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BCS - BrisConnections Unit Trusts

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JAB_Charity said:
We operate solely for charitable purposes -- including the relief of poverty,


...

but it is the sole charitable purpose of the trust to which we are committed.


http://www.barrow.org.au
Click to expand...

Call me naive, but taking on millions of dollars of potential liability doesn't to me seem consistent with what a charity should be doing. If you are lucky it may go well, if you are unlucky it might not. I would have thought that a charity is bound to not take unnecessary risks. Do you have a charter/constitution ?
 

Indeed.
As a mere observer of the BCS saga I too am staggered that a charity and it's trustees would take on the risks involved in this situation. I would imagine that there is a lot more to the story than what is currently being told.
 
Redgum gave a link to the ASI Vs Brisconnections judgement. I found these paragraphs interesting. They seem to be in conflict with earlier correspondence sent by brisconnections to unit holders.

http://www.austlii.edu.au/au/cases/vic/VSC/2009/128.html


"224 Turning to the facts of this case, is there a present obligation on
ASI to pay an instalment which may become payable on the happening of
some future event? The obligation to pay an instalment is only imposed
on those unit holders identified as being registered on 29 April 2009.
No obligation arises out of being a unit holder as such. The obligation
only arises if the person is a unit holder on a certain day. Being a
unit holder does not by itself give rise to any contingent liability to
pay any instalment. The liability is not sourced from the fact that some
months earlier before the instalment date the person held units. The
liability is solely sourced from the person being a unit holder on the
instalment day.

234 As to the suggestion that ASI has engaged in some sort of improper
scheme by having units transferred to it by a deed of gift, I do not
accept that submission. I see nothing improper in a unit holder
transferring its units as alleged. The project imposes liability on
persons who are unit holders on a certain date. On the basis of the
submissions before me, I find there is no impropriety per se involved in
a person taking steps to ensure that he, she or it is not a unit holder
on the instalment date. It appears that a great many unit holders
disposed of their units in October and November of 2008. It may have
been the case that they did so to avoid the payment of the instalments.
In any event, it is not necessary for me to make any findings about
those matters.

238 I do not accept the suggestion that the transactions and the put
option are analogous to s 172 of the Property Law Act 1958 (Victoria).
BMC invokes the common law principles that underlie s 172 of the
Property Law Act 1958. BMC alleges that ASI is seeking to divest itself
of potential liabilities to avoid meeting them and by a means that
ensures that the liabilities will not be met. I do not see any
unconscionable or impropriety in such conduct. If it is the case, as it
is suggested, that the units will not be valued in the market for an
amount equal to or more than the second instalment on and after 29 April
2009 when the second instalment will be paid by the unit holders or the
underwriters, then it is in the commercial interest of a current unit
holder to avoid by legal means, if it can, becoming liable to pay the
instalment.

239 The BrisConnections Project relies on many parties making rational
commercial decisions in their own interests to make a profit. It does
not rely on any person undertaking any publicly spirited actions of
charity. The project is a commercial venture. It may not be in the
commercial interests of current unit holders to remain unit holders on
29 April 2009, I do not see anything improper in unit holders taking
legal steps to ensure they are not registered unit holders on 29 April
2009.

240 BMC relies on principles of equity, which themselves rely on
unconscionability. Why is it unconscionable for a unit holder, whose
investment in the project is currently valueless, takings steps to avoid
wasting more money on the project, if that be the case? Perhaps it might
be said that others have relied on the current unit holder paying the
instalments and have altered their position to their advantage on such
reliance. None of the existing unit holders have represented, however,
that they will remain unit holders on 29 April 2009 or that they will
ensure the second payment is made. The other contracting parties in the
BrisConnections Project took the risk that the project may not be
successful, if that be the case, and that existing unit holders may seek
to cease being unit holders on 29 April 2009. The evidence establishes
that institutions who held substantial numbers of units in the unit
trusts disposed of these units some time ago and that the current unit
holders include many who were not aware of the liability attached to the
units when they acquired them. On the limited submissions that were
made, I do not find any matter in s 172 of the Property Law Act 1958
that is relevant to the just and equitable claim."
 
Bumped my flight to 11am. This dispatch on the fly from Virgin Lounge [not a lot of virgins here from what I can see -- s.52 TPA misleadings and deceptive?]

Seriously, thanks for response -- this helps us provide more information on our position in relation to BrisConnections.


A fair question.

The Julie Anne Barrow Charitable Trust is a discretionary investment trust, approved on 30 June 2008 by the Australian Taxation Office (ATO) as a Prescribed Private Fund (PPF) and registered as a Deductible Gift Recipient (DGR), entitled to receive income tax deductible gifts from donors in the form of cash and transfers of shares, which are then invested and managed for solely charitable purposes.

The Charitable Fund is governed by a Trust Deed with wide powers to invest fo solely charitable purposes, including gearing strategies. This is markedly different from the Trustees of a Superannuation Fund, which are regulated by APRA (and by the ATO for Self-Managed Superannuation Funds), where borrowing for instance is broadly prohibited -- including investment in instalment warrants that are with recourse to the investor (so excluding Telstra non-recourse instalments). It would be difficult for a superannuation fund to include BCSCA instalments within a super portfolio, without well-documenting the investment strategy and as part of a risk management strategy documentation. There is no such probation for our charitable trust

David C. Barrow, Trustee, The Julie Anne Barrow Charitable Trust

http://www.Barrow.ORG.AU
 

Insofar as being "charitable", I agree with the judge, that it's not improper to divest yourself of the liability legally. I'm not quite so convinced that divesting yourself of the liability when you fully well know it will not be paid, however is "proper". Let's work the argument from the other way around:

Has the judge considered whether is it "improper", to acquire those liabilities, for your benefit (i.e, take payment to accept the liabilities as a "gift"), with no intention of meeting those liabilities? If yes, has a crime been committed?

If yes to both questions above, and the first party, seeking to divest themselves of the liability in the full knowledge that a crime is to be committed, assists the criminal in their venture, is this then, either illegal or at least "improper"?

Most stores will not sell spray cans or knives to anyone under 18, because there is "reasonable cause" to believe that a crime will be committed by those customers. Not evidence, reasonable cause. Where does that leave someone who wants to pay for a liability to be removed from them, to someone who is intending to send the liability "to the bottom of Phillip Bay"?
 

Surely you accept that the judge has far greater knowledge AND understanding of corporate law than most people. After all, it is a highly educated career and it appears he was not swayed by those in positions of power. As it was explained in the court judgment (excerpt below):

'224 Turning to the facts of this case, is there a present obligation on ASI to pay an instalment which may become payable on the happening of some future event? The obligation to pay an instalment is only imposed on those unit holders identified as being registered on 29 April 2009. No obligation arises out of being a unit holder as such. The obligation only arises if the person is a unit holder on a certain day.'

If yes to both questions above, and the first party, seeking to divest themselves of the liability in the full knowledge that a crime is to be committed, assists the criminal in their venture, is this then, either illegal or at least "improper"?
Click to expand...

Of the offers to purchase or be gifted these units, can you state which one is fully intending to commit a crime?

With such a low unit price, it opens the way for takeovers for all sorts of different reasons. I don't understand this to be criminal intent.
eg. Bolton wants to wind up the company. The judge did not see this as a crime. Jim wants to re-structure the company. JAB charity seem have a business plan by the posts here. All three of these have stated openly that they know about the upcoming liabilities and give the impression that they know what they are doing.

Surely, the less the seller knows, the more of an "arms length" the transaction becomes. I would have thought they only need to know that someone else wants the units for their own business purposes.

Anyway, you have never answered my question, Sunder:
Do you have any financial interest in this whole situation other than owning shares or units?

Your posts appear designed to frighten holders from disposing of their units and yet the judge sees nothing wrong in it.
 
Sunder,

Your spray cans example is just as relevant to the institutions dumping their shares on the retail investors in the first place.


The judge is basically saying that you are wrong, there is no obligation to find out if the person you pass the units to, by any legal means (ie the other party agrees to take them), is financially sound. Because there is no obligation on them unless they own the units on the 29th April.

This reads to me that gifting the units to the 102 year old dying relative who has no assets and lives on the pension is fine if they agree.

brty
 

Good luck David, I hope you make millions of dollars which you then use for charitable purposes, legalised robin hood. take from the rich, give to the poor.

I wish you the best. I hope you know what you're doing.
 
David from JAB

In your Investment Strategy you list

" .....the relief of poverty, the relief of the needs of the aged, the relief of sickness or distress,....."

If you are successful in releasing some of these poor buggers from this mess then you've certainly fulfilled those "charitable purposes".

If you can further turn a dollar with these shares and help more people then that's got to be a win win (and hopefully a painful and expensive strike against the perpetrators of this mess).

Good luck to you

Disc. Don't hold....observor only
 
The key paragraph of the judgement is 224, where Judge Robson states that the securities are not a liability per se, but impart a liability to the registered holder of the security at a particular point in time. This is in conflict with information given by Brisconnections to its unit holders. This raises the question of whether unit holders would have acted differently without this information, whether unit holders now have enough time to execute such action, and what pain and suffering the information has brought to unit holders by believing, on the basis of the information provided by Brisconnections, that to dispose of their units may constitute a criminal action? It also raises the question of whether Brisconnections has an obligation under the continuous disclosure provisions of the corporations act to correct this information, or at least to inform unit holders that information given by them to shareholders contradicts a Victorian Supreme Court Judgement?

The judgement was delivered on the 6th of April. With time so critical for unit holders who may still wish to dispose of their securities, I would have thought that Brisconnections would be obliged to respond to the judgement promptly.
 
David,

A few additional questions have come to mind regarding your charity's aqusition of BCSCA units.

Firstly, For how many units have you receiced transfer notices and of those how many have actually been transferred into the charity ?

Secondly, What is the maximum number of units the charity will be accepting from unitholders ?

Also, Will you be voting on behalf of all unitholders who have sent transfer notices or only those units that have been formally transferred into the charity ?
 
"Anyway, you have never answered my question, Sunder:
Do you have any financial interest in this whole situation other than owning shares or units?"

Given Sunder's repeated advice for people to behave lawfully, I doubt that there is any intention to expose himself to claims of unlawfulness.

To the best of my knowledge, in this thread, the view that the liability is intrinsic to the security was first suggested by cuttlefish (650),

"Although it becomes payable on that date and remains with whoever held at the record date, thinking about it more, I suspect from a legal/accounting perspective that rather than the liability being 'created' on the record date, the legal liability exists already and is attached to the security and transferred with it up to that date. It is effectively detached from the security after the record date (and remains with the registered holder of the securities on the record date)."

then seconded by lesm (652):

"Correct, the liability remains with the party who was the registered holder on the relevant date. After this date, if the shares are sold, the liability will not be transferred."

Others posters in the thread have implied the belief, and unfortunately, these views, while perhaps well intentioned, may have caused considerable anxiety and stress to unit holders, and may yet cause some a financial loss. But according to Judge Robson, the liability is extrinsic to the security, being incurred on the registered holder at a particular time. So the transfer of a security cannot be considered a transfer of a liability, which would seem to be the basis of any fraud committed.

I'm also a little perplexed by the vehement opinion that paying someone with no assets to accept a transfer of securities is unethical. Such a person might consider it to his financial advantage to accept such a transfer, knowing that he would be little troubled by creditors. With both parties of the transaction believing that they have benefited, surely this is a good outcome? With the suggestion that after the SIRD, the share price could drop to 30 cents, I would think that such an option might be commercially attractive to many. The downside is that the underwriters might acquire the project.

So it comes down to an assessment of value by comparing the costs and revenue projections with other toll road projects. Tigerboi seems to have done this (873&875), and hardly seems enthusiastic. Would anyone like to offer a more favourable comparison?
 
Many thanks to the whole cavalcade of posters yesterday in support and challenge of The Julie Anne Barrow Charitable Trust.


Yes -- that's as we see the world and as clearly confirmed by Justice Robson.


brty said:
...there is no obligation to find out if the person you pass the units to, by any legal means (ie the other party agrees to take them), is financially sound. Because there is no obligation on them unless they own the units on the 29th April.
Click to expand...

Again -- as we see the world. Appreciate the post.



Thanks. Welcome the challenge, Sunder, and chance to clarify.

We can't speak for other buyers like Nicholas Bolton at ASI or Jim Byrnes at Brisbane Toll Road Link Pty Ltd Holdings -- who as you can imagine we have been in contact with -- but our charitable trust is not in the market with any view to defaulting on any BrisConnections liability arising on 29 April 2009 should we be a holder at that point in time.

Refreshing our previous post: Complex dynamics are at play with BCSCA. The $1 calls can potentially be met by a market re-evaluation of unit fundamentals (driven by the unique, scarce, highly valuable asset: the long-term 45 year toll road concession), the charity's cash position and capacity to raise further donations before the 29 April final call -- and we may also trade out -- not in the current market perhaps but the situation can change dramatically between now and 22 April. There are also ways of transferring ownership between 22 April and 7 May when the BCSCB instalments make their debut.

So many variables. Consider just some of the following:

* 9am 14 April Supreme Court of QLD decision [yes/no]

* resurrected Macquarie-led offer [yes/no]

* 14 April gen meeting [7 resolutions yes/no; say 3 ways skinning each of these; includes deferral of 29 April Call as possibility]

* QLD Govt steps in with holder security [yes/no]

* Recapitalisation options [say 3 ways]

* Restructure options [say 3 ways; $2.9m syndicate varies terms?; morph instalments into a highly-tax-effective product with accelerated write-off?; other?]

* Takeover bid [say 3 ways this could play]

= 2 x 2 x 7 x 3 x 2 x 3 x 3 x 3

= 4,536 combinations


dogby said:
Good luck David, I hope you make millions of dollars which you then use for charitable purposes, legalised robin hood. take from the rich, give to the poor.

I wish you the best. I hope you know what you're doing.
Click to expand...


Thanks dogby. Appreciate the support.




Thanks for post Greenspan.

Indirect benefits to unitholders who would like to minimise their exposure to the possible 29 April 2009 $1 call -- these indirect benefits being what some economists call a 'positive externality'. Well, we would be pleased if that were the case as we go about our solely charitable purpose in relation to the BrisConnections units.


Thanks all for support. +post from yttrium -- just in as I send this update.

I am now in Brisbane -- staying Taringa near Brisbane CBD. Happy to meet up in person with more BCSCA unitholders before 10am 14 April BrisConnections meeting.

And can be contacted on my Mbl: 0448 778 737


David C. Barrow, Trustee, The Julie Anne Barrow Charitable Trust

http://www.barrow.org.au/
 

These are the laser-in questions drsmith.

Thankyou for posting them.

As far as the 10am 14 April meeting is concerned: BCSCA transfers were required to be registered with the Link share registry service by close of business THU 9 April and Proxies were required to be faxed to BrisConnections or Link by 10am SUN 12 April.

So we are not of course now talking to new prospective BCSCA sellers about 14 April voting matters. All those instructions are set and I'm sorry that we will only be able to make them known through our actions at the meeting.

There will be a lot of press there -- and updates will stream pretty fast I'm sure -- as the aggregate votes become known.

14 April meeting, if it goes ahead at all following 9am Supreme Court of QLD ruling to be handed down by Justice Dutney -- well, if the meeting gets under way we are all facing extraordinary circumstances with highstakes for all.

So as everyone already can see it will not be a simple casting of votes like a general AGM where the financial accounts are adopted and there might be a symbolic protest vote over the remuneration committee's bonus package for the directers. And then off for a scone and a chat with management.

The stakes are so high that there will be Federal Politics type scrutiny of each and every proxy form and vote by teams of lawyers for all parties. Not wanting to be too facetious, but think 2004 US Predential Election -- crucial State of Florida.

What we expect is that the meeting will run at least all day 14 April as much of the time will be spent with lawyers scrutinising the proxies and challenging the authority to act of attendees.

+Meeting could well then be adjourned with unfinished business.

And this might even be a good idea to give stakeholders some more time to breathe -- however if the 29 April call is somehow deferred or adjourned or rescheduled it is not totally certain what this will mean for the $2.9m of syndicated funding to the project. We are sure that this cadre of mostly foreign bank commitments, if not wanting to exit the Brisbane Airport Toll altogether, would like terms to be re-struck to take into account the current economic environment -- so any wiggle room to declare the commitments void, such as a change in the 29 April 2009 $1 call, could bring the project down. Most would agree that this would be a bad outcome for Australia.


David C. Barrow, Trustee, The Julie Anne Barrow Charitable Trust

http://www.barrow.org.au/
 
Now the question is, is this worth a punt for a bloke with no assets what so ever (car is in someone elses name, no house, still a student) and no ongoing liabilities (kids/wife etc) and a spare $5-10k?
If I had to default on the next installment, am I that worse off?
If i was to default, what happens to the units i have already partly paid for? Are they reposesed?

Theres a chunk of 25m units sitting on the ask at 0.001 right now... i could take 5-10m of them
Just trying to think outside the square here
 

Would you put that 5-10k on Black at the roulette table? If not, there's your answer.

Please remember that your credit rating may also take a beating, and depending on what career aspirations you have, this could be quite a hindrance.
 
Nyden said:
Would you put that 5-10k on Black at the roulette table? If not, there's your answer.

Please remember that your credit rating may also take a beating, and depending on what career aspirations you have, this could be quite a hindrance.
Click to expand...

I see where the analogy is going but it's slightly different.
If i were to drop $10k on black, i've got 18 in 37 chance to win 1:1 on my outlay.

However, should a benefitial outcome be extracted from the 4500 odd possible outcomes JAB highlighted in a previous post, then i'm thinking there pay off could well be alot higher than 1:1. Question is, just how many of the outcomes are positive for BCSCA holders?

Now I understand all the longer term implications with declaring bankruptcy, and thats what you have to weigh up against the potential pay off.

All fun and games/dreaming at this stage
 

I could respect this potential decision if it was based on some form of analysis, or if you had an in-depth knowledge of the company, and its future prospects. However, this is purely gambling Largesse, and in my opinion the risks, and hazards, far outweigh any potential for gains.

It may seem a small loss now, but how would you really feel if you were $10,000 poorer, unable to get a loan for a potentially long time, and yes - all of the other longer term implications of bankruptcy. One being garnished salary (sounds yummier than it is?) for potentially quite a few years.

Here's one potential (unlikely!) mishap that could happen as well. What if whilst holding said liability (or bankruptcy), you came into some money? Such as an inheritance, a lottery win, or basically anything of good fortune. It may all be taken away.
 

I agree, and have 100% always agreed with him. No contest. You have still continued to miss my point, and I don't feel it's worth labouring again.


Fully agree - however, the judge, at least in the quoted context, limited his comment on the legality of legally disposing of the shares, not of the legality of accepting the shares, knowing there is a liability attached, and having no intent to pay them.

Surely, the less the seller knows, the more of an "arms length" the transaction becomes. I would have thought they only need to know that someone else wants the units for their own business purposes.
Click to expand...

Fully agree - and sellers to Bolton know that he is not intending to pay. This destroys the arms length

Anyway, you have never answered my question, Sunder:
Do you have any financial interest in this whole situation other than owning shares or units?
Click to expand...

I have stated at least four times that I have no interest in BCSCA, MQG or Deutsch Bank.

Your posts appear designed to frighten holders from disposing of their units and yet the judge sees nothing wrong in it.
Click to expand...

Designed? Not at all. The actions of holders walks the twilight between legal and "above reproach". If what they did was beyond reproach, then nothing I could say would frighten them. If they thought what they did was legal, but questionable, then it might frighten them. What does that say to you?
 
Sunder said:
...Fully agree - and sellers to Bolton know that he is not intending to pay. This destroys the arms length
Click to expand...
Sunder, can't you see that it is these sort of partial statements from you that can cause fear and uncertainty. But, somehow, you keep forgetting that Bolton had a business plan that could potentially remove the liability, which puts it in a different light. Surely all the seller needs to know is someone is actively accumulating (wants to buy) the units for their own business purposes.

I have stated at least four times that I have no interest in BCSCA, MQG or Deutsch Bank.
Click to expand...
Fair enough. But then what's your motivation in spending so much time posting?


Apologies if I have misinterpreted your posts, but that is how they come across to me. They seem to plant seeds of uncertainty and doubt for retail unit holders who would otherwise be so grateful to transfer their units to an entity actively seeking to acquire them.

Your posts have often indicated that transferring units could potentially be fraudulent. You talk about arms length transactions. It is general knowledge now that BrisC has made statements along these general lines in at least one of their notices. However, a supreme court judge does not agree. I read on another forum that a unit holder took the relevant BrisC statement to their lawyer and were told it was a gross misrepresentation of the law. Now, that's only hearsay coming from a forum, but if it is true, it ties in with the judges findings.

I would imagine many caught in this thing in the first place were not well educated in financial products, let alone being experts in corporate law. Of course, they are going to feel nervous when they keep being told they may be committing a fraudulent act, etc, etc... Can't you see that?
 
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