09 October 2015

Fraud: Torbay Holdings v. Napier

Duncan Napier, former manager of a Torbay rest home in Auckland, was ordered to repay $1.4 million improperly taken from the business.  His wife Sara was held jointly liable for $720,000.  The missappropriated funds were used primarily to develop a Wellsford lifestyle block.
The High Court was told Mr Napier was in charge of the rest home for eleven years, ending in 2012.  The business, catering for 52 residents, was purchased by a group of investors in 2001 with Mr Napier’s family trust taking a twenty per cent stake.  Mr Napier was appointed administration manager; Mrs Napier nurse manager.  Initially only Mrs Napier had cheque signing authority while her husband completed a scheme of arrangement with creditors unpaid after his previous business as a toy retailer in Henderson was wound down.  These creditors were paid seven cents in the dollar.
Later Mr Napier was to assume cheque signing authority and it was his use of the rest home cheque book which was to feature heavily in nearly three weeks of evidence in the High Court.
Mr Napier told the court that the large number of cash cheques, totalling 522 over a seven year period, was reimbursement of expenses incurred on behalf of the rest home.  He also said the irregular salary payments received included periodic employee benefits supposedly agreed with his fellow rest home investors.
Justice Woolford ruled that Mr Napier overpaid himself and his wife $281,000 over seven years, being the sum of their income declared to Inland Revenue less their agreed salaries of $41,500 for Mr Napier and $52,000 (rising to $60,000) for Mrs Napier.
Mr Napier’s diversion of rest home money into development of his Wellsford property only came to light in April 2012 when Inland Revenue made a demand on the rest home for some $196,000 in unpaid PAYE, GST and Kiwisaver contributions plus penalties and interest of another $79,000.  Forensic accountants installed by the rest home investors found $509,300 in cash cheques had been signed with no supporting receipts, many other cheques were made out to building suppliers in the Wellsford area and further payments were wrongly coded as payments to rest home suppliers who did not in fact receive payment.
Justice Woolford said the Napiers would have been quite unable to meet principal and interest payments due on their own personal debts by relying on their rest home salaries alone.  It was impossible to accurately assess the amount missappropriated because of the lack of proper records kept by Mr Napier.  In determining the amount missappropriated, only thirty per cent of the suspect payments can be justified at best as reimbursement of rest home expenses, Justice Woolford said.  He ordered the Wellsford property be held in trust, available to repay the money taken.  There was evidence the house on a 20 hectare lifestyle block has a replacement value of $1.425 million.
Separately, the Napier Family Trust was held liable for $95,730 of the total missappropriated.  This liability falls on the trustees personally: Mr and Mrs Napier and an independent solicitor, Christopher John Davis.  The Napiers washed some of their overpaid remuneration through the family trust. 
Torbay Holdings v. Napier – High Court (9.10.15)

15.113