Business structures

New Zealand is widely regarded as one of the easiest places in the world to start a business. New Zealand law allows overseas investors to set up businesses in a relatively short space of time, which allows such parties to own assets, operate businesses, employ local employees and enter into contracts with third parties in New Zealand.

New Zealand corporate entities are simple to form, globally recognised, and comparable to their international equivalents.

There are a number of different types of corporate entities that are used in New Zealand and the most common are limited liability companies, overseas branches, and limited partnerships. Other less common types of corporate entities include unlimited liability companies, incorporated societies, general partnerships and charitable trust boards.

If an overseas company is “carrying on business” in New Zealand, it is required to register with the New Zealand Companies Office as a branch. There are additional, and separate considerations for companies that are not resident in New Zealand but carrying on activities in New Zealand (whether or not they are registered as an overseas branch). For instance, if a non-resident entity supplies goods or services in New Zealand over NZ$60,000 a year, they may be required to register for Goods and Services Tax (GST).  

The most commonly used corporate entity in New Zealand is the limited liability company.

Limited liability companies are relatively easy to set up, and establishment and ongoing administration costs are minimal, which can be attractive to overseas companies looking to establish a local subsidiary entity.

In New Zealand, limited liability companies provide limited liability to their shareholders, which means such shareholders are generally only liable for money they have contributed or have agreed to contribute to the company (for example, money owed on shares that have been issued to them). A board of directors is responsible for governing the company, making various business decisions and overseeing the general operations of the company.

Establishment

Limited liability companies in New Zealand are governed by the Companies Act 1993 (Companies Act).

Incorporating a limited liability company in New Zealand is a relatively simple process, and requires confirmation of certain details and an application to the New Zealand Companies Office. 

To incorporate a limited liability company in New Zealand, the company must have at least one director, one shareholder, and one share. It must also have a physical registered office address and an address for service in New Zealand. While these are minimum requirements, there are no minimum capital requirements and no restrictions on the size of a company’s share capital or the number of shareholders or directors (albeit some additional regulatory considerations for certain companies with over 50 shareholders). 

There are no residency requirements on shareholders. However, limited liability companies in New Zealand must have at least one New Zealand resident director, or one Australian resident director who is also a director of an Australian registered company. 

When making an application for incorporation of a limited liability company, if needed, an application for an IRD number, GST registration and registration as an employer with the Inland Revenue may be submitted at the same time.

Upon incorporation, the newly incorporated limited liability company will be issued with a New Zealand Company Number and a New Zealand Business Number. The Companies Office will also publish certain information about the company, its directors, and its shareholders on a publicly accessible website, including:

• the company’s registered office address and address for service;
• the name and residential address of each director;
• the name and address of each shareholder, as well as details of each shareholder’s shareholding interest in the company;
• a copy of the constitution (New Zealand’s equivalent to articles of association or corporate bylaws), if there is one, however it is not mandatory for a company to have a constitution;
• details of any body corporate (whether registered in New Zealand or overseas) that is the company’s ultimate holding company; and
• audited financial statements that comply with generally accepted accounting practice, if they are large and more than 25% overseas owned (see more on this below).

Ongoing compliance

Each year, a limited liability company must file an annual return which confirms the details held by the Companies Office about its presence in New Zealand. Failure to file an annual return is an offence under the Companies Act and can lead to the company being removed from the Companies Register. There are also obligations upon directors to maintain certain records (including a share register) and to update company information as relevant changes occur (such as the issue of new shares or changes to directors/shareholders).

Directors of New Zealand companies are subject to certain duties (including to act in good faith and the best interests of the company, and to not trade recklessly). Any person taking on the role of a company director should ensure they are aware of their duties and obligations, as in some instances they can face personal liability for breach of duty or other laws.

In addition to the requirement to file an annual return each year, companies that are deemed to be “large” and are more than 25% overseas owned will also generally be required to prepare and register audited financial statements with the New Zealand Companies Office.

A New Zealand company that is not a subsidiary of a body corporate incorporated outside New Zealand will be deemed large if one of the following applies:

• the total assets of the company and its subsidiaries (if any), as at the balance date of each of the two previous accounting periods, exceed NZ$66 million
• the total revenue of the company and its subsidiaries (if any), as at the balance date of each of the two previous accounting periods, exceeds NZ$33 million.

A company that is a subsidiary of a body corporate that is incorporated outside New Zealand will be deemed large if one of the following applies:

• the total assets of the company and its subsidiaries (if any), as at the balance date of each of the two previous accounting periods, exceed NZ$22 million; or
• the total revenue of the company and its subsidiaries (if any), in each of the two previous accounting periods, exceeds NZ$11 million.

“FMC Reporting Entities”, such as companies listed on the New Zealand stock exchange, will have separate financial reporting obligations.

In the light of the staggering increase in generative artificial intelligence (AI) use, directors need to understand their role and responsibilities in the deployment of AI. Our article on Artificial intelligence: What directors need to know discusses the relevance of directors’ duties in the context of AI and how directors can effectively manage these duties.

Overseas investors may wish to establish a branch operation in New Zealand, rather than incorporating a local subsidiary company. 

If an overseas company is “carrying on business” in New Zealand, it will be required to register as an overseas branch on the Companies Office’s Overseas Register (Overseas Register). This registration does not incorporate a separate legal entity under New Zealand law, and the overseas company continues to contract and enter into transactions in its own right. There is no bright-line test for whether or not an overseas company is “carrying on business” in New Zealand.

In order to register a branch office in New Zealand, the overseas company must provide certified copies of its home jurisdiction’s certificate of incorporation and constitutional documents, along with the details of its directors. If documents are not in English, a certified translation must be provided. A New Zealand branch is required to nominate a representative resident in New Zealand to accept service of documents on behalf of the branch.

Similar to limited liability companies, branches of overseas companies will be required to file an annual return each year in order to confirm that the details held by the Companies Office are up to date, notify the Companies Office of changes to its directors, addresses or constitution, and to confirm that the overseas company is still carrying on business in New Zealand.  

Branches of overseas companies registered to carry on business in New Zealand may be required to prepare and file two sets of audited financial statements with the Companies Office: one set for the overseas company’s operations (including the New Zealand operations) if the overseas company is deemed to be “large”, and one for the New Zealand business’ operations (if such operations are separately deemed to be “large”). 

The branch and/or overseas company will deemed to be “large” if either of the following apply:

• the total assets of the (a) overseas company and its subsidiaries (if any) and/or (b) its New Zealand business, as at the balance date of each of the two previous accounting periods, exceed NZ$22 million; or 
• the total revenue of (a) the overseas company and its subsidiaries (if any) and/or (b) its New Zealand business, in each of the two  previous accounting periods, exceeds NZ$11 million. 

Under New Zealand law, a limited partnership (LP) constitutes its own separate legal entity and must have at least one general partner and one limited partner. 

A general partner is responsible for the management of the LP and is liable for its debts and liabilities, to the extent that the LP is unable to meet them. The general partner may (subject to certain requirements) be an individual, a limited liability company, another limited partnership, or partnership. 

A limited partner is liable only to the extent of their financial contribution to the LP. In order to preserve their limited liability, limited partners must not participate in the management of the LP.

LPs are generally treated as “flow through” entities for income tax purposes where the income and expenditure of a LP is treated as being derived/incurred by investing partners directly, in proportion to their partnership interest.

If an investor partner’s expenditure exceeds their attributed income for the year, the expenditure may be able to be offset against income from other sources (subject to a loss limitation rule), or carried forward and offset against that partner's income in subsequent income years.

Establishing a LP in New Zealand requires an application to be lodged with the Limited Partnership Register via the Companies Office. This application must include the details of the general partner(s), the limited partner(s) and its registered office (which must be a physical address in New Zealand). The application must also confirm that the LP has a limited partnership agreement that complies with the applicable law (though this does not need to be lodged with the Companies Office).  

While some of the details of the LP will be publicly available on the Limited Partnership Register (such as details of the general partner and registered office details), the identity and partnership interest of the limited partners will not be publicly available. This can be attractive to investors who do not want their details to be available to the general public.  

As with limited liability companies, LPs are required to file an annual return each year, and those that are considered ‘large’ may also be required to prepare audited financial statements. 

The Government is progressing the first phase of reforms of the Companies Act and related corporate governance legislation. This first phase seeks to simplify compliance and deter and detect poor business practices, such as phoenixing of companies.¹ It is further proposed that director identification numbers will be introduced, meaning that directors of a company can opt to show an address of service instead of their home address being made publicly available. This first phase is not intended to significantly change the overall scheme of existing legislation, and will be a welcome and uncontroversial step for many New Zealand companies. 

The second phase of reforms will follow a Law Commission review of directors’ duties and related issues of director liability, sanctions, and more effective enforcement.