Judge throws out Capital+Merchant annulment bid

Photo / Herald On Sunday

An application by the former directors of failed finance company Capital + Merchant to have criminal charges against them annulled, has been thrown out of the Auckland District Court.

Owen Tallentire, Neal Nicholls, Colin Ryan, Robert Sutherland and Wayne Douglas were fighting to have the charges struck out because a summary of facts was not filed within the standard 21 day period under the Criminal Disclosure Act.

However Judge Phil Gittos said this alone was not enough to have the case annulled.

"Where a fair trial is still possible and can take place without undue delay, the remedy of stay or dismissal should not ordinarily be granted," he said.

The failure of the informant to provide the applicants with documentation within the timeframe, did not invalidate the case, and did not prejudice the defendants' right to a fair hearing, he said.

The defendants were served with the summary of facts well before their first appearance in court, Gittos said.

"...in the case of Nicholls and Douglas, within a few days of the due date, and in the case of Sutherland and Ryan who are resident in Australia, 30 and 37 days respectively after the 21 day period."

Today's ruling means the Securities Commission case against the directors can now proceed.

The commission alleges the directors made untrue claims in the company's 2006 prospectus and investment statement, and that the prospectus and advertisement distributed during 2006, were misleading.

A committal hearing has been scheduled for November 29, but the trial of the directors is not expected to begin until the end of next year, or the beginning of 2012.

The directors were not in court to hear today's judgment, which had been reserved from an earlier date.

If convicted, the directors face five years' jail or fines of up to $300,000.

Capital + Merchant collapsed in November 2007, owing 7500 investors about $167 million.