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Fund managers forced to come clean

By Philip Macalister

Friday 27th June 2003

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Any fund manager who is in breach of the exemption notices for Australian and United Kingdom funds are being forced to come clean by the Securities Commission.

The commission has written to about 60 firms who have used these notices to promote collective investment vehicles in New Zealand since the mid-1990s and asked them to declare whether they are in breach of the regulations.

The firms have to provide the commission with a sworn statement by July 18 declaring whether they have complied with the law.

If in breach they have to inform the commission what level of exposure they have.

Securities Commission general counsel Liam Mason says the request is essentially a fact-finding mission to see what the size of the problem is.

Currently only two companies, BT Funds Management and Edinburgh Fund Managers, have publicly acknowledged they had non-compliance problems.

However, there is speculation a number of other managers know they have problems, but have yet to come forward.

"We really wanted to stop speculating and find out," Mason says. "We thought it was desirable to be in a position of knowing rather than speculating."

He said if a manager had a compliance problem and "refused to tell investors without good reason the commission would have to consider it should (tell investors)."

He had no comment on where the issue was going or whether the information gathered by the commission would be made public.

Under the law any securities that were issued during the breach period are invalid and fund managers could be forced to return the original capital plus 10% annual interest.

Westpac-owned BT has an A$250 million indemnity from its former owner the Principal Group. It is believed that this may be insufficient if the company was forced to return the money, plus interest.

BT has applied to the High Court to have securities issued during the breach periods validated, and Edinburgh has written to unitholders saying its funds will be back on the market on June 30.

The company is "continuing to investigate and consider the possible options to remedy any past non-compliance with New Zealand securities laws."

It says the factual and legal issues are complex.

While it appears that under New Zealand law shares issued during the period of non-compliance will be void, under Scots law, the relevant shares have been validly allotted and are not void.

"Therefore, a judgment of the New Zealand courts requiring Edinburgh Investment Company and Edinburgh Unit Trust Management to repay the relevant subscriptions moneys plus interest on a joint and several basis to the relevant New Zealand investors would need to be obtained and then enforced by a Scottish court before there is any liability of EIC and/or EUTM to pay those moneys," the company says.

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