or not they want to live in New Zealand. To qualify for a Long Term Business visa the applicant must meet certain health, character, and English language requirements, have a sound business plan, and provide evidence that he or she has sufficient funds (aside from investment funds) to support themselves and any partner or children coming with them.
If an application for a Long Term Business visa is successful, the holder will initially be issued a nine month visa which can be extended to three years, provided the business has been started within the initial visa period. The holder can then apply for residency under the Entrepreneur category (described below). 4.3 New Zealand residency The two most commonly used categories of business-related residency applications are the Skilled Migrant and Business Migrant categories. (a) Skilled Migrant The Skilled Migrant category is designed to ensure that people migrating to New Zealand have the skills the country needs. This category works on a points system – applicants may only apply for residency if they have enough points. Points are earned on the basis of qualifications, work experience, or job offers in New Zealand. Applicants must also satisfy heath and character requirements, be English-language proficient, and be aged from 20 - 55 (inclusive). (b) Business There are several different ways in which a Business Migrant may apply for residency in New Zealand. Principally these are to apply for residency having obtained a Long Term Business visa (described above), apply under the Entrepreneur category, or fall within the one of the two Investor categories. • Entrepreneurs To obtain residence under the Entrepreneur category, applicants must establish a business that benefits New Zealand significantly and be "self employed" in that business for at least two years. Those who hold a Long Term Business visa may apply for residency under this category. An Entrepreneur Plus category has been introduced that offers a faster path to residence for applicants who (among other things) create at least three full time jobs and invest NZ$500,000 in their business. This category requires no minimum time period for which the business must be operated. • Investors There are two categories under the Investor category (Investor Plus and Investor). Under the "Investor Plus" category, the applicant must invest NZ$10 million in New Zealand for three years and must stay in New Zealand for at least 44 days in each of the last two years of the three year period. There are health and character requirements, but no requirements as to age, business experience, or English language proficiency. Under the "Investor" category, the applicant must invest NZ$1.5 million for four years in New Zealand. The applicant must also stay in New Zealand for at least 146 days in each of the last three years of the four year period. The applicant must meet health and character requirements, be under 66 years of age, have at least three years of business experience, and have the required English language skills.
The above is a general summary only of the current immigration categories. The immigration categories can and do change. We recommend that anyone who seeks to live or work in New Zealand should start by reading the relevant guides and forms available on the Immigration New Zealand's website (www.immigration.govt.nz), and should seek expert advice before embarking on the application process.
Structuring the Business 5.1 Common business structures Commonly, offshore entities establish a New Zealand business by using one of the following structures: (a) establishing a local subsidiary company (or purchasing an existing local company); or (b) registering a branch of an overseas company. Recently, limited partnerships have become more widely used by offshore entities to set up business in New Zealand (particularly in the venture capital and private equity industry). 5.2 Establishing a local subsidiary company Incorporating a company in New Zealand is generally a quick and simple process. It can be done online (at the Companies Office website www.companies.govt.nz). Once the company name has been reserved and appropriate documents are lodged, incorporation can be confirmed within a matter of hours (although this process may be delayed where the proposed director(s) and/or shareholder(s) are based overseas – see (c) below). The necessary documents are an application to incorporate a company, director consent(s), shareholder consent(s), and, in some circumstances, additional evidence of the identity and consent of the director(s) and shareholder(s) to own and manage the company. The basic incorporation and annual filing requirements are as follows: (a) The registered office (and address for service) must be in New Zealand. A solicitor or accountant can provide the company's registered office. The company does not need to have a physical place of business in New Zealand. (b) The company must have at least one shareholder and one director – neither of whom (currently) need be resident in New Zealand. Director residency requirements are likely to change (explained further below). Signed consents (in the prescribed form) of both the director(s) and shareholder(s) are required for the incorporation process. (c) If the proposed director(s) and/or shareholder(s) are based overseas, the Companies Office may require additional evidence to verify the identity of the director(s) and shareholder(s) and to confirm their consent to own and manage the company. Evidence includes the original copies of the director and shareholder consents referred to above, certified copies of passports (or another specified form of identification), and proof of residency (such as an original or certified utilities account). If a proposed shareholder is an overseas entity, the Companies Office may require a copy of the entity's certificate of incorporation and a certified copy of the resolution made by the entity when agreeing to become a shareholder of the company. (d) There is no need for a formal constitution (equivalent to articles of association or corporate bylaws). The rights and obligations set out in the Companies Act 1993 (Companies Act) apply by default. A company is free to adopt a constitution modifying certain rules which would otherwise apply under the Companies Act. A well-drafted constitution is usually desirable, to permit a number of corporate activities (eg share buy-backs, issue of redeemable shares, indemnification and/or insurance of directors).
(e) Annual filing and ongoing compliance requirements include the following: • annual return to the Companies Office confirming certain company particulars (including the registered office, directors, and shareholders of the company); • annual meeting of shareholders (or a written resolution of shareholders in substitution for a meeting); and • preparation of annual financial statements and filing of those statements if the company is (a) an "issuer" or (b) a subsidiary of an overseas company or a "large" company, in which 25% or more of the voting shares are held by an overseas person or company in the top New Zealand incorporated company in the corporate chain. Annual financial statements must comply with the relevant requirements of the Financial Reporting Act 1993 (Financial Reporting Act). Any auditor who audits the financial statements of an "issuer" (as defined under the Financial Reporting Act) is required to hold a licence issued by (or, in the case of audit firms, be registered with) the Financial Markets Authority. If a company qualifies as a "non-active entity" under the Financial Reporting Act, the company may file a non-active declaration instead of preparing and filing financial statements. The tax rules which apply to New Zealand companies are explained in section 7 of this guide. The Government has introduced legislation (Companies and Limited Partnerships Amendment Bill) to require New Zealand companies to have at least one director who lives in New Zealand, or who lives in a country with which New Zealand has reciprocal enforcement arrangements. The list of "reciprocal enforcement" countries has not been provided yet, but indications are that Australia will qualify. 5.3 Establishing a New Zealand branch of an overseas entity An overseas company "carrying on business" in New Zealand must register as an "overseas company" with the New Zealand Companies Office. The term "carrying on business" is not exhaustively defined in the Companies Act. In every case the question is to be decided on its facts, in light of all the surrounding circumstances. Courts have determined "carrying on business in New Zealand" to include the following: (a) having a physical place of business in New Zealand; (b) having employees in New Zealand; (c) maintaining bank accounts in New Zealand; (d) having a degree of regular involvement in transactions in New Zealand; or (e) having some form of "permanence" in New Zealand.
In isolation the existence of one of these factors may not necessarily be sufficient for finding that a business is carried on in New Zealand. However, the more of these (or other) factors that exist, the more likely it is that a business is being carried on in New Zealand. There could be grounds for a finding that business is being carried on in New Zealand if more than one of these (or other) factors exists. Prior to registering a New Zealand branch for an overseas company, the Companies Office may require evidence (referred to above at 5.2(c)) to verify the identity of the director(s) and shareholder(s) of the overseas company. An overseas company must file annual financial statements with the New Zealand Companies Office. The financial statements must satisfy the requirements for overseas companies set out in the Financial Reporting Act. The financial statements of overseas companies must be audited, comply with generally accepted accounting practice (as recognised in New Zealand), and include "company" accounts for the overseas company, "group" accounts for the overseas company and any subsidiaries, "company" accounts for the New Zealand branch operation, and "group" accounts (if applicable) for the New Zealand branch operation. An overseas company may file financial statements prepared in accordance with the laws of the overseas company's home jurisdiction if the Registrar of Companies is satisfied that: (a) the financial statements comply with the requirements of the law in force in the country where the overseas company is incorporated; and (b) those requirements are substantially the same as those in New Zealand. If an overseas company qualifies as a "non-active entity" under the Financial Reporting Act, the company may file a non-active declaration instead of preparing and filing financial statements. If an overseas company is registered in New Zealand only because it maintains a share register in New Zealand, the Companies Office will generally accept a letter stating that is the case, instead of "company" and "group" accounts for the New Zealand branch operation. The tax rules applicable to overseas companies which operate a branch in New Zealand are explained in section 7 of this guide. 5.4 Purchasing a business in New Zealand An overseas entity seeking to acquire a local company, or the assets of a local company, will need to confirm: (a) whether consent from the OIO will be necessary (explained in section 3 of this guide); and/or (b) whether the acquisition will have the result of substantially lessening competition in the relevant market, and so require the approval of the Commerce Commission (explained in section 8 of this guide). No stamp duty is payable on the transfer of shares, assets (including goodwill), or land in New Zealand. If a transaction involves acquisition of assets (and not shares), goods and services tax may be payable (explained in section 7 of this guide). 5.5 Agency arrangements An entity that conducts only a small amount of business in New Zealand may wish to appoint a local agent rather than establishing a branch or subsidiary.
Agency appointments can be informal, capable of termination on short notice, or can be recorded in a more comprehensive written agreement. New Zealand agency law will typically apply unless the parties agree to the contrary. A local agent may benefit from employment rights depending upon the nature of the relationship and the terms of the appointment of the agent. 5.6 Limited partnership New Zealand's limited partnership regime is based on the limited partnership regimes operating in the United States (the "Delaware Model") and the United Kingdom. It is governed by the Limited Partnerships Act 2008 (Limited Partnerships Act). Key features of a limited partnership (LP) include: (a) it enjoys separate legal personality; (b) it must have at least one general partner and one limited partner (who cannot be the same person); (c) the general partner is responsible for the day to day management of the LP, and is liable for all of the LP's debts and liabilities, to the extent the LP cannot pay those debts and liabilities; (d) subject to paragraph (e) below, the limited liability partner (generally a "silent" investor) is liable only to the extent of its capital contribution to the LP; (e) limited partners (who wish to preserve their limited liability status) must not be involved in the management of the LP, although there are certain specified activities in which the limited partners may participate but still retain their limited liability protection; (f) it can have an indefinite lifespan (if desired); and (g) it is subject to "flow-through" tax treatment, where the profits and losses of the LP flow through to the partners who have made a capital contribution to the LP. A limited partnership is effective upon registration with the New Zealand Companies Office. It must have, and will be governed by, a partnership agreement (which does not need to be filed publicly) and by the Limited Partnerships Act.
Capital Markets and Takeovers 6.1 Overview of public markets New Zealand has a small, but well-developed, capital market, on which securities are actively traded. NZX Limited (NZX) operates New Zealand's only registered securities exchange. NZX operates three main markets: (a) New Zealand Stock Market (NZSX), the premier equities market; (b) New Zealand Alternative Market (NZAX), for smaller and growing companies; and (c) New Zealand Debt Market (NZDX), for corporate and government bonds and fixed-income securities. There are three ways by which a company can list on one of the NZX markets: (a) A "primary listing" is designed for companies which are listed on one of the NZX markets only. (b) A "dual primary listing" enables companies to have a full listing on an NZX market as well as an overseas exchange. (c) An "overseas listing" allows companies with a full listing on an overseas exchange (which is their home exchange) to list on an NZX market – but does not require the company to comply with the majority of the NZX Listing Rules (and for this reason is different to a dual primary listing). 6.2 Regulators of market activity The key regulators of New Zealand's capital markets are the Financial Markets Authority (FMA), NZX and the Takeovers Panel. FMA was established on 1 May 2011. It took over the functions of the Securities Commission, the Government Actuary, and the Commissioner for Financial Advisers, and certain functions of the Companies Office and the (then) Ministry for Economic Development (now, the Ministry of Business, Innovation, and Employment). FMA is responsible, among other things, for administering the law in relation to: (a) offers of securities to the public in New Zealand, governed by the Securities Act 1978 (Securities Act) and its associated regulations; and (b) market conduct (including insider trading, market manipulation, continuous disclosure, and financial adviser disclosure and compliance), governed by the Securities Markets Act 1988 (Securities Markets Act). NZX operates and is co-regulator (with FMA) of New Zealand's registered securities exchange, comprising both equity and debt markets (NZSX, NZAX, and NZDX respectively). Listed companies are required to comply with the applicable listing rules.
Accredited market participants must comply with the NZX Participant Rules. The Takeovers Panel administers the conduct of takeover activity in relation to "code companies" in accordance with the Takeovers Code (issued under the Takeovers Act 1993) (Takeovers Code). 6.3 Issuing securities in New Zealand As a general rule, securities may only be offered to members of the public in New Zealand if the issuer of the securities has a registered prospectus and investment statement (concerning those securities) complying with the requirements of the Securities Act. If securities are offered and allotted to a member of the public in breach of the Securities Act, the allotment can be void and the issuer required to repay subscription money, with interest. There is also potential criminal liability for breaches of the Securities Act. The "public" includes any section of the public in New Zealand, however selected – and can be one person. A person who purchases goods from an issuer, is an employee or client of an issuer, or already holds securities previously issued by the issuer is not precluded from being a member of the public. A security will be considered as being offered in New Zealand if the offer is received by a person in New Zealand, unless an issuer can demonstrate that it took all reasonable steps to ensure that members of the public in New Zealand may not accept an offer. 6.4 Exemptions from the public offer disclosure requirements Offers made to certain persons will not trigger the public offer requirements. The principal exemptions are offers made to any of the following persons: (a) relatives and close business associates of the issuer or its directors; (b) those whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invest money; (c) those who are each required to pay a minimum subscription price of at least NZ$500,000 for the securities; (d) those who have already subscribed for securities issued by the same issuer making the present offer, and have paid a minimum subscription price of NZ$500,000 for those securities (in a single transaction), but only if the second offer is made within 18 months of the initial NZ$500,000 subscription; and (e) people certified as either "wealthy" or "experienced". The wealthy certification requires the relevant person to have net assets of at least NZ$2 million or an annual gross income of at least NZ$200,000 for each of the last two financial years. There is no general "sophisticated investor" exemption from the public offer disclosure requirements, nor a "safe harbour" number of people to whom an offer can be made without triggering the public offer disclosure requirements.
There are a series of class exemptions, exempting specific issuers (or groups of issuers) from certain provisions of the Securities Act. A number of these exemptions relate to, or focus on, offers made in New Zealand by overseas companies as part of a global offering and employee incentive schemes offered by offshore entities to New Zealand employees. FMA is also able to grant individual exemptions from the requirements of the Securities Act. 6.5 Securities law review New Zealand's securities law is currently under review. The Financial Markets Conduct Act 2013 (FMC Act) became law in September 2013. It is intended to replace the Securities Act, the Securities Markets Act, and other securities-related legislation. The FMC Act will come into force in two phases. The first phase of implementation will commence on 1 April 2014, where the fair dealing obligations will begin to apply, financial market participants will be able to seek licences (including for crowd-funding), and key growth-focussed initiatives will commence (including an exemption for employee share schemes). The second phase of implementation will commence on 1 December 2014, which includes the new disclosure requirements, go-live of the online registers, and licensing conduct obligations. Once part of the FMC Act is in force, there is generally a transitional period of between one and two years, with certain milestones taking effect during this period. The regulations required to support the FMC Act have not been finalised and will be subject to a consultation process during 2014. 6.6 Takeovers regime New Zealand's takeovers regime is governed by the Takeovers Code. This regime focuses on protecting minority shareholders in a takeover situation. The regime applies to any "code company," being a company that is listed on a New Zealand stock exchange (or has been listed in the previous 12 months), or has 50 or more shareholders and 50 or more share parcels. The Takeovers Code's "Fundamental Rule" prohibits any person and its associates from either acquiring more than 20% of the voting securities in the code company, or increasing the percentage of securities it holds or controls where the person holds or controls more than 20% of the voting securities. Exceptions to the Fundamental Rule are: (a) a full or partial offer made in accordance with the provisions of the Takeovers Code; (b) an acquisition or allotment approved by an ordinary resolution of shareholders of the code company in accordance with the provisions of the Takeovers Code; (c) an increase, by up to 5% a year, by a person holding between 50% and 90% of shares on issue in a code company; (d) a requirement by a person holding 90% or more of the shares on issue in a code company to the remaining shareholders to sell their shares through the compulsory acquisition provisions in the Takeovers Code; and
(e) acquisitions permitted under an exemption granted by the Takeovers Panel. 6.7 Private equity and venture capital New Zealand's private equity and venture capital industry has grown substantially in recent years. A variety of private equity and venture capital funds (both overseas and New Zealand based) are actively involved in the New Zealand market. Since the introduction of the new limited partnership regime (discussed briefly in section 5 of this guide), a number of funds have been established as limited partnerships (rather than limited liability companies or unincorporated joint ventures). Several "angel" investor networks, focused on investing in early stage companies with high growth potential, operate throughout New Zealand. The New Zealand Government actively supports the private equity and venture capital industry by co-investing with private investors through the New Zealand Venture Investment Fund. More information about the New Zealand private equity and venture capital market is available from the New Zealand Private Equity & Venture Capital Association Inc's website (www.nzvca.co.nz). Tax The principal means of taxation in New Zealand are income tax (including withholding tax) and goods and services tax. There is no general capital gains tax and there are no gift, stamp, or estate duties. 7.1 Income tax generally (a) Scope of income tax New Zealand income tax is imposed on the world-wide income of New Zealand residents. Income of non-residents is also subject to income tax to the extent that income has a New Zealand source (although the liability may be reduced by operation of an applicable double tax agreement (DTA) (discussed below)). "Income" includes most receipts on revenue account as well as some gains that would be classified as capital gains in other jurisdictions. (b) Income tax rates The current graduated tax rates for individuals for income (including personal services income) are as follows: • 10.5% for income up to NZ$14,000 per annum; • 17.5% for income between NZ$14,001 and NZ$48,000 per annum; • 30% for income between NZ$48,001 and NZ$70,000 per annum; and • 33% for income in excess of NZ$70,000 per annum. All forms of employment income are taxable on a gross basis. No deductions are allowed for expenditure incurred in deriving employment income. Employers withhold tax from salary and wage payments under the Pay As You Earn (PAYE) system. Self-employed individuals pay tax at the same rates, but on a net basis - they are allowed deductions for expenditure incurred in deriving their income. Companies (including New Zealand subsidiaries and branches of foreign companies) and other business taxpayers are taxed on their net income after allowable deductions. The current company tax rate is 28%. Trustees are taxed on their net income at 33%. However, net trust income treated as beneficiary income is taxed at the beneficiary's marginal tax rate. New Zealand's trust tax rules are primarily based on the residence of the settlor: • Non-New Zealand sourced income of New Zealand resident trustees of certain trusts with no New Zealand resident settlor is exempt; and in some situations, New Zealand resident settlors of trusts can be liable for tax on income derived by non-resident trustees.
(c) Income tax residence Individuals are resident in New Zealand for income tax purposes if they have a permanent place of abode in New Zealand, even if they also have a permanent place of abode overseas. Further, an individual is resident if he/she spends more than 183 days in aggregate in any 12 month period in New Zealand, regardless of whether or not he/she has a permanent place of abode in New Zealand. Resident tie-breaker provisions also apply for the purpose of DTAs. A company incorporated in New Zealand is automatically resident in New Zealand for income tax purposes. A company incorporated outside New Zealand is tax resident in New Zealand if its head office, centre of management, or the place from which the directors exercise control of the company (whether or not exclusively) is in New Zealand. If a company is resident in New Zealand, and also resident under the domestic laws of the country with which New Zealand has a DTA (discussed further below), the "tie-breaker" provision in that agreement will determine where the company is considered resident for the purposes of applying the DTA. 7.2 Company income tax (a) Imputation system The dividend imputation system allows companies to pass on the benefit of income tax paid at company level as credits attached to dividends distributed to shareholders. ("Dividend" is widely defined and includes most benefits provided by a company to a shareholder or any associate.) Imputation credits can be used by New Zealand resident shareholders to offset their income tax liabilities (including the liability for the dividend paid). Credits attached to dividends paid to one company by another can be used to offset the recipient company's tax liability and credited to that company’s imputation credit account for subsequent distribution to the recipient company’s shareholders. Non-resident withholding tax (NRWT) on dividends paid to a non-resident shareholder by a resident company is zero-rated to the extent that the dividend is fully imputed, and the non-resident shareholder: • has a 10% or more direct voting interest in the resident company; or • has less than a 10% direct voting interest in the resident company and the DTA-limited New Zealand tax rate on the dividend is less than 15%. Non-resident shareholders with a less than 10% interest in the resident company receiving an imputed dividend may receive a supplementary dividend under the foreign investor tax credit (FITC) regime, providing effective relief from NRWT on the dividend. In relation to non-imputed dividends paid to non-resident shareholders (eg dividends sourced from a capital profit of the New Zealand resident company), NRWT may in some cases apply. However, most of New Zealand's DTAs will limit the rate Tax of NRWT to 15% (the domestic law rate for non-imputed dividends being 30%) and, in some cases, to 5% or 0%. (b) Inter-company dividends Most inter-company dividends are taxable. However, those received by one New Zealand resident member of a wholly-owned group from another are exempt. Also, those received by a New Zealand company from a foreign company are generally exempt. (c) Branch taxation New Zealand branch operations are liable to income tax on branch profits at the rate of 28%, unless New Zealand has a DTA with the jurisdiction in which the head office is located, and the New Zealand branch is not a "permanent establishment" for the purposes of that agreement, which would be unlikely. Branches are taxed on their net income, after allowable deductions. Any loss or expenditure deducted must be directly attributable to the branch operations. Income tax paid by branches is a final tax. No withholding tax is payable on subsequent repatriation of the tax-paid profit overseas. Any tax-free capital gains realised by the branch can be repatriated overseas without any New Zealand tax cost. NRWT is imposed on the payment of royalties (broadly defined under the New Zealand legislation), and NRWT or an approved issuer levy (AIL) on payment of interest, by a branch operation to non-residents. (d) Thin capitalisation New Zealand's thin capitalisation regime can apply where either a branch or a New Zealand resident subsidiary owned by non-New Zealand residents is debt funded (whether by associated or non-associated party debt, and whether from onshore or offshore). Under this regime, the branch or New Zealand resident subsidiary will be denied a deduction for interest to the extent that its New Zealand group's ratio of debt to assets exceeds 60%, and 110% of the branch or subsidiary’s world-wide group debt to assets ratio. The thin capitalisation rules currently apply only if a single non-resident (or group of associated non-residents) controls the New Zealand investment, although draft legislation has been introduced that proposes to extend the rules to cover New Zealand companies controlled by groups of non-residents "acting together", despite not being associated in any legal sense. An overhaul of the thin capitalisation rules is also currently being considered, with officials suggesting that, as an alternative to the debt to asset test, the rules be based on the ratio of interest to earnings. A similar set of thin capitalisation rules applies (for most taxpayers) to inhibit excessive gearing of New Zealand resident entities relative to the gearing of their Controlled Foreign Companies (CFCs – see below). (e) Transfer pricing New Zealand has a comprehensive transfer pricing regime dealing with cross-border transactions between associated parties. The objective of the transfer pricing regime is to prevent New Zealand tax-paying entities reducing their New Zealand tax burden by inflating deductions or reducing income through non-arm's length transactions with non-resident associates.
(f) Taxation of offshore subsidiaries New Zealand has a "branch equivalent" CFC regime. The CFC regime applies where five or fewer New Zealand residents (with associated parties' interests combined) directly or indirectly control more than 50% of a foreign company, or if a single New Zealand resident controls 40% or more of such a company and no non-resident (who is not associated with the New Zealand resident) controls the same or a greater percentage. New Zealand has an "active"/"passive" income distinction in its CFC rules. Only "passive" income of CFCs (such as certain interest and dividends, royalties, and some rent) is attributed to New Zealand resident CFC shareholders. The CFC rules are complex, with a number of exemptions and qualifications. In particular, no attribution of "passive" CFC income is required provided the CFC's gross "passive" income is less than 5% of its total gross income. Further, there is a general exemption from the CFC regime for CFCs that are resident and subject to tax in Australia. Under a similar regime, income tax is imposed under various attribution and deemed rate of return methods on non-CFC foreign investment fund (FIF) interests held by New Zealand residents. The FIF rules in respect of ("non-portfolio") interests of 10% or more in overseas companies incorporate an "active"/"passive" distinction and an Australian exemption as in the CFC rules. In addition, "portfolio" (less than 10%) interests in some Australian listed companies and other Australian entities are exempted, as are FIF interests held by individuals and family trusts costing less, in aggregate, than NZ$50,000. 7.3 Unit trusts, superannuation funds, and other managed investment vehicles Unit trusts are deemed to be companies for income tax purposes and taxed as above. Widely-held superannuation funds are generally subject to tax at 28% on their net income. Employer contributions to superannuation schemes are subject (with certain exceptions) to a superannuation contribution withholding tax. Some widely-held unit trusts, superannuation funds, and other investment vehicles are able to elect into the portfolio investment entity (PIE) tax regime. PIE status has certain tax benefits including an ability for the PIE's income to be taxed by reference to investors' marginal tax rates (with a 28% cap) and an exemption from tax on New Zealand and some Australian share trading revenues. Further, New Zealand tax on foreign-sourced income attributable to non-resident investors in PIEs meeting certain criteria is exempt. A PIE otherwise pays tax at 28% on all income, including foreign-sourced income, attributable to non-resident investors in the PIE. 7.4 Withholding taxes (a) Resident withholding tax (RWT) Interest and dividend income paid to a New Zealand resident taxpayer is subject to RWT (unless the recipient holds a valid certificate of exemption, and subject to certain other exemptions). Tax RWT is deducted at the following rates: • 10.5%, 17.5%, 30%, or 33% on interest paid to individuals; • 28% or 33% on interest paid to companies; and • 33% on all dividends (except to the extent imputed). (b) Non-resident withholding tax (NRWT) New Zealand sourced dividends, interest, and royalties paid to non-residents are subject to NRWT. The rate of NRWT is: • 30% in respect of dividends, other than "fully imputed" dividends, for which (as discussed in section 7.2(a)) either the rate is 0% or NRWT is relieved by the FITC regime (and the rate is in any event capped at 15% in most of New Zealand's DTAs and, in some cases, less); • 15% in respect of interest (capped at 10% in most DTAs and, in some cases, 0%) unless the non-resident has a New Zealand branch, and subject to the AIL regime (below); and • 15% in respect of royalties (subject to 5%, 10%, or 15% caps, in DTAs). Where a New Zealand tax resident borrows from a non-resident, non-associated lender, the New Zealand resident may, by completing certain registrations, utilise the AIL regime. The AIL regime requires both registration of the borrower as an approved issuer and registration of the loan as a registered security. Under this regime, if the New Zealand resident borrower pays the 2% AIL in respect of the gross interest payment, NRWT is zero-rated. In addition, even if the interest would not otherwise be subject to NRWT (because the non-resident lender has a New Zealand branch), under certain DTAs it can still be beneficial for the New Zealand borrower to pay AIL, depending on the circumstances. AIL is a duty payable by the New Zealand resident borrower and so is not likely to be creditable in a non-resident lender's home jurisdiction. The levy is deductible to the borrower for income tax purposes. The AIL regime is not available if the non-resident derives the interest jointly with a New Zealand resident. Due to a recent legislative change, AIL may itself be zero-rated in relation to payments of interest under certain widely-held bonds issued in New Zealand. Various other withholdings are required from payments such as directors' fees, honoraria, salespersons' commission, and non-resident contractors' fees. 7.5 The DTA network New Zealand has entered into DTAs with 39 trading partners. The DTAs are designed to remove the double taxation (ie tax applying in two jurisdictions in respect of the same income) which would, in their absence, be suffered by New Zealand residents investing overseas and non-residents investing in New Zealand. DTAs have been entered into with Australia, Austria, Belgium, Canada, Chile, China, the Czech Republic, Denmark, Fiji, Finland, France, Germany, Hong Kong, India, Indonesia, Ireland, Italy, Japan, Korea, Malaysia, Mexico, Netherlands, Norway, Papua New Guinea, Philippines, Poland, Russian Federation, Singapore, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand, Turkey, the United Arab Emirates, the United Kingdom, the United States of America, and Vietnam.
As a member of the OECD, New Zealand has adopted the OECD Model Convention as the basis of its DTAs, although it has made a number of reservations to the model. New Zealand has also entered into 21 Tax Information Exchange Agreements (TIEA) with Anguilla, Bahamas, Bermuda, the British Virgin Islands, the Cayman Islands, Cook Islands, Curacao, Dominica, Gibraltar, Guernsey, Isle of Man, Jersey, Marshall Islands, Netherland Antilles, Niue, Sint Maarten, St Christopher and Nevis, St Vincent and the Grenadines, Samoa, the Turks and Caicos Islands, and Vanuatu. However, only the agreements with the Cayman Islands, Cook Islands, Curacao, Gibraltar, Guernsey, Isle of Man, Jersey, the Netherland Antilles, Niue, Samoa, and Sint Maarten are in force at present. New Zealand is also a signatory to the multilateral Convention on Mutual Administrative Assistance in Tax Matters (Convention). The Convention is designed to assist with the detection and prevention of tax evasion, by allowing cooperating tax authorities to request information from one another. It will also enable tax authorities to seek assistance in collecting outstanding tax debts from absconding taxpayers who move overseas. Unlike New Zealand's DTAs and TIEAs, the Convention is multilateral, with 61 current signatories. 7.6 No capital gains tax There is no general capital gains tax in New Zealand. However, gross (taxable) income includes amounts derived from certain transactions which would be taxed as capital gains in other jurisdictions. These transactions include the following: (a) profits from the sale of land in certain circumstances; (b) profits from the sale of any personal property acquired with the purpose of sale or pursuant to a profit-making scheme; (c) certain royalty payments; and (d) certain gains in the value of "financial arrangements" under the accruals regime. 7.7 Goods and Services Tax (GST) GST is a value added tax imposed on supplies of goods and services in New Zealand by a GST registered person. The rate of GST is generally 15% of the value of a supply. A supplier of goods and/or services must be registered for GST if the annualised value of taxable supplies made by that supplier exceeds or is likely to exceed NZ$60,000 in a 12 month period. Additionally, a person may register voluntarily, provided they carry on a taxable activity (or intend to carry on a taxable activity from a specified date). Voluntary registration is also available to certain non-residents not carrying on a taxable activity in New Zealand, provided certain requirements are met. GST charged by registered persons on supplies of goods or services is known as "output tax". A registered person reduces output tax charged on supplies made in a taxable period by GST paid by the registered Tax person in the course of making those supplies ("input tax"). The net amount is paid to Inland Revenue or claimed as a refund. The importation of goods is subject to 15% "import GST". Further, in some circumstances, a New Zealand recipient of imported services must account for GST to Inland Revenue under the "reverse charge" rules. Some supplies, most importantly supplies of financial services, are exempt from GST (although some supplies of financial services will be treated as zero-rated supplies). In addition, certain supplies (including sales of businesses as going concerns) are zero-rated (ie GST is reduced to 0%). Most transactions between two GST-registered persons that have a land component are required to be zero-rated for GST purposes, provided certain criteria are met. The main difference between exempt and zero-rated supplies is that a registered person making zero-rated supplies may claim input for GST paid in the course of making those supplies, whereas a maker of exempt supplies may not. GST returns must be filed every one, two, or six months, depending on the level of turnover of the business. 7.8 Other taxes (a) Fringe Benefit Tax (FBT) FBT is payable by employers on the value of most non-cash benefits provided to their employees, eg motor vehicles, low interest loans. The FBT rate depends on the marginal tax rate of the employees. (b) ACC levy New Zealand employers are charged a levy under New Zealand’s universal no-fault accident compensation regime. The rate of the levy depends on the nature of the employer’s business activity. Self-employed persons also pay these levies. An additional levy is also paid by employees. The employee levy is paid through the PAYE system. (c) Gift duty New Zealand's gift duty regime was abolished with effect from 1 October 2011. Dispositions of property for inadequate consideration made on or after this date will not be subject to gift duty. However, certain dispositions of property for inadequate consideration can have adverse income tax consequences. (d) Customs and excise duties Import duty applies to the importation of many goods, subject to various preferential rules of origin under free trade arrangements with various trading partners. Excise and excise equivalent duties apply to the manufacture and importation of petroleum, alcohol, tobacco, and other products.
Trade Practices 8.1 Overview New Zealand's trade practices regime is principally provided for in the following three statutes: (a) Commerce Act 1986 (Commerce Act); (b) Fair Trading Act 1986 (Fair Trading Act); and (c) Consumer Guarantees Act 1993 (Consumer Guarantees Act). 8.2 Commerce Act The Commerce Act sets out the competition law principles in New Zealand. The Commerce Act is enforced by the Commerce Commission. (a) Restrictive trade practices The following restrictive trade practices are prohibited: • contracts, arrangements, or understandings which have the purpose, effect, or likely effect of "substantially lessening competition" in a relevant market; • price fixing arrangements or understandings between competitors (certain joint ventures or joint buying arrangements may be exempt from this); • taking advantage of a substantial degree of power in a market for an anti-competitive purpose; and • resale price maintenance (when a supplier controls retail pricing). (b) Acquisitions that substantially lessen competition The general rule is that mergers and acquisitions that would have, or would be likely to have, the effect of substantially lessening competition in a market are prohibited. "Market" is a market in New Zealand for goods and services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them. Safe harbours The Commerce Commission has adopted certain "concentration indicators" to give guidance as to whether a business acquisition is unlikely to substantially lessen competition in a market. These are where either: 8 Trade Practices • the three largest firms in the market have less than 70% of the market share and the combined entity will have less than 40% of market share; or • the three largest firms have more than 70% of the market share but the market share of the combined entity will be less than 20%. "Vertical" acquisitions (whether upstream or downstream) are also subject to the Commerce Act, although there are no safe harbours available for such acquisitions. Clearance New Zealand has a voluntary notification and clearance regime. Parties contemplating an acquisition may apply for clearance if they are in doubt as to whether or not the acquisition will result in a substantial lessening of competition. Clearance for an international merger given by offshore anti-trust regulators does not protect the transaction in New Zealand. If the merger involves a New Zealand business, and the transaction may result in substantially lessening of competition in the relevant New Zealand market, parties should consider whether it is appropriate to seek clearance from the Commerce Commission. Authorisation If the merger will result in a substantial lessening of competition, the parties can apply to the Commerce Commission for authorisation. However, authorisation is very rarely granted as the parties must convince the Commerce Commission that the public benefits associated with the merger outweigh the anti-competitive harm. (c) Penalties for breach If parties choose to proceed with an acquisition without seeking prior clearance or authorisation, and the Commerce Commission considers that the acquisition would substantially lessen competition, the Commission is able to seek an injunction (preventing the acquisition going ahead), a "cease and desist" order, and/or a divestment order. Pecuniary penalties can also be ordered: up to NZ$500,000 for an individual and up to NZ$5 million for a company. Large financial penalties can also be ordered for engaging in restrictive trade practices: up to NZ$500,000 for an individual. Penalties for a company can be up to the greater of: • NZ$10 million; • three times the value of any commercial gain resulting from the contravention; or • 10% of the turnover of the company (and all of its interconnected companies). (d) Competition law reform The Commerce (Cartels and Other Matters) Amendment Bill is currently before Parliament. The Bill redefines what amounts to cartel conduct and criminalises "hard core" cartel activity; individuals convicted of cartel offences would face up to seven years imprisonment. The Bill is likely to come into force in the first half of 2014.
8.3 Fair Trading Act The Fair Trading Act applies generally in New Zealand. This Act seeks to: (a) prohibit conduct that is misleading or deceptive (or likely to mislead or deceive), and to prohibit conduct that is unfair; and (b) require disclosure of consumer information which relates to the supply of goods and services and which promotes product safety. There are some generally stated prohibitions against misleading and deceptive conduct and false or misleading misrepresentations. Whether the conduct in question was deliberate or accidental is largely irrelevant to any question of breach. There are also specific rules concerning: • employment advertising; • pyramid selling schemes; • bait advertising; • offering gifts and prizes; and • referral selling. Product safety standards apply to specific products (such as the supply of baby walkers, cots, and bicycles). The Commerce Commission is responsible for administering the Fair Trading Act. It actively monitors business conduct in New Zealand to check compliance, and has the power to bring proceedings for breach in its own right. Breach carries civil and criminal liability. 8.4 Consumer Guarantees Act The Consumer Guarantees Act sets out a series of guarantees which apply to all sales to consumers of goods or services in New Zealand of a type ordinarily acquired for personal or household use. The guarantees create a minimum standard of quality which businesses selling such goods or services must meet, including: (a) being of acceptable quality; (b) being fit for a particular purpose (when the consumer has informed the supplier about that purpose); (c) matching a description; Trade Practices (d) ensuring spare parts are available; and (e) complying with a sample or demonstration model (where relevant). A consumer may seek redress from either the supplier or manufacturer of goods or services that do not meet the statutory guarantees. Suppliers of goods or services cannot contract out of the Consumer Guarantees Act unless goods or services are being sold for business purposes. 8.4 Consumer Law Reform Bill The Consumer Law Reform Bill is currently before Parliament. The Bill makes a number of amendments and additions to both the Fair Trading Act and the Consumer Guarantees Act. The Bill is likely to pass into law in the first half of 2014.
International Trade Goods can flow into New Zealand fairly freely, and New Zealand's export markets are extensive and broadening. New Zealand is particularly focused on securing free trade agreements with key trading partners. 9.1 Importing goods Goods can be imported into New Zealand easily. No import licences are required, although tariffs arise on a range of products (tariffs being New Zealand's main trade protection mechanism). Tariffs are still fairly high in relation to some goods, such as clothing and footwear. New Zealand is a party to the General Agreement on Tariffs and Trade (GATT). No other charges apply exclusively to imported products, although GST is charged on all imported goods (normally payable when the goods are cleared through customs). GST is discussed in section 7 of this guide. Parallel imports of nearly all goods are permitted. 9.2 Product labelling Goods sold in New Zealand, whether imported or manufactured locally, must comply with relevant labelling requirements. For example: (a) All products must comply with the general requirements of the Fair Trading Act that labelling cannot mislead or deceive, or be likely to mislead or deceive; and (b) Food and drugs must comply with the requirements of the Food Act 1981 and the Medicines Act 1981. 9.3 Anti-dumping Dumping of products on the New Zealand market is regulated by the Dumping and Countervailing Duties Act 1988. 9.4 Trade between Australia and New Zealand Agreements entered into between Australia and New Zealand in 1983 – called Australia and New Zealand Closer Economic Relations (CER) – have resulted in free trade between Australia and New Zealand of goods and services, and the parties have agreed to increase trade freedom in other areas. The Joint Food Standards allow food products to be manufactured in Australia or New Zealand to a single standard. The Trans Tasman Mutual Recognition Regime allows a product produced in, or imported into, and legally sold in Australia to be sold in New Zealand and vice versa. Mutual recognition of securities offerings was achieved in June 2008. The New Zealand and Australian Governments signed an Investment Protocol in February 2011 which came into effect on 1 March 2013. The new protocol makes it easier for Australians to undertake large-scale 9 International Tradeinvestments in New Zealand where there is no "sensitive land" involved (see section 3 of this guide). In particular, the threshold for "significant business asset" regulatory consent requirements has increased from NZ$100 million to NZ$477 million for an "Australian non-government investor". 9.5 Other free trade agreements New Zealand is a strong proponent for free trade, and has entered into a number of trade agreements with its trading partners. New Zealand has closer economic partnership agreements with Singapore, Thailand, and Hong Kong. New Zealand also has free trade agreements with Malaysia, the People's Republic of China, and each of the member states of the Association of South East Asian Nations (ASEAN). New Zealand is one of nine countries (also including Australia, Chile, Singapore, Vietnam, and the United States of America) currently negotiating the Trans-Pacific Partnership, or TPP, which aims to create a regional free trade agreement among member countries. 9.6 International Sale of Goods New Zealand is a party to the United Nations Convention on Contracts for the International Sale of Goods 1980, effective (in New Zealand) in 1995. The Convention regulates all aspects of international sales contracts, including contract formation and the rights, obligations, and remedies of both buyer and seller. The Convention applies to contracts for the sale of particular goods when both parties are from countries that are parties to the Convention, or where the party contracting with a New Zealand entity is from a country that is not a party to the Convention, but the contract is governed by New Zealand law. Parties can, however, specifically (by contract) exclude the Convention.
Intellectual Property Rights 10.1 Overview New Zealand has a well-developed system of intellectual property rights, which are governed by statute, case law, and international agreements. Trade marks, patents, designs, and plant variety rights can be registered at the Intellectual Property Office of New Zealand, which maintains a register of these rights and interests. New Zealand is a signatory to a number of intellectual property treaties and conventions, including the Paris Convention, the Patent Co-operation Treaty, the Berne Convention, and TRIPS (Trade-Related Aspects of Intellectual Property Rights). In September 2011 New Zealand passed the Trade Marks Amendment Act, adopting the Madrid Protocol. In September 2012 New Zealand deposited the Instrument of Accession to the Madrid Protocol and the Ratification of the Singapore Treaty with the World Intellectual Property Organization (WIPO). The Trade Marks (International Registration) Regulations 2012, which implement the Madrid Protocol, came into force on 10 December 2012. The long-awaited Patents Bill was finally passed into law in September 2013. It is expected to come into force in September 2014, once regulations have been passed. The legislation updates New Zealand's patent law and brings it into line with international trends. 10.2 Trade marks Trade marks can be registered in 45 classes of goods or services consistent with the internationally adopted Nice Classification System (9th edition). A trade mark registration is valid for a term of 10 years from the date of application. Registration can then be renewed, in perpetuity, in successive 10 year periods. A trade mark can be removed from the register for non-use during a continuous period of three years. As noted above, the Madrid Protocol is now in force in New Zealand. This allows entities in Madrid Protocol countries to file international trade mark registrations designating New Zealand as a country to which trade mark protection would extend. New Zealanders can also file international registrations designating one or more overseas Madrid Protocol countries. 10.3 Copyright and designs New Zealand copyright law protects original works, including original artistic, literary, dramatic, or musical works (in all their various forms), from being copied. The period of protection for literary, dramatic, musical, and artistic works under New Zealand law is the life of the author plus 50 years. Other works, such as sound recordings, films, communication works, and computer-generated works, generally are protected for 50 years from the end of the year in which the work was made or made available to the public. For industrially applied works, protection lasts for 16 years (or 25 years in some cases), depending on the nature of the work. There is no form of registration of copyright in New Zealand. 10 Intellectual Property Rights In addition to copyright protection, the appearance of an article can be protected by registering a new and original design under the provisions of New Zealand's design legislation. The maximum period of protection is 15 years. 10.4 Patents New Zealand patent law provides a system for the filing, examination, and grant of protection for patent applications. To be granted, a patent application must meet the definition of "invention". This requires that the proposed invention: (a) be a manner of manufacture; (b) be new; and (c) involve an inventive step. The period of protection for patents in New Zealand is a maximum of 20 years. New Zealand patent law currently adheres to a "local novelty" standard, meaning that the invention must not be known or used in New Zealand before filing. This is different from most countries, where an invention cannot be patented if it has been publicly disclosed anywhere in the world (ie "worldwide novelty"). Under new patent legislation, patentability will be examined in accordance with absolute (or worldwide) novelty. Examiners will also be able to examine for inventive step and utility. Other significant changes include a pre-grant opposition process any time before grant, and the ability for a potential opponent to request re-examination both before and after grant. There is also a shift from a presumption of patentability to a requirement that a patent is inventive "on the balance of probabilities". 10.5 Passing off and the Fair Trading Act The common law tort of "passing off" and provisions of the Fair Trading Act also provide general protection against misleading conduct in the course of trade. The misleading use of trade marks, get-up and other indicia which cause damage to another trader's reputation or goodwill may accordingly give rise to liability. Section 8 of this guide contains more detail about the Fair Trading Act. 10.6 Other rights New Zealand legislation also specifically addresses, and provides protection for, the following intellectual property rights: (a) plant varieties; (b) layout designs; (c) geographical indications (not yet in force); and (d) ambush marketing.
Employee Relations 11.1 Overview New Zealand has a reasonably flexible system of employment law, regulated by a combination of statute and common law. The emphasis in New Zealand legislation is on freedom of contract, with employees being protected by a "minimum floor" of statutory rights. 11.2 Employment Relations Act The Employment Relations Act 2000 (ERA) is the key statute regulating employment law in New Zealand. It governs the employment relationship for all persons employed within New Zealand. The ERA covers collective, individual, and fixed-term employment agreements, collective bargaining and union related issues, flexible working arrangements, and personal grievances. The Employment Relations Amendment Bill 2013 (Bill) was introduced into Parliament in April 2013. The Bill had its first reading in June 2013 and submissions closed in July 2013. The Transport and Industrial Relations Select Committee is due to report back on submissions before the end of 2013. The majority of the proposed changes concern the union-related parts of the ERA. The Bill also addresses rest breaks, flexible working arrangements, provision of information, and the timing of determinations from the Employment Relations Authority. Some aspects of employment relations provided for by the ERA are unique to New Zealand, including those explained briefly below. (a) Duty of good faith The duty of good faith requires the parties to: • not mislead or deceive each other; • be active and constructive; and • be responsive and communicative in their employment relationship. An employer proposing to make a decision that will, or may, have an adverse effect on the continuation of an employee's employment (such as a restructure or sale of the business) must give each affected employee information about the relevant proposal, and an opportunity for that employee to comment on the proposal before any decision is made. (b) Unions Unions are entitled to represent their members in relation to any matter involving their collective interests, including negotiating a collective employment agreement and representing their members' individual rights (eg at mediation and in court actions). 11 Employee Relations Union membership is voluntary but, if an employee wants to be involved in a collective agreement and to bargain collectively, he/she must be a member of a union. If an employee is not a member of a union, each employee will negotiate an individual or fixed-term employment agreement with his/her employer. (c) Trial period Employers are able to engage new employees on a trial period of up to 90 calendar days, provided this is recorded in the new employee's employment agreement and the employment agreement is signed by the new employee before commencing employment. During this trial period, an employee may be dismissed and cannot raise a personal grievance on the grounds of unjustified dismissal. The employee may, however, raise a personal grievance on other grounds, such as disadvantage, discrimination or harassment. (d) Employee protection provision All employment agreements must contain an "employee protection provision". This is designed to protect employees in situations where business undertakings are sold, transferred, or contracted out. Absence of such a provision may affect the employer's ability to implement a business transaction. 11.3 Terminating employment As a general rule, employment may only be terminated for cause in New Zealand. There is no concept of termination "at will". Cause for terminating employment includes poor performance, repeated misconduct, serious misconduct, redundancy, medical incapacity, incompatibility, and frustration of contract. The test of whether the dismissal or action causing disadvantage is justifiable is set out in the ERA. The employer must have acted in the way a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. Any dismissal or action taken by an employer must be procedurally fair and the ERA stipulates the minimum process steps required. An employee can bring a personal grievance claim if he or she has been unjustifiably dismissed or disadvantaged in his or her employment. 11.4 Redundancy compensation There is no compulsory redundancy compensation regime in New Zealand. It is a matter of contract between the employee and employer as to whether an employer is required to pay compensation if the employee is made redundant. 11.5 Employing an overseas person All New Zealand citizens and residents are eligible to work in New Zealand. Otherwise, a person must hold a work permit (issued by Immigration New Zealand). A work permit entitles the holder of the permit to be in New Zealand, or within the exclusive economic zone of New Zealand, for the sole purpose of undertaking the employment specified in the permit. (See section 4 of this guide.)
11.6 KiwiSaver Participation in superannuation schemes is not compulsory in New Zealand. Employees are eligible to participate in KiwiSaver – a voluntary, work-based retirement savings initiative (governed by the KiwiSaver Act 2006). Participants in KiwiSaver must contribute a minimum of 2% of their gross salary or wages to a superannuation scheme of their choice, and employers must make a contribution of 2% on behalf of all participating employees. 11.7 Accident compensation New Zealand has no workers' compensation scheme. Workplace accidents are instead covered by the ACC Act (discussed briefly in section 2 of this guide). Personal injury costs are met by the ACC and not the employer. Both employers and employees contribute towards the costs of the accident compensation scheme through levies. 11.8 Workplace Health and Safety Recently there has been an increased focus on workplace health and safety laws in New Zealand. The workplace health and safety system is currently being reformed. An independent Taskforce on Workplace Health and Safety has made a number of far-reaching recommendations aimed at improving workplace health and safety in New Zealand. The Taskforce recommendations include new workplace health and safety legislation, a new stand-alone regulator, increased penalties, and better employer/worker engagement and health and safety leadership. The Government has indicated it will adopt the majority of the Taskforce recommendations. The Government has already accepted the Taskforce's early recommendation for a new stand-alone health and safety agency, called Worksafe New Zealand. This will be in place in December 2013 when the health and safety functions of the Ministry of Business, Innovation, and Employment (MBIE) will transfer to the new agency. The Government is proposing to replace the current Health and Safety in Employment Act 1992 with a new law called the Health and Safety at Work Act (based on the Australian Model Health and Safety Law). MBIE released an Exposure Draft of the Health and Safety Reform (Bill) in October 2013. The "exposure draft" of selected parts of the Bill was released for initial feedback. The full Bill is expected to be introduced to Parliament in December 2013. The Bill will have its first reading and will then go to Select Committee for consideration, before receiving its second and final readings. The Minister of Labour has indicated that the Bill will come into force in 2015, along with the first tranche of regulations. This first tranche will develop new regulations for general risk and workplace management, worker representation and participation, major hazard facilities, and hazardous substances, while also updating existing regulations for asbestos. The second tranche is expected to follow within two years of the new Act coming into force. This second tranche will focus on hazardous work, plant and structures, geothermal operations, quarries, and any residual issues in relation to the management of hazardous substances in the workplace. Employee Relations The proposed changes to health and safety in the workplace are significant and will impact all workplaces. 11.9 Other legislation Other legislation regulates holidays, parental leave, minimum wage, health and safety, privacy, superannuation, minimum working conditions, and human rights.
Real Property and Resource Management 12.1 Purchasing land in New Zealand There is no restriction on who can own land in New Zealand, subject to any requirement for OIO approval (discussed in section 3 of this guide). Foreign individuals and companies can purchase land without a local partner. 12.2 Land ownership based on registration Land ownership in New Zealand is based on a land registration system (called the "Torrens System"). Central to this system is a public register which records all material facts about any given land title, including ownership, registered mortgages, and caveats. Once information is accepted for registration, the validity of information appearing on that register is guaranteed. A purchaser of land in New Zealand is therefore able to rely on the information recorded on that public register. 12.3 Sale of land Purchasing land in New Zealand is relatively straight-forward. Many agreements to sell land are recorded on standard form documentation. The general law of contract applies once a sale and purchase agreement has been entered into between the parties. Once the parties enter into an agreement to sell and purchase land, the purchaser's offer becomes legally binding between the parties. The seller cannot (without breaching the contract) then accept a higher offer from another purchaser following entry into this agreement. However, conditions for the benefit of either party can be included in an agreement. No stamp duty is payable on the transfer of land in New Zealand. 12.4 Resource management overview Use and development of resources, from an environmental perspective, is controlled by the Resource Management Act 1991 (RMA). The RMA focuses on the sustainable management of New Zealand's natural and physical resources, including land, water, coastal, and air resources. 12.5 Environmental controls under the RMA Planning rules (relating to activities and development) are provided for in publicly notified statutory planning documents administered by local authorities. Activities controlled by the RMA include: (a) use of land and water; (b) subdivision and historic places; 12 Real Property and Resource Management (c) use and development of coastal resources; (d) discharges to air, land, or water; and (e) hazardous wastes. Activities are classified into a hierarchy of activity types and this classification determines whether a resource consent is required for any proposed activity (eg subdivision or use of a waterway). 12.6 Resource consents Resource consents can take the form of land use consents, subdivision consents, water permits, coastal permits, and discharge permits, depending on the nature of the proposed activity. Consents are granted by the relevant local authority. The level of discretion that the local authority may exercise, and the stringency of the tests an applicant must meet in order to obtain consent, depend on the nature of the consent sought. The local authority also has wide powers to impose conditions on any resource consent it grants. The consenting process starts with an application to the relevant local authority (in the required form and with all necessary supporting information). The local authority will then decide whether the owners of adjacent land should be served a copy of the application, and whether the general public should be notified of the application. The RMA clearly guides the local authority on how to make these decisions. Any person who is served a copy, or notified, of the application may make submissions in respect of that application. Both applicants for resource consents, and those who make submissions in respect of an application, have a right of appeal to the Environment Court from a local authority's decision on a resource consent application. A hearing in the Environment Court is "de novo" – meaning that the court takes the place of the council and determines the whole application completely afresh, on the basis of the evidence before it. Alternatively, an applicant may request that an application proceeds directly to the Environment Court. The tests for public participation and matters of discretion, when deciding an application referred directly to the Environment Court, are the same. However, the first instance council hearing process is avoided. 12.7 Penalties for breach A person who breaches the RMA (eg by undertaking an activity not permitted by the relevant planning document and without a resource consent) commits an offence. Non-compliance with the RMA is a strict liability offence. A person, if convicted of an offence, can be subject to a maximum fine of NZ$300,000 plus NZ$10,000 per day for continuing offences, and a prison term of no more than two years. A company, if convicted of an offence, can be subject to a maximum fine of NZ$600,000 plus NZ$10,000 per day for continuing offences. Liability is not limited to the party that actually commits the offence. The RMA extends liability to any party who allows the offence to take place. Therefore if a body corporate, trust, company employee, or contractor is convicted of an offence against the RMA, a director, trustee, or any person concerned in the management of that party can also be held liable for that offence.
Taking Security Over Personal Property 13.1 Overview The regime for creating and enforcing security interests over personal property is set out in the Personal Property Securities Act 1999 (PPSA). This regime is similar to that operating in North America and Australia. The PPSA impacts financing and corporate insolvency in New Zealand and anyone who deals with personal property in New Zealand. 13.2 Application of the PPSA The PPSA applies to all "security interests" in "personal property". A security interest under the PPSA is an interest created or provided for by a transaction that in substance secures payment or performance of an obligation, regardless of the form of the transaction and who has title to the property. (a) Personal property Personal property is virtually all property other than land (and several other specific exceptions) and includes: • chattel paper (eg hire purchase agreement); • documents of title (eg bill of lading); • goods (eg consumer goods, inventory and equipment); • intangibles (eg trademarks, copyright and patents); • investment securities (eg shares); • money; and • negotiable instruments (eg cheques). (b) Security interests The PPSA also deems the following transactions to be security interests: • leases of goods for a term of more than one year; • transfers of accounts receivable or chattel paper; and • commercial consignments that do not secure payment or performance of an obligation. 13 Taking Security Over Personal Property 13.3 Priority under the PPSA To protect a secured party's priority to personal property in New Zealand against claims from other parties, a security interest must "attach" to the personal property and a secured party must "perfect" its security interest in the personal property. In order for a security interest to attach to personal property, the security interest must be in the form of a valid security agreement. A valid security agreement must: (a) be signed or agreed to in writing by the debtor; (b) contain a description of the personal property to be secured so that it is reasonably capable of identification; and (c) contain appropriate language creating the security interest. Perfection of a security interest is generally achieved by registering a financing statement on the online Personal Property Securities Register. Priority between competing securities is determined by order of perfection. There are a number of specific priority rules under the PPSA which modify this general rule. 13.4 Enforcement The PPSA provides remedies to a secured party who has priority over all other parties to personal property. Security agreements can modify and negate some of the enforcement provisions under the PPSA, and can provide for remedies in addition to those provided for under the PPSA.
Corporate Insolvency Law 14.1 Fundamental principles Corporate insolvency law in New Zealand is governed primarily by statute and common law. The two fundamental principles derived from these sources are that: (a) creditors are generally ranked in a hierarchy, comprising: • secured creditors; • preferential unsecured creditors; • unsecured creditors; and • shareholders; (b) distributions to unsecured creditors are based on the proportion of debt owed (pari passu). 14.2 Options for creditors and debtor companies If a New Zealand company appears to be suffering financial difficulty, the debtor and creditors have a number of options to consider. Options include: (a) an unsecured creditor making an application to the High Court for the company to be put into liquidation; (b) the debtor company's directors or shareholders making a special resolution to put the company into liquidation; (c) a secured creditor appointing receivers over the company or specific assets; (d) the creditors and debtor entering into a creditors' compromise with the debtor; and (e) a third party administrator being voluntarily appointed by the debtor company's shareholders or directors, or appointed by the court. Very rarely, the Government will appoint statutory managers in respect of companies, by making an Order in Council. This is only likely to occur where there is a need to protect the public or creditor interests in circumstances of large scale fraud or corporate collapse. 14.3 Liquidation – part 16 Companies Act If the company is insolvent, a creditor may apply for the company to be put in liquidation. 14 Corporate Insolvency Law Typically the first step in winding up a company is to serve a demand on the company pursuant to section 290 of the Companies Act (statutory demand). The statutory demand obliges the debtor company to repay the debt, enter into a creditors' compromise, or otherwise enter into an agreement with the creditor in respect of the debt within 15 working days of service. If the debtor company fails to comply, or does not apply to the High Court of New Zealand to set aside the demand within 10 working days of service, it is deemed to be unable to pay its debts. On this basis, the creditor can apply to the Court for orders: (a) putting the company into liquidation; and (b) appointing a liquidator chosen by the creditor. In addition to this procedure: (a) creditors can similarly apply for appointment of an interim liquidator, although this is less common in New Zealand; and (b) the company's shareholders, or directors (if the company's constitution permits) can also resolve to put it in voluntary liquidation and appoint a liquidator of their choice. The liquidator's powers are far reaching and include: (a) taking over control of the company and its assets; (b) realising the company's remaining assets, including choses in action (for example, claims against debtors of the company or claims against the company's directors); (c) requesting documentation from, and examining under oath, company directors, shareholders, lawyers or accountants; (d) clawing back voidable transactions made to a creditor two years prior to liquidation, where the creditor has received an undue preference over other creditors; and (e) issuing proceedings relating to transactions at an undervalue. In the course of the liquidation, the liquidator may convene a creditors' meeting and is obliged to prepare and register regular (six-monthly) reports. Creditors are to file their claims (proofs of debt) to the liquidator within the stipulated timeframe and have recourse (by Court application) if they are unhappy with the liquidator's decision. Once the company's assets have been realised, the liquidators make a distribution to unsecured creditors on a rateable (pari passu) basis. Some limited classes of creditors (for example, employees and the Commissioner of Inland Revenue) have preferential status ahead of unsecured creditors, up to set amounts. At the conclusion of the liquidation, the company will be removed from the Register of Companies.
14.4 Receivership – Receiverships Act 1993 In New Zealand, receivers are usually appointed by prior agreement between a secured creditor and the debtor company. Often, the parties will have entered into a General Security Agreement (Security Agreement) with wide default provisions. In the event of default, the creditor can appoint a receiver over the company, or specific assets. The receiver's primary function is to realise the assets secured by the Security Agreement, solely for the benefit of the secured creditor. During the course of the receivership, receivers stand in the shoes of the debtor company, in that they are empowered to do anything the company could do in the course of fulfilling their functions. It is possible for multiple receivers to be appointed at the same time, pursuant to different Security Agreements. It is also possible for a company to be in a concurrent receivership and liquidation. The receivership is at an end once the relevant secured assets have been realised. The company will then return to the control of its directors, unless the company is already in liquidation. 14.5 Creditors' compromise – part 14 Companies Act A debtor company wishing to avoid being put into liquidation may make a repayment proposal to its creditors in accordance with the procedure set out in part 14 of the Companies Act, offering creditors less than the entire debt owed to them. Creditors then file their proofs of debt and a meeting is convened so that the proposal can be voted on. If more than 50% of the creditors in number and 75% of creditors representing the total debt vote in favour of the proposal, the compromise is passed and all creditors are bound by the terms of the compromise. Creditors can oppose the compromise being binding on them (by Court application) on the basis of undue prejudice. 14.6 Voluntary administration - part 15A Companies Act A voluntary administration may be appropriate if the debtor company has prospects of recovery. Similar in nature to a creditors' compromise under part 14 of the Companies Act, the voluntary administration regime has the additional advantage of an immediate statutory moratorium that prevents creditors from taking enforcement action while the company is in voluntary administration (with limited exceptions). The debtor company appoints an administrator and, after an initial meeting, a "watershed meeting" is convened within 25 working days of the appointment. At the watershed meeting, the creditors may vote on whether to enter into a Deed of Company Arrangement (DOCA). A DOCA is a compromise reached between the debtor company and its creditors, allowing the company to continue trading. Alternatively, the creditors can also vote to return the company to the control of the directors, or resolve that the company be placed into liquidation. If the DOCA is executed, all unsecured creditors voting in favour of it are bound by its terms, subject to relief being granted by the High Court.
Climate Change and Emissions Trading
1 Overview New Zealand has an emissions trading scheme (ETS) that requires "participants" to account for emissions or removals of greenhouse gases. This has been developed as part of New Zealand's response to climate change and was originally aligned with the Kyoto Protocol. ETS participants must surrender emission units to the Government for emissions of greenhouse gases. Credits can be claimed for certain qualifying removals of greenhouse gases. The ETS also permits a wide range of persons (individuals and corporates) to open an account in the New Zealand Emission Unit Register (EUR) and to trade accepted emission units through the EUR. The ETS is subject to regular review and change. Key areas of likely upcoming change are discussed in section 15.7 below, and as relevant in other sections below. New Zealand has not signed up to a second commitment period under the Kyoto Protocol, which would have covered a period commencing on 1 January 2013. While the Government has not signalled any intention to bring an end to the ETS, the move away from Kyoto means that EUR account holders generally cannot import Kyoto units issued in the second commitment period. Kyoto units from the second commitment period will also not be able exported out of the EUR. Affected persons should seek specific advice on trading and compliance in the ETS going forward. 15.2 Participants ETS participants liable to account for emissions are generally entities that are high up the supply chain. Participants are either mandatory or voluntary. (a) Mandatory participants Mandatory participants who must surrender emission units for greenhouse gases include (subject to thresholds): • importers of transport fuels (or those removing transport fuels from a refinery); • importers and miners of coal and natural gas; • those using geothermal fluid or combusting used oil, waste oil, used tyres or waste for generating electricity or industrial heat; • those refining petroleum where the refining involves the use of intermediate crude oil products for energy or feedstock purposes; • those using significant quantities of crude oil or other liquid hydrocarbons (other than transport fuels) after 1 January 2014;
producers of iron, steel, aluminium, clinker, burnt lime, glass, or gold; • those responsible for deforestation of pre-1990 forest; • persons operating electrical switchgear that uses sulphur hexafluoride; • persons importing or manufacturing some hydrofluorocarbons and perfluorocarbons (known as synthetic greenhouse gases) in bulk; and • persons operating a waste disposal facility. The agriculture sector also participates but has reporting obligations only, with the Government signalling that the appropriateness of any surrender obligations for this sector will be reviewed in 2015. (b) Voluntary participants The ETS allows for voluntary participants, as well as mandatory participants. Voluntary participants may be emitters of carbon (in which case they will have surrender obligations) or may undertake removal activities (in which case they will be entitled to receive emission units). In both cases, they must meet certain criteria and thresholds. Significant purchasers of transport fuels, coal, and natural gas can opt in to the ETS as voluntary participants, assuming surrender obligations and taking direct responsibility for compliance, rather than paying under a contractual pass-through basis. Voluntary participants who may receive emission units from the ETS include those responsible for post-1989 forests and those carrying out other qualifying removal activities. Other entities may also be entitled to receive emission units, even though they are not "participants" under the ETS. Businesses in certain "emissions intensive trade exposed" industries can qualify for free annual allocations of emission units, as can pre-1990 forestry owners and fisheries operators. 15.3 Downstream effects The design of the ETS assumes that participants will pass on ETS compliance costs to downstream customers. In this way behaviour across the whole of the New Zealand economy will respond to the cost of carbon. The ability to manage these costs provides an opportunity for competitive advantage. There are many ways ETS costs can be managed; most businesses will adopt a suite of options forming their own trading strategy. 15.4 Units of trade Most units recognised under the Kyoto Protocol and issued in the first commitment period of the Kyoto Protocol can currently be traded through the ETS, but this will only apply until New Zealand's international "true-up" for the first commitment period under the Kyoto Protocol (expected to be in 2015). Units derived from nuclear energy projects are not acceptable in the ETS. Some units cannot be used for participant compliance purposes (eg CERs and ERUs derived from HFC-23 and N20 industrial gas destruction projects, and CERs and ERUs from large-scale hydropower projects). All first commitment period CERs, ERUs and RMUs Climate Change and Emissions Trading face cancellation after international true-up (subject to a pending government decision on whether or not to carry-over a small proportion of these for further use – see section 15.7 below for further detail). Kyoto units issued in the second commitment period cannot generally be imported into the EUR. It may be possible to import such units through direct issuance from Clean Development Mechanism projects, but the availability of this option at the relevant time should be checked with the New Zealand emission unit registry before proceeding. Kyoto units from the second commitment period will also not be able exported out of the EUR. Validly imported units can be traded within the ETS and used for compliance purposes, subject to the constraints on CERs and ERUs discussed above. New Zealand has its own unit of trade, the New Zealand Unit, or NZU. NZUs are issued by the New Zealand government for use within the NZ ETS. Until 31 December 2012, NZUs issued to forestry participants for removal activities or by allocation are backed by AAUs (assigned amount units) and can be freely transferred internationally as AAUs. From 1 January 2013, conversion of forestry NZUs to AAUs is subject to there being sufficient AAUs designated for this purpose (but regulations may also be made to allow conversion into other Kyoto unit types). Other NZUs (such as those issued to emission intensive industries) cannot be swapped for AAUs (or other Kyoto units) so cannot be traded internationally. 15.5 Trading documents There is no accepted standard form contract for emissions trading in New Zealand yet. It is important that trading documents are tailored to meet the requirements of the parties and the nature of the deal. Forms of documentation from the International Swaps and Derivatives Association (ISDA) and from the International Emissions Trading Association (IETA) are emerging as the preferred options for long term active trading. However, the ISDA and IETA documentation relating to emissions trading need to be tailored carefully for New Zealand issues. 15.6 Other policies Forests established after 1 January 1990 may be able to join the Permanent Forest Sinks Initiative (PFSI), and earn emission units under this policy. The PFSI incentivises the establishment of permanent forests on previously unforested land. The ability to deforest is limited to deforestation on a continuous canopy cover basis. Some existing "projects to reduce emissions" had the ability to earn emission reduction units if they become Kyoto "joint implementation" projects. Off-setting is now permitted for pre-1990 forest in the ETS. This means that landowners of pre-1990 forest land can convert their forest to another land-use without deforestation liabilities, as long as an equivalent new forest is planted elsewhere in a manner that meets off-setting criteria.
15.7 Change Upcoming changes to the ETS that are currently on the horizon include: • regulations defining carry-over rights for ERUs, CERs, and AAUs issued in the first commitment period of the Kyoto Protocol and held in the New Zealand Emission Unit Register. Possible outcomes include that CERs and ERUs will not be able to be carried-over at all, or only in part. AAUs from the first commitment period are likely to be carried over. RMUs (and ERUs converted from RMUs) cannot be carried over. Units in the register which are not carried over will be cancelled. This cancellation is likely to take place after the 31 May 2015 surrender deadline. Units can be traded or surrendered up until cancellation; • the development of a framework for auctioning of NZUs by the Government (already enabled by legislation, but with a detailed framework yet to be developed).