Australian (ASX) Stock Market Forum

Wellington Capital PIF/Octaviar (MFS) PIF

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Looks the CA lawyers have been granted an extension of time from 22 April until the 27th::

ORDER

JUDGE:
Justice Perram
DATE OF ORDER:
6 April 2011
WHERE MADE:
Sydney


THE COURT ORDERS THAT:

1. The time for compliance with Orders 2, 3 and 4 of the Orders made on 18 March 2011 be extended to 27 April 2011.




Orders 2,3 and 4 are as follows:


2. Direct any party wishing to file an application to dismiss the balance of proceedings summarily to do so by Friday 22 April 2011.
3. Direct the applicants to file any application to amend the proceedings to pursue a claim in negligence against the first and second respondents by Friday 22 April 2011 in the form of a notice of motion supported by an affidavit.
4. Direct the applicants to deliver only one version of the proposed pleading and not to deliver any further drafts of any proposed pleadings after Friday 22 April 2011 with the intent that the applicants are to deliver the final pleaded version of the case by Friday 22 April 2011 come what may.
 
Re: Class action and ALF

ACB said:
.... From my reading is appears ALF seems to be more and more an attractive alternative to Wellington - or is it simply jumping from the fire pan into the fire (my trust is not what it used to be). I would to see some comments for the pro's and con's from people on this forum.
Click to expand...

ACB, there's way too many conditions in the take over bid for my liking. 15c cash up front might be enough for me to start looking at the detail of the offer. Show me the money. I.e. 15c is about a 57% discount to 'total net assets at 30 June 2010' and they could pick up the whole fund for $113 mil. If the Creswick owners are behind the ALF bid then they would have refinanced their $40mil and picked up all the other assets for $70 odd mil. If the capital is being raised from sucker shareholders like us then it's a smart move. I.e. pitching shareholders against each other. But for me, ALF can only have my voting rights after the cash is in my bank account. Not before.

I should have listened to Great Dame and took my 20c in 2009 $.
 
Ha ha ha. I notice that ASIC has ditched it's FIDO livery.

I need to clarify something I previously mentioned on this forum regarding our (i.e. unit holders') personal liabilities. It's covered by clause 27 below. What does this clause mean in the real world?
Firstly, can anyone take legal action against the fund itself (i.e. unit holders) or do they always have to take action against the RE? I suspect it's the latter because it's the RE's actions that cause the remediable acts.
Secondly, what's the likelihood of a 'provision deemed' or a 'rule of law' exists that contradicts the indemnity we have under 27.1?

27.1 Notwithstanding any other provision of this Constitution or provision
deemed to be included herein or any rule of law to the contrary, no Unit
Holder shall, by reason thereof, or by reason of the relationship created with
the Responsible Entity, be under any obligation personally to indemnify the
Responsible Entity or any creditor of the Responsible Entity in the event of
there being any deficiency of the Scheme Property or the Scheme Fund as
compared with the Liabilities of the Responsible Entity. The only rights, if
any, of indemnity of the Responsible Entity or of such creditor shall be
limited to recourse to the Scheme Property of the Scheme Fund.

27.2 A Unit Holder shall not be liable for any loss or damage howsoever
incuned or suffered by the Responsible Entity in acting as manager of the
Scheme or otherwise in connection with the Scheme to the extent to which the
same exceeds so much of the consideration (if any) payable for the issue of
Units to the Unit Holder as maybe unpaid and outstanding.

27.3 The Responsible Entity expressly waives, releases, forfeits and
abandons all rights and remedies which it otherwise might have at law or in
equity to recover from a Unit Holder's monies by reason of any right of
indemnity or subrogation notwithstanding that any such right may not be able
to be satisfied or discharged in whole or in part out of the Scheme Property
comprising the Scheme Fund.
 
Just got a phone call from an ALF Finance rep wanting a contact email so they can send an offer for my units.
 
I don't think that WC would be too happy to hear that ALF are ringing around. To collect email addresses is a fairly basic procedure nowadays, but WC doesn't seem to think that it's important..
 
NOR said:
you can tell us .marcom..wc do not read this [[ what a choice we have wc .or .alf....god help us all
Click to expand...

Agree totally, NOR, but I won't be accepting their offer, just want to see the WC dirt file they said they would be including in the offer document - should make for interesting reading.
 
Posted by Duped:

27.1 Notwithstanding any other provision of this Constitution or provision deemed to be included herein or any rule of law to the contrary, no Unit
Holder shall, by reason thereof, or by reason of the relationship created with
the Responsible Entity, be under any obligation personally to indemnify the
Responsible Entity or any creditor of the Responsible Entity in the event of
there being any deficiency of the Scheme Property or the Scheme Fund as
compared with the Liabilities of the Responsible Entity. The only rights, if
any, of indemnity of the Responsible Entity or of such creditor shall be
limited to recourse to the Scheme Property of the Scheme Fund.

From a lay position this looks to limit our personal exposure beyond the fund property. But I'm no lawyer. Surely in the 10,500 investors in our fund we must have at least one lawyer!

Which reminds me that in the 1970's the US government ran a number of studies to model what would happen to society after a major atomic war. Well the conclusion was that the remaining species would contain an over representation of cockroaches AND LAWYERS!
 
Remember David Anderson and David Kennedy from MFS who are now at Equity Trust:

From Business Day SMH
Scott Rochfort
April 13, 2011
http://www.smh.com.au/business/atlas-road-fees-take-toll-on-shareholders-20110412-1dcn1.html

...FUND'S FINESSE

The Gold Coast mortgage fund operator Equititrust should have plenty to share with investors at a briefing next Wednesday.

Less than a week has passed since income distributions were suspended on its two biggest funds, which are also expected to report investor losses some time soon.

An investor class action is also on the cards.

Our guess is the company founder, Mark McIvor, will not repeat a statement he made last year in another company update: ''Post the global financial crisis our record speaks for itself. In our 17-year history we've never had an investor loss. We're proud to adopt our new slogan, 'You've earned the equity; we've earned the trust'.''

But the website does feature something similar he may want to use: ''A company's response to the global financial crisis provides an enduring litmus test by which corporate character and philosophy are measurable. We are proud to say, 'We've earned the trust.'''

Other parts of the site remain unchanged.

''Since the establishment of the Equititrust Income Fund in 1999, all investors in the fund have received 100 per cent of their benchmark rate on their investments.''

Oops, we're sure this is due for a change soon.

At least investors can take solace in the fact that Equititrust is not entitled to its management fee until it hits the benchmark rate of return for investors, which is unlikely given the suspension of distributions.
 
Its all very well ASIC seeking new proposals to better inform potential investors but will it improve their own sad regulatory performance?




http://www.moneymanagement.com.au/news/asic-seeks-increased-disclosure-on-directors
ASIC seeks increased disclosure on directors
By Caroline Munro on 13 April 2011 Increased disclosure around the history of company directors and key managers, including previous convictions or personal bankruptcies, is one of the proposals outlined by the Australian Securities and Investments Commission (ASIC) in its prospectus disclosure consultation paper.

ASIC stated that it sought to improve disclosure within company prospectuses used for initial public offerings or by those with listing intentions through various proposals set out in its recently released Prospectus disclosure: Improving disclosure for retail investors consultation paper. The improved disclosure requirements aim to improve the quality of information released on the proposed business model as well as the associated risks, making it easier for retail investors to use prospectuses to make an informed decision, ASIC stated.

In its consultation paper, ASIC highlighted a number of shortcomings in the current disclosure requirements, one of which was the absence of complete disclosure on directors and key managers that lead or manage companies. ASIC proposed that prospectuses should explain the relevant expertise and skill of directors and key managers, as well as any criminal convictions, personal bankruptcies, disqualifications or disciplinary action within Australia or other jurisdictions in the last 10 years. ASIC also proposed that an explanation be required if a manager or director was an officer of a company that went insolvent during or within 12 months after their term.

Another current shortcoming identified in current prospectus requirements was that risk disclosure was too general, ASIC stated. It proposed that all principal risks be highlighted, as a list of every conceivable risk may not necessarily help investors make an informed decision. ASIC noted that risk disclosure should be specific to that company, with an explanation of what is likely to happen if the risk actually occurs.

ASIC also noted that other shortcomings of prospectuses included fragmented information around risks, returns as well as the company’s business model, which ASIC proposed could be addressed with further detailed information.
 
Re: Class action and ALF

simgrund said:
Yes, yes ACB. Well done! There is a definite turnarout in WellC's support for CA and the document whitewash. Let's welcome these positive zigzags and extend our Facebook invitations to WC team.
But ALF??? How can you waver so far off course, ACB? Even with possibility of liquidation, PIF is well ahead of the grim fate with ALF once we are in their intractable, inflexible and irreversible grip. Less than 0.03 % of holding and salivating at 33% recovery fee from yet to be initiated actions? Will they be third, after ASIC and WC, to file claim for $147.5?
I am signing up on REJECT, REJECT, REJECT billboard.

Cheers
Click to expand...
Thanks for your response. I have very little information about ALF and whether or not it's a good thing or not so I need responses like these to be able to make an informaed choice outside of the marketing hype. You have certainly helped me in that.
Thanks.
 
Re: Class action and ALF

Duped said:
ACB, there's way too many conditions in the take over bid for my liking. 15c cash up front might be enough for me to start looking at the detail of the offer. Show me the money. I.e. 15c is about a 57% discount to 'total net assets at 30 June 2010' and they could pick up the whole fund for $113 mil. If the Creswick owners are behind the ALF bid then they would have refinanced their $40mil and picked up all the other assets for $70 odd mil. If the capital is being raised from sucker shareholders like us then it's a smart move. I.e. pitching shareholders against each other. But for me, ALF can only have my voting rights after the cash is in my bank account. Not before.

I should have listened to Great Dame and took my 20c in 2009 $.
Click to expand...

Thank you for your input. Yes I agree, 15c cash up front I would be looking seriously too because that is better than anything on the horizon at the moment.
I was unaware of the Creswick side of things and that is good to note if it is indeed true. I know incredibly little about this ALF crowd that anything would seemingly be possible.
 
Re: Class action and ALF

seamisty said:
It is my understanding that 'on June 24th 2009 WC agreed with the applicants to permit, facilitate and co-operate in good faith to make available for examination by nominated representatives of the applicants during normal business hours the books and the records of the Fund in the custody, possesion or control of Wellington evidencing or recording the related party transactions entered into by or on behalf of the Fund'

I understand that in exchange for the full co-operation by WC as current RE of the PIF, WIM as previous RE of the PIF (later changed to MIL) would be dropped as a named respondant in the Class Action. As you can see below that there must have been a breakdown in that agreement between WC and the CA lawyers as Managed Investments Limited still remains a respondant.



18 Feb 2010 - Mercedes Holdings Pty Ltd & Ors v KPMG & Ors - Federal Court Proceedings NSD324/2009 ('Class Action'). WC and WIM filed a Notice of Motion seeking to have the former RE (WIM) discontinued as a respondent of the Class Action pursuant to an agreement entered into between Wellington Capital Ltd and the Applicants of the class action. WC state in an NSX announcement released 22 Feb 2010 “Justice Perram declined the discontinuance and the former RE (WIM) remains a Respondent in the class action and the agreement between Wellington Capital Limited and the Applications of the class action is at an end.” WC are saying that because WIM is a respondent in the Class action WC as RE of the PIF will not assist the class action even though WC deny there is any conflict of interest “The notice of motion filed by WC should be dismissed with costs.”

WC as RE of the PIF further stated in correspondence to a unitholder dated 4 March 2010 they are not going to cooperate with the class action due to a dispute between the former RE (MIL) and the applicants’ legal team. Extract from the letter: "there was clearly a dispute between the former responsible entity and the legal representatives for the applications in the class action....The agreement between Wellington Capital Limited and the Applicants' legal representatives is at an end as a result of the dispute.”


ACB, even if WC did not have the documents in their possesion as RE of the PIF one would assume that WC would have access to all PIF related documentation? In the latest PIF investor update WC state 'Wellington Capital Limited, as responsible entity of the Premium Income Fund, does not have and has neverhad documents in its possession that are necessary for the lawyers to argue the case other than the five volumes of material provided in July 2009.
Documents that may be relevant are held by Bentleys Corporate Recovery, liquidators of the former MFS companies'

Well I find it a bit confusing. How can WC assist the lawyers now when WC maintains it couldn't previously:confused:


I personally do not regard the ALF PIF offer as even remotely tempting but perhaps WC realises that PIF investors are becoming even more disenchanted with their performance and that is why we received an investor update before it was due, another 1 cent of our capital returned, an approach to the lawyers offering assistance re the CA, a strategy, a total of two years of management fees (which indicates to me that the Fund may be all over by then???) Or has WC managed nicely enough with operating expenses and registry service fees?

Anyway, hope this helps and remember it is my interpretation which does not mean I am 100% correct. Seamisty
Click to expand...

Yes this is the answer I was looking for. Now to my interpretation for Wellignton to say we have NEVER been of no assistance (excuse the double negative) to the class action lawyers, would have to be incorrect. They very much were not compliant due to a falling out with the previous lawyers. Now that the class action has been taken on by HWL Ebsworth we can expect full cooperation or some cooperation or non cooperation???
I feel quite dismayed that wellington would actually hurt the chance of share holders getting something back when the mandate from an emotional platform was to do everything to save the Mum and Dad investor who has been wronged. That mandate has morphed seriously. All bickering aside about ability of the fund to recuperate, the original manadate seems to have changed into offer another two rounds of 1c dividends so that director fees can be charged to the fund and the dead skeleton of PIF finally buried. I dont see that as being altruistic to the original philosophy at all.
However no amount of complaining will bring the corpse back to life. I feel the only life support availble is through a corporate raider but not in the form of ALF as it would appear.
 
Re: Class action and ALF

ACB said:
Duped said:
ACB, there's way too many conditions in the take over bid for my liking. 15c cash up front might be enough for me to start looking at the detail of the offer. Show me the money. I.e. 15c is about a 57% discount to 'total net assets at 30 June 2010' and they could pick up the whole fund for $113 mil. If the Creswick owners are behind the ALF bid then they would have refinanced their $40mil and picked up all the other assets for $70 odd mil. If the capital is being raised from sucker shareholders like us then it's a smart move. I.e. pitching shareholders against each other. But for me, ALF can only have my voting rights after the cash is in my bank account. Not before.

I should have listened to Great Dame and took my 20c in 2009 $.
Click to expand...

Thank you for your input. Yes I agree, 15c cash up front I would be looking seriously too because that is better than anything on the horizon at the moment.
I was unaware of the Creswick side of things and that is good to note if it is indeed true. I know incredibly little about this ALF crowd that anything would seemingly be possible.
Click to expand...
ACB my understanding is that the original developers of Creswick Forest Resort are in no way involved with the PIF takeover offer from ALF PIF. Seamisty
 
To all thread participants:

I have had to correct the
tags in some posts in this thread recently which leads me to believe that there are some who do not understand how they work and how using them incorrectly can lead to terrible confusion over who is quoting who and who said what.

If you do not understand how the
tags work please read this thread in detail: https://www.aussiestockforums.com/forums/showthread.php?t=2737

I urge everyone to proofread their posts before and after submitting them and please use the "Edit" button to take advantage of the 20 minute window of opportunity to alter your post and correct any errors.

Thank you for your co-operation.
Click to expand...
Click to expand...
 
Re: Class action and ALF

seamisty said:
ACB my understanding is that the original developers of Creswick Forest Resort are in no way involved with the PIF takeover offer from ALF PIF. Seamisty
Click to expand...

Thanks seamisty. I should have written my 'if' in capitals or added that it's: 'a big if'.

My speculation is based on the admissions by a Jim Byrnes on this thread on 27 April 2010 9:42 pm "i acted for two borrowers who borrowed over 80million". On the day before at 8:40 pm Jim Byrnes wrote this https://www.aussiestockforums.com/forums/showthread.php?t=10937&p=550867#post550867. And on 19 May 2010 the Australian Financial Review quoted Byrnes as saying “I acted originally for a couple of borrowers who were borrowers from MFS who had very large damages claims." The Creswick borrower has a very large $160m claim against our assets doesn't it? Well Byrnes has volunteered intimate knowledge about the intentions of a borrower that has a $160m claim against PIF. This suggests to me that Byrnes may have acted for the Creswick borrower in the past.

If Byrnes' isn't in any way acting on behalf of the borrowers he'd previously represented, then I guess they'd be mighty peeved that he is now involved in a bid to become their bankers. Isn't there restrictions on using 'commercial in confidence' info?

As I've said, this is all speculation. But the risks?
 
Duped, Rather than risk stuffing up my quotation marks again I will reply to you in a fresh window!! (No wonder so many are reluctant to post, many of us are self taught, advanced aged IT non experts!!)
As I understand, and only passing on snippets of info I greatfully receive but do not necessarily interpret correctly, Forest Resort had some sort of brief interlude with the J Byrnes related litigation funders initially before doing some research and consequently terminating any further discussion. Perhaps J Byrnes saw an opportunity to 'cash in' on that prior association to further advance the ALF PIF ridiculous offer. I think from memory J Byrnes did not even get the location right, said something about a PIF asset in SA? I stand corrected, but I do know for certain that there is no current connection with Forest Resort developers and ALF PIF. Seamisty
 

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