Broker fights to keep investments out of Ross Asset pool

David Ross was sentenced in 2013 to 10 years, 10 months' jail for an elaborate Ponzi scheme spanning 12 years in which an estimated $115.5 million of investments was lost. Photo / Mark Mitchell

Duncan Priest, a Wellington broker, wants investments he made through Ross Asset Management to be excluded from the liquidator's distributions to investors hit by New Zealand's largest fraud.

Appearing in the High Court at Wellington before Justice Denis Clifford, counsel David Chisholm QC sought to remove PwC liquidator John Fisk's claim from a large parcel of shares, saying Priest's investments were never part of the Ponzi scheme.

Wellington-based Ross built up a private investment service by word of mouth, producing regular reports for shareholders indicating healthy but fictitious returns. Between June 2000 and September 2012, Ross reported false profits of $351 million from fictitious securities trading as part of a fraud that was the largest single such crime committed by an individual in New Zealand. He is currently serving a 10-year, 10-month jail term, which carries a minimum non-parole period of five years and five months.

However, Priest used RAM as a nominee to manage share transactions and had full control over buy and sell orders for the shares and was not part of Ross's Ponzi scheme, Chisholm said.

"Priest was not a victim of the Ponzi scheme," Chisholm said. "There's no suggestion he was ever allocated fictional shares, he was not paid fictional profits."

Complicating matters, Ross used the same ANZ Bank current account for all transactions, meaning Priest's investments flowed through the same account as Ross's other investors.

Justice Clifford said effectively the Ponzi scheme had "muddied the waters" in terms of the cash passing through the account, and therefore the argument could be made that everything should be evenly distributed to investors.

Chisholm argued that Priest's investments were untraceable as they went through the account, meaning RAM investors can't claim his shares because they can't be singled out.

In June, liquidator Fisk won the right to claw-back cash from investors who were paid fictitious gains, although an investor's principal could be viewed separately.

Justice Alan MacKenzie ordered former Ross Asset Management investor Hamish McIntosh to repay $454,000 in fictitious gains from his investment, but he was able to keep his $500,000 principal payment.

Defrauded RAM investors expect to receive 3 cents in every dollar invested.

Fisk is seeking to claw back some of the $100 million to $115 million that was lost in the fraudulent scheme for some 1,200 investors. As at June 16, Fisk estimated the realisable value of shares held by Ross Asset Management entities to be about $5.4 million, with estimated total realisations available for investors and creditors of $3.98 million.

Ross Asset Management's assets were frozen and receivers appointed in 2012 by the Financial Markets Authority after the watchdog received complaints about delayed or non-payment of investor funds. Ross wasn't available in the early days of the investigation due to his hospitalisation under the Mental Health Act.

PwC's John Fisk and David Bridgman were appointed to preserve the assets of the Ross family and related trusts as part of the wider investigation into Ross Asset Management.
The hearing before Justice Clifford is continuing.