Court dismisses Ross investor's suppression claim
The Ross Asset Management investor who was told media stories are just “fish and chip paper tomorrow” has lost an appeal to keep his name secret as liquidators seek to claw back $954,000 from him.
In March, the first of three test claims against Ross Asset Management investors, who collectively withdrew $3.8 million in fictitious profits before the Ponzi scheme’s collapse, was heard in the High Court at Wellington.
The person who obtained a $500,000 bank loan to invest in Ross Asset Management received interim name suppression but this was set to be revisited once the case was resolved.
In April, Justice Alan MacKenzie refused an application by the investor for permanent name suppression.
This was challenged in the Court of Appeal earlier this month, but today the appeal was dismissed, Fairfax Media reports.
The investor’s name will, however, remain suppressed until the delivery of the substantive clawback judgment from the High Court.
"Whatever is the result, [the investor's] probity or professional reputation could not fairly be called into question,” today’s judgment reportedly says.
The investor was also ordered to pay the liquidator’s costs for the appeal.
Justin Smith, QC, had argued his client sought name suppression because of concerns about undue media attention and public scrutiny of his investment, while other investors who had also withdrawn money still had suppression.
The case was heard before Justices Rhys Harrison, Forrest Miller and Mark Cooper.
Justice MacKenzie's decision in the first test case was delayed as the investor fought to keep permanent name suppression.
The slings and arrows
Mr Smith had argued Ross "was pilloried in the press" and his client could fairly expect similar attention.
The investor was also at a "vulnerable" stage in his career and had been "dragged in willy-nilly, kicking and screaming" to the test case, while other investors, who had withdrawn money, retained anonymity.
Justice Harrison said the investor should understand that media attention was one of the "slings and arrows of life" and that news stories become "fish and chip paper tomorrow."
Liquidator PwC’s lawyer Jenny Stevens said greater disclosure allows other investors to understand the circumstances of Justice MacKenzie's decision.
Ms Stevens argued there is a large group of unpaid investors who think it is "some cover-up" or conspiracy, which were live issues for the liquidator, and name suppression would add to that feeling.
In the week before the first clawback hearing, the investor withdrew an application to have it kept secret.
Ross Asset Management director David Ross, 64, is serving 10 years and 10 months in jail for defrauding investors of about $115 million.
A judgment shows another of the clawback cases is against a company linked to a high-profile Wellingtonian, from which PwC is seeking $2.3 million.
The three investors are disputing the claims, with the other two cases to be heard later this year.
Ross’ fraud is the largest single such crime committed by an individual in New Zealand, affecting about 700 investors who thought they had portfolios worth about $380 million.