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Equititrust?

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No Trust said:
This may shed some light on the matter...

Its up to ASIC to enforce the law as its sits, however it could be a combination of all three...

https://www.lsc.qld.gov.au/__data/a...conflicts-of-interest-symposium-15-mar-07.pdf
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Interesting article "No Trust." Noting that Tucker provided legal services to EquitiTrust for nearly a decade, surely he must have have known the "lie of the ground" as to the alleged culture and behaviours within the company, particularly McIvor.

With that in mind and noting the paper you have posted is it possible that he became conflicted with personal interest when investing some of his Superannuation.

It follows does it not, that he would have had deep knowledge of the assets of the company and could now be accused of successive conflict by securing benefit out of distressed assets of which he contributed to distressing. Perhaps a long bow, but I'm wondering why he was so hell-bent on calling in the receiver's for the alleged purpose of protecting the investor's assets, when in reality we know how much the investors have received compared to what the myriad insolvency practitioners have made while feeding on the carcass.
 
Tucker was conflicted from the very outset, when he became a director and was then described as an Independent Director, which was then clarified on the Equititrust website when the premise was challenged by me on this thread.

Look what that conflicted director has done with the CEO using their confidential knowledge since then ...

In terms of wanting to appoint a receiver, its all about control. Someone was going to appoint so its better to have someone you can control and or owes you favours.

None of these appointments are above board because all these guys know each other and feed off the carcass that emerges in the corporate jungle...

Whyte was appointed by the court and yet Tucker and Kennedy found their way into his graces...

Tucker definitely earned fees despite his conflict of interest and also was an investor via his Super Fund.

The court appointment failed dismally as far as independence was concerned.

As far as BDO and Whyte are concerned, they wont get paid for any more work as I believe the Liquidator and or someone representing the EIF investors will challenge any further payments until full disclosure is given to the court about Whyte's interactions and payment of fees to Tucker and Kennedy.

I wouldn't be surprised if there was a claim to have fees returned to the investors by both Tucker and BDO given the blatant conflict of interest which Whyte seems to have known about in dealing with Kennedy in regard to Priority Deeds concerning the EPF.

Did Whyte not ask Kennedy, what are you doing representing the EPF ? What's your relationship? Is this ethical to be dealing with the former CEO who now pops up representing the EPF ?

Come on for FFS, this is so unethical and the behaviour so abhorrent towards investors of both the EPF and EIF that it defies belief.

The fact that someone is appointed receiver does not mean that they can do what they want, and do deals with buddies and look the other way when ethical issues are slapping them in the face.

http://www.equititrust.com.au/Pdfs/Disclosures/ChangeofDirectors_14_06_11.pdf

"Mr David Tucker is a Partner in Messrs Tucker & Cowen. In our announcement of 14 June 2011, Mr Tucker was described as an independent director. We wish to clarify that statement: Mr. Tucker is a non-executive director of Equititrust Limited and Tucker & Cowen Solicitors are a substantial provider of services to EIF, and as a consequence of that continuing business relationship, it may be suggested that Mr. Tucker is not an independent director.

The Board is cognisant of this. There are considerable advantages to having Mr Tucker as a Director of Equititrust Limited and both he and the other Directors will ensure that any possible conflicts, if they arise, are appropriately managed and dealt with."

http://www.equititrust.com.au/Pdfs/Disclosures/EIF_Custodian_and_Directors_01_Aug_2011.pdf



SpatialG said:
Interesting article "No Trust." Noting that Tucker provided legal services to EquitiTrust for nearly a decade, surely he must have have known the "lie of the ground" as to the alleged culture and behaviours within the company, particularly McIvor.

With that in mind and noting the paper you have posted is it possible that he became conflicted with personal interest when investing some of his Superannuation.

It follows does it not, that he would have had deep knowledge of the assets of the company and could now be accused of successive conflict by securing benefit out of distressed assets of which he contributed to distressing. Perhaps a long bow, but I'm wondering why he was so hell-bent on calling in the receiver's for the alleged purpose of protecting the investor's assets, when in reality we know how much the investors have received compared to what the myriad insolvency practitioners have made while feeding on the carcass.
Click to expand...
 
Tucker and his counsel tries to use this argument to get out of being examined. It didn't work...

Of note here is the fact that Tucker needed only to be examined on the basis that the had a clear Fiduciary and Statutory Conflict of Interest as outlined by Russell's in their letter to him on the 28th of June 2017 which ol "Davey Boy" found aggressive... Poor BABY...

Russells Letter
"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."

Is it an improper purpose to pursue Mr Tucker’s examination to advance the interests of the EPF unit holders?

23 As is already recorded above (at [14] and [15]), this issue is raised by the statements in Mr Russell’s letter of 28 June 2017 and the Liquidators’ Reports to Creditors that the beneficiaries of the Liquidators’ contemplated proceedings are the unit holders of the EPF. 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.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0758
 
Controversy seems to follow Kennedy... looks like he's used to examinations... Look at his post on this thread on 31 January 2011 below...

He also worked on the Bank of Scotland Debt, no wonder he and Tucker didn't do any due diligence...

"It is alleged the pair bought the troubled loan book from Morgan Stanley and private equity group Blackstone — via a company they had created called MS Asia — without conducting any due diligence, which was “very unusual”.

http://www.theaustralian.com.au/bus...m/news-story/b1a0d0d03d1c14d5ab15bd624016713d


Equititrust said:
It is not unusual in our industry to have recalcitrant borrowers attempt to cause damage to Equititrust’s reputation by making untrue or ill-conceived allegations against us. The common thread of such accusations tends to be that they are only ever made anonymously and when invited to discuss their issues directly with Equititrust the invitation is never taken up yet the accusations continue. By way of example, “Kostag” has been invited on numerous occasions to contact me yet he has declined to do so. Instead he continues to make unsubstantiated or erroneous allegations. I do not intend to further address matters raised by him on this forum.

In relation to the comments of zencorp (who incidentally has just joined the website and does not state whether or not he is an investor but states he has knowledge of our loan documents which may suggest he is in fact a borrower), I point out the following:

(i) Moribund Pty Ltd does not have Receivers appointed to it as zencorp says. Moribund (as the name suggests) has not traded for approximately 10 years and a Liquidator was appointed at the company’s own instigation to facilitate tidying up its affairs. It is not at all unusual for a company in a group to be wound up when it is no longer used;

(ii) Moribund was never called M C Mortgage Management Pty Ltd as zencorp alleges. He is simply mistaken in this regard notwithstanding his suggestion that care has been taken in tracing Equititrust’s history and “that there is no mistake here”;

(iii) The ill-founded suggestion that “it is obvious that the current directors of Equititrust Ltd devised a plan whereby the company’s name was changed to Moribund and Wayne was to take the fall” is not supported by the facts. Four out of the five current directors of Equititrust were neither directors nor employed by Equititrust when the name was changed to Moribund in October 2009. In fact Wayne was still a director at that time so to use zencorp’s logic, Wayne himself must have voted for the name change to set himself up for a fall. The suggestion is incorrect and untrue;

(iv) There was nothing for Wayne McIvor to take the fall for with respect to Moribund. He left Equititrust voluntarily to pursue other interests, one of which is Insight Equity Ltd. Insight Equity was established by a former Equititrust employee and it is therefore not at all unusual that he invited Wayne to join him after he left Equititrust. Insight Equity has a different model to that of Equititrust and is not a direct competitor of Equititrust as zencorp alleges. I understand that those associated with Insight Equity agree that we are not competitors;

(v) The court transcript comments referred to with respect to me are simply untrue. There was never a suggestion during my examination (and I might add approximately 20 people have been examined to date as part of the MFS administrations) that I can’t even read a document. Furthermore, and more importantly, it is impossible for zencorp to have seen such a transcript as it is sitting on my desk at home as I am still reviewing it for accuracy before I sign it and it is finalised. Perhaps zencorp may enlighten us as to his alleged source in this regard?;

(vi) To answer the question why CBA, NAB and BOSI have retreated out of the EIF and EPIF, one has to look at their individual circumstances. CBA have publicly acknowledged they want to withdraw from the entire mortgage fund industry (as a result of losses they have incurred in this sector) and have in fact wound up their own mortgage fund. NAB have decided they are overweight in the property sector and as such do want a long term relationship in this industry. They have indicated they would be prepared to entertain discreet lending opportunities with Equititrust and its customers. They have also stated that there is no risk of them losing any money with Equititrust. Finally, BOSI are withdrawing from Australia and repatriating capital back to the UK. This is well known by everybody in the financial world. The withdrawal of the banks in a tight credit market is not at all unusual and is not reflective of their attitude to Equititrust as a company. Put simply, their appetite to lend to this industry has changed and we respect that;

(vii) The comments regarding the Priority Class Fund show that zencorp, at best, misunderstands the fund. It is not borrowing more to get out of debt, it is substituting one debt for another which has more attractive terms. It is ,in effect, refinancing existing debt and it is being done for the following reasons:

(a) When the banking facilities were established/utilised, the banks were offering debt at interest rates which significantly lowered our cost of capital. With a tightening credit market and rising interest rates this is no longer the case and as such it was considered appropriate to offer investors the opportunity to stand in the shoes of the bank (ie same interest rate, same security position);

(b) In the unlikely event EIF were to default under the facility, then the PDS requires Equititrust to call a meeting of unit-holders (ie investors) to let them determine if they want a new manager appointed to replace Equititrust – ie it is up to the investors to decide what happens to the fund. It is not possible for Equititrust to simply freeze the fund as zencorp alleges;

(c) The fees referred to by zencorp as “exorbitant” show that he has either not even read the PDS or is being malicious in his comments. The management fee payable to Equititrust if all investors have received there benchmark return (it is described in this way due to ASIC requirements) is .15%. That equates to a maximum fee of $75,000 per annum if the fund is fully subscribed to $50m. There are no expiry fees or other fees as zencorp alleges. I am not sure any objective person would describe these fees as exorbitant.

(viii) Zencorp’s comments about valuations are ill-informed and without basis. If anybody seriously suggests that the property market in Australia has dropped 40% across the board over the past 12-18 months then they simply do not know what they are talking about (particularly when much work has been done by our Landsolve team during this time improving the values of security properties).

(ix) The comments regarding my integrity do not warrant comment other than to say that my integrity was never questioned as part of the MFS collapse (actually quite the contrary). It is simply not possible to defend one’s self against faceless and anonymous allegations (it seems akin to “parliamentary privilege”) but if zencorp would like to post the same comments disclosing his details I would be more than happy to address them in the appropriate manner.

The GFC and its lingering effects were unprecedented. Whilst Equititrust is not happy about freezing redemptions on its funds, the fact remains that this has been necessary to protect all investor’s interests. ING is the 7th largest corporation in the world yet it froze redemptions on several of its mortgage funds. Commonwealth Bank is one of the Top 20 rated banks in the world yet it froze redemptions on its own mortgage fund. We are proud that investor returns have been paid in full and on time throughout the GFC.

Over the past two years, Equititrust has reduced bank debt from $155m to $44m and anticipates having this fully extinguished in the next 6 months. We can then start the process of repaying investors who want there money back.

We are working assiduously to ensure investor’s rights and interests are protected and with a large investment of our own ($40m of which was voluntarily subordinated at the onset of the GFC) underpinning EIF we are showing that we are putting our money where our mouth is.

As always, if any genuine investor has any concerns about their investment they can contact us at Equititrust and we will do our best to address such concerns.

Regards
David Kennedy
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Did Tucker and Tucker & Cowan get approval from Equititrust's liquidator to act for MS Asia ???

Both Worrells and Tucker knew they never would have received approval if it was disclosed that Tucker and Kennedy were the beneficial owners...

Conflicts concerning former clients
10. Conflicts concerning former clients

10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2.

10.2 A solicitor or law practice who or which is in possession of confidential information of a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS:

10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or

10.2.2 an effective information barrier has been established.

http://www.qls.com.au/Knowledge_centre/Ethics/Resources/Conflicts_concerning_former_clients
 
To add insult to injury Tucker and Cowan were also acting for David Whyte the receiver of the Equititrust Income Fund, whilst knowingly acting for MS ASIA which owned security interests in the Equititrust Premium Income Fund who's beneficial owners were, Equititrust's former CEO David Kennedy and former director David Tucker who also just happened to be an equity partner of Tucker and Cowan... Can it get more incestuous ???

Rule 10.2.1 and 10.2.2 states

UNLESS:

10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or

10.2.2 an effective information barrier has been established.

In this case an ineffective disinformation barrier was established where the parties were concealed from the Liquidator of Equititrust as well as the Supreme Court of Queensland...

We haven't forgotten the undertaking as to damages given to the Supreme Court given by Worrells and MS Asia ... This will be a hot topic in the coming months, I have been advised by reliable sources.
 
No Trust said:
To add insult to injury Tucker and Cowan were also acting for David Whyte the receiver of the Equititrust Income Fund, whilst knowingly acting for MS ASIA which owned security interests in the Equititrust Premium Income Fund who's beneficial owners were, Equititrust's former CEO David Kennedy and former director David Tucker who also just happened to be an equity partner of Tucker and Cowan... Can it get more incestuous ???

Rule 10.2.1 and 10.2.2 states

UNLESS:

10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or

10.2.2 an effective information barrier has been established.

In this case an ineffective disinformation barrier was established where the parties were concealed from the Liquidator of Equititrust as well as the Supreme Court of Queensland...

We haven't forgotten the undertaking as to damages given to the Supreme Court given by Worrells and MS Asia ... This will be a hot topic in the coming months, I have been advised by reliable sources.
Click to expand...

Comprehensive coverage "No Trust" - Based on his formidable inside knowledge of the company, it does make me wonder if Tucker pre-meditated his actions to destabilise the board and "create a crisis"? Knowing full well the outcome of a board crisis can lead to an insolvency arrangement being invoked. Could he be this much of a schemer? I'm starting to think so.
 
He's not that smart...

Equititrust was finished, McIvor had seen to that... Tucker was as useless as t#t's on a bull as a director...

Tucker and Kennedy were opportunists who saw a quick buck and that's about it. The only thing they schemed about was hiding their identity and dumb and dumber couldn't even do that...

SpatialG said:
Comprehensive coverage "No Trust" - Based on his formidable inside knowledge of the company, it does make me wonder if Tucker pre-meditated his actions to destabilise the board and "create a crisis"? Knowing full well the outcome of a board crisis can lead to an insolvency arrangement being invoked. Could he be this much of a schemer? I'm starting to think so.
Click to expand...
 
If this deal was disclosed it would never have been given approval...

As bad a McIvor is, if he or someone else had done the same Tucker and Kennedy would be knocking on ASIC's door and screaming bloody murder from the roof tops... Not because they care about the investors, because they didn't make any money out of it...
 
All the money that Tucker and Kennedy made will now be lost... They know it too
 
There may be a problem with the :

Limitation of Liability Scheme

The Limitation of Liability Scheme (Scheme) is a statutory scheme, enforced by the courts, that caps the amount of damages that can be awarded against your practice. Professional Indemnity Insurance pays the claim while the Scheme caps the amount of damages that can be awarded.

To participate in the Scheme you must be a full member of QLS, hold a current Australian practising certificate, and have the benefit of the applicable insurance. Further, to gain the full benefit of the cap, all solicitors within a firm would have to be members of both the QLS and the Scheme.

Liability Caps
The Scheme provides a liability cap which is exclusive of defence costs, but aims to cap damages as follows:

  • $1.5 million - for participating members are in a law practice consisting of up to and including 20 principals where the law practice generates an income for the financial year of up to and including $10 million
  • $10 million - for
    • participating members who are in a law practice consisting of greater than 20 principals; or
    • participating members are in a law practice where the law practice generates an income for the financial year greater than $10 million
  • higher cap - subject to approval from QLS for
    • all cases; or
    • in any specified class or case
Members of the Scheme are strongly encouraged to consider their need for top up insurance to ensure that defence costs are met.

Exclusions
There are a few exclusions to which the Scheme does not apply, being:

  • ILP’s as corporate entities
  • Personal injury claims
  • Fraud, dishonesty, breach of trust
  • Part 9, division 2, subdivision C of the Land Title Act 1994 (claims under the Queensland State Government Fidelity Fund for title fraud)
http://www.qls.com.au/Becoming_a_me...ional_benefits/Limitation_of_Liability_Scheme
 
Game of Thrones was nothing compared to this... Tucker will now sit in the "Iron Witness Box"
 
We owe a lot to Kostag, the legend who started this thread 7 years ago... How prophetic he was !!!
Wherever you are mate, thanks...
kostag said:
I'm an Equititrust investor - historically, all has been good - bit I am hearing some disquieting developements - such as ex MFS execs David Kennedy and David Anderson (OMG!) now in charge - same auditors as MFS used - same business model - and even Royal Bank of Scotland loans outstanding/overdue. There was a press write up about a loan to Al Konstaninidis going bad etc - and a legal fight which involved Equititrust and David Kennedy. David Anderson's recent Court performance re MFS matters was less than flattering and one would need to question whether he ought be in charge of another Public fund. Anyone got any news on this? I saw on an ASIC search that long standing Director Wayne McIvor has resigned from Equititrust as well.... often a sign that things are not good.
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Wouldn't it be prudent for the regulators to review all insolvencies that both Tucker and Kennedy have been involved in. Same goes for Tucker and Cowan and Worrells. If they've hidden this little "scheme" as Russell's describe it, common sense would suggest a broad net needs to be cast over other appointments and interconnected activities between this unholy quartet.
 
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