07 May 2014

Lombard Finance: Graham et al v. R

Home detention imposed by the Court of Appeal on former directors of Lombard Finance has been set aside by the Supreme Court.  Sentences of community service imposed by the High Court now stand.
Former politicians Sir Douglas Graham and Mr William Jeffries together with Mr Michael Reeves and Mr Lawrence Bryant stood trial for breaches of the Securities Act following the 2008 collapse of Lombard Finance.  Lombard was left insolvent with debts of some $125 million.  Debenture holders are unlikely to receive back more than fifteen to twenty cents in the dollar.
Lombard financed property developers.  Limited diversification in its loan book contributed to Lombard’s demise.  Six major loans to five developers represented 68% of its loan book.  Lombard was borrowing short-term from the public to finance these longer-term loans and was required to regularly update its prospectus, setting out the company’s position.
The High Court said prospectus statements as to future liquidity were misleading.  The Court of Appeal ruled that the misstatements were of sufficient gravity to justify imprisonment, to be served as home detention in this instance.
Supreme Court judges considered the Court of Appeal had taken an unnecessarily harsh view of the directors’ culpability.  The Supreme Court said evidence at trial in the High Court painted a picture of directors acting honestly.  The directors had not acted dishonestly, despite media reporting implying the contrary.  The directors were guilty of misjudgement at a time when Lombard was under financial pressure.  They had taken professional advice on wording in the prospectus.  Warnings about the potential fragility of future liquidity had been highlighted in bold type in the prospectus.
The Supreme Court said that disproportionately severe punishment would deter competent people from taking on company directorships.
The Lombard directors stand convicted of Securities Act offences with Mr Jeffries and Mr Reeves each sentenced to 400 hours community work and Sir Douglas Graham and Mr Bryant each sentenced to 300 hours community work and ordered to pay reparations of $100,000.
Graham, Reeves, Jeffries & Bryant v. R. – Supreme Court (7.05.14)
14.019