Fran O'Sullivan on business
Business analysis and comment from Herald columnist Fran O'Sullivan

Fran O'Sullivan: Fay's challenge improper and absurd

Sir Michael Fay seems to be conducting a carefully orchestrated 'patriotic' campaign to wrest the ownership of the Crafar farms his way. Photo / APN
Sir Michael Fay seems to be conducting a carefully orchestrated 'patriotic' campaign to wrest the ownership of the Crafar farms his way. Photo / APN

Sir Michael Fay has long-played by the Golden Rule ("He who owns the Gold rules!").

But Fay's move to file High Court proceedings before two Cabinet Ministers have even given their decision on the Pengxin bid for the Crafar dairy farms is quite extraordinary.

Neither Maurice Williamson nor Jonathan Coleman will be amused at being drawn into the first phase of Fay's threatened judicial review of the Overseas Investment Office's decision-making process on the Pengxin application. Particularly when they have had little time to consider it.

Nor will their Cabinet seniors - particularly Prime Minister John Key and Finance Minister Bill English - relish the Government being drawn into Fay's campaign at this stage.

Applying for a judicial review of a public administrative decision which has been made is one thing. But asking Cabinet Ministers to make decisions subject to the outcome of judicial reviews is frankly improper if not completely absurd.

Government would grind to a halt if that precedent was set. Key's Government should tell the Fay-led consortium to take a running jump on this point.

Back in the day when he was a swashbuckling merchant banker on the Auckland scene, Fay frequently played the patriotic or nationalistic card when he was trying to get journalists on side for his commercial exploits. It was a factor in how his merchant bank managed to position itself in the sweet spot when state-owned assets were put up for grabs.

A considerable factor in Fay's success was also knowing how to play the influence game. Particularly with Cabinet ministers and officials who would have the 'Yay Nay' say on his various (mostly successful) bids to get ownership of state-owned assets. He stroked them liked a master. He also employed well-connected former Treasury officials and his bank Fay Richwhite and Co pulled off many deals, including where they were not necessarily involved with the top bidders.

But the move by the Fay-led consortium to file for a judicial review of the Overseas Investment Office's (OIO) recommendation on the Crafar farms sale is the first time that I can recall Sir Michael has had to resort to outright litigation within New Zealand to get his way (The successful US court challenge for the America's Cup was of a different league).

Fay's Maori partners have also ramped up the patriotic card in recent days. TV3's John Campbell ("St John" as one media wit describes him) was typically breathless as he reported how Maori members of the Fay consortium might mount blockades to stop Shanghai Pengxin accessing the Crafar farms if the Government approves the Chinese bid.

It's all part of the carefully orchestrated "patriotic" campaign that Fay is spearheading to wrest the ownership of the Crafar farms his way.

But it will be interesting to see whether Fay - who spent a good deal of time out of New Zealand as a tax exile in Switzerland - still carries the sway he used to enjoy with previous Governments.

The most interesting example of the influence game that I can recall was with the September 1990 sale of Telecom to the US "Baby Bells" consortium for $4.25 billion. Business readers will recall that Fay Richwhite and Co (the merchant bank controlled by Sir Michael and David Richwhite) and the Freightways partners Alan Gibbs and Trevor Farmer effectively pulled the deal together for Bell Atlantic and Ameritech and emerged with minor holdings themselves after the share float.

The Baby Bells consortium was not the highest bidder when the then Labour Government put 49.9 per cent of Telecom on the block. The top bid was said to have come from Australia's Optus.

But as former Telecom chief executive Peter Troughton revealed in a National Business Review article in 2006, a few days before the final bids were due, "I was informed that a non-conforming bid would be submitted, and that the government might be prepared to accept it."

Other bidders were given just 24 hours to match the Baby Bells' bid.

The NBR article also reported former Telecom company secretary Martin Wylie saying the change in the rules of the sale was a bad signal. "It was a Mickey Mouse way of doing things. I was somewhat surprised that a transaction of that size would be treated on that basis." There was more besides including the failure to put appropriate conditions around the sale of a monopoly network.

Fay has recently banged on about the lack of transparency in the OIO's handling of the Pengxin application.

But that pales in comparison to the extraordinary manoeuvring over the Telecom sale. The rival bidders were treated appallingly. Optus was outraged that the Government switched its sales plans within days of the announcement. But it did not file for a judicial review of the Government's decision. It just accepted this was the way business was done under the second Labour Government.

It will be interesting to see if this Government's buttons can also be pushed.

- NZ Herald

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