Friday 18th October 2019
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Another class action related to the collapse of CBL Corp has been launched, this one with the support of the insurer's major shareholders and targeting CBL's directors.
Those shareholders include the largest institutional investor, Harbour Asset Management, Australia-based Argo Investments and broking firm Forsyth Barr.
The suit is being backed by New Zealand-based litigation funder LPF Group. Another suit announced early this week is aimed at the company, which is in liquidation, and whichever insurance company it had, and is being funded by ASX-listed IMF Bentham.
IMF Bentham had claimed to have a number of CBL's institutional investors signed up but refused to name them and it doesn't appear to have any significant New Zealand-based institutions on board.
CBL, which had a market value of $747 million when its shares were suspended from trading on NZX and ASX in February 2018, listed in 2015 after raising $125.3 million from a float with 80.9 million shares sold at $1.55 each. The shares were valued at $3.17 when trading on NZX was suspended.
The representative shareholders in the new suit will be Harbour and Argo.
CBL's collapse "represents one of the largest corporate failures in New Zealand's history," Harbour managing director Andrew Bascand says in a statement.
"Shareholders have lost everything. The directors of CBL need to be held to account and the out-of-pocket shareholders must be compensated," he says.
"Legal action is the only way shareholders can get any money back."
Bascand told BusinessDesk that one of the objectives is simply to get all the facts on the table.
"We want to know what the facts were and we probably have heard less than half the story."
LPF's Phil Newland says he thinks ultimately only one of the two cases will proceed.
"It's unlikely that the court would allow two actions on the same matter side by side."
Asked how much his action is seeking, Newland says that will depend on how many CBL shareholders sign up and how much money each has lost.
"Our focus is on the losses that the shareholders have occasioned."
It's clear the directors had extracted considerable sums from CBL before the collapse.
Of the shares sold in the IPO, 22.8 million worth about $35.3 million were existing shares. In April 2017, directors Peter Harris and Alistair Hutchison and other senior managers sold 20 million shares for $3.26 each, or $65.2 million.
While the IMP Bentham-backed suit has engaged Philip Skelton, QC, as their barrister, and Glaister Ennor managing partner Jack Porus and his fellow partner Mitch Singh as their solicitors, the LPF-backed suit has engaged Justin Smith, QC, Mike Colson and Jonathan Orpin-Dowell and law firm Meredith Connell as their solicitors.
Skelton has been arguing the class action against Southern Response on behalf of Brendan and Colleen Ross, who are represented by solicitor Grant Cameron of GCA Lawyers.
Last month, the Court of Appeal ruled that that case could proceed on an “opt-out” basis, meaning all the more than 3,000 people in the same position as the Ross couple are automatically included unless they actively opt out.
That's the first time a New Zealand court has allowed an opt-out case. If the Ross couple are successful, it will still require an “opt-in” process to decide how much individual claimants are entitled to.
Both the CBL cases are expected to proceed on an opt-in basis. The LPF-backed group say those who have already signed up to the IMF Bentham-backed case can opt out within 21 days if they wish to join their action.
IMF Bentham says it is confident the action it is funding will be "more straightforward, less costly for CBL's shareholders and resolved in a shorter timeframe than an action against six CBL directors."
Meredith Connell partner Fionnghuala Cuncannon says the suit against the CBL directors will claim there were false or misleading statements in the IPO documents and then ongoing breaches of the continuous disclosure obligations.
In February 2018, CBL revealed the Reserve Bank had been questioning its solvency for some time, certainly since July 2017, but that it had been bound by the central bank's confidentiality order from telling the market any earlier.
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