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Caernarvon Cherry – employee class action

wage theft

Wage theft has been in the news in recent months with some State governments enacting laws to assist employees who have been the victim of wage theft.   

DCP has been approached by a number of people formerly employed at a company named Caernarvon Cherry Pty Ltd (possibly better known as Biteriot Cherry’s or Biteriot Apples (recently re-birthed as Biteriot Operations Pty Ltd)) of 474 Canobolas Rd, Orange (Biteriot).

Biteriot is presently being sued in the Federal Circuit Court (case SYG3175) for a case of alleged wage theft and other former employees may also be entitled to receive money?  Caernarvon is defending the case with the assistance of the NSW Farmers Federation. Caernarvon Cherry is operated by its Directors, Bernard and Fiona Hall. Fiona Hall was awarded a Nuffield Scholarship.

DCP Litigation has been asked to assemble a class action to claim allegedly underpaid wages – which is separate from another class action being finalised for allegedly ripped off farmers.

DCP Litigation is an associated company. We will shortly be announcing we have obtained the use of an AFSL in order to lawfully undertake class action and public litigation funding. More information to follow in a separate post.

Below are some articles explaining the serious issue of Wage Theft. Concerningly, Biteriot employed a number of persons convicted of fraud / criminal offences – including its former paymistress – Paula Neill and Accountant Bruce Johnston.

To sign up to the class action as an employee/victim click here: https://share.hsforms.com/1j9KAqztTSoWDhB2KOZx-tg2uveq

To go to our seperate farmer’s class action page click here.

If you have any questions please feel free to contact us via email us on class-actions@dcpartners.solution or live chat with us on this webpage – click in the bottom corner to livechat now.

Regards

Mark Smith, Director

PS.  If you prefer to raise your concerns about underpayment with the company itself, please email its director Fiona Hall on …. info@biteriot.com.au or call the company on (02) 6365 3477.  

Wage theft articles 

  1. Australian Unions article – https://www.australianunions.org.au/wage_theft_factsheet
  2. Victorian Government wage theft announcement – https://www.premier.vic.gov.au/new-laws-to-crack-down-on-wage-theft/
  3. Redfern Legal Centre blog – https://rlc.org.au/article/short-what-do-if-you-are-experiencing-wage-theft
  4. What to do if you are a victim of wage theft – https://rlc.org.au/article/short-what-do-if-you-are-experiencing-wage-theft
  5. Fairwork Commission video – https://youtu.be/9DdCc2qQeow
  6. ‘Like torture’: Australia’s wage theft epidemic runs deeper than recent headlines – https://thenewdaily.com.au/finance/work/2020/02/21/wage-theft-analysis/
  7. Underpaid (English language) – https://rlc.org.au/publication/factsheet-no3-underpaid-work
  8. Underpaid (Chinese language) – https://rlc.org.au/publication/factsheet-no3-underpaid-work-chinese-simple
  9. Paula Neill – Caernarvon pay-mistress profile: https://www.westernadvocate.com.au/story/1546606/woman-ordered-to-pay-back-thousands/
  10. Bruce Johnston – Caernarvon accountant profile: https://www.centralwesterndaily.com.au/story/4571593/gambler-jailed-after-losing-supreme-court-appeal/
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Case study – the covid ate the estate agent’s homework?

Dog ate my homework

DC Partners (Solutions) Pty Ltd working with a financier client recently had collections dealing with an estate agent where the agent alleged it could not pay ‘factored monies’ because of Covid-19.

In December 2019, the agent factored its rent-roll management cheque for March 2020, expecting to receive around $52,000.

Factoring is the business of purchasing accounts receivables.

In this instance, the estate agent ‘sold’ its March 2020 receivable in exchange for an upfront sum paid in December 2019.

At the end of March 2020, the agent then said it was unable to repay the factor the money (or any of it, despite banking it for themselves at the end of March) “because of Covid-19“.

Factoring ‘discounts’ the purchase price of the receivable. The price paid upfront in December 2019, was based upon the time value of money with the expectations that the funds would be banked in March 2020. Obviously, the funds do not have the same value if the funds are not banked until June or later.

The agent is a well known agent from WA.

If a crime was committed, it was a crime of fraudulent appropriation. Alternatively, as was pointed out to the agent in collections discussions, the agent runs the very real risk that the estate agent continues to trade whilst insolvent, exposing the directors to personal liability. In those instances the agent’s personal assets are exposed to creditors.

If your business is in a similar position, being unable to meet obligations to creditors, there are some important steps that you and your company need to take to protect your personal AND business assets. These can be discussed on 1300-327123 if you find yourself if this position (call anytime till late 5 days).

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Case study – agent forges trust account and sales records

DC Partners (Solutions) Pty Ltd working with a financier client recently uncovered evidence that an estate agent forged evidence of sales to gain a financial advantage borrowing against the agent’s family home and alleged accounts receivable commissions.

The sum of the financial advantage (Fraud) involved was in excess of $100,000.

Amongst other things, the agent inflated the sale value of the property by $1m, inserting a “$1,____,____” in front of the advertised sale price and attempted to represent that the property sold for well in excess of the sum that it did and that the agent was therefore owed a commission of approximately 3x time the sum the agent was actually entitled to.

The agent sought to obtain an advance against the said “higher” commission owed from a factoring company.

Factoring companies ‘purchase’ accounts receivable from businesses.

A commission owed by a vendor is an accounts receivable that becomes due and payable to the agent at the time the sale settles.

In this instance the property did in fact settle but the sale was at its real sale price and not the inflated price.

The crime was detected and the matter has been dealt with civilly at this time with the agent involved making good the wrongdoing.

The agent is a well known agent from the Hunter Valley area of NSW.

The crimes were discovered in early 2020.

DC Partners (Solutions) Pty Ltd says the finding highlight the stress and financial pressure that estate agents are finding themselves in and the lengths that persons in financial stress may go to when they are not thinking clearly.

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

To contact us with any tip-offs, files or information – please use the instant chat tools or form below:

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Case study – real estate agent forges wife’s signature

DC Partners (Solutions) Pty Ltd working with a financier client recently uncovered evidence that the agent forged his wife’s signature to gain a financial advantage borrowing against his family home.

The agent was a well known agent from the Liverpool area of NSW.

The agent has since become personally bankrupt and the agency wound-up in insolvency.

The crimes were discovered in late 2019.

DC Partners (Solutions) Pty Ltd says the finding highlight the stress and financial pressure that estate agents can find themselves in and the lengths when persons are not thinking clearly that they might go to.

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

To contact us with any tip-offs, files or information – please use the instant chat tools or form below:

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Caernarvon Cherry Pty Ltd / cherry growers of Orange class action and litigation further update from DCP Litigation Holdings Pty Ltd

Fiona Hall packing her bags

Thursday 14 November 2019, 5.50pm

Dear potential claimant,

Further to our class action potential claimants newsletter of late last week, we can now advise the following (also see our video) that, according to the attached title searches:

The identity of the purchaser, seemingly being a superfund, suggests the purchases were not intended to be debt financed – super funds find it difficult to borrow funds even mortgages.

The failure of Bernard Hall’s trustee company to purchase those properties, after some 115 days being available to them to raise finances, which it was contracted to purchase suggests things are not good in the Hall camp ….

With:

  • 4 related companies in liquidation,
  • a litigation war between Bernard and his family,
  • the failure to complete 4 out of 5 contracts* (with a $740,000 deposit seemingly at risk),
  • with a litigant seeking a judgment in the sum of around $620,000 and
  • other unknown issues under the surface,

suppliers and customers of Bernard’s company Caernarvon Cherry Pty Ltd, perhaps justifiably, may well have concerns about whether Caernarvon really is a going concern and long-term partner?

More detailed analysis will follow re what the above means (or may mean) to proposed class action participants.

More detailed information on the Hall’s is available on our webpages:

If you are interested in our class-action please complete the form here:  https://www.dcpartners.solutions/2019/07/caernarvon-class-action/ and complete the participants form or call us to discuss the nature of your exposure to the proposed defendants.
Yours faithfully,
call 1300-327123 (till late)
* records as at 4.53pm, 14 November 2019.

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

To contact us with any tip-offs, files or information – please use the instant chat tools or form below:

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Bernard Hall – updated profile

Bernard Francis Hall

Bernard Hall splashes out $8.2m (but fails to complete) – and as at 14 November 2019 – his companies still had only completed 1 of 5 purchases … 90% of the purchase prices still remains unpaid.  Moreover, 4 of Bernard’s companies are now in liquidation, yet despite this the liquidators seem in no hurry to, well, liquidate those 4 companies or their millions of dollars of real estate.

It seems a key assumption by Bernard Hall may be in error.  Bernard is quoted by the Central Western Daily as indicating a belief that he only needed to find the ‘other half’ of the equity he didn’t presently own in the Bonny Glen properties.

Bernard Hall - when $8m means $4m
Bernard Hall – when $8m means $4m

More than 106 days after the auction (as at 8 November 2019), Bernard and his company’s have failed to complete the purchase of 4 of the 5 Bonny Glen properties he bid to purchase at a cost of $8.15m.

In early November 2019, a notice to complete under those 4 incomplete contracts has been issued upon Bernard Hall making completion, at a final price of about $7.4m, time being of the essence, essential by the close of business on 14 November 2019.  As at the close of business on that day (yesterday), Bernard’s purchasing companies had failed to complete.

Bernard, husband of Fiona, is a director of the Bonny Glen companies (in liquidation) and holds a direct financial interest in those properties.

Despite this, it is believed that Bernard cannot simply transfer those interests to the purchasing vehicles, he had to complete the purchase contracts (it is believed) hence the notices to complete.

It would appear from Bernard’s quotes (see article above) he believed he could merely just pay a top up sum to buy out his brother and parents from the properties?  Did his Nuffield Scholar wife also hold this belief?

Bernard (with Fiona) is a joint shareholder and director of Caernarvon Cherry Pty Ltd and other related companies.

The family tree of the Bonny Glen and Hall family/s is below:

Hall family tree of businesses
Hall family tree of businesses

If you have any comments or information about Bernard & Fiona Hall, we’d love to hear from you including any documents using our instant chat, the below form or by phone on 1300-327123.

To contact us with any tip-offs, files or information – please use the instant chat tools or form below:

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Bernard & Fiona Hall – property holdings

Hall family tree of businesses

Bernard & Fiona Hall, directly or indirectly (as at 8 November 2019) have interests in the following properties (subject to change).

At auction in Orange on 24 July 2019, Bernard Hall bid to purchase all 5 of the above properties.

Bernard has thus far (as at 8 November 2019) only completed the purchase of Brooklyn with a further $7.35m outstanding to purchase the above excluding Brooklyn.

Subject to orders of the NSW Supreme Court, these properties are in the process of being sold.

It is understood that a notice to complete has been served upon Bernard requiring him or his purchasing entities to complete the settlement of the 4 remaining properties by the close of business on 14 November 2019.  The possible ramifications of failing to complete are discussed here.

If you have any comments or information about Bernard & Fiona Hall, we’d love to hear from you including any documents via the instant chats below, through the below form or by phone on 1300-327123.

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

To contact us with any tip-offs, files or information – please use the instant chat tools or form below:

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Hakan Kutup charged with fraud and forgery, appears in court

Hakan Kutup

Hakan Kutup, a former Century 21 real estate agent appeared yesterday in the Wollongong Local Court.  Hakan, of 24 Stradbroke St, Shell Cove, has been the subject of other posts here on this website.  Hakan appeared in court charged in relation to 27 counts involving fraud, forgeries or conversion of money but we understand this number may increase?

How was Hakan Kutup able to carry out alleged crimes?

Mark Smith, Director of DC Partners was engaged after the alleged frauds were discovered by the victim, a local funds manager in Sydney.

Mark is the person who reported the matters to NSW Police and NSW Fairtrading.

Mark believe’s that NSW Fairtrading may have been negligent and is co-ordinating a class-action for potential victims of Hakan Kutup.  Class-action participants could include victims of Hakan’s company formerly Century 21 Ultimate Real Estate in Wollongong.

Mark alleges NSW Fairtrading knew or ought to have known about complaints about Hakan Kutup stretching back perhaps more than a decade and failed to investigate.

Mark is organising for those who are interested in joining a class action against the NSW Fairtrading and invites anyone who has lost money – no matter how small to complete the form below.

Interestingly, the Illawarra Mercury / Daily Telegraph hint at potentially more charges.  It is thought these may relate to the operations of a sales trust by Hakan Kutup?  These publications quote the court that there was uncovered “misappropriated funds” in the sum of $220,515 from a Sales Trust account.

DC Partners is keen to talk to or help any persons that have had negative dealings now matter how old or recently – please complete our contact form below (joining the class action is optional):

If readers have other information on the Kutup’s please feel free to complete the below form or email any tips to:  mark@markjsmith.com  or call  1300-327123 (7 days till late).

6 November 2019

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DCPLH v Caernarvon Cherry Pty Ltd – potential growers class action

Biteroit - Caernarvon Cherry

DCP Litigation Holdings is inviting expressions of interest from potential class action claimants against Caernarvon Cherry Pty Ltd ACN 111 047 191 (“Caernarvon“).

Caernarvon Cherry Pty Ltd is a fruit packing operator located at 474 Canobolas Rd, Orange NSW 2800 and predominantly packs Cherries and Apples under the Biteriot brand for Woolworths, Harris Farm and numerous export supermarket chains.

DCP Litigation Holdings is the assignee of the claims of a number of fruit growers from around the Nashdale, Mudgee and Orange / Mt. Canobolas fruit-growing regions.

What is a class action?

A class action is a permitted court action involving 7 or more claimants with substantially similar claims against the same defendant or defendant/s.

What’s the class action about?

We will be arguing, amongst other things, that:

  1. Caernarvon breached the Horticultural Code of Conduct which is a mandatory code within the fruit packing and wholesale sector ;
  2. Caernarvon provided misleading and deceptive fruit packing statistics and materially underpaid our assignees – causing loss ;
  3. In addition, Caernarvon overcharged our assignees for packing services, fruit picking services, packaging, transport, fruit handling, storage and /or otherwise.  In some cases, we have seen evidence where, Caernarvon charged our assignee grower up to almost 400 hours of labour in one summer season for the provision of a “person” / alleged staff member – this ‘person’ having no date of birth, no bank account, no tax file number, no superannuation membership, and no address … (the person actually is alleged to reside at the same address as Caernarvon, 474 Canobolas Rd – together with approximately 100 other alleged staff members) ;
  4. Moreover, Caernarvon at the time of the apparent overcharging of our grower assignee, also charged our grower assignee for the services of a “pay mistress”, Ms. Paula Neill formerly of Landseer St, RaglanAround the same time, Ms. Neill pleaded guilty to stealing the sum of $44,864.56 from a local charity known BINC ;
  5. Caernarvon failed to conduct its fruit growing operations in a workmanlike manner.

And in the process, Caernarvon caused our assignee loss and/or damage.

To be clear, we do not accuse Ms. Paula Neil of any criminal offence, however we do say that Caernarvon itself, with some 900 persons on its payroll did engage in misleading and deceptive conduct causing loss to our assignee, and we believe it is highly likely that a number of other fruit growers from the Orange and nearby locality also suffered loss (we have spoken to many).

Moreover, we say that the assignee is entitled to query the veracity of various expenses, which they have, and about which questions still remain outstanding (Caernarvon refusing or neglecting to account or answer questions).

DCP Litigation Holdings are inviting expressions of interest from other growers and suppliers to Caernarvon Cherry, to discuss the claims with potential class action fruit growers and claimants, who have had a similar detrimental financial experience with Caernarvon.  It will be our proposal to fund all litigation costs of all fruit growers accepted against Caernarvon and to share in any settlement payment or judgment of a relevant court.

How big does my claim have to be?

 
A class-action is ideally suited to large or small growers.
 
The size of the claim is not important.
 
The important aspects of the claim is that they are substantially similar to the what we say above that we will be arguing, i.e. they generally involve the supply of fruit from a grower to Caernarvon and some disagreement about entitlements to money (big or small).
 
The other important factor is that the defendant must be Caernarvon Cherry Pty Ltd of Orange, NSW.
 
 

How fruit growers can get involved?

 
Regardless of how big or small your claim may be, interested parties are asked to complete the below form to express interest.  Once we receive your enquiry we will email you also our class-action FAQ’s.
 
 

CCC class action

join
 
 
 
If you have any comments or information about Bernard & Fiona Hall, we’d love to hear from you including any documents via the instant chats below, through the below form or by phone on 1300-327123.
 

To contact us with any tip-offs, files or information – please use the instant chat tools or form below: