Halifax investors fight for individual positions

Judges overseeing the distribution of funds from collapsed online brokerage Halifax have indicated they want liquidators to do more to consider the position of investors unsatisfied with their current proposals.

The Australian-headquartered company was moved into liquidation in March 2019, and there is about a $20 million shortfall, representing about 9 percent of the funds invested.

Liquidators estimate almost 12,000 individual investors were affected, with more than 2,000 of those being in New Zealand.

The proceeding is a first in that it has required joint sittings of the High Court at Auckland and the New South Wales division of the Federal Court of Australia.

Today, three different parties came before the High Court at Auckland seeking to be joined to the case to protect their individual positions. The proceeding also took place in Sydney through an audio-visual link.

Lawyer Emma Smith is representing Andrew and Marlene Whitehead and an associated trust.

She told Justice Geoffrey Venning and Australian Justice Jacqueline Gleeson that the liquidators' lawyer had understated her clients' position.

Smith said Whitehead was told he was treated as a wholesale client by the brokerage and that he believed that his investment was traceable. Therefore he should have that opportunity to trace his funds, unlike other investors.

KPMG liquidators Morgan Kelly and Philip Quinlan have said that the comingling of funds across New Zealand and Australia meant they can't figure out which of the money held on trust should go to which investors. Instead, they have created four separate classes of investor which they will use to dish out the funds, and there will be a shortfall.

Anderson Lloyd partner Simon Munro told the court his client Chen Wang was in a similar position to some creditors in Australia who were pushing for a fifth class of creditor to be recognised. This class would be for investors who deposited funds with Halifax Australia prior to 1 July 2016, or had transferred their investment to another broker prior to that date.

While his client's position was similar to that of Australian investor clients represented by Maddox's Danielle Funston, "it would be ideal for both to be joined due to traceability issues," Munro said.

The July 2016 date is a bone of contention between the parties. While the liquidators have indicated in their reports the deficiency in funds might have occurred before then, the cut off date has alarmed investors worried their positions might be affected.

A third party, Professor John Knight, who also used the investment platform, said he was not legally represented but filed his own application "as insurance."

Justice Gleeson indicated during the hearing her provisional view was to make an order requiring liquidators to take reasonable steps to consider the position of this group of investors and that that might include issuing subpoenas and examining documents.

Justice Venning said he was sympathetic to the other creditors' applications, and identified the issue was with the date the liquidators had suggested.

"It may be that it comes to nothing, but we will have to set a date at some point, and the best evidence is so far July 2016. It could go nowhere but I am reluctant to shut the door."

He also requested that the liquidators' lawyers keep the investors up to date with their filings.

Another hearing on the liquidation is expected in April.

Justice Gleeson paved the way for the landmark joint sitting of the Australian and New Zealand courts last year, citing efficiencies in having two courts act at once.

However, the use of audio-visual conferencing drew laughter and smirks from the parties at various points during the hearing; at times lawyers had to be told to speak up and at one point the feed cut out.

There was also an awkward moment at the hearing's commencement where the court registrars politely discussed and changed their advice over which judge was to be announced and enter their courtroom first.

The proceeding was also interrupted momentarily by a fire alarm at the Sydney court.

Liquidators said in their earlier reports that it may take at least a year from the start of court proceedings for investors to get their money back.