Liquidator takes action against failed firm's auditor - experts say it could be first of many against third parties

Legal action against the auditor acting for a collapsed finance company could set a precedent for holding third parties accountable, according to experts.

The move could claw back some of the $3.1 billion lost from the collapse of 66 finance companies in the past six years, much of which was lost by mum and dad investors.

The Official Assignee acting as liquidator of Capital + Merchant Finance, which collapsed leaving 7500 investors $167 million out of pocket, has filed a claim at the Auckland High Court against auditor BDO Spicers for negligence and failure in its role of auditing the company's financial statements.

It is seeking unspecified damages plus interest and costs. BDO is defending the allegations.


The Ministry of Business, Innovation and Employment said it was believed to be the first time a liquidator had taken action against an auditor during the financial collapse.

And industry experts say this could be among the first of many claims by liquidators, or even individual investors, against contributing parties such as the auditor, director or corporate trustees.

Vivian Fatupaito, principal of accounting firm WHK, said it was an unusual move but had always been an option for liquidators or receivers who felt they had a strong enough claim and had financial backing. Regulatory authorities often took action against issues such as a breach of prospectus, as it had with BDO Spicers, but they did not provide a monetary return.

"Even though there may be a case, who's going to fund it to get to that point? And if they did fund it and they're successful, obviously the pay back to the individual investors could be significant," Ms Fatupaito said.

Murray Tingey, insolvency practice leader at Bell Gully, said often third parties were the only chance of investors reclaiming money. "There would be some hope but it's unlikely to be anything like the whole payment I would imagine," he said.

A spokesman for the Financial Markets Authority said it was considering its options in relation to taking actions against auditors and was open to approaches from parties such as security-holders who may be seeking to take their own claims "to discuss possible mutual interests".

Lobby group Exposing Unacceptable Financial Activities spokesman Gray Eatwell was pleased auditors were finally being held accountable after years of lobbying the Government. "Trustees and auditors had been just let off scott-free and we claimed from the beginning, they should have been brought into the loop immediately."

BDO Spicers managing partner Craig Lamberton said last night that the firm did not accept the claims and had no further comment while the matter was before the courts.

The case:
The Official Assignee, acting as liquidator on behalf of Capital + Merchant Finance, has lodged a claim against BDO Spicers for alleged negligence and failings as auditor.

The OA claims:
* The auditor breached contract by failing to conduct work professionally.
* BDO Spicers did not give an accurate view of the company's financial position.
* Failed to look into the loans, see where money was going, if they were properly secured and legitimate.