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Equititrust?

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Take Steps to Frustrate the Collection of Money
Justice Reeves could not have summed it better below.

To have an officer of the court state in an affidavit that they would declare bankruptcy in the event of a judgment and frustrate the collection of money as a reason not to examine him is mind boggling...

How on earth can the Legal Services Commission tolerate such recalcitrant behaviour ???

Justice Reeves to his credit put him in his place. There is no special law for Tucker FFS...

44. If the liquidators sue me, and I suffer a judgment against me in the sums alleged by the liquidators’ solicitors, or indeed a fraction of those amounts, and it is not covered by insurance, I would not seek to have recourse to the assets of the trusts or superannuation fund described above, but rather I would file for bankruptcy.

45. Nor could I seek to have recourse to the assets of my superannuation fund as the preservation age is 60, and I am currently aged 49, so I cannot draw funds from it for about 11 years.

Justice Reeves
37 Whether or not Mr Tucker is correct in these claims and asserted intentions are matters that the Liquidators will undoubtedly investigate during his examination and, depending on the answers he gives, will weigh up in deciding whether to pursue any proceeding against him.

However, I do not consider these statements can be used to prevent the Liquidators examining him with respect to his ability to meet a judgment in the contemplated proceeding. To do so would be to accede to the startling proposition that an examinee under Part 5.9 could foreclose on this area of examination under that Part by making claims in an application of this kind that the Liquidators will gain nothing by pursuing that area or, if they do succeed to a judgment, that he or she will take steps to frustrate the collection of any monies under that judgment. If that were the position, the examination power under Part 5.9 would be significantly hindered, if not rendered totally nugatory.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
Gobsmacking just Gobsmacking

So Tucker tried to claim this letter from Russell's was an improper reason to Publicly Examine him... I couldn't think of a better reason to examine him ???


In that letter, Mr Russell described why the Liquidators were seeking to examine him about the affairs of Equititrust, in the following terms:

To put the matter in context, the liquidators are seeking to examine you about your role and that of Mr David Kennedy in gaining what appears to be a very substantial profit, derived from an apparently serious breach of your and his fiduciary and statutory duties. The gross receipts of your scheme are, as you know, at least $17 million. With interest, the claim under investigation exceeds $20 million. The beneficiaries of this claim are the unit holders in the Equititrust Premium Fund.

…

The evidence gathered to date shows that you procured Tuckerloan Pty Ltd to pay one third of the purchase price of $2 million and that Mr Kennedy paid the balance. You and Mr Kennedy set up MS Asia as a nominee Hong Kong company apparently to conceal your and his involvement.



http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
I can only laugh at Tucker's comment in his affidavit (c) about "(the unnecessarily aggressive nature of their solicitor’s correspondence to me)" boo f#ucking hoo...

Seems right out of Tucker's own playbook. Why is he whining like a little b#tch now ??? Oh hang on the shoes on the other foot isn't it...

Cowardly bullies never like it when they're given their comeuppance...


"17 Thirdly, in the penultimate paragraph of his affidavit referred to above, Mr Tucker summarised a number of other concerns he had about the purposes for which the examination was being pursued as follows (at paragraph 108):

I am concerned that:

(a) Russells are promoting this inquiry, and subsequent litigation, on behalf of the McIvor interests, possibly funded in whole or part by the McIvor interests;

(b) Mr. Russell and Mr. Tiplady may have an undisclosed economic interest in the outcome of the litigation, via EPF Recoveries Pty Ltd;

(c) That the liquidators have already determined to issue proceedings against me (given the existence of a draft pleading, the failure to make any sensible enquiries of me and the unnecessarily aggressive nature of their solicitor’s correspondence to me), such that this examination seems to me to just a cross examination dress rehearsal or an attempt to gain an unfair forensic advantage."
 
32
"Insofar as Mr Tucker is concerned, the examination is particularly directed to his involvement in the transaction that occurred with respect to the debt owed by Equititrust to BOSI.

If it emerges that Mr Tucker’s conduct, or that of any other persons in that transaction, caused Equititrust to breach its duty as trustee, then it is plainly in the interests of Equititrust that Mr Tucker, and/or those other persons, be required to account to Equititrust for their conduct. "

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
Oh boy... Tucker and Kennedy go after McCart, Roberts and Barrett, reveal their identities and then think that there wont be any blowback... Mind boggling clowns of the highest order...

This is the Legal and Financial equivalent of Dumb and Dumber...


46 As to the concern expressed in subparagraph (b) of Mr Tucker’s affidavit, Mr Russell explained the role of EPF Recoveries Pty Ltd and his interests in pursuing the examination in the following terms:

3. My enquiries into the matters before the court began in mid 2014, when I was telephoned by a former director of Equititrust, Mr Paul Vincent, a chartered accountant. He said to me that something was bothering him and asked if I would come to his office to discuss it. Mr Vincent is an old friend. I went to his office.

4. Mr Vincent described to me his work for clients, Messrs McCart, Roberts and Barrett in their dealings with Mr Tucker and Mr Kennedy, in relation to their guarantee of a debt owed to Equititrust. Mr Vincent said words to the effect that he had learnt of the existence of a Hong Kong company, MS Asia Debt Acquisition Limited, which had acquired securities over the assets held by the Company in a trust known as the Equititrust Premium Fund. He asked me to look into the matter. I agreed.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
Kaboom Kaboom

In any event, having received a detailed explanation from Mr Cooper, on behalf of the Liquidators, about the nature and effect of the inaccuracies concerned, I accept his submission that, even taking them into account, there is no real dispute on the critical question that Mr Tucker controls the entities set out in that diagram.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
There could be no other conclusion...
Common sense, justice and decency has prevailed...

55 For these reasons, I do not consider Mr Tucker has made out an arguable case that either the orders made by Greenwood J, or the orders made by Deputy Registrar Lynch, were obtained for an improper purpose and were therefore an abuse of process. Accordingly, his further amended application must be dismissed.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
Tucker needs to go into the witness box, produce all the documentation and face his Public Examination / Humiliation...
 
So Tucker protects his own Superannuation Fund as set out in his affidavit excerpt below 44. and would instead, rather declare bankruptcy. But couldn't give a damn about the "many private superannuation funds" who were investors in the EPF...

Tucker's affidavit is an insight into his warped thinking and sense of entitlement... This is an utter disgrace...


"In his reasons for judgment, Greenwood J briefly described the circumstances in which that debt was incurred, as follows ([2017] FCA 16 at [19]):

[Equititrust] was a money lender operating on the Gold Coast. It was founded by Mr Mark McIvor. It raised funds for that purpose by means of registered managed investment schemes and, relevantly for present purposes, an unregistered trading trust known as the Equititrust Premium Fund (the “EPF”). It has about 50 members including many private superannuation funds. [Equititrust] was indebted to [BOSI] in a certain significant amount. The indebtedness was secured by a number of security interests over the assets of the EPF."

David Tucker's affidavit in support of application to set aside orders for examination under s 596A and production of documents under s 597(9) of the Corporations Act 2001 (Cth) –

44. If the liquidators sue me, and I suffer a judgment against me in the sums alleged by the liquidators’ solicitors, or indeed a fraction of those amounts, and it is not covered by insurance, I would not seek to have recourse to the assets of the trusts or superannuation fund described above, but rather I would file for bankruptcy.



http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
I note there was no denial by Tucker about the scheme referred to in Russell's letter to him below...


 
What's important here as well are the circumstances surrounding David Whyte from BDO the receiver of the Equititrust Income Fund and what if any work he gave Tucker, whilst the MS Asia Scheme was hatched and executed... If legal work was being given to Tucker I see this as a gross conflict of interest.

Given the facts that have currently been unearthed, examination needs to be made as to whether any other beneficial interests were obtained as a result of any work undertaken for Whyte...

Did David Whyte know anything about MS ASIA ?

Did Tucker disclose anything to David Whyte regarding the purchase of the Bank of Scotland Debt ?
 
David Tucker's Bankruptcy Threat
Tuckers threatened little poison pill to commit Financial Hari Kari, didn't cut it in the Federal Court. Justice Reeves saw right through it. The gall to make a statement like this was also not lost on Justice Reeves...



David Tucker's affidavit in support of application to set aside orders for examination under s 596A and production of documents under s 597(9) of the Corporations Act 2001 (Cth) –

44. If the liquidators sue me, and I suffer a judgment against me in the sums alleged by the liquidators’ solicitors, or indeed a fraction of those amounts, and it is not covered by insurance, I would not seek to have recourse to the assets of the trusts or superannuation fund described above, but rather I would file for bankruptcy.


Justice Reeves
However, I do not consider these statements can be used to prevent the Liquidators examining him with respect to his ability to meet a judgment in the contemplated proceeding. To do so would be to accede to the startling proposition that an examinee under Part 5.9 could foreclose on this area of examination under that Part by making claims in an application of this kind that the Liquidators will gain nothing by pursuing that area or, if they do succeed to a judgment, that he or she will take steps to frustrate the collection of any monies under that judgment. If that were the position, the examination power under Part 5.9 would be significantly hindered, if not rendered totally nugatory.


http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
Sipping Champagne One Day Threatening, Bankruptcy the Next...



44. If the liquidators sue me, and I suffer a judgment against me in the sums alleged by the liquidators’ solicitors, or indeed a fraction of those amounts, and it is not covered by insurance, I would not seek to have recourse to the assets of the trusts or superannuation fund described above, but rather I would file for bankruptcy.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
According to Tucker the EPF Unitholders have "no rights" as creditors and to pursue a claim for the benefit of unitholders by publicly examining him would result in an abuse of process...

Justice Reeves did not agree with Tucker...

In his written submissions on this issue, Mr Tucker contended:

30. The liquidators assert that they are taking the action on behalf of the unitholders in the EPF. The constitution of the EPF provided for the redemption of units upon request by the unitholders (clauses 6.1 and 6.2) and for suspension of the right to withdraw (by clauses 6.7 - 6.9).

31. Redemptions from the fund were suspended in about 2008-2009. They have no right - present or contingent - to prove in the insolvency of the company. The unitholders are not creditors within the meaning of Chapter 5 of the Corporations Act.

32. Because the liquidators’ purpose - to pursue a claim for the benefit of the unitholders in the EPF - cannot be characterised as one for the benefit of contributories or creditors, it must be regarded as a purpose foreign to the power to examine. It follows that the examination of Mr Tucker is an abuse of process.

Justice Reeves
32 In this matter, Equititrust was the trustee of the unregistered trading trust EPF. The examination being pursued by the Liquidators concerns, in part, the discharge of Equititrust’s role as trustee of that trust.

Insofar as Mr Tucker is concerned, the examination is particularly directed to his involvement in the transaction that occurred with respect to the debt owed by Equititrust to BOSI.

If it emerges that Mr Tucker’s conduct, or that of any other persons in that transaction, caused Equititrust to breach its duty as trustee, then it is plainly in the interests of Equititrust that Mr Tucker, and/or those other persons, be required to account to Equititrust for their conduct. That being so, the fact that the unit holders in the EPF may coincidentally benefit from any proceeding taken by Equititrust to achieve that accounting does not, in my view, mean that the Liquidators are conducting the examination for an improper purpose.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
Shouldn't Tucker be representing himself or appointing an Independent Law Firm rather than having Tucker and Cowan represent him. They are listed in the Federal Court proceedings as the lawyers on record for him...
I would think the equity partners of Tucker and Cowan would want to distance themselves from this matter involving their former partner and now "Consultant"...
 
Worrells participation in this "scheme" as Russell's describe it, will get thoroughly investigated by the relevant Regulatory Authorities... How can the National Partners of Worrells accept their participation in this scandal...

Being so called Insolvency Professionals they understand their Statutory Obligations and to knowingly participate in this scandalous transaction is abhorrent, especially considering the pain the investors of Equititrust have suffered...
 
If you look at the Tucker and Cowan Website, there is now a new category under "OUR TEAM" for Consultants...

What's behind the precipitancy of the establishment of this "new category".

What's going on ???

Maybe Tucker and Cowan should issue a statement as to why one of the founding members of the firm has suddenly become a "Consultant"...
 
Last edited:
Interesting Stuff !!! Bloody good to know...

David Tucker
Consultant

Professional experience
David has practiced in commercial law, commercial litigation and insolvency law for more than 20 years. He established the firm in 1998.

David has a high level of experience in all aspects of commercial litigation and corporate transactions. He is well versed in the areas of company law, partnership disputes, insolvency and banking and finance litigation. David’s extensive experience across a range of industries sees that he is well placed to advise on the legal and commercial issues affecting his clients’ businesses.

David advises business owners, directors, shareholders, insolvency practitioners and creditors on all aspects of the Corporations Act relating to directors’ duties and liabilities, management disputes, shareholders disputes, corporate governance, solvency issues and asset protection and structuring matters.

http://www.tuckercowen.com.au/our-team/consultant/
 
So "Tucker" feels that unitholders are technically not creditors...

31. Redemptions from the fund were suspended in about 2008-2009. They have no right - present or contingent - to prove in the insolvency of the company. The unitholders are not creditors within the meaning of Chapter 5 of the Corporations Act.

32. Because the liquidators’ purpose - to pursue a claim for the benefit of the unitholders in the EPF - cannot be characterised as one for the benefit of contributories or creditors, it must be regarded as a purpose foreign to the power to examine. It follows that the examination of Mr Tucker is an abuse of process.

I wonder if he was thinking that when he


"No Trust" I've been reading "David Whyte's" affidavits to the courts seeking endorsement of payment for services and the number of meetings, emails, phone calls, legal proceedings, land transactions etc conducted between Whyte (BDO), Tucker and Kennedy or their associates and employees is remarkable.
See
http://equititrust.com.au/Pdfs/Rece...d Whyte sworn 31 May 2013 (Volume 2 of 2).pdf
http://equititrust.com.au/Pdfs/Rece...lication for Remuneration (Volume 2 of 3).pdf


The following is quoted from financial acquittal contained within David Whyte's sworn affidavit 19 September 2012

The transaction is dated 07/06/2012 "Reviewed/executed agreement with Tucker & Cowen regarding ongoing provision of legal services"
 
I was just reading another David Whyte Affidavit for a claim for payment dated 2/11/2015 and David Whyte has included the following claim for payment dated 11/08/2015;

"Reviewed correspondence from our solicitors and the costs assessor regarding Tucker SF costs and current status of assessment"

This raises a few questions; Firstly, were payments going to Tuckers superannuation fund? Secondly, if this was the case and David Whyte had to review it, why is that a cost that should be borne by creditors of Equititrust? Thirdly, is this indicative of a falling out between Whyte and Tucker?
 
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