The Financial Markets Authority (FMA) has upped the ante in its head-to-head legal battle with Milford Asset Management portfolio manager, Mark Warminger, lodging a last-minute counter-appeal.
At the end of last month Warminger lobbed an appeal against the March 3 Auckland High Court finding he had breached market manipulation rules in two out of the 10 charges brought by the FMA.
Following the March 31 appeal (the final day of the appealable period) the regulator had 10 working days to file a cross-claim in the Warminger decision.
According to the Auckland High Court, the FMA filed a counter-appeal on April 18 – just before the appeal window closed in a period that included the Easter statutories.
An FMA spokesperson confirmed the Warminger cross-appeal covered “some of the claims that were dismissed” in Justice Venning’s original decision.
As well as finding Warminger had breached market manipulation rules in two instances – involving trades in Fisher & Paykel Healthcare and a2 Milk – in summing up Venning says:
“While the trading raises a number of issues, in relation to some causes of action in particular, on the evidence before the Court and given Mr Warminger’s explanation for those transactions, the Court cannot be satisfied that the trades amounted to market manipulation.”
In a side-bar issue, Venning also notes in his finding a post-trial legal scuffle where Warminger’s defence counsel argued the FMA should have called UBS trader, Jeremy Coe, as witness.
“Mr Coe’s evidence could have explained or informed the content of the telephone calls with Mr Warminger. But that does not mean the FMA would be expected to call him. Nor can it be said that his absence was unexplained.
“While the FMA interviewed Mr Coe, they considered him unreliable. Also, on Mr Warminger’s evidence, Mr Coe was a very good friend. While the FMA could have called Mr Coe, given his close relationship with Mr Warminger it is understandable why the FMA may have tactically chosen not to call him.
“To do so would have made him available for cross-examination by Mr Warminger’s counsel. There is no property in a witness. If Mr Warminger had wanted to speak to or call Mr Coe, he could have.”
A hearing date for the Warminger appeal should be “allocated in three to four months”, according to the Auckland High Court.