D&O insurance: BFSL 2007 Ltd v. Steigrad & Houghton v. AIG

Company directors everywhere are urgently renegotiating terms of their liability insurance following Supreme Court rulings in the Bridgecorp and Feltex cases which froze insurance cover for directors’ legal defence costs. 

The court said Bridgecorp and Feltex directors had struck a poor bargain; insurance policy wording had the effect of giving any potential payout to investors priority over defence costs incurred in challenging those claims.

It is common for directors of substantial businesses to take insurance cover for any personal liability they may incur acting as director.  Insurance companies offer policies on standard terms: commonly called directors’ and officers’ (D&O) insurance.  This standard wording was under scrutiny after the collapses of both Bridgecorp and Feltex.

Receivers of failed finance company Bridgecorp are suing its directors for in excess of $340 million.  The directors have insurance cover totalling $20 million with QBE Insurance.

Investors in the $250 million 2004 Feltex float are suing those who were directors in May 2004 for some $180 million.   These directors have insurance cover with AIG Insurance to a total of $50 million.

Both QBE and AIG were advised of the claims and notice was given of a charge against the D&O policies.  The Law Reform Act 1936 allows a claim directly against an insurance policy where the person being sued is insured.  If a claim is successful, the insurance payout goes directly to the person injured.

The Bridgecorp and Feltex D&O policies covered directors both for legal claims against them and for their legal costs in defending these claims.  The Bridgecorp and Feltex directors said they were entitled to recover their actual defence costs under their policy before any payments to a successful litigant.  The court disagreed.  Where a D&O policy gave combined cover for legal claims and defence costs, payment for legal claims took priority.  Directors could not deplete the insurance money available by dipping into the fund first to pay their legal defence costs.  

The court ruling means Bridgecorp and Feltex directors have to finance their defence costs from their own resources and can recover under their D&O policies only after any successful claim has first been paid.  In both cases, each insurer is only liable to pay up to the agreed limit of the insurance.

BFSL 2007 Ltd v. Steigrad & Houghton v. AIG – Supreme Court (23.12.13)

14.003

Sth Canterbury Finance: Simpson v. Jenks

The chaotic state of Alan Hubbard’s investment empire was laid bare when a US investor sued to prove her entitlement to $5.5 million.  Hubbard’s accounting records were called unorthodox and chaotic and he was described as taking a paternalistic attitude towards his clients without consulting them.

Timaru-based accountant Alan Hubbard had strong local support with his philanthropic activities, but enthusiasm has waned following publicity about the loose way in which he ran his businesses.  Government-appointed receivers took control of his business empire in 2010.  Mr Hubbard died subsequently in a road accident.

Hubbard’s business activities had two arms: Aorangi Securities Ltd (ASL) which invested primarily in first mortgage securities and Southbury Group Ltd (SGL) which made riskier equity investments in what were perceived to be growth companies.

Receivers’ investigations indicate both ASL and SGL were insolvent by early 2009.  They are in the process of realising all assets.  Indications are that ASL investors will get back most of their investment; SGL investors very little.

US investor, Susan Jenks was told that her $5.5 million was with SGL.  This was a surprise.  All the paperwork she held referred to her status as an ASL investor.  High Court action followed to clarify where she stood.

The court was told that Mrs Jenks and her husband (who has since died) met Mr Hubbard in 1987 through a mutual connection.  On Hubbard’s advice they purchased a Methven farm and made subsequent investments in Christchurch real estate.  These investments were rationalised as Mr Jenk’s health deteriorated.  The properties were sold and funds left with Mr Hubbard for investment.   In October 2009, Hubbard wrote to the Jenks advising their funds had been placed with ASL.  Subsequent letters to Mrs Jenks stating the ongoing value of her investment made no reference to the funds having been moved from ASL.

When receivers took control of Hubbard’s business records they found a handwritten journal entry transferring across to SGL Mrs Jenk’s $5.59 million investment in ASL.  Justice Dobson said it was extraordinary for a business with $160 million in assets to record the transfer of such an investment with a barely legible handwritten journal entry.  The receivers treated this accounting record as proof that Mrs Jenks was a SGL creditor. They refused to accept attempts by Mr Hubbard to reverse the journal entry several months after their appointment.  Mr Hubbard claimed the investment had been reversed earlier but he had not completed the paperwork at the time.

Justice Dobson ruled that Mrs Jenks is an ASL investor.  As investment adviser to the Jenks and as their agent, Mr Hubbard had no authority to move their funds without their informed consent.  Mr Hubbard’s close association with ASL meant the company was liable for his wrongdoing and ASL had to accept that Mrs Jenks was still a creditor.

The court was told that including Mrs Jenks as a creditor of ASL would reduce the payout otherwise available to ASL creditors by about five to six per cent.

Simpson v. Jenks – High Court (20.12.13)

14.007

Debt: P v. Bridgecorp

Bridgecorp receivers were playing within the rules said the Supreme Court when they obtained judgement for over $65,000 against a lawyer without a court hearing.  The lawyer had previously signed an admission of liability and given the receivers permission to file it in court should agreed debt rescheduling not be honoured.

Lenders benefit from any shortcuts which reduce time and expense in court procedures. Chief Justice Elias expressed concern that this shortcut will be misused in the future, to the prejudice of “the poor and ignorant”.  Consumers can be signing away their rights to notice, a hearing and a defence without any appreciation of what they are doing.  

The Supreme Court was told the $65,000 court judgement followed attempts by a lawyer to bail out a cousin who owed money to Bridgecorp.  The lawyer’s name was supressed.  He came to the rescue after Bridgecorp threatened to bankrupt his cousin over an unpaid $91,000 debt.  New terms for payment of a lesser sum were settled.  The lawyer agreed to accept liability for the cousin’s debt by paying a discounted amount of $50,000 and offering as security a mortgage over his family home which he part-owned with another.  But in giving the mortgage he forged documents to give security over the co-owners’ share as well.  The fraud became apparent when Bridgecorp, still unpaid, tried to sell the home in a mortgagee sale.  Facing these complications, Bridgecorp’s receivers negotiated another round of rescheduling: the debt was to be repaid by instalments, with the lawyer signing an admission of liability which would be used in court proceedings if payments were not made.  The lawyer was given a copy of a draft statement of claim which would be filed in court if he did not make the rescheduled payments and he gave the receivers written authority to file the claim should he default.

The Supreme Court ruled that judgment could be granted on the basis of the lawyer’s admission signed at a time before any court proceedings were filed.  The precise sum claimed did not have to be spelt out, provided there was a formula in the admission enabling the amount due to be calculated.

P. v. Bridgecorp – Supreme Court (19.12.13)

14.005

Insurance: Crystal Imports v. Lloyds of London

Insurers have been held to the strict wording of the policy in a claim by a substantial commercial property owner in Christchurch who owns five commercial properties insured for a total of $20.6 million.

New Brighton Mall and buildings in central Christchurch owned by Crystal Imports Ltd were badly damaged by a succession of severe earthquakes in 2010 and 2011.  Three buildings have since been demolished and there is a dispute as to whether or not New Brighton Mall should be treated as a total loss.  Partial repairs had been undertaken on some buildings before they were written off after the second major earthquake.

High Court rulings were needed to settle preliminary questions about the extent of the insurers’ liability.

First, the insurers argued the cost of preliminary repairs merged into the payout for a total loss for those buildings eventually written off.  This would leave Crystal Imports having to bear the cost of the wasted preliminary repairs.

Justice Cooper ruled that the merger rule did apply to property insurance, unless the insurance policy provided otherwise.  In this case, the insurance policy contained a reinstatement clause.  The amount of insurance, it said, “will be automatically reinstated from the date of the [first] loss”.  This had the effect of creating fresh insurance cover for the full amount from the date of the first earthquake.  Crystal Imports was entitled to recover both the cost of preliminary repairs after the first earthquake and the full insured value of the property after the second quake.

Secondly, the High Court was asked to determine how an “average clause” was to apply in respect of damage to the New Brighton Mall.  Average clauses are common in insurance: if property is insured for less than its full value, the insurer pays only a proportion of the loss.  If a property is insured for 50% of its value, the insurance company need pay only 50% of any loss.

With New Brighton Mall, there was an argument over the extent of any underinsurance.  Crystal Imports insured the Mall for $3.07 million.  Full replacement cost of the Mall at the date of the February 2011 earthquake was estimated at $9.5 million.  The insurers argued this was an underinsurance of some six million dollars and Crystal Imports would have to carry 68% of the loss.  Justice Cooper ruled that the correct “value” of the Mall at the date of the earthquake was its depreciated replacement cost: $4.5 million.  This left Crystal Imports having to carry 33% of the loss.

Crystal Imports Ltd v. Lloyds of London – High Court (19.12.13)

14.006

Securities: re Perpetual Trust

Perpetual Trust pre-empted an investor mutiny by having the High Court unilaterally remove it as trustee of a host of failed finance companies.  Corporate Trust Ltd was appointed in its place, but Perpetual remains liable for any proved wrongdoing whilst it was trustee.

When the finance company sector in New Zealand all but collapsed in 2008-2010, thousands of investors were left out of pocket.   They are looking to those corporates acting as trustees for investors as one solvent avenue for compensation.

Perpetual Trust was the named trustee for a long list of failed finance companies, now in receivership, liquidation, or both: Lombard, Irongate, Strategic, LDC, Nathans, Dominion, Boston, St Laurence, Five Star Hotel and Finance & Leasing.

The number of investors in each finance company range from 230 to 13,000.  Each finance company has differing rules for investor meetings to have an existing trustee retire and be replaced.  Perpetual Trust is facing multiple legal actions following allegations that it failed to properly carry out its duties as trustee.  The extent of any liability has yet to be decided.

Perpetual Trust asked the High Court to remove it as trustee of each of the listed failed companies.  Perpetual Trust said it would be an expensive and probably futile task to call investor meetings for each finance company to get their approval to retirement.  Disgruntled investors are gunning for Perpetual Trust and were expected to disrupt any meetings and block any retirement procedures.

The High Court agreed to remove Perpetual Trust unilaterally, saying that investors would not be prejudiced.   Notice of the court application had been widely advertised.  No investors had objected.  Receivers and liquidators of the various failed finance companies had consented to the move.  Retirement does not absolve Perpetual Trust from any liability for proved wrongdoing.  The court received confidential evidence as to Perpetual’s insurance cover which would be available if it were found liable.

The court appointed Corporate Trust Ltd in place of Perpetual Trust for the failed finance companies.  Corporate Trust had been acting as de facto trustee while Perpetual was trying to extricate itself from the position.

Perpetual Trust told the court it had sold its corporate trustee business and in future would offer only personal trustee services.

re Perpetual Trust Ltd – High Court (19.12.13)

14.002

Debt compromise: Bank of Tokyo v. Solid Energy

One creditor’s unsuccessful High Court challenge to Solid Energy’s capital restructuring has exposed how government held a pistol to the banks’ heads.  Banks were strong-armed into the restructuring rather than run the risk of getting as little as twenty cents in the dollar on their debts.

By late 2012 Solid Energy was in deep financial difficulty.  Over the previous 24 months, the benchmark hard coking coal price had dropped by over fifty per cent in US dollar terms.  Increasing prices depended on demand for Chinese steel and there was little prospect of improvement on the horizon.  Solid Energy’s losses were compounded by unfavourable movements in the USD/NZD cross-rate.

The court heard that Solid Energy risked default in early 2013.  Directors would not sign off on the company’s solvency; an approval needed as part of a $120 million debt rollover.

All the major trading banks in New Zealand were by now exposed to Solid Energy: $300 million had been borrowed unsecured from ANZ, BNZ, CBA, Westpac and Bank of Tokyo. TSB held a portfolio of $67.5 million medium term notes.  Several banks had issued performance bonds guaranteeing that Solid Energy would make good remediation work at mine sites.  These totalled $58 million in value.  On top of this was over $270 million owed to other creditors.

With warning of possible default, the major banks jointly held a series of meetings with Treasury who was negotiating on behalf of government as owner of Solid Energy.  A standstill agreement was negotiated: the banks would not enforce their loan contracts while discussions continued.  A report by corporate restructuring specialist KordaMentha indicated that a further $100 million equity would be needed to save Solid Energy.

The court was told that the major banks were expecting government to inject more cash into the company.  Government refused.  The banks were told government had “no economic interest” in Solid Energy: the company was broke and was now effectively owned by its creditors.  If the creditors did not want to save it, then government would put the company into liquidation.  KordaMentha estimated banks would get back 19-28 cents in the dollar on liquidation.

By September 2013, directors of Solid Energy had a loaded pistol pointed at the banks.  The directors were required to report to parliament with audited accounts for the year ended 30 June 2013.  Without agreement by the end of September from the banks for restructuring, then the audit report would be qualified – Solid Energy would not report as a going concern.  This would trigger substantial debt write-offs for all the banks with consequences for their own reported profits.

Faced with this ultimatum, the major banks in conjunction with Solid Energy implemented a  Part 14 scheme of arrangement. The banks swapped $75 million of their Solid Energy debt for redeemable preference shares in the company and extended out to late 2016 all maturity dates for the remainder of their debt.  The shares carry a five per cent dividend, compounding quarterly, and are redeemable at the discretion of the Solid Energy board.

Government did offer some support.  Provided creditors voted in favour of the scheme, it committed to putting up $25 million in cash for further redeemable preference shares and to contribute $130 million by way of working capital to assist with liquidity.

Use of the Part 14 procedure in the Companies Act meant affected creditors who did not like the proposed scheme could be forced into the deal provided a majority had voted in favour.

All the major banks voted in favour, except Bank of Tokyo.  It was agreeable to any proposal for reducing interest payable and extending maturities, but was opposed to the debt for equity swap saying this would be in breach of its own policies and Japanese law.  

Bank of Tokyo challenged use of the Part 14 procedure saying that the bank had been unfairly prejudiced and that the Part 14 procedure had not been properly followed.  The High Court ruled against the Bank on all counts.  This forced Bank of Tokyo into the Part 14 scheme requiring it to exchange $16 million in debt for redeemable preference shares of the same face value. Along with BNZ, Bank of Tokyo was forced to take the biggest proportion of redeemable preference shares in the debt for equity swap; the other banks were exposed for a lesser amount.

Bank of Tokyo v. Solid Energy – High Court (18.12.13)

14.004

Tax: Sovereign Assurance v. Inland Revenue

Taxable income was increased by over $63 million after the Court of Appeal ruled against attempts by Sovereign Assurance to exploit timing differences on payments attached to reinsurance contracts.  Late payment penalties have increased Sovereign’s tax bill to nearly $90 million because the tax dispute has dragged on for so long.

ASB Bank purchased Sovereign Assurance in 1998.  With the purchase it inherited reinsurance contracts already in place with German reinsurer:  Gerling-Konzern Globale.  ASB Bank wound down operation of these contracts between 2001 and 2004.

Evidence was given that the Gerling reinsurance contracts included a financing component.  As well as underwriting Sovereign’s risk on life contracts, Gerling provided working capital to fund the first few years of life policies.  Life insurers incur heavy establishment expenses when setting up a new policy: administrative fees, medical expenses and agent’s commission incur immediate costs which typically amount to a multiple of two to three times the first year premium.

Gerling agreed to advance funds to cover Sovereign’s life policy establishment costs with an agreed mechanism for repayment of this advance plus interest. 

Sovereign included as taxable income in the year of receipt the Gerling advances and later claimed the repayment as a tax deduction in the year paid.  The timing differences between a smaller sum claimed as income and a larger sum claimed later as a deduction provided a substantial tax benefit: in 2001 this amounted to $23.6 million; in 2002, $39.9 million.

Sovereign argued that the contract sat outside the tax rules for “financial arrangements” because it was not a financing transaction but rather a sale of property – the property sold being the cash flows arising from premiums paid on individual life policies.

The Court of Appeal said the wording of the contract did not support this argument.  While the Gerling contract was in German and used specialist terminology found in reinsurance contracts, with talk of “cession” and “acceptance”, these words described risk exposure, not the sale of an asset.

For tax, the financing component of the reinsurance contract was treated as a loan.  As a “financial arrangement”, Sovereign could claim a tax deduction only for the interest component.  The working capital advanced was not assessable income, and repayment of that capital was not deductible.

Sovereign Assurance v. Inland Revenue – Court of Appeal (17.12.13)

14.001

Insurance: Rout v. Southern Response

A Christchurch couple increased their earthquake insurance payout by over $100,000 after a dogged battle against Southern Response Earthquake.  The High Court had some stern words to say about dilatory and deceptive behaviour exhibited by Southern Response.

The Rout family own a substantial property in Brooklands, Christchurch.  It was “red zoned” after suffering damage in the 2010 and 2011 earthquakes.  Rather than take up the government offer of being bought out at a 2007 rating valuation of $656,000 for the entire property they elected to sell the land alone to the government at its rating value of $396,000 and to recover separately from their insurers the value of their 241 square metre architecturally designed home.  Under this election, they received in total over one million dollars.

Their home was insured for replacement value with AMI Insurance.  All of AMI’s Christchurch earthquake liabilities have been taken over by government-controlled Southern Response.

Since the land had been sold to the government, the central issue became what they were entitled under the policy for a notional repair of their Brooklands home.

Evidence was given that the land had settled by up to 207mm after the earthquakes and the building’s unreinforced concrete slab had cracked and twisted by some 60mm.  This had caused cracking and movement in wall linings.  Some walls were out of vertical.

The Rout’s were told that their home was not economically repairable; payment would be made on costings for a notional rebuild.  The court was told insurers preferred to rebuild whenever expected repair costs came to 80% of rebuild costs.  Any potential financial benefit from a repair being cheaper is quickly lost in unanticipated cost overruns.

Various assessments made for the internal benefit of Southern Response over a period of months quantified the cost of a rebuild at figures ranging between $358,000 and $591,000.

Through late 2012 and early 2013 there were what the court described as increasingly hostile email interchanges as the two sides failed to reach any agreement on a settlement figure for a notional rebuild.  Southern Response refused to separately disclose a breakdown of items in their offered settlement.  The Routs wanted to compare Southern Response costings with their own costings.  Southern Response said this detail was commercially sensitive, but was included in its global figures.  The Routs accused Southern Response of being deceptive and its behaviour unacceptable.

In February 2013, Southern Response sent a letter to the Routs confirming its final revised offer of $453,187.  This letter set out the possible consequences of not accepting.  The thrust of the letter was to warn the Routs that if they did not accept this offer all offers were off the table and a new assessment would be carried out with the risk that any resulting offer might be even lower.  The Routs sued.  They had been seeking a settlement figure of $548,276 – a difference of $95,000 from Southern Response.

Aiming high when taking legal action, the Routs claimed total rebuild costs would in fact be $1.29 million.  This was based on the assumption that a rebuild on the Brookfield site would require land levels to be raised and extra underpinning driven for new foundations.

Justice Gendall ruled that terms of the AMI policy entitled the Routs to the cost of rebuilding an equivalent home on an alternative site, not the cost of building on the weakened and flood-vulnerable red-zoned site.  Even if Southern Response were to pay on the basis of a notional rebuild on the red-zoned site, he said, a cash settlement based on the cheaper option of using grout to force the house back to level would not be adequate.

Justice Gendall ruled the Routs were entitled to a Southern Response payout of $559,480: being $673,330 for the proved cost of rebuilding the existing house on another site, less $133,850 paid earlier by the Earthquake Commission.  The Southern Response payout can be used only to build or buy a replacement home which is of comparable size and condition to their former home as when new, and offering the same amenities.

In total the Routs benefit to the tune of $1.06 million (less their negotiating and litigation costs): $396,000 for the sale of their land to the government; $559,480 from Southern Response and $113,850 from the Earthquake Commission .

The Routs separate claim against Southern Response for general damages of $50,000 was dismissed.

This was claimed as compensation for alleged failures by Southern Response to deal with their claim properly.  Justice Gendall said there were grounds to criticise Southern Responses’ actions as regards the time taken to process the claim, the constant changes of position regarding rebuilds as against repairs, the failure to properly assess the Brooklands site before making offers and deceptive behaviour in its negotiations.  But any award of damages was negated, he said, by the Routs’ decision to inflate their claim in court to $1.2 million dollars and then fail to justify this amount.

Rout v. Southern Response – High Court (6.12.13)

13.035

Insurance: CERA v. Fowler & Quake Outcasts

The 46 self-styled Quake Outcasts received little comfort from the Court of Appeal as owners of uninsured property in the Christchurch “red zone” following their challenge to offers of a government buyout of their land alone at fifty per cent below rating valuation.  The court did not rule that this offer breached their human rights or order that the offer be increased.  The Court of Appeal simply ruled that government should review the process of making “red zone” offers to uninsured owners and follow the proper statutory procedure.

Government response to unprecedented earthquake damage in Christchurch’s eastern suburbs following the 2010 and 2011 earthquakes created novel legal issues about the correct procedure to authorise payment of taxpayers’ money in respect of damage to local authority infrastructure and privately-owned property.

A June 2011 Cabinet meeting resolved to “red zone” those suburbs where rebuilding in the short to medium term was not practicable because of severe infrastructure damage.  The Court of Appeal ruled this decision could not be challenged: in general any government has a residual power to do unilaterally anything which is not otherwise prohibited by law.

It said that while a “red zone” designation has significant practical impact on affected landowners, this alone does not discriminate against their rights or liberties.

Evidence was given that Cabinet decided in June 2011 to offer insured residential property owners in the red zone a government buyout at full 2007 rating valuation.  Those taking up the offer were obliged to sign their insurance rights over to government.  It was estimated that this buyout would cost up to $1.7 billion, with a net cost of between $485 million and $635 million after insurance recoveries.  Any decision of compensation for uninsured property owners was deferred.

It was not until fifteen months later, in September 2012, that Cabinet reached a decision regarding uninsured properties, resolving they be offered fifty per cent of rateable land value only with the right to salvage what they wanted from the building.  Evidence was given of Cabinet’s reasons against a 100 per cent offer:  full compensation would be unfair on those red zone property owners who had been paying insurance premiums and created a moral hazard in that there would be a reduced incentive for people in future to insure privately if they considered there would be a government bailout following any natural disaster.

The Canterbury Earthquake Response and Recovery Act was passed in April 2011 providing a legal mechanism for pushing through the Christchurch rebuild.  CERA has wide powers to cut through existing red tape in implementing a recovery plan.  These shortcuts are valid, so long as the procedure in the Act is correctly followed.  In particular, the focus must be on implementing the recovery and rebuild.

The Court of Appeal ruled that CERA’s 100 per cent offer based on the June 2011 Cabinet decision was valid: it was described as being in furtherance of the recovery.  But CERA’s fifty per cent offer on land value alone to uninsured property owners was not: it was based on the September 2012 Cabinet decision which focussed instead on issues of equity and moral hazard as between those insured and those uninsured.

The Court ruled the fifty per cent offer to be unlawful; not for the amount of the offer but for the manner in which it was made.  There was evidence at an earlier court hearing that market values for land in the red zone would fall by far more than fifty per cent.

The Court of Appeal also ruled against Quake Outcasts’ claim of discrimination.   The Court said government had a rational basis for discriminating between insured and uninsured residential property owners.  With the 100 per cent offers, government has a right of recovery against their insurers.  There was no equivalent recovery when buying out uninsured property.

CERA v. Fowler & Quake Outcasts – Court of Appeal (3.12.13)

13.034