Ponzi investor loses 'fictitious profit' fight

David Ross.

Liquidators of David Ross' Ponzi scheme have got the green light from the Court of Appeal to try to recover $40.9 million of "fictitious profits" from 241 investors in the fraudulent business.

The outcome of a test case from the appellate court today saw Wellington lawyer Hamish McIntosh lose a fight over whether he needs to pay back $454,000 of "fictitious profits" he received from the scheme.

Ross Asset Management's liquidators, however, also lost a cross-appeal today, meaning McIntosh can keep the $500,000 of capital he originally put into RAM but got out before it collapsed.

Providing neither side tries to take the case to the Supreme Court, co-liquidator John Fisk says he will continue to write to investors who received fictitious profits to try to recover the funds.

He estimated that 241 investors had received about $40.9 million of fictitious profits from RAM.

"What we've got is a pretty robust and clear decision from the Court of Appeal and as a result it's going to be much easier to apply that framework to the other claims," Fisk told the Herald.

Fisk said the liquidators had already settled claims with seven investors, which had netted $1.1 million.

If the liquidators were able to claim back both the capital and profits from investors, Fisk said they would be targetting 382 investors who got $78.4 million.

Described last year by a judge as an "innocent investor", McIntosh borrowed $500,000 from Westpac to put into the fraudster's business in 2007.

His investment had purportedly grown to $954,000 when he closed his portfolio four and a half years later and the liquidators of RAM's since-collapsed business went to the High Court at Wellington last March to recover the funds.

While the High Court ruled McIntosh had a defence to the liquidators' claim for the $500,000 original investment, the Wellingtonian was last year ordered to pay back the $454,000 of "fictitious profits".

McIntosh appealed those orders, while the liquidators, Fisk and David Bridgman from PwC, challenged the point over the $500,000.

In a majority judgment released this afternoon, Justices Christine French and Rhys Harrison dismissed both appeals.

Justice Forrest Miller, in a dissenting judgment, dismissed McIntosh's appeal but said he would have allowed the liquidators' appeal - effectively meaning the Wellington lawyer would have needed to pay back the full $954,000.

Ross Asset Management collapsed in November 2012 leaving some of his 1200 clients $115 million out-of-pocket.

It was later revealed that director David Ross was running a Ponzi scheme.

He was convicted of fraud and jailed for 10 years and 10 months.

McIntosh could not be reached for comment this afternoon.