Panel proposed to advise Milne's victims on remedies

David Robinson
David Robinson
Victims of jailed fraudster John Milne are holding out hope they may be able lodge compensation claims through two fidelity funds run by the Law Society.

The Otago branch of the Law Society is about to ask its members if any will step forward to form a panel and offer free advice to the claimants, Otago branch president David Robinson said when contacted.

''We're going to be asking for [legal] practitioners to provide advice, on a pro-bono basis, on where any remedies may lie,'' Mr Robinson said.

It was an Otago branch investigation in 2012 that led to the Serious Fraud Office (SFO) taking over the case and successfully laying 34 fraud charges.

Milne (79), a former Dunedin lawyer, last week started a jail term of eight years and one month for defrauding 35 people of $2.8 million over 21 years. As a self-declared bankrupt, he has no funds or assets for reparation.

Milne used the funds he took entirely for personal gain and made no investments.

In a classic Ponzi scheme operation, he paid interest only to the early investors, from the newest funds entrusted to him.

However, any victim compensation claims are far from straightforward, as claimants would have to prove they lent their cash to Milne as a personal loan, as opposed to giving it to him as an investment.

And the two fidelity funds cover different time frames.

Dunedin lawyer Alistair Paterson started an ''affected persons register'' for the fraud victims in 2012.

However, since then each investigation and the legal process had precluded any claims being lodged.

In addition, Milne did not plead guilty until October this year.

It was understood that two of the 11 creditors had filed claims but one, whose claim was for up to about $1 million, had been rejected because it was deemed to be an investment transaction as opposed to personal loan.

Mr Robinson said once the panel was formed, its members would offer ''independent advice''.

If there were grounds for a claim, it would be up to each member to decide whether they wanted to go on and represent one or more of the claimants, he said.

The claimants would retain the right to hire their own legal counsel, Mr Robinson said.

The big issue was whether the funds were given as an investment, he said.

Similarly, Mr Paterson said ''key'' to any claim was whether there was ''informed instruction to invest''.

That could include Milne having solicited the funds; or abusing his fiduciary duty in having the money ''captive'', as in already held as sale proceeds; or that the money was stolen and never invested.

Milne kept few or no records and SFO investigations found no paper trail of any investments.

New Zealand Law Society Fidelity Fund rules were changed following a large 1990s fraud payout, which meant money placed for investment was excluded from the responsibility of the fund.

The first fund predates August 2008 and has no cap to the level of claim, but there are limitations if the money concerned was given as an investment.

The second fund, for claims after 2008, has a cap of $100,000.

While claims are supposed to be made against the fidelity funds within six months, the 11 claimants already had a time extension until the outcome of the court proceedings was known.

simon.hartley@odt.co.nz

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