Fran O'Sullivan: Hubbard saga heads toward end game

Allan Hubbard and a slew of his private companies were put into statutory management nearly a year ago. Photo / APN

Nearly one year after the South Island's richest man was put into statutory management, together with a slew of his private companies, it would appear the authorities are preparing for the end game.

Yesterday, Serious Fraud Office chief executive Adam Feeley told the Business Herald he was confident the office would finally be able to conclude its discussions directly with Allan Hubbard and his lawyers on outstanding matters relevant to the long-winded SFO probe of Hubbard's companies.

The SFO's investigation went into a "pause" this year after Hubbard's lawyers said they couldn't continue active representation of their client until their fees were paid.

The High Court at Wellington ruled in March that Hubbard's statutory managers Grant Thornton had to pay up. But it was not until this Monday that a $1 million cheque was finally deposited in Russell McVeagh's bank account.

Said Feeley: "We've effectively been waiting since December to conclude a very small number of matters, and have been acutely aware of the public interest in resolution.

"Now that the issue of payment for legal representation appears to be resolved or near resolution, we are confident that the remaining matters to be discussed with Mr Hubbard and his counsel can be concluded."

This columnist understands the $1 million is roughly equivalent to 40 per cent of the Hubbard-related legal fees (to date) of about $2.5 million.

But close observers of the game might note that the timing of the $1 million payment is opportune given that Crown Law will want Hubbard to have legal representation while a separate review into the statutory management process - from Sir John Anderson and Deloitte's Rod Pardington - is under way. This is particularly so if natural justice is to be observed and the final review report is to have any credibility.

Registrar of Companies Neville Harris commissioned Sir John and Pardington to jointly provide an independent assessment of the progress of the statutory management of Allan and Jean Hubbard, Aorangi Securities, Hubbard Churcher Trust Management and other Hubbard entities.

Allan and Jean Hubbard were put into a fiscal straitjacket on June 20 last year after a report by the Registrar of Companies' office said Hubbard's company Aorangi Securities had been trading recklessly - "and in our view even fraudulently" - in breach of various laws.

These included the Securities Act, the Companies Act, the Financial Reporting Act and "possibly even the Crimes Act".

Hubbard - both before and after statutory management was imposed - has vigorously contested the Registrar of Companies' analysis.

Hubbard's contention is that a range of transactions he had put in motion before the Registrar of Companies' June 18, 2010 report was designed to bolster the financial situation of Aorangi Securities and other Hubbard entities. And that the investigating officials misread his convoluted intentions. He has also taken issue with the subsequent appointment of Grant Thornton as the statutory manager when one of the accountancy firm's members, Graeme McGlinn, had joined a Companies Office team investigating Hubbard's affairs before the imposition of statutory management.

It is inevitable Sir John and Pardington will be traversing tricky minefields as they do their review.

The most interesting aspect is Harris' request to them to also include an identification and assessment of the considerations and risks relevant to terminating the statutory management of Alan Hubbard and Jean Hubbard individually - "at this time or at any future date now identifiable".

The pair have to assess why Allan and Jean Hubbard - and the Hubbard entities - were put into statutory management and any further information and developments that have since come to light.

But the terms of reference appear extraordinarily narrow as the assessment is to be based upon documents and briefings provided by the Registrar of Companies' office (which recommended statutory management in the first place) and statutory managers Grant Thornton.

A draft report is due on Harris' desk by the end of June. Harris has told Sir John and Pardington that a draft assessment may also be given to the Hubbards and Grant Thornton. The report is also likely to be considered by Commerce Minister Simon Power.

But it is to be submitted as a report in a form "suitable for public release if that is later considered necessary".

Inquiries suggest that at this stage of the game, Crown Law doesn't want Hubbard's lawyers to deal directly with Sir John and Pardington. Russell McVeagh is expected to funnel its communications through Crown Law.

But Crown Law is hardly an independent player, given that it is also first defendant in another set of legal proceedings Hubbard has taken to try to overturn the statutory management of himself and wife Jean.

It's unlikely, given these circumstances, that Russell McVeagh (or Hubbard) will withdraw the judicial review application. In fact, a directions hearing is set down in Timaru tomorrow.

So the chess game has a round or two to go yet before all sides tip the board up and agree on a negotiated outcome.

These rich differences of fact and opinion will inevitably be touched upon when and if the High Court at Timaru finally hears Hubbard's application for a judicial review of the statutory management.

The judicial review is to be argued on the following grounds:

The relevant legislation cannot be applied to human beings as opposed to corporate entities of trusts.

The process followed by the Crown in imposing statutory management was flawed.

The judicial review application looks set to be a very intriguing case if it does proceed to a full hearing.

Crown Law is the first defendant. But Simon Power, the Securities Commission and Registrar of Companies Neville Harris are also listed as defendants.

What is also very interesting indeed is that Harris did not publicly confirm the Anderson/Pardington review until 10 days after Hubbard's judicial review application was filed. And Crown Law did not inform Hubbard's lawyers about the review until late afternoon last Friday.

Crown Law's Matthew Palmer has confirmed the registrar (Harris) and minister (Power) had actually decided on this path on April 11, a couple of days before Russell McVeagh wrote suggesting it was time to forge a way forward.

There is a strong political interest in how Sir John and Pardington identify and assess the considerations and risks relevant to terminating the statutory management of Alan Hubbard and Jean Hubbard individually - "at this time or at any future date now identifiable".

This is the crux point.

Inevitably, Power and Harris will not want to see either the Government or its institutions take a PR bath over the decision to put the Hubbard pair into statutory management - or a "financial coma" as one of Hubbard's advisers contends.

Allan Hubbard argues he has always had sufficient personal assets to stand by Aorangi Securities and other Hubbard-related entities.

But it would also seem that Hubbard's unorthodox management methods and apparent disregard for financial reporting orthodoxies leave him open to severe censure.

Late last year Hubbard was told by the SFO it had concerns over four particular issues. But proving criminal intent - given his contention he has always stood behind his companies - will be difficult.

Under all the circumstances a negotiated outcome seems most likely and least embarrassing all round. But it would be much more interesting if it were played out in court.