High Court Judgment
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IN THE HIGH COURT OF NEW ZEALAND M. No. 9/2000 IN THE MATTER OF The Unit Trusts Act 1960 AND IN THE MATTER OF FLAT ROCK FORESTS TRUST AND IN THE MATTER OF an application
by RUTH HATCH Date of Hearing: 9 May 2000 Date of Judgment: 18 May 2000 Counsel: J.W.
Maassen for Applicants
JUDGMENT OF DURIE J
Solicitors: The Proceeding [1] This is an application to appoint an inspector to investigate and report on
the affairs and management of the Flat Rock Forests Trust (`FRF Trust') pursuant to s
21 of the Unit Trusts Act 1964. Though the section has been in existence for
forty years, there is no authority on its application. [2] Section 2l provides:
[3] The applicants are Ruth Linn Hatch and numerous others whose combined units in FRF Trust represent more than
one tenth and some 70% of the value of the units as a whole. Background [4] Though untested by cross-examination, it appears from affidavits that FRF Trust came into existence, in I989, in response to or contemporaneously with immigration policies that would provide a source of funding for such trusts. The policy enabled high net worth, business persons from overseas to obtain permanent residence by investing a minimum amount in unlisted, New Zealand securities for a minimum term. New Zealand Trade and Investment Limited ('NZTIL'), which was indirectly associated with the establishment of FRF Trust, is a funds management company that assisted intending business migrants with their investments having regard to immigration requirements. It was linked, by personnel or operations, with New Zealand Enterprise Board Limited ('NZEB'), formerly called the Wellington Regional Enterprise Board which was the settlor of the FRF Trust. The NZEB advised successive Ministers of Immigration on immigration policy. [5] FRF Trust was to acquire and manage a number of forests funded partly from intending migrants and partly
from local subscription. Under its trust deed, NZTIL is the trust manager and Perpetual Trust Limited ('Perpetual Trust'), is the
trustee. The Trustee and Mr Simcock, a former director of NZTIL, were separately represented at the hearing. [6] In terms of the Act and trust deed, the manager, NZTIL,
is responsible for the day-to-day and strategic management of the trust assets,
deciding on the acquisition and disposal of assets and generally having an active
commercial role. By s 24 of the Act both the manager and the trustee have a
duty to exercise care and diligence in the performance of their duties and to act in
the best interests of the beneficiaries but the trustee's role is more
constrained. The trustee's function is to hold the Trust assets and to monitor
the manager's compliance with responsibilities under the trust deed and the
Act. By s 12(1)(c) the trustee has a limited power to veto transactions if, in
the trustee's opinion, "the proposed acquisition or disposal is manifestly not
in the interests of the unit holders". The trustee advises that in
practice the trustee checks that the transaction is authorised by the trust deed and
is within the manager's powers, reviews the transaction documents for obvious defects
or irregularities, reviews the financial information, valuations and projections and
obtains independent Iegal and other expert advice where appropriate. [7] Further protection for investors were provisions in the
trust deed limiting borrowing to 35% of total assets and restricting investments in
other unit trusts. [8] It further appears that for the most part, the initial
investments of the intending migrants, mostly or wholly Asian, were secured by
redeemable preference shares in NZTIL, which in turn invested in various securities
of which the FRF Trust was one. Because of some confusion in the affidavits, it
is emphasised that the FRF Trust provided for only one such investment. NZTIL
relied upon a more extensive investment pool. [9] Following a change in company law, from June 1997 all
redeemable preference shareholders in NZTIL became ordinary shareholders in that
company. That gave them voting rights which would later enable them to take
control of the company. [10] The principal applicant, Mrs Hatch, together with her
husband, sought to migrate to New Zealand from the United States. They were
introduced to NZTIL and the investment scheme. However, their investment, of
some $500,000, was not directed to preference shares in NZTIL to be effectively
spread across a number of ventures. In January 1994, their funds were deployed
directly and wholly to the acquisition of units in FRF Trust by purchase from a
retiring migrant investor. Their eggs were all in one
basket. Consequentially also, Mr and Mrs Hatch became by far the largest unit
holders in FRF Trust. This investment was also recognised by immigration
authorities as falling within the appropriate business category of immigration policy
enabling permanent residence provided the investment was maintained for the minimum
term. [11] The asset value of the FRF Trust declined and today, the
investments in that Trust are worthless. The manager has contended, and it is
argued now, that this was because the forests owned by the FRF Trust were purchased
when the forestry industry was buoyant and prices were high. At that time
forestry investments were seen to be most propitious. But log prices fell and
forest values declined between 1993 and 1997 climaxing with the collapse of Korean
and Japanese markets with the Asian economic crises. The consequentially lower
valuations for the forests, undermining the Trust's debt-asset ratio, caused the
borrowing limit in the trust deed to be exceeded. Reduced returns led to an
inability to service debts and eventually, to receivership by the Trust's
bankers. The decline was posited as being in line with trends in the forestry
industry in general. [12] Mrs Hatch disputes this. She contends that no other
entity involved in forestry investment in New Zealand suffered such a catastrophic
collapse or at least that it was not an industry-wide event. [13] It further appears that as the interests of other migrant
investors, represented in shares in NZTIL, were spread over several investments, the
other migrant investors were not so badly affected. While these took over NZTIL
in 1998 and then opted for liquidation, Mr Simcock considers there is a proposal
before the liquidators that could result in a significant pay-out to them. The
liquidators did not seek to be heard and have taken no part in the proceedings. The Grounds for the Application [14] Broadly, the applicants seek an investigation upon the
ground that they have a right to know what caused the loss, that the cause has never
been fully inquired into or disclosed to them, and that an independent examination is
called for having regard to certain suspicions. These suspicions are said to
suggest, putting it at its mildest, that to the detriment and toss of unit holders,
the management of the Trust was inadequate or improper. [15] The applicants say, openly, that an inquiry may disclose grounds for some Civil action or for inviting the Court to exercise its powers under s 27 of the Act against the directors of the manager or NZTIL in liquidation. However, I note that the power under s 27 arises from out of a winding up of a manager. Section 27 provides:
Loss and accountability generally [16] Mr Maassen for the applicants argued that the size of the Trust's investment in forestry (some $I4m), the 35% borrowing limit and the perception of forests as comparatively low risk investments, call for an independent examination of how a total loss could have happened. The explanation of falling log prices is insufficient, he argued, when many forests were acquired while the market was declining, and the 'catastrophic' losses sustained by unit holders was far in excess of the extent of the post- purchase decline. The unit holders' concern was evident in the large numbers who joined in the application, he submitted, and further, the applicants were prepared to meet the investigation costs. It was also submitted that attributing the loss to market changes was insufficient when investors in other forestry entities had not suffered similarly and when there are the particular areas of concern that are referred to below. Mr Maassen also submitted that the FRF Trust had collapsed prior to the Asian economic crises, and that the explanation of declining markets was simply too glib. [17] An element of public interest was contended for in that an
investigation might reveal lessons of value to investors generally in this expanding
medium for investment. Mr Pearson, a unit holder in FRF Trust and an investment
advisor to other unit holders, considered an investigation to expose the causes for
the Trust's demise was important. Such accountability helped establish a strong
framework for investing in New Zealand, he considered, and was important in this case
where Government policy had encouraged the deposit of overseas money in investments
like the present. Has there been a full accounting? [18] On the question of whether there has in fact been a full
accounting, Mr Maassen argued, and it was not disputed, that there are no audited
accounts after 31 March 1996 following which the Trust became seriously
compromised. There had been no meeting with unit holders to discuss the reasons
for the collapse. Reference was made to a report of Price Waterhouse,
commissioned by the trustee in 1997, and whether that provided a sufficient
explanation. [19] I am satisfied that the Price Waterhouse report was
primarily a 'where to from here' account made in the face of exigent
circumstances. It assumes but does not provide a complete analysis of what went
wrong - and it flags areas deserving further investigation. On its face it does not
purport to be a full review of the discharge of the manager's fiduciary
responsibilities. No other reports were referred to that provide a fuller
account of the Trust's activities. I include here a liquidator's report, to
what may have been a 24 hour audit by FG Research, to information bulletins and
statements at an extraordinary general meeting of unit holders in February 1997 to
consider the resolutions there proposed. Specific matters [20] In coming to specific areas of concern, Mr Maassen emphasised that these gave rise to suspicions based on information available, that they were not allegations, and, in his submissions, that they need not be put more highly than suspicions:
[21] It was submitted that these matters established the need
for a general inquiry into the affairs of the Trust by an independent person enjoying
the confidence of the unit-holders and having appropriate expertise and understanding
of commercial affairs. Mr McCallum, earlier referred to, was proposed as
investigator. Mr McCallum consents to appointment subject to payment of his
reasonable costs and disbursements. As earlier said, at this stage the
applicants are prepared to bear that. Responses [22] Responding for Mr Simcock, Mrs Peacock argued that the
large numbers supporting the application was not a persuasive factor given the losses
sustained by them, some canvassing of unit holders by Mrs Hatch and Mrs Hatch's
assertions to unit holders disseminated through her web site. I accept that
some of those assertions were extravagant on the information available and that the
losses sustained would have influenced unit holders to give support. Mrs Peacock
argued further, and I accept, that Mrs Hatch's reports on her inquiries, set out in
her affidavits, place a complexion on many matters that are not or are not likely to be
sustained on closer examination. In other words there is a deal of undergrowth
that might be readily destroyed. I accept that but, the tall trees, identified
by Mr Maassen, are more robust. Mrs Peacock did not address these in other than
a general way, protesting the time and effort required to deal with them and the
unavailability of files held by the liquidators and Serious Fraud Office. Over
the last two years, the latter has been conducting an inquiry at Mrs Hatch's
behest. Instead, Mrs Peacock relied principally on an argument that an
evidential threshold was required that had not been met - to which I refer
later. She also contended that Mrs Hatch was engaged on a fishing expedition,
looking for someone to sue. That matter is also considered below. [23] I interpose that off-setting criticism of Mrs Hatch are her
extensive inquiries to ascertain the information in fact available to lay unit
holders. She has exhaustively detailed the extent of her inquiries. [24] Mr Kynaston for Perpetual Trust neither supported nor
opposed the application but not wishing to be put to the inconvenience and cost of an
investigation, argued that the appointment of an investigator was
unnecessary. In very broad terms, he referred to the standard of professionalism
undertaken by the trustee and the measures taken to ensure care and
diligence. He also asserted that unit holders were sufficiently apprised of the
commercial risks and that none of the evidence showed that investments were made
outside the terms of the trust deed, the prospectus or other offering
documents. Both Mr Kynaston and Mrs Peacock also argued that an inquiry was
premature given the work still to be completed by the liquidators and the Serious
Fraud Office. I consider however, that neither of those inquiries is likely to
sufficiently canvass the issues that Mr Maassen focussed on. I accept too that
delays may prejudice the applicants in having to argue limitation defences or in
recovering any interests in NZTIL that ought properly to have been held in trust for
the unit holders. [25] Finally, Mrs Peacock and Mr Kynaston argued that opportunity
existed and still exist for unit holders to refer specific matters to the officers or
former officers of the manager, or to the trustee which would obviate the need for an
inquiry. However, while specific complaints have been made, the concern is
especially with the lack of information on which questions might be grounded, and the
issue is whether the concerns raised are of a type that require an independent person
to consider matters. Criteria [26] The key issue concerns the standard to be applied in
assessing applications under s 21 of the Unit Trusts Act. Section 21 provides
no guidance to the exercise of judicial discretion except to the extent that it
defines the consequences of an appointment in terms of s 171 of the Companies Act
1955. Effectively, by the incorporation of the main elements of that section,
past and present officers and agents of the manager, including bankers, solicitors,
auditors and bodies corporate, must produce all books and papers, submit to
examination by the inspector on oath, and become subject to Court examination for
failure to comply. Section 21 of the Unit Tiles [Trusts?] Act imposes
penal sanctions. Clearly, in view of this imposition, the time and costs
involved in responding, and the impact that an order for inquiry might have on
reputations, an order for an inquiry should not be gives automatically. [27] I mention at this point, as Mr Kynaston argued, that the
focus of s 21 is on the manager. The power is to direct an investigation into
'the affairs of any unit trust and its manager', the section not specifically
referring to the trustee, and the inquisitorial powers provided for in subsections 2
and 3, are restricted to the officers of the manager. [28] Mrs Peacock argued for a threshold test analogous to or stricter than that in the Companies Act 1955. Section 168 of that Act, not repeated in the current Act provides:
[29] In re The Mercantile Finance Company (1894) 12 NZLR 248 provides guidance as to what constitutes 'good reason' for the purposes of that section. There following the collapse of a company, an inquiry was sought mainly on grounds of fraud on the part of the promoters and fraudulent misstatements in the prospectus. Section 90 of the Companies Act 1882, which then applied, set the same 'good reason' threshold. Having regard to the large inquisitorial powers that the Act conferred, Denniston J considered the mere fact of ruinous loss was not enough and there had to be 'evidence of suspicion of grave misconduct or mismanagement' or 'some definite allegation of misconduct'. However he also commented on the right of shareholders to be informed:
[30] Reference was also made to Lamborn v Northern Wairoa Co-operative Dairy Co Ltd (1989) 3 BCR 344. That case was under s 169(1) of the Companies Act 1955. Section 169(1)(a) provides that the Court shall appoint an inspector if the company by special resolution or the Court by order declares that its affairs 'ought to be investigated'. Section 169(I)(b) enables investigations on the application of persons other than members of the company where there are circumstances suggesting intent to defraud creditors, fraudulent or unlawful purpose, fraud, misfeasance or other misconduct, or simply 'that its members have not been given all the information with respect to its affairs that they might reasonably expect'. In Lamborn, it was found that the matters in issue could be dealt with on the evidence supplied upon the application and accordingly, an inquiry was not needed. However, Fisher J put matters more highly than in the Mercantile case in commenting as follows:
[31] As I see it, the Unit Trusts Act 1960 was introduced to
control the predicted burgeoning of unit trust investments (see 1960 NZPD 1923,
3086). When Parliament made no express reference to the thresholds in sections
168 or 169 of the Companies Act 1955, while yet incorporating other provisions of that
Act as to the powers of an inspector, it must be taken to have intended that the
Court's discretion should not be so circumscribed. Some justification for this
is that applications for the appointment of an inspector under the Unit Trusts Act
are restricted unit holders. No provision compares with the Companies Act 1955
whereby creditors or other persons may also apply. (The only gloss on this is
that the Minister of Commerce may appoint inspectors.) It may also have been
considered that the interests of unit holders are not the same as those of
shareholders in a company, especially in the case of single purpose unit trusts like
the present, that focus on a particular venture like forestry. Shareholders have
an interest in the company but no direct interest in its particular
assets. Unit holders have a proprietary, beneficial interest in the particular
assets of the Trust, creating a more direct interest in the way that those assets are
managed. The assets are managed on behalf of unit holders and the fundamental
thrust of advancing the interests of the unit holders permeates the Unit Trusts
Act. That must also heighten the fiduciary responsibilities of managers, to deal
with the assets to the optimum benefit of unit holders, aligning responsibilities more
closely to Trusts under the Trustee Act where there is an automatic right to a full
accounting. [32] I am mindful of Mrs Peacock's submission that the standard
must be stricter because unit trusts are more controlled than companies through the
continual monitoring of a trustee operating separately from the manager. I think
that must be seen as an additional constraint that the legislature intended. It
should also not be overly emphasised. The trustee's responsibility is to veto
only where a proposed transaction is 'manifestly not in the interests of the
unit holders' (s 12(1)(c) with emphasis added). It is consonant with that, that
inquiries under s 21 are directed to managers, not trustees, in my view, and
accordingly trust officers cannot be compelled to submit to examination. [33] Having regard to the lack of words in the Unit Trust Act indicating a threshold test, and that the purposes for which an inquiry may be sought are not restricted, I think the proper course is to consider matters upon a balancing of relevant factors. The following are particularly relevant in this case:
[34] In this case the extent of loss, with grounds for
considering that the attribution of loss to market vagaries is disproportionate to
the level of loss sustained, and the specific concerns enumerated on the available
information, justify an inquiry, in my view, the factors against an inquiry being
insufficiently compelling. [35] In adopting the above approach I have substantially
accepted the arguments advanced by Mr Maassen. Conclusion [36] For those reasons an order appointing an inspector is judged as appropriate, subject to the applicants satisfying the inspector that they will meet his reasonable costs and disbursements but with leave to apply further on that matter. However, both Mrs Peacock and Mr Kynaston objected to the proposal to appoint Mr McCallum for the reason that he had acted earlier in advising Mrs Hatch. I do not think that objection is necessarily fatal to the application if no other suitable person can readily be found. Counsel should confer on the appointment of an alternative and file a memorandum. I make no order as to costs.
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