By Gareth Vaughan
In May 2016 the Financial Markets Authority (FMA) was cock-a-hoop after winning a Court of Appeal case against renegade New Zealand registered company Vivier and Company Ltd.
The ruling, not appealed by Vivier, meant the FMA was able to push through the deregistration of Vivier from NZ's Financial Service Providers' Register (FSPR). The FSPR is a phone directory type registry for NZ financial service providers that involves registration but not necessarily licencing or regulation. This disconnect between registration and regulation has caused confusion and been misrepresented by NZ registered companies in dozens of countries.
Now, almost five years on from Vivier's deregistration, it's fair to ask whether the FMA's action against Vivier achieved much, if anything, at all.
Vivier remains a registered NZ company offering banking type services and taking deposits, even though it's not a registered bank or non-bank deposit taker, both of which are supervised by the Reserve Bank. And interest.co.nz has learned of a bitter dispute between Vivier and a registered NZ foreign trust over a $4 million investment the Trust placed with Vivier, which it's alleged is controlled by a shadowy convicted British fraudster.
The Trust is the FKC Private Trust. The convicted fraudster alleged to be Vivier's puppet master is Ian Andrews, formerly Ian Leaf. He was convicted and jailed in 2005 for tax fraud valued at £76 million.
The story began in 2019 when the Trust invested $4 million with Vivier through two term deposits for which it was promised interest rates of 6.10% and 6.50%. However, no interest has been paid to the Trust and the trustee's demands for the $4 million principal to be returned, ahead of maturity in August 2021 and August 2022 due to claims of contract breach, have not been met.
Andrews, then known as Leaf, was found guilty at Southwark Crown Court of 13 counts of fraudulent trading, following an eight year investigation by HM Revenue & Customs in 2005.
"The complex £76 million fraud centred on a company purchase scheme which involved Leaf buying 13 UK subsidiary companies which were subject to UK tax. Once Leaf acquired the companies they were used solely for fraudulent purposes," HM Revenue & Customs said in a 2005 press release.
"When purchased by Leaf, as well as outstanding tax liabilities from past profits, the companies held enough cash to pay the tax owed. However, rather than using the money to pay the liabilities, Leaf created fictitious documents from a bank registered in the Pacific island of Nauru, controlled by him, which showed the companies had borrowed huge sums of money. The resulting fabricated interest payments were offset against tax. It was also falsely claimed that these loans were used to undertake massively profitable foreign exchange deals, not subject to UK tax out of which were paid dividends, which he then falsely used to reclaim, corporation tax rightly paid by the companies before he purchased them."
The Irish connection
Andrews, as the Irish Examiner's Conor Ryan reported in 2013, lived a lavish lifestyle during the 1990s with his complex business model taking years for the authorities to unravel.
"When he was convicted, in 2005, the cost of his crimes was £76m; £55m in lost taxes and £22m in reclaimed taxes. Leaf has since served his time and changed his name to Ian Andrews. Leaf/Andrews’ empire began to dissolve five years before his conviction, when his private jet stopped for a shopping trip in Rome and he was arrested on an international warrant. This was not before he had spread his tentacles across the world. His enterprise involved setting up an Irish company with an eye on the unlicensed, subprime lending market," Ryan wrote.
It appears the conviction and jail time didn't slow Andrews down for long.
Interest.co.nz first wrote about Vivier in 2015, six years ago. This was after I was contacted by Ryan, by then working for Irish broadcaster RTE. Ryan drew my attention to The loot and the loans, an RTE report fronted by him. This, Ryan said, revealed how mortgages offered in Ireland by a sub-prime mortgage company were funded by the proceeds of one of Britain’s largest ever tax frauds. And there were New Zealand links.
At the centre of Ryan's story was an Irish company named Vivier Mortgages Ltd. Andrews and Luigi Wewege, who appeared in local media coverage of then-Auckland Mayor Len Brown's affair with Bevan Chuang in 2013, also featured prominently.
Ryan's report said Vivier Mortgages was associated with Vivier and Company where Wewege was CEO, and Andrews was associated with another NZ company, City Savings Bank, which interest.co.nz wrote about in 2012, and was claiming to be regulated under the Reserve Bank of New Zealand Act when it wasn't. Wewege and Vivier said the RTE story included untrue and defamatory allegations. However, The loot and the loans remains available on RTE's website.
Six years after the allegation Andrews was the power behind Vivier emerged and five years after the FMA had the company removed from the FSPR, interest.co.nz is hearing that nothing appears to have changed. People who have worked for and with Vivier have told interest.co.nz Andrews continues to pull the strings behind Vivier. The company has continued operating, primarily overseas, with its tentacles stretching to the likes of Spain, Germany where the Federal Financial Supervisory Authority issued a warning about Vivier in late 2019 noting the firm wasn't permitted to conduct banking business in Germany, and Eastern Europe.
Interest.co.nz has seen a significant volume of email correspondence about Vivier matters, provided by several sources, in which Andrews appears to be playing a role in Vivier's day-to-day operations. Andrews doesn't, however, use a Vivier email address. Additionally interest.co.nz has seen bank records showing payments from the FKC Private Trust to Vivier in May 2019, and payments from Vivier to British property development company Monument Realty Ltd, which is associated with Andrews, and Ireland's Elstree Mortgages Ltd, formerly Vivier Mortgages, in July 2019.
For his part Andrews says he has "no role within Vivier," and isn't a shareholder, employee, consultant to Vivier or a customer of Vivier. He says he has no role with Elstree Mortgages, and is a consultant to Monument Realty. UK and Irish companies records don't show Andrews as a director or shareholder of Elstree Mortgages or Monument Realty. In terms of the email correspondence, Andrews says he won't comment on speculation.
The Japanese link
The Trust's relationship with Vivier began in 2018. That's when Japan-based Yuji Iwasaki, who was Vivier's Regional Director for Far-East Asia, says he was contacted by Kosei Yamaguchi, an elderly retired Japanese businessman. Iwasaki says Yamaguchi got in touch after spotting Vivier in a Google advertisement. Yamaguchi wanted to move money he already had invested with NZ firm Bancorp to another NZ financial services provider, Iwasaki says.
Thus Iwasaki started the ball rolling with Vivier. Subsequently the FKC Private Trust, which had been established in 2018, entered into a contract with Vivier and invested via two $2 million deposits paying 6.10% and 6.50% per annum for two and three year periods. The money was transferred into a BNZ bank account in the name of Vivier Capital Ltd, sister company of Vivier and Company.
Iwasaki had been attracted to Vivier by the presence of a former colleague, Oscar Mendoza, who was the firm's Vice President of Global Business Development. Iwasaki and Mendoza had previously worked together at an investment bank in Mongolia. Needing a new trustee for the FKC Foreign Trust, Iwasaki turned to another former colleague from Mongolia, Mubashir Qasim, who lives in NZ, and is both a NZ and Pakistani citizen. Qasim replaced previous trustee Miki Reagan, a former Bancorp employee, in April 2019.
Iwasaki says his arrangement with Vivier involved no regular salary. Rather he would be paid commission for bringing deposits to Vivier. He believes Vivier has used NZ's good image to help collect funds overseas.
Qasim says as of December 31, 2020, $431,504.60 in interest was owing on the FKC Private Trust's deposits with Vivier. Iwasaki says Vivier owes him almost €58,000 in commission, and owes more than €24,000 in principal and interest to two other Japanese customers he brought to Vivier, one of whom is Iwasaki's wife.
When Mendoza left Vivier early in 2018 Iwasaki says he told him Andrews was the ultimate beneficial owner, but Iwasaki didn't feel he had clear evidence of this. Up until the dispute over the Trust's money, Iwasaki says Vivier had been paying interest on other deposits and returning principal investments on maturity.
An emailed response to Iwasaki's wife from an unnamed person at Vivier blames COVID-19 for delays. It says the pandemic is impacting all businesses and Vivier is no exception, facing delays on anticipated receipts.
"As a consequence, it is currently unable to transfer funds out, in particular your forthcoming redemption. We apologise for any inconvenience, are working to improve the situation and hope to bring you more positive news as soon as possible," the July 2020 Vivier email to Sonoko Iwasaki says.
Iwasaki says he discussed with three Vivier representatives whether the firm could receive deposits from a NZ foreign trust before the money was deposited.
"It took a long time to clear those matters, and finally Vivier confirmed all the pending points were okay without any problem," he says.
Iwasaki, meanwhile, says he does now believe Andrews is Vivier's ultimate beneficial owner.
Qasim says he started to get suspicious about the Vivier personnel he was dealing with. Then coming across interest.co.nz's 2016 story about the Court of Appeal ruling against Vivier heightened his concern.
By late August 2019 Qasim's concerns included that Vivier had failed to provide a promised insurance policy for the deposits despite several requests. And given Vivier's not supposed to accept NZ clients, he questioned whether it should have accepted the Trust's deposits. Since then none of the promised interest has been paid, and Qasim's demands for the principal investment to be returned have been rejected.
In September 2019 Qasim's lawyers demanded the Trust's money back from Vivier because of its failure to provide an insurance policy, and providing information deemed to be misleading. Subsequently Qasim's lawyer has unsuccessfully sought information from Vivier on the status of the $4 million, the interest payments due, the tax due in NZ on these payments, and the withdrawal of money on maturity this year.
"The Trust deposited money at Vivier NZ and has no control over where Vivier eventually sends money to. At the time of investment, we were told that Vivier invests money in UK property companies. This did not appear to be a concern because it is normal for wealth management firms to invest overseas. Vivier promised that the investment is covered by an insurance policy with Standard and Poor's A+ rated insurers, providing a $15 million indemnity on each and every claim...Most importantly, we thought we were dealing with a company based in New Zealand with a corporate head office in Auckland," Qasim says.
Documents from BNZ and ASB show $2.565 million went from Vivier to Monument Realty and Elstree Mortgages in July 2019. Of this, two payments of $641,373 were made from Vivier's BNZ account to a Barclays Bank account in the name of Monument Realty, and another $641,372 payment went to a Bank of Ireland account in the name of Elstree Mortgages. A further $641,374.04 went from Vivier's BNZ account to a Vivier ASB account, when BNZ decided to close Vivier Capital's accounts in 2019, and subsequently on to a series of recipients.
Asked about Vivier, spokespeople for both BNZ and ASB said they don't comment on specific customer issues.
Qasim, who has complained to NZ regulators including the FMA, Companies Office, Police and Serious Fraud Office (SFO) about Vivier, has concluded that: "New Zealand regulatory and law enforcement agencies seem somewhat okay with Vivier using [the] kiwi reputation."
'A person with significant control'
UK Companies House records list Ian Andrews as "a person with significant control," in Monument Realty, saying "he has the right to exercise, or actually exercises, significant influence or control over the company."
Andrews also featured in a 2019 Irish High Court judgment. The plaintiff was Elstree Mortgages in a case taken against borrower defendants Nigel and Mark Bannon. Andrews gave evidence on behalf of Elstree.
In her judgment Justice Eileen Creedon said; "The Court did not find Mr Ian Andrews to be a reliable witness. He conceded that he had been previously known as Ian Leaf...despite questioning from the Court, the Court remains unsatisfied as to the precise nature of his role within the plaintiff company and his connection with this litigation."
The judgment also says Andrews told the court he was neither a director or employee of Elstree Mortgages, but was more like a consultant working for a shareholder. Andrews indicated that his family trust owns the company, Justice Creedon said, adding no documentation was produced to underpin this evidence.
Elstree sought €965,641.21 in capital and interest on a loan of IR£15,000 to Nigel Bannon in 1999. Justice Creedon dismissed Elstree's claim.
NZ Companies Office records show Vivier and Company has had a series of directors and shareholders over the years. Andrews has never been either.
Information about the beneficial ownership of NZ companies is not currently collected by the Ministry of Business, Innovation & Employment's Companies Office, although Companies Registrar Sanjai Raj can request it for law enforcement purposes.
It is a simple process for the owners of NZ registered companies to find people who, for a fee, will serve as directors or shareholders of the company on behalf of the real owner. These may be accountants or lawyers who assist with the company formation process. Or they may be a so-called "gun for hire" as NZ resident director Michael Reps was labelled by the FMA in a recent prosecution. A shareholder holding shares on behalf of someone else isn't considered the beneficial owner because they are ultimately working on behalf of someone else.
Companies Office records show Vivier and Company was incorporated on April 5, 2001 as Global Project Marketing Ltd. The company went through two name changes to Wetherstons Holdings Ltd and then Global Trading & Marketing Ltd, before a third name change was made on February 22, 2014 to Vivier and Company. At that stage Companies Office records show the shareholder and director was Auckland man Michael Hart.
Asked a series of questions about Vivier by interest.co.nz, Hart says he searched his computer for records, and for any physical files relating to Vivier. Hart was a director between June 2002 and October 2015, and shareholder from January 2010 until October 2015.
"I have nothing relating to that company," Hart says. "My memory of events is hazy, but I do recall that the ultimate shareholder, and controller, was a wealthy businessman based in London."
"The day-to-day operations of Vivier were under the total control of the managing director, Luigi Wewege," says Hart.
"I recall at the time I resigned from Vivier handing over all physical files to the person who took over from me. I also verified to him, and the managing director, that all other Company records had either been transferred to their control or deleted."
"I am sorry that I am unable to add anything further, as I am approaching 80 years of age and my memory is not as sharp as it used to be. You are asking me to recall details of events from six to seven years ago, and I have been struggling to do so."
Companies Office records show Wewege was a Vivier director between August 2014 and May 2017. Caye International Bank of Belize now lists Wewege as its head of private banking.
Companies Office records now show Christchurch man John Johns and Martin Haschka as directors of Vivier and Company, plus sister companies Vivier Capital and Vivier Investments. Haschka is listed as shareholder. By law NZ companies must have at least one NZ or Australian based director. An Ilam Road address in Christchurch is now given as Vivier's registered office and address for service.
The golf pro
When interest.co.nz contacted Johns, he distanced himself from Vivier and said questions should be addressed to Haschka. Prior to Johns, Allan Court, the golf pro at Dunedin's Chisholm Links golf course, was the NZ resident director of the three Vivier companies. Court was also listed as shareholder during 2020. During this period the registered office and address for service for the three Vivier companies was the Chisholm Links golf course address.
Contacted by interest.co.nz last year Court initially said he wasn't the beneficial owner of the companies, but subsequently said he was. Meanwhile Companies Office records show Auckland resident Gary Warner followed Hart as Vivier and Company shareholder in 2015, and he was succeeded by another Auckland resident, Eduardo Goncalves, between June 2017 and Court taking over in April 2020.
Goncalves says he got involved with Vivier because Ali Hashemi Far, a friend who was also a Vivier director for three months during 2019, asked him to. Asked what he actually did for Vivier Goncalves said he did nothing.
"They needed a physical address [in NZ] and they could use the same address as mine," says Goncalves.
The reason he cut ties with Vivier was because he didn't know who the owner was, but believes Andrews is involved with the company. Leaving caused a headache, he adds, noting ultimately he got a lawyer to write to the Companies Office and Vivier to get his name removed from the Companies Register and Vivier's website.
Goncalves, who says he works in international marketing, says Hashemi Far is now in Canada.
Meanwhile, one of Vivier's more colourful past directors was John David Beckett, or Lord Taylor of Warwick. Companies Office records show he was a Vivier director between September 3 and November 23, 2014. A member of Britain's House of Lords, he was jailed in 2011 for false expense claims, and disbarred in 2012 for "conduct discreditable to a barrister."
Other addresses used by Vivier over the years include that of serviced, virtual and shared office providers Servcorp and Regus in central Auckland. Calls by interest.co.nz during the preparation of this article to an Auckland phone number on the Vivier website went unanswered.
'I have no role within Vivier' & 'improper allegations'
In response to questions from interest.co.nz Andrews said; "Bravo at establishing information about my name change from 13 years ago, which is a matter of public record."
"I have no role within Vivier. If you address your questions to its CEO Martin Haschka you may receive answers," says Andrews. "I have no role within Elstree. As the [court] judgement notes, I was formerly a consultant to the company, appearing as a witness in its case."
As for Monument Realty, Andrews says he's a consultant to the company.
Haschka, who according to Vivier became its CEO in December 2017, has an Austrian address in Companies Office records, and his LinkedIn profile has him in Bucharest, Romania.
In response to interest.co.nz's questions Haschka says Vivier wouldn't normally divulge confidential information about individual clients. But, he says, because the FKC Private Trust appears to have made "improper allegations," he is responding.
Haschka says Vivier takes seriously and complies with its obligations under "know your client” obligations and the Anti-Money Laundering and Countering Financing of Terrorism Act (AML/CFT Act). He claims the FKC Private Trust has failed to do this, alleging it's "a sham trust that has misled the New Zealand authorities." Additionally he says the Trust and Qasim "have adopted a series of dirty tricks and guerrilla tactics against Vivier."
"Vivier has made reports about the conduct of FKC and its purported Trustee to the authorities, including to the Privacy Commissioner," Haschka says. "FKC have been told that payments of interest will be made once it complies with the legislation mentioned above. Payments of capital are not yet due."
Interest.co.nz also asked Haschka about some of the Trust's money being transferred to bank accounts in the names of Elstree Mortgages and Monument Realty.
"Any financial institution will tell you that, in the absence of specific investment directions, a client’s account is discretionary. Imagine opening a general savings account with HSBC and telling them where to invest the related funds. In short, FKC’s complaint is unfounded. Save in relation to sectors, Vivier does not disclose information about its investments," Haschka says.
And like Andrews himself, Haschka says Andrews "has no role within Vivier."
Qasim, who has provided interest.co.nz with Inland Revenue correspondence to the FKC Foreign Trust, says Vivier's allegations the Trust is attempting to launder money and has misled other financial institutions aren't true.
"It is just Vivier's excuse to keep the trust money indefinitely," Qasim says. "New Zealand Foreign Trusts are legally allowed here...We have provided everything Vivier asked for."
Meanwhile, asked who the beneficial owner of Vivier and Company, Vivier Capital and Vivier Investments is. Haschka says; "It is a matter of public record that, in September 2019, Larimar Blue 2014 SL, of Rambla Del Garraf 76, Sant Pere De Ribes 08812, Barcelona, Spain purchased a majority holding in Vivier and its associated companies. The balance of the shares is held beneficially by me and the team."
In 2019 Vivier announced Barcelona-based energy consultancy AC Solutions Group and Vivier and Company had signed a joint venture agreement that would "regulate" their future operations. AC Solutions is an associated company of Larimar Blue.
"The agreement allows Vivier to build on its success as a financial service provider, but with central management and control now exercised from Spain," Vivier's statement said.
"Our new majority shareholders are significant players in the energy sector, where they are experiencing rapid growth and achieving attractive profits. For many years, they have also been one of Vivier’s most important clients...This investment will create significant synergy between both organisations, strengthening commercial, financial and manpower resources, as well as providing improved opportunities within the financial services we offer. It is fitting that this alliance has emerged in one of Vivier’s most successful years to date," Vivier said.
'We were clients who he ripped off'
Alejandro Ortega, AC Solutions executive director, has a very different story.
"In 2015, thinking that Vivier was serious, we deposited €1 million in that company," Ortega says.
Rather than getting its money back on maturity, Ortega says Andrews and another Vivier representative came to Barcelona proposing AC Solutions didn't withdraw its deposit, and that Vivier would instead lend AC Solutions the money it had deposited.
Ortega says Andrews wanted AC Solutions to sign a document showing Vivier had made a loan.
"We have never owned Vivier, we were clients who he ripped off," says Ortega.
When Ortega's response was put to Haschka, he said Larimar Blue had borrowed €2 million from Vivier. Additionally he says; "Larimar originally requested their [Vivier] shares be held by a third party, currently myself. In view of what they say, we are now proceeding to record their holding formally on the [Companies] Register."
This has subsequently happened, with Companies Office records as of Thursday morning, April 1, showing Larimar Blue as 51% shareholder of Vivier and Company, Vivier Capital and Vivier Investments, with Haschka listed as 49% shareholder.
An elderly, retired person
None of Yamaguchi, his lawyer, or two children who are beneficiaries of the FKC Private Trust, have responded to interest.co.nz requests for comment.
Both Iwasaki and Miki Reagan, the Trust's first trustee, say they have met Yamaguchi in Japan. Reagan says he's an elderly, retired person. Reagan says after a stint working for Bancorp in NZ she moved back to Japan and helped certify Yamaguchi's documents during this period when he was a Bancorp client. She subsequently returned to NZ and was contacted by Yamaguchi via Bancorp in 2018 asking her to be trustee of the Trust. Ultimately she stepped down from the role with Yamaguchi wanting to move on from Bancorp.
Bancorp chief financial officer Dave Henvest says all client funds received by Bancorp come through major trading banks and regulated funders and are accepted only after Bancorp completes required anti-money laundering and know your customer requirements.
"Bancorp has never transacted any funds out of client accounts to Vivier. All our client transfers have and continue to go directly to our clients’ trading bank accounts," Henvest says.
FMA: Not our problem, passes buck to MBIE
Given Vivier has received funds from a NZ entity being the FKC Private Trust, and has clearly continued offering financial services since its deregistration from the FSPR in 2016, interest.co.nz asked the FMA what the point of deregistering Vivier was.
An FMA spokesman says the deregistration was because Vivier's registration was considered misleading for the purposes of Section 18A of the Financial Service Providers (Registration and Dispute Resolution) [FSP] Act because Vivier was not providing financial services in/from NZ.
"As noted in the judgment, the FMA’s position was that Vivier could continue to operate as it had been, without being registered on the FSPR, because the services provided from New Zealand were not financial services," the FMA spokesman says. "The FMA cannot prevent Vivier from continuing to be registered on the Companies Register as this is outside of our powers."
"It may amount to an offence if a company was providing financial services in New Zealand as it may need to be registered as a financial services provider. However, in the case of Vivier, in our view the services were being provided offshore so there was no need for the company to be registered on the FSPR."
"If financial products or services have been provided by Vivier in New Zealand, then its conduct would be subject to Part 2 of the Financial Markets Conduct Act and it would be required to register on the FSPR," the FMA spokesman says.
"We have not received any information to date that indicates Vivier has provided financial services/products to New Zealand clients or is providing a financial service in New Zealand. The FMA is focused on any potential breaches of New Zealand financial markets legislation – we cannot seek redress or remediation for individuals. Individuals have the ability to pursue their own legal actions against a company they have an issue with."
Qasim says he hasn't filed legal proceedings against Vivier.
The spokesman adds that based on the information the FMA has, it can’t determine if Vivier should be a reporting entity under the AML/CFT Act and subject to regulatory supervision. It currently isn't.
"What we have seen suggests that most of Vivier’s activity is occurring offshore."
Guidelines on the territorial scope of the AML/CFT Act say: "An entity incorporated or formed in New Zealand, which carries on financial activities wholly outside New Zealand, will not be a 'reporting entity' under the AML/CFT Act."
The FMA spokesman wouldn't say whether it was investigating Vivier or assisting in any investigation of Vivier, saying FMA inquiries or engagement with a specific business is confidential.
Interest.co.nz also asked the FMA what the Vivier-FKC Foreign Trust dispute, involving a company removed from the FSPR that has courted warnings from overseas regulators, does for the reputation of NZ, its financial markets, its financial services firms and NZ's reputation as a safe place to do business, and to what extent this is a concern for the FMA.
"The FMA exercised its powers in order to deregister Vivier from the FSPR because its registration was misleading and we were concerned about the reputation of New Zealand and its financial markets. Any questions about Vivier’s registration on the Companies Register should be directed to Companies Registrar," the FMA spokesman says.
This disconnect between companies being removed from the FSPR due to concern their presence on it may damage NZ's reputation, and them being able to continue operating as NZ registered companies, has been highlighted by interest.co.nz previously, in 2017 here, and in 2019 here.
'Insufficient evidence to reach the threshold for prosecution'
Last year a Ministry of Business, Innovation & Employment (MBIE) spokesman told interest.co.nz MBIE's Integrity and Enforcement Team was investigating alleged links between Vivier and Company, plus sister companies Vivier Capital and Vivier Investments, and Andrews/Leaf. The Companies Office, which oversees the Companies Register, is a part of MBIE.
Then in February this year an MBIE spokeswoman said the Integrity and Enforcement Team had concluded their investigation.
"There was insufficient evidence to reach the threshold for prosecution," the MBIE spokeswoman said. "Should further information regarding non-compliance with the Companies Act become available, the matter will be reviewed in accordance with the Integrity and Enforcement Team's enforcement policy guidelines."
The spokeswoman says key areas the Integrity and Enforcement Team enforce include making sure a company has at least one director resident in NZ or Australia, making sure information on the Companies Register is correct, and making sure companies comply with statutory filing and financial reporting obligations.
"In circumstances where there is clear evidence of false information intentionally being provided to the [Companies] Registrar, an investigation into breaching Section 377 of the Act may be initiated. Likewise if any other breaches of offences specified the Act are identified, investigations may be initiated. If the provisions of the Solicitor-General’s Prosecution Guidelines are met, namely the evidential and public interest tests, such investigations may result in criminal prosecutions. Section 373 of the Companies Act sets out a complete list of criminal offences and penalties within the Act," the MBIE spokeswoman says.
Qasim also filed a complaint with NZ Police last September about Vivier. Asked about this a police spokeswoman says the Police: "Are in general unable to respond to queries which seek to establish whether specific individuals or organisations are, or have been, under Police investigation. Additionally, all complainants have a right to privacy."
Last July an SFO spokesman told interest.co.nz the SFO had received three complaints in relation to Vivier, but wouldn't comment further. Interest.co.nz again sought comment from the SFO for this article. A spokesman says complaints made to the SFO were referred to overseas authorities as it appeared Vivier wasn't operating in NZ and the alleged misconduct occurred overseas.
"While Vivier was registered in New Zealand as a financial services provider for a period of time, it was deregistered by the FMA in 2015 when it formed the view that Vivier was not carrying on business in New Zealand," the SFO spokesman says.
Government working on having better beneficial ownership information, slowly
On the issue of the beneficial ownership of NZ companies, MBIE issued a consultation paper in 2018 proposing to increase the transparency of the beneficial ownership of NZ companies and limited partnerships. Early last year the then-Commerce and Consumer Affairs Minister Kris Faafoi said cabinet decisions were expected in the second quarter of 2020. Against the backdrop of COVID-19, they didn't materialise.
Now a spokesman for David Clark, Faafoi's successor, says the project was delayed pre-lockdown 2020 while funding issues were being worked through. And final decisions are still some way off.
“MBIE is working on detailed policy and funding proposals for a unique identifier for directors, general partners and beneficial owners and beneficial ownership transparency. I expect Cabinet decisions to be made sometime next year," Clark's spokesman says.
Meanwhile, a March 15 law change attempts to clear up confusion around whether a financial service provider that's not registered on the FSPR, or has been deregistered, can provide or continue to provide financial services. The change means such businesses, with a place of business in NZ, can provide financial services as long as the services aren't provided to anyone in NZ subject to a financial service provider not otherwise being required to register on the FSPR by law.
A February 2020 email from Andrews sent to four people with Vivier email addresses entitled "KYC letter from ASB," can be seen below.
In other emails Andrews discusses directors and shareholders, and potential directors and shareholders, of the three Vivier companies. In one, dating from 2017, he expresses anger at Warner, full name Gary Paul Warner (GPW), a former director and shareholder of all three Vivier companies.
"Could you please let me know if the shareholding, officers and NZ CRO access for the above companies are back under the control of its current personnel, ie that we have no further dependence on GPW?"
"It would be great to dispense with this idiot once and for all."
This was in response to an email from Warner to Vivier from which the paragraph below comes.
"If you continue to refuse to remove me from the NZ register I will be forced to discuss the situation with NZ companies office. Surely you realise that the result of any such discussion will be the deregistering of these companies, this action will be undertaken by NZ companies office, not myself."
Warner couldn't be reached for comment, with Hart suggesting he may have moved to Chile.
Below is a 2018 email exchange between Andrews and Haschka.
And in a 2019 email exchange Andrews contributes to a discussion about how to respond to questions interest.co.nz asked of Goncalves, who was then listed in Companies Office records as Vivier and Company's sole shareholder and NZ resident director. The sentences below come from an Andrews email sent to Vivier and Company's then CEO, Leonardo Rodriguez.
"EG [Eduardo Goncalves] has heard my name but has never had any contact with me."
"I remain convinced that it would be preferable to issue a simple denial and/or to ignore this viper. If you still wish to respond to him, please find my suggested answers below..."
Ultimately Vivier didn't respond to interest.co.nz's questions asked ahead of the publishing of the 2019 article.
'Alarm bells should sound'
The 2016 Court of Appeal judgment meant the FMA was able to push ahead with having Vivier removed from the FSPR. The FMA had received the power to have companies deregistered from the Companies Office run FSPR in 2014 as concern mounted about misuse of the FSPR. Vivier had challenged the FMA's move to have it deregistered from the FSPR in the High Court and won, hence the Court of Appeal hearing which ultimately went the regulator's way.
"The Court found that the ability to remove firms from the FSPR was intended to allow the FMA to assess potential damage to the reputation of NZ’s financial markets and the misleading appearance of registration. The court concluded that in the case of Vivier there was an 'absence of any material financial services provided in or from New Zealand,' and agreed that the FMA was entitled to infer potential harm from this, and to direct Vivier’s deregistration. We welcome the finding that the FMA was entitled to rely on its expert knowledge of financial markets in New Zealand and overseas when assessing whether the registration was misleading or damaging," the FMA said in 2016.
As the Court of Appeal judgment noted, registration on the FSPR was required of any person or company in the business of providing a financial service who is ordinarily resident or has a place of business in NZ, regardless of where the financial service is provided. Registration didn't, however, require services be provided in or from NZ. Nor did it require services be provided to NZ clients. And it didn't require that those registered on the FSPR actually be regulated by NZ law.
The Court of Appeal also said if a financial service provider like Vivier wasn't providing financial services in or from NZ, nor generating any associated financial activity in NZ, and couldn't demonstrate any intention of doing so, "alarm bells should sound." It also noted Vivier had refused to provide information about overseas regulatory compliance, which "suggested non-compliance" and therefore risked reputational damage to NZ financial markets.
Vivier didn't appeal the Court of Appeal ruling. Wewege, Vivier's then CEO, told me after the Court of Appeal judgment that Vivier would continue offering financial services overseas.
"Vivier and Company’s only permanent office is in Auckland, from where it provides services to overseas clients...The company complies fully with the legislation, which prohibits a financial services provider from taking deposits in New Zealand. As part of that compliance, the company took the view that the legislation required it to be registered in New Zealand as an FSP [financial service provider]," Wewege said in 2016.
"Although the court time occupied by this matter demonstrates that the legislation was not clear, it has clarified certain grey areas. It also provided an opportunity for the FMA to confirm that Vivier & Co can continue to provide services as in the past, without FSP registration," added Wewege.
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