Bankruptcy Part X: Personal Insolvency Agreements (s188)

BANKRUPTCY ACT 1966 – SECT 188

Debtor may authorise trustee or solicitor to be controlling trustee

             (1)  A debtor who desires that his or her affairs be dealt with under this Part without his or her estate being sequestrated and:

                     (a)  is personally present or ordinarily resident in Australia;

                     (b)  has a dwelling-house or place of business in Australia;

                     (c)  is carrying on business in Australia, either personally or by means of an agent or manager; or

                     (d)  is a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;

may sign an authority in accordance with the approved form naming and authorising a registered trustee, a solicitor or the Official Trustee to call a meeting of the debtor‘s creditors and to take control of the debtor‘s property.

             (2)  An authority signed by a debtor under this section is not effective for the purposes of this Part unless:

                     (a)  if the person authorised is a registered trustee or solicitor–the person has consented in writing to exercise the powers given by the authority; and

                    (aa)  if the person authorised is the Official Trustee–an Official Receiver has given the debtor written approval to name the Official Trustee in the authority.

       (2AA)  If the person authorised is a registered trustee or a solicitor, then, before the person consents to exercise the powers given by the authority, the person must give the debtor the information prescribed by the regulations.

       (2AB)  If the person authorised is the Official Trustee, then, before the Official Receiver gives approval to name the Official Trustee in the authority, the Official Receiver must give the debtor the information prescribed by the regulations.

          (2A)  The regulations may prescribe the circumstances in which a person (other than the Official Trustee or a registered trustee) is ineligible to act as a controlling trustee under this Part.

          (2B)  An authority signed by a debtor under this section is not effective for the purposes of this Part if, at the time the authority is signed, the person authorised:

                     (a)  is not the Official Trustee or a registered trustee; and

                     (b)  is ineligible, under the regulations, to act as a controlling trustee under this Part.

          (2C)  If the person authorised is a registered trustee or solicitor, the authority signed by the debtor under this section is not effective for the purposes of this Part unless, before the person authorised consents to exercise the powers given by the authority, the debtor gives to the person authorised:

                     (a)  a statement of the debtor‘s affairs; and

                     (b)  a proposal for dealing with them under this Part.

Note:          Section 6A sets out requirements for statements of affairs.

          (2D)  If the person authorised is the Official Trustee, the authority signed by the debtor under this section is not effective for the purposes of this Part unless, before an Official Receiver gives approval to name the Official Trustee in the authority, the debtor gives to the Official Receiver:

                     (a)  a statement of the debtor‘s affairs; and

                     (b)  a proposal for dealing with them under this Part.

Note:          Section 6A sets out requirements for statements of affairs.

          (2E)  A proposal for dealing with the debtor‘s affairs under this Part must include a draft personal insolvency agreement.

Note:          Section 188A sets out requirements for personal insolvency agreements.

             (3)  An authority under this section that is effective for the purposes of this Part is not revocable by the debtor.

             (4)  Subject to subsection 192(1), a debtor cannot give an authority within 6 months of giving another authority, unless the Court grants leave to do so.

             (5)  A registered trustee or solicitor who consents to exercise the powers given by an authority must, within 2 business days of consenting, give a copy of:

                     (a)  the authority; and

                     (b)  the debtor‘s statement of affairs;

to the Official Receiver.

             (6)  When an authority becomes effective, the person authorised by it becomes the controlling trustee.

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s188.html

More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

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Acts of Bankruptcy – s40(1)(ha) to s40(8) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(ha)-s40(8)

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

… (ha)  if the debtor gives the Official Receiver a debt agreement proposal;

                   (hb)  if a debt agreement proposal given by the debtor to the Official Receiver is accepted by the debtor’s creditors;

                   (hc)  if the debtor breaches a debt agreement;

                   (hd)  if a debt agreement to which the debtor was a party (as a debtor) is terminated under section 185P, 185Q or 185QA;

                      (i)  if he or she signs an authority under section 188;

                      (j)  if a meeting of his or her creditors is called in pursuance of such an authority;

                     (k)  if, without sufficient cause, he or she fails to attend a meeting of his or her creditors called in pursuance of such an authority;

                      (l)  if, having been required by a special resolution of a meeting of his or her creditors so called to execute a personal insolvency agreement or to present a debtor’s petition, he or she fails, without sufficient cause:

                              (i)  to comply with the requirements of this Act as to the execution of the agreement by him or her; or

                             (ii)  to present a debtor’s petition within the time specified in the resolution;

                            as the case may be;

                    (m)  if a personal insolvency agreement executed by him or her under Part X is:

                              (i)  set aside by the Court; or

                             (ii)  terminated;

                     (n)  if a composition or scheme of arrangement accepted by the debtor’s creditors under Division 6 of Part IV is:

                              (i)  set aside by the Court; or

                             (ii)  terminated;

                     (o)  if the debtor becomes insolvent as a result of one or more transfers of property in accordance with:

                              (i)  a financial agreement (within the meaning of the Family Law Act 1975); or

                             (ii)  a Part VIIIAB financial agreement (within the meaning of the Family Law Act 1975);

                            to which the debtor is a party.

             (2)  In calculating for the purposes of subparagraph (1)(d)(i) the period for which property has been held by the sheriff, any time between the date on which an interpleader summons in respect of the property is taken out and the date on which the proceedings on the summons are finally disposed of, settled or discontinued shall not be taken into account.

             (3)  For the purposes of paragraph (1)(g):

                     (a)  where leave is given by a court to enforce an award made on a submission to arbitration, being an award under which money is payable by a debtor to another person:

                              (i)  the award shall be deemed to be a final order obtained by that person against the debtor; and

                             (ii)  the arbitration proceedings shall be deemed to be the proceeding in which that final order was obtained;

                     (b)  a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which it was obtained;

                     (d)  a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;

                     (e)  a judgment or order for the payment of money made by the Court in the exercise of jurisdiction conferred on it by this Act shall be deemed to be a judgment or order the execution of which has not been stayed notwithstanding that it may not be enforceable at law by execution; and

                      (f)  an order made after the commencement of this paragraph under the Family Law Act 1975 for the payment by a person of arrears of maintenance for another person shall be deemed to be a final order against the first‑mentioned person obtained by the other person.

             (4)  The act of bankruptcy specified in paragraph (1)(j) shall be deemed to be committed on the day on which the notices calling the meeting are delivered or sent to the creditors or, if they are not all delivered or sent on the one day, on the day on which the last of the notices is so delivered or sent.

             (5)  The act of bankruptcy specified in paragraph (1)(l) shall be deemed to be committed on the day after the day on which the period within which the agreement is required to be executed by the debtor or the period within which the petition is required to be presented, as the case may be, expires.

             (6)  The act of bankruptcy specified in paragraph (1)(m) shall be deemed to be committed on the day on which the agreement is set aside or terminated, as the case may be.

             (7)  The act of bankruptcy specified in paragraph (1)(n) shall be deemed to be committed on the day on which the composition or scheme of arrangement is set aside or terminated.

          (7A)  For the purposes of paragraph (1)(o):

                     (a)  transfer of property includes a payment of money; and

                     (b)  a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person.

             (8)  This section applies, so far as it is capable of application, in relation to acts and things done or occurring, and omissions and failures to do acts or things occurring, before, or partly before and partly after, the commencement of this Act, as well as to acts and things done or occurring, and omissions and failures to do acts and things occurring, after the commencement of this Act.

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

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More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

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Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript

welcome back to business asset protection, mark smith is  my name. we’re up to part seven just of section 40 of the bankruptcy act, and there is we’re looking at acts of bankruptcy and there is heaps and heaps of these acts of bankruptcy and to be honest we could go for a week and and still probably not get through them all so today we’re just going to smash through the rest of them from section 40(1)(ha)
all the way through to section 40(8)
and there’s a lot to get through so strap on your seatbelt and here we go. well here we are section 40(1) of the bankruptcy act. a debtor commits an act of bankruptcy in each of the following cases …. now we’ve gone through a b c d e a double d a d e f g h and we’re now up to section HA if the debtor gives and look i’m sorry this will take we’ve got ages to go we’ve all got to go all the way down to h and i’m going to just skim through these and i apologize it is a skim if you’ve got any questions at all come to our website bottom right hand corner dcpartners.solutions and chat with us and what does part 2 of section 40 of the bankruptcy act what does section part 8  know mean? so by all means i understand it’s a scheme we’ll just go through these as quickly as we can and we’ll get through and any questions you’ll come come and talk to me offline we’re available anytime chat with us using the chat tools or call us on 1-300-327-123 now let’s have a look at section ha if a debtor gives the official receiver that’s a mob called afsa afsa.gov.ou a debt agreement so there are these are acts of bankruptcy and once you commit them you cannot go back from them, so very very important that you know that it is an act of bankruptcy and then you know that the what the consequences might be so a debt agreement now we’ll look at debt agreements later in our coverage of the bankruptcy act we’re only looking at what are acts of bankruptcy. so if you’ve got any questions about debt agreements or any of the other things that you come across coming through the rest of this particular video message me offline. hb if a debt agreement proposal is given by the debtor to the official receiver so again official receiver is afsa.gov.au this is out and it’s accepted by your creditors well that’s an act of bankruptcy as well so giving and then if you breach that hc if you breach that well another act of bankruptcy if and so these can you can see that these can accumulate so you might commit an act by giving the official receiver hi giving the official receiver debt agreement proposal but then if you breach it there’s another act of bankruptcy and so you can see that all of these ongoing acts a creditor if you don’t keep your end of the bargain hey credit i can use that against you in a creditor’s petition and we are going to have a look at creditors petitions that’s why we need to wrap this up if you hc if the debtor breaches a debt agreement well there you go that is a an act of bankruptcy hd if a debt agreement to which the party the debtor party was a party is terminated. so if you cease your obligations under that agreement another act. I – if he or she signs an authority under section 188 we’ll look at one section 188 now at the bottom of this particular blog or maybe it’s right at the very top of the of www.dcpartners.solutions of the particular blog that you might be looking at on on on this video you’ll see a link to section 188 so a tag a tag and so you can go and there’s a tag for date agreement there’s a tag for acts of bankruptcy so if you want to go back and see all the different extra bankruptcy use those tags aye did we look at that if he or she signs an authority under section 188 so what does that mean we’ll go to the tag above and look at the section 188 comments now at the moment there is no section 188 comments but they’re coming so this is a ongoing process. J if a meeting of his or her creditors is called in pursuance of such an authority. some of these things might make a bit more sense using the tags K if without sufficient cause he or she fails to attend a meeting of his or her creditors in pursuance of such an authority. so are you getting the gist that once you once you’re into this process of a formal process of insolvency, there are a number of potential acts of bankruptcy that can be used and no 99% of the acts of bankruptcy that are relied on in the courts is the failure under under a bankruptcy notice that’s s40(1)(g) – 99% we’ll just go back up to that 99% maybe 98% of the ones where someone does go bankrupt, happen when happened when you’ve issued a bankruptcy notice and a demand here … ralph plays $106,551 and they fail okay so 99 98 are of that kind. the other 2% percent as i said relate to some of these i guess more obscure methods of committing acts of bankruptcy and they are nevertheless acts of bankruptcy which the courts can use to issue what’s called a sequestration order. so that’s a new concept and there’s a tag above not on youtube but on our web page so go to our web page dcpartners.solutions and this particular blog has a tag for what a sequestration so there will be more and more of these posts and blogs and explanations about sequestration and other other things l where did we get to sorry did we get to k? L if having been required by a special resolution of meeting me of a meeting of his or her creditors to execute a personal insolvency agreement and then you fail.
m if a personal insolvency agreement executed by you is set aside by court or if you if it’s terminated or it’s … well it it means that once you’re in you can go to the next there can be a further consequence okay. it’s bankruptcy don’t get me wrong it can provide a lot of protection and a lot of yeah i guess the protection is one way to look at it a relief it can offer relief to a to a debtor who accepts that they have unmanageable debts if you only go part way in and you do one of these part X agreements again up above look at the part X tag and if you want to look at more content if you go part way in it can accelerate you can go to there can be further acts of bankruptcy and that can have consequences. N if a composition or scheme of arrangements. scheme of arrangements we can’t possibly explain all of this one bit at a time but if you’ve got a question again use the tags call us 1300 327123 or instant chat with us using the tool in the bottom corner in if a composition or scheme of arrangement executed under division six of part four is set aside. all these different concepts. again these tags should help you. O if the debtor becomes insolvent as a result of one or more transfers under the family law act so if you’re again if you can’t pay your debts because you’ve gone through a divorce that can be an act of bankruptcy you’ve got to be very very very careful and it may not even be a divorce you you have a these financial binding agreements, so these are prenups these can get you into trouble as well. so an act of bankruptcy is you transfer out your your assets to your spouse. your wife your husband your whatever your companion. and these can have very serious consequences so much so that you could find your entire estate your entire estate is subject to a sequestration order possibly affecting your spouse. like the we we can’t look at all the powers right now but the powers are immense so let’s go on to now on to part two so this is section 40(2) … a person commits an act of bankruptcy oh no now these are not where you commit them but these explain a little bit further about the above acts so in calculating part two in calculating for the purposes of section 40(1)(d)(i) … the period of which that was where the sheriff turns up and attempts to sell your goods your channels and maybe your property these can be an act of bankruptcy so if you find you’re in one of these positions either someone owes you money or you owe someone else any money by all means instant chat with us using the tool or call us 1300-327123 section three well part 3 for the purposes of paragraph one g now that’s the one where someone issues a bankruptcy notice and gives you 21 days now it used to be 6 months during covid and you know there are a lot of ways that you can get around this all of these we we really can’t go through but there are ins and outs that’s what we will say ins and outs and a lot of complexity if you want us to explain it by all means give us a call 1300 327123

section 40(4) the the act of bankruptcy in paragraph 1j will be deemed to be committed now i’ll throw in a link to paragraph s40(1)(j) we’ve gone through that i think today i can’t remember all of these there are so many so look i think in wrapping up there is lots and lots and lots of complexity and again i think we probably best to say if you’re in in any position where the point is that there’s lots of risks in when you become insolvent or when you become under financial pressure there are lots and lots of risks and if you’re exposed to one of those risks and you attend a meeting you get a divorce there are many many risks and so probably the best thing to do if you if you think that you’re facing trouble give us a call 1-300-327-123 or use the chat tool bottom right hand corner www.dcpartners.solutions so we’re actually going to move on next probably here to bankruptcy notices and we’ll have a look at those and if you’ve got any questions by all means chat with us call us 1300 1-300-3273 or use the chat tools www.dcpartners.solutions …. thank you very much.

Acts of Bankruptcy – s40(1)(d-h) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(d-h)

  

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

                   (d)  if:

                              (i)  execution has been issued against him or her under process of a court and any of his or her property has, in consequence, either been sold by the sheriff or held by the sheriff for 21 days; or

                             (ii)  execution has been issued against him or her under process of a court and has been returned unsatisfied;

                  (daa)  if the debtor presents a debtor‘s petition under this Act;

                   (da)  if the debtor presents to the Official Receiver a declaration under section 54A;

                     (e)  if, at a meeting of any of his or her creditors:

                              (i)  he or she consents to present a debtor‘s petition under this Act and does not, within 7 days from the date on which he or she so consented, present the petition; or

                             (ii)  he or she consents to sign an authority under section 188 and does not, within 7 days from the date on which he or she so consented, sign such an authority and inform the chair of the meeting, in writing, of the name of the person in whose favour the authority has been signed;

                      (f)  if, at a meeting of any of his or her creditors, he or she admits that he or she is in insolvent circumstances and, having been requested by a resolution of the creditors to bring his or her affairs under the provisions of this Act, he or she does not, within 7 days from the date of the meeting, either:

                              (i)  present a debtor‘s petition; or

                             (ii)  sign an authority under section 188 and inform the chair of the meeting, in writing, of the name of the person in whose favour the authority has been signed;

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

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More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript

hi mark smith, here welcome back to business asset protection, today we’re having a further look at some other sections. now there are endless acts of bankruptcy maybe not endless but we’re looking at a number of them so we’re looking at today from about section 40(1)(d)-(h) of the bankruptcy act.

so sit back and enjoy. all right so let’s have a look at the section 40(1) of the bankruptcy act. so a debtor commits

as act of bankruptcy in each of the following so we’ve looked at a b c we’re well

we’re now in d and we’re going to look through to h we’ve already had a look at g and we’ll touch

on that briefly when we get there so you commit an act of bankruptcy on every one of these occasions

all right so let’s quickly go to section d

you commit an act of bankruptcy if that the sheriff turns up and tries to sell your stuff and it’s either sold but it hasn’t paid the debt so that’s that’s a section 40(1)(d). there’s a pardon me so there’s been a writ for possession of your goods and they’re either sold or held by the by the sheriff for more than 21 days so this has come back unsatisfied that’s that is the key they come back unsatisfied poor sheriffs this is fairly self-explanatory DAA. if the debtor’s prison well if you present your own debtors petition you are bankrupt that’s that’s an act of well sorry that’s an act of bankruptcy now even if it’s not accepted it is itself an act of bankruptcy d.a if the if the debtor presents a declaration so there is a way you can present this declaration and we can have a look at that in section 54A if you have a meeting of your creditors and it’s decided that even just having a meeting itself would be a well we’ll have a look so this is section 40 in brackets one in brackets e if at a meeting of his or her creditors he or she commits a commits to presented as a petition so if you come out publicly and say well it’s going to happen within seven days even if you don’t well that’s that’s going to be an act of bankruptcy or he or she can sense to sign an authority under section 188 and we’ll have a look at that a little bit later within seven days and if there’s minutes kept and that sort of thing and there’s a meeting chair and it’s all in writing well and you know there’s a vote of your creditors well so be it, that’s an act of bankruptcy. F now we’re not going to have a look at g but we are going to have a look at f if at a meeting of his or her creditors so this these are sort of sounding like you’re talking formally about being insolvent they are themselves an act of bankruptcy so we’ve had a meeting of his or her creditors he or she admits that he or she is in is in insolvent circumstances and having it doesn’t have to be the entire the entirety of your creditors we can have a look more closely at some of this case law or you’ve got any questions give us a call but if if you’ve been in one of these positions where you’ve had a meeting with your creditors or someone’s been in that position with you where they’ve had a meeting of their creditors and you’ve you know said that you will pass a resolution well these are all factors that point very very heavily as acts of of acts of bankruptcy so g. g now we have had a look at this if a creditor obtains a final judgment so we don’t get a judgment against ralph paligaru for $106,551 we serve him and he doesn’t pay he had six months that’s that is an act of bankruptcy there and then there can be some exceptions for instance where a notice was served in australia within a fixed time and the debtor does not does not comply with the requirements so the bankruptcy number said ralph you’ve got to pay $106,551 within 6 months so that’s actually very generous it’s now as it today today’s the 19th of april 2021. the average creditor gets 21 days and after 21 days you have you have committed an act of bankruptcy. so so where the dead or does not comply with the requirements of the notice or satisfy the court that he or she has a counter claim so yes well it’s not only that it’s a counter claim set off or cross demand equal to or exceeding the amount of the judgment debt as the case may be THAT that he or she could not could not could not have set up in the action or proceedings in which the judgment was obtained so they had a counter claim and but they could not they couldn’t set up this counter claim so this is a little bit different and look finally finally we’ll have a look at now h. if he or she gives his or her creditors notice that he’s about to suspend payments of his or her debts so we’ve got this situation with mr paligaru and where he’s he’s given not necessarily every one of his creditors but possibly i can think of i can think of a couple who’s given notice and says well i’m not paying because i’m going bankrupt well there you go yeah you’ve committed an act of bankruptcy just then and there there are a few more of these, and we might have a look at that in a separate video this is obviously a technical space so what i do encourage people to do depending on their circumstances we’ve got health checks we’ve got questionnaires you can chat with us on our chat tools in the bottom right corner here of dcpartners.solutions we’d love you to be in contact with us you’ve got someone that owes you money or you owe them money we can help you on either side the debtors side or the creditor side we can give you advice on these pre-insolvency issues so it’s it’s really important what you say what you well you can see for yourself you attend a meeting and you pass resolutions you tell our creditors various things then we can talk through with you what some of your options are  ,

so we’ll have a look at some of the remaining acts of bankruptcy there are more there are even more and there’s plenty of ways there’s only 50 ways to leave your lover but i don’t know if there’s 50 ways that you can go bankrupt but we’re going to keep looking and thank you very much for joining in. got any questions, chat with us bottom corner here www.dcpartners.solutions use the chat tool or give us a ring 1300-327123 or you can email me mark@dcpartners.solutions. thanks very much bye

Acts of Bankruptcy – s40(1)(c) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(b)

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

                     (c)  if, with intent to defeat or delay his or her creditors:

                              (i)  he or she departs or remains out of Australia;

                             (ii)  he or she departs from his or her dwelling-house or usual place of business;

                            (iii)  he or she otherwise absents himself or herself; or

                            (iv)  he or she begins to keep house;

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

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Need finance for your business – big or small? Even if you need funds for a tax debt or other problem – we may be able to assist – click here for next steps.

More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript

well, welcome back to business asset protection where today we’re having a look at the bankruptcy act. this is part four of our series today we’re looking at section 40 (1) (C) and different ways that a person might try to defeat or delay his or her creditors so come join us okay well here we are in section 40 (1)(C) and we’re looking at a a debtor commits an act of bankruptcy in each of the following: so they’re all equal okay so if if someone gives you a bankruptcy notice for a hundred billion dollars and you don’t pay it well that that is equal to one act of bankruptcy section 40(1)(C) a debtor commits an act of bankruptcy and each in each of the following cases we’ll see as if with intent to defeat or delay his or her creditors well let’s have a look at this very closely so if , if so that’s the question if if with intent to defeat or delay his or her creditors okay so let’s have a really close look at this that’s section 40(1)(c) if we intend to delay to defeat to defeat which is final or to delay which just means it can only be temporary only has to be slight um his or her creditors in brackets one he or she departs or remains from australia so if you’ve departed um well that may be – that may be an event bankruptcy now it doesn’t it doesn’t automatically follow but there are some instances so you do you depart australia or you remain out of australia and and it comes down to – with intent to delay – or defeat his or her creditors. so again it’s not automatic um two he or she departs from his or her dwelling or usual house OR place of business so we’re gonna maybe actually have a quick look at some of this actual case law and we’ll see what it says. 3 he or she otherwise have since himself or herself so that can be you know from australia it could be from you know bondi if that’s where you um depart and you know you just go missing or number four if he or she begins or begins begins to keep house. again it doesn’t have to be permanent but that in itself just the beginning to keep house can can if with intent to defeat or delay his or her creditors he or she departs or remains out of australia he or she departs from his or her her dwelling house or usual place of business or so he or she departs his or her dwelling OR usual place of business so in other words you do a runner. all right well i’m just going to refer a little bit to this book that i’m reading and i think it’s really it’s quite complex it’s a little bit technical but i think if you’ll allow me to just um refer to this book i think you’ll get a little bit out of it um what is it what does it mean and what happens in these circumstances if one of these four tests is is present? that they departed or remain out of australia? departed from his or her home or usual place of business? as absenting himself or herself? or beginning to keep house that is to remain in one’s house now this is what keeping house means it means to remain in one’s house and refusing entry to others to serve a process so just that in itself could could easily be enough it’s not guaranteed you’ve got the covid virus and you’ve been told to quarantine that that would be a perfect excuse? if you’ve got cold or flu-like symptoms that too might be a reason temporarily so to keep house the onus is on yes so the creditor the person that’s trying to bankrupt um is has the owners to establish that the debtor’s intent is to delay or defeat okay so um it does not necessarily have to be the soul intent if it’s if it’s like a collateral attempt intent that that may well be enough um this can be proved directly through the use of statements so um for instance ralph wants to come back he’s choosing to be way you know these these inferences that you can be that can be drawn um use of statements by the debtor or indirectly or indirectly thanks john. um by inference by pro by proving the existence of circumstances which must necessarily cause delay. and which the detour must be presumed to have foreseen or intended to be to be or intended as a necessary result of what he or she was doing. so we could talk through some examples of this defeating or delaying a creditor need not be the debtor’s sole intent in leaving australia or remaining out of australia. now these these cases were pre-covid. so again there’s probably some argument to say well i’m remaining out of australia because it’s impossible to get back or i’d have to do two weeks quarantine like there may be some this there’s some grey here so um possibly so it need not be the need not be the sole intent as long as it’s an intent it’s not enough to simply show that the letters the debtor’s conduct has caused delay it has to be intent intention of delaying or defeating.
so it’s it’s a bit technical. i if you’re if you’re either one of in one of these two situations you’re the debtor and you’d like you know to talk through some of the options, we’ve got a pre-insolvency um we’ve got a pre-insolvency division / work and we can do this same work for the creditor so we can talk through and give you some advice on pre-insolvency issues um with quite a bit of precision um these things can be can be uh the absence is they can be an ongoing event of uh bankruptcy so uh it need not uh it could have started ten years ago um if if a person’s uh remaining out of australia because they know the moment they step back in the country uh something’s gonna happen well that in itself may be an event so there can be an ongoing or uh there’s a continuation um these are continuing acts of bankruptcy so we’re going to look at some of the other bits um of the act uh gradually throughout the series um there’s a time element um in in many of these so these can be an ongoing act uh and if you want to have a read of something case law i can make contact with me use our chat tools in dc partners dot solutions bottom right hand corner um of your screen uh there’s a chat tool so join us there um yeah so there is some case law uh if you want some you know general advice um now if you’ve got someone that’s in this position where uh you know they’re keeping house uh they are absent from australia uh they’re remaining outside of australia uh all these kinds of issues uh they’ve done a runner from their usual house um they’re not telling you where they are they’re not answering the phone they are answering the phone that they’re not they won’t tell you they want some of these uh actually.
matthew taunton there you go um uh refused to give us uh this is a guy we’re going to um mention and uh he’s he’s uh one of our villains. so you’ll you will find out uh he’s not there yet but uh he’s going onto our blog i promise you i promise you he’s going there so look uh these are some of the cases. um uh the technical as i said uh you want to talk through some of the different details give us a call 1300 327123 um if you’re in one of these positions and uh you need money uh but you know maybe you’ve got a temporary problem well we might still be able to help you 1300-327123 uh we’ve got uh tax debt um type uh facilities um you know if you’ve got a tax problem um and maybe you’re in that position where you’ve got the financial difficulty we we possibly can help you uh on either side of the fence uh the debtor site or the creditor site so give us a call 1-300-327-123 got any questions uh you can chat with us anytime uh www.dcpartners.solutions bottom right hand corner user check tools thanks very much

Acts of Bankruptcy – s40(1)(b) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(b)

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

(b)  if in Australia or elsewhere:

                              (i)  he or she makes a conveyance, transfer, settlement or other disposition of his or her property or of any part of his or her property;

                             (ii)  he or she creates a charge on his or her property or on any part of his or her property;

                            (iii)  he or she makes a payment; or

                            (iv)  he or she incurs an obligation;

                            that would, if he or she became a bankrupt, be void as against the trustee;

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

Need finance?

Need finance for your business – big or small? Even if you need funds for a tax debt or other problem – we may be able to assist – click here for next steps.

More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript

welcome back mark smith here from business asset protection we’re a division of dc partners solutions uh we’re having a look at s40 of the bankruptcy act. and we’re actually into part 3.

so today we’re looking at s40(1)(b) and we’re looking at transactions that are voidable against your future bankruptcy trustee.

okay so here we are in s40 and we’re going to be nice and familiar.

again if you’re looking at these make sure you’re looking at the most recently in force

version of the bankruptcy act 1966.

because it does change all the time. even if you google it you will probably come to the wrong version. so to get to that latest version, go to this series,
you can just click on view series and view the latest. and we’re going to administration proceedings there you go s40. so we’re looking at section today well we’re looking at s40(1)(b). so this is where a debtor commits an act of bankruptcy. in each of the following. so there’s many many many of these and this particular one we’re looking at today s40(1)(b). IF in australia or elsewhere he or she makes a conveyance. now we have a look at the definition of conveyance and i’ve got the definition up there for you to have another look at it’s it’s a way of disposing of or getting rid of makes a conveyance transfer settlement that may have a particular meaning. so we should we should look up a settlement,
uh or other disposition. so that leaves it very open. it’s another way of disposing of his or her property, or of any part. so you just get rid of the juices part. or a small part. or any part of his or her property. so it must be his or hers to begin with. and it’s disposed of um in australia or elsewhere you can be a timbuktu.

you could be on the moon. it wouldn’t matter where it was. so that’s only that’s only part one,

way number one. he or she creates a charge on his or her property. now here we go we looked at this in up. above we said that that wasn’t necessarily to do with security?
but here it’s where he or she creates a charge on his or her property? and we should again, very technical. but what is what does the word charge mean? we should have a look at this and i’ll try and pop that definition up over my shoulder. here so you can have a look. he or she makes a payment.

BROAD. or he or she incurs an obligation. so you go and borrow 100 million dollars when you know there’s no possible way that you could uh service it. so you get you charge on your property. you make a payment. you give away 5 million bucks. and  in circumstances where you can’t pay your other bills. these would be um, sorry so, if in australia they do all these things, that would IF he or she became bankrupt, IF he or she became bankrupt would be void as against the trustees. so this now brings us into s120, s121 and s122. these voidable transactions. so it’s it’s a absolute pandora’s box and just looking further at this word charge, i’ve done some research off-air. and it would appear to me that there’s a very broad interpretation of the word charge. so it basically is going to be mortgage or indebtedness or liability. you could even think of it in terms of hocking. uh you’re going to hock some piece of property uh. it could be big or small. it could be centrepoint tower. you could be you you’ll hock your car um. you create a charge in circumstances that would IF you became bankrupt, be void against your trustee. so it’s something that can be unraveled at at a later point? very broad. very very very broad. so we’re going to have a look at um we haven’t got into voidable transactions. there is, we’re only at at s40(1)(b). so we’ve had a look at clause g. which is bankruptcy notices. uh we’ve had a look at clause (a). if you make a conveyance um for the benefit of your creditors generally. and also these are the ones that would be void uh as against your trustee. so there’s a lot more to go through. and i hope you’re getting the gist of just how broad these powers are? so if you’re in the position where someone has served a bankruptcy notice on you? you think you’re insolvent? you can’t pay your bills? or you’ve got someone else who, you’re a small business? and you’ve got someone that owes you money? and someone’s making payments, incurring obligations, creating charges on their properties, conveying parts of their property, or all of their property? um it’s, it would be really good to talk to you. um give us a call on 1300-327123. uh chat with us at the website, using the tools down in the bottom right hand corner of website. this one, bottom right hand corner uh on our webpage www.dcpartners.solutions – we’ve got an instant message tool .

there you can upload your documents. um as whether you’re, you know you’ve been served a bankruptcy notice? or you’ve got someone who’s indebted to you? and IF you’re looking for someone that’s very very skilled at this debt recovery stuff. so um come and have a talk to us. the first meeting’s obligation free. won’t cost you anything. and we’ll tell you uh very clearly very quickly whether we can or we might be able to help you. we we may not be able to say yes, we definitely can help you but we can give you a clear indication of whether we think we might be able to help you. so happy easter.

today’s the friday the 2nd of april 2021. this is probably going to air on the 3rd April 2021, um but we’re available uh you know very long hours, money never sleeps so they say uh – 1300-327123. or use the instant message chat uh tool uh in the bottom right corner of our screen on www.dcpartners.solutions

so thanks for tuning in uh

next we’re going to get into section 40(1)(c) of the Bankruptcy Act.

many many other exciting ways uh that you can um uh give the strong hint that you might have committed an act of bankruptcy

thanks very much. 1300-327123 or chat with us bottom right corner of our screen … www.dcpartners.solutions

Acts of Bankruptcy – s40(1)(a) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

(a)  if in Australia or elsewhere he or she makes a conveyance or assignment of his or her property for the benefit of his or her creditors generally;

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

Need finance?

Need finance for your business – big or small? Even if you need funds for a tax debt or other problem – we may be able to assist – click here for next steps.

More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966?

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript:

happy easter it’s mark smith here from business asset protection, a division of dc partner solutions
well we’re continuing part two of our series, on … part two of our series on s40 of the bankruptcy act
and uh it’s only a small section but wow isn’t it uh incredible?
so we’re gonna have a look now at s40(1)(a) and maybe we’ll get to b as well?
so sit back and enjoy
okay well now we’re looking at uh section 40(1)(a)

and we probably should have a look at b as well here because uh this is probably not going to take a huge amount of time
but these are acts of bankruptcy which the court can take into consideration
uh this is fit within uh the bankruptcy act
acts of bankruptcy proceedings in connection with bankruptcy
so uh when there are proceedings or if there are proceedings uh a court can take these things into consideration as proof of your bankruptcy
um and let’s probably we should just actually have a look at the word bankruptcy and just see what it actually means
um so this is a little bit of interpretation max so let’s have a quick look at the word bankruptcy bankrupt in relation to uh jurisdiction or proceedings means a jurisdiction or proceedings by virtue of this act.
bankrupt means a person against whose estate a sequestration order has been made or who has become bankrupt by virtue of them presenting their own debtors petition
so a bankrupt is a person whose estate is under administration
basically so that’s um that’s a very key concept
let’s now have a look at … a debtor commits an act of bankruptcy in each of the following cases and there’s quite a few here
so we’re not going to go through them all today
but let’s have a look at section 40(1)(a) of the Bankruptcy Act 1966.
and we’ll see how we go
so it’s um in in australia or elsewhere. so you could be in fiji for instance
and you make a conveyance
in other words that means you transfer you give away you move you kind of value something so you convey or assign his or her property
so that could be shares
that could be it doesn’t mean securing, giving away security so in other words mortgaging them it means conveying or partying with so losing control of and again this wouldn’t be a um one where a security when a yeah where a secured party sells or conveys it’s where his or her property is conveyed uh i think the assumption here is is conveyed by him or her for the benefit of his or her creditors generally so when a person’s personal assets are conveyed or assigned uh for the benefit of his or her creditors generally uh well that would be indicative of your bankruptcy so um so there’s clearly exceptions to this it suggests if it’s for the benefit of his or her uh creditors well if you were to transfer your uh assets not for the benefit of his or her creditors but you transfer them or assign them nevertheless that might be captured under a different section but this is ones where you’re disposing of your assets for the benefit of your creditors that’s indicative and the court can take that into consideration and later on we’re going to go and have a look at sections 120 to 122 these avoidable transactions so let’s say you give away your assets but not for the benefit of your creditors let’s say you gave the way to your children well we’re going to have a look at really this next section we won’t do it today in this particular video but it’s where you give away your where you make a conveyance that would be void if he or she became bankrupt would be void so this is another way that there are many many ways so we’ll just stick with that this is a very simple concept it’s uh in australia or elsewhere so it doesn’t matter if you go to china you go to russia you go to the other you go to the moon it could be elsewhere other than in australia or in australia. he or she makes a conveyance of or assignment. this is a technical area. if you want to talk about this uh with anyone uh if you’ve got assets well let’s say you’ve got a creditor and they have conveyed or assigned their assets for the benefit of some other credit but not you? that still may be something you can do? so we can talk to you about that 1300-327123 or uh bottom corner on our website, use the instant chat tools on our website www.dcpartners.solutions

uh and you can chat with us uh about that particular situation you can certainly using the instant uh chat tools send us some documents. uh we’ve got forms down the bottom of this particular blog. there’s a form that allows you to upload some documents. so if you’re in that position where someone has conveyed or assigned their assets. uh for the benefit of some other creditor, other than you. um again there’s exceptions, so secured creditors but if they give it away for unsecured creditors or maybe they uh you know try and hide their assets and give them to their children or something like that is an act of bankruptcy able to be unwound? very cool okay got any questions give us a call 1300-327123.

use the instant chat tools on our website www.dcpartners.solutions thank you very much

Acts of Bankruptcy – s40(1)(g) Bankruptcy Notices

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

… (g)  if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

                              (i)  where the notice was served in Australia–within the time fixed for compliance with the notice; or

                             (ii)  where the notice was served elsewhere–within the time specified by the order giving leave to effect the service;

                            comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

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More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

BANKRUPTCY ACT 1966 – SECT 41

Bankruptcy notices

(1)  An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

                     (a)  a final judgment or final order that:

                              (i)  is of the kind described in paragraph 40(1)(g); and

                             (ii)  is for an amount of at least the statutory minimum; or

                     (b)  2 or more final judgments or final orders that:

                              (i)  are of the kind described in paragraph 40(1)(g); and

                             (ii)  taken together are for an amount of at least the statutory minimum

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Acts of Bankruptcy – s41 Bankruptcy Notices

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 41

Bankruptcy notices

(1)  An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

                     (a)  a final judgment or final order that:

                              (i)  is of the kind described in paragraph 40(1)(g); and

                             (ii)  is for an amount of at least the statutory minimum; or

                     (b)  2 or more final judgments or final orders that:

                              (i)  are of the kind described in paragraph 40(1)(g); and

                             (ii)  taken together are for an amount of at least the statutory minimum

Need finance?

Need finance for your business – big or small? Even if you need funds for a tax debt or other problem – we may be able to assist – click here for next steps.

More info on Bankruptcy?

BANKRUPTCY ACT 1966 – SECT 40

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

… (g)  if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

                              (i)  where the notice was served in Australia–within the time fixed for compliance with the notice; or

                             (ii)  where the notice was served elsewhere–within the time specified by the order giving leave to effect the service;

                            comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Westpac v Ollis: When?

Philip Crawford - lawyer for Westpac
DateEvent
2 October 2000Terms & Conditions of Westpac Business account published, pages 17-18 dealing with overdrawing by cheques, will be treated as application for credit. Terms & Conditions of Westpac Personal accounts published.   Smith was without notice to this matter until late 2014 & late 2016 respectively.  
13 October 2000Ollis opens his personal deeming account with Westpac Ballina branch, account 732591-541135[1] (“the personal deeming account”) with Westpac Ballina officer Karen Booth.  
1 February 2002Terms & Conditions of Westpac Business account published.[2]   Smith was without notice to this matter until late 2014/2016.  
18 March 2002Ollis opens account 032523-180123 with Westpac Gosford branch receiving and agreeing to T&Cs received (“the business cheque account”).    Sarah Rodgers advises NSWP on 11 Sep 06 that Ollis received the T&C’s.  
18 July 2002Terms & Conditions of Westpac Business account published.[3] Smith was without notice to this matter until late 2014/2016.
1 March 2003Terms & Conditions of Westpac Business account published. [4] Smith was without notice to this matter until late 2014/2016.
1 May 2003Terms & Conditions of Westpac Business account published[5]. Smith was without notice to this matter until late 2014/2016.
19 August 2003Ollis executes Westpac ATR form at Gosford Branch, including sections 4 and 5. Form states that it is required to be sent the Ballina Branch at which the replenishing personal account is domiciled.  Accordingly, Ballina Branch is on notice from 19 Aug 03 that any shortfall in the balance in the (Gosford) business account would be attempted to be drawn against the personal account at the end of each relevant banking day. The Claimant was without notice of this document and its terms until late 2014, believing as advised that Ollis was not authorized to overdraw his account.
20 August 2003Westpac Concord West Data Processing Centre, BSB 032890 (staff member unknown but not staff member F139439) attempts to contact Sarah Rodgers of Westpac Gosford Branch.  Records on page 2 of ATR form “Sarah not in 20/8”
21 August 2003No evidence of the ATR document being received at Ballina nor any material differences in the documents as later amended by BSB 032890.
21 August 2003 (At 2.32 p.m)Westpac Concord West Data Processing Centre, BSB 032890 (likely staff member F139439) tamper with the Authority to make replenishment or automatic transfer.  Staff member amends sections 4 and 5 of the form with the letter X and a large circle.  A staff member (likely F139439) unilaterally completes section 6 of the form establishing the ATR. Staff member F139439 then processes Batch Data Entry number 28900636. Westpac’s Helen Patrice Nelson swears affidavit on 19 July 2013 that:  I note that each line item on pages 6 and 7relates to an accurate data entry made from the application form. Smith was without notice to this matter until 2017.
1 October 2003Terms & Conditions of Westpac Business account published. Smith was without notice to this matter until late 2016.
1 October 2003Banking Services Guide published by Westpac to govern the operation of the ATR. Smith was without notice to this matter until late 2016.
1 October 2003Banking Services Guide states that transactions will not be posted to the replenishment account held in a different branch until the next day, inferring that double-entry accounting is not intended to extend to ATR accounts, indicative of a design error? Smith was without notice to this matter until late 2014.
3 November 2003Ollis’ personal deeming account is overdrawn by ($12.08) due to the operation of the ATR.  The ATR operation, whether designed to or not, permitted the transfer from the personal deeming account to the business cheque account of, it would appear, the debit value (overdrawn balance) of the business cheque account.  Smith was without notice to this matter until late 2014.
1 November 2003Terms & Conditions of Westpac Business account published. Smith was without notice to this matter until late 2016.
11 November 2003Ollis’ personal deeming account is overdrawn by ($1137.49) due to the operation of the ATR.  Smith was without notice to this matter until late 2014.
9 February 2004Terms & Conditions of Westpac Business account published. Smith was without notice to this matter until late 2016.
17 February 2004Ollis presents demand/cheque from Business Account 180123 to Westpac as drawee bank who honour it from his personal deeming account despite it lacking funds, causing personal deeming account 541135 to overdraw by $36,536.29 following the operation of the ATR facility. Inference – the ATR Facility is faulty and has no limit on the quantum of funds that will replenish the Business Cheque Account, i.e. not limited to the credit balance of the Personal Deeming Account.  Moreover, Westpac failed to follow prudent or normal banking practices.    Westpac treats cheque as an application for credit, applying variable interest charges.  
03 March 2004 (11.13 am)Westpac Collection enter note acknowledging transfer of funds from Personal Deeming account to Business Cheque account “…on 19/2 o/drew acc”.
11 March 2004Westpac sent Ollis a letter L1750 re account 541135 saying:   “…future withdrawals that create an unapproved overdraft may not be honoured.” Bank told the court that withdrawals “forbidden”.   Smith was without notice to this letter until late 2014.  
16 March 2004Mark Smith received Ernst & Young taxation and structuring advice.
16 March 2004 (2.10 pm)Westpac agrees to provide Ollis with a schedule for repayments at $1,000 per week.  
20 March 2004 (10.50 am)Westpac collections staff member (ID F018624) changed the status of personal deeming account from (normal) “NOR” to (post-credits only) “PCO”. A tracing report seems to show no before or after the status change to the no further debits “NFD”.  This status warrants further investigation. Westpac admitted: “proper practice at that point would have been to cancel or suspend the ATR Accordingly, the human failure to follow the procedure to cancel the ATR facility caused the system errors which permitted Ollis’ account to be replenished from the Ballina Branch unposted items (UPI) suspense account. The further failure of Westpac corrections to investigate lead to the continued replenishments. Mazzone comments re: the automatic nature and timing of double entries contradict Witheridge’s and the Banking Services Guide. Smith was without notice to this matter until late 2016.
25 March 2004Westpac send Ollis letter L2250 re account 541135 repeating that:   “…future withdrawals that create an unapproved overdraft may not be honoured.” Bank told court that withdrawals “forbidden”. Smith was without notice to this letter until late 2014.  
21 May 2004Smith executes Ernst & Young valuation letter of engagement.
18 June 2004Smith receives Ernst & Young Independent Valuation Report valuing project lands at $82,885,636 discounted to June 2006 at circa $52,000,000
29 November 2004Terms & Conditions of Westpac Business account published. Smith was without notice to this matter until late 2016.
December 2004Westpac document ref. GD5377 entitled “What is an ATR?” (For retail and business customers) is published.
6 May 2005 – 23 December 2005Between 6 May 2005 to 23 December 2005, Ollis presents a series of unconditional orders in writing to his drawee bank (Westpac), duly signed and demanding that Westpac pay to several drawer institutions including its own Westpac accounts, Commonwealth Bank and Bendigo Bank a series certain sums from his business cheque account 180123. As a result, the drawee bank (Westpac) in each instance honoured the demand and caused to flow a total of approximately $11m to several payees. It has recently been discovered that the drawee bank admitted to failing to follow all correct banking procedures (to the effect) that a prudent banker would follow.  As such the drawee bank transferred to Ollis’ account 180123, upon on each instance Ollis’ account would have been overdrawn, including when Ollis issued written demands what would have been the overdrawn balance of his account from its Ballina branches unposted items suspense account (as an unapproved overdraft) on each instance.  
1. Westpac receives consideration of $1.50 per replenishment/per day plus additional fees monthly for the holding of the business account with the bank.
2. Westpac initially failed to acknowledge or apply the consideration of interest at the ULR rate (unarranged loan rate) it was entitled to under its contract with Ollis. 
3. Westpac subsequently applied interest according to its ULR rate as it was entitled to do under its contract with Ollis.
10 May 2005Westpac Corrections’ role was to:
“… investigate the transactions and determine the account to which the suspense account transaction needs to be sent.”
It typically entered a standard text input manually to Ollis’ business cheque statement when it investigated and reversed entries, being:
“Reversal of credit  transaction on 541135 732591 541135”
6 May 2005 -23 December 2005Ollis writes further 45 cheques and hundreds of direct debits from 180123, all honoured by the bank through replenishments in form of an unarranged loan (transferred to him from the bank’s Ballina branch unposted items suspense Account). 
It is the role of Westpac’s Corrections Area to:
“… investigate the transactions and determine the account to which the suspense account transaction needs to be sent.
Witheridge admitted Westpac suffered a “total breakdown of double-entry accounting” in the due course of conducting Ollis’ accounts.  Bank receives consideration of $1.50 per replenishment and unarranged loan rate interest.  
Notification Number:Date Presented:Drawee Cheque no.:Amount ($):Drawer Bank/Payee:
1.06 May 20050405057,402.75Unknown
2.18 May 200540012720,000.00Bendigo
3.17 June 200540012840,000.00Bendigo
4.13 July 200540012915,000.00Bendigo
5.19 July 200540013050,000.00Bendigo
6.19 Aug 200540013140,000.00Westpac
7.25 Aug 2005 40013280,000.00Westpac
8.31 Aug 200540013322,500.00CBA
9.31 Aug 2005400134250,000.00Westpac
10.08 Sep 200540013530,000.00CBA
11.09 Sep 200540013630,000.00CBA
12.20 Sep 200540013725,000.00CBA
13.21 Sep 200540013825,000.00 CBA
14.27 Sep 2005400139200,000.00Westpac
15.30 Sep 2005400142200,000.00Westpac
16.07 Oct 2005400143250,000.00Bendigo
17.10 Oct 2005400144300,000.00Bendigo
18.11 Oct 2005400145250,000.00Westpac
19.14 Oct 2005400146300,000.00Bendigo
20.18 Oct 2005400147320,000.00Bendigo
21.20 Oct 2005400148330,000.00Westpac
22.21 Oct 2005400149350,000.00Bendigo
23.25 Oct 2005400150350,000.00Bendigo
24.26 Oct 2005400151350,000.00Bendigo
25. 27 Oct 2005400152350,000.00Bendigo
26.28 Oct 2005400153380,000.00Bendigo
27. 31 Oct 2005 400154130,880.00CBA
28. 31 Oct 2005400155250,000.00Westpac
29.1 Nov 2005400157380,000.00Bendigo
30.2 Nov 2005400158400,000.00Bendigo
31. 4 Nov 2005400159400,000.00Bendigo
32. 7 Nov 2005400160380,000.00CBA
33.9 Nov 2005400161400,000.00Westpac
34.10 Nov 2005400162250,000.00Westpac
35. 14 Nov 2005400163400,000.00Westpac
36.18 Nov 2005400164400,000.00Westpac
37. 23 Nov 2005400165157,000.00Westpac
38.23 Nov 2005400166200,000.00Westpac
39. 01 Dec 2005400167400,000.00Westpac
40.02 Dec 2005400168400,000.00Westpac
41. 07 Dec 2005400169400,000.00Westpac
42.09 Dec 2005400170400,000.00Westpac
43.14 Dec 2005400171440,000.00Westpac
44.23 Dec 2005400172430,000.00Westpac
DateEvent
10 May 2005Contrary to its standard entry description Corrections (when reversing the debit entry against Ballina UPI Suspense account and to Ollis’ Business Cheque Account), following investigations, officers of Corrections departed from the standard entry as follows:

9 May 2005
Transfer/replenishment
From account 541135

10 May 2005
Transfer/replenishment
From account 541135

11 May 2005
Reversal of credit
Transaction on 541135
732591 541135

12 May 2005
Reversal of credit
Transaction on 541135
732591 541135

19 May 2005
“Reversal of credit transaction on 180505 732591 541135”

Inference: “A” person within the bank’s corrections department in Concord NSW obtains first-hand knowledge Ollis has drawn to his business account from Ballina UPI suspense account (bounced from the personal deeming account) but does NOT stop the drawing. Circularity. Contradicts Colwell evidence and finding in judgment.

9 June 2005
Transfer/replenishment
from account 541135 $1124.55

14 June 2005
“Withdrawal / Cheque 541135”

17 June 2005
“Transfer/replenishment by authority 541135 732591 541135 invalid”

27 June 2005
“Reversal of credit transaction on 240605 732591/541135”

1 July 2005
“Reversal of credit transaction on 290605 732591 541135”

7 July 2005
“Reversal of credit transaction on 541135”

18 July 2005
“Reversal of credit transaction on 541135 post no drs”

5 August 2005
“Transfer/replenishment by authority 180123”

8 August 2005
“Reversal of credit transaction on 541135”

9 August 2005
“Reversal of credit transaction on 541135”

15 August 2005
“Reversal of credit transaction on 120805 ”

22 September 2005
“Transfer/replenishment by authority 180123 732591 541135 invalid for debit”, drawing of $459,230.98 reversed.

10 October 2005
“Transfer / replenishment by authority 544135 732591 541135 pco $659,678.63”

21 October 2005
“Reversal of credit transaction on 191005 732591 541135 $1,144,030.95”

4 November 2005
“Withdrawal 0180123 732591 541135 $2,927,634.70”

21 November 2005
“Reversal of credit transaction on 171105 732591 541135 $3,801,726.33”

22 November 2005
“Reversal of credit transaction on 541135 732591 541135 PCO status $4,379,822.35”

02 December 2005
“Reversal of credit transaction on 541135 732591 541135 pco status $4,383,139.01”

16 December 2005
“Reversal of credit transaction on 141205 732591 541135 $5,224,379.34”

22 December 2005
“Withdrawal 0180123 732591 541135 $5,224,390.24”

30 December 2005
“Withdrawal 0180123 732591 541135 $5,227,280.06”

On 9 January 2005 Westpac allegedly investigated and discovered cancelled the ATR facility.

Smith was not on notice of the Westpac Bank statements until late 2014.
6 May 2005 – 23 December 2005On each of these 44 notification, a person within Westpac knew:

1. Ollis had a cheque book issued it to him by Westpac.

2. Ollis was entitled (or was never advised to cease) writing cheques .

3. If Ollis drew a “cheque” and there were insufficient funds in Ollis’ account, the bank was at liberty to refuse to honour the cheque . Moreover, multiple persons within the bank handled the cheque/s.

4. Ollis wanted to draw credit from his account 180123 by each cheque .

5. Ollis in presenting a cheque seeks authority to draw credit from his account 180123 if there were insufficient funds to cover the cheque81.

6. Westpac, by law, had three (3) business days in which to refuse his demand by cheque . At the expiration of three (3) business days, if Westpac did not refuse the cheque, a drawing against the bank and, consequently, Ollis’ account 180123 would occur .

7. Had the bank followed bank cheque procedure and/or investigated diligently the demands (styled cheque) by Ollis and dishonoured each cheque, the cycle of “replenishing” would not have continued.
6 May 2005 – 8 November 2005Between these dates, Ollis presented Westpac cheques triggering at least 23 notifications by Commonwealth & Bendigo Banks (as collecting institutions) in accordance with ss61-67 Cheques Act 1986 (Cth) requiring Westpac (as drawee institution) to positively decide whether to honour Ollis’ various cheques .

The process is as follows:
“Cheques are still a paper-based payment instrument,” says Westpac. So even though banks can electronically submit some information about a cheque, it still needs to be delivered physically to the drawer’s institution for security and fraud prevention.”

“Cheques must be physically presented to the institution on which they are drawn to make a demand for payment,” says the Commonwealth Bank. “The drawee institution then must make a paid or dishonour decision on the cheque, after looking at things such as the authorised signatory on the account. If dishonoured, this must be communicated to, and value returned to, the deposit institution.”

1. At all material times, Westpac were in possession of either the actual cheque or a facsimile of the actual cheque as requested to be drawn by Ollis.

2. On each of the 23 notifications, Westpac received a formal demand in accordance with s62 of the Cheques Act giving the Bank notice that Ollis was on each occasion drawing the cheque/s he did on third party collecting institutions (CBA & Bendigo Banks).

3. Moreover, Westpac could obtain a colour or grayscale image including UV image of the cheque, front and rear.

4. Westpac had a statutory obligation to determine if to pay the cheque or not.
6 May 2005 – 23 December 2005Between these dates, persons at Westpac had on each occasion knowledge of date the cheque was written.

1. The date the cheque was presented.

2. The date by which Westpac could refuse to honour the cheque.

3. The party to whom the cheque was written.

4. The amount of the cheque

5. The security for the cheque.

6. The signatory on the cheque.

7. Where the cheque was presented.

8. The balance of Ollis’ business cheque account.

9. The balance of Ollis’ personal deeming account.
6 May 2005 – 23 December 2005Between these dates, on each of the 44 notification occasions and on more than 166 business days between the above dates, persons at Westpac had knowledge and in response made entries in response to Ollis’ drawings such that the cheques were not dishonoured.

Specifically, Westpac’s Ballina branch and its Operations Centre in Concord West failed to accurately reconcile its internal Unposted Items Account on more than 166 occasions .

In doing so, Ballina branch, the Operations Centre in Concord West and the Corrections Department, having direct knowledge that Ollis was drawing cheques performed the following entries on more than 166 occasions:

(a) at the end of each day, the ATR facility credited the Business Account with an amount (the Transfer/ Replenishment Payment) to reduce its balance to zero;

(b) the ATR facility could not debit the Personal Account because it was frozen (PCO), so instead, automatically debited a suspense account (i.e. Unposted Items Account).

(c) on the second business day after cheque presenting the Transfer/Replenishment Payment was reversed by crediting the suspense account and debiting the Business Account;

I infer these 166 x “reversing transactions” demonstrates, in addition to receiving the physical cheque as a demand on 45 occasions, Westpac had actual knowledge of the time and quantity of each drawing Ollis was making against his Business Account.

Moreover, the cheque clearing process at Westpac involves persons within the bank having knowledge of each Ollis cheque in the following stages:

1. Sorting

2. Visual inspection of the cheque and micro-inking recording the dollar amount of the cheque and bank sorting codes to enable the banks sorting machines to “read” the cheque for the material details of each cheque transaction Ollis sought to draw.

3. This process checks the work of the bank branch (or collecting institution) to reconcile if branch entries fail to balance with visual cheque inspection.

4. During detailed sorting, the bank further processed Ollis’ cheques, obtaining images of each of 45 cheque (front and bank), and subsequently imprinted on each a unique sequence code to assist tracing.

5. Irreconcilable cheques, if any, are further processed to ensure the bank always knows the status of each cheque it is processing.

6. Transit cheques the bank processes, where the cheques of another drawee bank was deposited into a Westpac account, are accounted for and sent to (or received from) third party drawee banks daily.

7. After the bank has “processed” its cheques in this way through its own system, each transaction is “authorized” to update the bank’s core Hogan system.


8. After upload to Hogan, any exceptions are further forwarded to Westpac’s OTP department, examining any unposted or exception items & making decisions.
6 May – 21 November 2005Westpac Corrections Department, Westpac Ballina branch (Leanne) and Westpac’s Concord West operations center ignored and/or failed to make the necessary inquiries as to why it was necessary daily to reverse transactions amounting to $3,802,097.51 on a consecutive daily basis?
22 November 2005Westpac Corrections Department are aware debit transactions meant to be applied to account 541135, being applied in error, causing Corrections Dept. to perform repeated reversals .

Ballina Branch was aware account 541135 was overdrawn and in collections as at all material times.

Smith was without notice to this Westpac record until late 2014.
22 November 2005Leanne from Westpac Ballina (staff member 2591 F020613) notes in the record of Gosford Business Cheque account and Ballina Personal Deeming that:

“Adv rec call from staff member in corrections req pco to be lifted. Advsd: unable to lift pco as debt o/sourced to collection house 20/8/04”

Smith was without notice to this Westpac record until late 2014.
2 December 2005Westpac NSW CSC BSB 032890 , staff member M741977 aware of constantly rejecting debits and notes in the record of Gosford Business Cheque account and Ballina Personal Deeming that:

“Call reason: to see if has to keep sending back ddrs as not honoring Adv if brw has not cancelled ddr will need to keep rejecting them and brw needs to call Collections House”

Smith was without notice to this Westpac record until late 2014.
9 January 2006Westpac Collections Department realisation:

“Cust has another account 032523 180123 in which an auto replenishment has been set up to tsfr funds back and forth. Have spoke to INT & FEES who adv need to speak to ACCOUNT PAYMENTS to have this facility cancelled. Have faxed a request through to them to request this – fax 1300 304657. Will await for confirmation but in meantime keep an eye on account for any further drawings as may be potential fraud.”

NB: Westpac advised NSW Supreme Court that it had not discovered the above series of cheques 12 January 2006 .

Smith was without notice to this Westpac record until late 2014.
9 January 2006Westpac cancels ATR facility
9 January 2006Bank cites 9 Jan 06 in Summons of 7 Apr 06 as the date of realization – not 12 Jan 06, tells NSWSC date discovered 12 Jan 06 not 9 Jan 06 .

Smith was without notice to this matter until late 2014.
11 January 2006Further analysis of account conduct, noted.

Smith was without notice to this Westpac record until late 2014.
12 January 2006Westpac’s Maryanne Aspland contacts Garry Wade .
12 January 2006 Garry Wade changes status of Ollis’ Business Cheque account to PCO (post credits only).
12 January 2006Further detailed analysis of accounts and internal debate, some of which is documented in notes in the record of Gosford Business Cheque account and Ballina Personal Deeming.

Smith was without notice to this Westpac record until late 2014.
13 January 2006Interference drawn:

Westpac, being in the advanced stages of preparations amending terms & conditions of Ollis’ business account (PDS published 23 Jan 06) had full knowledge it was bound to the then current terms, the withdrawals could therefore never be a ‘crime’, i.e. fraud (especially given it knew or should have known its own staff member on 21 August 2003 tampered with the ATR authority):

“Overdrawn accounts
…If your account becomes overdrawn without arrangements, that overdrawing of the account will be treated by the Bank as an application for credit by you.”

Smith had no notice.
13 January 2006Garry Wade contacts Insp. Jennifer Thommeny RA (requesting assistance) , seeks freezing of Ollis accounts. Thommeny/NSWP refuses – advises Westpac “no crime”.

Smith was without notice to this matter until 2014.
13 January 2006Westpac false statement letter version #1.

Upon being refused its requested assistance (freezing orders) by Thommeny / NSWP, Wade/Westpac External Investigations then write RA false letter Version #1 to NSWCC (requesting assistance – impliedly seeking freezing orders, expressly seeking “assistance in investigating”), disclosing the bank knew:

accused Ollis of deliberately exploiting a loop hole (omitted from later versions of the letter).
branch UPI account (unposted items account) had not balanced each day between 6 May 2005 and 6 Jan 06, and was therefore required to be reconciled and balanced daily by the bank’s Operations Centre at Concord West with the incorrectly posted debit rejected back to Ollis’ business account 180123 (omitted from later versions of the letter).
Acknowledged the repeated posting error and daily replenishments was a “loophole”.
Acknowledges tracing funds into property purchases by 3rd parties (funds otherwise beyond banks reach).
Acknowledged “… we are now aware that Ollis has previous criminal convictions…” (later amended to ‘belief’).
Is signed by Garry Wade (External Investigations), later transferred to Murphy of “Internal Investigation” .

I say the letters were written with intent for Spark/NSWCC to concur in making / publishing to a judge of the NSWSC, knowing the contents to be false.

Smith was without notice to this matter until 2014.
14 January 2006Saturday
15 January 2006Sunday
16 January 2006Fax from Kate Finnigan, Westpac to Spark of NSWCC re ATR setup forms and authorities and back of house system entries to permit the overdrawing and replenishments of account 180123 from personal account 541135.

From this time onwards, Spark knew (or should have known) Ollis expressly had authority to overdraw the business account 180123 as per the agreed authority of 19/8/03 for which consideration (the replenishment fee and unarranged loan rate interest) was subject to be paid by Ollis to Westpac on each occasion.

Moreover, Westpac knew or should have known upon inspection of the faxed materials that Ollis’ authority to replenish had been tampered with by its own staff member.

Smith was without notice to this matter until 27 May 2013.
16 January 2006Call from Westpac to Ollis requesting an urgent meeting the next day, 17 Jan 06 at 60 Martin Plc, Sydney re: “overdrawings on your business cheque account 180123”.

Smith had no notice.
17 January 2006Westpac, with knowledge that its staff member had amended the ATR authority form, treat cheques overdrawing account 180123 as application for credit, prepare and serve Ollis with letter of demand $11m citing “unauthorised withdrawals” (i.e. unarranged loan ) requiring payment of the balance in full or provision of security in an amount or form acceptable to the bank by 25 Jan 2006.

Inference – the “unauthorized withdrawals” arise from the Westpac staff member tampering with the ATR on 21/8/2003.

Ollis acknowledges:
discovering glitch in Westpac computer system
allegedly makes statement (words to the effect) that he “didn’t look gift horse in the mouth” , i.e. Ollis made bank aware $11m like a gift from the bank which he gratefully accepted. Bank instead falsely construed overdrawings as criminal act/s.

Demand made in accordance with T&C’s of account (page 17, see October 2000) requiring arrangements to be in place within 7 days from demand. The T&C’s specifically acknowledged a term applicable called the “ULR” – unarranged loan rate.

Smith was without notice to these documents until late 2014.

Admissions made by Trevor McMahon during the meeting no criminal charges were possible.
17 January 2006 – 18 January 2006Inference – Westpac realise it will not lawfully be able to refuse to unfreeze Ollis’ bank accounts after freezing for more than 48 hours.

Smith was without notice to this matter until late 2014
17 – 18 January 2006Inference – Westpac realise or advised by Jonathan Spark of NSWCC that honest admissions of how Ollis had lawfully exploited “loop-hole”, aided by their own staff members tampering with the ATR form, will not sufficiently evidence to the satisfaction of a court that Spark has “reasonable grounds” to suspect Ollis has engaged in “serious crime related activity”.

Smith had no notice.
17 – 18 January 2006Westpac Mark Murphy writes an email to NSWP’ Mr. Colin Dyson, Commander of the Fraud Squad outlining that the purpose of correspondence with the NSWCC was to freeze assets rather than to have the alleged proceeds of crime confiscated .
18 January 2006Letter version #2 (Westpac fail to treat cheques as application for credit) written with notice that Westpac staff member had tampered with the ATR form.

Westpac investigation report to NSWCC version #2 – faxed to NSWCC at 1424

RA Version # 2 to NSWCC documenting:
Letter provided to NSWCC but no longer addressed to the Commission, NSWCC (i.e. inference – addressed no longer to NSWCC but to a judge of the NSWSC, Westpac knowing Spark will concur to make or publish the Westpac false statement – against good faith).
now simply requesting assistance, no longer requesting “your” assistance. (Inference – the assistance sought is the assistance of a judge of the NSWSC, Westpac already has the assistance of Spark/NSWCC).
omits 2x references to awareness of “loopholes”.
alters wording from: “Ollis somehow discovered that despite this status …” TO “Ollis obviously discovered that despite
this status …”
omits all references to posting errors to UPI account
omits all references to failures of Bank’s operations center for some 120+ days enquire into 120+ continuous days of repeat error message/non-balancing UPI suspense account at Ballina Branch, despite Ballina branch bringing this to the banks attention on 22 November 2005.
omits references to Gail Shields being Ollis’ partner.
omits invitation for Commissioner to contact Wade or Murphy.
omits Wades name as author of letter, replaces with Murphy.
omits External Investigations department from letter, replace with Internal Investigations department. Inference made, from 17-18 Jan 06, Westpac (by replacing Wade) no longer regarded matter as external fraud but investigation arising from internal failure/s.

Smith was without notice to this matter until late 2014-2015.
18 January 2006Westpac investigation report to NSWCC version #3 – faxed at 1548 (Westpac fail to treat cheques as application for credit) written with notice that Westpac staff member had tampered with the ATR form.

RA Version #3 to NSWCC documents:

– omits request for assistance in investigating the activities of Ollis.
– omits allegation that Ollis caused a loss of $11m, replace with allegation Ollis knowingly and deliberately defrauded the bank.
– purports to only have knowledge of “believe Ollis has previous criminal convictions for fraud …” instead of previous version #2 (1hour 20 mins early) “we are now aware Ollis has previous criminal convictions for fraud ….”
– adds particulars of tracing activities on two (2) cheques withdrawals of 17 Jun 05 & 19 Jul 05 (total $90,000); makes comparison with deposits made into the account from 17 Jun 05 to 19 Aug 05 being just $4,420.
– omissions made in version #2, remain omissions in version #3.

Smith was without notice to this letter in part until after 2011.
18 January 2006Westpac fail to treat cheques as application for credit, provide Schedules A-E of cheque tracing, knowing the application of 33 cheques involving $10,480,000.

Smith was without notice to this record until after 2011.
19 January 2006 Westpac fail to treat cheques as application for credit, false statement styled “investigation report” faxed to NSWCC version #4 at 1206.

RA Version #4 to NSWCC documents:
current date at time of writing, i.e. 19 Jan 06.
– corrects slip error on page 2 (meeting date between bank and Ollis on 17 Jan 06, not 17 Feb 05).

Smith was without notice to letter #4 until after 2011.
19 January 2006Spark affidavit
Westpac procure Jonathan Lee Spark at NSWCC to concur with making or publishing Westpac investigation reports contrary to s 178BB of Crimes Act particular in light of its notice that Westpac staff member had tampered with the ATR form.

Inference: Westpac knew (as evidenced by 13 Jan 06 NSWP/ Thommeny freezing refusal advice; 13 Jan 06 Wade “loophole” admission; Westpac T&C and conditions (current & amended version 23 January 2006), 17 Jan 06 McMahon’s “no crime” admission) the investigation report letters versions #1-#4 to be false in a material (truth, engaged in serious crime related activities including larceny), and moreover Westpac knew or ought to have known there was no crime due as admitted to NSWP .

Additionally, Westpac in its corporate mind knew its then current terms & conditions made the overdrawing of the account an overdraft (see Wade “loophole” admission), such knowledge being very fresh in its corporate mind as it was just 2 business days from publishing replacement terms & conditions as it did on 23 Jan 06 (following a weekend in between).

Spark affidavit concurring in making and publishing the Westpac Investigation report letter is 3 pages in length, being as follows:

Page 1 – investigation report version #3, page 1
Page 2 – investigation report version #4, page 2
Page 3 – investigation report version #3, page 3.

Smith was without notice to version #4 of this document until late 2011.
19 January 2006Inference/s made that Westpac, through an unlawful collateral process conducted by NSWCC:

– intended to cover up its own negligence in amending ATR form creating a series of unauthorized withdrawals from Westpac’s UPI Ballina suspense account.
– intended to obtain money ($11m) and/or other valuable things, i.e. financial advantages.
– knows NSWCC can only confiscate assets if an authorized officer of the NSWCC swears to have reasonable grounds to suspect Ollis has engaged in “serious crime related activity” .
– did not intend that $11m of assets to be frozen by NSWCC would ever be confiscated, i.e. permanently surrendered to
– financial advantages Westpac received, which it intended to receive include:

– the NSWCC freezing orders (they did attempt but failed to obtain, on 13 Jan 06, such freezing orders from NSWP).
– documents, discovery and intelligence – via search warrants that NSWCC and NSWP obtained on 20 Jan 06 and executed on 23 Jan 06.
– undertakings for damages (NSWCC and the State of NSW gave undertakings to the NSWSC to obtain the NSWCC freezing orders), such undertakings remaining on-foot.
– time (the bank knew via the T&C’s of the Ollis account it had to give Ollis 80 days’ notice before commencing any legal proceedings against him, via the NSWCC debt security and recovery process the assets were frozen within 1 day of varying letter versions #1-#3, supplying version #4).
– equitable priority in Ollis’ bankruptcy and otherwise.
– access to the CAR Act it could not otherwise access.
– security for unsecured debts in amount of $11m.
– secrecy (NSWCC has legislation providing a near impenetrable wall against discovery).
– the affidavit of J. Spark of 19 Jan 06.
– etc.

Smith had no notice.
19 January 2006NSWCC applied to the Court for an order pursuant to s 27 of the Criminal Assets Recovery Act 1990 that the First Defendant pay to the Treasurer of the State of NSW an amount assessed by the Court as the value of the proceeds derived from the illegal activities of the First Defendant that took place not more than six (6) years before the making of the application.

Sully freezing order obtained by NSWCC under invalid s 10 of CAR Act.

Smith had no notice until after registration of transfer of title from Burke to PTLC.
20 January 2006Westpac obtains the certificate of title for Lot 166 DP 750164 , before returning it to William Burke and Victoria Baker (previous vendors before Smith) who subsequently provided it to Smith without notice.

Alternatively, Westpac conduct a title search of the subject land and note that Smith company not yet on title.

Inference – Westpac elect to not give Smith notice of the interest of the NSWCC and to seek to obtain an interest “through” the Smith company rather than to caveat the land at the time itself.
20 January 2006NSWCC – CAR Search warrant obtained.

Smith was without notice to this matter until late 2014.
20 January 2006NSWCC Caveat AC62711 lodged on Doco’s properties to prevent transfer from Ollis to Hawkins & Flynn.

Smith was without notice to this matter until after 2011.
20 January 2006Correspondence between investigative parties demonstrating knowledge that of title Lot 166 DP 750164 being Harrowvale property purchased by Smith not registered to Smith (contrary to Ollis’ discussions with Westpac on 17 Jan 06).

No NSWCC caveat lodged on Harrowvale title, NSWCC and Westpac “allow” transfer from Burke to the Claimant which occurred on gaining an indefeasible title.

Smith was without notice to this matter until late 2014.
20 January 2006Requested by Supt Dyson on 20/1/2006 to “piggyback” confiscation job with possible Fraud Squad investigation.

Smith was without notice to this matter until late 2014.
Between 19 January 2006 – 1 February 2006Westpac and NSWCC deliberately omitted to give Smith notice of the NSWCC Freezing orders contrary to its reports to NSWP and NSWCC – versions #1-4.
Between 20 January 2006 – 25 January 2006NSWCC return CT of Harrowvale to Mr. and Mrs. Burke.
21 January 2006Saturday
22 January 2006Sunday
23 January 2006Bank publishes revised T&Cs under PDS dated 23 January 2006, relevant overdrawing section amended.

Smith was without notice to this Westpac document until after 2011.
23 January 2006 (1000)Execution of search warrants – Dane Drive, Gosford; Coronation St, Parkes; Condobolin Rd, Parkes.

Smith was without notice to this matter until late 2014.
23 January 2006Search warrants executed – Westpac’s officer, Mr. Mark Murphy is seen entering 42 Coronation Street, Parkes and is video-taped by NSWP giving instructions to officers of NSWP.

Smith was without notice to this Westpac document until late 2016.
23 January 2006Ollis / Christopher Dibb meeting with Jonathan Spark in foyer of NSWCC.

Spark: “We would like to talk to you about settlement of the matter … What really needs to happen is for you to come to a settlement with the victim, Westpac”.

Smith was without notice to this matter until after 2011.
25 January 2006Thommeny urges NSWP and/or NSWCC and/or Westpac that Smith be interviewed as a “matter of urgency” (put on notice) of the Ollis investigation & confiscations. Provides last known address and photo.

Smith is never interviewed by NSWP.
Smith was without notice to this matter until late 2014.

NSWP, NSWCC and Westpac all omit to interview Smith or provide notice of the freezing orders and/or seek to confiscate Ollis assets (i.e. unregistered security over Harrowvale land).
26 January 2006Thursday – Australia Day public holiday
27 January 2006No formal decision by NSWP to accept Ollis investigation.

Thommeny requested assistance forwarded to interview Smith to determine his association with Ollis. NSWP, NSWCC and Westpac omit to interview Smith until after transfer of land registered.

Smith was without notice to this matter until late 2014.
27 January 2006Friday long weekend
27 January 2006Burke supplies to Smith the CT for Lot 166, DP 750164 and a tax ruling he had obtained, a condition precedent to provision of the title.
27 January 2006Strike Force Greenvale investigation commences (no practical co-operation from Westpac for the investigation – quote “at no stage was forthcoming” until September 06).

Smith was without notice to this matter until late 2014.
28 January 2006Saturday
29 January 2006Sunday
30 January 2006Smith, still without notice of the orders, attends the Office of State Revenue in Parramatta NSW, pays $129,000 stamp duty for stamping of the contract between Burke and PTLC.

NSWCC and Westpac make no attempt to contact Smith despite being aware Ollis had provided a cheque for $128,000 payable to the OSR. Westpac by design intended to acquire a mortgage through Smith’s indefeasible purchase.
31 January 2006Smith attends LPI, without notice of the orders, Registration of transfer of title from Burke to PTLC.
1 February 2006 (approx. 0930)Smith attends his Post Office box at Pymble LPO and signs for certificate mail receipt of certificate of title.
1 February 2006 (approx. 1030)Smith attends office of Ollis at Gosford to supply certificate of title pursuant to equitable mortgage.
1 February 2006 (approx. 1430)Westpac investigators (Mark Murphy & Milan Sankovic) visit Mark & Lisa Smith, provide copy of false instrument (Sully orders) in furtherance to the making and publishing concurred upon between Westpac/Murphy & NSWCC/Spark (i.e. deception).

Westpac/Murphy tell Mark & Lisa Smith that Ollis had “stolen” $11m/funds “proceeds of crime” (i.e. deceptive).

Smith was without notice to the deception element in this matter until after 2011.
1 February 2006Spark swears stat dec attached to caveat AC84382 swearing truth under Oaths Act etc.

Smith was without notice to this matter until after 2011.
1 February 2006 Spark speaking to Barrister Christopher Dibb:

Spark: “Most of our matters are settled by consent. If you can reach a deal with Westpac, we will withdraw our orders. Of course, that is subject to getting the consent of the Commissioner. Formally speaking, I have to get the agreement of the Commissioner to consent to withdraw orders but if Westpac agrees to the deal, I expect the Commissioner will as well.”

Smith was without notice to this matter until after 2011.
2 February 2006Meeting at Westpac 60 Martin Place attended by Dibb & Ollis together with Trevor McMahon, Rob Whitfield, Andrew Purchas and possibly Julia Hanna from Westpac.

MacMahon: “You are aware that the Crime Commission have now frozen your assets and you are gong to have to come up with a good deal to get us our money back. Otherwise we’ll get it from the Crime Commission.”

Dibb: “As far as I can see, if the Commission gets forfeiture orders, there will be nothing left for Westpac.”

Westpac: “We will just get the assets from the Commission.”

Dibb: “The legislation appears to not to allow that. It provides that the interests in property are forfeited to the Crown.”

Whitfield: “We are absolutely confident that we will get the assets from the Commission.”

Smith was without notice to this matter until after 2011.
2 February 2006Defendants Notice of Motion (NSWCC v Ollis) seeking to vary and/or set aside NSWCC CAR Act Freezing order of 19 January 2006 by adding the words:

“pending a hearing as to the existence of a reasonable suspicion within the meaning of section 10 of the Criminal Assets Recovery Act 1990 (“the act”) as at the date of such hearing that the property described in those Schedules is serious crime derived property within the meaning of section 9 of the Act; …”
2 February 2006Smith interview at NSWCC, notice to produce all documents, I say for a collateral purpose (to provide to Westpac).
3 February 2006NSWCC caveat AC84382 on Harrowvale allegedly authorized by Sully J orders / s 10 CAR Act.

Smith was without notice to this matter until April 2006 – as notice of caveat never received/sent to the wrong address.
6 February 2006Westpac receive valuation of Harrowvale @ $1,000,000. Fundamental factual errors, i.e. land subject to DA for major commercial development (valued by Ernst & Young @ circa $25m+ as at 2006).

Smith was without notice to this matter until mid-2006.
7 February 2006Plaintiff’s Notice of Motion (NSWCC v Ollis) seeking to be heard before the Defendants Notice of Motion filed 2 February 2006 to the effect that a single judge cannot vary the freezing orders by adding words requested by the Defendants.
8 February 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985 to Damian Hodgkinson of Pitcher Partners (forensic accountants).
9 February 2006Public hearings, transcript
– Transcript pg 121, line 35 – acknowledging terms and condition as given when account opened (further confirmed Sarah Rodger 11/9/06)
– Sought to rely on an offence other than larceny as basis for continued confiscation activities (knew Ollis not involved in serious crime related activities including larceny).

Smith was without notice to this matter until after 2011.
14 February 2006 (1040)Execution of search warrants at 3 Royal St, Parkes.

Smith was without notice to this matter until late 2014.
16 February 2006Plaintiff’s Notice of Motion (NSWCC v Ollis) referred to Court of Appeal, pursuant to s51 (5) (a) of the Supreme Court Act 1970, as sworn by Spark on 28 February 2006.
16 February 2006Plaintiff’s Notice of Motion removed into the Court of Appeals list pursuant to s 51 (5) (a) of the Supreme Court Act 1970 … ;
28 February 2006Plaintiff’s Notice of Motion (NSWCC v Ollis) seeking further public examinations of the Second Defendant
28 February 2006Affidavit of Spark, alleging illegality – swearing false statement s 178BB of Crimes Act.

Smith was without notice to this matter until after 2011.

Reference made to Plaintiff’s Notice of Motion of 7 Feb 06.
16 March 2006Submissions for NSWCC.
21 March 2006Supplementary submissions for NSWCC.
23 March 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985 from NSWCC to HDY.
29 March 2006Defendants supplementary submissions in reply
4 April 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985 from NSWCC to HDY.
5 April 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985 from NSWCC to HDY.
5 April 2006Affidavit of Jonathan Lee Spark (NSWCC v Ollis) seeking public examinations of:
Hussein Karimjee – Ollis’ in house solicitor
Ann Hunter – his accountant
Stephen Holmes – a lender to him
Garry Pilgrim – his estate agent
5 April 2006Plaintiff’s further submissions in reply (NSWCC v Ollis) re offences and reasonable grounds to suspect.
7 April 2006Westpac commence civil proceedings, 20 + 60 days after demand of 17 Jan 06. Multiple false statements or omissions.

Originating process received (2nd hand) by Smith 12 Apr 06.

Because of the deceptive nature of the material omissions in the documentation, in part, the Claimant did not seek joinder in Westpac v Ollis, as a result, steps were not taken to prevent the orders of 31 August 2007 / 28 March 2008.

Lists items Westpac claimed Ollis ‘knew’.
● Items 9 (d), (e), (f), (g) and (h) the Bank claimed Ollis knew potentially rebuttable?

Commercial List Statement amended on 31 August 2007

Comparison of changes between 07 April 2006 and 31 Aug 2007
7 April 2006 – 20 July 2007Westpac make around 238 changes to the Commercial list statement which is re-filed on 20 July 2007, including:

Change to declaration in the alternative sought that Ollis’ interest in my land was subject to a charge in favour of the plaintiff.
My guarantee to Ollis was subject to a charge in favour of the plaintiff.
Contention 8 – Bank reworded its allegation that Ollis ‘fraudulently’ drew cheques against Business cheque account, instead merely ‘drew’ cheques.
Contention 9 (d) – Bank alleges Ollis knew he did not deposit funds into his business cheque account during the period he wrote cheques.
Contention 9 (g) – the Bank defined what it said was “the mistake”.
Contention 9 (j) – that Ollis knew … the bank would pay the cheques
Contention 17 – that Ollis provided no consideration whereas the bank collected fees from Ollis.
NEW Contention 21. Ollis was entitled to write cheques. The bank, if it honoured cheques would treat the cheques as an application for credit and failed to despite realizing Ollis was writing cheques seeking credit. If the bank was to demand repayment of its money would provide 80 days’ notice before commencing legal action rather than being entitled to demand on no notice.
New Contention 24 – Ollis did not refuse to repay the bank.

Smith received no notice of the amended commercial list statement until late 2016.
12 April 2006Smith receives fax copy of summons which states (in part):

“any withdrawal transaction which would cause his account to have a debit balance could be treated by the Bank as an application for credit…”

Summons contains other items which mislead Smith & the court:

ContentionMaterial Fact
8c . the Bank mistakenly honoured the cheques on presentation due to an error in the operation of the ATR functionThe ATR operated to reduce Ollis business cheque account balance to 0.00 c as intended seeking to draw funds from the personal account.

A status of PCO (Post credits only) meant the debits were instead applied to Westpac’s Unposted Items Account – as the ATR operation was designed to function.

A series of approximately 166 human failures in a manual process within the Unposted Items Account daily reconciliation meant that the Ballina Branch & Concord West CSC caused funds to be credited to Ollis’ business cheque account by the ATR process operating at the end of each day as it was intended and authorised to operate.

The bank further admitted a breakdown of its double entry accounting system indicating the cause of the honouring of cheques was a combination of human error and design error and/or otherwise.
9(c) he did not have cash in any account he held with the Bank to be able to meet the cheques upon presentation;Ollis variously had hundreds of thousands of dollars in his Bona Parts Accommodation Business account at any one time.
9(d) he was not entitled to draw cheques against the Second Ollis Account for the amounts that he didThe terms and conditions of his business cheque account and ATR agreement say otherwise.

Letters posted in March 2004 suggest possibility of further drawings.

He possessed a cheque.

He issued cheques which the bank honoured.
His bank statements suggest the bank had a level of knowledge of his drawings.
9(e) he did not have an overdraft facilityThe terms and conditions of his business cheque account and its related ATR agreement state and presume respectively otherwise.

Each cheque, being an unconditional demand upon the bank pursuant to s 10 of the Cheques Act 1986 represented a request for an overdraft facility.

Ollis’ terms and conditions of his account specified if the bank honoured the cheque the sum would be considered an overdraft.
9(f) the Bank had been mistakenly honouring cheques drawn against the Second Ollis Account due to an error in the operation of the ATR function;See response to contention 8c above.
His bank statements suggest the bank had a level of knowledge of his drawings.
Also see design error, human error and the breakdown of double entry accounting within the bank.
9(g) the Bank’s officers were not aware that:
(i) the Bank had been honouring the cheques;
On a daily basis, the cheques the bank was honouring were being debited against Ollis’ personal deeming account and then ‘bouncing’ to the banks unposted items account (UPI) where officers of the bank manually failed on 166 consecutive daily occasions to properly reconcile this account.

On multiple occasions Westpac internal notes entered upon Ollis’ bank statement/s infer a level of actual knowledge by the officer of the cause for the reversal manual entries.

The officers were stationed at the Ballina and Concord West offices of the bank.

On 22 November 2005 a discussions occurs between Ballina and Concord West “Corrections” department (acknowledging the repetitive nature of their entries yet fail to diagnose the cause.

As at 22 November 2005 Ballina and Concord West were posting consecutive daily corrective manually in the multi-millions of dollars.

On other occasions the bank acknowledges the PCO and invalid replenishment authorities.
9(g) the Bank’s officers were not aware that:
(ii) there was an error in the operation of the ATR function;
See above response to 9 (g)(i).
Westpac internal notes and Ollis’ bank statements suggest otherwise.
9(h) if the Bank’s officers became aware that:
(i) the Bank had been honouring the cheques;
(ii) there was an error in the operation of the ATR function;

they would take steps to prevent any further cheques from being honoured.
See above response to 9 (g)(i).

See above response to 9 (g)(i).

Westpac internal notes and Ollis’ bank statements suggest otherwise.

They did not take steps to prevent further cheques from being honoured until 9 January 2006, a date the bank told the court was in fact 12 January 2006. The bank failed to take the steps that a prudent banker would have taken on around 166 occasions between May 2005 and January 2006.
DateEvent
20 April 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985 from NSWCC to HDY.
26 April 2006Letter from NSL to Westpac. Westpac response (silent) deceptive by omission of material facts, causing the Claimant & Smith to be misled/deceived resulting in non-joinder in Westpac v Ollis proceedings.
28 April 2006Submissions of NSWCC citing “illegal activity” as the basis of continued confiscation (i.e. affidavit in Wollongong Local Court, December 2005).

Smith was without notice to this matter until after 2011.
28 April 2006Meeting at NSWCC between Ollis and Giorgiutti. G states: Westpac require priority payments from Ollis’ foreshadowed bankrupt estate, other creditors to sit behind bank.

Inference – Westpac sought an unlawful preference payment in the proposed bankrupt estate of Ollis and/or the liquidation of PTLC.
Smith was without notice to this matter until after 2011.
3 May 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985 from NSWCC to HDY.
3 May 2006Received fax from General Manager of Parkes Shire Council (consent authority and development partner of Smith for the Parkes Airport development project) showing adverse publicly.
5 May 2006Step taken – Fax from Smith to Ollis seeking execution of variation deed, Ollis points to restraining orders as being unable to deal but sympathetic.
30 April 2006 – 15 May 2006Step taken – Fax from Smith lawyers (NSL) to NSWCC re collateral agreements qualifying mortgage terms (including copy of proposal variation deed).
17 May 2006/ 18 May 2006Step taken – Meeting between NSWCC, Westpac and Smith at NSWCC.
18 May 2006Spark attempting to broker a settlement between Westpac & Ollis, including:
– requirement that Ollis release Harrowvale title deed
– Ollis to procure Smith consent that Harrowvale held on trust for bank, or alternatively perfect mortgage.

Smith was without notice to this matter until after 2011.
18 May 2006 (1300)Proposed settlement between Ollis & Westpac brokered by Spark/NSWCC. Did not proceed.

Smith was without notice to this matter until after 2011.
24 May 2006Defendants Commercial List Response, Westpac v Ollis.

Ollis claims to have had an overdraft.
24 May 2006Defendants Commercial List Response, Westpac v Ollis filed for second and third Defendants.

Ollis claims to have had an overdraft.
Late May 2006NSWCC admission:

Novakovic: “we have got nothing to go forward against Ollis on, we are trying to mediate … Westpac likely to lose $7m”.

Smith was without notice to this matter until after 2011.
1 June 2006Affidavit of Spark – pay money to the Treasurer of NSW.

Inference – Spark and NSWCC knew the CAR Act provided only for confiscated funds to be paid to the Treasurer of NSW, any use of powers to achieve another outcome an abuse of power.

Smith was without notice to this matter until after 2011.
3 June 2006Submissions of Dibb re Ollis larceny: denies larceny, suggests possible offence of fraudulent appropriation s 124 Crimes Act (not “serious crime related activity” pursuant to CAR Act); argument as to the money not being proceeds of crime even in Ollis’ hands.

Smith was without notice to this matter until after 2011
7 June 2006Summary judgment – NSWCC v Ollis (judgment not available); appeal determined 2 Nov 07; 29 Nov 07 – Ollis parties lodge appeal to HCA.

Smith was without notice of the proceedings in 2006.
15 June 2006Letters of instruction, HDY re: Westpac v Ollis (not obtained).
19 June 2006Summary judgment NSWCC v Ollis.
19 June 2006Sales advice from Hunter & Co real estate for deposit and off plan sale to Petatok @ $137,500 per hectare. Requires DA by specific date.

Inference – Harrowvale development areas around 200ha, possible gross realization $27,500,000++
20 June 2006Steps taken – Meeting Smith, Westpac, NSWCC – at NSWCC. Seeking consent to sell off concessional allotments to fund legal costs / vary caveat.

Also discussed need to vary caveat in light of sales advice the Claimant to Petatok and deposit – need to protect possible underlying value $27m.

NSWCC and Westpac refused to vary caveat.
21 June 2006Steps taken – Fax from NSL to NSWCC requesting that caveator replaces itself as caveator with Public Trustee so as to minimise commercial loss to Smith.
23 June 2006Invoice from NSL to Smith confirming meeting dates and date faxes sent.
27 June 2006Fax from NSL to NSWCC, please deal with fax of 21 Jun 06 urgently.
27 June 2006Instruction letter – HDY to John Henry Williams, PPB Chartered Accountants .
27 June 2006Instruction letter – HDY to John Henry Williams, PPB Chartered Accountants, Appendix 1 – unknown
Appendix 2 – Resume of John Williams
Appendix 3 – Index to Expert Brief to PPB (comprising materials obtained by NSWCC following the execution of search warrants).
Appendix 4 – Summary of accounts conducted by Ollis, Shields & Koala.
Appendix 5 to 13 – Account Transactions & Percentages of Westpac and Non-Westpac Money
Appendix 14 – Deposits & withdrawals
Appendix 15 – Allocation of payments (reconciled)
Appendix 16 – Allocation of payments (unreconciled)

Draft amended summons provided (but not obtained).
28 June 2006Fax from NSWCC proposing consent orders, seeking Smith to achieve Ollis’ consent and the registration of Ollis’ equitable mortgage in return for lifting of freezing orders and damaging caveat.
30 June 2006Affidavit of Robert Colwell, Westpac v Ollis.

Notes:
– No explanation why Personal deeming account allowed to overdraw by $36,536.29. Why ATR function didn’t reject for insufficient funds?

Confirms ATR governed by Banking Services Guide dated 1 October 2003 (not obtained).
Admits to being responsible for cash management products provided to “mainly” institutional clients including responsibility for the ATR product.
Represents the ATR form to provide a “true” copy of the ATR authority.
Purports that 17 February 2004 occurred simultaneously in Business Cheque and Personal Deeming accounts. The banks’ relevant Banking Service Guide makes clear that replenishments between accounts in two different accounts are not intended to be replenished the same day, hence Ollis is inferred to have authority to generate a debit balance in the Business Cheque Account.
30 June 2006Affidavit of Mark Murphy, Westpac v Ollis.

Notes:
No explanation of why Personal deeming account allowed to overdraw by $36,536.29. Why ATR function didn’t reject for insufficient funds?
20 Mar 04 letter L2250 hints some transactions may still eventuate.
No explanation why 45 cheques did not come to the attention of any Westpac personnel despite bank clearing processes and the Cheques Act 1986?
2 July 2006Letters of instruction, HDY to PPB re: Westpac v Ollis (not obtained).
3 July 2006Steps taken – NSL fax to NSWCC re caveat AC84382 damage and variation sought with regards to mortgage.

Inference – decision to maintain caveat AC84382 consciously and willfully made on notice as to damage and loss being caused.
4 July 2006Smith receives fax from Ray White Parkes re: damaging effect of caveat.
7 July 2006Fax from NSWCC to NSL, giving Smith notice that registration of any subdivision would be a dealing contrary to freezing order.

Inference – a deliberate frustration by caveator on notice the purpose of the acquisition of Harrowvale was to enable dealing.
10 July 2006Steps taken – Fax from NSL to NSWCC re caveat AC84382 damaging Smith , forwards selling agents fax of 4 Jul 06
10 July 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985 from NSWCC to HDY.
11 July 2006NOM from NSWCC to NSL
11 July 2006Fax from NSWCC to NSL re mooted NOM, caveat, registration of mortgage.
11 July 2006Affidavit of Jonathan Lee Spark, NSWCC v Ollis annexing letter of 12 July 2006.
11 July 2006Letters of instruction, HDY re: Westpac v Ollis (not obtained).
12 July 2006Letters of instruction, HDY re: Westpac v Ollis (not obtained).
13 July 2006Affidavit of John Henry Williams, PPB Chartered Accountants, Westpac v Ollis.
28 July 2006Affidavit of Robert James Witheridge, Westpac v Ollis.

Notes:
Admits responsibility overseeing both debit and credit transactions within the bank .
– Admits responsibility in overseeing both debit and credit transactions to have the transactions posted to the correct customer accounts .

Oversees 600 ‘corrections’ transactions per day .
Admits role is to investigate the transactions and determine the account to which the suspense account transaction needs to be sent.
Admits to the timing of reversals, although some timing admissions require investigation?
Does not explain the collection notes.
Does not explain the variations from standard reversal entry text.
Admits to the “total breakdown of double-entry accounting” and unintended ATR design error consequences.
28 July 2006Affidavit of Frank Mazzone, Westpac v Ollis.

Notes:
– Admits that proper banking practice within the bank was that the ATR should have been manually cancelled by his area of Collections on 22 March 2004 when the account status for the personal deeming account was changed from NOR to NFD and PCO .
– Admits the cancellation of the ATR would have prevented the honouring of Ollis’ cheques from the UPI suspense account
28 July 2006Affidavit of John Henry Williams, PPB Chartered Accountants, Westpac v Ollis.
28 July 2006Affidavit of John Henry Williams, PPB Chartered Accountants, Westpac v Ollis – comparing changes made to the report between 13 July 2006 and 28 July 2006.
2 August 2006Dissemination pursuant to s 7 of the NSW Crime Commission Act 1985.
7 August 2006Steps taken – Fax NSL to NSWCC noting:
– NSWCC seeking to register only mortgage memorandum when that did not contain entire agreement and requires significant variation.
– provided valuation report to be provided in near future for NSWCC reliance
– proposal by Smith that NSWCC agree to Harrowvale being sold at its present fair market value to limit Smith losses.
7 August 2006Steps taken – Valuation dated 7 Aug 06 received shortly thereafter independently valuing Harrowvale, provided to NSWCC and Westpac.
16 August 2006 (1030)Meeting L1, 255 Elizabeth St, Sydney, Det Vait Dyrmaier noting:
– Westpac’s failure to supply NSWP with evidence, documents or statements to allow criminal investigations.
– Westpac stated completed 4 weeks prior (Civil proceedings), had not been instructed IF Westpac wished Police action/investigation. Had written to a colleague for instructions (no response whether to investigate).
– Westpac stated: “terms & conditions” of replenishment facilities allowed the account holder to go into debit (overdrawn) and this facility is considered similar to a ‘line of credit’. Furthermore if a replenishment/ automatic transfer facility exists between different accounts with different BSB numbers the replenishment account will continue to go into debit (apparently a fault now being fixed by Westpac). No further requests were given to __ and he believed it futile to continue with any further inquiries for Police, until WBC confirmed they wished Police action. Estimated some 2 weeks for a reply.”
– handwritten notes discussing letters sent to SA acknowledging “debts”

Smith was without notice to this matter until late 2014
20 August 2006Affidavit of Dr. Peter Flynn re admissions of NSWCC late May 06.

Smith was without notice to this matter until after 2011.
23 August 2006Affidavit of Shields – alleging further concurring between NSWCC and Westpac, including the release of all intelligence/search warrant materials obtained. Smith was without notice to this matter until after 2011.

Inference – Westpac and NSWCC knowingly abusing the powers of NSWCC pursuant to CAR Act with no intent to recover funds to the benefit of the Treasurer as required.
25 August 2006State of NSW through the NSWCC used its draconian and coercive powers under the Criminal Assets Recovery Act to re-assign from the Treasurer of the State of NSW (Proceeds of Crime Account) to Westpac Banking Corporation all funds received in relation to Lot 166 DP750164.
25 August 2006Westpac becomes a Respondent to NSWCC v Ollis to Amended Notice of Motion.
25 August 2006Novakovic swears affidavit and Amended NOM for NSWCC v Ollis assigning and registration of mortgage or alternatively seeking sale proceeds of Harrowvale to be paid to Westpac contrary to CAR Act.

Inference – NSWCC concurred with Westpac / Murphy on or around 17-18 Jan 06 to abuse its powers to recover a civil debt for the benefit of Westpac, including via CAR Freezing orders if required.
25 August 2006State of NSW through the NSWCC used its draconian and coercive powers under the Criminal Assets Recovery Act to re-assign from the Treasurer of the State of NSW (Proceeds of Crime Account) to Westpac Banking Corporation all funds received in relation to Lot 166 DP750164.
25 August 2006Westpac becomes a Respondent to NSWCC v Ollis to Amended Notice of Motion.
25 August 2006Novakovic swears affidavit and Amended NOM for NSWCC v Ollis assigning and registration of mortgage or alternatively seeking sale proceeds of Harrowvale to be paid to Westpac contrary to CAR Act.

Inference – NSWCC concurred with Westpac / Murphy on or around 17-18 Jan 06 to abuse its powers to recover a civil debt for the benefit of Westpac, including via CAR Freezing orders if required.
27 August 2006 Affidavit of Victor Warren Ollis re: concurring (conspiracy) between Westpac & NSWCC/Spark.

Smith was without notice to this matter until after 2011.
28 August 2006Affidavit of Darryl Barlow swearing Westpac admission re benefit received as intended via NSWCC search warrant (not requiring own discovery):

“The Crime Commission had everything …. we got everything we wanted”.

Smith was without notice to this matter until after 2011.
11 September 2006Meeting between NSWP, Sarah Rodgers confirmed terms & conditions document was given to Ollis when he opened account 180123. Account opening form is signed and confirms T&C’s provided.

Smith was without notice to this meeting and/or its findings until late 2014.
20 September 2006Meeting between Supt Dyson, Insp Christey, Sgt Dyrmaier with Westpac employees Sarah Rodgers, Mark Murphy & Westpac solicitors noting:
– discussions about T&C’s
– Police documents show clause-indicating overdrawing would be considered an application for credit.
– Rodgers states these T&C’s existed in all business accounts (and applies to Ollis’ account/s).
– Mark Murphy contradicts.
– NSWP sought and obtained the Terms and Conditions pertaining to this account. These were obtained (see scanned document). Pages 17-18 states a similar condition “if your account becomes overdrawn without arrangements, that overdrawing of the account will be treated by the Bank as an application for credit by you.”
– T&C’s also mention ULR – unapproved loan rate – as consideration payable.

Smith was without notice to this meeting and/or its findings until late 2014.
25 September 2006Steps taken – Affidavit of Smith , Notice of Motion, Submissions in relation to NSWCC caveat and security – putting Ollis, NSWCC and Westpac on notice as to collateral agreements/obligations qualifying (unsigned) memorandum of mortgage.
October 2006Approx. October 06 – Westpac provides NSWP with copies of requested documents affidavits.
Smith was without notice to this matter until late 2014.
4 October 2006Affidavit of Robert Reynolds, Westpac v Ollis.
16 October 2006Westpac on notice of Submissions of the Claimant and Affidavit of Mark Smith of 25 Sep 2006
17 October 2006Strike force Greenvale progress report given confirming:
– lack of cooperation from Westpac for investigation.
– records Sarah Rodgers admission of 11 Sep 06 that Ollis received T&C’s at time of opening account 180123.

Smith was without notice to this matter until late 2014.
24 October 2006Westpac issues subpoena to Smith in Westpac v Ollis.

Inference – Westpac from this time was fully on notice as to the qualifications of equitable mortgage security interest Ollis held (if any).
9 November 2006SF Greenvale meeting, NSWP & Westpac (Senior Management + legal representative), Supt Dyson, Insp Christey and Sgt Dyrmaier.
Notes recorded:
On 9 November, 2006 Det Supt Dyson and Insp Christey met with T3 (Senior Management plus a Legal Representative) from Westpac Investigations re S/F Greenvale and other issues. T3 “acknowledged” that there was no criminal prosecution possible against Ollis due to the clause within the account opening details which indicates any overdrawing of the business account shall be treated by the bank as a loan.

Smith was without notice to this matter until late 2014.
10 November 2006 (1101)NSWP Investigation terminated.

Smith was without notice to this matter until after 2011.
15 November 2006NSWP review log, NSWP determine matter a civil debt.

Smith was without notice to this matter until late 2014.
21 November 2006Judgment and published reasons, Mareva injunction and freezing order, Westpac v Ollis.
22 November 2006Notice from Westpac of Bergin Mareva injunction/freezing order and undertaking for costs and damages.
28 November 2006Affidavit of Smith in NSWCC v Ollis NOM hearing.
28 November 2006 (1644)Submissions of NSWCC in NSWCC v Ollis NOM hearing containing numerous false statements.

Smith was without notice as to the falsehoods until after 2011-late 2014.
29 November 2006Defendant submissions, NSWCC NOM in NSWCC v Ollis.
1 December 2006Subpoena of Ollis on Westpac in Westpac v Ollis (unknown to Smith until 2011-2012 approximately) pursuant to an allegation of conspiracy (concurring) between Westpac & NSWCC to do unlawful act, e.g. misuse NSWCC powers pursuant to CAR Act.

Smith was without notice to this matter until after 2011.
4 December 2006Fax clarification from the Claimant to Westpac, mortgage admitted to only an equitable mortgage.
5 December 2006Summons, affidavit and NOM prepared and sworn for Smith , filed in NSWSC in PTLC v Ollis, NSWCC v Ollis.
5 December 2006Submissions for Smith in NSWCC v Ollis NOM hearing.
6 December 2006Summons of Mark Smith and the Claimant filed in NSWSC further placing on notice all parties of contingencies in mortgage memorandum.
6 December 2006 – 15 December 2006Steps taken – notice of motion in matter 15984/2006 for joinder of PTLC & Westpac v Ollis (Summons matter) to NSWCC v Ollis 10278/2006 and/or for expedition of Summons against Ollis to set-aside mortgage.

Expedition unable to proceed due to the non-appearance of Ollis and discontinuation of the legal representation of Ollis in the proceedings (and as such, service could not be affected).

In the conduct of the proceedings (10278), NSWCC & Westpac submitted that Ollis’ conduct was (words to the effect) “criminal” with “$11m stolen”.

As a result Smith & the Claimant were given advice (in order to avoid an adverse order for costs, and because the orders were also likely to be given) that the Claimant should: 1) not continue to oppose the registration of the mortgage by the plaintiff, and 2) serve the process, and 3) pursue the summons proceedings against Ollis or his successor to set aside mortgage.
20 December 2006In correspondence between Westpac & Smith, bank acknowledges Smith seeks to vary mortgage to set aside Ollis’ obligations qualifying the mortgage.

We say this document is prepared in furtherance of the deception of the Smith.
22 December 2006Notice to produce / subpoena provided to Mark Smith of Smith to produce documents.
2 February 2007Notice of Motion – to set aside subpoena to Mark Smith & notice to produce to PTLC.
8 February 2007NSWSC entered orders made on 6 Dec 06 for registration of mortgage & signing mortgage on behalf of the alleged mortgagee who refused in furtherance of deception of PTLC.
February 2007Production of a new certificate of title by LPI (provided to NSWCC) pursuant to CAR Act to NSWCC.
19 February 2007Mortgage AC924905 registered by NSWCC, withdrawal of caveat AC84382.
21 February 2007Steps taken – Fax from NSWCC to NSL

Having refused to remove or vary its caveat, the former caveator, now opposing the sale of Harrowvale at its then fair market value “as is” per sworn valuation.
22 February 2007 (1743)Steps taken – Fax from NSL to NSWCC
– reasserting Smith’s position re qualifications as to mortgage including as set out in Summons.
– discussed s 10 (4) of CAR and Ollis appeal due April 07
– oppression
23 February 2007 (1630)Steps taken – Fax from NSWCC to NSL re new NOM to be heard 26 Feb 07
23 February 2007 (1643)Steps taken – Fax from NSWCC to NSL re issues in dispute.
26 February 2007Further orders in NSWCC v Ollis NOM matter – consented to as the mortgage’s registration defeated the purpose of the Smith / the Claimant NOM.
26 February 2007Separate proceedings unknown to Smith at the time, NSWCC v Ollis NOM for preliminary discovery.

The action failed but the action is based upon a not-well prepared argument of malfeasance or malicious / partial exercise of power (and without the comprehensive volume obtained by Smith ).

The proceedings which Smith are preparing, it is considered, have substantially more evidence of concurring (conspiring) between NSWCC / Westpac than appears to have been available to Ollis and others in this NOM hearing.

Smith was without notice to this NOM until after 2011
25 June 2007Defendant submissions in support of preliminary discovery (NSWCC v Ollis) for 2nd and 3rd Defendants.
12 July 2007Affidavit of Garry Wade, Westpac v Ollis
13 July 2007Affidavit of John Henry Williams PPB, Westpac v Ollis
23 August 2007Declarations for WBC, $11m obtained by Ollis held on trust for Westpac owing to ‘fraudulent conduct’, which the bank acknowledged, was a civil debt, and could never be subject to criminal prosecution.

Findings of moral turpitude against Ollis.

Smith / the Claimant not a party to the proceedings.
2 November 2007Judgment in NSW Court of Appeal matter, Ollis v NSWCC – held:
– lower court judgment made in error “… did not deal with the application in accordance with the principles that govern summary disposal of proceedings…”
– majority verdict re: whether Ollis was entitled to witness immunity relating to alleged illegality (pervert course of justice, not larceny).
– NSWCC should not have obtained summary judgment against Ollis as there was a “real question” to be tried, NSWCC could not rely upon offence of perverting the course of justice (for summary judgment)

Smith was without notice to this matter until after 2011.
29 November 2007Ollis party’s application for special leave to appeal to HCA re illegality basis (7 Jun 06 Summary judgment in error).

Smith was without notice to this matter until after 2011.
14 December 2007NSWCC v Ollis discontinued by NSWCC, NSWSC will not release NSWCC undertaking for damages.

Smith was without notice to this matter until after 2011.
28 March 2008Westpac file submissions on priority in Green Parks hearing of Westpac v Ollis.

Inference – submissions demonstrate the intent of Westpac before 19 Jan 06 Sully orders, to use/misuse the NSWCC powers and CAR Act to obtain a financial benefit, including caveats, security, priority, equitable preferences, etc. Inference supported by acts taken on 20 Jan 06 (day after Sully order) by investigating/ confiscating parties to caveat Doco’s estate property caveat AC62711 allegedly pursuant to CAR Act 10 (3).

Further inference – submissions and cumulative conduct of Westpac demonstrate it was anything other than a silent and passive volunteer
Smith was without notice to this matter until after 2011.
23 April 2008 – 24 April 2008Assignment of mortgage from Ollis to Westpac, Westpac on notice of contingencies and qualification of mortgage.

Westpac represented that the Deed of Assignment had been ordered by Einstein J. Subsequent enquiries have been unable to establish that Einstein J ordered the disclaiming of Ollis’ obligations pursuant to the mortgage.

On 23 Apr 08 Westpac gave notice of the orders providing for assignment of Ollis’ interest (if any, arising from either fraudulent obtain or fraudulent registration) to Westpac.

On or about 24 Apr 08, Smith for the Claimant signed and returned an ‘acknowledgment’ of notice.

Smith was without notice of any assignment until after the making of the order. Assignment acknowledged post the making of the order.
August 2008Hearing of Green Parks “priority issues” identified in document entitled “submissions” disclosing the mind of the bank at the time of the (alleged fraudulent) obtaining of said equitable priorities against Green Parks parties (victims).
Same “priority issues” NOT used as against PTLC.

Westpac win on all counts v Green Parks due to priorities established due to “fraud” by Ollis.

Smith was without notice to this matter until after 2011.
August 2009s 57 (2) (b) – false statement made by Westpac (alleging $3m due and payable)
Steps taken – request farm debt mediation (refused).
October 2009Repeated false statement by Westpac (repeat false statement under s 57 (2) (b) that $3m due and payable).

Steps taken – engaged ERA Legal to correspond with Westpac re settlement of disputed matters.
January 2010Appointment of receivers (by Westpac) to take possession of Harrowvale on basis of “unauthorised withdrawals”, false statement as no monies due and payable.

No notice of the taking of possession until taken.
26 March 2010Steps were taken – engagement of Simmons & McCartney, correspondence to Westpac & Ray White Parkes demanding the discontinuation of sale by auction programme and the undertaking of Farm Debt Mediation.
27 March 2010Sale by public auction by Westpac at $1,060,000.
April – July 2010Steps taken – several caveats filed on 166/750164 (in error).
July 2010Westpac file & serve summons against the Claimant & Smith seeking to set aside caveat and an order restraining Smith from filing future caveats.
1 August 2010Steps taken – Smith receives Gerondis fraud report #1
3 August 2010Steps taken – Smith reports knowledge of Ollis fraud (but not Westpac fraud) to NSWP on COPS event 44239786.
4 August 2010Withdrawal of caveat AF670829W (per caveat AF546791) on mortgage AC924905.
4 August 2010Filing of caveat AF670830N on mortgage AC924905, mortgage obtained by fraud on notice to Westpac.
4 August 2010Caveat hearing, oral submission for Westpac:

“Ollis stole about $11m … Einstein finding Ollis held on trust … fruits of stolen money.”

Further submissions and evidence re: urgency of sale, prospect that bank would lose buyer. Urgency motion of bank prejudiced hearing of Smith’s caveat defense and timetable.

Inference – deliberate perjury or deception by those acting for Westpac knowing Ollis could not be charged with any criminal charge which misled Smith to withdraw caveat AC670830N and not seek to cross-examine Westpac witnesses, put on evidence.
5 August 2010Letter from Piper Alderman to Westpac, WBC on notice they have no interest, “not entitled to protections of s 42 or s 43 of RP Act as they were on notice …”
9 August 2010Letter in reply from HDY to Piper Alderman.
26 August 2010Smith received the Gerondis fraud report #1.
1 November 2010Transfer of Harrowvale occurs pursuant to transfer AF701846 by mortgagee exercising power of sale, 3 months after alleged urgency.
30 June 2011Smith complaint letter to NSW Police – why have NSWP charged Ollis?
22 July 2011Smith receives letter from NSW Police – State Crime Command explaining
18 April 2011Westpac confirms undertakings for damages pursuant to Bergin freezing orders of 21 Nov 06 never withdrawn, orders still on foot.
25 March 2013Smith wrote to CEO of Westpac & its proper officer separately seeking settlement discussions
8 March 2013Notice to Produce by Mark Smith issued to the NSW Crime Commission
2 April 2013Letter from Westpac refusing to enter into discussions or settlement negotiations.
27 May 2013 – 29 May 2013Production of documents by NSW Crime Commission following (narrowed) Notice to Produce of 27 May 2013
August 2016Historical title search of Harrowvale sold by Westpac.

There is a lot more information that we are working on in this matter – so watch this space.

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