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Wellington Capital PIF/Octaviar (MFS) PIF

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Re: Octaviar MFS Premium Income Fund PIF

The Owls said:
Will any of these judgements assist or financially reward unit holders in PIF
Click to expand...

If Fortress lose, the $25M that was going to them will be spread amongst all the creditors including PIF. PIF's is very roughly 20% of the total claims. Correct? So there should be an extra $5M for us. The current wind up proposal sees us get 4c in the $ right? I.e. $8M of the $197M we're claiming. So a win will greatly increase what we get. Correct? Still pittance compared to what we've lost. It's still not enough for WC to pay us 3c - need $23M for that.

We also don't know how much Deloitte have allowed what's left in OCV to erode these last 3 months.

So there's a lot at stake for Fortress. Their payout would drop to about $1M. Might be an appeal to the High court if they lose. Difficult to determine if the PTQ will appeal if they lose. Their claim is very roughly 35%. So they're set to gain an extra $8M.

Many in the legal throng have voiced their disapproval of McMurdo's decision. Wouldn't this give Fortress confidence?
 
Re: Octaviar MFS Premium Income Fund PIF

Extract from Gold Coast news today:-

July 31, 2009 02:59pm
Octaviar into liquidation
Fri, 31 Jul 2009 12:13:40 EST

GOLD Coast company Octaviar, formerly known as MFS, was this morning placed into liquidation following a Queensland Supreme Court order.

OCTAVIAR was this morning placed into liquidation following a Queensland Supreme Court order.

Justice Philip McMurdo terminated a deed of company arrangement that has been in place since last December, naming company administrators John Greig and Nick Harwood, of Deloitte, as provisional liquidators.

The move finally spells the end for the listed Gold Coast company, formerly known as MFS, which has been heaving under debts of up to $2 billion since its collapse in January last year.
 
Re: Octaviar MFS Premium Income Fund PIF

The Owls:- I forgot to mention that Fortress probably also needs to return assets that it has already been given. So their losses are greater than in my previous post. But there is a discussion in para [203] that indicates all these $ go to the ATO anyway - which I didn't follow.

Looks like the door has been kicked open for the sale of Stella to be voided. I don't really know to what extent this all helps PIF financially.

Some choice quotes:

Para [130] "As already discussed, in their s 439A reports, the administrators said that the group may have been insolvent as from the date of the Stella contract. Professor Gray’s evidence provides a logical basis for concluding that the position was no different as at 22 or 24 January 2008."

Para [137] "The relevant question then is whether the Public Trustee has established that there is at least a serious question to be tried that OL was insolvent on 22 January 2008. Even on the basis of Professor Gray’s evidence alone, there is such a serious case."

Para [221] "On the present evidence, it is far from demonstrated that Fortress had “no reason to have any concern with the solvency” of OL."

Para [182] "The public interest is therefore a consideration in favour of terminating the deeds"

Para [141] and [142] relate to OCV raiding of PIF and include "Were that case to be established, the facts would strongly support a conclusion that the group was insolvent by 30 November 2007, because if directors of OL had to resort to a misappropriation of the assets of the PIF, it could be inferred that OL was unable to pay Fortress by any lawful means."

This was followed up in para [218]""But I still don’t know how they paid us the $100MM in Nov.”
That last reference, of course, was to the payment to Fortress on 30 November 2007, which WIM alleges was made with misappropriated funds."
 
Re: Octaviar MFS Premium Income Fund PIF

selciper said:
Information about Octaviar in today's Gold Coast Bulletin.

http://www.goldcoast.com.au/article/2009/07/31/103385_gold-coast-business.html
Click to expand...

I went through that with Wellington a long time ago and the PIF is a separate entity with its own board of directors.

Further, my initial reading of it is that the PTQ seems more interested in recovering the money Wellington Capital owes the Octaviar group for the fees in taking over the PIF which I understand Wellington has not paid yet or are disputing.

Nevertheless, it is serious business and I have sent Caroline Snow an urgent email for explanation.

Supreme Court of Qld - Judge McMurdo - in part as to Wellington
[156] The Public Trustee also suggests that there is a case to be investigated that there was an unfair preference by the transfer of “beneficial ownership of $5 million in cash to Wellington Capital Ltd or an entity controlled by it”. The evidence for this submission is a net realisable value statement of the Octaviar group as at 31 May 2008. There is evidence there that $5.05 million had been held by WIM. The likely explanation of this document representing that the cash was no longer available to the group is that the cash was held by WIM, which ceased to be a member of the group upon the acquisition of its shares by Wellington Capital. Perhaps a liquidator would wish to investigate this, but on the present evidence, a liquidator would not be obliged to do so, one reason being that if there has been a loss, it was not a payment by or the appropriation of property of OL or OA (as
distinct from WIM).
[157] Then the Public Trustee says that the terms of the sale of the shares in WIM should be investigated, because they were adverse to the interests of the seller by the price being dependent upon the future earnings of WIM. The sale agreement and the call option from which it arose were apparently negotiated at arm’s length and the Octaviar side had its own legal advice. On the face of it, the terms as to price do not seem to be so unusual. The Public Trustee did not press its pleaded case that there was some wrongdoing on the part of Wellington Capital by its causing WIM not to charge fees for managing the PIF, thereby resulting in there being no profit within the 12 months from the sale. I am not satisfied that the liquidator would wish to
investigate the terms of the share sale agreement.
[158] The final point in relation to Wellington Capital was not pleaded, but it arises from evidence given by Ms Hutson that Wellington Capital had received something of the order of $3 million from the Octaviar group in respect of services provided in relation to the PIF between May and August 2008. I accept that a liquidator would wish to investigate such a payment as a potential preference.
 
Re: Octaviar MFS Premium Income Fund PIF

WELLINGTON NSX release 31 July Octaviar Update
Public Trustee of Queensland – Application against Administrators of Octaviar Limited (In Administration) and Octaviar Administration Pty Ltd (In ministration)
Supreme Court of Queensland
The Honourable Justice McMurdo in the Supreme Court of Queensland today handed down judgement in relation to the applications filed by the Public Trustee of Queensland on 19 February 2009 in relation to Octaviar Limited (In Administration) (Receivers & Managers Appointed) and Octaviar dministration Pty Ltd (In Administration). Each Application sought orders under sections 445D and 447A of the Corporations Act 2001 (Cth), and particularly sought termination of the Deed of Company Arrangement for Octaviar Limited and Octaviar Administration Pty Ltd.
His Honour Justice McMurdo has today ordered that:
each of the Deeds of Company Arrangement for Octaviar Limited and Octaviar Administration Pty Ltd be terminated John Lethbridge Grieg and Nicholas Harwood (the current Administrators of Octaviar Limited and
Octaviar Administration Pty Ltd) be appointed provisional liquidators until further order of the Court. It is unclear at this time what effect the appointment of liquidators to each of Octaviar Limited and Octaviar
Administration Pty Ltd will have in relation to any potential recovery by the Premium Income Fund.

Reply from Wellington to my email: The Public Trustee is not in control of any investigations in relation to any party which transacted with Octaviar Limited or Octaviar Administration Pty Ltd - that is for a liquidator to determine after reviewing the facts. In court, the Public Trustee challenged each and every transaction between the Octaviar entities, and this is set out in the judgement link.

We await advice from the liquidator before it is clear what investigations into the Fund transactions they will undertake upon their appointment. This could take some time.
 
Re: Octaviar MFS Premium Income Fund PIF

breaker1 said:


Reply from Wellington to my email: The Public Trustee is not in control of any investigations in relation to any party which transacted with Octaviar Limited or Octaviar Administration Pty Ltd - that is for a liquidator to determine after reviewing the facts. In court, the Public Trustee challenged each and every transaction between the Octaviar entities, and this is set out in the judgement link.

We await advice from the liquidator before it is clear what investigations into the Fund transactions they will undertake upon their appointment. This could take some time.
Click to expand...


Breaker1,
Any reaction from Carneys as to any impact on the Class Action?
 
Re: Octaviar MFS Premium Income Fund PIF

A Directions hearing stemming from McMurdo's decision will be held at 2PM Wed 5 August - OCV release to ASX by Deloitts. This will probably decide the final liquidators and set reporting timetable etc
 
Re: Octaviar MFS Premium Income Fund PIF

simgrund said:
Breaker1,
Any reaction from Carneys as to any impact on the Class Action?
Click to expand...

No, but they have been advised by the AG.

The new liquidators will now be another group looking at the OCV / PIF transaction in addition to our Carneys Lawyers team.
 
Re: Octaviar MFS Premium Income Fund PIF

Hi all, nice to see some new posters. I have been travelling with little computer accesss so not quite up to date with the McMurdo ruling and apologise to PIF unitholders who have not received replies to their emails. The following is an interesting article in todays Couriermail . Regards, Seamisty
By Anthony Marx
August 04, 2009 12:00am
Liquidators to pursue Octaviar cash:
LIQUIDATORS of the last two entities in the failed Octaviar tourism and finance group will try to claw back more than $150 million in unfair preference payments, loans and investments.

Deloitte partners John Greig and Nicholas Harwood are also expected to grill former company directors and auditors over allegations of insolvent trading and other corporate wrongdoing.

The two men were appointed by Brisbane Supreme Court Justice Philip McMurdo on Friday to wind up Octaviar Limited and Octaviar Administration Pty Ltd. Both had already been serving as administrators since late last year.

The court ruling was a victory for the Public Trustee of Queensland, which had sought liquidation on behalf of more than 560 noteholders owed $359 million by the group formerly known as MFS.

The decision scuttled deeds of company arrangement proposed by Fortress Credit Corporation and approved by creditors, which the Public Trustee had however criticised as unfair.

Public Trustee Peter Carne said the wind-up would allow for a thorough investigation of the Gold Coast companies and provide the best chance for creditors to recover some of their money.

But Brisbane merchant banker Jenny Hutson, whose firm Wellington Capital is trying to recover $200 million owed to its Premium Income Fund, said creditors should have accepted a deal last year that would have paid 22.5c on the dollar. She said liquidation would lead to a return of only 2c-4c on the dollar.

Liquidators may examine Wellington's acquisition of the management rights to the Premium Income Fund, which the Public Trustee claimed in court documents had been secured from MFS for "no real consideration". Ms Hutson has defended the move, maintaining that her firm's intervention prevented the appointment of receivers.

Octaviar group collapsed in September last year with debts of more than $1.5 billion.

Only $120 million in cash remains in Octaviar Administration, with the ATO set to take $58 million and the balance to be split by creditors.

A spokeswoman for accounting firm KPMG declined to comment about its auditing work for Octaviar. Investors have launched a class action against KPMG.

Justice McMurdo has previously ruled in favour of the Public Trustee, deciding in March that a $38.5 million charge held by Fortress over Octaviar was void as security. Fortress has appealed against that decision.
 
Re: Octaviar MFS Premium Income Fund PIF

Tomorrows directions hearings in the Brisbane Supreme Court before Justice McMurdo - particularly note the last directions re the PTQ and the provisional liquidators:

COMMERCIAL LIST

RE: OCTAVIAR LIMITED
Justice Philip McMurdo
Banco Court
Floor 2 2:00 PM
(Directions Hearing)

RE: OCTAVIAR ADMINISTRATION PTY LTD
Justice Philip McMurdo
Banco Court
Floor 2 2:00 PM
(Directions Hearing)

FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LIMITED -V- OCTAVIAR LIMITED & others
Justice Philip McMurdo
Banco Court
Floor 2 2:00 PM
(Directions Hearing)

RE: OCTAVIAR LIMITED (FORMERLY MFS LIMITED)
Justice Philip McMurdo
Banco Court
Floor 2 2:00 PM
(Directions Hearing)

PUBLIC TRUSTEE OF QUEENSLAND -V- GREIG & others
Justice Philip McMurdo
Banco Court
Floor 2 2:00 PM
(Directions Order)
 
Re: Octaviar MFS Premium Income Fund PIF

Why would Deloitte care? They get paid the same no matter how little we get back. How could going straight to Liquidation mid last year have been any worse than Vol Administration under Deloitte? Deloitte rolled over when Fortress applied pressure and then they rolled over when CVC applied pressure. So are Deloitte supposed to be executing any judgement or are they largely administrative like Perpetual were in their role as trustees? Anyone?

http://www.businessspectator.com.au/bs.nsf/Article/Stella-pd20090803-UK6TH?OpenDocument&src=kgb

"BUSINESS SPECTATOR
Stephen Bartholomeusz
3 August 2009

Somehow, within the restructuring and recapitalisation of Australia’s largest tourism business, more than $600 million of debt has disappeared.

Stella Group, once part of the MFS empire, announced what it terms a "comprehensive corporate restructure and recapitalisation" today, splitting its business into three discrete, separately managed units – the hospitality group (which operates the Peppers, Mantra and Breakfree brands), the Australasian Stella Travel business and Stella Travel Services in the UK.

The restructuring was made possible when CVC Asia Pacific, which acquired a 65 per cent interest in Stella for $409 million (and the assumption of $905 million of debt) in February last year, bought the remaining 35 per cent from Octaviar, as MFS is now known, last month.

It paid only $3.2 million for a stake that was valued at about $700 million by the original deal, but dropped litigation claiming compensation for the fact that Stella had missed, grossly, the earnings forecasts provided when CVC bought in.

Last month’s deal left CVC as the sole owner of the equity in Stella. Conveniently, Stella had only one bank. UBS was owed more than $900 million.

Today’s statement from CVC doesn’t explain the recapitalisation, but does say that Stella Hospitality had assumed $245 million of long-term debt and Stella Travel Australia/New Zealand $40 million. The UK business has been left debt-free.

That leaves about $620 million of the original debt unaccounted for. It would appear a reasonable assumption that CVC has put some more equity into the business. However, one of the positives of having just one banker in an over-leveraged business is that the bank has more to lose than the equity provider. It’s also a lot easier to negotiate with one bank than a syndicate.

It appears UBS has converted a significant proportion of its exposure to Stella from debt to equity. There was no reference to UBS in today’s statement but it did say that the Stella businesses would continue to be "majority owned and controlled" by funds advised by CVC Asia Pacific, which implies that its equity has been either sold down or, far more likely, diluted by new capital provided by UBS, swapping some of its debt for equity.

Had Stella not been recapitalised its distressed condition, or even failure, would have caused significant damage to the local tourism and hospitality sector.

The fact that the two main stake-holders have been able to so substantially re-make its balance sheet signals that they think that there is an attractive future for the group as the economy and the economics of the travel sector recovers.

Stella will now have the balance sheet and liquidity to enable it to survive until that occurs."
 
Re: Octaviar MFS Premium Income Fund PIF

During the earlier hearings the PTQ expressed confidence in the Deloittes administrators as being suitable liquidators, if the court so determined. Now after the Stella transaction they do not appear to be of the same mind - this could well be an action against Delloittes for the damage caused. I'll be watching to see if the directions are posted on the ASX and NSX as an Octaviar update.
 
Re: Octaviar MFS Premium Income Fund PIF

How about this from Fairfax's Business Day. http://business.brisbanetimes.com.a...etaway-from-stella-debacle-20090803-e7a7.html

"chief executive of Stella Travel Services, Peter Lacaze,
...

Having talked down the impact of the economic slowdown on business over the past few months, Mr Lacaze admitted yesterday that conditions had been extremely tough. ‘‘The last 12 months have been really difficult.’’ Mr Lacaze replaced the former boss Rolf Krecklenberg late last year, after he left in acrimonious circumstances. In April a spokeswoman from the Stella hospitality arm said: ‘‘It’s just business as usual.’’ "

So which is it eh?? That Stella was a dud as CVC's $600M warranty claim against OCV asserts OR is the truth more that trading conditions deteriorated after the acquisition.
 
Re: Octaviar MFS Premium Income Fund PIF

Correction to my last post - the PTQ did not support the Deloittes team as potential liquidators. It was Challenger and Fortress who nominated them - the PTQ has opposed their appointment.

I've been looking for details of the Directions from yesterdays Supreme Court hearings but no announcements yet maybe Deloittes are not on the case anymore.

Duped, the last paragraph of Deloittes ASX OCV announcement re the sale of the remainder of Stella concludes with "Completion of the sale of shares and loan note is subject to a number of conditions, including regulatory approvals (this is probably Foreign Investment Review Board approval) which are required to be satisfied by 31 August 2009."

It will be interesting to see what effects McMurdo's decision on OCV liquidation has on completion of the deal. Presume that the liquidator would want to look at it as a potential uncommercial transaction. And given that the original sale of 65% of Stella may be voided due to insolvency, it will be interesting to see how the liquidator proposes to "unscramble the egg".

After reading the judgement I can see the potential for PIF to recover the $130 Mil from RBS if misappropriation is proven - better this is done via the class action so that the compensation is in our hands, rather than pursued by our RE, as the money would go back to the fund.

Also if the $50Mil support facility is voided because it was provided for no value etc, there arises the prospect of further action against MFS/OCV Directors and Officers for issuing a false statement in a PDS. And remember that it was just the issuance of false statements in a PDS that put "Rocket Rodney" in gaol.

My reading of the judgement also seems to point to the $147.5Mil of dud loans being part of a ruse to cover the alleged misappropriation, or is it another misappropriation by exchanging PIF cash for worthless loans? Either way I am sure that it will figure in the class action.

MARCOM
 
Re: Octaviar MFS Premium Income Fund PIF

We have lived in hope that we would get our money or some of our money back by now, but according to the NSX value (7c) and that Wellington has
legal problems with how they acquired our fund, we have resigned to the fact that nothing will be forthcoming ever.

We did not vote on going into the NSX and thought Wellington was above board. But we have no choice but to sell at 7c and claim a loss.
It is a pity, because Wellington on the 29 May 2009, said QUOTE:-
The Fund realisations during this period are on target in terms of
estimated realisable values. The net asset backing of a unit
remains at 44 cents per unit.

All other class actions and liquidator actions that will proceed, is just another
money making exercise for the lawyers, etc. and of course nothing will come of them. Even if something does happen it will be years down the track.
And after all, life is short.

Also the Senate Inquiry will not do us any good, as they will pass new laws on future funds management schemes.

We tried to live in hope, but life goes on and it is good to see this forum is back, and giving some people a hobby in life. Always interesting to see other
people's theories and point of view.

Hope the 3 AG members voted, finally see the Wellington books and how
they operate. Hope they do not uncover a big mess there.


Regards
Lawry1dog
 

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