What is retrospective consent?
Sometimes we can grant consent for an investment retrospectively if you haven’t obtained consent when you needed to. It’s important that you contact us immediately if you think you may have done this.
When retrospective consent is not appropriate
We are unlikely to grant retrospective consent if:
- you have deliberately, recklessly or negligently broken the rules, or tried to hide your behaviour
- the application doesn’t meet our current criteria for granting consent, or
- you have acquired a sensitive New Zealand asset in a way that’s likely to meet our threshold for taking a civil case or criminal prosecution.
When we assess an application for retrospective consent, we look at all your dealings with the asset right up to the time of the application. We consider:
- whether the evidence points to your failure to seek consent being inadvertent
- any history of repeated breaches or disregard for the rules
- the extent to which you have cooperated with us, including whether you came to us early and willingly once you realised you needed consent, late, or after we made you aware
- whether the delay in application has affected our ability to impose meaningful conditions on the consent
- whether we have opened an investigation into your acquisition of the asset
- whether you have made any previous retrospective applications for consent or been subject to previous enforcement action by us.
Fee and penalty
If you apply for retrospective consent, you will need to pay an application fee of the usual amount for the type of investment plus a retrospective consent penalty.
Setting the retrospective consent penalty
The amount of the penalty is set out in regulations. It depends on the consent pathway and value of the investment.
|Consideration provided for overseas investment||For consent for transaction on basis that only commitment to reside in New Zealand test is met||All other cases|
|If the value of the consideration provided for the overseas investment is less than $2 million||$5,000||$20,000|
|If the value of the consideration provided for the overseas investment is $2 million or more but not more than $10 million||$10,000||$30,000|
|If the value of the consideration provided for the overseas investment is more than $10 million||$10,000||$40,000|
We have the discretion to not impose a penalty, though this discretion is rarely exercised. The factors we consider when deciding whether a penalty should be paid include whether the amount of the penalty imposed would be unduly harsh given:
- the value of the asset that was acquired
- the nature of, and the reasons for, the retrospective consent.
Contact us to discuss your situation. We will help you apply for a retrospective consent if appropriate.