FMA anticipates wave of appeals

Luigi Wewege is chief executive and a director of Vivier & Co. Photo / Doug Sherring

The Financial Markets Authority is expecting a wave of appeals after deregistering 100 companies from the Financial Service Providers register, as it awaits a High Court ruling on Vivier & Co's appeal, the first to go through the courts.

Appearing in the High Court at Wellington before Justice Timothy Brewer, the watchdog's counsel, Mary Scholtens QC, said the hearing was the first appeal of a deregistration since the FMA was granted the powers under the Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2014.

The Government and regulator were concerned shell companies were registering as financial service providers in New Zealand to trade on the country's reputation as being free from corruption.

"Parliament has recognised if registration creates misleading appearance of regulation in New Zealand then that may damage New Zealand's reputation overseas," Scholtens said.

Since the legislation to empower the FMA, 100 companies had been deregistered with four appeals filed to court, including two waiting on the outcome of yesterday's hearing before proceeding, Scholtens said.

Last year, the FMA asked Vivier to remove references to FMA regulation and the regulator's logo from its 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".

The Auckland-based company counts Luigi Wewege - who shot to prominence in New Zealand after being involved in revealing Auckland Mayor Len Brown's affair - as a director and chief executive.

In April, the regulator notified Vivier it would be removed from the Financial Services Providers Register because it didn't believe the company was providing financial services in New Zealand.

Vivier counsel Andrew Riches said the FMA only began investigating the firm after someone passed on an Interest.co.nz news article which linked the company to sub-prime mortgages in Ireland, and questioned whether that reflected badly on the reputation of New Zealand's financial regulation. The article, by Gareth Vaughan and published on February 26, detailed Vivier's dispute with an Irish television channel over claims sub-prime mortgages were funded by the proceeds of British fraud.

Riches told the court that in the notice of deregistration the FMA did not mention the article, which he claims is a breach of natural justice.

"Bodies shouldn't make decisions based on newspaper articles," Riches said. Vivier should have had the opportunity to "rubbish" the claims, he said, "because the article contains extremely derogatory statements ... and was clearly in the mind of decision-makers".

The FMA denies it deregistered Vivier as a result of the article although it 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. Its investigation, including a site inspection of the Auckland offices by the Ministry of Business, Innovation and Employment, found little evidence of activity in the office other than some administrative work.

Scholtens said the company was given the chance to persuade the regulator it had operations in NZ but was unable to do so. The "FMA doesn't accept that [Vivier] is providing any financial services listed in New Zealand - there is no evidence of that, apart from an assertion," Scholtens said.