Poor financial advice is not excused simply by having clients complete a risk profile questionnaire. Financial advisers are still obliged to recommend investments suitable for the client’s risk profile. Financial adviser, Carey Robyn Church, was ordered to pay nearly $60,000 damages to a retired public servant and his family trust for losses arising from negligent financial advice.
The High Court was told that Mr Neil Armitage retired from government employment as a veterinarian with a portfolio of investment properties. In December 2005, he approached Mrs Church for advice regarding the investment of some $350,000 to $370,000 expected after selling one of the properties.
Completion of a risk profile questionnaire saw Mr Armitage ranked as a “conservative” investor. He invested the funds in fixed interest securities on the advice of Mrs Church: a mortgage trust, ING and four finance companies (Bridgecorp, MFS Pacific, Strategic Finance, and North South Finance). All four of these finance companies later became insolvent.
In 2006, he again approached Mrs Church for advice in anticipation of realising some $640,000 on the sale of his remaining investment property. Further risk profile questionnaires were completed by both Mr Armitage personally (now ranking as a “balanced/growth” investor) and on behalf of his family trust (“balanced/moderately aggressive”).
Following her advice, further investments were made in ING products.
Justice Dobson ruled that a financial adviser’s duty to a retail customer included a requirement to ensure both that investments were relevant to a client’s appetite for risk and that cash flow requirements met the client’s need for income.
Justice Dobson ruled that where clients are recommended inappropriately risky investments as part of the fixed interest component in their portfolio, they are entitled to recover losses arising at the time the investment was intended to be realised.
Experts criticised Mrs Church advice for its narrow range of investments, having the effect of exacerbating risk. Her advice saw Mr Armitage holding 67% of his investment funds in three companies and his family trust having 24% exposed to four finance companies, 27% on fixed interest with ING and nearly 47% in other ING funds. No investments were recommended in quality corporate bonds or bonds issued by government or local bodies.
Just over $200,000 in capital losses were suffered because of this negligent advice. The damages awarded were reduced by 25% because Mr Armitage was held partly negligent himself, having pressed for higher paying fixed interest investments than his risk profile warranted. This revised figure for damages payable was reduced again, by 40%, because of evidence that Mr Armitage may not have followed more prudent advice even if given. The court was told Mr Armitage continued later to place funds with finance companies despite his initial losses with a Bridgecorp investment.
Justice Dobson ruled that Mrs Church was not negligent in respect of advice about future cash flows. She was not responsible for cash flow deficiencies suffered. There was evidence that Mr Armitage himself drew up cashflow “budgets” but did not fully recognise the periodic manner in which payments would be received or that withholding tax would be deducted before receipt. Mr Armitage had chosen to retain bank borrowings after the sale of investment properties for reinvestment in fixed interest securities. This cost contributed to his cash flow difficulties. Mrs Church had questioned the wisdom of not paying off bank borrowings.
Armitage v. Church – High Court (27.05 11)
05.11.004