I just wonder why the meeting proceeded when the matter before the court wasn't resolved? It was only the interlocutory matter which was discontinued. There was always a risk that no matter what the meeting determined, the meeting could be held to be invalid.
Wellington Capital PIF/Octaviar (MFS) PIF
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I just wonder why the meeting proceeded when the matter before the court wasn't resolved? It was only the interlocutory matter which was discontinued. There was always a risk that no matter what the meeting determined, the meeting could be held to be invalid.
Litigation update – Federal Court Proceedings 140 of 2011
The Federal Court Proceedings 140/2011 which was heard before Justice Dowsett on both Wednesday 6 July
and Thursday 7 July this week will continue before his Honour on Monday 11 July 2011.
Wellington Capital is seeking the following orders:
a declaration that the notice of meeting of members of the Premium Income Fund dated 16 May 2011
issued by the first, second and third defendants, is invalid.
a declaration that the defendants contravened s 252G of the Corporations Act;
a declaration that the second and third defendants contravened s 671B of the Corporations Act;
a declaration that the meeting of members of the Premium Income Fund purportedly held on 23 June
2011 was:
inquorate;
dissolved pursuant to clause 10.6 of the Constitution of the Premium Income Fund;
a declaration that any resolution purported to be passed at the meeting of members in the Premium
Income Fund purportedly held on 23 June 2011, including the resolution purporting to adjourn the
meeting to 14 July 2011, is invalid; and
an order restraining the defendants by themselves, their servants or agents or howsoever otherwise, from
proceeding with the meeting of unit holders of the Premium Income Fund as described in the notice of
meeting of the Premium Income Fund dated 16 May 2011.
The Premium Income Fund Action Group Incorporated, Peter Grenadier and Charles Hodges are seeking the
following orders:
the Notice of Meeting dated 16 May 2011 was, and remains, valid and efficacious;
clause 10.3 of the Constitution is invalid;
the meeting of the members of the Fund on 23 June 2011 was:
quorate;
further or alternatively, pursuant to the Constitution of the Fund, quorate for the purposes of the
resolutions passed at that meeting.
Mark Hodges validly chaired of the meeting of the members of the Fund on 23 June 2011;
Mark Hodges remains the chairman at the commencement of the meeting of the members of the Fund
adjourned to 14 July 2011 for the purpose of conducting the election of the chairman; and
a declaration that that upon the true construction of section 253E of the Corporations Act 2001 (Cth), the
Plaintiff and its associates are not entitled to vote on any of resolutions 1 to 4 at the meeting of the
members of the Fund adjourned to 14 July 2011.
A further update will be provided on Monday 11 July 2011 once the hearing before Justice Dowsett is
finalised.
http://www.nsxa.com.au/ftp/news/021724199.PDF
The Federal Court Proceedings 140/2011 which was heard before Justice Dowsett on both Wednesday 6 July
and Thursday 7 July this week will continue before his Honour on Monday 11 July 2011.
Wellington Capital is seeking the following orders:
a declaration that the notice of meeting of members of the Premium Income Fund dated 16 May 2011
issued by the first, second and third defendants, is invalid.
a declaration that the defendants contravened s 252G of the Corporations Act;
a declaration that the second and third defendants contravened s 671B of the Corporations Act;
a declaration that the meeting of members of the Premium Income Fund purportedly held on 23 June
2011 was:
inquorate;
dissolved pursuant to clause 10.6 of the Constitution of the Premium Income Fund;
a declaration that any resolution purported to be passed at the meeting of members in the Premium
Income Fund purportedly held on 23 June 2011, including the resolution purporting to adjourn the
meeting to 14 July 2011, is invalid; and
an order restraining the defendants by themselves, their servants or agents or howsoever otherwise, from
proceeding with the meeting of unit holders of the Premium Income Fund as described in the notice of
meeting of the Premium Income Fund dated 16 May 2011.
The Premium Income Fund Action Group Incorporated, Peter Grenadier and Charles Hodges are seeking the
following orders:
the Notice of Meeting dated 16 May 2011 was, and remains, valid and efficacious;
clause 10.3 of the Constitution is invalid;
the meeting of the members of the Fund on 23 June 2011 was:
quorate;
further or alternatively, pursuant to the Constitution of the Fund, quorate for the purposes of the
resolutions passed at that meeting.
Mark Hodges validly chaired of the meeting of the members of the Fund on 23 June 2011;
Mark Hodges remains the chairman at the commencement of the meeting of the members of the Fund
adjourned to 14 July 2011 for the purpose of conducting the election of the chairman; and
a declaration that that upon the true construction of section 253E of the Corporations Act 2001 (Cth), the
Plaintiff and its associates are not entitled to vote on any of resolutions 1 to 4 at the meeting of the
members of the Fund adjourned to 14 July 2011.
A further update will be provided on Monday 11 July 2011 once the hearing before Justice Dowsett is
finalised.
http://www.nsxa.com.au/ftp/news/021724199.PDF
Seems like there is another NSX stuffup. The 5 PIN announcements appear to be all the same even though listed under different headings
PINA Premium Income Fund 24MTH Units
PIND Premium Income Fund 6MTH Units
PIN Premium Income Fund
PINC Premium Income Fund 9MTH Units
PINB Premium Income Fund 12MTH Units
PINA Premium Income Fund 24MTH Units
PIND Premium Income Fund 6MTH Units
PIN Premium Income Fund
PINC Premium Income Fund 9MTH Units
PINB Premium Income Fund 12MTH Units
Seems like there is another NSX stuffup. The 5 PIN announcements appear to be all the same even though listed under different headings
PINA Premium Income Fund 24MTH Units
PIND Premium Income Fund 6MTH Units
PIN Premium Income Fund
PINC Premium Income Fund 9MTH Units
PINB Premium Income Fund 12MTH Units
Maybe someone's hand was shaking when they uploaded them!
That was just exactly what JH expected us to do. That we would not attend the meeting and she would have had success with her rented crowd and her manipulated proxies.
Your onto it Harald!! I imagine it was also WC intention that by trying to get the meeting adjourned through the court it would influence unitholders to cancel their travel arrangements, give WC time to get the rent a crowd papers in order by the 21st(even without their permission) then change their mind and let the meeting go ahead, chortling through their snouts at the thought of parading enough people through the door waving pink slips to outnumber the reduced pro numbers due to WC's campaign to destabilise the whole show!! No wonder JH looked so ill when the ruse was exposed and the meeting was adjourned anyway knowing that if WC did not get control then we would be back in court regardless. Too bad for WC that not everyone can be profiled, controled or categorised whether on the WC payroll or not and some can actually think for themselves, maybe some even more smarter than others????
Seamisty
Only one release there now!
The last one is just a statement of the bleeding obvious
http://www.nsxa.com.au/ftp/news/021724199.PDF
The link seems to be working now.
I'd like to point out the quote you made was from my post prior to it being edited. I had misunderstood what a friend had told me as meaning the judge had held the registry to be inadequate, rather than the judge merely making comment in that regard. As soon as I saw the following posting by Seamisty I realised my error and corrected it.
Still that doesn't change my intended meaning as to completing the legal claim before proceeding with the meeting. I'm not a W.C. support by any stretch of the imagination, but I wonder just who would look the sillier if you'd proceeded to a meeting, won the day, and then had the whole thing squashed by a court finding of a breach of the Corporations Act by those calling the meeting?
W.C. is only pursuing what it regards as it's legal right to do. What I can't understand is how the judge let the main issue proceed even though it was clear that the meeting was being held the very next day, with a trial testing the validity of that very meeting to held some time after the meeting itself?
I think W.C.'s motives were overt, and to some extent, it seems smart of W.C. to withdraw the interlocutory claim in the circumstances. It seems to me that the any potential damage caused to the folk calling the meeting would be greater if they tasted success at the meeting but were squshed at a later date by the court. (IMO)
The judge in Qld wasn't so sympathetic so it does all need to get sorted out in the courts nearly to the point where the EGM is just a formality I think. I tried booking last minute for the june 23 meeting and couldn't get a flight that got me into Sydney earlier enough unless I paid full fare or business class. Now with Tiger out of the way I would think it would be more of a gamble???
WC/JH will resort to any number of tactics which has been proven. If it's all done in the courts the tactics will be minimized and actions will have to be taken one way or the other. Other than voting a chairman in on the day there is nothing we as unit holders can really do based on all the going on's presently in all the courts in various states.
I certainly agree that if the majority of unit holders are in NSW than Sydney should be the preferred location. The only point I'm making is that there are a number of issues before the courts which really need to get ironed out. PIFAG only really need us on site when a chairman has to be elected. Everything else can be done by proxies. Based on continued postponments it is difficult for people to arrange there schedules etc. Actually aren't you yourself in WA? On june 23 I couldn't get out of Melbourne on time and the ash cloud didn't make things any easier. Let's get it all sorted out in the courts. It should keep all parties somewhat on the path . In my opinion. There is no perfect solution in all this however the courts can act as a third party. I can see all of us showing up to another meeting and there will be some reason why it cannot be fully concluded. JH/WC does another act or something. This action albeit wrong just dilutes the unit holders faith somewhat in getting it all ironed out for Castlereagh. A little like the boy who cried wolf. I'm not saying any of us in our minds are weakening however when it actaully comes to paying for the flights/hotels/trains/travel/time off work etc etc people always seem to weaken a little. Some because they simply can't afford it, some because it's too difficult.
Food for thought.
PS I'm off overseas now so can't make it on July 14th so I'm hoping it does get postponed but hopefully further into the future where a majority of issues have been heard and judgements issued.
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My lay enquiry based solely on that limited article. In three parts:
"Justice Dowsett did not accept that argument, noting it was clear the group had the onus to inform all investors."You can't get these things accidentally," he said.
Mr Dunning said the Corporations Act did not specify who had to provide the notice and only about 3.5 per cent of the investors were affected.
He said that number would not have made any difference to the vote outcome.
Justice Dowsett was unmoved.
"It's not hard to get it right, you know," he said.
"It's quite clear what's intended. Everybody knows what a notice of meeting is.""
Well it seems to be official then. I just don't get corporate law in Australia.
It seems impossible to give notice 21 or 28 days before the meeting (Corp Act S2459H or S249HA respectively) AND for this “written notice of a meeting of a company’s members … be given individually to each member entitled to vote at the meeting” (Corp Act S249J). How can one call a meeting in compliance with S2459H and S249HA if the register can still be updated on the day of the meeting? How is it feasible that a diligent PIFAG can comply with the legislation?
OK, so say the registry can be closed off at, say, a week before the notice of meeting is taken by Dave in Dispatch down the road for Australia Post to do their magic. If the letters were handed to Aussie Post on 16 May then a diligent and efficient Armstrong Registry Services combined with an efficient PIFAG would need to close the register at the latest on, let's say, 9 May. How many of those (new or amended) "370 investors" (that may or may not have got the notice of meeting) were added to or amended in the register after May 9? They're still unit holders on the day of the meeting, but they won't get individual notification 21 or 28 days before.
How is it actually possible in practice to make sure that the prescribed notice is given individually to "all investors" when the register can be closed off just before a meeting?
Does the Corporations Act in practice allow that some small % of members entitled to vote will not be given (individually) notice of the meeting? So what would that % be? Some ASX listed companies turn over a huge % of stock every day. More than PIF has in 2 years.
[FONT="]Alternatively, the Court can find guidance in PIF’s very own PIF Constitution (Section 9.4): "The non-receipt of a notice of any general meeting by, or the accidental omission to give notice to, any person entitled to notice does not invalidate any resolution passed at that meeting." (Combine this with Section 11.1 "All the provisions of these rules as to general meetings apply to any special meeting of any class of Unit Holders which may be held pursuant to the operation of these rules or the Law.")
These clauses make it very clear to potential investors that resolutions may be passed without them being notified of the meeting. If potential investors are not satisfied with the risk of this occurring then they had the choice to not invest. They were pre warned. S249J 3 (d) of the Corporations Act even says “A company may give the notice of meeting to a member by any other means that the company’s constitution (if any) permits. Well, there it is in S9.4 of the Constitution isn't it? I.e. the ‘other means’ being a process that might accidentally omit you.
Back to the %. How many of the 370 was made up of the approx 200 actors gifted their shares in the day or so prior to the time of the meeting?
Continued ...
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part 2.
But more significantly, where's the evidence to show that few of that "370 investors" have a separate unit holding that predate February 2011? Does anyone recall JH or WC saying that many holders have taken the opportunity of a low NSX price to increase their holdings (dollar cost averaging). Given that none of the pre Oct 2008 unit holdings were acquired through the NSX they would have been allocated an issuer sponsored SRN right? Now when you sign up to a broker (can't buy on the NSX without one) they'll likely open a CHESS account for you which means any units they buy for you will be allocated a HIN right? So the amalgamation of holdings by such an investor in PIF (topping up) requires a proactive step. Right? Wouldn’t this greatly increase the probability that many of the “370 investors” may have been notified through a separate holding?
Furthermore, of the requests to amend the holders address were made to bring consistency between holdings?
How much can we knock that 370 number down?
Sections 249H and 249HA say "at least XX days notice must be given of a meeting of company's members". (I'm not sure if this is the relevant law). I can't see anything in there about where the onus lies to make sure "all investors" receive the notice. Clearly, formally serving the notice on every single member is not anticipated. At the other end of the scale there are very many laws in Australia that put the onus on members (of communities) to read the paper. I.e. the law is satisfied that applicants for proposals that impact on members of a community merely need to put a notice in the community newspaper. What PIFAG achieved was a far far far more individual notification procedure than this latter scenario.
I agree that “You can’t get these things accidentally”. But didn’t WC post a notice on 20 May under PIN on the NSX about the Meeting? Given that the original letter was dated 16 May, some of the “370 investors” very likely in practice were actually individually notified of the Meeting BEFORE the other long term investors got their letters. Why? Because the NSX offers a FREE electronic notification service through a Widget. (Wouldn’t signing up to this services satisfy the requirements of S249J (3) (ca) If so, then has Armstrong told us of this or all these different options? http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s249j.html) Receiving WC’s notice of the meeting by a minded investor in today's digital world is far less ‘accidental’ than catching a notice of meeting in a newspaper.
[FONT="]How much onus should there be on an investor to check e.g. the online NSX announcements? Or join a forum like this. Or subscribe to a digital notification service? How much onus is there on an investor to monitor their investments? How much onus is there on an investor to familiarise themselves with the communication options under S249J of the Corp Act. Well the High Court in Octaviar put a substantial onus back on us PIF investors (despite disclosures by OCV that the Castle loan was NOT secured) in para 32 “Thus a person minded to search the register would be informed, by virtue of the definition of Secured Money and the existence of cl 1.2 of the Charge, of the need to look elsewhere to ascertain the precise nature and details of the liability or liabilities secured.” So in my words the High Court said to PIF investors (creditors to Octaviar) something along the lines of: it’s your money and ASIC has set up a register for you to monitor (.e. just like the NSX announcements page for PIF) and it's your responsibility to monitor that register for the company you lent to AND then it’s up to you to go and do your own research in spite of that company’s assurances. That’s quite an onus. I can’t see how this could be contrasted more with the scenario that we are facing whereby a Special Meeting can be thwarted because every single member is entitled to sit back and have a notice of meeting mailed to him/her; even if the legislation that gives this entitlement is conflicted.
continued ...
[/FONT]
But more significantly, where's the evidence to show that few of that "370 investors" have a separate unit holding that predate February 2011? Does anyone recall JH or WC saying that many holders have taken the opportunity of a low NSX price to increase their holdings (dollar cost averaging). Given that none of the pre Oct 2008 unit holdings were acquired through the NSX they would have been allocated an issuer sponsored SRN right? Now when you sign up to a broker (can't buy on the NSX without one) they'll likely open a CHESS account for you which means any units they buy for you will be allocated a HIN right? So the amalgamation of holdings by such an investor in PIF (topping up) requires a proactive step. Right? Wouldn’t this greatly increase the probability that many of the “370 investors” may have been notified through a separate holding?
Furthermore, of the requests to amend the holders address were made to bring consistency between holdings?
How much can we knock that 370 number down?
Sections 249H and 249HA say "at least XX days notice must be given of a meeting of company's members". (I'm not sure if this is the relevant law). I can't see anything in there about where the onus lies to make sure "all investors" receive the notice. Clearly, formally serving the notice on every single member is not anticipated. At the other end of the scale there are very many laws in Australia that put the onus on members (of communities) to read the paper. I.e. the law is satisfied that applicants for proposals that impact on members of a community merely need to put a notice in the community newspaper. What PIFAG achieved was a far far far more individual notification procedure than this latter scenario.
I agree that “You can’t get these things accidentally”. But didn’t WC post a notice on 20 May under PIN on the NSX about the Meeting? Given that the original letter was dated 16 May, some of the “370 investors” very likely in practice were actually individually notified of the Meeting BEFORE the other long term investors got their letters. Why? Because the NSX offers a FREE electronic notification service through a Widget. (Wouldn’t signing up to this services satisfy the requirements of S249J (3) (ca) If so, then has Armstrong told us of this or all these different options? http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s249j.html) Receiving WC’s notice of the meeting by a minded investor in today's digital world is far less ‘accidental’ than catching a notice of meeting in a newspaper.
[FONT="]How much onus should there be on an investor to check e.g. the online NSX announcements? Or join a forum like this. Or subscribe to a digital notification service? How much onus is there on an investor to monitor their investments? How much onus is there on an investor to familiarise themselves with the communication options under S249J of the Corp Act. Well the High Court in Octaviar put a substantial onus back on us PIF investors (despite disclosures by OCV that the Castle loan was NOT secured) in para 32 “Thus a person minded to search the register would be informed, by virtue of the definition of Secured Money and the existence of cl 1.2 of the Charge, of the need to look elsewhere to ascertain the precise nature and details of the liability or liabilities secured.” So in my words the High Court said to PIF investors (creditors to Octaviar) something along the lines of: it’s your money and ASIC has set up a register for you to monitor (.e. just like the NSX announcements page for PIF) and it's your responsibility to monitor that register for the company you lent to AND then it’s up to you to go and do your own research in spite of that company’s assurances. That’s quite an onus. I can’t see how this could be contrasted more with the scenario that we are facing whereby a Special Meeting can be thwarted because every single member is entitled to sit back and have a notice of meeting mailed to him/her; even if the legislation that gives this entitlement is conflicted.
continued ...
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part 3
So the register PIFAG used may have been 3 months old? Where is the evidence that the register Armstrong maintains is always up to date? Who knows? How many other clients does Armstrong have? What's Armstrong's track record? Where’s the evidence that Armstrong doesn’t update the register once a month. If so, then a copy of the register requested by PIFAG say at the end of April may omit share/unit holders that acquired their rights or amended their addresses at the start of that month. An accurate register relies entirely on the integrity and efficiency of the registry service. And PIFAG has notified the court of the potential for conflict of interest between WC and Armstrong. Right? Furthermore, how long has Armstrong taken to respond to requests for copies of the register? If it’s 2 months then the copy of the register PIFAG used was not so out of date at all?
There seems to lay old me that there are plenty of unique facts around PIF that would make a decision in PIFAG's favour easily distinguishable in future.
So the register PIFAG used may have been 3 months old? Where is the evidence that the register Armstrong maintains is always up to date? Who knows? How many other clients does Armstrong have? What's Armstrong's track record? Where’s the evidence that Armstrong doesn’t update the register once a month. If so, then a copy of the register requested by PIFAG say at the end of April may omit share/unit holders that acquired their rights or amended their addresses at the start of that month. An accurate register relies entirely on the integrity and efficiency of the registry service. And PIFAG has notified the court of the potential for conflict of interest between WC and Armstrong. Right? Furthermore, how long has Armstrong taken to respond to requests for copies of the register? If it’s 2 months then the copy of the register PIFAG used was not so out of date at all?
There seems to lay old me that there are plenty of unique facts around PIF that would make a decision in PIFAG's favour easily distinguishable in future.
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I entirely accept what you say. I was going by the numbers reported on this forum. Lets hope that the courts decide on the chairman and perhaps the final outcome.
Duped in view of the fact that there were entries on the Armstrong Register dated the 21st of June 2011 of unit holders who did not even exist on that day I think WC are going to have a hard time explaining to the court the legitimacy/accuracy of the register whilst under the control of WC/Armstrong at any given time. I would imagine that the alleged illegal entries would be seen as a criminal offence under some bloody rule/corporations act somewhere? Seamisty
Now maybe , just maybe, this could account for the bruising.
Nothing to do with a 'rugby like tackle' at all!
http://www.couriermail.com.au/enter...-through-mossman/story-e6frep26-1226090461076
Nothing to do with a 'rugby like tackle' at all!
http://www.couriermail.com.au/enter...-through-mossman/story-e6frep26-1226090461076
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My analysis of emails received from both Armstrong and WC leads me to the conclusion that Armstrong is manned by WC.
The fact that Armstrong registry is manned by WC surely would knock out any pretence of independence?
The fact that Armstrong registry is manned by WC surely would knock out any pretence of independence?
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I'm still digging. Doh! Rules for PIF meetings (Managed Investment Schemes) may be under Part 2G.4 and not 2G.2. So the sections I quoted below may be incorrect. But there sems to be equivalant rules for an MIS. http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/
But WOW!
Calling of Meetings of Members by Members S252D(2) "The meeting must be called in the same way--so far as is possible--in which meetings of the scheme's members may be called by the responsible entity. "
"SO FAR AS POSSIBLE"
How vague is that?
"S252D(3) The percentage of the votes carried by interests that members hold is to be worked out as at the midnight before the meeting is called."
So some of what I queried earlier is moot. But not completely because whoever organised the hired actors clearly believes that individuals who become members after this cutoff time have the right to vote? I.e. 48 hours before the meeting. If so, then how would they be individually notified in the manner prescribed by part 2G.4.
E.g. "S252F At least 21 days notice must be given of a meeting of the members of a registered scheme."
Hmmm nothing in that sentence limiting the "the members" to members "to be worked out as at the midnight before the meeting is called"
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Thank you Duped for going to so much detail. There sure is a lot of common sense in what you say. We knew it wouldn't be easy & it might take some time & doing, to get the meeting details right according to the letter of the law, but I am still completely confident it will be done. The letter of the law also applies to all they have done so let's see some judgments on that.
I am buoyed by the fact that not ONE investor out of 11,000 turned up to Sydney to argue, support & vote that JH & WC keep running the fund. Not ONE! So no opposition to our group. (Not a small break-away faction!)
The wheels of justice turn slowly. This case from 2008 has just had a favourable conclusion for duped investors over the ditch and that is inspiration as well. The facts don't lie. We'll get our turn.
http://home.nzcity.co.nz/news/article.aspx?id=133283&fm=psp,nwl
I am buoyed by the fact that not ONE investor out of 11,000 turned up to Sydney to argue, support & vote that JH & WC keep running the fund. Not ONE! So no opposition to our group. (Not a small break-away faction!)
The wheels of justice turn slowly. This case from 2008 has just had a favourable conclusion for duped investors over the ditch and that is inspiration as well. The facts don't lie. We'll get our turn.
http://home.nzcity.co.nz/news/article.aspx?id=133283&fm=psp,nwl
