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Closed cases

Current at 1 December 2016

Brian Henry

This civil proceeding relates to allegations of market manipulation in breach of the Securities Markets Act.

6 August 2014 At the Auckland High Court Mr Henry admitted his trading contravened section 11B of the Securities Markets Act 1988, and a pecuniary penalty of $130,000 was imposed by the Court. See FMA’s press release of 7 August 2014 for further detail.
July 2014 Mr Henry’s application to strikeout FMA’s claim was withdrawn. The matter will next be before the High Court on 6 August 2014.
May 2014 The High Court will hear an application by Mr Henry to strike out the claim of FMA on 20 June 2014.
6 November 2013 The High Court allocated a two week hearing for the hearing of the claim commencing on 15 September 2014.
5 August 2013 Mr Henry filed his statement of defence to the FMA’s claim.
13 June 2013

FMA filed civil proceedings against Brian Peter Henry alleging market manipulation of shares in the NZX-listed Diligent Board Member Services.

The proceedings contain six claims alleging certain orders and trades made by Mr Henry in 2010 breached the market manipulation provisions of the Securities Markets Act. FMA’s investigation followed a referral from NZX.

Brian Henry was a founding member of Diligent. He left the company in March 2009.

 

Excelsior Markets Limited (Excelsior)

Under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (FSP Act) the FMA can direct deregistration of registered financial service providers when the FMA considers it necessary and desirable to do so after taking into account the criteria set out in section 18A of the FSP Act.  Section 42 of the FSP Act provides a right of appeal to the High Court in the event a financial service provider is not satisfied with the FMA’s direction.

18 December 2015

Justice Nation delivered his judgment dismissing Excelsior’s appeal

29 September 2015

Hearing before Justice Nation in the High Court at Auckland

19 June 2015

Excelsior filed a Notice of Appeal pursuant to section 42 FSP Act appealing the FMA’s direction to the Registrar of the Financial Service Providers Register that it de-registers Excelsior.

4 May 2015

Under section 18B FSP Act, the FMA directed the Registrar of the Financial Service Providers Register to de-register Excelsior.

 

 

First Mortgage Investments Limited

This criminal proceeding relates to an alleged failure to deliver an annual report to the Registrar of Companies in accordance with the requirements of Regulation 12 of the Securities Act (Contributory Mortgage) Regulations.
5 March 2014 First Mortgage has been convicted and fined $4,000 plus court costs for failing to deliver its annual report to the Registrar of Companies by 30 June 2013. First Mortgage pleaded guilty to the charge laid by the FMA and the conviction was entered in the Auckland District Court on 20 March 2014.
30 January 2014 First Mortgage appeared in the Auckland District Court on 30 January 2014 and is scheduled to reappear on 20 March 2014.
17 December 2013 First Mortgage Investments Limited has been charged with failing to deliver an annual report to the Registrar of Companies for the period 1 April 2012 to 31 March 2013 by 30 June 2013. The charges have been laid under the Securities Act (Contributory Mortgage) Regulations and carry a maximum fine of $5000.

 

Hayden and George Jones

This criminal proceeding relates to allegations that Hayden and George Jones, as Directors of Heritage Park Taupo Limited and Heritage Park Investments Limited, failed to deliver financial statements to the Registrar of Companies under ss 18(1) & 38(b) Financial Reporting Act 1993.

11 September 2014 Hayden and George Jones appeared in the Christchurch District Court and were fined $35,000 each for breaches of the Financial Reporting Act 1993.
24 July 2014 Hayden and George Jones pleaded guilty to all charges. A sentencing hearing is scheduled to take place in the Christchurch District Court on 11 September 2014.
26 June 2014 Hayden and George Jones requested a further adjournment to allow instructed counsel to review disclosure. They will next appear before the Court on 24 July 2014 when they will be expected to enter pleas.
12 June 2014 Hayden and George Jones appeared in the Christchurch District Court and requested an adjournment to 26 June 2014 to allow disclosure to be considered.

 

Murray Alcock and Allister Knight - SPI

This criminal proceeding relates to allegations that Murray Alcock and Allister Knight, as Directors of SPI Capital Limited and SPI Property Limited, failed to deliver financial statements to the Registrar of Companies under ss 18(1) & 38(b) Financial Reporting Act 1993.

21 September 2015

Mr Knight and Mr Alcock have completed the repayment in full of the outstanding principal of $601,394.12 owed to investors of SPI Property Fund Limited.

30 April 2015

The directors, Murray Alcock and Allister Knight, were each fined $25,312 for failing to deliver audited financial statements for SPI Property Fund Limited to the Registrar of Companies for the years ending 2011, 2012 and 2013. 

5 March 2015 Messrs Alcock and Knight appeared in the District Court on 5 March 2015 for sentencing. The Judge’s decision has been reserved and will be released on 30 April 2015.
31 October 2014 Messrs Alcock and Knight appeared in the Auckland District Court and each entered guilty pleas to 3 charges under the Financial Reporting Act relating to a failure to deliver financial statements for SPI Property Limited. Sentencing will take place on 29 January 2015 in the Auckland District Court.
12 September 2014 Messrs Alcock and Knight will make their second appearance and will be required to enter a plea.
30 July 2014 Messrs Alcock and Knight will make their first appearance in the Auckland District Court on 30 July 2014.

 

Prudential Mortgage Limited

This criminal proceeding relates to an alleged failure to deliver an annual report to the Registrar of Companies in accordance with the requirements of Regulation 12 of the Securities Act (Contributory Mortgage) Regulations.
5 March 2014 Prudential Mortgage Limited has been convicted and fined $2,000 for failing to deliver its annual report to the Registrar of Companies by 30 June 2013. Prudential pleaded guilty to the charge laid by the Financial Markets Authority (FMA) and the conviction was entered in the Christchurch District Court on 5 March 2014.
17 December 2013 Prudential Mortgage Limited has been charged with failing to deliver an annual report to the Registrar of Companies for the period 1 April 2012 to 31 March 2013 by 30 June 2013. Prudential is due to appear in the Christchurch District Court on 5 March 2014. The charges have been laid under the Securities Act (Contributory Mortgage) Regulations and carry a maximum fine of $5000.

 

Ross Asset Management Limited/David Ross

The criminal proceeding brought against Mr Ross by FMA relates to allegations of breaches of the Financial Markets Act, Financial Advisers Act and Financial Service Providers (Registration and Dispute Resolution) Act. The Serious Fraud Office has also laid four Crimes Act charges of false accounting and one charge of theft by person in special relationship against Mr Ross.

The FMA and SFO charges are being heard together.

25 June 2015

David Ross's appeal was declined by the Court of Appeal.

April 2014

David Ross’s appeal against the minimum non-parole period ordered by the District Court will be heard by the Court of Appeal in Wellington on 11 June 2014.

10 February 2014

The Financial Markets Disciplinary Committee today dismissed FMA's complaint against David Ross after FMA informed the Committee that it did not consider that it was in the public interest for the complaint to proceed. The complaint (for breaches of the Code of Professional Conduct for AFAs) was adjourned in August last year pending the completion of the criminal proceedings against Mr Ross, after criminal charges were laid by FMA and the Serious Fraud Office. Mr Ross pleaded guilty to the charges and in November 2013 he was sentenced to 10 years and 10 months imprisonment.

FMA's decision not to proceed with its complaint was made on the basis that Mr Ross' conduct had been firmly censured through the judgment of the District Court which recorded the dishonesty and breach of trust by Mr Ross and the harm and suffering which his conduct had caused and because Mr Ross' AFA status has also been terminated. FMA advised the FADC that a determination by the Committee would not provide any further protection, deterrence or punishment beyond what has been delivered through the criminal justice process. Consistent with its position in the criminal proceeding, FMA did not seek a fine as it considers any funds that may be available should be paid to investors through the receivership. While FMA was of the view that there has been a clear breach of the Code, it did not consider it was in the public interest to continue with this case for these reasons. FMA will continue to support investors' interests by working with the receivers and liquidators to achieve recoveries for investors where possible.

13 December 2013

David Ross has filed an appeal against the minimum non-parole period ordered by the Court on the basis that it was manifestly excessive and/or inappropriate. No date has yet been allocated for the appeal hearing.

15 November 2013

David Robert Gilmour Ross (63) was sentenced in the Wellington District Court today to 10 years and 10 months of imprisonment.

This follows Mr Ross having pleaded guilty in August to four Crimes Act charges of false accounting and one charge of theft by person in special relationship laid by the SFO, and charges laid by FMA for providing a financial service without being registered for that service, knowingly making a false declaration to FMA for the purposes of obtaining authorisation as an Authorised Financial Adviser (AFA) and producing documents to FMA which he knew to be false or misleading.

The Court directed that Mr Ross serve a minimum non-parole period of 5 years and 5 months and also ordered that reparation be paid from Mr Ross' personal assets through the Receivership.

8 November 2013

A hearing took place in the Wellington High Court on 4 November, in relation to the asset preservation orders which FMA has obtained over the assets of David Ross, Ross Asset Management and related entities.

The asset preservation orders have now been extended to the assets of the DRG Ross Family Trust, also known as the David Robert Gilmour Ross Family Trust. John Fisk and David Bridgman have also been appointed as receivers over this trust, on the condition that the receivers cannot sell any assets of this trust without further Court order. The existing asset preservation orders remain in place.

24 October 2013

Mr Ross appeared at the Wellington District Court today and was remanded in custody to reappear on 15 November for sentencing.

29 August 2013

David Ross today pleaded guilty in the Wellington District Court to charges laid by the Serious Fraud Office (SFO) and the Financial Markets Authority (FMA).

Mr Ross has been remanded in custody to reappear on 24 October to set a sentencing date.

22 August 2013

David Ross appeared in the Wellington District Court this morning for a case review hearing.

He was remanded on bail until 10.00am on 29 August when he will reappear in the Wellington District Court.

5 July 2013

David Ross appeared at the Wellington District Court today. Mr Ross was remanded without plea to reappear on 22 August 2013 at 10am for a case review.

28 June 2013

The Financial Markets Authority (FMA) has today laid three charges against Mr Ross in the Wellington District Court under financial markets legislation.

Mr Ross next appears before the Court on 5 July 2013.

FMA has issued a press release and will not be making any further comment regarding these charges while the matter is before the Courts. Asset preservation orders obtained by FMA under the Financial Advisers Act with respect to Mr Ross and his related entities remain in place and work by the liquidators (PwC) continues.

13 June 2013

PwC has just released the third Liquidation Committee report. A copy of this can be found here on PwC's website.

Charges have today been laid by the Serious Fraud Office (SFO) against Mr Ross in the Wellington District Court today. The charges follow a joint agency investigation between SFO and the Financial Markets Authority (FMA).

Mr Ross appeared in the Wellington District Court this morning and has been remanded on bail to appear again on 4 July 2013.

As criminal charges have now been laid with the Courts, FMA will not be making any further additional comments in relation to these charges.

FMA's investigation under the Financial Advisers Act continues. Asset preservation orders obtained under the Financial Advisers Act by FMA with respect to Mr Ross and his related entities remain in place.

The liquidators (PwC) have released the third Liquidation Committee report. A copy of this can be found here on PwC's website.

A copy of a joint press release between SFO and FMA can be found here.

30 April 2013

PwC has released the results of the second Liquidation Committee report. A copy of this can be found here on PwC's website.

25 March 2013

A hearing took place in the Wellington High Court today, before Justice Kós, in relation to the asset preservation orders which FMA has obtained over the assets of David Ross, Ross Asset Management and related entities.

The parties have agreed that now the liquidators (Messrs Fisk and Bridgeman) have been appointed over the Ross companies, the receiver is no longer required. Although orders were sought to remove Mr Fisk and Mr Bridgman as receivers over the Ross related companies, they will both remain as liquidators over these companies. All other aspects of the asset preservation orders remain in place, including the freeze over assets.

The receivers will shortly file their final receivers' report with the Court.

Information regarding the liquidations can be found on PWC's website.

While the liquidation process continues, there is no immediate need for a future Court date and Justice Kós has agreed to adjourn the matter until further notice. FMA or the named defendants can request a hearing if required, on five working days' notice.

The investigation being conducted by FMA and SFO is on-going and Mr Ross is continuing to co-operate with inquiries.

FMA will issue a questionnaire to all investors seeking further information, relevant to the investigations and asks that all investors complete this questionnaire to assist with the on-going investigation.

 21 December 2012

PwC released its first liquidators report. A copy of this can be found here on PwC's website.

Background Information

17 December 2012

The Court ordered the liquidation of four of the Ross Group entities today:

  • Ross Asset Management Limited (RAM)
  • Bevis Marks Corporation Limited
  • Mercury Asset Management Limited
  • McIntosh Asset Management Limited

Remuneration rates for John Fisk and David Bridgman, as appointed liquidators, were also approved by the Court. FMA supported the liquidation applications and the appointment of the liquidators. The liquidators intend to release their first report on 21 December 2012 and this will be posted on PwC's website and sent out to investors who have provided their contact details to PwC.

11 December 2012

On 3 December 2012 PwC, the Receivers and Managers of the Ross Group, submitted liquidation applications to the High Court for a number of the companies currently in receivership. A High Court hearing date for the liquidation applications has now been set for Monday, 17 December 2012.

Last Friday, a memorandum was filed by the parties, requesting the Court hearing scheduled for this morning regarding the asset preservation orders be adjourned until early 2013, after the first hearing of the liquidation applications. That will allow FMA to update the Court then on the outcome of those liquidation applications. The Court agreed to the adjournment and the asset preservation orders will continue and will now be heard on 4 February 2013.

6 December 2012

FMA's investigation into David Ross and Ross Asset Management and related entities (in Receivership) is continuing and is being co-ordinated with SFO's investigation.

FMA is investigating possible breaches of financial markets legislation. To date, we have received some information from investors and we have requested further information from the Receivers, PwC, which is relevant to our investigation.

We will shortly be writing to all investors to ask for more specific information about their investments with Ross Asset Management. It is important that investors assist FMA in its inquiries. The investigation into Ross Asset Management is large and complex and will take time to complete.

FMA and SFO will continue to work together to ensure the investigation is progressed as quickly as possible.

In the meantime, if any investor invested with Ross Asset Management on the recommendation of an Authorised Financial Adviser, or on the recommendation of a lawyer or accountant, we would be grateful if they could provide details to us. We ask that they contact FMA on http://www.fma.govt.nz/contact-us.

Any inquiries with respect to FMA's investigation should be directed to http://www.fma.govt.nz/contact-us.

Background: Following the receipt of complaints from investors, on 25 October FMA commenced an investigation into the affairs of David Ross, Ross Asset Management Limited and related entities (the "Ross Entities") and specifically, compliance with the Financial Advisers Act 2008. As a result of information obtained by FMA on 2 and 6 November, FMA obtained court orders freezing the assets of the Ross Entities and appointing a receiver over the Ross Entities in order to preserve assets for investors while the investigation continues. The Receivers activities, including the proposed liquidation are focused on identifying and preserving assets.

3 December 2012

PwC, the Receivers and Managers of the Ross Group, today submitted liquidation applications to the High Court of New Zealand for a number of the companies currently in receivership. A High Court hearing date of Monday, 17 December 2012 has been allocated.

This is consistent with PwC's Report and Memorandum of Counsel submitted and presented to the High Court of New Zealand for review (respectively on 15 November and 23 November 2012).

Today, FMA provided Bruce Tichbon, representative of the RAM Investor Group, with an update. A copy of that letter can be found here.

26 November 2012

The Financial Markets Authority has today provided the High Court in Wellington with an update on progress on Ross Asset Management Limited and related entities (in Receivership).

The Court was advised by FMA and PwC that they consider liquidation of some of the companies to be the next step. An application to put some of the companies in liquidation will be made shortly. It is likely that this will be made by PwC. The application will be publicly notified and investors will be able to be heard during the liquidation process.

Receivership over Mr Ross, his trusts and other related entities and freezing orders continue to be in place.

PwC's inquiries are continuing. Further information about this can be found here.

All parties are aware of the importance of managing these next steps in a cost effective way. FMA has today responded to concerns raised by Bruce Tichbon for the RAM investor group.

A copy of the letter can be found here.

The matter will be called before the Court again on 10 December so that FMA can provide a further update.

FMA's investigation continues.

5:00pm, 22 November 2012

FMA and the Receivers attended a meeting with David Ross and his lawyer today. Mr Ross cooperated throughout and responded to enquiries made by the Receiver.

Mr Ross has confirmed that he will cooperate fully with FMA and SFO's investigation.

FMA will now liaise with Mr Ross' lawyer to make arrangements on proposed next steps.

2:00pm, 22 November 2012

Today Receivers PwC will issue an update to investors outlining further progress on their inquiries. This letter will be posted on PwC's website.

On Monday 26 November, FMA will provide the High Court in Wellington with an update of its case. At that hearing FMA will recommend that some of the Ross Entities, which are insolvent, should be placed in liquidation as recommended by the Receivers, while Mr Ross, his trusts and other related entities will remain in receivership.

Liquidation will ensure that greater recovery powers can be used and some distribution to investors can then be made. Investors' interests will be heard in that process. Further details regarding this recommendation and the liquidation process are set out in the letter to investors on PwC's website.

FMA has responded to inquiries received from Bruce Tichbon of the RAM Investors Group. A copy of our written response can be found here.

FMA has today been advised that Mr Ross is now available to assist FMA and PwC with their inquiries. Through his lawyers we have been advised that he intends to co-operate with these inquiries.

FMA's investigation continues and we are working with SFO on a joint investigation.

21 November 2012

PwC's report into Ross Asset Management Ltd and related entities indicated that it considered the liquidation of certain of the Ross Entities to be the next step. Liquidation and the process through which it would occur and whether this will maximise investor interests, is currently being explored.

The matter will be heard in the Wellington High Court on 26 November, at which time FMA and PwC will advise the Court of their proposed next steps during the hearing. PwC is preparing a further letter to investors which will be sent out over the coming days.

If any investor has information relating to the location of assets of Ross Asset Management, please provide it to FMA and PWC urgently.

15 November 2012

The report, prepared by John Fisk and David Bridgman of PwC, with the assistance of brokers from First NZ Capital, explains that Ross Asset Management's records show purported investments of $449.6 million, held on behalf of more than 900 investors across 1720 accounts. This figure represents the portfolio values reported by Ross Asset Management to investors, not their actual capital contributions, or the current value of those contributions. The latter figures are yet to be determined.

The Receivers and Managers' focus over the first five days of their appointment has been to identify and secure investment assets. After searching the custody accounts identified by Mr Ross and through wider searches in international investment markets, they have so far located investments of only $10.2 million. The search continues.

Read full media release here.

A copy of the report and appendices can be viewed on PwC's website.

12 November 2012

The focus of work for the appointed receivers from PwC and brokers from NZ First Capital to date, has been identifying and preserving assets on behalf of investors, as per the orders obtained by FMA.

As directed by the Court on November 6, PwC will provide a report to the Court on Tuesday 13 November.

FMA is seeking a court hearing for Wednesday 14 November, after which both PwC and FMA will be able to give investors a further update. The hearing date is still to be confirmed.

The report is likely to be held by the Court as confidential until the hearing, when orders regarding disclosure of the report will be made.

If you have any questions, please contact PwC directly on 04 462 7040.

9 November 2012

As previously advised, John Fisk and David Bridgman of PwC have been appointed receivers and managers, to manage the business of David Ross and Ross Asset Management, and related entities. Their inquiries are continuing with assistance from First NZ Capital and FMA.

The receivers sent out letters yesterday to investors. If you do not receive a letter within the next couple of days, please contact PwC directly on 04 462 7040.

A copy of the letter can be viewed here.

6 November 2012

The High Court in Wellington has today granted FMA's application for John Fisk and David Bridgman of PwC to be appointed as receivers and managers, along with experienced brokers from First NZ Capital, to manage the business of David Ross and Ross Asset Management. The decision follows the freezing of the assets of Mr Ross last Friday after FMA received a number of complaints regarding the delayed or non-payment of investors. Mr Fisk and Mr Bridgman have now stepped in to manage the business and to identify the assets held, the names of clients and the value of the portfolios held. FMA's inquiries to date have identified that assets are held in New Zealand, Australia, the UK and the USA, and FMA and PwC's inquiries to locate and value the assets continues.

The receivers will provide a report updating the Court and FMA next week on the steps they have taken and the current status of their work. They will be in touch with known investors within the next two days.

If you are an investor, we ask that you contact the receivers at PwC and provide them with details of your investment on 04 462 7040 or http://www.pwc.co.nz/.

2 November 2012

On Friday 2 November, the High Court in Wellington froze the assets of David Ross of Ross Asset Management Limited and the following related entities:

  • Ross Asset Management Limited
  • Bevis Marks Corporation Limited
  • Dagger Nominees Limited
  • Mercury Asset Management Limited
  • Ross Investment Management Limited
  • Ross Unit Trusts Management Limited
  • United Asset Management Limited
  • McIntosh Asset Management Limited
  • Chapman Ross Trust
  • Woburn Ross Trust

 

Ross Collins

This criminal proceeding relates to allegations that Ross Collins, as a Director of Prosper Hills (2004) Limited, Prosper Hills (2006) Limited NZFIL 3, failed to deliver financial statements to the Registrar of Companies under ss 18(1) & 38(b) Financial Reporting Act 1993.

10 July 2014 Mr Collins was sentenced in the Tauranga District Court and ordered to pay a fine of $30,000 for breaches of the Financial Reporting Act 1993 (FRA). See FMA’s press release of 11 July 2014 for further details.
12 June 2014 Mr Collins appeared in the Tauranga District Court on 29 May 2014 and pleaded guilty to all charges. He will next appear before the Court on 10 July 2014 for sentencing.

 

Vivier and Company Limited (Vivier)

Under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (FSP Act) the FMA can direct deregistration of registered financial service providers when the FMA considers it necessary and desirable to do so after taking into account the criteria set out in section 18A of the FSP Act.  Section 42 of the FSP Act provides a right of appeal to the High Court in the event a financial service provider is not satisfied with the FMA’s direction.

13 May 2016

The Court of Appeal released its decision finding in favour of the FMA and ordering that the direction to deregister Vivier be restored and that costs be awarded to the FMA

 

The matter is due to be heard by the Court of Appeal on 10 February 2016

22 October 2015

FMA files appeal in Court of Appeal against decision of the High Court

25 September 2015

Justice Brewer delivered his judgment allowing Vivier’s appeal

24 August 2015

Hearing before Justice Brewer in the High Court at Wellington

3 July 2015

Vivier filed a Notice of Appeal pursuant to section 42 FSP Act appealing the FMA’s direction to the Registrar of the Financial Service Providers Register that it de-registers Vivier.

29 June 2015

Under section 18B FSP Act, the FMA directed the Registrar of the Financial Service Providers Register to de-register Vivier.