What is the legal basis on which the Liquidators can bring clawback claims?
The Liquidators are seeking to recover money from investors paid or transferred to those investors in the period prior to liquidation pursuant to section 348 of the Property Law Act 2007 and sections 292 and 297 of the Companies Act 1993.
How far back can a clawback claim be made?
Under the Property Law Act 2007, the Liquidators intend to challenge transactions made within the last six years. A claim under the Companies Act 1993 can be made in relation to transactions occurring in the period two years before the liquidation of Ross Asset Management (RAM) (In Liquidation) (which was on 17 December 2012).
Has the Liquidator made any successful clawback claims to date?
Yes, the High Court in Wellington has ruled that one investor is required to repay the total amount he received from RAM less the amount he contributed to his portfolio. However, the investor has appealed this decision to the Court of Appeal. The Liquidators have cross-appealed seeking to recover the full value of the amount paid to the investor. A date for this appeal has not yet been set.
Will any further clawback claims be made?
Two claims are currently before the High Court in Wellington. The appeal of the first claim may impact on how these claims progress.
Where an investor has received a payment from RAM in the last six years, the Liquidators may write to those investors in relation to a potential claim against them. At this stage, the Liquidators are prioritising potential claims against investors according to when investors received payments from RAM (the priority being those who received payments five to six years ago), and the amount received. At this time, the Liquidators are seeking to preserve their position pending the outcome of the appeal. The Liquidators will make a final decision regarding which claims to bring against which investors in light of the outcome of the appeal.
Could investors have direct claims against other investors? Has the High Court commented on this?
In the High Court’s decision on the first clawback claim, Justice McKenzie commented that investors may have their own remedies in equity to the extent funds can be followed or traced.
This was not an issue that was argued or raised during the first clawback hearing.
PwC cannot advise investors in relation to this issue. Investors who wish to explore this further would need to take their own legal advice.
Due to the way monies in RAM were intermingled, it is generally not possible to trace a particular deposit to a particular payment. Usually, any deposit received could have been applied to a variety of payments. Likewise any payment made could have come from a variety of deposits.
Investors should also be aware if they wish to obtain copies of RAM’s records to assist them in such a claim, they would first need to obtain an order of the High Court pursuant to section 256(1)(a)(ii) of the Companies Act 1993 requiring the Liquidators to disclose that information.
The Liquidators consider that legal action to recover funds from former investors is best undertaken by them on behalf of all creditors and for the benefit of all creditors.