Delta: Report from Office of the Auditor-General

Inquiry into property investments by Delta Utility Services Limited at Luggate and Jacks Point.

The report on the OAG probe was tabled at Parliament at 2pm today.


“My staff found no evidence of impropriety or of poorly managed conflicts of interest in relation to either investment [Luggate and Jacks Point]. However, they did identify some breaches of the Local Government Act 2002 and the Companies Act 1993 and instances of Delta using artificial business structures to avoid public accountability.” –Lyn Provost, Controller and Auditor-General

█ Inquiry into decisions by Delta Utility Services Limited to invest in residential development at Luggate, near Wanaka, and at Jacks Point, Queenstown. 14 November 2012. Link

What was the probe about?
The OAG probe was to cover all aspects of the council-owned company’s decision to spend $14.12 million on property at Jacks Point, in Queenstown, and Luggate, near Wanaka, in 2008 and 2009. That included how and why the purchases were made, consideration of risks, compliance with legislation, and the identification and management of any conflicts of interest, the OAG said at the time. The OAG would also consider to what extent the Dunedin City Council – as the shareholder of Delta’s parent company, Dunedin City Holdings Ltd – was involved, and any other matters considered ”desirable” to report on. (ODT article 14.3.14)

████ Updated 21.3.14 – essential listening ████

### Friday 21 March 2014
Morning Report with Geoff Robinson & Simon Mercep
Delta complainants not satisfied with critical report
Reporting by Ian Telfer
08:41 People who made complaints about failed property deals from a Dunedin council subsidiary say it is unacceptable no-one is being held to account.
Audio | Downloads: Ogg   MP3 ( 3′ 38″ )

Related Post and Comments:
14.3.14 Delta: Mayor ignores Cr Vandervis’ official complaint

Posted by Elizabeth Kerr


Filed under Business, Construction, CST, DCC, DCHL, DCTL, Delta, DVL, DVML, Economics, Geography, Highlanders, Media, Name, New Zealand, ORFU, People, Politics, Project management, Property, Queenstown Lakes, Site, Sport, Stadiums, Town planning, Urban design

39 responses to “Delta: Report from Office of the Auditor-General

  1. John P.Evans, concerned citizen

    The Auditor-General should stand for mayor. She is not interested in accountability of any individuals either!

    If you do not kill a Fox or two, there will in the end be no chickens.

  2. Director names: Ray Polson, Ross Liddell, Norman Evans, Michael Coburn, Paul Hudson, and Stuart McLauchlan. Additional: John Gilks and George Douglas.

    Delta Staff names: Grady Cameron, Stephen Wilson, John Walsh.

    DCC names: Dave Cull, Syd Brown, Paul Orders, Sandy Graham (group manager corporate services). Additional: Peter Chin, Jim Harland and Athol Stephens.

    DCHL name: Bevan Dodds.

    Others: Jim Boult (Luggate Park joint venture).

    [Dunedin Ratepayer names: Bev Butler and Russell Garbutt]

    █ Cr Lee Vandervis who laid an official complaint that was accepted by the OAG was not interviewed. Readers may draw their own conclusions on the completeness of the OAG year-long probe.

    █ Which former director of Delta receives special mention for COI ?

    █ Why did Mayor Cull seek to silence Cr Lee Vandervis, and how did he achieve that politically in discussion with OAG ?

    █ How much of the OAG messaging is for avoidance of legal action against OAG and other parties ?

    █ Who will be motivated to seek legal accountability and transparency ?

    “Because most of the directors of Delta were also the directors of Dunedin City Holdings Limited, the governance regime that the Council had in place in the Council group did not provide Delta with adequate oversight of, or guidance about, the investments. For these reasons, I consider that the Council and Dunedin City Holdings Limited bear some responsibility for the investments.”
    –Lyn Provost, Controller and Auditor-General

    Answer to the last question:
    It is for the ratepayers and residents to organise themselves to take legal action over breaches of legislation and financial losses.

  3. As a report it is about par for the course. Fire no shots, injure no-one, take no prisoners. Mayor and Council are in a sense exonerated so it is business as usual. Directors can carry on in their normal plundering way. Accountability is not a requirement of the job. No wonder the city is in the position it is.

  4. Hype O'Thermia

    Vandervis, Vandervis, yes, there was something about him, umm….. Tried to get hold of him but flat out all year, plus the difficulty of holding telescope to our blind eye, unfortunately weren’t able to track him down in the time available.
    What was that nonsense about conflicts of interest, anyway? The people we interviewed assured us they had no conflicts of interest.

  5. Hadn’t seen or heard of the two companies at same tier (in Figure 1) as DCHL. I’m so naive.

    Dunedin City Council group
    Delta is one of the Council’s several council-controlled organisations and is part of the Council group. Figure 1 shows the ownership structure of the Council group (companies only).

    Fig. 1 Ownership structure of companies in DCC group

    [joke – Dunedin ‘Ventures’ Ltd, and Dunedin ‘Ventures’ Management Ltd]

    • Mike

      Yeah they should be under it otherwise they can’t claim the stadium losses on their taxes.

      Where does the partial ownership of the Golden Centre fit in?

      • With that question, Mike, I wonder how many other company ‘investments’ are slinking around not seen by that ‘portrayal’ at Figure 1. Of course, what we can’t see won’t need copy editing or spell checks. A saving!


    Part 3: Investing in the Luggate Park development

    We found instances of Delta choosing artificial structures for carrying out its business activities. These structures involved legally unequal ownership or governance arrangements, but the parties had no intention that they would operate unequally in practice. From the material we have reviewed, the purpose of these structures was to avoid the accountability requirements of council-controlled organisations. In our view, such a move is inappropriate for a public entity.

    The joint venture company [Fulcrum Partners Limited (Fulcrum)] was structured so that the private sector partner owned one share more than Delta and had the right to appoint one more director.16 This arrangement was deliberate. It meant that Fulcrum was not a council-controlled organisation, so it was not publicly accountable.

    *In 2004, Delta and an infrastructure design company formed a new joint venture company, Fulcrum Partners Limited (Fulcrum). See the “Fulcrum concept” discussed. [3.8][3.9][3.20 ff]

    We have not seen any evidence that the holding company board [DCHL] scrutinised or tested the Luggate investment proposal. It appears that approval was a formality.

    We asked the Council for records of any specific communication from Delta or the holding company [DCHL] about the Luggate investment. The Council has not found any such records.* cont/

    *Note at [3.55]:
    At the time of the Luggate investment, governance and communication arrangements between the Council and the holding company were as follows:
    A liaison committee comprised the Mayor, the chief executive of the A liaison committee comprised the Mayor, the chief executive of the Council, the chairman of the Council’s Finance and Strategy Committee (Councillor Syd Brown), and the chairman of the holding company [DCHL]. The purpose of the liaison committee was to brief the Council on large transactions. Meetings were informal, and minutes were not taken. cont/

    Because the Council has not found any records, we have not seen any evidence from mid-2007 that the chairman of the holding company (Mr Hudson) formally briefed the Council on Delta matters, including Luggate Park. Mr Hudson was a director of the holding company [DCHL] and of Delta when both the Luggate Park and Jacks Point investments were made. He was also a councillor. However, Mr Hudson told us that he did not see himself as a conduit for information to the Council about companies in the holding company group.

    Figure 10 shows the structure of the Luggate Park joint venture.

    Fig. 10 Structure of joint venture to develop land at Luggate Park

    [3.59] Delta’s tax advisors had recommended using a subsidiary to advance funds to the joint venture. Delta arranged to purchase Newtons from the Council and to establish it as a subsidiary of Delta. This was because it was more convenient for Delta to buy Newtons from the Council than to form a new subsidiary.
    [3.60] The Council had previously established Newtons as a name protection company. However, the Council no longer needed Newtons for that purpose. Newtons was a council-controlled organisation and remained so after it was purchased by Delta. Delta did not appear to realise that Newtons was a council-controlled organisation or think about accountability requirements, such as the need to prepare a statement of intent, when it first purchased the company.

    Delta managers and Mr Coburn identified risks to the project at the main decision-making points, and the joint venture subcommittee said that it had considered all of those risks. However, we did not see any real consideration or analysis of the risk of the market slowing or that there might be less demand for sections than estimated.

    The risk assessment was more focused on the financial model and the accuracy of its assumptions, such as development costs, and when Delta could expect to make the profit, not on what might happen if some or all of the lots failed to sell.

    A significant risk to property development is timing, because market changes can delay profits. The estimated time of 27 to 36 months for sales and profit proved to be optimistic. Delta did not appear to consider how long it might need to wait for returns and how this might affect the rest of its operations.

    Delta’s tax advisors had strongly recommended that Delta get expert advice about the financial projections for the development before committing to the joint venture. In our view, it is unfortunate that Delta did not do so. cont/

    Delta proceeded on the basis of Mr Boult’s confidence that consent would be granted. They did this against their original intention and despite Mr Coburn’s comment that he would allocate no value to the unconsented land. This raises the issue of whether Delta paid too much for the land or whether it was just a timing matter, because consent was eventually granted. In our view, the fact that consent had not been given for part of the land was reason for caution, and Delta should not have paid for the value of the unconsented land when entering the joint venture.

    Legal structures and accountability arrangements
    The Fulcrum company and the Luggate joint venture had unusual legal structures. These structures were designed to give Delta a slightly smaller interest than the private sector partner and, therefore, to ensure that neither entity was a council-controlled organisation. However, both entities operated on an equal basis in practice, because neither private sector partner exercised its right to appoint an additional board member.

    The result of the unequal structures was that the entities were not subsidiaries or council-controlled organisations. cont/

    We do not consider that Delta’s use of artificial structures to avoid accountability arrangements is appropriate for a public entity. cont/

    Managing conflicts of interest
    If a director is interested in a transaction, they must disclose that interest to the board of the company and enter it in the company’s interests register. cont/

    We did not get a clear sense of the perceived conflict from those we interviewed, but it appears that Mr Coburn was considered to have a conflict of interest as a previous owner of the Luggate land. Mr Coburn said that another reason might have been that he was a property developer in Central Otago, so he was in the same business as Mr Boult. There might have been a risk that Mr Coburn would have got information about the Luggate development as a Delta director that could have been useful to him in his other property ventures, so it would be preferable if he was not involved in making initial decisions.

    We do not criticise Delta for taking a conservative view on Mr Coburn’s conflict of interest. Managing conflicts requires those closely involved to make judgements based on facts. That said, it was unfortunate that the Delta director who was an experienced property developer could not be actively involved, especially because Mr Coburn raised concerns about the proposal that proved to be valid.

    In our view, the fact that the board member with the most experience could not be involved and the acknowledged lack of expertise in property development by Delta managers was even more reason to get expert advice before committing to the joint venture, as Delta’s tax advisors had recommended.

    Shareholder approval was a formality rather than independent scrutiny
    Delta obtained necessary approvals from its shareholder, the holding company. However, the directors on the holding company’s board who approved the transaction were also directors of Delta at the time of the approval, so this was a formality rather than independent scrutiny.

    No evidence that personal connections influenced the decision
    […] the parties negotiated robustly about the terms of the joint venture agreement, supported by their legal and tax advisors. At several points, Delta would not agree to proposed changes to the agreement. At times, it was ready to withdraw from the agreement. We see this as evidence of a genuine commercial relationship between the parties, with both trying to protect their interests as is typical of business negotiations and arrangements.

  7. ### ODt Online Thu, 20 Mar 2014
    Delta property purchases criticised
    By Chris Morris
    Property purchases that could end up costing Dunedin City Council-owned Delta more than $6 million have been criticised by the Office of the Auditor-General. [DCHL] had to accept some of the blame for failing to provide adequate oversight or scrutiny, while the council had failed to provide governance advice on acceptable levels of risk, Auditor-General Lyn Provost concluded. Delta spent $14.17 million buying the sections at both properties in 2008 and 2009, but expected to lose at least $6.4 million once the last of the sections were sold.
    Read more

    █ The council is to hold a media briefing on the report’s findings late today.

  8. Anonymous

    These directors are hired onto public positions on the reasonable assumption of acting professionally and honestly on behalf the shareholders – ie the Dunedin City ratepayer, including you and me. Now I would have thought a breach of the rules would not be possible and if it did occur, would be an inappropriate action resulting in some sort of serious reprimand, misconduct charge or dismissal. But if I’m understanding the OAG’s position it is okay to be a little naughty and break a few rules as long as they can’t prove fraud? Interesting. So in conclusion, based on the lack of accountability for the ORFU the council will bail us all out in times of hardship and we do not need to pay anything back. Now with the DCHL abuses we can also cross moral and legal boundaries and start using other peoples’ money to invest in non-essential services and prop up our mates’ failing businesses. That is so cool. Hope I’m not reading too much into all this as I can’t wait to start receiving the tens of thousands of directorship fees that these wonder bunnies are making too.

  9. Dear old Channel 39 couldn’t be further from the truth if it tried. Note the headline. Not sure they’ve read the whole report yet. (If you think there was no wrongdoing on the part of Delta then OAG has succeeded with the whitewash — Mayor Cull and his friend/advisor Stuart McLauchlan will be very pleased about that.)

    ### March 20, 2014 – 7:02pm
    Delta cleared of wrongdoing
    Dunedin City Council-owned company Delta has been cleared of wrongdoing despite multimillion-dollar land deal losses. But the company has been rapped over the knuckles by the Office of the Auditor-General for a lack of good business practice, and avoiding public accountability. The report, called for by the DCC, was tabled in Parliament, and Mayor Dave Cull responded late this afternoon.

  10. Russell Garbutt

    Essentially what we have here is a bunch of amateurs getting into a business they knew nothing about aided and abetted by a crowd of self-serving incompetents in governance. What we don’t have is accountability. What we need is a few people like Hudson et al held accountable – but with the record of “going forward” this is unlikely to happen. The only ones to suffer – as normal – are the long-suffering ratepayers. If anyone thinks that anyone else has had to pay for these “expensive errors” then they are mistaken. Remember folks, every million dollars down the gurgler is another 1% on the rates. But that’s OK isn’t it?

  11. Trevor

    It is my guess that none of these arseholes who have caused these losses of millions of dollars of ratepayers money, would run their own business in such a fashion. The question is why were they allowed to run this ratepayer owned business into the ground???? Who has benefited from this $$$$$ ????

  12. Lindsay

    “The annals of local government are strewn with the carcasses of failed speculative ventures.”

    Substitute Stadium/Luggate for Ellerslie

    • Lindsay, thanks for that link.
      A difficult read after the OAG’s literary delights and obfuscation of Delta’s mess, in parallel with all we know of DCC’s failed ‘ventures’, roofed and unroofed, with so very few ratepayers at Dunedin to carry the can for gross negligence mixed with fraud and corruption (these are the other words for DCC’s high-handed gutless ‘entrepreneurship’).

  13. OAG has the tendency to believe what it is told (by individual members of a consortium acting to protect interests that are of those members and further afield than those interests).

    Delta is far from over. Same people involved in stadium property deals such that the likes of John Farry creamed millions and millions of ratepayer dollars far in excess of market value. On top of this, insider trading occurred between two gentlemen one of whom was a director at Delta and DCHL.

    Circles within circles and I’m sure McLauchlan has had the brains to brief Cull on how to keep things tight around OAG’s scope of inquiry.

    Sadly, this is how business is being done in New Zealand over and over. The legislation of local government doesn’t preclude massive fraud that sucks ratepayers dry. And hey, if you wear a nice suit and a new silk tie (and keep Vandervis out) Lyn Provost will do a ‘care-ful’ job.

  14. Delta thwarted proper scrutiny, breached Acts
    The Dunedin City Council must share the blame for multimillion-dollar losses incurred by Delta from its failed property investments at Jacks Point and Luggate, Mayor Dave Cull says.

    Comments by Cull, Bidrose, Crombie and Parton fail to offer apology to the ratepayers whose money has been squandered and lost by the men identified in the legless OAG report. In fact their comments are reprehensible and scandalous.

    “Cr Lee Vandervis – who, separately from Mr Cull, also complained to the Auditor-general about the investments – criticised the report. He said it identified those responsible for the flawed investments, and some of their questionable practices, ”but then fails to deliver the necessary basket of rolled heads”.”

    • Rob Hamlin

      For some time it has been known that terrorist organisations have a specific ‘lifetime’ during which they must either win or perish. Once their activities come to the attention of wealthy governments they are perceived as an inconvenience. Resource and effort are allocated to penetrating the organisation and subverting it.

      Eventually, given enough sustained investments, these efforts backed by enormous resources pay off. Thus the IRA went into active business in 1969 and thirty years later perished as an effective terrorist organisation when it discovered that its long-serving chief of internal security was an MI5 agent (Stakeknife). Al Qaeda is now going the same way as US money and effort begins to tell. We don’t know how the US found Bin Laden. However, it would not be unreasonable to presume that the official version isn’t how it really happened.

      It is now becoming sadly apparent that Government agencies that are seen to be ‘inconvenient’ to major vested interests routinely go the same way. Here is a Guardian article that discusses the routine nature of this process with regard to the previously ‘inconvenient’ (to some very wealthy players) UK Food Standards Authority:

      Does it happen here? I wouldn’t know… However… I have previously furnished specific information to the Auditor General that clearly demonstrated via official public records a serious breach of the Local Government Act in this City. Nothing was done. Martin Legge’s compelling evidence with regard to Pokies went the same way. There was not ‘sufficient evidence’ to prosecute John Banks, but suddenly when someone fronts up with the cash to take the matter private, then suddenly there is, and the previously uninterested Attorney-General scrambles to take the case over. There is sufficient evidence to prosecute and convict the not-terribly-wealthy-or-well-connected-but-definitely-bereaved director of the Easy Rider, but apparently not to even prosecute those associated with Pike River and so it goes on.

      So I am not particularly surprised by this ‘report’. Even though the OAG does say that active efforts were made to ‘thwart oversight’, which is not an activity that is commonly associated with straight misjudgment, and they make the bizarre claim that common membership of the Delta and DCHL boards prevented oversight. I am at a loss to see any basis of logic whatsoever in this second claim.

      Despite this, nothing will be done apparently. The report finishes up by saying that unspecified ‘lessons’ have been learned’ through these events. I’m not even sure on that one. Could they have been learned some time previously, and merely reinforced by these activities and their eventual outcomes?

  15. Trevor

    Page 5 and not one of the arseholes who caused the millions to be lost are named.

    {ODT protection of mates. -Eds}

  16. Received from Lee Vandervis
    Friday, 21 March 2014 9:49 a.m.

    It is interesting to compare what I said to ODT reporter Chris Morris with what got printed today.

    —— Forwarded Message
    From: Lee Vandervis
    Date: Thu, 20 Mar 2014 18:47:20 +1300
    To: Chris Morris [ODT]
    Cc: Nicholas George S Smith [Allied Press Ltd]
    Conversation: OAG inquiry into Jacks Point Luggate
    Subject: OAG inquiry into Jacks Point Luggate

    Hi Chris,

    The deficiencies/questions in the OAG inquiry into Delta’s Jacks Point/Luggate property speculation are running to pages and it will be tomorrow before I can have them detailed.
    In brief, the OAG inquiry notes the millions in public funds lost in the DELTA Jacks Point/Luggate property speculation, but utterly fails to find reasons to prosecute those responsible.
    The OAG identifies the Directors who made the speculation decisions, losing near $8 million, and identifies that they used “artificial business structures to avoid public accountability” but then fails to deliver the necessary basket of rolled heads. Without OAG consequences for those who blew so much public money under such misleading circumstances, future repeat scandals are inevitable.
    My trust in the Office of the Auditor-general was severely shaken by their 2007 whitewash investigation into the operations of Carisbrook Stadium Trust, but I now have no trust in the OAG at all.
    The OAG need to answer many questions including – why did the OAG not communicate with the City Councillor who first publicised the Jacks Point/Luggate speculation issues, made a formal request for an investigation, and publicly claimed to have hundreds of emails and other evidence relating to the failed property investment?

    —— End of Forwarded Message

  17. RNZ’s Otago reporter Ian Telfer provides very good coverage.

    ### Friday 21 March 2014,
    Morning Report with Geoff Robinson & Simon Mercep
    Delta complainants not satisfied with critical report
    08:41 People who made complaints about failed property deals from a Dunedin council subsidiary say it is unacceptable no-one is being held to account.
    Audio | Downloads: Ogg   MP3 ( 3′ 38″ )

  18. Hype O'Thermia

    Errors, procedure, process, move on, DCC (ratepayers) wear it because, well, it’s been done and nobody was 100% proven 100% guilty so nobody gets so much as a ritual slap with a moist bus ticket.
    Exercise for the weekend: compare and contrast with ‘historic boundary encroachment issues’. Photo: Wayne McFarlane shows with a tape measure how far the council believe all the properties behind him encroach onto council land.
    ‘When asked if the council’s policy was one of transferring liability, Mr Visser replied: ”Absolutely”.

    Some matters are too important to simply ignore. Some matters have to be made right, and not by simply, silently, adjusting council lines on their map to reflect reality that has not disadvantaged them over the many, many years they were unaware of it.

    So, dear readers — your task should you accept it is to describe in detail the criteria required, e.g. how much money, how well-connected the individual(s) involved, must be before an issue becomes a “just move on” matter with nobody held accountable. Because I’m buggered if I can perceive sense or justice or common decency or any reason to “move on” from contempt.
    “It’s a transfer of liability not for the benefit of the council, but for the benefit of the current and future occupiers.”‘

  19. The difference is RNZ’s Ian Telfer is a canny and intelligent professional.

  20. Sally

    The last time that the OAG took so long to come up with an answer to a complaint, a clayton’s answer, was when they were asked on two separate occasions to do an investigation into the activities of ex councillor Brown, and their response has been similar in all cases. Interestingly the Brown name appears again in this investigation.

  21. Peter

    Fair comment by Lee Vandervis in his email to ODT reporter, Chris Morris. The impotency of the OAG’s office is now legendary among serious media people and the wider public.
    How is that they can say Delta put up a business structure with the intent to obscure public scrutiny, but they managed conflicts of interest? That doesn’t make sense

    We all know what ‘managed’ means.
    You go out of the room while we have a chat and make a unanimous decision. Then we send a little office girl out to give you the all clear to come back in.
    Handy. Nice one.

  22. Yesterday I was in touch with the OAG regarding errors in the report (I have forewarned there will be more to follow from me). They promptly blamed “the printers”. If that’s the level of idiocy, god help us. OAG is reponsible for all copy check. I’ve been in academic refereed, local government and commercial publishing and production management way too long to not have heard that brittle lie/useless excuse before. OAG are now looking into structural matters I raised but meantime will make correction to the report in reply to my initial ‘qualm’. More later.

  23. Hype O'Thermia

    The dog ate OAG’s corrected version, Elizabeth. They were too kind to blame the poor animal who has been puking ever since. I know how he feels.

  24. ‘Initial qualm’? Elizabeth, you are far too young to be having ‘qualms’. They are for more mature people with much more robust digestive systems. Judith Collins comes to mind.

  25. I’m going to do an open letter to Provost shortly which stands on its own high above any gnawed pages or matted dog hair.

  26. Graeme Jeffery

    I suggest people write directly to the auditor to express their disgust at this sham. No-one at Delta other than senior management, the very ones under investigation, was asked if they had any information. What sort of inquiry was this ? Coburn and Darby have got away with selling their loss-making venture to the ratepayer and making themselves a nice profit to boot and according to Provost this is fine.

  27. Hype O'Thermia

    “They are innocent – they admit it themselves.”
    Our prisons are full of “innocent” people – and I don’t mean the ones who genuinely were victims of miscarriage of justice intentional (AA Thomas, evidence planted by that wonderful late police hero) or otherwise. These people would be non-criminals, would not be taking up expensive court time and space in prisons if the AAO model of investigation were to be more widely used. They would instead of having the stigma of convictions blighting their lives, be at liberty in the community to continue robbing and bashing and defrauding and that couldn’t be wrong, right, Ms Provost?


    Nick Loughnan laments ”monopoly pricing” and the sale of the Central Otago electricity lines network. (see comments about DCC-owned companies Aurora and Delta)

    ### ODT Online Thu, 3 Apr 2014
    City benefits from country cash cow
    By Nick Loughnan
    April 1 has long been a day to expect the unexpected, often in a light-hearted and good-natured way. Yet, April 1 has lately also taken on an added and more unsavoury flavour. It is the anniversary of price increases as seen on our monthly power accounts, and the movement is always upwards. It usually turns our focus against ”power companies” as they send us their bills, and they become the butt of our frustration as we either accept the higher monthly account, or switch energy suppliers to try for a better deal.
    Read more

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s