Overseas investment decision for case 202000761 - Apex One Limited

Consent granted retrospectively

An overseas investment in sensitive land, being the Applicant's acquisition of a freehold interest in approximately 0.3342 hectares of land at 36A Eaglehurst Road, Ellerslie, Auckland.

Apex One Limited

Wei Shen, China, People's Republic of China (70%)

Amanda Margaret Kimpton Vettoretti and Gary Michael Vettoretti

To meet the increased housing and non-residential use tests, the Applicant proposes to remove the two existing dwellings on the land and construct 20 new residential dwellings and 5 small commercial units.

We consider the Investment is likely to:

• meet 1 or more of the increased housing outcomes, being an increase in the number of residential dwellings constructed on part of the residential land;
• meet the on-sale outcome, which means that after completing the development the Applicant must on-sell all interests in the residential dwellings;
• meet the non-occupation outcome, which means the Applicant and certain related persons must not occupy the part of the land being used to increase housing;
• meet the non-residential use outcome, which means the Applicant must use the part of the land not being used to increase housing for non-residential use in the ordinary course of business (and not for any residential purposes).

A retrospective consent was required because the Applicant is an overseas person under the Act as 70% of its shares are owned by an overseas person.

Ms Deng, who is a New Zealander, and a director and shareholder of the Applicant, entered into the sale and purchase agreement for the land with an intention to nominate Apex One Limited as the purchaser without making the agreement conditional on consent under the Act.

The Applicant satisfied the Overseas Investment Office (OIO) that the breach was inadvertent. Ms Deng did not realise that, as a New Zealander, she was required to seek OIO consent for the purchase through a company which is an overseas person.

As soon as receiving legal advice that OIO consent was required, Ms Deng promptly contacted the OIO to remedy the situation. She also postponed settlement until receiving a decision on her consent application related to another acquisition (Case 20200047) that arose from a similar mistake and has paid an administrative penalty imposed under the Act.

Alan Lear

Barrister

59-67 High Street

Auckland