$41m crime threatened New Zealand’s global financial reputation

Published by Sam Hurley, New Zealand Herald –

A company director, property developer, financial consultant and lawyer all came together to defraud ANZ of more than $41m to develop a four-star Auckland hotel. Sam Hurley explains how they did it, and how the white collar criminals were caught.
As lenders and governments the world over scrambled to deal with the fallout from the global financial crisis, four men schemed to rort one of Australasia’s biggest banks.

Their crimes, in which more than $41 million was deceitfully acquired, would later be described by a judge as a “highly sophisticated elaborate fiction” which threatened New Zealand’s financial reputation.

The fraud, purportedly for the development of a two-tower hotel and apartment complex in downtown Auckland, is the second such property scandal to hit the city’s courts this year involving tens of millions of dollars.

The men’s ruse against ANZ all came crashing down because of a “disgruntled creditor”.

Two of the men, the “architect” of the deception and his “right hand man” – as they were described by a judge – are now behind bars, while their lawyer and a financial consultant made a plea deal to stay out of prison.

In 2008 a plan was hatched.

It began with Leonard John Ross, an experienced and successful developer.

Ross was developing the Waldorf Celestion Apartment Hotel on Auckland’s Anzac Ave and Emily Place, and took over the project when he split from a business partner.

Emily Projects was then formed as a company to carry out the development. Ross was the director and majority shareholder, while co-conspirator and former legal executive Michael James Wehipeihana took more than a third of the company.

In 2003, Wehipeihana had been charged by the Auckland District Law Society and admitted to the misappropriation of funds from a trust account.

Ross and Wehipeihana needed a large loan to develop the 127-apartment block. But financial institutions were prepared to lend only if several sale and purchase agreements were already in place.

The market was tight, so from June 2008 the pair began making false oral and written representations about pre-sales to financiers, valuers, ANZ’s lawyers and bank officers.

Thirty of the 47 purported New Zealand-based purchasers came from a list sent to Wehipeihana, sourced from real estate company LJ Hooker’s database under dubious circumstances.

An exchange of emails about the list would later become a key piece of evidence at Ross’ and Wehipeihana’s trial.

ANZ made a conditional offer in October 2008, and in December a $41.15m loan agreement was reached.

But the bank’s offer was subject to several conditions, including each purchaser signing an acknowledgement document, while all pre-sale cash deposits were to be held in a solicitor’s trust account with ANZ.

To satisfy the conditions, Ross and Wehipeihana forged documents bearing the names of genuine people. Some of the fake purchasers were also family and friends of the pair.

This was also when the third member of the group, disgraced lawyer Timothy Upton Slack, became involved.

Slack was acting as the lawyer for Emily Projects.

While doing so, he provided several false undertakings about the deposits for the pre-sales in his trust account.

As described by Justice Kit Toogood at Slack’s sentencing, the solicitor gave personal assurances to the bank that he “knew were blatant lies”.

Slack later gave evidence at Ross’ and Wehipeihana’s trial of a meeting with the pair where he received instructions to provide the undertakings.

In 2006, Slack had also made a false undertaking for another client and was later disciplined by the Law Society. In March this year he was struck off the roll of barristers and solicitors.

The fourth member of the group, financial consultant Vaughn Stephen Foster, was pulled in by Wehipeihana.

While not involved in drafting the scheme, Foster helped Ross and Wehipeihana present the forged documents to ANZ.

In late 2010 the apartment complex was completed.

But further steps were needed to maintain the lie.

When it came time to settle the apartment purchases, ANZ required the purported pre-sale purchasers to sign deeds forfeiting their rights to the deposits they supposedly paid.

And so signatures on many of the deeds were forged by Ross and Wehipeihana.

Then in 2012, Emily Projects went into liquidation.

The Emily Projects’ final liquidators’ report said investors claimed $2.89m from the firm and two other creditors claimed $671,000.

These creditors had been paid $420,310, a return of 11.8c in the dollar.

As well as the ANZ funding, the developers had also sought investors in Singapore, Malaysia and Australia.

Speaking from Singapore, one of the those investors said he and others “are silent victims of their elaborate scheme”.

“I am, and I believe I speak for many fellow investors, delighted by the news of the guilty verdict and well-deserved jail sentence, especially that of Leonard Ross and Michael Wehipeihana,” Jeffrey Hum told the Herald.

“It is some measure of justice done, though long in coming … I say ‘some’ because there are many investors of the Celestion like me [who] are silent victims.”

Hum said many of the investors were from Singapore and Malaysia.

The SFO began investigating Emily Projects from at least March 2016.

The investigation began after a “disgruntled creditor” voiced concerns about the development.

“He conducted research and reported his findings to the SFO,” said Julie Read, the director of the Serious Fraud Office.

“As part of the investigation we looked at everyone involved, including directors, employees and contractors. As a director of Emily Projects, Mr Ross was part of the investigation from the outset.”

Soon after the investigation began, however, Ross moved his family overseas.

Herald sources familiar with the case said Ross had relocated himself and his family to Melbourne and was still living an “incredibly extravagant lifestyle”.

It is understood that during the court proceedings Ross enjoyed luxury holidays and purchased property abroad.

The group’s offending was considered by Read and the High Court judges who presided over the case as being most comparable to that of Auckland property developer Kang Huang.

He bribed a banker and used friends, family, staff and fake names to gain more than $50m worth of fake mortgages.

Huang was jailed in February for four years and seven months, while a former banker, lawyer, and Huang’s wife were also sentenced this year for their part in the crime.

“In the case of Emily Projects, if the development had failed, the bank would have had little or no protection and financial losses would have been huge,” Read said.

She said it was “pure good fortune” during a volatile time in the property market that the development did not fail.

“Large-scale mortgage fraud also poses a threat to the integrity of the financial marketplace and to New Zealand’s international reputation as a safe place to invest and do business,” she added.

In a victim impact statement, ANZ also said significant time and effort was required by staff to fully recover the debt from the Emily Projects fraud.

As the case made its way through the courts last year, the dominoes began to fall.

Slack was the first.

He pleaded guilty to one representative charge of obtaining by deception and was sentenced last September by Justice Toogood to 10 months’ home detention.

In a letter to the court, Slack said he deeply regretted his offending and acknowledged that his crimes brought the entire legal profession into disrepute.

The Herald cannot name the firm Slack was working for at during the time of his offending, because of court suppression orders.

Foster was next.

Justice Simon Moore sentenced him to 10 months’ home detention in June following a guilty plea.

Meanwhile, Ross and Wehipeihana would go to trial.

At a hearing on July 12 last year, the High Court heard Ross had also broken his bail conditions by having a coffee with a Crown witness and commenting on legal documents.

At trial, Ross’ defence was described by Justice Rebecca Edwards as simply “pointing the finger at others”.

Slack and Foster both testified against Ross and Wehipeihana during the nearly nine-week trial, which began at the start of June.

It ended with the jury finding the pair guilty on three charges of obtaining by deception and two representative charges of using forged documents.

When sentencing Ross and Wehipeihana last week, Justice Edwards said the “deception involved an elaborate fiction”.

The judge accepted the motivation for the offending was not greed but rather to get the development built in a market where pre-sales were difficult to secure.

In a letter to the court, Ross characterised the fraud as “cutting corners”.

But Justice Edwards said it was worth remembering that the fraud occurred when financial institutions had tightened their lending criteria due to the impact of the global financial crisis, and the fallout from the Blue Chip saga.

Before being sentenced, Ross provided a doctor’s report which said he suffered from claustrophobia and would probably experience significant anxiety when confined in a small, locked space.

However, Justice Edwards imprisoned him for four years and four months.

In Wehipeihana’s letter to the court, he said he unreservedly accepted the jury’s verdict and took full responsibility for what he did.

Justice Edwards sentenced him to four years and three months’ imprisonment.

Timeline to fraud

• 2008 and 2010: The group execute their plan and defraud ANZ for $41m.

• March 2016: SFO begins its investigation after a disgruntled creditor raises concerns.

• October 2016: Charges are laid against Ross, Wehipeihana, Foster and Slack in the Auckland District Court.

• April 2017: All four enter not guilty pleas and elect a jury trial starting in the High Court at Auckland in June 2018.

• September 2017: Slack pleads guilty and is sentenced to home detention.

• May 2018: Foster pleads guilty and is sentenced in June to home detention.

• June, July 2018: Ross and Wehipeihana go to trial before a jury and are found guilty.

• September 2018: Justice Edwards sentences Ross and Wehipeihana to terms of imprisonment.