Vivier wins appeal on breach of justice over FMA deregistration

Monday 28th September 2015

The Financial Markets Authority breached Vivier & Co's rights to natural justice when it failed to supply the financial services firm detailed evidence regarding the decision to strip its registration as a financial services firm, a High Court judge has found.

The market watchdog removed Vivier, which counts one time political operator Luigi Wewege as a director, from the Financial Services Providers Register because it didn’t believe the company was providing services in New Zealand. Vivier successfully appealed its deregistration in court, arguing the FMA only began to investigate the firm after a member of the public passed on an Interest.co.nz online news article, linking the firm to sub-prime mortgages in Ireland, and questioned whether that reflected badly on the reputation of New Zealand’s financial regulation.

In the notice of deregistration, the FMA didn’t mention the article, which Justice Timothy Brewer found was a breach of natural justice.

"As a result of the FMA's failure to disclose the article and complaint, Vivier was unable to directly confront the allegation that it was engaged in money laundering in Ireland," Justice Brewer said in a High Court judgment on Sept. 25, released today. "I am of the opinion that the FMA breached Vivier's natural justice rights in failing to furnish it with more detailed evidence and information about why the FMA was seeking Vivier's deregistration.

"The direction to the registrar to deregister Vivier is quashed. The decision to issue the direction is referred back to the FMA for reconsideration," Justice Brewer said.

The article, by Gareth Vaughan and published on Feb. 26, 2015, detailed Vivier's dispute with an Irish television channel over claims sub-prime mortgages were funded by the proceeds of British fraud.

This was the first appeal of a deregistration since FMA was granted the powers under the Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2014. During last month's hearing, the financial market watchdog's counsel Mary Scholtens QC told the court 100 companies had been deregistered since the legislation, with four appeals filed to court, including two that were waiting on the outcome of the Vivier appeal before proceeding.

The government and regulator were concerned shell companies were registering as financial service providers in New Zealand to trade on the country's reputation for not being corrupt. Registration requires companies offering financial services in New Zealand or to offshore clients from the country to join an approved disputes resolution scheme.

The FMA denied it deregistered Vivier as a result of the article although the regulator did say it started investigating Vivier after the article noted that the Department of Internal Affairs was no longer overseeing Vivier under anti-money laundering and countering financing of terrorism legislation. Further investigation, including a site inspection of the Auckland offices by the Ministry of Business, Innovation and Employment, showed little evidence of activity in the office other than some administrative work.

Last year, FMA asked Vivier to remove references to FMA regulation and the regulator's logo from the website because it might be misleading to international clients.

According to Vivier's website it offers "savings accounts featuring above average returns, without market risk volatility" and says it achieves this "by making highly selective loans, secured against real estate".

Luigi Wewege, who shot to prominence in New Zealand after being involved in revealing Auckland mayor Len Brown's affair while working for mayoral contender John Palino, is Vivier's chief executive and a director. On his personal website, Wewege says he founded the parent company, Vivier Group and is managing director of its sister companies Vivier Investments, Vivier Developments, Vivier Home Loans and Vivier Mortgages.

BusinessDesk.co.nz

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