Whale ‘ relieved’ at fraud case acquittal
But former Dominion Finance director must still face Financial Markets Authority proceedings
by Hamish Fletcher hamish. fletcher@ nzherald. co. nz Robert Whale expressed relief yesterday when he was acquitted in a Serious Fraud Office case, but the former Dominion Finance director still has to return to the High Court in June for separate Financial Markets Authority proceedings.
Whale was found not guilty of five charges of theft by a person in a special relationship by Justice Graham Lang yesterday.
Former Dominion Finance chief executive Paul William Cropp was found guilty of four of these charges and is due to be sentenced on May 23.
Another defendant, with name suppression, was found not guilty on the charges he faced. The suppression order preventing publication of his identity is likely to remain permanently.
The SFO, which brought the proceedings against the men, alleged the trio knowingly and deliberately breached the requirements of Dominion’s debenture trust deed or that of its sister company, North South Finance.
A debenture trust deed dictates the terms and conditions between debenture holders ( investors) and the company accepting the funds.
The SFO contended each of the accused intentionally caused or assisted Dominion or North South to make loans without trustee consent to related parties using investors’ funds.
One of these loans was made to a company called Norfolk Manor, which was part of a joint- venture arrangement between property developer John Williams and former Dominion director Terry Butler, who died last month.
In 2004, Williams took over a stalled property project on Bassett Road, in Remuera, which had been started by former league player Matthew Ridge.
As part of the arrangement, Butler was to procure funding from Dominion to purchase and complete the ailing project. Between 2004 and 2008 Dominion advanced Norfolk Manor around $ 8.7 million and according to Justice Lang’s decision, this was a related- party loan.
As such, Dominion’s trust deed prohibited the loan being made without the trustee’s written consent.
Whale was one of the six directors who approved the loan to Norfolk Manor and played an integral part in implementing the arrangement between Butler and Williams, the judge’s decision said. But Whale said during the trial that he had never read Dominion’s trust deed and Justice Lang said he was left in a state of reasonable doubt as to whether, between 2004 and 2007, the director knew of the prohibition on lending to related parties without prior trustee consent. Whale was therefore found not guilty on the charge linked to this loan.
Other transactions discussed dur- ing the trial involved $ 11.9 million being transferred from North South to Dominion when it was experiencing liquidity problems. Both firms have since gone into receivership.
In regard to these transactions, Justice Lang reached a similar decision on Whale’s trust deed knowledge and found him not guilty. But it was different for Cropp, who said he was aware of the limits of relatedparty transactions in the trust deed but that it would be sufficient to retrospectively apply for trustee consent. The judge said this ‘‘ flied in the face of the plain wording of the trust deed’’ and ‘‘ would prove completely unworkable in practice’’.
Justice Lang referred to Cropp as ‘‘ the architect’’ of one of the transactions and believed the 49- year- old did know of the need to get prior written consent from the trustee. Cropp was found guilty and released on bail.
Justice Lang said the man with name suppression, who was only charged in relation to the $ 11.9 million advanced from North South to Dominion, had become involved in some of the transactions ‘‘ very late’’. He was acquitted. Outside court yesterday Whale said he was ‘‘ very relieved’’ it was over. But the 65- year- old is due back in court later this year to face charges brought by the FMA.