Financial Markets Authority v Ross

[2014] NZHC 2314

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2314 [2014] NZHC 3184

UNDER

Financial Advisers Act 2008 and parts 7

and 32 of the High Court Rules 2009

BETWEEN

FINANCIAL MARKETS AUTHORITY Plaintiff

AND

DAVID ROBERT GILMOUR ROSS First Defendant

ROSS ASSET MANAGEMENT LIMITED

Second Defendant

DAGGER NOMINEES LIMITED Third Defendant

BEVIS MARKS CORPORATION LIMITED

Fourth Defendant

MERCURY ASSET MANAGEMENT LIMITED

Fifth Defendant

ROSS INVESTMENT MANAGEMENT LIMITED

Sixth Defendant

ROSS UNIT TRUSTS MANAGEMENT LIMITED

Seventh Defendant

UNITED ASSET MANAGEMENT LIMITED

Eighth Defendant

MCINTOSH ASSET MANAGEMENT LIMITED

Ninth Defendant

TRUSTEES OF THE CHAPMAN ROSS TRUST

Tenth Defendant

FINANCIAL MARKETS AUTHORITY v ROSS & ORS [2014] NZHC 3184 [11 December 2014]

TRUSTEES OF THE WOBURN ROSS TRUST

Eleventh Defendant

In Chambers:	On papers
Judgment:	11 December 2014

JUDGMENT OF THE HON JUSTICE KÓS (Payment of legal fees)

[1]      Before the Court now is an application by the first defendant, Mr Ross, that

$217,904.46 together with interest currently held by Chapman Tripp in its Trust account in the names of that firm, G L Turkington and Ross Asset Management Limited (in liquidation) be paid to Chapman Tripp in discharge of its and counsel’s outstanding fees.

[2]      Existing orders by the Court provide that the first, second, third, tenth and eleventh defendants may be paid their legal costs reasonably incurred “in respect of the Authority’s investigation or consequential proceeding”.  They are to be paid from the assets of the first defendant or from such other property as the Court may order.

[3]      The Deed of Settlement of November 2013 provides that the question of Mr Ross’ outstanding fees be settled or fixed by appointment of a Law Society representative.  It also requires that the fees agreed or otherwise assessed by the Law Society assessor be put before the Court for approval.

[4]      Kenneth  Johnston,  barrister  of  Wellington,  has  found  in  a  report  dated

24 October 2014 that the fees charged are reasonable.  Mr Johnston’s report is a very

careful one, and I am satisfied that his conclusion is correct.

[5]      The plaintiff, the Financial Markets Authority, abides the Court’s decision.

[6]      Counsel for the liquidators of Ross Asset Management Limited, and for the receivers of David Ross, do not oppose the application.

[7]      Counsel for the receivers and liquidators records his clients were initially concerned whether all legal work charged was within scope of the existing orders. In particular, work “undertaken to identify the status of assets owned by Mr and Mrs Ross, and in particular which assets could be said to be tainted”.   Counsel  for Mr Ross has confirmed that those issues were considered within the scope of “the Authority’s investigation or consequential proceeding” – as provided for in the Court’s present order.   He has also confirmed that some other stray work streams referred to by counsel for receivers and liquidators were very minor in the context of overall legal fees.   On the basis of those assurances counsel for the receivers and liquidators do not oppose the making of the orders.

Result

[8]      There will therefore be an order in accordance with [1] above.

Stephen Kós J

Solicitors:

Financial Markets Authority, Wellington for Plaintiffs

Chapman Tripp, Wellington for Mr Ross

Ord Legal, Wellington for Mrs Ross

Bell Gully, Wellington for Receivers

Gibson Sheat, Wellington for W Ross and A Yip