New watchdog barks at Reserve Bank

Keeping a watchful eye on finance companies during crisis years was not enough, says FMA chief

Financial Markets Authority chief executive Rob Everett has yet to be inducted into the club. That’s why he brings a refreshing outsider’s view to the task of being New Zealand’s markets watchdog.

I can’t imagine his predecessors Sean Hughes and Jane Diplock having the effrontery to suggest the Reserve Bank got it wrong when it came to the finance companies collapse which so knocked investor confidence in the 2007-09 period.

But Everett is not shy about performing the equivalent of farting in church with a clear view that the Reserve Bank had a larger role to play than keeping a watchful eye on the finance companies sector during that period.

The Reserve Bank may have been right to say the overall capitalisation of the finance companies — and the amount of investors’ cash at risk — did not pose a systemic threat to the financial system.

But in Everett’s view the central bankers were “very, very wrong”.

What surprised Everett when he blew into town was the obvious fact that New Zealand had been busy jailing various directors and managers of failed finance companies. Whereas in the other major Western capitals where very large banks had failed during the global financial crisis “people hadn’t gone to jail”.

In New Zealand, several high-profile finance company directors — including the Lombard Four — fell foul of the “strict liability” regime which existed before the introduction of the Financial Conduct Act.

In New Zealand, people had gone to jail for prospectus misstatements.

But, Everett says, “They didn’t go to jail because they ran their companies into the ground and had generally ran a shoddy show which actually was the problem. They didn’t describe it properly in their prospectus but actually the underlying problem was they were allowed to let the thing become unhealthily leveraged to one asset class.” Case in point: Lombard Finance.

The Supreme Court recently reduced the sentences of the four directors — including chairman Sir Douglas Graham and another former Justice Minister, Bill Jeffries.

Under the Financial Conduct Act none of the four would have been likely to have faced conviction as “strict liability” for a misleading prospectus has been wiped.

The upshot of the new legislation — and the Supreme Court judgment — is that the FMA will face added pressure in similar cases in future to take civil action to try to retrieve investors’ cash which is where Everett feels the balance lies.

Much has been made of the fact that earlier in the court saga, a High Court judge said the directors had acted honestly.

But it’s notable that Graham had warned in internal emails that Lombard was “sailing very close to the wind” ahead of issuing a misleading prospectus in what seems in retrospect a foolhardy attempt to trade out of trouble. The company collapsed four months later.

Here’s the problem: Lombard’s lending was heavily exposed to just five big property developers, including $54.7 million on the Brooklyn Rise residential development project in Wellington. These five borrowers represented repayment of nearly 78 per cent of the total loan book of $161 million.

Lombard Finance had exceeded its own lending policies, which did not allow lending on property to exceed 90 per cent of total funds.

They bet the book on the five property companies with little risk spread. They should not have issued the prospectus and simply moved into receivership. But pride appears to have intervened. In my view this is a classic example of what Everett warns about: a shoddily run company that was unhealthily leveraged to one asset class (property) and governed by directors whose experience was in politics and law — not business.

The FMA under Everett’s leadership is expected to take an active approach to monitoring the health of key sectors.

For instance, it is highly unlikely that Everett would issue a wishy washy (socalled balanced statement) as published by former Securities Commission director Jane Diplock when Hanover Finance proposed its switch with Allied Farmers.

He is more likely to call it as he sees

it.

There are a few areas which are (so far) off limits for the FMA boss.

Particularly, civil action in respect of the failed finance company South Canterbury Finance. The Serious Fraud Office’s criminal prosecution against several former directors is still being heard in the High Court at Timaru.

When it comes to related party transactions, Everett concedes they are part and parcel of a small market.

The FMA will continue to focus on creating a transparent environment for investors.

What we may also see is the occasional market inquiry to look into practices that concern the FMA boss — that ought to have a sobering effect on participants.