Interests associated with Sir Michael Fay and David Richwhite are running a canny strategy of disruption against Chinese interests looking to buy the Crafar farms. Using rules governing overseas investment in New Zealand farmland, they challenged the Chinese purchase at a time when they had no firm offer on the table themselves.
By having the Chinese purchase referred back to government for further consideration, Fay Richwhite interests bought themselves more time and left Chinese investors pondering whether the whole deal was worth pursuing.
The Crafar family had borrowed heavily to assemble a portfolio of sixteen North Island dairy farms and drystock units. This debt burden proved unsustainable. The farms went into receivership in 2009 with Messrs Gibson and Stiassney appointed receivers.
Receivers advertised the properties widely, with top bid from Milk New Zealand Holdings Ltd, a subsidiary of Chinese company Shanghai Pengxin. The ultimate owner of Shanghai Pengxin is successful Chinese businessman, Zhaobai Jiang.
Fay Richwhite interests challenged this sale using the Overseas Investment Act 2005. Sales of farmland to foreign interests require government approval.
The court was told that Fay Richwhite had no firm offer on the table at this point, having only nominated an indicative price well below the Shanghai Pengxin offer.
In the High Court, Justice Miller ruled it was not enough by itself that Shanghai Pengxin was offering the highest price, an overseas buyer must provide economic benefits over and above any on offer from a New Zealand purchaser.
Benefits could include increased economic output, more on-shore processing which add economic value to goods produced, creation of new job opportunities or the retention of jobs otherwise lost, and consumer benefits arising from increased competition.
Justice Miller said these benefits count only if they will not, or might not, arise without the overseas buyer completing its investment. The likely investment behaviour of any alternative New Zealand purchaser must be taken into account.
He referred Shanghai Pengxin’s offer back to government for further consideration.
Tiroa E & Te Hape B Trusts v. Land Information – High Court (15.02.12)
12.003