Many R’s Podcast – S2E1.5

posted 29 September 2022

Season 2 – Episode 1.5 Many R’s Podcast

Transcript

rogues rascals reviewables rorts rip-offs receivers real estate agents and much much more this is the many r’s podcast season 2 episode 1.5 focussed purely on steve papermaster, google steve papermaster, presented by mark smith from dc partner solutions. Our website www.dcpartners.solutions/podcast and you can instant chat with us there, otherwise give us a call anytime till late, most days, 1300 327 123.

well welcome to this very special episode, episode 1.5 of season 2. and we are purely profiling steve papermaster as an extract of season 2, episode 1. and boy have we got some interesting and breaking news in the pipeline including INCLUDING something which has fallen out of cyberspace from one of Steve Papermaster’s former enablers spilling the beans, in writing, that steve papermaster is NOT always someone who tells the truth. so i’ll be very happy to publish that. Boy, you don’t want to miss that. so if you are or have ever been someone who has invested with steve, sponsoring one of his floats or whatever …. this is a person that Ernst & Young put on a pedestal and say that he is an entrepreneur of the year, not only that but he is a founders and one of the judges (of the awards series), so ernst & young give yourself an upper cut, this particular document talks about the ernst & young due diligence and praise report … oh my god, the ernst &young praise report, don’t you want to read that … the ernst & young praise report was absolutely glowing and it could have bought and paid for by steve papermaster himself?? ah, who knows whether ernst & young actually wrote the report themselves or steve wrote that or whoever? maybe he got someone from the white house to write it?? it is …. it is … I can’t wait to share the report with you. stay tuned. this is the many r’s podcast, we are now going to go to a profile we did on steve and then standby and watch the video …. steve’s illustrious covid cure video. so enjoy, have a laugh … get some popcorn ….

(transition to extract from s2e1) ….
all right well we’re now moving on to uh the centerfold the centerfield of uh the dcp solutions website and uh how many are this is our current centerfold and it’s a guy called steve g papermaster and uh steve g papermaster and his company nano global, nano vision, nano whatever you want to call it now anything um so uh who is steve papermaster well he’s not even an australian but this guy has come to our attention and uh he um well we’re going to ask who is the papermaster it’s a very very good question and let’s perhaps perhaps perhaps there is two stephen papermasters it’s this steve that steve spins but there’s also what others say and it’s going to came to our attention um i don’t know whether to say through a fictional character or someone else but uh someone someone that we’ve come across um uh ended up being a victim let’s just say a victim of um this steve papermaster and his investment scheme and um well let’s let’s see what others say about steve papermaster and then um well we’ll first look at what steve says and um so let’s play this

Molecular bonding is what we need in vaccine development? Papermaster was ….

wow how impressive? steve is a guy that knows how to beat covid19? my god uh where do we sign up um uh that’s now who do you reckon right that spin um do you think the journalist write that or do you know do you think steve um provided a list of talking points? this is who i am. read this will you? and uh wow

now what do other people say about steve? you know people that have actually met him and done business with him what do they think well let’s have a let’s have a look at a few of these uh well let’s have a look at mozido inc and steve papermaster and um this is uh from a court case uh a real court case and fought a few years ago and this is um

this is what the defendant says now i’m sure that there’s always two sides to the story that uh the defendants say uh steve’s not some genius that worked in the white house and all of this and by the way the people that i know that um have claimed to be a victim of steve’s they don’t see him as a genius that worked in the white house either but um let’s just see what this is so the defendants led by paper master promised to provide mozido a leading global payments platform with substantial opportunities to expand in the china market however that promise turned out to be part of an intricate fraud that that defendants perpetrated in order to swindle mozido out of millions to lure mozido into the trap the defendant’s touted and you know and it goes on and on and on and on

okay so that’s that’s one disgruntled party um and that’s a few years ago

let’s let’s now have a look at uh a trustee, that’s what we call liquidator here in australia, steve papermaster uh and other executives squandered assets and this is going back a few years ago six of agillions uh former topic executives have been sued by bankruptcy trustee for the legendary spending sprees that bankrupted one of the most well-financed and well-known high-tech startups in austin.

whoa so that’s a little bit different um the person’s charged with um

so this article talks about how agillion, steve’s company burned through 60 million dollars in less than three years

now that you’ve got to admit there’s talent there um wow

so um i mean i just love this article i think it’s incredible and this is another side to steve

so uh that you know you don’t you don’t hear of when uh when you’re given the talking points um agillion um they had about $100 bucks in the bank, uh 15 months before they had 30 million dollars in the bank, so um and for all of that um money that they’ve spent they had a few dozens of subscribers? i mean this is legendary and i mean i think you’ve got to go to the white house uh for this sort of legendary um stuff so uh they bought ads in the super bowl, they spent $500,000 uh taking um their staff uh on a little trip on a pep talk, uh a team bonding session, there i say um they took a 10 year lease on a building for 30 million dollars, they opened an office in australia when they had like 13 customers back in the united states? uh on a super bowl night uh back a few years ago um they threw one hell of a good party – 168 bottles of wine at a restaurant!!!!

i mean whoa and we’re going to have a look at i mean this is this is a guy

wow i just don’t know what to say this is very very impressive so um let’s have a look at some of his enablers i mean uh to to get away with doing some of these things you really need a team this is you know this couldn’t possibly be a solo effort and uh this this guy is i mean he’s great so uh these are some of the names that have helped him and we’re gonna have a look at over this um particular season we’re gonna have a look at some of the people that have enabled this guy to get away with some of the stuff and um i’m going to show you a video in a moment and it is so special it is so special but he’s been helped if that’s the word he’s been helped by bankers and funds managers and and all sorts of people but ernst & young – they probably take the absolute cake

so um so these are some if you want to know a little bit more just google steve papermaster or steve papermaster enablers and uh you’ll get to see some of these enablers uh the ceo of a company called leonie hill capital uh that’s arun kant um he’s been helped by the gordian group now they’ve been fantastic uh one of um there’s a whole bunch of beautiful photos in here uh peter kaufman he’s the ceo or president or something of the gordian group

oh no i don’t think he’s the president, that’s a guy called fred zeidman who’s um you know king of the jewish lobby in the united states and good mates with um good mates with george w bush on the fundraising committees and blah blah blah blah

so um angela angela plaisted it at ernst and young there’s uh there’s a cast of thousands of thousands at ernst & young.

this is fred zeidman

andrew jordan of ernst & young, now the main well i’m not sure it’s the main but it’s certainly one of the um one of the key pieces of um enablement if you like and uh i mean that’s an interesting word

but um steve uh steve has even gone on to super yachts in uh in in in monaco and places like that um to as a guest of um ernst & young … ernst & young … they trot him out and they say wow this guy’s a legend. They (ernst & young) don’t i don’t think they say anything about oh how he blew 30 million dollars and um you know run companies into the ground um uh elaborate frauds or intricate frauds (mozido allegation) i don’t think there’s much about that in the spiel in the ernst & young spiel, but my god um these are some of the people that enable him, stasia mitchell ernst and young. alison kay, they run this thing called the ernst and young … i love ernst & young, i mean i’ve had things to do with them, i think they’re a reputable firm and but then for them to be absolutely blind to who this guy is i actually put him on the ernst & young entrepreneur of the year uh judging panel!!!!

um uh wow and uh they say well this is this is the guy to follow

uh wendy fox of ernst & young, um there’s some profiles here of some of the people that have have helped him out

now we’re gonna have a look at some more documents and uh what can i say what can i say but i think before that i think we need to have a look at this video and i mean i’ve i’ve ONLY got a law degree and an MBA – all right i must be a complete idiot – because i have no idea what the hell this guy’s talking about???

let’s have a look at this this is the steve papermaster covid spiel and uh work out if you can work out what the hell he’s what the hell he’s promising that he’s got and um well let’s just have a look now uh i’ve got to show you this this email um this is an email that he’s written to uh one of the victims um in april 2020, now that’s right at the start of covid,

uh dear blank, now i won’t say i have actually changed this i’ve pulled out the two section i pulled out the date and the time so uh i suspect he’s probably sent this to all of his victims but

dear blank

i look forward to talking to you soon i wanted to get you a summary of the core nano products which are scaling up in the market for treatment and prevention of covid 19. coronavirus treatment he’s got …

this guy claims he’s got a treatment for covid 19.

now uh pfizer it’s ….

this is a company called …. you’ve never heard of uh uh what’s yeah anyway a treatment for covid 19.

oh my god i mean and this is sent by steve now if this is bullcrap just just go ahead and sue us

okay because uh this is this is the sort of crap that he sends out um we are close uh now leonie hill here’s another email uh we are close now this is in january 20. we are closing an important license small acquisition oh we are closing we are closing and we’ll close and we’ll close the preferred equity round with leonie hill and other investors

so did leonie hill invest a nickel?? no no no no didn’t arun kant got heaps of other people to invest money but didn’t invest a single cent themselves??? uh other investors i’m not sure we are closing an important licence so did they no no so um let’s well i think we should have a look at this investor document

now this is an investor document that they sent out uh to some actual suckers that did invest uh and they say well they know here’s the ceo and it tells us it tells us about this acquisition and that uh henry i poor bastard i can’t pronounce you soon henry legere, my apologies to you henry if that’s not how you pronounce it um $300million dollar uh post-money valuation target, $55million institutional investors, and up to $25million uh to select reliant and nano family office/friends / family and friends … the family and friends round now it says here that leonie hill and mark cuban and others they’re all investing really, so did they invest no use of proceeds what we’re going to buy is the integration of reliant and uh henry legere is he’s our president he’s gonna be the president and did they

and you know i’m actually told that this absolutely went nowhere near like there wasn’t even talks there was nothing serious so uh they claim that they’re going to be the leader in global in-app health and wellness

um so let’s without any further ado let’s go and have a um listen to steve’s own words about his covid cure, well steve papermaster let’s let’s hear from the horse’s mouth, so to speak and uh i’m going to give you a commentary as we’re going through and uh trying to decipher some of this crap that’s um that’s spewing out of his mouth? so let’s without any further ado let’s let’s have a let’s have a listen and see if we can figure out what the heck he’s talking about???

our vision for nano has been simple but powerful from day one nano is here to heal and shield the world our vision heal and shield the world and this is uh one year ago so this is uh he’s talking about covid – aim high steve.

is to be able to have an immunity platform for the world that allows us to detect protect and predict pathogen-led outbreaks all the way up through pandemics

so steve’s going to predict predict pandemics and pathogen outbreaks is i mean this thing cannot move without him his knowing right and he’s going to protect the world and heal it

to develop the technologies from drug development vaccine level through preventative technology

so he’s developing the technology through vaccine level now i’ve never heard of the nano vaccine for covid 19 but stay tuned

you know through a digital data to be able to develop uh real-time effective cures and

effective cures in real time

in real time he’s going to he’s got the technology in real time to produce effective cures

effective treatments

people’s lives are at stake literally by the second by the nanosecond more than ever in the world today it’s a real tragedy um a human tragedy of enormous scale and societal impact with covid-19 and it won’t be the last one

and so oh so he knows about the future ones as well okay so what’s coming next after covid 19. okay beautiful

so we want to do our part to accelerate take the benefits of our innovations and technology from the vaccines into the surrounding

so we’re going to take the benefits of their vaccines and apply it and make squillians okay

we want to invest in this areas of technology and get it to billions of people

oh and he’s going to spread it out to billions of people so forget about pfizer novavax uh astra zeneca – nano right

all over the world as fast as we possibly can in the development of of our nano cures which

he’s got his nano cures so some sort of microscopic cure that he’s got it all figured out includes the vaccines

and therapeutics we are taking the specific vaccine candidates that were in development prior to the covid 19 outbreak and refining it for covid 19.

so he’s got these cures that were from before covid 19 and he’s going to refine them and apply to covid 19.

we have clinical trials uh they’re in process now clinical trials

okay that’s why we haven’t heard um they’re in clinical trials

and seeks and fast track regulatory approval fda and fda equivalent

oh okay so it’s the government’s fault okay right because there’s seeking fast tracking globally

get that delivered to people and in the market as quickly as we can in the late second quarter or early third quarter and that is very very fast especially for this type of

now look at this cure it’s just racing across the globe

vaccine which is an extremely stable very low cost vaccine

an extremely stable vaccine low cost now in a minute he’s going to tell us that you don’t even you can just stick it in the fridge

not require ultra high levels of cold chain storage like mrna vaccines need

so this is better than all that crap you know all that pfizer stuff it’s much better you can keep it at what is normal refrigerated temperatures

this farker’s actually keeping a straight face, like i think he actually believes all this stuff

in order to deliver that vaccine which is critical in many parts of the world that do not have the sophisticated levels of it

ah okay so he’s talking about the developing world here where you know uh where there isn’t coal chain logistics well um he’s going to spread his cure around i don’t know billions of people wow we want to invest in this company

infrastructure available the other big areas that we are developing are different delivery mechanisms so that you can take a vaccine that we’ve developed and use it as a spray on your skin

oh you just spray it on i wonder if this is like those erectile things you just sniff it or something you know and you know um you’re cured from covid?

more patch on your skin or nasal spray or an oral vaccine and after that of course we’ve got we’ve got in development in parallel a universal pan corona virus vaccine that is intended to provide immunity for any future forms of chromovirus-based organisms

a pan-corona vaccine that’s going to wipe out everything so anything that comes all the next variants and all of that he’s already got it sold for pathogens as well as potential mutations from 2019 oh okay so all the deltas the omnicrons and all of that he’s got it all figured out

Nano cure is a technology that is specifically engineered to get

so this is a soap company?

give us very safe defective compounds that we can apply as a fierce uh antimicrobial antiviral that can attach to our skin and surfaces that will attract and destroy on contact dangerous pathogens

so it’s going to attract the virus and then destroy on contact like some sort of scary laser this is star wars or something right sometimes refer to it you can see the bacteria coming wow

it is sunblock or sunscreen for germs it means that somewhere between hours and 24 hours on your skin and on general surfaces that can be weeks months or even longer until

longer than months so you just got to spray this on some surface and wow it’s just protection so this is the ultimate protection racket wow and lasts for even longer than months on your skin and on surfaces

is disrupted we are all exposed all the time if we have any semblance of normal life the ability to cut the transmission the contagion in many cases by 90 plus percent

in many cases by 90 percent

90 plus percent

so you pay your money to steve and um snake oil bang this is like the magic snake oil

that level of prevention is on par with the profound impact of having widespread nanosense vaccine technology piece of our platform

oh here we go so this is his technology

that we have architected to essentially be the operating system if you will of molecular level data what we’re breathing what we’re touching are those things that

wow i love it we

come and contact you on our exterior body or into our lungs and synthesize the data analyze the data through our sensors

so he’s got some magic piece of plastic but you plug it in you pay you pay your license fee and it just tells what pathogens are in the air or whatever and does it send out an alarm to send out an sms who knows let’s keep let’s keep watching

using our nano center technology we can actually see from a standpoint of analyzing is there the presence of or the likely presence of certain germs certain pathogens like covid19 or others that are or could be dangerous we’re still early on in the development

oh so it’s not just limited to covid uh it’s the other more dangerous things wow and i mean the mind the mind just boggles

development we will be rolling out in product forms rapidly over the next one to two years time is of the essence in just the next four to eight quarters we expect to be active really in every region of the world we’ll have

wow every region of the world is going to be active with uh with this guy’s technology

a manufacturing capability we’ll have regional delivery just in the course of the next 12 to 24 months we will have our presence

oh okay so they’re going to send their packages out through south africa and on to indonesia and australia wow

and they’re also going to get there so they’re going to send stuff through the democratic republic of congo then send it over to nairobi and then on to india or pakistan or somewhere and they’ll be sending something through libya, from somewhere over here so where’s that

who knows uh memphis i’d say uh send it through libya and then on to china? okay well that sounds pretty good and from memphis uh through to that looks like the south of france so they’ve got some hub in the south of france and then on to kazakhstan? that looks good let’s uh let’s keep going um but they’re sending it from mexico to um where is that you know is that chile?

in most major regions in the world directly with partners you can never have too many fantastic partners when you’re trying to partners we’re going to have a partnership

so that’s perhaps uh how our guys got involved and lost money with this guy??

bring this kind of technology and this type of care to the world

so he’s bringing this type of technology and care to the entire world so um let’s let’s just contemplate that for a second

so that’s something to whet the appetite for …. for the rest of uh season 2 we’re going to have a look at this guy uh steve papermaster and nano and his white house exploits and and more so let’s have a look at that throughout the rest of the uh uh the season

i will let you in on the secret though uh the the ending

i’m going to spoil the surprise, uh nano is uh um the company that uh took i don’t know 20 30 50 million dollars from investors uh the cure for all this wonderful technology is just all bull crap and it’s it’s just all ended up in the toilet there was no merger there was no technology there’s no license there was no uh fundraising by mark cuban and arun kant and leonie hill capital – just all absolute bull crap so uh and who can forget ernst & young and the EY entrepreneur of the year?

now i mean this is entrepreneur of the year stuff

this is entrepreneur of the century stuff by mr papermaster

yes um steve is still on the illustrious panel of uh judges for the EY entrepreneur of the year

so um who was the genius at ernst & young that thought wow we’ve got to keep this guy on the judging panel?

and if you google steve papermaster about the third thing that comes up is uh the EY entrepreneur of the year

yeah steve just absolutely spins this to the max and so he’s on a great deal and who knows what sort of uh kickbacks or whatever, maybe that’s the wrong word? um engagements, who knows what sort of engagements that ernst & young get out of these nano companies? and you know, i dare say that funds from investors … have plenty of funds have ended up in the in the coffers of ernst young?? and uh you know, maybe i’d love to know which new marble foyer is being built now with steve papermaster money? in which offices of ernst & young (are the marble foyers being installed???) – i’d love to know

so what’s this space

so look, in closing we’ve got an exciting season 2 uh in front of us

we’ve got a little bit happening in the real estate space uh we’ve even got leasing activity with uh our mate ralph paligaru so we’re going to be watching asquith spices and see as he rolls out uh that strategy right across sydney?

um we’ve got miscellaneous others

we’re going to follow jetstar and see what other complaints come in

uh we’ll be monitoring uh some in the in the legal sector

uh we haven’t got any insurance racketeers just yet but uh we’re always open

um we may well write uh some things about our bankers in the fictional uh in the fictional department so that we can be a little bit more explicit but tap into our creative touch and our creative that creative space and get the story out we won’t necessarily get sued by any of the people involved so that’d be very nice uh

and we’ll see what uh develops with uh receivers and liquidators um now – we’ve got uh stuart jones from perth property group uh and his daughter jade and his wife geraldine so we’ll see what happens there, stuart’s got a wonderful uh trustee in bankruptcy and we’ll be following others no doubt into that space and of course when we say others well we’re talking about um steve papermaster our centerfold will be following

uh the oh raymond gulliver sorry the real estate expert there’s lots and lots and lots to discuss there with raymond gulliver uh we may even find out who owns the bank account that um uh was swollen with $327000 dollars of loot uh and it wasn’t raymond and jennifer that’s we know that we know that they’re not the owners of that account but we don’t know who is so all apologies uh jennifer completely innocent we may even see raymond’s um statement of affairs uh since he’s in bankruptcy so that’s very interesting

um but we’re coming back to uh steve papermaster now there’s lots of lots and lots of stuff there i’m going to talk about how ernst & young are wonderful enablers how the gordian group fred zeidman and others just look the other way when it comes to you know losing 30 million or 50 million they’re there for steve they’re there for steve and in his hour of need the covid cure you never know you never know you might even see something about the uh nano covid cure so that’s an exciting season 2

uh coming our way uh we might even touch on greg walker and see where he’s up to um uh we didn’t really get to talk about macarthur group macarthur properties uh macarthur projects dare i say and um where’s 131mvr up to?

so there’s so much to go through in the rest of season 2 and we’ve got many many surprises particularly in the fictional storytelling department we’ve got some characters well uh they may be uh they may resemble uh people that um you’ve heard about uh there may be facts and you know bits and pieces uh of the story that unravel throughout the rest of season 2

so that’s something to whet the appetite for

i hope you will if you’ve got any questions do give us a call 1-300-32723

my name’s mark smith or jump online www.dcpartners.solutions/podcast and instant chat with us in any time of day or night uh whether that’s american time – hey we love tip-offs so if you know any of these people that are involved and you’ve got documents or any information that you’d like to share with us jump on the instant chat tools and uh you can send us documents uh send us bits and pieces there’s a tip off form um about steve papermaster just google steve papermaster uh enable enablers um and if you want to uh tell us about some of these enablers some of the things that ernst & young get up to on his behalf we’d be only too happy to know more and share that with our viewers so that’s it signing off mark smith www.dcpartners.solutions/podcast instant chat with us or call us until late most nights 1300 327 123. thanks very much bye

#whoisstevepapermaster

If you’ve got any questions then give us a call 1300 32713 or go to our bottom right hand corner instant message us or instant chat with us on www.dcpartners.solutions

Steve Papermaster – covid cure
s?

Asquith Spices

Asquith Spices / Ralph Paligaru Inc

Profiling the wonderful business of Ralph Paligaru owned by Genesis Pacific Enterprises Pty Ltd known as Asquith Spices.

Asquith Spices is located at 377 Pacific Highway, Asquith

https://www.facebook.com/AsquithSpices/

https://www.facebook.com/AsquithSpices/

Know more? Message us anytime. Or if you’ve got any questions then give us a call 1300 32713 or go to our bottom right hand corner instant message us or instant chat with us on www.dcpartners.solutions

Many R’s Podcast – S2E1

updated 1 September 2022 (please refresh your page).

Season 2 – Episode 1 Many R’s Podcast

Transcript

rogues rascals reviewables rorts rip-offs receivers real estate agents and much much more this is the many r’s podcast season 2 episode 1 this is mark smith from dc partner solutions if you’ve got any questions give us a call anytime 1300 327 123 or instant message chat with us at our website www.dcpartners.solutions – use the instant message chat tools in the bottom right hand corner thank you

well hi i’m mark smith from dc partner solutions a little bit about me this is season 2 episode 1 of the many r’s podcast. i’ve actually been running this podcast since 2020 but before that i’ve been writing a book about westpac and how they cheated me out of maybe 20-25 million dollars so that was a really brutal experience but i’ve since gone on to have 3 beautiful children uh a long and happy marriage uh so many different life experiences i’ve studied i’ve got an MBA i’ve now got got from the university of sydney a law degree uh a very very coveted law degree called a Juris Doctor, uh i’ve been a company director here in australia singapore and thailand uh many many different experiences in life, employed lots of people, fired lots of people, run litigation uh been involved in insolvencies uh been involved in corporate restructures all sorts of things, uh i am now living in western sydney um i travel throughout australia. sorry i live in western sydney and spend some of my time here in a beautiful property on Mt Canobolas at orange or just near orange in country NSW. i’m blogger i’ve never been sued for defamation so that’s rather interesting but i’ve studied law i’m familiar with the laws here in australia new zealand and singapore and i will fund litigation for the right projects, i have a um i’m involved in companies with credit licenses and what’s called AFSL, an australian financial services licences. i’ve done some property development i’ve done extensive consulting as i said i’ve had 3 children they’re all adults now and some have gone through uni. lots of life experiences so i’m here to help here listen i’m here to help um available most days until late on 1-300-327-123 or you can instant chat with me um some of the time not all the time i do uh clock off occasionally but you can instant chat with us at www.dcpartners.solutions/podcast.

so in this podcast we look at uh a whole bunch of R’s – rogues rascals rorters rorts rip-offs reviewables, they’re what we call those that we’ve got an open mind about whether we’re decided that they’re you know rorters or ripoff artists or maybe we’re unsure so we look at a whole bunch of other categories uh real estate agents as i said miscellaneous other bad guys in society, travel rip-offs, government malfeasance, iffy lawyers, insurance racketeers, bankers especially the westpac ones and receivers, liquidators administrators and all sorts of others that uh come to our attention. 

well we now turn to uh well we now turn to real estate agents and developers and i’m not sure if this guy is in the category he’s an R that’s for sure, his name’s raymond. raymond john gulliver and uh well he was some sort of real estate advisor uh he worked alongside another real estate agent called david vereker and another r robert robert miles. he’s a he’s also a lawyer and raymond um held out that he was a partner in a company called pegg capital operated by two fellows uh andrew smith, absolutely no relation and hugo driemeyer i think that’s how we pronounce it and uh it’s a partnership apparently um but uh when you look a little closer uh is it so we’ve set up this website on the illustrious mr raymond john gulliver you can find if you’re looking for raymond he’s at 39 when gala road riverview and he lives there with his lovely wife uh jennifer gulliver a very very successful woman, the house is 100% in jennifer’s name so i don’t know what raymond’s contribution is there but that’s where we found him a number of times when we had to serve him so on our website you can google raymond john gulliver dc partners and you’ll find our website raymond was bankrupted declared insolvent bankrupted on the 1st of february 2022 and to date i i understand he has not complied with any of the applications or any of the obligations to provide income statements or assets liabilities and so who knows what he’s got to hide here’s some some happy snaps of raymond we’ll just go through a few this this is a photo of raymond in cambodia i think it is maybe vietnam and uh raymond is here and next to him is a chap called which will come to another pegg another big fellow then we’ve got some officials from the countries of uh cambodia and vietnam and and others and there they are the pegg partners looking very trustworthy wouldn’t uh wouldn’t hurt a flea um ray gave out these business cards uh pegg – private equity gateway pegg pegg gateway private equity gateway um if you do a search now apparently there are head offices in malta but back in the day they were an australian company with offices in brisbane sydney melbourne hong kong hong kong presumably was uh was raymond’s office and uh raymond once upon a time worked for a news corporation loved to go the horses in hong kong and apparently very unsuccessful punter, um ran a company called jagbo proprietary limited

but gave out a business card saying he was a partner of pegg and no doubt pegg knew this and held him out that he was their partner and pegg being a partnership there’s his mate david vereker a real estate agent uh besties absolute besties these guys david vereker that’s a name um you may have heard david once upon a time is a very good tennis player professional tennis player i understand and if you’ve heard of the name mcgurk then you may have read this vereker’s father was um having uh coffee or whatever there’s no suggestion that he’s involved but he was having coffee with mr mcgurk on the day of his death very unfortunate that um and mr mcgurk was friends with mr medich, um adam tilley, there’s a name we haven’t heard for a little while um and mr uh vereker apparently uh having started with hopes of 14 million mr vereker sold a residence of mr tilley’s tilley’s to pay back loans to mr mr medich um mr tilley’s um home was apparently firebombed very very um strange so um his father richie vereker now i have a feeling kate mcclymont may have written about um mr mr richie vereker uh former hotelier had lunch with mr mcgurk on the day he was um shot so that’s um um all very coincidental anyway um we’ve got david vereker and uh raymond gulliver besties so um there’s david vereker’s number oh jennifer so that’s mrs gulliver mrs gulliver i think mrs gulliver may well be a very big successful um marketing executive was it qantas it may well be a rebel sports or somewhere like that now uh this is a mr zeeman that uh raymond and mr vereker uh david vereker was suing for i don’t know 10 million dollars um something like that for unpaid commissions now entirely unsuccessful but they managed to pay some money into the court in hong kong they were suing this mr zeman for you know many many millions of dollars so there’s our david vereker and we’re back to the start uh what other documents we’ve got here let’s just have a look ah yes so um back in the day um raymond um raymond managed to um hoodwink a uh one of his clients where he worked one of pegg’s clients i should say pegg’s client was rid of vince’s proprietary limited uh and one of these um unhappy campers here in this photo was ripped off and apparently the sum of $327,973 was allegedly appropriated into a bank account for raymond john and jennifer uh gulliver that’s very nice $327973 of a client’s money of pegg’s client’s money goes into raymond and jennifer’s um gulliver’s bank account although that’s what that’s what the letter says it turns out the bank account does not belong to raymond and jennifer um so s raymond isn’t uh the account’s not in raymond’s name so whether it’s in jennifer’s name or someone else’s name uh time will tell but this i’m merely reporting that this letter dated the third of june 2011 states that uh $327973 dollars a red earth ventures uh money is going into pegg’s um partner mr gulliver and his wife’s uh bank account now i say absolutely uh to the best of my knowledge that account is not held by raymond and jennifer so it could be that it’s held by neither raymond nor jennifer it’s it’s certainly a mystery who belongs to it but uh $327,973 was apparently moved from stojanovich’s trust account at the direction of raymond gulliver of pegg partners to an account which he said was his and his wife’s and that was the last of the red ventures 327,000 so what i can say is that

what i can say what i can say is that pegg and its chairman albert cheok i’ll give you the exact spelling of that he’s a malaysian or singaporean man uh very distinguished very impressive uh cv um we’ll put up some of his cvs mr cheok uh and andrew smith just want nothing to do with this they want to they want nothing more to do with their former partner uh raymond gulliver they say that he was never a partner despite him having business cards and uh despite there being plenty of letters going out uh saying that he was their partner so let’s have a look at some of those letters so this is a company profile pegg premium pegg premium private equity gateway group the partnership apparently and uh pegg corporate now there’s no mention of malta here um it’s just that uh they are very impressive uh consultancy and advisory company i mean in real estate apparently uh doing all sorts of work for lewis land these are very impressive marine owners, meridian mariners raising 200 million dollars all sorts of big companies and they’re very impressive and then they send out raymond and they say that he’s their partner and these are past transactions all chinese investors pegg backs for, wow that sounds impressive, so if you’re a cambodian or vietnamese and uh look at all these people that um pegg say that they’re dealing with uh sale of 300 lots subdivision at morayfield, 84 townhouses, 24 million apartment at ephraim island, now that’s on the gold coast somewhere, uh marinas sale, sale of hong kong’s blue chip commercial building, sale of one of macau’s most prestigious casino land holdings setting a record price i wonder if that’s the one for mr zeeman and um i wonder if david vereker and raymond were involved in that one that certainly sort of sounds very familiar current and this is this is to the best of our knowledge this looks very very much like an official pegg uh document company profile it certainly uh persuaded the vietnamese and cambodians to part with 327000 into raymond and jennifer’s personal bank account or so they thought um had the direction of you know their partner uh their advisors pegg premium private equity gateway so when when they have such an impressive track record it’s it’s unsurprising that people would trust them pegg agree currently is mandated for over 500 million dollars of aud transactions pegg resources pegg energy andrew smith he’s a businessman entrepreneur and philanthropist hmm andrew so this is as a 2012 now albert cheok is is now the chairman but uh andrew smith is still involved in hugo driemeyer i hope i’ve pronounced that correct driemeyer both entrepreneurs huge and diverse investment portfolios how wonderful so what an impressive company no mention about malta certainly well actually there’s no mention about brisbane even but certainly mention about the hong kong office now tim holmes that’s the chap in the photo with the with the happy vietnamese cambodian officials uh former director of savilles, prd colliers, tim was instrumental in managing sales in excess of 1.5 billion in the last seven years beginning his career at prd so wow what an impressive impressive person executive partner raymond gulliver it’s it’s just hard to imagine that this document wasn’t handed out to tim holmes and raymond gulliver and their clients and uh tim holmes must have known that uh he was the ceo of pegg premium ceo so whereas raymond was the partner executive partner and um wow

what a career so associated delivery partners uh and here they all are so minter ellison, queensland law group, law associates, lewis land it’s it’s just the who’s who so uh there we are oh brisbane there we are so direct contacts so um raymond hands this document to his vietnamese and cambodian clients tells them that uh he’s a partner and look there’s the names of the business owners andrew smith hugo driemeyer, the ceo tim holmes uh they’re all there and um but um oh let’s do a let’s just have a quick look at this company search so private equity gateway proprietary limited that’s that’s pegg

registered in 2007

so it certainly had the correct name it was incorporated at the very relevant time and there’s the officials the company offices andrew john smith absolutely no relation uh lawson road, draper queensland and hugo edgar dreymeyer from uh born in south africa and they’re both the directors and secretaries and you can see that um all the shareholders donna and tim donner and tim holmes they’re in there for a few shares then you’ve got one so pegg one is um the company owned by hugo and andrew

so

that’s a little bit of a appetite appetizer for um some of the people involved um raymond gulliver david vereker, the tennis great, the vendors agent for adam tilley, robert miles their lawyer um, PEGG capital andrew smith 

now we’re just going to go and have a look at a very interesting bloke called stuart jones and he’s um he’s an agent of some 35 years experience, unfortunately he has fallen onto hard times and um had to sell his entire business his real estate business over in perth to his daughter uh so who better to sell it too and um well he sold the house to her that’s that’s jade jones, they sell the house to her as well and geraldine um participated in the sale to their daughter … she looks very young i don’t know where she got the money from but she looks she certainly doesn’t look old she certainly doesn’t look like she’s got 35 years of experience so maybe stuart and geraldine had jade at a very young age so let’s have a look at um well stuart so he’s running the he’s got 35 years of real estate experience but it doesn’t mention here that he’s accomplished sales professional enthusiastic service the team of experienced sales executives are setting record prices but doesn’t mention here that he’s insolvent very very unfortunate but very unfortunate paul stewart um

poor stuart

poor stuart of course stuart’s had to um appoint he just had to file a debtors petition and ask the court to protect him in bankruptcy so anyway maybe um maybe jade and geraldine and stuart can update their website now um it doesn’t mention here but uh geraldine is also apparently facing insolvency highly experienced estate agent entering the industry in 1982 but i can’t say anything about insolvency for her there either so um oh oh that’s another one having worked in the local industry since 2001 geraldine has forged some long-term relationships hmm

so a tricky use of words anyway uh geraldine she looks like a lovely lady there she won’t return any of my calls unfortunately so um wanting to avoid uh wanting to avoid some of her obligations so if you happen to see uh geraldine could you ask her to give me a call that’d be lovely thank you 

the next one uh the next of our real estate people to profile there’s a guy called benjamin todd daniel, very interesting chap he’s um runs a company now until recently they did actually have a 1 300 number if you if you can get this uh if you can get ben to answer this phone you’re doing incredibly incredibly well uh ben doesn’t want to talk to me either so if you could get ben to if you happen to be speaking to ben i’d love to hear for him to give me a call um the it seemed that they 1300 number four group buyer had to get cut off so uh maybe that’s um that’s maybe that’s no good now group buyer it’s easy it is interesting group buyer is owned by not just benjamin todd daniel um benjamin todd daniel from barroway road, wentworth point. but there are some other owners there – dr peter vickers proprietary limited of albury and luke paul hayes. so it seems that dr peter vickers and luke paul hayes of a unit 33 tower street at manly um have some sort of investment uh 48% something like that in this company called group buyer, so it’s the power of people um and benjamin todd daniel owns the rest of them so um it suggests that there’s a paid up some here of about twenty one thousand dollars so that’s very very interesting so um

group buyer um group i can’t pay it’s 1300 number to keep the phones on and it owes one of my clients some money as well so we’d be quite keen to talk to stuart geraldine and benjamin type daniel, if you happen to see any of them would you ask and give us a call

lawyers – now i’m not going to say a great deal about this man but his name’s tim horne he once was a very good friend of mine, so i thought, there’s some photos that i’m just going to put up here of tim we had many many coffee together, tim was um someone that i trusted and um he worked at aqua law for his brother back in happier days um his brother’s a decent guy, he really is, his brother’s name is ben horne and uh it seems that tim and ben had a falling out and they’ve gone in separate ways they don’t talk apparently, and apparently tim’s forgotten that he was my lawyer for those 2 years and um tim, my argument with him, is that he’s now acting against me, advising clients against me so that might cause some ethical problems?  if you’re a client of tim’s um you might like to get a letter confirming that you’re a client of tim’s and um and you know just not disclose just not dispose of that letter? 

the where are they now section – well we’re just going to give you some links to one of our favorite favourite people it’s a couple of our favorite people bernard and fiona hall and the company caernarvon cherry and we’ve been following them for quite some time and um caernarvon cherry and their related company caernarvon canobolas proprietary limited which is in liquidation, it uh was very very unsuccessful and the the judge um awarded uh quite a large sum against bernard and fiona and their company caernarvon cherry now it is apparently being appealed so watch this space. but uh for those that might be interested we include a link down below to the judgment in the uh in the case that was bought by the brother of bernard and fiona um and caernarvon canobolas and they were all business partners so if you are interested in reading that judgment i will provide a link down below 

well followers of the many r’s podcasts would be very familiar with the name greg walker and macarthur projects they would be familiar with these companies the archibald project up in um gosford and another notorious company called 131mvr which stands for 131 mona vale road uh that’s a development project up in St Ives.

there were some very very unkind things said about that particular project by fair trading new south wales and um well greg walker macarthur projects and one and archibald have fallen on difficult times and uh the archibald project was apparently sold uh for around $32million dollars we’re told which is apparently quite a good price? but um that’s no longer proceeding under under uh greg walker’s stewardship nor macarthur projects and sadly very very sadly macarthur projects is um he’s in liquidation as well so i didn’t pay some didn’t pay head contractors up there in or whoever the contractor was up there in uh gosford and um so that’s that’s a very difficult time 

ralph uh all we’re gonna say about ralph um is that uh apparently ralph is no longer in uh in melbourne he’s no longer at his mum and dad’s place uh and he’s spreading his wings all across sydney?  and has opened up a wonderful little business called asquith spice? 

now i’ll give you the address for asquith spice might be looking for ralph they may be able to find him at 377 pacific highway asquith and apparently he’s got absolutely nothing to do with this company called genesis pacific enterprises pty ltd which is owned apparently is very heavily connected to the bottle shop there and uh if you can’t find ralph at asquith spices you may well find him at the bottle shop there it’s about 397 pacific highway asquith so i’m told ralph has ralph has got nothing to do with that company although it’s uh ralph and his son are apparently working there? so if you’re looking for ralph um send me my love, uh he’s a lovely guy and uh i wish him all the best that asquith spices and should ralph go into business setting up other spice shops around sydney i wish him all the best with those as well 

fictional characters well um what can i say it’s uh, fictional characters what can i say um look i’ve been urged uh i’ve had quite a lot going on this year um uh it’s it’s now the 22nd of august um i’ve had quite a lot going on uh this year and uh some well look i’ll talk about it um perhaps in another episode but um i have been encouraged by a number of people to tell more and to tell more stories and um

my line of work has uh involved um meeting some very interesting people let’s put it that way and um but there’s also some obligations of um finality that um need to be respected but also it would be somewhat crazy to go and um talk very very frankly about some of the things that i know and um that have happened and so i’m just very careful i get um you know quite a lot of letters from different people and messages from people and i sometimes even get the odd demand from lawyers and uh some of the people that i’ve written about uh have been far less than happy about uh some of the things they’ve been written about them so um one of the ways to tell some stories maybe based on real events maybe not um just i just need to leave a little bit of mystery there um that uh i’m certainly giving some serious thought to telling some stories about some uh characters that um

could or could not be based on real people that that i know or have met or whatever so look uh in coming episodes we might start to develop some of these stories as well throughout season two and season three and season four and so on of this podcast so you watch this space thank you 

all right well we’re now moving on to uh the centerfold the centerfield of uh the dcp solutions website and uh how many are this is our current centerfold and it’s a guy called steve g papermaster and uh steve g papermaster and his company nano global, nano vision, nano whatever you want to call it now anything um so uh who is steve papermaster well he’s not even an australian but this guy has come to our attention and uh he um well we’re going to ask who is the papermaster it’s a very very good question and let’s perhaps perhaps perhaps there is two stephen papermasters it’s this steve that steve spins but there’s also what others say and it’s going to came to our attention um i don’t know whether to say through a fictional character or someone else but uh someone someone that we’ve come across um uh ended up being a victim let’s just say a victim of um this steve papermaster and his investment scheme and um well let’s let’s see what others say about steve papermaster and then um well we’ll first look at what steve says and um so let’s play this 

Molecular bonding is what we need in vaccine development? Papermaster was …. 

wow how impressive? steve is a guy that knows how to beat covid19? my god uh where do we sign up um uh that’s now who do you reckon right that spin um do you think the journalist write that or do you know do you think steve um provided a list of talking points? this is who i am. read this will you? and uh wow 

now what do other people say about steve? you know people that have actually met him and done business with him what do they think well let’s have a let’s have a look at a few of these uh well let’s have a look at mozido inc and steve papermaster and um this is uh from a court case uh a real court case and fought a few years ago and this is um

this is what the defendant says now i’m sure that there’s always two sides to the story that uh the defendants say uh steve’s not some genius that worked in the white house and all of this and by the way the people that i know that um have claimed to be a victim of steve’s they don’t see him as a genius that worked in the white house either but um let’s just see what this is so the defendants led by paper master promised to provide mozido a leading global payments platform with substantial opportunities to expand in the china market however that promise turned out to be part of an intricate fraud that that defendants perpetrated in order to swindle mozido out of millions to lure mozido into the trap the defendant’s touted and you know and it goes on and on and on and on 

okay so that’s that’s one disgruntled party um and that’s a few years ago 

let’s let’s now have a look at uh a trustee, that’s what we call liquidator here in australia, steve papermaster uh and other executives squandered assets and this is going back a few years ago six of agillions uh former topic executives have been sued by bankruptcy trustee for the legendary spending sprees that bankrupted one of the most well-financed and well-known high-tech startups in austin. 

whoa so that’s a little bit different um the person’s charged with um

so this article talks about how agillion, steve’s company burned through 60 million dollars in less than three years 

now that you’ve got to admit there’s talent there um wow 

so um i mean i just love this article i think it’s incredible and this is another side to steve 

so uh that you know you don’t you don’t hear of when uh when you’re given the talking points um agillion um they had about $100 bucks in the bank, uh 15 months before they had 30 million dollars in the bank, so um and for all of that um money that they’ve spent they had a few dozens of subscribers? i mean this is legendary and i mean i think you’ve got to go to the white house uh for this sort of legendary um stuff so uh they bought ads in the super bowl, they spent $500,000 uh taking um their staff uh on a little trip on a pep talk, uh a team bonding session, there i say um they took a 10 year lease on a building for 30 million dollars, they opened an office in australia when they had like 13 customers back in the united states? uh on a super bowl night uh back a few years ago um they threw one hell of a good party – 168 bottles of wine at a restaurant!!!! 

i mean whoa and we’re going to have a look at i mean this is this is a guy

wow i just don’t know what to say this is very very impressive so um let’s have a look at some of his enablers i mean uh to to get away with doing some of these things you really need a team this is you know this couldn’t possibly be a solo effort and uh this this guy is i mean he’s great so uh these are some of the names that have helped him and we’re gonna have a look at over this um particular season we’re gonna have a look at some of the people that have enabled this guy to get away with some of the stuff and um i’m going to show you a video in a moment and it is so special it is so special but he’s been helped if that’s the word he’s been helped by bankers and funds managers and and all sorts of people but ernst & young – they probably take the absolute cake 

so um so these are some if you want to know a little bit more just google steve papermaster or steve papermaster enablers and uh you’ll get to see some of these enablers uh the ceo of a company called leone hill capital uh that’s arun kant um he’s been helped by the gordian group now they’ve been fantastic uh one of um there’s a whole bunch of beautiful photos in here uh peter kaufman he’s the ceo or president or something of the gordian group 

oh no i don’t think he’s the president, that’s a guy called fred zeidman who’s um you know king of the jewish lobby in the united states and good mates with um good mates with george w bush on the fundraising committees and blah blah blah blah 

so um angela angela plaisted it at ernst and young there’s uh there’s a cast of thousands of thousands at ernst & young. 

this is fred zeidman 

andrew jordan of ernst & young, now the main well i’m not sure it’s the main but it’s certainly one of the um one of the key pieces of um enablement if you like and uh i mean that’s an interesting word 

but um steve uh steve has even gone on to super yachts in uh in in in monaco and places like that um to as a guest of um ernst & young … ernst & young … they trot him out and they say wow this guy’s a legend.  They (ernst & young) don’t i don’t think they say anything about oh how he blew 30 million dollars and um you know run companies into the ground um uh elaborate frauds or intricate frauds (mozido allegation) i don’t think there’s much about that in the spiel in the ernst & young spiel, but my god um these are some of the people that enable him, stasia mitchell ernst and young. alison kay, they run this thing called the ernst and young …  i love ernst & young, i mean i’ve had things to do with them, i think they’re a reputable firm and but then for them to be absolutely blind to who this guy is i actually put him on the ernst & young entrepreneur of the year uh judging panel!!!! 

um uh wow and uh they say well this is this is the guy to follow 

uh wendy fox of ernst & young, um there’s some profiles here of some of the people that have have helped him out 

now we’re gonna have a look at some more documents and uh what can i say what can i say but i think before that i think we need to have a look at this video and i mean i’ve i’ve ONLY got a law degree and an MBA – all right i must be a complete idiot – because i have no idea what the hell this guy’s talking about??? 

let’s have a look at this this is the steve papermaster covid spiel and uh work out if you can work out what the hell he’s what the hell he’s promising that he’s got and um well let’s just have a look now uh i’ve got to show you this this email um this is an email that he’s written to uh one of the victims um in april 2020, now that’s right at the start of covid, 

uh dear blank, now i won’t say i have actually changed this i’ve pulled out the two section i pulled out the date and the time so uh i suspect he’s probably sent this to all of his victims but 

dear blank 

i look forward to talking to you soon i wanted to get you a summary of the core nano products which are scaling up in the market for treatment and prevention of covid 19. coronavirus treatment he’s got … 

this guy claims he’s got a treatment for covid 19. 

now uh pfizer it’s ….

this is a company called …. you’ve never heard of uh uh what’s yeah anyway a treatment for covid 19. 

oh my god i mean and this is sent by steve now if this is bullcrap just just go ahead and sue us 

okay because uh this is this is the sort of crap that he sends out um we are close uh now leonie hill here’s another email uh we are close now this is in january 20. we are closing an important license small acquisition oh we are closing we are closing and we’ll close and we’ll close the preferred equity round with leonie hill and other investors 

so did leonie hill invest a nickel?? no no no no didn’t arun kant got heaps of other people to invest money but didn’t invest a single cent themselves??? uh other investors i’m not sure we are closing an important licence so did they no no so um let’s well i think we should have a look at this investor document 

now this is an investor document that they sent out uh to some actual suckers that did invest uh and they say well they know here’s the ceo and it tells us it tells us about this acquisition and that uh henry i poor bastard i can’t pronounce you soon henry legere, my apologies to you henry if that’s not how you pronounce it um $300million dollar uh post-money valuation target, $55million institutional investors, and up to $25million uh to select reliant and nano family office/friends / family and friends … the family and friends round now it says here that leonie hill and mark cuban and others they’re all investing really, so did they invest no use of proceeds what we’re going to buy is the integration of reliant and uh henry legere is he’s our president he’s gonna be the president and did they

and you know i’m actually told that this absolutely went nowhere near like there wasn’t even talks there was nothing serious so uh they claim that they’re going to be the leader in global in-app health and wellness 

um so let’s without any further ado let’s go and have a um listen to steve’s own words about his covid cure, well steve papermaster let’s let’s hear from the horse’s mouth, so to speak and uh i’m going to give you a commentary as we’re going through and uh trying to decipher some of this crap that’s um that’s spewing out of his mouth? so let’s without any further ado let’s let’s have a let’s have a listen and see if we can figure out what the heck he’s talking about???

our vision for nano has been simple but powerful from day one nano is here to heal and shield the world our vision heal and shield the world and this is uh one year ago so this is uh he’s talking about covid – aim high steve. 

is to be able to have an immunity platform for the world that allows us to detect protect and predict pathogen-led outbreaks all the way up through pandemics 

so steve’s going to predict predict pandemics and pathogen outbreaks is i mean this thing cannot move without him his knowing right and he’s going to protect the world and heal it 

to develop the technologies from drug development vaccine level through preventative technology 

so he’s developing the technology through vaccine level now i’ve never heard of the nano vaccine for covid 19 but stay tuned 

you know through a digital data to be able to develop uh real-time effective cures and 

effective cures in real time 

in real time he’s going to he’s got the technology in real time to produce effective cures 

effective treatments 

people’s lives are at stake literally by the second by the nanosecond more than ever in the world today it’s a real tragedy um a human tragedy of enormous scale and societal impact with covid-19 and it won’t be the last one 

and so oh so he knows about the future ones as well okay so what’s coming next after covid 19. okay beautiful 

so we want to do our part to accelerate take the benefits of our innovations and technology from the vaccines into the surrounding 

so we’re going to take the benefits of their vaccines and apply it and make squillians okay 

we want to invest in this areas of technology and get it to billions of people 

oh and he’s going to spread it out to billions of people so forget about pfizer novavax uh astra zeneca – nano right 

all over the world as fast as we possibly can in the development of of our nano cures which 

he’s got his nano cures so some sort of microscopic cure that he’s got it all figured out includes the vaccines 

and therapeutics we are taking the specific vaccine candidates that were in development prior to the covid 19 outbreak and refining it for covid 19. 

so he’s got these cures that were from before covid 19 and he’s going to refine them and apply to covid 19. 

we have clinical trials uh they’re in process now clinical trials 

okay that’s why we haven’t heard um they’re in clinical trials 

and seeks and fast track regulatory approval fda and fda equivalent 

oh okay so it’s the government’s fault okay right because there’s seeking fast tracking globally 

get that delivered to people and in the market as quickly as we can in the late second quarter or early third quarter and that is very very fast especially for this type of 

now look at this cure it’s just racing across the globe 

vaccine which is an extremely stable very low cost vaccine 

an extremely stable vaccine low cost now in a minute he’s going to tell us that you don’t even you can just stick it in the fridge 

not require ultra high levels of cold chain storage like mrna vaccines need 

so this is better than all that crap you know all that pfizer stuff it’s much better you can keep it at what is normal refrigerated temperatures

this farker’s actually keeping a straight face, like i think he actually believes all this stuff 

in order to deliver that vaccine which is critical in many parts of the world that do not have the sophisticated levels of it 

ah okay so he’s talking about the developing world here where you know uh where there isn’t coal chain logistics well um he’s going to spread his cure around i don’t know billions of people wow we want to invest in this company 

infrastructure available the other big areas that we are developing are different delivery mechanisms so that you can take a vaccine that we’ve developed and use it as a spray on your skin 

oh you just spray it on i wonder if this is like those erectile things you just sniff it or something you know and you know um you’re cured from covid?

more patch on your skin or nasal spray or an oral vaccine and after that of course we’ve got we’ve got in development in parallel a universal pan corona virus vaccine that is intended to provide immunity for any future forms of chromovirus-based organisms 

a pan-corona vaccine that’s going to wipe out everything so anything that comes all the next variants and all of that he’s already got it sold for pathogens as well as potential mutations from 2019 oh okay so all the deltas the omnicrons and all of that he’s got it all figured out 

Nano cure is a technology that is specifically engineered to get 

so this is a soap company? 

give us very safe defective compounds that we can apply as a fierce uh antimicrobial antiviral that can attach to our skin and surfaces that will attract and destroy on contact dangerous pathogens 

so it’s going to attract the virus and then destroy on contact like some sort of scary laser this is star wars or something right sometimes refer to it you can see the bacteria coming wow 

it is sunblock or sunscreen for germs it means that somewhere between hours and 24 hours on your skin and on general surfaces that can be weeks months or even longer until 

longer than months so you just got to spray this on some surface and wow it’s just protection so this is the ultimate protection racket wow and lasts for even longer than months on your skin and on surfaces 

is disrupted we are all exposed all the time if we have any semblance of normal life the ability to cut the transmission the contagion in many cases by 90 plus percent

in many cases by 90 percent 

90 plus percent 

so you pay your money to steve and um snake oil bang this is like the magic snake oil 

that level of prevention is on par with the profound impact of having widespread nanosense vaccine technology piece of our platform 

oh here we go so this is his technology 

that we have architected to essentially be the operating system if you will of molecular level data what we’re breathing what we’re touching are those things that 

wow i love it we 

come and contact you on our exterior body or into our lungs and synthesize the data analyze the data through our sensors 

so he’s got some magic piece of plastic but you plug it in you pay you pay your license fee and it just tells what pathogens are in the air or whatever and does it send out an alarm to send out an sms who knows let’s keep let’s keep watching 

using our nano center technology we can actually see from a standpoint of analyzing is there the presence of or the likely presence of certain germs certain pathogens like covid19 or others that are or could be dangerous we’re still early on in the development 

oh so it’s not just limited to covid uh it’s the other more dangerous things wow and i mean the mind the mind just boggles 

development we will be rolling out in product forms rapidly over the next one to two years time is of the essence in just the next four to eight quarters we expect to be active really in every region of the world we’ll have 

wow every region of the world is going to be active with uh with this guy’s technology 

a manufacturing capability we’ll have regional delivery just in the course of the next 12 to 24 months we will have our presence 

oh okay so they’re going to send their packages out through south africa and on to indonesia and australia wow 

and they’re also going to get there so they’re going to send stuff through the democratic republic of congo then send it over to nairobi and then on to india or pakistan or somewhere and they’ll be sending something through libya, from somewhere over here so where’s that

who knows uh memphis i’d say uh send it through libya and then on to china? okay well that sounds pretty good and from memphis uh through to that looks like the south of france so they’ve got some hub in the south of france and then on to kazakhstan? that looks good let’s uh let’s keep going um but they’re sending it from mexico to um where is that you know is that chile?

in most major regions in the world directly with partners you can never have too many fantastic partners when you’re trying to partners we’re going to have a partnership 

so that’s perhaps uh how our guys got involved and lost money with this guy??

bring this kind of technology and this type of care to the world

so he’s bringing this type of technology and care to the entire world so um let’s let’s just contemplate that for a second

so that’s something to whet the appetite for …. for the rest of uh season 2 we’re going to have a look at this guy uh steve papermaster and nano and his white house exploits and and more so let’s have a look at that throughout the rest of the uh uh the season 

i will let you in on the secret though uh the the ending 

i’m going to spoil the surprise, uh nano is uh um the company that uh took i don’t know 20 30 50 million dollars from investors uh the cure for all this wonderful technology is just all bull crap and it’s it’s just all ended up in the toilet there was no merger there was no technology there’s no license there was no uh fundraising by mark cuban and arun kant and leonie hill capital – just all absolute bull crap so uh and who can forget ernst & young and the EY entrepreneur of the year?  

now i mean this is entrepreneur of the year stuff 

this is entrepreneur of the century stuff by mr papermaster 

yes um steve is still on the illustrious panel of uh judges for the EY entrepreneur of the year 

so um who was the genius at ernst & young that thought wow we’ve got to keep this guy on the judging panel? 

and if you google steve papermaster about the third thing that comes up is uh the EY entrepreneur of the year 

yeah steve just absolutely spins this to the max and so he’s on a great deal and who knows what sort of uh kickbacks or whatever, maybe that’s the wrong word? um engagements, who knows what sort of engagements that ernst & young get out of these nano companies? and you know, i dare say that funds from investors …  have plenty of funds have ended up in the in the coffers of ernst young?? and uh you know, maybe i’d love to know which new marble foyer is being built now with steve papermaster money? in which offices of ernst & young (are the marble foyers being installed???) – i’d love to know 

so what’s this space

so look, in closing we’ve got an exciting season 2 uh in front of us 

we’ve got a little bit happening in the real estate space uh we’ve even got leasing activity with uh our mate ralph paligaru so we’re going to be watching asquith spices and see as he rolls out uh that strategy right across sydney?

um we’ve got miscellaneous others 

we’re going to follow jetstar and see what other complaints come in 

uh we’ll be monitoring uh some in the in the legal sector 

uh we haven’t got any insurance racketeers just yet but uh we’re always open 

um we may well write uh some things about our bankers in the fictional uh in the fictional department so that we can be a little bit more explicit but tap into our creative touch and our creative that creative space and get the story out we won’t necessarily get sued by any of the people involved so that’d be very nice uh 

and we’ll see what uh develops with uh receivers and liquidators um now – we’ve got uh stuart jones from perth property group uh and his daughter jade and his wife geraldine so we’ll see what happens there, stuart’s got a wonderful uh trustee in bankruptcy and we’ll be following others no doubt into that space and of course when we say others well we’re talking about um steve papermaster our centerfold will be following 

uh the oh raymond gulliver sorry the real estate expert there’s lots and lots and lots to discuss there with raymond gulliver uh we may even find out who owns the bank account that um uh was swollen with $327000 dollars of loot uh and it wasn’t raymond and jennifer that’s we know that we know that they’re not the owners of that account but we don’t know who is so all apologies uh jennifer completely innocent we may even see raymond’s um statement of affairs uh since he’s in bankruptcy so that’s very interesting 

um but we’re coming back to uh steve papermaster now there’s lots of lots and lots of stuff there i’m going to talk about how ernst & young are wonderful enablers how the gordian group fred zeidman and others just look the other way when it comes to you know losing 30 million or 50 million they’re there for steve they’re there for steve and in his hour of need the covid cure you never know you never know you might even see something about the uh nano covid cure so that’s an exciting season 2 

uh coming our way uh we might even touch on greg walker and see where he’s up to um uh we didn’t really get to talk about macarthur group macarthur properties uh macarthur projects dare i say and um where’s 131mvr up to? 

so there’s so much to go through in the rest of season 2 and we’ve got many many surprises particularly in the fictional storytelling department we’ve got some characters well uh they may be uh they may resemble uh people that um you’ve heard about uh there may be facts and you know bits and pieces uh of the story that unravel throughout the rest of season 2 

so that’s something to whet the appetite for 

i hope you will if you’ve got any questions do give us a call 1-300-32723 

my name’s mark smith or jump online www.dcpartners.solutions/podcast and instant chat with us in any time of day or night uh whether that’s american time – hey we love tip-offs so if you know any of these people that are involved and you’ve got documents or any information that you’d like to share with us jump on the instant chat tools and uh you can send us documents uh send us bits and pieces there’s a tip off form um about steve papermaster just google steve papermaster uh enable enablers um and if you want to uh tell us about some of these enablers some of the things that ernst & young get up to on his behalf we’d be only too happy to know more and share that with our viewers so that’s it signing off mark smith www.dcpartners.solutions/podcast instant chat with us or call us until late most nights 1300 327 123. thanks very much bye

#whoisstevepapermaster

If you’ve got any questions then give us a call 1300 32713 or go to our bottom right hand corner instant message us or instant chat with us on www.dcpartners.solutions

Steve Papermaster – covid cure
s?

Caernarvon Canobolas Pty Ltd (in liquidation) – NSW Supreme Court Case 2018/340546

Biteroit - Caernarvon Cherry

 [2022] NSWSC 382

published 29 August 2022

Decision extracted and sourced from: https://www.caselaw.nsw.gov.au/decision/17ff234b71f1540bb837f52a#

Medium Neutral Citation:

In the matter of Caernarvon Canobolas Pty Ltd (In Liq) [2022] NSWSC 382

Hearing dates:20 – 23 July and 10 – 11 August 2021

Decision date:05 April 2022

Jurisdiction:Equity

Before:Ward CJ in EqDecision:

1.   The appeal be allowed.

2.   The liquidator’s determination to admit the proof of debt dated 15 November 2019 submitted by the second and third respondent be set aside and the proof of debt be rejected.

3.   The second and third respondents pay the costs of:

(a)   the applicant and the first respondent of and incidental to the amended interlocutory process in this proceeding; and

(b)   the applicant and the first respondent (including liquidation costs, expenses and liquidators’ remuneration) of and incidental to the submission, consideration and determination by the liquidators of the proof of debt dated 15 November 2019 submitted by the second and third respondents.Catchwords:

CORPORATIONS – Winding up – Proceedings against company – Where debt disputed – whether parties reached agreement that costs of renovations would be recorded as a loan against the company

EVIDENCE – Documentary evidence – Business records – whether records were contemporaneous or issued retrospectively

ESTOPPEL – Promissory estoppel – Existing or expected legal relationship – whether the Company accepted or acquiesced to a benefit to the detriment of the second and third respondents

EQUITY – Equitable remedies – RestitutionLegislation Cited:

Corporations Act 2001 (Cth), ss 286, 477(2B), Schedule 2

Evidence Act 1995 (NSW), ss 48, 57(1), 58(1), 69

Supreme Court (Corporations) Rules 1999 (NSW), r 14.1(5)

Trustee Act 1925 (NSW), s 81Cases Cited:

Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507; [2005] HCA 23

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355

Brick & Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1992) 6 ACSR 464; [1992] 2 VR 279

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2020] NSWSC 1778

Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230

Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26

Capocchiano v Young [2013] NSWSC 879

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48

DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105

Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15

El-Saafin v Franek (No 3) (2019) 143 ACSR 452; [2019] VSC 155

Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Federal Commissioner of Taxation v Cassaniti (2018) 266 FCR 385; [2018] FCAFC 212

Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215; [1997] HCA 17

Gregg v The Queen (2020) 355 FLR 348; [2020] NSWCCA 245

Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58

Herdegen v Commissioner of Taxation (Cth) (1988) 84 ALR 271; [1988] FCA 699

Hill v Esplanade Wollongong Pty Limited (subject to a deed of company arrangement) [2018] NSWSC 478

Hutchinson v Sydney (1854) 10 Ex 438

In re Bailey, Hay & Co Ltd [1971] 1 WLR 1357

In re Express Engineering Works Ltd [1920] 1 Ch 466

In re Oxted Motor Co Ltd [1921] 3 KB 32

In the matter of Azmac Pty Ltd (In Liq) (2020) 146 ACSR 113; [2020] NSWSC 204

In the matter of Hillsea Pty Limited [2019] NSWSC 1152

Johnston v McGrath (2008) 67 ACSR 169; [2008] NSWSC 639

Jorden v Money (1854) 5 HL 185

Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11

Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27

MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24

Parker & Cooper Ltd v Reading [1926] Ch 975

Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5

Re ACN 096 281 542 Ltd (in liq) [2018] VSC 425

Re Duomatic Ltd [1969] 2 Ch 365

Re St Gregory’s Armenian School Inc (2015) 109 ACSR 27; [2015] NSWSC 1465

Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 984

Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq) (2004) 50 ACSR 565; [2004] NSWSC 818

Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497

Spencer v The Commonwealth (1907) 5 CLR 418; (1907) 14 ALR 253

Sutherland (in his capacity as liquidator of Sydney Appliances Pty Ltd (in liq)) v Robert Bosch (Australia) Pty Ltd (2000) 33 ACSR 680; [2000] NSWSC 32

Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332; [1990] HCA 8

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

Watson v Foxman (1995) 49 NSWLR 315

Westpac Banking Corp v Totterdell (1998) 20 WAR 150; (1998) 29 ACSR 448

Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363Texts Cited:

P L Davies, Gower and Davies’ Principles of Modern Company Law (7th ed, Sweet & Maxwell, 2003)Category:Principal judgmentParties:Timothy Hall (Plaintiff)
Bonny Glen Fruits Pty Ltd (First Defendant)
Bernard Hall (Second Defendant)
Bonny Glen Trading Pty Ltd (Third Defendant)
Caernarvon Canobolas Pty Ltd (Fourth Defendant)
Melrose Park Nashdale Pty Ltd (Fifth Defendant)
Frederick Charles Hall (Sixth Defendant)
Pamela Therese Hall (Seventh Defendant)Representation:Counsel:
D Smallbone with A Smyth (Applicant)
A Spencer (2nd and 3rd Respondents)

Solicitors:
MC Lawyers & Advisers (Applicant)
Matthews Folbigg Pty Ltd (2nd and 3rd Respondents)
File Number(s):2018/340546

Publication restriction:Nil


JUDGMENT

  1. HER HONOUR: By amended interlocutory process filed on 5 November 2020, the applicant (Timothy Hall) appeals from the decision of the liquidators of the first respondent (Caernarvon Canobolas Pty Ltd ACN 089 276 808 (In Liquidation), to which I will refer as the Company) to admit a proof of debt dated 15 November 2019 that was lodged by the second and third respondents (Bernard and Fiona Hall) on 26 November 2019. In that proof of debt, Bernard and Fiona claim the sum of $800,000 as due under an oral loan agreement alleged with the Company. Timothy seeks to set aside the determination of the liquidators (who have been joined together as the fourth respondent in the proceeding). The moneys claimed in the proof of debt relate to expenditure made by Bernard and Fiona on the Homestead occupied by them (rent free) on land then owned by the Company in Canobolas, New South Wales (the Canobolas Property). Fiona and a company associated with Bernard and Fiona have since acquired the Canobolas Property.
  2. The appeal is a hearing de novo, brought pursuant to s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth) (Corporations Act), the Insolvency Practice Schedule (Corporations), (see Hill v Esplanade Wollongong Pty Limited (subject to a deed of company arrangement) [2018] NSWSC 478 at [21] per Gleeson JA). There is no dispute between the parties as to the principles that apply to such an appeal (see Re ACN 096 281 542 Ltd (in liq[2018] VSC 425 at [6] per Randall AsJ; El-Saafin v Franek (No 3) (2019) 143 ACSR 452; [2019] VSC 155 at [63] per Lyons J; In the matter of Azmac Pty Ltd (In Liq(2020) 146 ACSR 11; [2020] NSWSC 204 at [41] per Rees J); although there was some dispute in submissions as to the question of onus.
  3. Bernard and Fiona point to authorities to the effect that the party appealing against the liquidator’s decision (here, Timothy) bears the onus of showing that the decision was wrong; and that, if the onus is not discharged, the liquidator’s decision stands (see Westpac Banking Corp v Totterdell (1998) 20 WAR 150; (1998) 29 ACSR 448 at 451; Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [32]-[33] per Young CJ in Eq; Capocchiano v Young [2013] NSWSC 879 at [46] per Kunc J; Re St Gregorys Armenian School Inc (2015) 109 ACSR 27; [2015] NSWSC 1465 (Re St Gregorys Armenian School)). Timothy, on the other hand, says that the liquidators did not turn their minds to the question of contract, and did not accept that there was a restitutionary claim (T 367.24-48). Moreover, Timothy says that there is a lack of contemporaneous record or other satisfactory corroboration of the existence of a contract, which he argues places the case “squarely in Watson v Foxman territory” (referring to the oft-cited decision of Watson v Foxman (1995) 49 NSWLR 315). Timothy submits that the effect of this is that Bernard and Fiona bear the onus of establishing the proposition for which they contend in their points of claim (T 25.43).
  4. The relevant issue to be determined on an appeal such as this is as to whether the liability claimed or referred to in the proof of debt is a true liability of the company enforceable against it (see Tanning Research Laboratories Inc v OBrien (1990) 169 CLR 332; [1990] HCA 8 at 339-340 per Brennan and Dawson JJ). On such an appeal, the party claiming to be a creditor of the company (here, Bernard and Fiona) is not strictly confined to the allegation(s) by which it originally sought to advance the proof of debt; it being said that “[a]s long as the claim remains the original claim, some change in the explanation of the way in which it is said to be a true liability of the company enforceable against it is permitted” (Johnston v McGrath (2008) 67 ACSR 169; [2008] NSWSC 639 at [26] per Barrett J; and see Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq(2004) 50 ACSR 565; [2004] NSWSC 818; Re St Gregorys Armenian School).

Background and chronology of events

The family business

  1. For convenience, I will generally refer to the Hall family members by their first names. The applicant (Timothy) and the second respondent (Bernard) are brothers. Their parents (Fred and Pamela) established a fruit growing business near Orange (operating through a number of companies and from a number of properties located in two adjoining districts, Canobolas and Nashdale, on either side of the Towac Valley). The first such property was known as the Bonny Glen Property. The fruits that were grown, packed and sold were principally apples and cherries (see [5] of Timothy’s first affidavit sworn 16 April 2021).
  2. Timothy started working in the family orchardist business full time in 1978. Bernard, who is around eleven years younger, commenced work in the family business either in 1989 (on Timothy’s version of events – see Timothy’s 16 April 2021 affidavit at [6]) or a few years earlier when aged 16 (on Bernard’s version of events). Nothing turns on the difference in the respective versions of events in this regard.
  3. In about 2004, Bernard and his wife, Fiona, incorporated their own company (Caernarvon Cherry Pty Ltd) through which they traded separately from the family business. (It appears that the operation of this business was a cause of some disagreement between the brothers – see, for example, Timothy’s first affidavit at [30]).
  4. Prior to 2007, the main trading company for the family business was Bonny Glen Pty Ltd; after 2007 (when Fred and Pamela retired from the business) a different company, Bonny Glen Fruits Pty Ltd, was the main trading company (see Timothy’s first affidavit at [12]). The Company owned the land and improvements at the Canobolas Property but did not trade.
  5. From 2007 (until 27 November 2018), the family business (known as Bonny Glen Fruits) was largely operated by Timothy and Bernard, who also controlled the various companies associated with the business, although their parents are said to have maintained some ongoing (informal) involvement in the business. From 2011, Timothy and Bernard each owned 50% of the shares in the Company.

The Nashdale (or Melrose) Property

  1. In 1992, the Nashdale Property (referred to in some of the evidence as Melrose) was acquired jointly by Fred, Pamela, Bernard and Timothy. This property was adjacent to a property known as Brooklyn (that property itself being adjacent to the originally acquired Bonny Glen Property).
  2. In around 1997, the Nashdale Property was subdivided to create a parcel of six acres which was transferred (at no cost) to Timothy and his then wife, Jennifer, who then built a house on the land. (It is noted by Bernard and Fiona that Bernard received nothing for his interest in that portion of land.) The parcel of land transferred to Timothy and Jennifer (known as Melrose Park) was subsequently sold by Timothy and Jennifer in 2001, following the breakdown of their marriage. Following his separation from Jennifer (apart from a short time at the Bonny Glen Property), Timothy resided (and from 2004 did so with his wife, Robyn) in Melrose Cottage, which was located on the main Nashdale Property, until about 2019.
  3. In around 2007, Timothy and Bernard bought Brooklyn from their parents and in 2013 they jointly acquired another property in Nashdale (see Bernard’s first affidavit sworn 19 April 2021 at [44]-[45]).
  4. Timothy has, as I understand it, largely controlled or managed the Nashdale side of the family business operations; Bernard and Fiona, the Canobolas side of the operations.

Canobolas Property

  1. The Canobolas Property was acquired by the Company in September 1999 for $630,000. The Company was formed for the purpose of making that acquisition. On its incorporation, each of Fred, Pamela, Bernard and Timothy was a director of the Company and each held one of the four issued shares. In 2010, Fred and Pamela retired as directors and in 2011 Bernard and Timothy each acquired one of their parents’ shares. Accordingly, by the time of the events in question, each of Bernard and Timothy was a 50% shareholder of the Company. As adverted to above, at all relevant times the operations of the family business that were conducted on the Canobolas Property were managed by Bernard and Fiona.
  2. From late 1999, Bernard and Fiona have resided in a house known as “the Homestead” located on the larger of the two lots (Lots 10 and 11) comprising the Canobolas Property. On the other (smaller) of the two lots is a packing shed housing the relevant equipment and other infrastructure for the processing and packing of the fruit grown in the family business (and also, as I understand it, in Bernard and Fiona’s separate cherry growing business); as well as an office.

Corporate compliance

  1. For the most part, compliance with the corporate and regulatory requirements of the companies through which the family business was conducted was carried out with the assistance of an accountant (Mr Desmond Lee), who travelled to Orange from Sydney once a year with relevant company documents to be executed following the holding of formal meetings with the directors and shareholders (such meetings being held, first, at Fred and Pamela’s house (on the Bonny Glen Property) and then at the Canobolas Property).
  2. Bernard and Fiona describe these company documents as “vanilla” corporate governance documents (T 8.4). They point out that the minutes of company meetings were prepared in advance by Mr Lee, who brought them with him to the annual meetings; and they contend that therefore that the minutes could not (unless, I would add, later amended) reflect any matters discussed at the relevant meetings. They also point out (correctly) that the company documents are replete with errors – from time to time identifying the directors wrongly; being signed by people who were not directors; and recording persons who owned no shares as attending in the capacity of shareholders (see T 8). Thus, it is said that the brothers cannot carefully have reviewed them. It is submitted (and there is some force in this submission) that the holding of meetings and recording of minutes for the various companies associated with the business were matters treated by family members as a formality.
  3. Bernard and Fiona describe Mr Lee as more than just an accountant. They say that he was a trusted adviser, who advised the family members as to the structures to be put in place for or in relation to the business and as to their personal and corporate tax affairs. That may well be the case but, as I explain in due course, that does not to my mind cloak Mr Lee with authority to bind any of the family members or the Company in their dealings with each other.
  4. Timothy (see from [35] of his 16 April 2021 affidavit) describes the typical yearly meetings with Mr Lee, including that there would be separate meetings with the shareholders and directors of the relevant companies from those in relation to personal tax matters or meetings relating to “Caernarvon Cherry related matters”. Mr Lee’s evidence as to those matters is consistent with that of Timothy on this issue.

Deterioration in the relationship between the brothers

  1. At some point there was evidently a deterioration in the relationship between the two brothers (although there is some contention as to when this commenced). Timothy places this as occurring from about the late 2000s, from which time he says that he and Bernard were estranged and only saw each other a few times a year (see at [33] of his affidavit dated 16 April 2021). As adverted to above, it appears that this (if not wholly attributable to, then at least) may have been exacerbated by the establishment by Bernard and Fiona in about 2004 of their own separate cherry growing business from the Canobolas Property. Fiona herself says that the relationship between Timothy and Bernard became “toxic” but places this as occurring in 2016 after a heated argument between the brothers in that year (see Fiona’s first affidavit sworn 19 April 2021 at [30]; and see notes dated 8 February 2017, apparently made by Timothy having regard to their content, in which there is reference to an issue as to the poor delivery of the spray programme). Consistent with this note, Bernard places the deterioration in the relationship as occurring by 2017.

Desire of Bernard and Fiona to renovate the Homestead

  1. The Homestead was originally built in about 1910. By 2012, Bernard and Fiona, who then had three young children, wished to renovate the house (which they say was in need of significant repair). As noted, by that time Bernard and Timothy were the only directors and shareholders of the Company, which owned the Canobolas Property.

14 September 2012 meeting

  1. Featuring prominently in the evidence and submissions were two meetings, the first of which is said to have taken place on 14 September 2012 at Fred and Pamela’s house during a lunch (or perhaps morning tea) attended by Timothy, Bernard and Fiona, Fred and Pamela (see Bernard’s first affidavit at [144]; Fiona’s first affidavit at [79]). It is not suggested that Mr Lee was in attendance at that meeting. Indeed, Mr Lee’s evidence is that he was not present in Orange on 14 September 2012 (being in attendance at an all day meeting with another client in Sydney) and he did not know if there had been a meeting on that day (see at [32] of Mr Lee’s first affidavit sworn 19 April 2021).
  2. Bernard has deposed (at [144]) that, at this lunch, there was a discussion about the family business, during which there was the following conversation:

[Bernard] said:   Fiona and I want to renovate the Homestead to fix some issues and make the house bigger for our kids. We have the money, and can use our own, but we are worried about what will happen if the Company ever sells or transfers the house. We want to make sure that we can get that money back if the Homestead is ever sold or transferred.

Tim said:   Before you think about renovating, why don’t you look at subdividing the lot like I did at Melrose. If that doesn’t work then you can do the renovations.

[Bernard] said:   Okay, Fiona and I will look into that and let you know how it goes.

  1. Bernard has deposed that, following that conversation, Fiona and he attended a consultation with Mr Peter Basha, the town planner, about a possible subdivision; and that Mr Basha subsequently advised them that the Council would not permit the subdivision because the packing shed (on the smaller of the two lots) was on an industrial lot and that they could not combine that back with the main lot (see Bernard’s affidavit at [146]-[147]).
  2. Fiona’s account of this discussion (see from [79] of her first affidavit) is that the conversation occurred at a morning tea with Bernard, Timothy, Robyn, Fred and Pamela at the Bonny Glen Property. Fiona deposes that she took notes of the discussion because Mr Lee had earlier said to Timothy and Bernard that they needed to begin having meetings and recording the discussions; and that, as Mr Lee did not attend this meeting she took a record for Mr Lee (see at [81]). Fiona also deposes that at the beginning of the discussion she asked everyone’s permission to take notes and that Pamela approved this (see at [84]).
  3. Fiona has deposed that Bernard raised that they wanted to undertake renovations of the Homestead in words to the following effect:

Bernard said:   We need to do some work to the Homestead because the old electricity is dangerous and we now have 2 young children and a Toddler. We want to renovate but it’s going to cost a lot because it’s an old house and like opening a can of worms, so our money needs to be recognised. We need bathrooms, a new laundry, electricity, new bedrooms, proper heating and such.

Tim said:   Why don’t you go and look at other ways first like look at buying Armstrong’s [next door neighbour’s at Melrose] place or buying another house somewhere.

Pam said:   Or why don’t you see if you can move the title and get 6 acres like Tim did? You’ve got these little kids and need something sorted as we just had a cold winter and the place is freezing. Something needs to be sorted.

Bernard said:   Okay, we’ll look at other options.

  1. Fiona also deposes to a consultation with Mr Basha about the proposed subdivision and to Bernard’s account of the Council’s position shortly after that consultation (see [88]-[90] of Fiona’s first affidavit), which is consistent with Bernard’s recollection.
  2. Bernard and Fiona refer to the above evidence and say that they told those present at the meeting that they were prepared to use their own funds to pay for the renovations at the Homestead but wanted to be able to recover those funds if the Company or the property was ever sold. They also say that Timothy said that, if the Canobolas Property could be subdivided and a small block transferred to Bernard and Fiona, he would consent to the subdivision and Bernard and Fiona could build a new home on the subdivided block. (The above summary by Bernard and Fiona of the conversation does not wholly accord with their affidavit evidence; in which they attribute to Timothy suggestions about other options such as buying another property or subdivision but not consent in terms to the subdivision option.)
  3. Fiona’s handwritten notes of the meeting of 14 September 2012 (which she says, but Timothy and Mr Lee seem to dispute, she took at the meeting) record the presence of Timothy and Robyn, Bernard and Fiona and Pamela and Fred; that the meeting went from 9am to 10.30am; and, among other things, that:

–   House @ Caernarvon

B&F expressed wanting to renovate house but for $ sunk into place to be recognised.

Tim suggest to look @ other options.

  1. At the conclusion of the notes there appears an entry in a different coloured pen. This page of the notebook was followed by a printed document headed “A snapshot as of 13th September 2012”, which appears to correspond to the entry in the handwritten notes “Fiona gave snapshot of season to date (enclosed)”. This suggests that at least part of the notes (such as the pasting of the printed note into the book) was compiled after the meeting. Immediately following the second page of the pasted typed sheet are handwritten notes headed “Monday 1st October 2012” starting in a blue pen and then changing to a black pen. There was a suggestion that one of the entries “follow Des up 400k” was in Bernard’s handwriting (T 110.40). The following page (whimsically headed Maggie’s minutes) was obviously a child’s scribblings.
  2. Timothy (see at [56] of his first affidavit) deposes that he does not recall the entirety of the conversations concerning improvements to the Homestead and cannot be sure when each conversation took place, or in which years, or the order of the conversations or exact words used. Timothy did recall one of those conversations (at [59] of his first affidavit) (which he says was in the dining room at his parents’ house during an annual visit of Mr Lee) in which he says that Bernard said that the house was very cold in winter and they needed to update the heating (which he says he queried but then, after Bernard said they needed heating, to which he said “OK”); and that during one of the annual meetings Bernard said words to the effect that the house needed to have new heaters put in and that they wanted to do a new bathroom (see at [63]).
  3. Bernard and Fiona submit (at [33] of their written submissions) that the parties’ accounts of what happened at this meeting (and the subsequent 16 May 2013 meeting) should be read in light of the fact that what occurred at the meeting was specifically pleaded in their Points of Claim and put in issue by Timothy’s Points of Defence. Essentially, Bernard and Fiona submit that Timothy’s denial that the two meetings occurred as they described is not supported by his own evidence of what occurred at those meetings. This submission appears to be directed towards the argument that Timothy has failed to discharge the onus of proof to support a finding that the liquidator’s decision was wrong.
  4. To this end, Bernard and Fiona emphasise that, in his first affidavit, Timothy gave no specific evidence about the meeting of 14 September 2012 and conceded that he did not “recall the entirety of conversations that took place concerning improvements to the house at [the Canobolas Property]”. (As noted, there is no suggestion that Mr Lee was at the meeting of 14 September 2012.)
  5. In his second affidavit sworn 17 May 2021, Timothy responded to various aspects of the affidavit evidence of Bernard and Fiona with which he disagreed. It is noted that Timothy did not traverse [144] of Bernard’s first affidavit (set out above) but that he did reject those parts of the conversation recorded in Fiona’s account (see above) that referred to “electricity, Melrose or Armstrong’s property” and instead deposed to having suggested a different property. Bernard and Fiona emphasise that Timothy did not specifically contradict that part of the conversation in which Bernard expressed the aim that their expenditure of funds be recognised. (Pausing here, what is not here made clear is precisely how it was contemplated by Bernard that their funds would be recognised; nor is it suggested that Timothy agreed to any such arrangement at this meeting. I also interpose to note that Bernard and Fiona do not suggest that any agreement was reached at this meeting; rather, they rely on this as context or background.)

Prospect of Subdivision

  1. As noted above, Bernard and Fiona depose that, following the 14 September 2012 meeting, they explored the prospect of a subdivision of the Canobolas Property (by speaking with Mr Basha, the town planner) and that they were advised that it would not be possible. They say that Timothy was aware of that (a reference seemingly to the account given by Bernard of the conversation on 16 May 2013 – see below).

16 May 2013 meeting

  1. The second of the two meetings on which Bernard and Fiona here place emphasis (and at which they say a binding agreement was reached) was a meeting that took place on or about 16 May 2013 during one of Mr Lee’s annual visits to Orange.
  2. Mr Lee deposes that the meeting took place at Fred and Pamela’s residence; and he describes in his affidavit a series of meetings on this day (see from [35]).
  3. First, a meeting of the Bonny Glen Fruits Pty Limited Group (attended by Timothy, Bernard and Fiona) to review the financial accounts and taxation for the financial year 2012 and interim accounts for 2013 and for the signing of the 2012 accounts and financial returns, at which meeting he deposes that Fiona said words to the effect that they currently needed better heating at that Homestead and Timothy said he had no problem with them improving the heating. Mr Lee did not recall anyone taking notes on that occasion.
  4. Second, a meeting with Timothy alone in which Mr Lee presented to him the company’s financial statements and taxation returns and personal returns for the financial year ending 30 June 2012, following which meeting he says Timothy immediately left the house, saying that he was taking the documents home to Robyn so that they could sign them (and Timothy returning later in the afternoon with signed documents).
  5. Third, while Timothy was out of the house, a meeting only with Bernard and Fiona to review their entities’ financial statements taxation and personal returns for 30 June 2012.
  6. Fourth, a meeting with Pamela and Fred for them to review and sign their own company’s financial accounts and their personal tax returns.
  7. Mr Lee did not see any minutes book or hard-bound blue book (Exhibit 12) on that day (see at [44] of his affidavit of 19 April 2021). He deposes that he did not add any further resolutions to the formal draft minutes that he had prepared in advance for the Company meeting and that he was not asked to prepare any such notes or minutes. Mr Lee did, however, earlier depose that at some meetings he saw Fiona take notes (see at [20]).
  8. Relevantly, at [64] of his affidavit of 19 April 2021, Mr Lee deposed that at none of the yearly meetings had he heard that Fiona or Bernard wanted to claim reimbursement from the Company for the costs of the renovations for the Homestead. (That is consistent with their account being that they wanted some unspecified recognition in the future of their expenditure.)
  9. Bernard’s evidence of the meeting was that it was at a lunch at the Caernarvon Cottage with Fiona, his parents, Mr Lee and Timothy. Bernard deposes that the conversation was to the following effect:

[Bernard] said:   We spoke to a town planner and they won’t let us subdivide the lot. We still want to update the Homestead and extend it, so we want to go ahead with the renovations. How do we go about that?

They said:      Where will you get the money from?

[Bernard] said:   We can pay for the renovations ourselves or through Caernarvon Cherry, but we want all the money we put into the Homestead to be recognised if the place is ever sold or transferred to someone else.

Des said:   You should also get a valuation before you do the renovations, and then another valuation after so you can see how much the Homestead is improved. It could be important if you need to pay some tax on it in the future.

[Bernard] said:   Okay, we can do that. But more importantly we want to get our money back that we put in, so we want the money we spend on the renovations to be accounted for by the Company somehow.

Des said:   Okay. Keep your receipts so that we can see how much you spend on the renovations and we can put that in the records of the Company as a debt owed to you and Fiona. Then the Company can easily pay you back if the Homestead ever sells. We can also make sure that you get paid interest, for example at an interest rate equivalent to the change in the Consumer Price Index until you are repaid.

[Bernard] said:   That sounds like it does everything we want, let’s do that.

Des said:      Does everyone agree to doing it that way?

Tim said:      Yeah, I’m okay with that.

  1. Bernard has deposed that he saw Fiona writing in the minute book during that meeting and identifies in his affidavit the notes of that meeting.
  2. Fiona’s evidence is that this meeting was at “another lunch” with Bernard, Timothy, Fred and Pamela, at Pamela and Fred’s house at Bonny Glen, for the purpose of going over the accounts and financials with Mr Lee who had travelled from Sydney. Fiona says that the meeting was while sitting around the kitchen table and that there was a discussion in words to the following effect:

Bernard said:   We’ve been told we can’t do a subdivision so we’re back to the drawing board and want to renovate 474 Canobolas.

Armstrong’s place want too much money and we want to stay on the property and don’t want to be living at Melrose and working at Caernarvon. Either way, it isn’t an option to build another house on Caernarvon because we’d have the same issues with wanting the money to be recognised because it would be Company land. So, we think we may as well renovate the Homestead.

Tim said:   Okay.

Bernard said:   We aren’t asking for money, just asking if we can spend own money on the place because we would be doing large scale renovations. How can we have our money recognised?

Des said:    Keep all your receipts so that we can see how much you spend on the renovations and I’ll put that on the books of the Company. Each year we can add the CPI to the amount you’ve spent and it’ll be on the books as a loan. But if you do overcapitalise [sic]

Bernard said: Okay let’s do that. That’s fine, we will be responsible if we overcapitalise.

  1. Fiona goes on to depose that she is unable to recall whether the subject of valuation was raised at the 16 May 2013 meeting or whether it was raised in a later discussion but that, at some point after the 16 May 2013 meeting, she was present at a conversation between Timothy and Bernard in words to the following effect:

Des said:   Get a valuation before you do the renovations, and then another valuation after that so that you don’t overcapitalise.

We said:   Okay, if we do then that’s our money and we will be responsible for that.

  1. Fiona says that Timothy agreed with that proposition (at [94] of her first affidavit sworn 19 April 2021).
  2. Bernard and Fiona say that an agreement was reached at this meeting that they (Bernard and Fiona) would fund the renovations to the Homestead and that, if the property was ever sold, the Company would repay those amounts together with interest at a rate equivalent to the CPI. They say that it was also agreed that the amounts so expended would be recorded in the accounts of the Company as a debt owed to Bernard and Fiona. (Both Timothy and Mr Lee dispute this. For Timothy, it is said that this amounts in effect to arguing that the Company would give Bernard and Fiona a “blank cheque” to spend whatever they liked on the property and that this is implausible – see T 360.31. It would certainly be inconsistent with the attitude that Timothy appears to have displayed throughout the proceeding to the issue of expenditure by his brother.)
  3. As adverted to above, there were in evidence some handwritten notes made by Fiona (contained in the blue book – Exhibit 12) headed “Meeting Thurs 16th May 2013”, recording as present Timothy, Bernard, Fred, Pamela and Fiona but also referring to a presentation by Mr Lee. The notes (on which there is some scribble in a different colour pen) include that:

Bernard spoke of Renovations required at Caernarvon house. Des advised to keep records of amounts spent so that amounts will be recorded & owed to B & F & increased in CPI’s.

  1. Bernard and Fiona emphasise that both their affidavit evidence and the notes record a conversation in which there was a discussion about the renovations, the money to be spent, and the amounts being recorded and owed to Bernard and Fiona. Bernard and Fiona note that, in response to that affidavit evidence, Timothy did not traverse the relevant paragraphs of Bernard’s affidavit (at [149]-[151] of his second affidavit sworn 17 May 2021) and, while specifically dealing with two other aspects of what was said, did not contradict Fiona’s account of what was said in relation to the recognition of their expenditure. Similarly, it is said that, while Timothy dealt specifically with inaccuracies in Fiona’s notes, he did not suggest they were inaccurate insofar as they recorded conversations at this or the earlier meeting.
  2. It is noted by Bernard and Fiona that, in his first affidavit, Mr Lee gave a lengthy account of what took place when he visited Orange on 16 May 2013 and the order in which he conducted the meetings on that day (as summarised above) but deposed to only one conversation that occurred on that day; whereas he gave a detailed account of a conversation on 26 March 2014 concerning proposed renovations to the house at Canobolas and the way in which Bernard and Fiona might be reimbursed for moneys expended (see below) (at [51] of Mr Lee’s first affidavit sworn 19 April 2021).
  3. In Mr Lee’s second affidavit sworn 17 May 2021, his response to [150] of Bernard’s affidavit is that he did not say the words attributed to him by Bernard nor did he hear Timothy say that “Yeah, I’m okay with that” (and Mr Lee affirms that his memory of that conversation is as set out at [51]-[53] of his 19 April 2021 affidavit). As to [92] of Fiona’s first affidavit, Mr Lee deposes that he does not recall this conversation occurring during the lunch at Fred and Pamela’s house on 16 May 2013 “or at any other occasion. Bernard and Fiona say that there is an obvious similarity between that conversation and the one recounted at [51] of Mr Lee’s first affidavit – both accounts refer to Mr Lee’s suggestion that the renovation costs be recorded as a loan in the company records and that CPI adjustments be made; however, it is noted that only Mr Lee deposes that he said items were to be approved by Timothy and Bernard.
  4. Further, Mr Lee cavils with the statement by Fiona at [93] of her first affidavit that an agreement had been reached. Mr Lee asserts that he did not hear words of agreement or that there was an agreement; rather, he deposes that there were options discussed (but his recollection is that this was at the 2014 meeting rather than at the 2013 meeting).
  5. In oral submissions, it is said for Bernard and Fiona that, at the 16 May 2013 meeting, the Company (by representations and statements by Timothy and Mr Lee) “bound itself to treat amounts which Bernard and Fiona were to spend on renovations for the Company’s house as loans in the books of the company to carry interest” (see T 6). Insofar as Bernard and Fiona rely on statements by Mr Lee, there is nothing on the evidence to support a conclusion that Mr Lee had any authority to bind the Company; at most, his statements would be relevant to the extent (which is debatable) that it could be said that Timothy (by silence or otherwise) had adopted them.

Credit issues specific to the two meetings

  1. As to the two relevant meetings (the 14 September 2012 meeting and the 16 May 2013 meeting), on the question of credit Bernard and Fiona point to the following matters.
  2. First, that in their affidavit evidence both Mr Lee and Timothy sought to convey the impression that the yearly meetings were conducted with a formality that elevated the significance of the absence of entries in the minutes and financial records recording what took place at the meeting of May 2013; yet Mr Lee conceded that there was no separate meeting of the shareholders of the Company and that neither Timothy nor Bernard had ever raised for attention the fact that some of the documents which they had executed indicated the wrong directors and the wrong shareholders nor had they ever asked him to add further resolutions to the Company’s draft minutes.
  3. Second, that Timothy was quite frank about his lack of specific recollection in relation to the meetings; nevertheless, it is said that he sought to minimise the length of the meetings and that he denied some very obvious propositions about them (including that the bulk of the time spent in the meetings concerned the operations of Bonny Glen Fruits and that Fiona attended that meeting). It is noted that Timothy insisted that he reviewed the minutes that he signed to ensure the details were correct, when it is said that they were replete with errors that would have been obvious on any such review (see, for example, minutes of the meeting of directors of the Company on 10 December 2012, which record the four family member as directors when Pamela and Fred had ceased by then to be directors; and of the shareholders meeting of 31 December 2012 which display a similar problem).
  4. Third, that Mr Lee gave generalised evidence about how the meetings were conducted (which Bernard and Fiona say no doubt reflected the many similar meetings that he had conducted with the family). It is submitted that it should be inferred that the meeting of 16 May 2013 followed the pattern which Mr Lee described in general terms in cross examination. However, Bernard and Fiona say that when it came to specific matters Mr Lee’s recollection was less impressive, noting that Mr Lee recalled only one short conversation about renovations at the meeting of 16 May 2013 with the aid of his affidavit. It is submitted that that recollection is to be considered in the light of Mr Lee’s complete lack of recollection when cross examined in relation to the conversations regarding the renovations that he had detailed at [51] of his first affidavit and the recollections set out at [6], [7], [8] and [12] of his second affidavit sworn 17 May 2021. Indeed, it is noted that Mr Lee could not remember what he had said of those matters in his affidavit sworn only three months before the hearing.
  5. Fourth, that in cross examination Bernard confirmed the existence of a verbal agreement whereby the company would repay the amounts expended for renovations or improvements on the property; readily made concessions; and confirmed that his wife took notes. Bernard and Fiona say that the accounts of the two meetings given by Bernard and Fiona are supported by contemporaneous notes made by Fiona. Insofar as it was put to Fiona that the relevant note was made after the event in an attempt to reconstruct, it is noted that Fiona rejected that suggestion. Bernard and Fiona say that the facts do not support that serious contention, referring to the objective evidence which showed that Fiona attempted over a number of years to ensure that notes were taken at meetings when the business of Bonny Glen Fruits was discussed (pointing to her blue book which contains notes of meetings on 14 September 2012; 1 October 2012; 16 May 2013; 26 March 2014; and 1 December 2015) and that there is contemporaneous evidence that Fiona asked Ms Leanne Pearce (who worked for Bonny Glen Fruits) to assist in keeping the minutes of the meetings (pointing to the copies of Leanne Pearce’s notes of meetings on 22 October 2015 and 5 June 2016).
  6. Pausing here, I do not accept that a conclusion that the notes were not all made during the actual meeting would necessarily connote some dishonest reconstruction of events. It is more plausible to my mind that the notes are an amalgam of jottings made at around the time of the meeting (potentially, some made before, some during and some after the meeting) rather than being wholly a verbatim note or summary of what was said that was taken during the meeting itself.
  7. Finally, in this context it is said (and I would accept) that the “patchwork” nature of these records speaks to their authenticity. It is said that the probabilities are that, if Fiona had intended to concoct a record reflecting consistent contemporaneous note taking and relevant notes, she would have collected all that material in the one place and using the one style (and most likely would have also protected this most valuable record from her young daughter’s scribblings).
  8. Therefore, I accept that the notes are genuine though not necessarily completely contemporaneous, and, moreover, they may record Fiona’s understanding as opposed to what was in fact said.

Arrangements for renovation works

  1. Bernard and Fiona say that, after the 16 May 2013 meeting, preparatory work for the renovations to the Homestead commenced (later in 2013). Bernard and Fiona arranged to have sketches made prior to drawing up plans (which they place as occurring about six months before they began the renovations – see [107] of Fiona’s first affidavit); paid to have plans drawn up (by McKinnon Designs – the plans being drawn from sketches taken on about 28 February 2014 – see [108] of Fiona’s first affidavit); sought out John Nunn Building Contractors Pty Ltd (John Nunn Building Contractors) and obtained a quote for the major part of the building works (which they place at approximately 26 March 2014 – see Fiona’s first affidavit at [114]); and they signed a contract for the major building works (on 22 May 2014), the contract noting drawings from McKinnon dated October 2013 (see contract provision regarding the drawings; and Fiona’s first affidavit at [115]).
  2. Bernard and Fiona also make reference to contemporaneous documents (see below) which it is said show that, shortly before signing the building contract, Fiona had communicated with Mr Michael Thornhill (a financial consultant who undertook some financial consulting work for Caernarvon Cherry at the time) as to clarification being sought that “personal funds you [Fiona] and Bernard/Caernarvon Cherry Pty Ltd [Bernard and Fiona’s company] have available will be used to pay for the house renovations, and there will be an adjustment done to square things up with Tim”. (To my mind it is significant that this leaves open how the adjustment was to be effected.)

Meeting on 26 March 2014

  1. Mr Lee has deposed (see from [47] of his first affidavit) to a meeting at the Bonny Glen Fruits Pty Ltd administration office in Orange on 26 March 2014 to discuss the financial statements for the Group and the signing of the Group financial statements and taxation returns for 30 June 2013. Mr Lee deposes to a conversation on that occasion in which he says Fiona raised the question as to “how would [they] be reimbursed” if they did some renovations to the house at Canobolas; that Timothy suggested looking at houses for sale nearby and subdivision as an alternative; and that:

Tim said:   Perhaps one way if you were going to do any renovations to the house at Canobolas was to get a valuation of the house before and after the renovations. This way would work out what increase in the value was gained by such renovations rather than what you had spent.

[Des] said:   Another way to record down what items you spent and from those items be approved by Tim and Bernard and recorded in the company financial records as a loan to you both (being the company financial records as a loan to you both (being Bernard and Fiona). Those costs could be adjusted by CPI and an adjustment made for each year of the increase in value as you could over capitalise the property and such costs not recovered in valuation method [sic]

  1. Pausing here, it seems to me more likely (having regard to the chronology of events) that this conversation occurred in the course of the May 2013 meeting rather than the March 2014 meeting because steps had already been taken by March 2014 at least for the obtaining of plans for the proposed renovation.
  2. Again, there are handwritten notes made by Fiona contained in the blue book of this meeting, recording the meeting with Mr Lee at Caernarvon Cottage and the presence of Timothy, Fiona and Bernard. Those notes do not record any of the above discussion to which Mr Lee deposed. There is then a lengthy gap in time before any further minutes or notes in the book – those recommencing with a typed set of minutes of a meeting on 1 December 2015 attended by Timothy, Bernard, Fiona and “LP” (which I infer to be Leanne Pearce).

Valuation by Andrew Saunders – April 2014

  1. Mr Saunders inspected and valued the Homestead (i.e., not the Caernarvon Property as a whole) on 29 April 2014 (the “before” valuation) at $770,000 (being land valued at $385,000 – for a site area of 2ha; and improvements at $385,000). Mr Saunders assessed the rental value unfurnished at $475 per week.

Communications with Mr Lee – April/May 2014

  1. I have referred above to the communications with Mr Thornhill.
  2. On 30 April 2014 (in response to a request made on 30 April 2014 by Mr Lee for Fiona to send an MYOB accounting file for Bernard and Fiona’s business entities), Fiona sent an email to Mr Lee stating “will do, we will have done by end of next week” but went on to ask Mr Lee to read a message received from Mr Thornhill and to confirm her explanation to Mr Thornhill (as to the funding of the house renovations) as well as to address the last paragraph of the message. The message from Mr Thornhill read:

Hi Fi

As discussed, I understand that personal funds you and Bern/Caernarvon Cherry Pty Ltd have available will be used to pay for the house renovations, and there will be an adjustment done to square things up with Tim based on the pre- and post- valuer of the house as it is owned by one of the Company’s that is 50% owned by Tim.

The other point that may be worth checking with Des is that the way you will be paying for the house renovations will be the most tax effective for the Company and yourselves individually. I suggest checking with Des to confirm that there are no other strategies he would suggest to assist with tax minimisation now and in the future.

  1. On 5 May 2014 (before the contract with John Nunn Building Contractors was signed), Mr Lee responded to Fiona’s 30 April 2014 email, saying:

It is my understanding at our meeting in Orange that Tim suggested pre and post valuation.

I suggested what ever [sic] you spent plus CPI would be adjusted and to resolve the issue I suggested the higher of the two.

The reason I explained you could over capitalise the property and such costs not recovered in the valuation.

With the current update to end of April figures you are sending I can work out the overall tax planning.

To assist please also provide estimate of renovations costs and timetable and what type of renovations.

  1. Bernard and Fiona say that it is common ground that the subject of the payment for the renovations was raised by Bernard and Fiona, and that Mr Lee had recorded resolution of the issue; and they point to these as matters going to the unlikelihood that they proceeded with the funding of the renovations without any agreement having been reached on that issue. The difficulty I have with that proposition is that there is not clear evidence of an agreement emerging from the above affidavit evidence, even on Bernard and Fiona’s account of the conversations. Rather, what is clearly apparent is that Bernard and Fiona wanted there to be recognition in some fashion of their expenditure (and most likely that this would be by some sort of adjustment or squaring up between the brothers in the future).
  2. For Timothy, it is said that for there to be acceptance of the position in relation to reimbursement of or recognition for the cost of the renovations, there has to have been knowledge of the costs of the renovations and the types of renovation (and it is noted that Mr Lee wanted an estimate of these to be provided).
  3. The above chronology of events shows that there were discussions about the proposed valuation of the property before and after the proposed works; and that it is made quite clear that no agreement was reached between the parties; rather, Mr Lee writes in the abovementioned email that his understanding was that Timothy and he both provided suggestions as to how the renovations could be reimbursed, and requested further details of the costs of the renovations and the type of renovations.
  4. On 13 May 2014, Fiona responded to Mr Lee, attaching the updated MYOB accounting file he had requested, in which email she said:

hi des

I have just emailed you the backup of MYOB for April 30. We have done as suggested and had the house (and house only) valued before any renovations commence. I will pass this on once received.

The renovations will commence next week however I don’t envisage a lot of money being spent before the end of the financial year. There have been costs to council, draftsman, engineering, design etc so far, however my prediction that another 70k would be spent before end of fy at the most.

The total renovation is going to be an estimated [sic] at $400-450k, will give you some more details when the fixed quote comes in from the builder tomorrow.

  1. Mr Lee has deposed (at [61] of his first affidavit) that he did not receive any further information regarding the renovations beyond the above communication; and that he did not think about forwarding a copy of this to Timothy because the email chain was part of the records between Caernarvon Cherry Pty Ltd and his firm; and Timothy had never been a director or shareholder of that company. There is no evidence that Timothy was made aware of this estimated cost.

Arrangements for building works

  1. The development application dated 15 April 2014 described the development as extensions and alterations to the cottage at an estimated cost of $350,000. The development application recorded the owner’s consent (of Bonny Glen Fruits) bearing the signatures of both Fiona and Bernard – Fiona signed as director (the title “director” being in her own handwriting). It appears that Fiona also signed the building contract as owner.
  2. The renovation works began in 2014 (a construction certificate being approved on 5 June 2014) and concluded in 2015. A final occupation certificate was issued on 13 March 2015. The cost of the renovation works was funded by Bernard and Fiona (in an amount, they contend, of over $1 million). The renovation costs were not at any time recorded in the accounts of the Company.
  3. The quote for the building works, dated 26 March 2014 was for $378,750 inclusive of GST. The signed contract was for a contract price of $353,500 inclusive of GST, “subject to adjustment as per contract conditions”. (As I understand it, the reduction in the price is related to the removal of joinery items and the allowance made for heating and a new floor from the contract – see T 374.39-50.) The contract provided for a deposit of $17,675 and a series of payments to be made when specified stages of the works were 95% completed. The contract provided for a number of “Prime Cost Items” (see cl 15 and item 11 of Schedule 2) which were specified as allowances and not guaranteed or lump sum amounts and where the contract contemplated that the amount expended might exceed the amount specified or conversely that part of such amounts might not be expended (containing provision as to how such amounts were to be treated). So, for example, item 11 of Schedule 2 specified the amount of $22,500 for “heating & new floor” (which items it is said were ultimately removed from the contract price).
  4. The largest claimed renovation expense comprises payments made to Mr Nunn’s company. At [44] of Fiona and Bernard’s written submissions, Fiona and Bernard claim that payments totalling $487,675.65 were made to Mr Nunn’s company, comprising the deposit, progress payments and other various payments pursuant to the contract of 26 March 2014. In that regard, at [122] of Fiona’s first affidavit, Fiona deposes that John Nunn issued seven variations and instructions sheets, totalling $37,029.96. (Timothy calculated that these variations, when added to the purchase price of the contract, totalled $390,029.96 – see [66] of Timothy’s submissions.) These variations were described as follows:

(a)   Variation and Instruction sheet number 5 dated 5 August 2014 for $18,441.72 for additional quotation for remove entire roof/blanket.

(b)   Variation and Instruction sheet number 7 dated 5 August 2014 for $1,496.00 for building/waterproofing and tiling 2 wall niches for each bathroom.

(c)   Variation and Instruction sheet number 8 dated 5 August 2014 for $352.00 for installation of in wall cistern to ensuite.

(d)   Variation and Instruction sheet number 10 dated 5 December 2014 for $8,129.44 for extra cost on tile to wet areas.

(e)   Variation and Instruction sheet number 11 dated 5 December 2014 for $1,067.00 for strip drain to wet areas as Reece prime cost amount has been taken off contract.

(f)   Variation and Instruction sheet number 12 dated 5 December 2014 for $94.60.

(g)   Variation and Instruction sheet number 15 for $7,449.20 for carpet cost not quoted in building works originally.

  1. Fiona further deposes (at [123] of her first affidavit) that a number of variations were not recorded in written form and were paid in cash during the course of the renovations. At [126]-[128] of Fiona’s first affidavit, Fiona deposes to payments made to John Nunn totalling $226,758.16, being for less than 50% of the amount claimed for this particular contractor. In particular, Fiona deposes that the following payments were made: on 29 May 2014 – $17,675 (Invoice No. 1207); 14 July 2014 – $44,000 (Invoice No. 1220); 3 September 2014 – $33,000 (Invoice No. 1245); 17 September 2014 – $66,000 (Invoice No. 1242); 17 November 2014 – $44,000 (Invoice No. 1265); 1 February 2016 – $11,083.16 (Invoice No. 1331); 30 October 2016 – $2,000 (Invoice No. 1331); 9 September 2016 – $5,000 (Invoice No. 1331); and 26 November 2016 – $4,000 (Invoice No. 1331).
  2. Pausing here, I note that some payments seem to have been made before the invoice was issued by Mr Nunn’s company. For example, payment for invoice no. 1245 is purported to have been made on 3 September 2014; however, the invoice was issued by Mr Nunn’s company after that date, on 15 October 2014. I also note that Fiona deposed (at [128] of her affidavit) that Invoice No. 1265 was paid and provided proof of payment. However, Fiona deposed (at [129] of her affidavit) that there was no record to support payment of Invoice No. 1265. These issues were the subject of cross-examination and are discussed below.
  3. At [124]-[129] of Fiona’s first affidavit, Fiona deposes that there are no records for $268,276.20 worth of claimed payments to John Nunn. Nonetheless, Fiona deposes that she believes she has paid these claims (see at [125], [130]-[131]). These payments are as follows: 1 October 2014 – $13,788 (Invoice No. B13217); 5 October 2014 – $22,000 (Invoice No. 1244); 7 October 2014 – $970 (Invoice No. C17410); 4 November 2014 – $26,513.02 (Invoice No. 1254); 4 November 2014 – $46,963 (Invoice No. 1254); 11 November 2014 – $316.80 (Invoice No. C17548); 5 December 2014 – $44,000 (Invoice No. 1265); 11 December 2014 – $22,000 (Invoice No. 1270); 5 February 2015 – $16,825 (Invoice No. 1284); 12 March 2015 – $8,998.04 (Invoice No. 1296); 5 May 2015 – $35,576.58 (Invoice No. 1331); and 8 October 2015 – $30,325.76 (Invoice No. 1378).

Valuation as at 11 June 2015

  1. Mr Saunders valued the Homestead again on 11 June 2015 at $1,300,000 (the land value at $455,000 and improvements at $845 per metre), with an unfurnished rental value assessed at $600 per week.

October 2015

  1. By email sent on 8 October 2015, Fiona forwarded to Mr Lee copies of two valuations, saying that “both valuations have been done, please find attached. can we make sure we discuss and minute at the meeting”.

Minutes of meeting Bonny Glen Fruits – 22 October 2015

  1. There is in evidence a typed note that appears to be the minutes of a meeting on 22 October 2014 of Bonny Glen Fruits, recording the attendance of Mr Lee, Fiona and Timothy (though Bernard is also recorded as having contributed to the discussion at the meeting). It is not clear who prepared the minutes but they appear to have Fiona’s handwriting on at least some of the items.
  2. The minutes include the following item (against which it appears that Fiona recorded the word “Des”):

Caernarvon House

–   Valuations of the house have been done before renovation and after. Des to contact the valuers to get true valuations. The difference between the valuations to be recorded as the expense was incurred by B&F hall personally

  1. Fiona’s evidence was that in 2015 Timothy was shown or sent the set of before and after valuations provided by Mr Saunders (T 103) and Fiona accepted that Timothy had said words to the effect that the valuations looked a bit overstated (although Fiona thought this was a reference to some extra outhouses that were in the post renovation valuation). Fiona seemed to accept that she had told Timothy she would have a more detailed look at the valuation but then left it to Mr Lee to get back to them about further information from the valuers (see T 104). Fiona gave evidence that she and Bernard would follow up with Mr Lee as far as wanting to put this on the company books (see T 104-105) but there appears to be nothing in writing as to this. I note that, as to the blue book, Fiona’s evidence is that words “Follow Des up 400,00” are definitely in Bernard’s writing (which Fiona assumed to be a reference to the need to follow up a facility for hail netting (T 112)).

Minutes of meeting 1 December 2015

  1. The typed minutes of meeting bearing this date, to which I have referred above, include the item “Des needs to supply valuations for CCC house, Tax returns and minutes. Letter stating what is required for books to be consolidated”.
  2. A subsequent email exchange between Fiona and Leanne Pearce indicates that both had a role in preparing minutes of meetings at least by June 2016 and that this involved communication with Mr Lee. The minutes headed Committee Meeting 3 June 2016 record the following item:

4.1   Caernarvon house improvements – Des was getting clarification from the valuers – Des forgot to do this – Des will follow this up to have a resolution by next meeting.

Discussions in relation to separation of assets

  1. By 2017, the brothers were involved in discussions as to the unwinding of the joint family enterprise. Timothy says that, by then, the relationship between the brothers had deteriorated (this does not appear to be disputed by Bernard and Fiona, albeit that, as noted already, they cavil with the proposition that the relationship had deteriorated as early as 2013). Bernard himself says that in 2017 his relationship was deteriorating (see at [171] of his first affidavit).
  2. In 2017, Bernard, Fiona and Timothy jointly engaged Mr Thornhill to “assist with their goal of separating each family from the respective jointly owned assets” (see Mr Thornhill’s email of 7 April 2017 to Mr Lee, copied to the brothers; and see Bernard’s first affidavit at [172]-[173]). Bernard deposes that there were a number of meetings at the Caernarvon cottage attended by Mr Thornhill, Timothy and Bernard, at which there was discussion as to the properties and assets.
  3. There was an initial meeting with Mr Thornhill on 23 March 2017 at which Bernard says that there was discussion as to the renovations and as to the valuations obtained, following which Mr Thornhill sent an email on 24 March 2017, attaching a summary of the jointly held assets and relevant details from the meeting for the brothers’ review. The list attached summarised the proposal for various assets; including that 100% of the “business” of Bonny Glen Fruits Pty Ltd would be “to Tim” but that the company might be wound up and Timothy to operate out of one of the existing companies or in a new entity; and for the assets of Caernarvon Pty Ltd (by their description this must be a reference to the Company) to be transferred to Bernard and Fiona.
  4. Mr Thornhill forwarded this schedule to Mr Lee by email on 7 April 2017, noting that the preferred date for the separation to be in place was 1 July 2017. Mr Lee responded by email on 13 April 2017 advising as to the steps to be followed to ascertain how a separation could be structured. Those steps included calculation of “[t]he amount owed by one party to the other on adjustment of such separation” and capital gains tax cost. There was no express reference in those emails to any reimbursement for expenses incurred in renovations of the Homestead, or any other properties. However, in evidence were undated handwritten notes apparently produced on subpoena by Mr Thornhill of a meeting with Bernard, Fiona and Timothy noting a timeframe of 1 July 2017, in which there is reference to “market value before & after reno of Caernarvon hose [sic] done. Can’t subdivide”; and that “Melrose’ includes Tim house” and the note “tim has put money into house”. The note recorded that “all agree that will value properties based on land & income producing value”.
  5. By 18 May 2017, the proposal in relation to jointly held assets had changed such that the business of Bonny Glen Fruits Pty Ltd was now to be to Bernard and Fiona (but with the same comments as to the possibility that the company might be wound up and that Bernard and Fiona might operate out of one of the existing companies or in a new entity).
  6. By 22 May 2017, it appears that there was dissension between the respective family members (see Fiona’s email to Mr Thornhill on that date referring to a meeting the previous Friday (18 May 2017) which Fiona described as “brutal and complete change around to where Tim wanted to be at the first meeting we had”). Fiona’s email to Mr Thornhill included the statement that “[s]o we are been [sic] forced to sell our much loved property. If it doesnt [sic] sell we are forced to buy out Tim which Bernard does not want to do!” (this presumably referring to a sale of the Canobolas Property including the Homestead). Mr Thornhill’s response was that he agreed that the meeting on Friday was “a total change in direction”.
  7. By August 2017, Mr Thornhill was conveying to the brothers his understanding that any plans to move forward with the separation of jointly owned assets had stalled and that one of the main “sticking points” was the actual and intended ownership of “Caernarvon Pty Ltd” (the owner of the Caernarvon Property) and Melrose Park (there having been communications via Fred and Pamela to the effect that their intention had been that Timothy have only 25% of Canobolas and Bernard only 25% of Melrose Park, contrary to the ASIC documents).
  8. A meeting took place on 4 December 2017 attended by Timothy, Bernard and Mr Thornhill, the minutes of which were prepared by Mr Thornhill. The meeting minutes included the following:

5.   Residential properties on ‘Melrose’ and ‘Caernarvon’

–    TH & BH agreed that there have been improvements to the residential properties on these 2 properties over time and that there may have been costs incurred by TH & BH on each of these respective properties from their own funds, and that such contribution needs to be taken into account when calculating the net asset ownership by TH & BH as part of the asset separation.

–   The residential property on ‘Melrose’ is the residence of TH, and on ‘Caernarvon’ is the residence of BH

–   Agreed that MT will obtain financial reports for the entities owning these properties from DL (and associated entities) to review the amounts reported in these financial reports/ balance sheet, and provide a summary to TH & BH of this financial information for further discussion as to the next steps to take to agree on the contribution made respectively by TH & BH to these properties.

  1. There is no reference in these meeting minutes to any existing loan agreement in relation to expenditure on renovations on the Homestead property (rather what seemed there to be recorded was that the brothers agreed at the meeting that there “may have been” costs incurred by each of them on the properties out of their own funds and that such contribution needed (in some fashion) to be taken into account when calculating the net asset ownership of the brothers as part of the asset separation).
  2. Fiona’s response to the minutes included (see email of 5 December 2017) that she and Bernard had done the right thing and had their house valued both before and after the renovations (and to assert that “[t]his was all agreed to by Tim and Des”).
  3. Bernard says that, what occurred in 2017 was that he and Timothy came to an in principle agreement that each would own his respective orchard (i.e., Canobolas and Nashdale) and that they went through a summary of assets and agreed how they would be split but that two weeks later Mr Lee advised him that Timothy did not want to split the business because he was “too sick” to take it on anymore ([183] of Bernard’s first affidavit). Bernard relies on this evidence to dispel any suggestion of recent invention.
  4. On 4 December 2017, Mr Thornhill recorded a meeting where the two brothers agreed that costs incurred by the others on their respective properties had to be taken into account as part of the separation (i.e., to value the assets and that there be a cash payment to “even up” the division) (see T 10). However, it seems that there was then a disagreement as to this.
  5. Bernard has deposed to a conversation with Timothy in around 2018 where he says that Timothy recounted their father’s opinion that the Company should be put into voluntary liquidation and the liquidators should sort out the whole thing so that “everyone gets repaid what they’re owed”; and says he agreed with this (see at [185] of Bernard’s first affidavit).

Appointment of voluntary liquidators

  1. In late 2018, Bernard and Timothy agreed to appoint Mr Cameron Gray and Mr Anthony Elkerton (together, the fourth respondent) as trustees for sale to realise the various properties and as provisional liquidators to realise the assets that were held by the corporate entities they controlled. Orders were made by consent to that effect on 27 November 2018 (the winding up of the companies being put on the just and equitable ground).
  2. Prior to the appointment of the provisional liquidators, by letter dated on 21 November 2018, solicitors acting for Bernard and Fiona (Matthews Folbigg) wrote to Timothy’s then lawyers advising that their clients’ agreement to the proposed short minutes as to the distribution of proceeds from the sale of the Caernarvon Property pending further order of the court was “not intended to dispose of” their clients’ claim that they are “entitled to an equitable claim and an adjustment against the proceeds of sale of the Caernarvon Property, in accordance with the improvements they have made to the property”. The letter stated the understanding that Bernard and Fiona had paid in excess of $600,000 from their personal funds to make improvements to the Homestead and that:

We are instructed that Tim was aware that our client’s [sic] would be undertaking this work and that any amounts spent by Fiona and Bernard on the renovations, would be recorded as an amount owed to them in the books and records of the company, however, this did not occur.

  1. On 12 December 2018, a report was completed by Bernard on the company activities; Bernard identified his claim and provided a copy of the (said to be contemporaneous) notes taken by Fiona of this relevant meeting, and the “before” and “after” valuations by Mr Saunders (who gave evidence in the proceeding).

Sale of properties

  1. The Canobolas and Nashdale Properties were sold at public auction held by the liquidators on 24 July 2019. Fiona, and an entity associated with Bernard and Fiona, together acquired the Canobolas Property. Completion of the sale was, however, delayed on at least two occasions due apparently to funding difficulties (see below).
  2. On 21 November 2019, Bernard’s solicitor wrote to the liquidators proposing that they grant partial vendor finance to the purchasers of the Company’s land, and other land held by the liquidators under an appointment as trustees for sale, in each case under existing contracts of sale dated 24 July 2019 to Fiona and a company associated with Bernard and Fiona. The letter proposed that Bernard’s dividend in the winding up of the Company be charged as security for the purchasers’ obligations.
  3. The letter of 21 November 2019 referred to discussions between the purchasers’ solicitors and the liquidators “last week” and to the need to have the “figure” of an amount to be set off under earlier orders of the Court under s 81 of the Trustee Act 1925 (NSW) (Trustee Act) in respect of the land held under the appointment as trustees for sale. Those orders had been directed to facilitating a completion of the contracts on 14 November 2019. Timothy notes that, despite the set-off permitted by those Orders in respect of the land held by the vendors under the appointment for sale as trustees, the purchasers had failed to complete; and that the letter of 21 November 2019 was there making a similar proposal in respect of Bernard’s expectation of a dividend in the winding up of the Company.
  4. The 21 November 2019 letter advised that it was at least desirable, if not necessary, for Bernard and Fiona to know how much they would need to raise from other lenders to pay the portion of the price not financed by the vendors (hence the need to ascertain an expected dividend).
  5. Timothy notes that the letter of 21 November 2019 made no reference to the proof of debt (see below) which was subsequently lodged a few days later.

Proof of debt

  1. On 26 November 2019, as adverted to above, Bernard and Fiona lodged a proof of debt in the liquidation of the Company, claiming as a debt the sum of $800,000 in respect of funds they claimed were expended to enlarge and renovate the Homestead between 2013 and 2015.
  2. The proof of debt claimed that the debt was owed by the Company pursuant to a Loan Agreement between Bernard and Fiona and the Company “for amounts advanced in relation to Caernarvon homestead improvements”. The proof of debt attached “minutes of meeting dated 16.05.2013” (being Fiona’s handwritten note – as set out earlier) and a “schedule of invoices and evidence regarding payments”. The covering letter from Bernard and Fiona’s accountant stated that the amount actually paid was $1,050,797.58 but that Bernard and Fiona were prepared to agree only to lodge a proof of debt for $800,000 in order to allow the liquidator “to have certainty regarding the amount which … Bernard may be entitled to receive as a shareholder of the company”.

Vendor Finance

  1. On 29 November 2019, Timothy’s solicitor received an email from the liquidators’ solicitor informing him that there was a proposal for vendor finance that one of the liquidators wished to discuss with him.
  2. A meeting was then held on 4 December 2019, at which Timothy’s solicitor, Mr Cakic, was informed that the proposal would require approval from the Court pursuant to s 477(2B) of the Corporations ActOn the same day, Mr Cakic made a written request for additional information. Complaint is made that this was not provided.
  3. On 9 December 2019, the liquidators filed an Interlocutory Process seeking approval of the vendor finance proposal pursuant to s 477(2B) of the Corporations Act. Timothy notes that the supporting affidavit of one of the liquidators, Mr Gray (affirmed on 9 December 2019) referred to the $800,000 joint proof of debt by Bernard and Fiona but did not annexe or exhibit it, nor explain its claims.
  4. On 10 December 2019, Timothy (whose position was that he did not have enough information to make a decision with respect to the application) sought a guarantee from the liquidators that he would receive an equivalent amount of money from the liquidation as his brother (Bernard) would receive. Timothy neither consented to nor opposed the s 477(2B) application, which was heard and determined by Rees J on 11 December 2019.

Completion of sale

  1. The sales of the properties were completed on or about 13 December 2019. The vendor finance was for $1.1 million. Timothy notes that the liquidator’s affidavit on the s 477(2B) application stated that he expected that all creditors would be paid and the shareholders receive distributions each exceeding $1.1 million, and that there would be no undue delay. Thus, Timothy says that the position that was being presented to Rees J was that only the shareholder dividend was treated as a material factor relied on to support the viability of the then proposed agreement. It is noted that this was mentioned as a factor in Rees J’s judgment (see p 3), her Honour’s reasons not referring to the proof of debt claim.
  2. Timothy points to the fact that, a year after the first s 477(2B) Order, when the time permitted was about to expire (and by which time the proof of debt claim had not been determined by the liquidators), a further s 477(2B) application was made. Timothy notes that no detailed statement of the financial position of the borrowers and guarantors was presented but that Mr Gray deposed (in his affidavit of 2 December 2020, in the second paragraph numbered [18]) that “they [the purchasers] will not have sufficient funds without the payment of the POD amount and a shareholder dividend”. (Timothy relies on this to show that Bernard and Fiona thus have a strong financial motivation to pursue the proof of debt claim; and he says that their evidence of oral dealings many years ago must be assessed with appropriate caution in the light of that self-interest.)

Acceptance of proof of debt

  1. At the request of the liquidators, further supporting documents were supplied on 5 February 2020 and 12 June 2020. A statutory declaration was provided; and Timothy made submissions through his solicitors in relation to the proof of debt.
  2. The liquidators obtained written advice from a barrister as to whether the liquidators should approve the proof of debt (see Mr Gray’s affidavit affirmed 17 November 2020 at [61]). Counsel’s opinion was that the liquidators would be entitled to admit the proof of debt claim. Mr Gray deposed that, in light of this opinion and the fact that he was satisfied from his own investigations that Bernard and Fiona had spent the amounts claimed on renovations, he and Mr Elkerton decided that the proof of debt should be admitted (see [63] of Mr Gray’s 17 November 2020 affidavit).
  3. On 17 September 2020 the liquidators admitted the proof of debt.

Proceeding

  1. As adverted to above, by Interlocutory Process filed on 30 April 2020, Timothy appealed against the admission of the proof of debt lodged by Bernard and Fiona. Prior to the filing of the application, Timothy’s solicitors had written to the liquidators, contending that correspondence received on 7 April 2020 constituted a decision to admit the proof of debt. Subsequently, the liquidators disputed that they had made a final decision on the proof as at 7 April 2020 and the matter was stood over whilst the liquidators gave further consideration to the proof.
  2. On 2 November 2020, the Court noted that it was now common ground that the liquidators had determined the proof and ordered that the Interlocutory Process filed on 30 April 2020 should stand as Timothy’s appeal against that determination. At the liquidators’ request, leave was also granted to Timothy to amend his Interlocutory Process to add the liquidators together as fourth respondent.
  3. The amended interlocutory process was filed on 5 November 2020. The liquidators have not taken an active role in the hearing of the application; the relevant contradictors being Bernard and Fiona.
  4. On 30 November 2020, the Court directed Points of Claim and Defence to be filed by the active protagonists in the case (Timothy, on the one hand, and Bernard and Fiona, on the other). Pursuant to those directions, Points of Claim were filed by the respective parties on 16 December 2020 and Points of Defence, responding to the respective Points of Claim, were filed on 15 January 2021.
  5. Affidavit evidence has been filed pursuant to r 14.1(5) of the Supreme Court (Corporations) Rules 1999 (NSW) by the fourth respondent, being an affidavit affirmed on 17 November 2020 by Mr Gray, on which Bernard and Fiona rely. Timothy has also filed affidavit evidence: affidavits sworn by himself and Mr Lee (and valuation evidence from Mr David Bird and Mr Mark Ellis); as well as an affidavit from his solicitor (Mr Cakic). Bernard and Fiona have filed the following affidavits: affidavits sworn 19 April 2021 and 24 May 2021 by each of Bernard and Fiona and an affidavit sworn 19 April 2021 of Mr Andrew Saunders (the property valuer who carried out the “before” and “after” valuations of the Canobolas Property).

Deferred evidentiary ruling

  1. Before turning to the evidence of the lay and expert witnesses, I deal first with a deferred evidentiary ruling as to the admissibility of documents sought to be tendered by Bernard and Fiona during the course of the hearing, namely documents that had been produced on subpoena by John Nunn Building Contractors (the builder contracted for the renovation works on the Caernarvon Property which were the subject of the impugned proof of debt).
  2. Relevantly, Bernard and Fiona sought to tender (as business records) those parts of documents headed “Account Transactions John Nunn Building Contractors Pty Ltd for the period 1 July 2013 to 1 June 2014” (the 2014 Extracts), and “Account Transactions John Nunn Building Contractors Pty Ltd for the period 1 July 2014 to 30 June 2015” (the 2015 Extracts) and 1 July 2015 to 30 June 2016 (the 2016 Extracts) containing the representations marked in each of the extracts (the Representations) appearing within a folder entitled “Relevant Extracts from John Nunn Building Contractors Pty Ltd’s Ledgers for the Period 1 July 2013 to 30 June 2016” (the Extracts Folder). In that regard, Bernard and Fiona relied on an affidavit affirmed 22 July 2021 by their solicitor, Ms Ellen Wendy Ferris, and the documents annexed thereto.
  3. On the voir dire as to the admissibility of those documents, Bernard and Fiona also tendered various documents including the financial year 2015 and 2016 ledgers of account transactions of John Nunn Building Contractors and the building contract dated 22 May 2014 which they entered into with John Nunn Building Contractors (the Contract).
  4. The circumstances in which those documents were produced by John Nunn Building Contractors were addressed in the affidavit evidence of Ms Ferris but it is not necessary here to outline those circumstances as Timothy does not cavil with the proposition that the documents in question were produced in answer to a subpoena (issued at the request of Timothy on 25 May 2021) (see T 318.1); and, in the case of the documents for the 2014/2015 and 2015/2016 financial years, were not produced initially when the subpoena was answered but, after enquiry was made of the company’s solicitors, were produced only on the first day of the hearing. Nor does Timothy cavil with the legal principles summarised in submissions for Bernard and Fiona as to the test applicable when assessing the relevance of the documents to a matter in issue in the proceeding (see Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 at [92](5) per Perram J (ACCC v Air New Zealand), approved in Federal Commissioner of Taxation v Cassaniti (2018) 266 FCR 385; [2018] FCAFC 212 at [64] per Steward J (his Honour then sitting in the Federal Court), and in Gregg v The Queen (2020) 355 FLR 348; [2020] NSWCCA 245 per Bathurst CJ at [362]).
  5. Rather, Timothy cavils with the proposition that the documents satisfy the requirements of s 69 of the Evidence Act for business records (and argues that, although documents of this kind would commonly satisfy the test of relevance, in circumstances where there is doubt as to when the relevant representations were inserted in the database the documents do not here meet the test of relevance).
  6. Bernard and Fiona seek to rely on certain of the previous representations recorded in the general ledger of John Nunn Building Contractors, invoking in this regard ss 69, 48, 57(1) and 58(1) of the Evidence Act, as evidence capable of rationally affecting the assessment of the probability that invoices were raised by John Nunn Building Contractors and that payments claimed by Bernard and Fiona were paid.
  7. In circumstances where the documents were produced in answer to a subpoena addressed to John Nunn Building Contractors by a solicitor acting for the company, it is said that it may readily be inferred that the documents were provided by John Nunn Building Contractors and that compliance with the subpoena was supervised by a solicitor. As to the documents themselves, Bernard and Fiona contend that, on their face, they are part of the business records of the company (pointing to the headings on those documents; that they are in the form of a general ledger printout from a computer based accounting system; and to their contents, which are said to be consistent with the entries on bank statements contained in the evidence of Fiona which record payments having been made to John Nunn Building Contractors). Thus it is submitted that the compelling inference is that the relevant ledgers are documents which have been produced by a device that has retrieved and collated data from the electronic database in which the general ledgers of the company are stored and form part of the records belonging to or kept by the company in the course of, or for the purposes of, that business.
  8. As noted, Timothy does not dispute that inferences could be drawn from the nature and form of the documents and the fact that they were produced in answer to a subpoena out of the custody of the company. However, it is submitted that the conditions specified in ss 69(1) and (3) of the Evidence Act are not here met on the balance of probabilities (i.e., that the ledgers in the form in which they are now sought to be tendered form part of the records kept by the organisation in the course of, or for the purposes of, a business or at any time formed part of that record; and that they contain the previous representation made or recorded in the document in the course of, or for the purposes of, the business).
  9. The force of Timothy’s submission in this regard arises out of the fact that there were in the evidence numerous editions of various of the invoices that were issued by John Nunn Building Contractors (so, for example, the invoices issued in respect of progress claim no. 7 dated 4 November 2014, of which there were three editions – at least one having no narrative description of the work performed). Insofar as there are various iterations of some of the tax invoices, it is submitted for Timothy that it cannot be concluded that each was contemporaneous or kept in the ordinary course of business (as opposed to being prepared at the request of Fiona for the purpose of the making of a claim under the proof of debt or in the period in which this proceeding was on foot).
  10. In that regard, without reference to metadata it was submitted that one could not infer from the fact that an entry appeared chronologically in the database that an invoice was rendered at the time recorded in the database since the entry might have been retrospectively recorded in the electronic database (see the argument at T 324-325).
  11. By way of further example, reference was made to the cross-examination of Fiona as to the invoice dated 15 October 2014 for progress claim no. 6 for which it was said that payment had been made some six weeks before the date of that invoice (on 3 September 2014). It was noted that there appeared to be different dates identified as dates on which the payment was made (20 October 2014 as opposed to 3 September 2014) (and see the cross-examination of Fiona at T 68-69ff in relation to the ninth email of the emails in Exhibit D as to the raising of invoices from Mr Nunn at the time that the proof of debt was lodged).
  12. Therefore, it is submitted for Timothy that there cannot be an affirmative state of satisfaction (on the balance of probabilities) that the ledgers in the form now sought to be tendered formed part of the contemporaneous records of Mr Nunn’s business and that they contained the Representations that were entered in the course of, or for the purposes of, that business (rather than the alternative hypothesis that they were prepared or revisited in the course of vouching the proof of debt or for the purpose of the present application).
  13. In response to this this submission, it was conceded by Counsel for Bernard and Fiona that the latter’s account of what had been spent and what the records showed was both confused and confusing but it was said that no claim was now made for items for which there is no explanation (see T 327-328). Rather, reliance was placed on a schedule that had been prepared (MFI 3), listing in relation to each of the progress claims, the invoice, the record in the ledger, and the bank statement which demonstrates a payment consistent with the entries in the ledger.
  14. So, for example, the answer to the recording in the ledger of a payment on 20 October 2014 in relation to an invoice of 15 October 2014 and a reference in the bank statement to a payment made on around 3 September 2014 was said to be that there were at least three payments of $44,000 (shown respectively as being invoice progress payment no. 2) (see T 327.42): a payment made on 14 July (for an invoice dated 10 July); a payment made on 17 November 2014 (for an invoice on 4 November 2014); and a payment made in respect of an invoice on 5 December 2014 (none of which, I might add, corresponds to the payment made on 20 October 2014, which prompted this exercise of matching payments to invoices).
  15. That said, Counsel for Bernard and Fiona maintained that the objective evidence was clear that invoices were rendered for the first nine progress payments which showed a consistent pattern of invoices being rendered and payments made for the same amount and in the order in which they were provided for in the contract; such that it was submitted that these were business records of Mr Nunn’s business (and admissible as such).
  16. It was submitted that the submissions for Timothy were tantamount to a suggestion that Mr Nunn was engaged in some sort of fraud with Fiona (i.e., that Mr Nunn was simply generating documents at Fiona’s request rather than attempting to supply her with material to assist in her proof of debt claim) and that there was no basis for such a conclusion.
  17. It was said that the invoices appearing without narratives were quite plainly machine generated invoices only recently created (consistently with Fiona’s evidence as to the changing of Mr Nunn’s computer system) and that this does not affect what was in the general ledger. It is submitted that it could not be concluded that Mr Nunn was engaged in falsifying his general ledger to coordinate with bank statements that were in Fiona’s evidence (reference being made in this context to the Briginshaw standard of proof of such serious allegations (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34)).
  18. Pausing here, I do not accept that rejection of the tender of the documents in question (on the basis that they do not meet the test for admission as business records) would of necessity involve the conclusion that Mr Nunn was engaged in a process of falsification of records (or some kind of fraud with Fiona) (which I accept is a serious allegation and would require a far greater level of satisfaction than that which I could form at this stage – and in any event would not be a conclusion I would draw without giving Mr Nunn an opportunity to be heard). Rather, consistently with the fact that one cannot accept or be comfortably persuaded of the evidence of a witness without concluding that the witness is lying or being deliberately dishonest, I consider that the doubts as to when the entries in the database were made (arising out of the proliferation of iterations of the invoices and the evidence referred to above of Fiona) simply means that I cannot be affirmatively satisfied on the balance of probabilities that the documents sought to be tendered were contemporaneous and prepared in the ordinary course of the business of the company (as opposed to documents – accepting for present purposes that there was a genuine basis for issuing them – that were or may have been issued retrospectively to record the basis on which invoices had earlier been rendered or payments made but which documentation for whatever reason was not readily available to the company issuing the invoice).
  19. I accept that the documents in question are of a kind that would ordinarily satisfy the test of admissibility being documents the receipt of which could rationally affect the assessment of the probability of a fact in issue (see ACCC v Air New Zealand at [92]). Further, I accept that the documents are of a kind that would ordinarily satisfy the requirements of s 69(1)(a) of the Evidence Act having regard to the form and context of the documents and the circumstances in which the documents were produced (see Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 at [89]-[90] per Leeming JA; and see Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 984 at [19] per McDougall J).
  20. However, in circumstances where I am left in doubt as to when the entries in the database were made (having regard to the different iterations of the invoices themselves), I do not consider that ss 69(1) and (3) of the Evidence Act are satisfied – and I therefore reject the tender of the documents in question. That said, ultimately nothing turns on this because the position taken by Counsel for Bernard and Fiona was that no claim was made for payments other than those objectively provable having regard to the documents referred to in the schedule which was marked as MFI 3 in the hearing and it was accepted that Fiona’s evidence in this regard was unreliable. Further, as I explain in due course, I am satisfied that the proof of debt should be rejected.

Lay evidence

  1. As to the lay evidence, each of the principal protagonists gave evidence and was cross-examined; as was Mr Lee. The substance of their evidence as to particular factual disputes is dealt with either in the chronology above or in the determination below of the issues in the proceeding.
  2. Bernard and Fiona accept that, insofar as they rely on what was said in the meetings of 14 September 2012 and 16 May 2013, the summary of the relevant principles and authorities given by Black J at [16]-[21] in In the matter of Hillsea Pty Limited [2019] NSWSC 1152 reflects the approach to be taken to the assessment of the affidavit and oral evidence (at least where they have traversed the particular evidence concerned). Insofar as there are significant aspects of the evidence given by Bernard and Fiona which Timothy and Mr Lee do not address, Bernard and Fiona submit that in relation to those matters inferences should not be drawn in favour of Timothy (citing Handley JA in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418).
  3. Bernard and Fiona thus submit that primary emphasis should be placed on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence (referring to Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15] per Gleeson CJ, Gaudron, Kirby and Hayne JJ). (Further, it was accepted that Fiona’s evidence in relation to the invoices and payments was confused and confusing – see below.)
  4. At this stage, having dealt with the specific credit issues raised in relation to the two relevant meetings, what I propose briefly to address are the submissions made for Bernard and Fiona as to credit generally.

Timothy

  1. Bernard and Fiona submit that Timothy’s evidence reveals that he harbours a great deal of animosity towards his younger brother. In particular, reference is made to the following evidence in the course of Timothy’s cross-examination. First, that, when asked whether he had asked Bernard for permission to remove a wall at the house which Bernard jointly owned, Timothy first said he had asked Bonny Glen Pty Ltd, then said he could not remember and then said that he did not need to because he was not asking Bernard to pay for it. Second, that when it was put to Timothy that he did not have to pay for the two hectare block that was carved out of the land at Melrose, he gratuitously added “I didn’t have to. I’d already worked 10 years longer than my brother and he was getting free interest for his loan plus he didn’t pay for it till five years later”. Third, that when it was put to Timothy that Bernard was not paying any rent while living in Melrose Cottage, Timothy said that “most of the time he spent he was off sick” (which Bernard and Fiona say was a preposterous suggestion when Timothy agreed that Bernard had lived there for seven years).
  2. As to Timothy’s affidavit evidence, it is noted that Timothy denied that Bernard had either undertaken or paid for renovations to Melrose Cottage and produced photos in support of his contention; and, when confronted in cross examination with photographs showing prior renovations done by Bernard, he retreated from that position to insist that either Bonny Glen Pty Ltd or he had paid for those renovations.
  3. Bernard and Fiona place no little emphasis on the fact that Timothy denied knowledge of the renovations until well after they were done. It is submitted that the following evidence in that regard does not withstand scrutiny. First, that, at [51] of his first affidavit, Timothy said that he had not been told by either Bernard or Fiona about the work done and their claim to be paid (a statement that Bernard and Fiona say even when qualified by what appeared in the following paragraph, was untrue). It is noted that Timothy’s own affidavit annexed copies of minutes of the meeting with Mr Thornhill on 4 December 2017 (see above) which Timothy attended with Bernard but that Timothy nevertheless swore that “the topic of renovations of the Caernarvon Homestead was not brought up at the meeting”. Bernard and Fiona point out that the minutes themselves plainly record that the topic of renovations to the residential properties was raised and that costs incurred needed to be taken into account. Moreover, it is noted that in cross examination, Timothy agreed that both he and his brother had contended to that effect at the meeting.
  4. Reference is also made to the letter dated 21 November 2018 from the solicitors for Bernard and Fiona that was sent by email to two people at the firm then acting for Timothy (which set out the substance of the claim that is made in the proof of debt and made plain that the consent to the orders made by the Court six days later was not intended to dispose of that claim). It is noted that the letter was part of the exhibit to Fiona’s second affidavit sworn on 24 May 2021. Bernard and Fiona point to Timothy’s evidence in cross examination that he had not been able to find the letter and that he added that it was not marked “without prejudice” (which they maintain was a “self serving deflection”). It is submitted that the likelihood that a letter emailed to two different people within Timothy’s legal team was not received by either of them is remote; and that the proposition that the claim it foreshadowed was not brought to his attention is equally unlikely. It is said that, in cross-examination, Timothy immediately realised that the statement was not true and sought to qualify it.
  5. Reference is made to Timothy’s evidence in cross-examination: that the first time he became aware that Bernard and Fiona had carried out work at the Canobolas Property was when he was shown the valuations at a meeting on 22 October 2015; that, when shown the valuations, Timothy’s only response was to comment that it looked overstated and that there were “extra” buildings that were already there. In cross-examination, Timothy said that he thought that what was being valued was the heating of the house and the bathroom. It is said that even a cursory review of the second Saunders valuation demonstrates that this answer could not possibly have been true. It is noted that (other than a small mention) neither the heating nor the bathroom was mentioned and neither appeared in the photographs. Bernard and Fiona say that Timothy’s suggestion that he had not received all of the photos in the valuation (and that this was a matter he had only noticed when he received the Court Books) smacked of recent invention. It is noted that the copy Timothy was shown was at pages 290-298 of the exhibit to Fiona’s affidavit of 19 April 2021 to which Timothy had responded to in his second affidavit of 17 May 2021.
  6. Bernard and Fiona also note that in Timothy’s first affidavit he referred to attending a birthday party for his niece (or nephew) at which he observed the renovations (inferentially, they say, for the first time). It is noted that this was said to be about a month after being shown the valuations. In cross-examination Timothy adhered to the fact that the party was in late 2015 but later he said that it was dark and it was in winter time. Bernard and Fiona say that, if the party was in fact in winter (as both Bernard and Fiona suggest), then Timothy must have observed the renovations well before he says that he received the valuations (in October 2015) and that his evidence about first learning of the renovations when he saw the valuations was untruthful. Insofar as Timothy said, in cross examination, that when he saw the renovations at the party he did not feel it was time to start arguing with his brother about not being notified, Bernard and Fiona say that (given his professed state of ignorance about Bernard and Fiona’s desire to have the costs recognised) it is difficult to understand what might have angered him (and point out that Timothy did not raise this subject at any later time either).
  7. As to Timothy’s general contention that he had no cause in the ordinary course of the apple picking season (that is from early February to May) to go to the Canobolas Property, and that he did not do so, Bernard and Fiona say that this contention should be doubted for the following reasons. First, that in his first affidavit Timothy recounted a conversation that he had “in about 2012” when he “visited the Caernarvon Orchard” and saw an employee (Ms Charlene Thurston) packing cherries at a time when he said she was on the Bonny Glen Fruits payroll. Thus, Bernard and Fiona say that at least in 2012 Timothy still had cause to visit the Canobolas Property. Second, that the office of the Bonny Glen Fruits business which Timothy co-owned was at the Canobolas Property. It is said that the bookkeeping staff employed by the Business and who processed the payroll for all of the staff, whether they worked on the Canobolas or Nashdale Properties were located in the packing shed at the Canobolas Property. Third, that staff wages were transported from the Canobolas Property to Nashdale. Fourth, that the apples grown on the properties that he oversaw were transported for grading, packing, and despatch to the Canobolas Property. Fifth, that at [30] of her first affidavit Fiona deposed to an argument between Bernard and Timothy outside Caernarvon Cottage in 2016 after which she said the relationship between Bernard and Timothy became “toxic” (to which Timothy did not respond in his affidavit).
  8. Further, it is noted that, in his second affidavit, Bernard gave detailed evidence of the frequency of, and reasons for, Timothy’s visits to the “packhouse”; and said that on average Timothy came about once a week to bring over timesheets or with fruit from Nashdale; and that Fiona also deposed in her second affidavit to Timothy’s visits to the “packhouse” during harvest time and otherwise and to deliver picking tallies to the office. It is submitted that it is inherently unlikely that the co-owner of a substantial business (in which the entire bookkeeping and payroll processing as well as the grading, packing, and dispatch of product are occurring just down the road) would have no occasion to visit for periods of years (even more so if he really had formed the opinion that those in charge of the operations at the Canobolas Property, i.e., Bernard and Fiona, “were taking advantage of the Bonny Glen Fruits business to benefit their own Caernarvon Cherry business”).
  9. Bernard and Fiona submit that Timothy displayed a disingenuous insistence on his total ignorance of the renovations in an effort to advance his case.
  10. Broadly speaking, Timothy’s submissions as to credit of witnesses went largely to the unreliability of Fiona’s evidence (both as to the invoices received and payments made and as to the notes said to have been taken at the relevant meeting).
  11. As to the principal lay witnesses I make the following comments.
  12. First, as to Fiona, there is no doubt that her evidence was confusing in parts and it was conceded to be unreliable in relation to the invoicing and payment regime. However, I considered Fiona to be a genuine witness who did not suggest that she recalled precisely everything that occurred. Clearly, Fiona has a firm belief as to the arrangement being one in which there would be recognition of the expenditure she and Bernard had made; but it seems to me that this is just as likely based on her assumption as to what was said or agreed as opposed to something actually said by Timothy by way of agreement to the proposition that there be a recognition of the expenditure. No doubt, Fiona’s perception (as with all the family members) is coloured by her feeling as to the unfairness of the position that has been adopted by the other side (as emerged in her contemporaneous emails with, for example, Mr Thornhill during the course of the negotiations as to asset separation). As to Fiona’s evidence in relation to the blue book, I accept that these were relatively contemporaneous notes but I cannot be satisfied on the balance of probabilities that all of them were actually taken during the course of the meetings (as opposed to notes jotted down sometime shortly thereafter). This is because of matters such as the change in pen colour (and the reference to the printed pages in the season summary referred to as “enclosed”). Most relevantly, is the fact that no-one else appears to have seen the “blue book” (although there were witnesses who on occasion saw Fiona taking notes).
  13. As to Bernard, I accept that he did his best truthfully to recall events that had occurred but it is clear that he had little independent recollection of relevant conversations. There is little doubt that Bernard and Timothy are now estranged – no doubt due to family history and differences that it is not useful here to explore; and this seems to have been the case from at least 2016. This is likely to have influenced both brothers’ perspectives and recollections of events.
  14. As to Timothy, I accept that there was a level of emotion apparent in some of his evidence (such as the assertions made seemingly downplaying Bernard’s involvement in the family business); and, on one view of things, his attitude to the claim by Bernard and Fiona to reimbursement of moneys spent by them on the Homestead might be seen to be an opportunistic reliance on lack of a formal written agreement. Nevertheless, it is also understandable that someone in Timothy’s position would not readily agree to giving his brother a blank cheque in relation to renovations on company property. I considered that Timothy was candid in his acknowledgement in his affidavit as to the difficulty in his recollection of events and I did not consider that his evidence was disingenuous (as Bernard and Fiona contend).
  15. On balance therefore, I accept that the family members did their best to give honest evidence of their recollection of events and that we are here squarely in Watson v Foxman territory where caution must be exercised in accepting any of the oral accounts and primary weight should be placed on the contemporaneous documents (though bearing in mind the caution that those too might be influenced by the perspective from which they were written or created).
  16. As to Mr Lee, his recollection of events seems largely to have been based on the documentary record (see for example at T 301.49). It was clear that documents such as the company records were prepared from standard pro forma documents and dated accordingly (and there were obvious errors in those documents). Mr Lee’s recollection of the meeting at which reference to valuations was made must be mistaken and that this was a discussion that in fact occurred at the 16 May 2013 meeting. However, I attribute this simply to failure of recollection on his part. Overall, I accept his evidence as being the most independent of the evidence of the lay witnesses. Relevantly, it seems to me implausible that a professional accountant, if instructed at a meeting to document amounts as loans in the company accounts, would not have attempted diligently to do so (which reinforces my conclusion that there was not a loan agreement concluded at the 16 May 2013 meeting – rather, the discussion was as to options going forward); and Mr Lee’s advice as to the keeping of receipts and the obtaining of valuations was being given as prudent advice for the parties to be in a position to evidence what had occurred (rather than as part of an agreement for the treatment of moneys expended on the renovations as a notional loan in the books of the company).

Expert evidence

Andrew Saunders

  1. Mr Saunders was the valuer who prepared the so-called “before” and “after” valuations to which I have referred above. In his report, Mr Saunders notes that the subject property comprises a single storey detached dwelling (constructed in circa 1910 and extended in 2015) situated on a two hectare rural allotment being Part Lot 11 in Deposited Plan 1002409. The report states that Mr Saunders adopted “the direct comparison and summation approach” to form an opinion of value. In respect of the Homestead dwelling, Mr Saunders commented that the “dwelling was in good condition with good quality floor coverings, joinery, kitchen and bathroom PC items. Hardwood windows and doors are also a positive feature”. Mr Saunders noted that “there is a lack of directly comparable sales evidence and … due to the nature and location of the subject property more recent comparable sales could not be sourced, despite our best efforts”. Regarding market conditions, Mr Saunders noted that the rural market “has increased in value ($/ha) dramatically in the last 12 – 18 months due to a combination of low interest rates and strong livestock prices” and commented that his assessment “together with current sales evidence reflects the market conditions being experienced in the area at present”, cautioning that “if the market conditions weaken, a lesser amount may be achieved”. Mr Saunders concluded that the current market value of the fee simple with vacant possession interest of property as at 24 July 2019 was $1,550,000 (exclusive of GST).

David Bird

  1. Mr David Bird, a certified practising valuer, provided an expert report (Exhibit O) in the applicant’s case. Mr Bird retrospectively valued the improvements “as is” as at 24 July 2019 at $2.4 million; and on a hypothetical basis (as if none of the renovations after 29 April 2014 as described by Fiona had been undertaken but allowing for reasonable wear and tear of the existing improvements up to 24 July 2019 at $2 million).
  2. Addressing the particular questions asked of him, Mr Bird’s opinion was as follows.
  3. First, Mr Bird confirmed that (assuming no extenuating circumstances – of any of which he confirmed he was unaware) the sale of the Caernarvon Property on 24 July 2019 for $2.4 million was the best evidence of value (noting that the sale was for the 37 hectares inclusive of the Homestead and outbuildings, excluding the Lot 10 area of 3.24 hectares on which the cold storage and packing complex (and other office buildings) was situated). It is noted that Lot 10 sold for $2.2 million as at 24 July 2019 (Question 1).
  4. Second, as to the retrospective value of the land and improvements on the hypothetical basis as if none of the renovations after 29 April 2014 as described by Fiona had been undertaken but allowing for reasonable wear and tear of the existing improvements up to 24 July 2019, as noted above, Mr Bird valued this at $2 million but said that had the tennis court work not been undertaken he would advise a value of $1,980,000 (Question 2).
  5. Third, asked to comment on any relevant matters in response to Mr Saunders’ valuation of 19 April 2021 (Question 3), Mr Bird disagreed with the title description (noting that this related to the whole original lot not the notional two hectare curtilage); and pointed out that the description of land was very limited and provided no detail of what was encompassed nor reference to it being a notional or hypothetical portion of a large acreage holding. A main point of contention he had was that there was no sales evidence of a dwelling on two hectares (considering land size to be a base starting point for analysis evidence) and he disagreed with the “lack of directly comparable sales evidence” observation on the basis that he considered there were numerous sales that would fall within that description. Mr Bird also considered that in mid-2019 there was a still declining market yet to see improvement (with the effects of the continuing drought, tough rural economic conditions and “no boost or optimism from the Sydney of [sic; or] major capital city markets” (this last being read subject to relevance)).
  6. Fourth, Mr Bird considered it valid valuation practice (though of a strictly hypothetical nature) to select an unsubdivided part of a lot and compare it with sales of entire lots (on the direct comparable sales method), saying that the resultant value does not assume the subdivision is practical or possible or likely to be approved (simply making the assumption that it exists already in the form described) (Question 4).
  7. Finally, Mr Bird considered that there was a considerable value premium included for the working commercial orchard and its associated infrastructure on the land but said that this had no bearing or influence on the valuation task of determining a value on the issue of the Homestead being fully renovated and extended or in its original state (that being a constant in both valuation scenarios (Question 5)).
  8. In cross-examination, Mr Bird became somewhat defensive of his position, asserting that the cross-examiner had not read his report properly (at T 344.42-45) and resorting to evidence as to his habitual practice (when challenged by reference to his statement as to a lack of directly comparable sales) (see at T 335.42-50, 336.1-50, and 337.1-10).

Mark Ellis

  1. Mark Ellis is a real estate valuer and Managing Director of the firm Independent Property Valuations who gave evidence (relevant only insofar as it goes to the defence to the restitutionary claim) as to the market rent or occupation fee for the Caernarvon Property in the relevant period. He was not cross-examined.

Overall conclusions as to the expert evidence

  1. Overall, I was not greatly impressed by the evidence of either of the valuers – in that I considered that Mr Saunders’ evidence suffered from the difficulty that he had effectively valued the Homestead divorced from its location (an approach that Mr Bird accepted was conceptually valid but which produces an hypothetical result). As to Mr Bird, his approach (which I accept is the more conventional approach for the valuation of a property overall), namely to apply a Spencer v The Commonwealth (1907) 5 CLR 418; (1907) 14 ALR 253 analysis, leads me to conclude that the market value of the Caernarvon Property at around the time of its ultimate sale was $2.4 million, but it is difficult to assess how the conclusion is reached as to what the market value would have been but for the improvements to the property. As to Mr Ellis, I have no criticism of his approach but the issue of market rent or an occupation fee ultimately does not arise.

Issues for determination

  1. Turning then to the parties’ submissions as to the issues for determination, I note as follows.

Timothy’s submissions

  1. At the outset, Timothy contrasts the claim made in the proof of debt and the claim made in the Points of Claim in this proceeding, as follows.
  2. The proof of debt expresses a claim to recover advances under a loan agreement in relation to improvements to the Company’s land; i.e., the claim is framed as a debt arising from a contract (which Timothy complains is seeking to recover the entirety of the amount allegedly spent, regardless of its impact in actually improving the value of the Company’s land). Timothy says that such a case would involve finding a loan by Bernard and Fiona, whereas no advance to the Company directly is alleged (all amounts being said to have been paid to third parties).
  3. Timothy accepts that if a payment discharged a debt owed to a third party, such a payment might be accurately described as a loan if it was money paid by Bernard and Fiona at the request or direction of the Company to discharge a liability that it owed. However, it is said that no request by the Company to make any of those payments has been identified. Further, Timothy says that no liability of the Company to those third parties has been identified. Rather, Timothy says that the evidence of Bernard and Fiona suggests that all of the third-party liabilities were contracted between one or both of them or an entity associated with them; and that when they made payments they were merely discharging liabilities that they or their controlled entity personally owed.
  4. It is noted that the claim as now pleaded in the Points of Claim filed by Bernard and Fiona is framed more broadly, it being alleged that at the 16 May 2013 meeting of members it was resolved that:

… if Bernard and Fiona agreed to fund the repair and renovation of the Homestead and arrange for the said work to be carried out and 474 Canobolas was ever sold, the Company would repay the amounts so funded together with interest at a rate equivalent to the change in the Consumer Price Index over the period of the advance.

  1. Timothy says that this “Renovation Resolution” was not mentioned when Bernard and Fiona contracted to purchase the land in July 2019 nor when the application under the Trustee Act application was made; but, rather, was first raised on 15 November 2019 (the day after the second default in completion of the purchasers’ obligations in relation to the purchase of the property). In particular, it is said that this was not raised in 2018 when the brothers were discussing a financial separation through a formal process (with Mr Thornhill).
  2. Insofar as this resolution is alleged to be “binding on the Company” (see at [35]) Timothy says that it is not explained why this is binding if not constituting a contract bargained for with agreed consideration. It is noted that, at [36], it is alleged that there was an agreement whereby Bernard and Fiona agreed to fund the repair and renovations in consideration for which the Company agreed that, if the land “was ever sold, the Company would repay” the moneys.
  3. Timothy says that this both adds to and subtracts from the Renovation Resolution, which was prefaced by “if” (whereas there is no “if” in the alleged agreement; rather, Bernard and Fiona simply promise to fund the repair and renovation). It is said that, properly understood, the Renovation Resolution does not supply a cause of action but is merely part of the history said to have brought into being the “Renovation Agreement” alleged at [36] of the Points of Claim.
  4. It is submitted that the alleged Renovation Agreement is thus inconsistent with the alleged fact of the Renovation Resolution (which left it to the election of Bernard and Fiona whether they would procure any work at all).
  5. Further, it is said that there is a major problem as to the identification of what work Bernard and Fiona were promising to procure and how it was agreed with the Company as to what it would be. It is argued that if, on the other hand, it was a unilateral contract (whereby the Company offered that, if they did the work, it would pay in case of a later sale) it is not clear for what work the Company was offering to pay.
  6. Timothy argues that Bernard and Fiona’s case suffers from the difficulty that, in effect, it means the Company was offering them a blank cheque to pay for whatever they felt like doing to secure their private comfort regardless of the Company’s own interest. Timothy says that there is nothing in the Renovation Resolution which confers on Bernard and Fiona the right or power to decide for themselves what the repairs and renovations would be. It is noted that they “may”, but need not, fund the work, and arrange for the said work to be carried out; but that this is not the right to decide what work shall be done.
  7. It is submitted that no such implication would be drawn where they were personally interested in the matter (and Bernard was a director). Moreover, it is said that, if the work required development consent, the Company as owner of the land would need to consent to the development application under planning legislation (it being noted that otherwise, development consent could not be obtained and the work would be illegal and that it is a normal implication in contract terms that work is required to be performed lawfully if it can be, see Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215; [1997] HCA 17). Timothy submits that this confirms that there was no “blank cheque”.
  8. Timothy also points to the items for payments to the local Council in the claimed expenses, which he says carry the implication that there was a development application; but he says that there was no corporate consent for the Company’s assent to the work to be communicated to Council; and argues that Bernard and Fiona chose to act unilaterally.
  9. It is said that it does not accord with common sense to think that the Company was agreeing to commit itself to whatever Bernard and Fiona thought fit to do for themselves or by themselves; and that it is not reasonable to put such a construction upon the alleged events; and that, if there was any agreement, it remained one that required the work first to be identified and approved by the Company.
  10. Timothy maintains that the better view is that (these being all members of one family) there was no intention by these informal and unrecorded dealings to enter into legal relations.
  11. It is noted that at [37] of the Points of Claim a “Renovation Representation” is alleged (reinstating the “if”). At [45] and [47], it is alleged that Bernard and Fiona relied on the Renovation Representation in funding and arranging for the work, and in the expectation of repayment if the land was ever sold. Timothy says that the Renovation Representation suffers many of the same difficulties as the Renovation Agreement and that reliance thereon could not be reasonable.
  12. As to the evidence, Timothy says that it is improbable that things happened or were said as they are alleged (citing Watson v Foxman).
  13. As to the alleged Accounts Resolution and Accounts Representation, Timothy says that these suffer from the following difficulties. First, that the works are not works at large but the “renovations required” of which “Bernard spoke” at the meeting and that these are not identified. Second, that the statement that “Des advised to keep records of amounts spent” must (if this arrangement is contractual or a binding representation) be a condition of the Company’s liability (since otherwise it is submitted that the Company could not comply with its obligations under s 286 of the Corporations Act). It is submitted that if this is the only formal thing in this resolution, agreement or representation, then there can be no warrant for leaving it out of the terms binding on Bernard and Fiona. Third, that the statement that “the amounts will be recorded and owed to B & F” stipulates a requirement that the outlays be presented to the Company for approval and recorded in its accounts.
  14. Timothy says that this was not a minute at all, and that it was not a record of the Company (noting that it was not kept with the Company’s records and was not shown to anybody else – least of all to the Company’s accountant, who prepared the Company minutes). It is noted that there was no request made to incorporate it into the formal minutes and records of the Company. Timothy argues that if the deal were as alleged there could be no reason to suppress this record (which, I interpose to note, presupposes that it was ‘suppressed’ as such).
  15. It is said that the Company’s annual financial statements (some of which were signed by Bernard) not only did not record these alleged liabilities but also asserted a state of affairs that necessarily excludes their existence (and declared that this was the true and fair statement of its financial position).
  16. In summary, Timothy contends that there was no contract, resolution or representation in the terms alleged; that, if there was any agreement, its conditions were not adhered to by Bernard and Fiona; and that, having failed to comply with the conditions that they themselves propound, Bernard and Fiona cannot now be heard to allege that the Company owes a contractual liability or that they relied on representations made on conditions that they chose to ignore. Further, it is said that, if there was an agreement to pay for renovation expenses, it was performed in a manner that constituted breaches by Bernard of either or both of the profit and the conflicts rules (in failing to keep any proper records in the Company’s accounts so that its true liability could be ascertained and over capitalisation avoided).
  17. It is further said that there was not such a clear and unequivocal representation as could found a promissory estoppel.
  18. As to the allegation at [56] of the Points of Claim as to unjust enrichment, it is noted that unjust enrichment is not a cause of action per se and that there is no allegation in this part of the pleading of a request. Timothy says that the allegation in [56] is unclear and that, if what is here asserted is some equitable claim by analogy with a claim for contribution between co-owners, then Bernard and Fiona would need to submit to an occupation fee and could not claim more than the lower of cost and the increase in value brought about by the improvements, nor could they claim ordinary repairs.
  19. Reference is made to Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497 at [2] where Sheller JA explained the rules as to contribution between co-owners as an application of the equitable maxim that he who seeks equity must do equity. It is submitted that, given that a winding up by the Court is an administration by the Court, such a claim as Bernard and Fiona here seek to make for contribution to conservation and improvement of the Company’s property (under what in their own case was a deal between shareholders) can be seen to be an equitable claim (and subject to equitable restraint). It is said that this is especially so, where Bernard and Fiona have themselves claimed to set-off Bernard’s equity in the Company under the vendor finance arrangement and applications under s 477(2B) of the Corporations Act.
  20. Timothy says that, over the 20 years of occupation, the benefit of rent-free occupation was close to $450,000 (relying on Mr Ellis’ evidence of an occupation fee). It is noted that the difference in value of the land before and after the improvements, as at the date of sale (24 July 2019) is $400,000; and that the value of works disclosed to Council in connection with the Occupation Certificate was $350,000.
  21. As to the evidence of the renovations, Timothy submits that it falls short of cogent and reliable evidence that all of the claimed work was done and paid for at the prices alleged. It is noted that the cost is principally deposed to by Fiona and that her evidence does not prove the figure of $1,050,797.58 alleged in the accountant’s letter of 26 November 2019.
  22. Timothy points to items of renovation expenses claimed in Fiona’s affidavit where there are renovations for which quotes, invoices and payments do not match or where there is some other deficiency such as lack of records. Assuming the higher figure where there is an inconsistency between quotes, invoices, payment or other evidence, Timothy says that, of the $754,840.45 for which Fiona has claimed in her evidence, deficiencies in the record keeping exist for $655,844.61 of that amount, being approximately 87% of the total sought to be reimbursed under the purported loan agreement.
  23. Timothy says that Mr Nunn’s one-line progress claims do not follow any obvious scheme to identify the portion of work performed in each progress claim, nor supporting vouchers. It is noted that the expenses claimed by Bernard and Fiona include substantial amounts for payments direct to the kitchen and joinery tradesperson, the electrician and others whose trades are not clearly indicated. It is said that, if Mr Nunn was the head contractor, these should be included in his contract price; on the other hand, if these other works were outside his scope of works then the project would seem to be overcapitalised and well outside the scope of anything discussed in an “informal chat on 16 May 2013 or whenever it was”. Timothy’s complaint is that the relationship of all these items in the evidence of Bernard and Fiona is obscure and haphazard.
  24. As to [123] of Fiona’s first affidavit, it is said by Timothy that it is highly irregular to be paying cash for renovations purportedly completed by John Nunn for which no invoices were issued; and it is submitted that there is obvious reason for caution in assessing the honesty of Bernard and Fiona given that evidence.
  25. As to [184] of Fiona’s first affidavit, it is said that the costs of landscaping gardens were not a renovation of the Homestead and should not be allowed in any assessment of costs incurred pursuant to any purported agreement to renovate the Homestead.
  26. Further, it is noted that a number of payments seem to have been paid through an entity controlled by Bernard and Fiona (Caernarvon Cherry Company) as expenses on revenue account.
  27. Timothy says that another unmeritorious claim is for the costs of work to the tennis court (which it is said predated the alleged agreement by about ten years). Timothy says that the inclusion of such an obviously anachronistic item shows that Bernard and Fiona are unwilling to confine their case to any genuine claim; and that this must reflect adversely on their personal credit as well as the credibility of their overall claim.
  28. It is submitted that nothing like the sum alleged in the evidence was spent, let alone what was alleged by correspondence; and that it is likely that Bernard and Fiona wished to remain where they were living free of rent and were prepared to spend on improvements for their personal comfort. It is noted that relations between the brothers were strained and it is submitted that it was convenient for Bernard to exercise the independence of doing what he wished on his own terms at his own cost without needing to consult a brother with whom he was not on good terms.
  29. Thus, Timothy submits that the decision of the liquidators to admit the proof of debt should be set aside and that the proof of debt should be rejected. Timothy contends that Bernard and Fiona should pay the costs of all other parties of the Interlocutory Process and the costs and expenses occasioned by the proof of debt and of the consideration given to it by each other party.

Bernard and Fiona’s submissions

  1. Bernard and Fiona’s claim to the moneys the subject of the proof of debt is now put on three bases (although as Timothy notes this involves some expansion of the claim as articulated in the Proof for Debt), those being: in contract; by reference to principles of estoppel; and in unjust enrichment.
  2. At the outset, Bernard and Fiona emphasise the following matters as being of contextual import when assessing the likelihood that the parties (and particularly Bernard and Timothy) entered into the arrangement for which Bernard and Fiona here contend.
  3. First, that the critical events occurred in the conduct of a family business in which it is said that few (if any) significant decisions were formally recorded. Reference is made to the recognition that some imprecision of thought and expression in private family dealings might be expected (referring to Gummow J’s observations in Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363 at 370; and to Herdegen v Commissioner of Taxation (Cth(1988) 84 ALR 271; [1988] FCA 699 at 277 per Gummow J (his Honour then sitting on the Federal Court of Australia)).
  4. Second, that the protagonists are two brothers and (although Timothy has asserted that at the relevant time the relationship between the brothers had deteriorated) Bernard and Fiona point to the fact that in December 2013 the brothers had decided to purchase a further property (in Nancarrow Lane) in their joint names.
  5. Third, that prior to July of 2019 the five properties from which the Bonny Glen Fruits business operated had various owners but that the differences in ownership were not observed in managing and dealing with those properties. Bernard and Fiona say that the main operating company was Bonny Glen Fruits and that where any capital expenditure on those properties was made for business purposes, the outlay was made by that company (Bonny Glen Fruits). It is noted that Bonny Glen Fruits owned the trees on the Company’s (i.e., Caernarvon Canobolas’) land.
  6. It is noted that the family members living in the properties did not pay rent to the other co-owners; and that those others who rented properties on the land paid rent to Bonny Glen Fruits (not to the owners of the relevant property). It is said that both Bernard and Timothy did repairs and renovations on properties jointly owned by others (and Bernard and Fiona refer in this context to work caried out by Timothy to one of the properties – Melrose Cottage – without asking Bernard’s permission, despite the fact that Bernard was a co-owner). Reference is also made to the subdivision of a two hectare portion of “Melrose” (the Nashdale Property) and its transfer to Timothy without payment (as referred to above).
  7. Fourth, Bernard and Fiona point to the practice of Mr Lee, the principal of the accounting firm that prepared the taxation returns, company or partnership accounts and corporate compliance documents for the entities within the family group, once a year to visit the family to deal with the explanation and execution of the said documents. It is said that Mr Lee operated as a trusted adviser in matters connected with taxation and corporate compliance; and it is submitted that (in light of the many errors and misstatements in those documents) it is artificial to suggest that either brother gave any consideration to the content of the corporate compliance documents “or how simple family dealings might intersect with their obligations as directors of the company”.

Contract

  1. As to the contractual basis for the claimed debt, Bernard and Fiona say that a contract was made in May 2013 whereby they agreed to pay for improvements to the Company’s property (the Homestead) in return for which the Company agreed to pay back the amounts expended, with interest, if the Company or the property were ever sold. It is said that no question of lack of consideration arises, since the Company would own the improvements as part of the renovated property.
  2. Bernard and Fiona invoke the principle that, if all the shareholders of a company are present together in a meeting, and signify their assent to a transaction which is within the powers of the company, their decision will be effective, as if a resolution to that effect had been passed at a properly constituted meeting (notwithstanding that those present at the meeting may have thought they were conducting a directors’ meeting and the necessary formalities required for the calling of a general meeting had not been observed as was the case in In re Express Engineering Works Ltd [1920] 1 Ch 466 or that those present may have thought they were conducting a meeting and passed a resolution, but where, in fact, the requirements of the articles or the Companies Act as to notice had not been observed as was the case in In re Oxted Motor Co Ltd [1921] 3 KB 32; In re Bailey, Hay & Co Ltd [1971] 1 WLR 1357).
  3. Bernard and Fiona say that, where the transaction is intra vires and honest, it is valid if all corporators assent, and it does not matter whether assent is given at a meeting of some kind, or without a meeting, and whether it is given simultaneously or at different times and places (reference being made to Parker & Cooper Ltd v Reading [1926] Ch 975; Brick & Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1992) 6 ACSR 464; [1992] 2 VR 279 at 314 per Ormiston J; MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24; Sutherland (in his capacity as liquidator of Sydney Appliances Pty Ltd (in liq)) v Robert Bosch (Australia) Pty Ltd (2000) 33 ACSR 680; [2000] NSWSC 32 per Santow J).
  4. Pausing here, each of the Australian authorities invoked by Bernard and Fiona applies the Duomatic principle in Re Duomatic Ltd [1969] 2 Ch 365 (Re Duomatic) espoused by Buckley J at 373 that “where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be”. As I have noted previously (at [3795] in Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2020] NSWSC 1778), where accounts of key conversations are inconsistent or contradictory, such that the Court cannot be satisfied as to what was said or agreed, this difficulty may intrude in relation to the application of Re Duomatic.
  5. Reliance is placed by Bernard and Fiona on Fiona’s notes of the meeting on 14 September 2012 (see above). Bernard and Fiona argue that the prospect of having the Company commit to recognising the expenditure on the renovations was within the contemplation of both Timothy and Bernard at the time of the meeting on 16 May 2013. It is said that both Timothy’s and Mr Lee’s evidence record discussion amongst the four (Timothy, Mr Lee, Bernard and Fiona) as to renovations and recording the expenditure in the Company’s books; and that, other than to mention valuations, there is no suggestion that Timothy expressed any curiosity about the planned improvements. It is submitted that, given that prior to this time, each of the brothers had done renovations to houses for which they had not sought reimbursement, Timothy could not have expected that what was contemplated was minor (and that the suggestion of the valuations supports that contention).
  6. As to the 16 May 2013 meeting, Bernard and Fiona say that, given what had occurred at the previous meeting, Fiona’s note records a simple contract to recognise amounts spent by them to improve the Company’s property as a debt due to them by the Company. It is said to be the kind of contract routinely made by shareholders and directors who make loans to small closely held companies; and that further terms should not be imposed on the contract with the benefit of hindsight.
  7. Bernard and Fiona say that the informality of the particular meeting in May 2013 on which they rely is unremarkable and was entirely consistent with the way such meetings had been conducted by the family for many years. It is said that neither Timothy nor Mr Lee gave any indication that any further formality or other action was required to make the Company’s promise binding upon it.
  8. It is said that as the property has now been sold, the precondition to repayment has now been satisfied; and the Company is bound to repay to Bernard and Fiona the amounts that were paid by them to fund the renovations to the Homestead together with interest.

Estoppel

  1. As to the invocation of principles of estoppel, Bernard and Fiona contend that the words and conduct of Timothy and Mr Lee conveyed a representation at the meeting on 16 May 2013 that a binding agreement had been reached between Bernard and Fiona and the Company that the Company would repay the amounts funded together with interest and that the amounts would be reflected in the accounts of the Company as a debt.
  2. It is noted that estoppel by representation precludes a party who, by his or her representation, has induced another party to adopt or accept a state of affairs and consequently to act to that other party’s detriment, from asserting a right inconsistent with the state of affairs on which the other party acted (reference being made to the well-known decisions in Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 and Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58).
  3. It is submitted that the representation of an existing agreement was a representation of an existing state of affairs (citing Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 at 432 per Mason and Deane JJ; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 at 398 per Mason CJ and Wilson J, at 415 per Brennan J, and at 459 per Gaudron J; Jorden v Money (1854) 5 HL 185).
  4. Bernard and Fiona say that the circumstances were such that it was obvious that they would (and did) rely on the representation to expend large sums of money on the property in which they lived but did not own. They maintain that both the Company and Timothy knew that they would act on the basis that such an agreement was in place.
  5. It is submitted that, given that Timothy and Bernard are the only two shareholders in the Company and that there will be a surplus (on the winding up of the Company), if the Company and Timothy were allowed to depart from the representation then not only would Bernard and Fiona lose half the money that they put into the renovations but also that expenditure would not form part of the cost base for the Company’s benefit on the sale of the Homestead and accordingly the Company will pay significantly more by way of CGT on the sale (which in turn will reduce the net dividend to the two shareholders).

Unjust enrichment

  1. Finally, as to the claim in unjust enrichment, it is said that Bernard and Fiona funded the renovations to the Homestead in the belief that, if the property was ever sold, the Company was contractually bound to repay the funds so advanced. It is submitted that this belief was encouraged by the conduct of Timothy (the other director and shareholder) and accepted by him in the knowledge that the works were a benefit to the Company; and that, if the Company was not so bound (because there was a failure to satisfy the requirements which determine the existence of a contract), then Bernard and Fiona’s decision to fund the renovations was as a result of their mistaken belief that the Company was so bound. It is said that, to allow the Company to benefit from that mistake (with the further result that the ultimate dividend to Bernard (and Timothy) will be reduced by the increased Capital Gains Tax payable) is unjust.
  2. Bernard and Fiona say that, in the circumstances, the claim is analogous to either a claim for money paid (referring by way of example to Hutchinson v Sydney (1854) 10 Ex 438), being the payment of the various contractors by Bernard or Fiona, or alternatively a claim in quantum meruit, being the non-monetary benefit of the work done in improving the Homestead. Bernard and Fiona say that (even assuming that there was no settled arrangement for accounting for amounts spent by Bernard and Fiona), Timothy expressed consent to the work being carried out in the knowledge that Bernard and Fiona would be seeking recompense. It is said that, as the only other director and member of the Company, Timothy accepted the work renovating the property being carried out at Bernard and Fiona’s expense. In the circumstances, it is submitted that, at the very least, Bernard and Fiona are entitled to recover the fair value of the benefit that they provided to the Company (reference here being made to Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 (Pavey v Paul)). Further, as to the first of those bases, it is said that the fact that the bills were made out to Bernard and Fiona is a matter of form and not substance; emphasising that the work was done on the Company’s property.

Response to the complaint as to breach of fiduciary duty

  1. As to Timothy’s complaint about breach of fiduciary duty in relation to the approval of the alleged loan agreement, Bernard and Fiona say that no such breach is made out. It is said that at the time of the 16 May 2013 meeting, the basic elements of what was proposed were obvious to Timothy (the other director and shareholder), i.e., he knew that what was proposed was a renovation of the house owned by the Company, which would be paid for by Bernard and Fiona, who would reside in the house when renovated. It is said that the advantage that Bernard would gain as a director from the transaction was obvious; and that there was no detriment to the Company which secured a corresponding advantage. Bernard and Fiona say that, at the time of the 16 May 2013 meeting, all of the known relevant facts were disclosed to Timothy and the Company. (Pausing here, what was relevantly not known at that stage was the scope of the intended renovations and the quantum of the costs that would ultimately be incurred.)
  2. Bernard and Fiona point out that those to whom fiduciary duties are owed may release those who owe the duties from their legal obligations and may do so either prospectively or retrospectively, provided that full disclosure of the relevant facts is made to them in advance of the decision (reference here being made to the decision of Gleeson CJ and Heydon J in Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507; [2005] HCA 23 at [32], their Honours there quoting from P L Davies, Gower and Davies Principles of Modern Company Law (7th ed, Sweet & Maxwell, 2003) at 437).

Quantum

  1. As to quantum, Bernard and Fiona concede that Fiona’s evidence as to what was paid when and why was confused and confusing. It is submitted that in some part that can be attributed to the fact that Fiona first embarked on collating all the material when preparing the proof of debt in November 2019. In closing submissions Bernard and Fiona provided a spreadsheet that collated the documentary evidence in the Court Books and said that (without admission that the amounts previously claimed had not been spent), to the extent that an aspect of the claim was not supported by documentary evidence, that claim has been abandoned. The amount as now claimed in accordance with the spreadsheet is to the value of $768,918.86.

Determination

Contract claim

  1. I am not satisfied on the balance of probabilities that a binding contract was concluded at the meeting of 16 May 2013 as contended for by Bernard and Fiona. I accept that it is not uncommon in dealings between family members for there to be a level of informality in their arrangements. However, it is clear from the evidence of the family members in this case that what was being put forward at the September 2012 meeting was the desire of Bernard and Fiona to renovate the Caernarvon Property and that Timothy (far from agreeing to any reimbursement arrangement) was putting forward other options for their consideration such as buying another property or subdividing the Caernarvon Property so that a smaller block could be transferred to them (as had occurred in relation to the Nashdale Property in his case).
  2. In evidence that Timothy relies on as fatal to the case put forward by Bernard and Fiona (at T 175) there was the following exchange in relation to what was said at the meeting to which Bernard deposed at [150] of his affidavit:

Q.     Can you remember anything else that Des said at this meeting?

A.     The only thing I can remember was that he did give us a few options, one was to get a valuation before and after.  And the other one was to keep the receipts and he’d basically he’d put it into financials to, like, and then we’d be ‑ if down the track anything gets, you know, sold or whatever that ‑ or split, that we would be reimbursed at some point, or if not reimbursed like, you know, what’s the word, like they’d be an equalisation, I suppose, something like the words to that affect [sic], and we could be repaid the equivalent of CPI, to the CPI.  Words to that affect [sic], and I’m not 100%, you know, but I know there was a couple of things bandied around and one was definitely to get a valuation done before and after.  And then to make sure we keep the receipts and we could be ‑ we would be reimbursed on the event that we ever sold or whatever, and we could be – he’d take, he’d take the CPI into account.  That’s about all I can really tell you about that.

Q.     These were options for you to consider and talk about amongst yourselves and decide on, is that it, if you wanted to?

A.     Correct.

Q.     You didn’t ever come to a definite decision about any of them, did you?

A.     Well, we were waiting for ‑ no, you’re right, no

  1. Bernard, quite candidly, accepted that he did not have an independent recollection of the meetings set out in his affidavit (see for example at T 172). For Timothy, it is said that in the passage set out above, Bernard accepted that there was no consensus at the meeting at which it is alleged there was (and Timothy says that this is an unequivocal concession fatal to the case put forward by Bernard and Fiona).
  2. Fiona’s evidence (see from T 99ff) of the conversations at the relevant meetings is also said to involve a fatal concession (at T 102). Timothy says that the cross‑examination at T 99-100 established that the discussion (as to the renovation work) was not at the first meeting (because that was the meeting where Timothy suggested that they look at the option of buying a property somewhere nearby). At the second meeting, attended by Mr Lee, Fiona’s oral evidence was that “[she and Bernard] brought the subject up again about the renovation, and Des said to keep a copy of all our expenses”. Fiona did not recall a response to that from Timothy “[e]xcept he didn’t object to it, and yes, so he didn’t object”. Fiona accepted that, while the discussion was going on Timothy was looking through papers and signing papers (saying that there were always lots of papers to sign) but she was firm that Timothy had stopped and heard the conversation.
  3. Asked about what Bernard had said at the meeting about the work, Fiona said (T 101.20) “That we need to renovate the house. We did some minor renovations prior, and we need to do some major renovations now; the house is dangerous and cold and we’ve got three little kinds. And we were not looking for reimbursement, we just want it acknowledged”. Asked whether it was the same meeting at which Mr Lee said that money spent for renovations would have to be put in the books of the Company, Fiona said (at T 102) “No, that – Desmond said that at a prior meeting, prior”; and that was the first advice from Mr Lee.
  4. At T 102, there was the following exchange:

Q.   The first advice from Des Lee wasn’t the end of the matter because, at a later meeting, Bernard said, “We’ll be responsible if we over capitalise”, is that the sequence?

A.     Des and Tim requested that we got some valuations done before the renovations and after the renovations.

Q.     That told you, didn’t it, that you did not have agreement to recoup whatever you’d spent, is that right?

A.     Well, it was our money going into the renovation, yes.

Q.     You had no understanding that you would be entitled to recoup every dollar that you spent, is that right?

A.     We were asking for just what we put into the place to be recognised, we weren’t asking for reimbursement.

Q.     You accept, don’t you, that there was no promise by the company to pay you whatever you spent on these renovations?

A.     And we weren’t expecting it at the time, we didn’t expect that we’d be going through this process.  We were happy to put our own money in to a very old house, with three little kids, to make it comfortable for us.

Q.     It’s true, isn’t it, that this was all so long ago that you can’t remember the precise order of the events of these discussions about the renovations and how the expenses might be recognised?

A.     Well, we’d worked the time – I’d worked the timeline out plus the discussions that were had, I was very ‑ making sure that before we moved a brick that we were going to be recognised for our personal money, a lot of my parents’ money went into it as well.

  1. Timothy argues that the above evidence is fatal to the concept that there was a loan (it being Fiona’s evidence that they were not looking for reimbursement but rather for recognition of the moneys that they were going to be putting into the property). To my mind, this is the real nub of the problem – that Bernard and Fiona were (quite understandably) wanting to be sure that their monetary contribution to the renovations would be recognised in some fashion (i.e., that they were not altruistically looking to benefit the Company for its own sake). However, what is not clear is as to how that would be achieved. In other words, Bernard and Fiona were not seeking (or expecting) reimbursement as such (and recognised that they would have the benefit of occupation of the property with the improvements) but expected that ultimately if the property were to be sold there would be some sort of adjustment between Timothy and Bernard to reflect the contribution they had made or the value they had added to the property. What is not, however, apparent is that this was made clear to Timothy in such a way that would now bind his conscience, let alone that he agreed to it.
  2. I accept that at the 16 May 2013 meeting there was a concern expressed by Bernard and Fiona that their expenditure of funds by way of renovation of the Homestead (assuming that were to occur) should be “recognised” in some way (so that the benefit of the input of those funds would not be lost to them). However, it was not clear that any agreement was reached as to how that recognition was to be achieved; and to my mind the concept of “recognition” of their expenditure is quite inconsistent with a loan agreement having been concluded. So, too, do I consider that the idea of before and after valuations (so that there be no over capitalisation of the property) is inconsistent with a loan agreement having been concluded.
  3. I accept that from a CGT perspective the keeping of receipts would have relevance (as may the valuations of the property before and after renovation) but in essence this was advice from an accountant as to how to document or prove one’s expenditure. I am not persuaded that statements by Mr Lee were representations binding on the Company. Rather, it was Timothy’s consent that was necessary in order to commit the Company to an arrangement whereby funds expended on renovations would be treated as loans repayable to Bernard and Fiona if the Caernarvon Property (or Company) were to be sold.
  4. I consider that the concept of recognition of the moneys expended by Bernard and Fiona was thus more consistent with an arrangement whereby (on a sale of the property) they would have the benefit of the value added to the property by those renovations, not that the expenditure would be reimbursed cent-by-cent from the Company. The notion that Bernard and Fiona were being given a blank cheque to spend what they liked on the Caernarvon Property is implausible.

Estoppel

  1. The principles of estoppel (both promissory and proprietary) are well-known and I do not propose here to repeat them (see the well-endorsed judgment of Brennan J, as his Honour then was, in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7 at 428-429, those elements being said to be a useful check, though not to be applied in every case in a mechanical fashion (see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] per Gleeson JA, Beazley P (as Her Excellency then was) and Leeming JA agreeing; and see DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 at [47] per Meagher JA, Macfarlan JA agreeing (DHJPM)). Again, I do not accept that there was any representation to the effect that Bernard and Fiona were to be given a blank cheque. Timothy clearly wanted acceptable valuations to be obtained and did not agree to those that had been put forward. I am therefore of the opinion that the estoppel claim is not made good.

Unjust enrichment claim

  1. As to the unjust enrichment claim, I accept that this is not a cause of action per se. Rather, restitution, on the basis of unjust enrichment, will be available only where a recognised ‘unjust’ factor has been established (see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [150]-[151] per the Court; Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 at 673 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 at 379 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ). In Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635 (Lumbers), Gummow, Hayne, Crennan and Kiefel JJ stated (at [80]) that “where one party … seeks recompense from another … for some service done or benefit conferred by the first party for or on the other, the bare fact of conferral of the benefit or provision of the service does not suffice to establish an entitlement to recovery”.
  2. There was no request made by the Company to bring this within a quantum meruit type claim. Nor does this fall within the notion of free acceptance (which is in any event not a notion adopted with enthusiasm in English and Australian law – see Lumbers at [75], [80] per Gummow, Hayne, Crennan and Kiefel JJ; Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 at [192]-[193] per Heydon JA). In Lumbers, the plurality observed at [75] that:

None of the terms, “benefit”, “acceptance” or “expense”, can usefully be defined or applied without deciding whether attention is to be confined to the party who is identified as conferring the benefit and the recipient of that benefit, or account must be taken of the legal relationships that exist between one or other of those two parties and some third party or parties in relation to the events and transactions said to constitute conferring a “benefit”, its “acceptance”, or the incurrence of expense.

  1. The plurality went on to cite the remarks of Bowen LJ in Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 at 248:

… The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will.

  1. As to the issue of acquiescence (which has troubled me since it is clear that Bernard and Fiona considered that they would be recompensed in some way for the moneys they expended or at least that this expenditure would be “recognised”) the difficulty I have is that Timothy has not been shown to have had knowledge in advance of precisely what was proposed (and by the time it is suggested that he saw the renovations or the extent of the renovations it was effectively too late – the works had been undertaken). The relevant development application and building contract documents were signed on behalf of the Company by Fiona (who was not a director) and Bernard – and there is no suggestion that they were brought to Timothy’s attention.
  2. Moreover, I cannot see that there was any acquiescence in ongoing works from time to time (nor would it extend to earlier works such as those on the tennis court). This is to my mind a case where the parties seem to have been at cross purposes but that does not mean it is unconscionable for Timothy now to deny that the Company is bound. Rather, I see force in the submission that the expenditure that Bernard and Fiona chose (without consultation as to amount) to incur in relation to the renovations should not now be foisted upon Timothy.
  3. Even had the claim in unjust enrichment been made good, there are real issues in my opinion in relation to the evidence of expenditure. I do not suggest any fraudulent concoction of invoices (as I have already made clear) but there are real difficulties in establishing precisely what was spent on what items of renovation. If unjust enrichment had been made good then this would warrant relief to require Bernard and Fiona to be compensated for the value which they added to the Company’s property (as realised in the sale price) not recompensed for each cent they spent on the property. The unifying concept of unjust enrichment is the obligation to make fair and just restitution for a benefit derived at the expense of another; accordingly, the relief must be commensurate with the benefit obtained and must be “fair and just compensation” (see Pavey v Paul, 256 (Deane J)). Moreover, not everything which was expended on the property seems likely to have increased or added to its value – light fittings for example I query whether they would be seen to be improvements as such. Furthermore, I am not persuaded that the value attributed by Mr Saunders on the improved value of the property is reliable.
  4. Had I considered that the unjust enrichment claim was made good I would not have considered that a set-off for breach of directors’ duties was made out (since on this hypothesis Timothy would have acquiesced in the conduct or otherwise acted so as to make it unconscionable for him complain about a breach of fiduciary duty on Bernard’s part). Nor would I have considered that an offset for occupation fee was warranted (since it seems to have been contemplated that family members would have the benefit of occupation rent free – as did Timothy – irrespective of amounts paid on improvements or renovations). However, what the evidence as to the occupation fee does indicate to me is that ultimately Bernard and Fiona have had the benefit of occupation of their home with the benefit of the improvements such that the detriment to them of having had to pay an additional amount referable to the value of those improvements in order to acquire the Caernarvon Property on the separation of the jointly owned assets is not as severe as might otherwise have been thought.
  5. Moreover, to the extent that the outcome is perceived within the family to be inequitable to Bernard and Fiona, there is presumably scope for their parents to address this in some way (though I accept that this involves an element of speculation).

Conclusion

  1. For the above reasons I am persuaded that Timothy’s claim should succeed and that the proof of debt should be rejected. (Had it been admitted it would in any event have been for a much reduced amount – in the order ultimately of around $400,000 – see T 371.1-4.) I therefore make the following orders:
  1. The appeal be allowed.
  2. The liquidator’s determination to admit the proof of debt dated 15 November 2019 submitted by the second and third respondent be set aside and the said proof of debt be rejected.
  3. The second and third respondents pay the costs of:
  1. the applicant and the first respondent of and incidental to the amended interlocutory process; and
  2. the applicant and the first respondent (including liquidation costs, expenses and liquidators’ remuneration) of and incidental to the submission, consideration and determination by the liquidators of the proof of debt dated 15 November 2019 submitted by the second and third respondents.

**********

Amendments

07 April 2022 – Amendment to representation on coversheet

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 07 April 2022

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Many R’s Podcast – S1E8

Transcript

rogues rascals receivables rorts rip-offs receivers real estate agents and much much more this is the many r’s podcast season 1 episode 8 our final episode for season 1 my name is mark smith from dc partner solutions give us a call 1-300-327-123 or contact us chat with us online or use our instant chat tools www.dcpartners.solutions/podcast

well in this episode we’re having a review of 2021 we’re going to see how many R and where R they now for some of them some of the special R’s we’re also gonna have a look ahead at season 2 so what is ’round the corner

well where do we start a recap let’s start with me personally been a little gap between season 1 episode 7.5 and season 1 episode 8 which is today and i’ve had quite an adventure our last episode was on the 15th of september and on the 1st of october i had a huge huge awakening moment and let’s just have a look this photo is a photo of my heart contrary to popular belief there is a heart in there and this is what your this is what a blocked artery looks like and we’re just gonna go and have a look now at an unblocked one and wow this is a stand i actually had a heart attack on the 1st of october and that this missing tree trunk here this very faint line is called my left anterior descending artery and you can see just the tiniest bit of blood sort of getting through and that was quite a crisis so i’ve been i finished my studies in june on my sister’s birthday 16th of june 2021 we moved house on the 28th of june 28th maybe 27th and and took up residence covid the shutdown sydney went into six months of shutdown more or less or five months or however long and i graduated i i elected to graduate in in absentia on the 6th of september for my juris doctor and on the 1st of october i get a very nasty dose of reflux i thought and i can assure you mylanta and those sorts of things did absolutely nothing i i truly thought i did not know i was having a heart attack i thought i had an ulcer or a a dose of reflex or something but turns out no there was a a blocked artery and a very important artery left anterior descending it’s called the widowmaker so i i was gonna drive myself to hospital and good thing well i got my my what i really thought it was just reflux so none of the pains in your in your shoulder so for anyone that’s watching this just you know apparently it felt like a burning reflux right where my where most people’s heart is so i i took myself off to a hospital and within a very very very short period of time i’m talking 20 minutes they’re putting a stent into me so restoring the blood flow and i i would like to i’ll just show you right here that little dot there that’s that’s a scar no no big chest openings they go in through this tiny tiny tiny tiny opening there and i i do have bruises everywhere now unfortunately i i’m on thinners and all sorts of stuff so i i bruise terribly now but i’m alive and i’m very extremely grateful to wonderful doctors who put a stent into me very very quickly and i spent 5 days in hospital so where are they now well sorry where’s our year in review well our blog has actually been on holidays so i had several days in hospital no visitors due to covid and not even my darling wife so i i have great sympathy for those that have been isolated or doing it hard and i feel like i’ve i feel much better since the heart attack i do feel better we’ve this blog has been actually on something of a holiday and well we have decided to at least wrap up season 1 and give you a look at we’ve had plenty of time to think so not everyone has been pleasant to deal with in the aftermath and we’re going to talk about some of that and in this particular episode we’re going to look at where R they now so that’s a wrap on the personal so a number of people said well where’s our blog gone? well come the 1st of october all the nasty letters i had some of our some some of R’S even texting me on holiday i’m texting me in hospital on the very day i’m having my my heart attack they’re texting me and oh dear so anyway we decided to give our blog a bit of a rest for a couple months well you can be sure that not not very many of these opponents have have seen the LIGHT let’s put it that way so some of the blogs will be reintroduced and well here we are here’s our farewell to season 1 so we’re we’re still thinking about all the issues the Blog’s been on holidays but many people have asked well where R they now so um

i i won’t touch on COVID but it has been obviously a very difficult period for many australians and a lot of people that i know as well i can’t cut it i i can’t go past christmas 2021 without saying well i think i think i might i think i’ll make hakan’s his visit with in her majesty’s company i think it’s actually over i think he’s out of jail so i mean that’s that’s where R they now. 131MVR that stands for 131 mona road st ives. and that where where is it now it’s in liquidation and look i’m hearing that there’s there’s big moves a’foot … the liquidator i know i continue to be owed thousands of dollars by that project and well i i and i appointed the liquidator with the assistance of the supreme court of victoria a man called gavin moss and chifley advisory was appointed liquidator well i’m i’m hearing that the liquidator we held public examinations on of the directors of that corporation back in about february or march of 2020. well look i’m hearing that the liquidator has found that the directors and macarthur projects let’s put it this way the director sorry the liquidator wants something like between 7 and 12 million dollars of the company’s money back so the liquidator is looking to the directors and to a company called macarthur projects now i was there i was actually there in the court in the supreme court of new south wales it was actually in the federal court i think i think it was in front of a registrar and you know two days were set aside for public examinations and i was there and one of the questions was okay so you owed a latrobe 7 million dollars is that correct yes that’s right and you repaid that you did yes that’s that’s correct how much did you borrow to repay back the 7 million and these are words the effect and this is all in the public arena so in open court it’s fine for me to discuss it how much did you borrow to pay back the 7 million 12 12. you borrowed 12 to pay back seven yes why’d you do that well i’m just paraphrasing here this is not why did you do that i don’t remember what did you do with the other five don’t recall i mean these are the sorts of these are sorts of questions that we’re at so i mean the liquidators the liquidator has been sitting on this transcript for 12 months or 18 months or whatever and he’s now calling that in well you didn’t need the 12 you only need 7 you borrowed the the company went down the toilet the project 131 mona vale road st ives. did not get finished now exactly whose fault that is i’m not saying whose fault it is but that’s where are they now on 131MVR now let’s have a talk about our other this this whole collective of mates craig adams bargo developments now they’re they’re both in liquidation craig’s in bankruptcy ralph paligaru oh dear one of his companies is in liquidation i put that down that was called dural alliances well mohan kumar he recently had a brush with the torrens assurance fund and lost justice darke we talked about that extensively in episode season 1 episode 7.5 john mahony was his lawyer and unfortunately shot down shot down now let’s let’s have a look at a few files so for the rest of them where are they now well let’s have a look ralph paligaru he’s suing garry steinberg ralph suing garry steinberg and reliance leasing in the supreme court of new south wales now this is the most interesting case because it’s gone precisely absolutely nowhere nowhere so is it a fake lawsuit i mean

you tell me let’s just explore this just a tiny bit more the question is this a fake lawsuit like is this a good question let’s have a look at let’s have a look one of the basic requirements of a lawsuit is the solicitor they’ve got to sign it they’ve got to sign it okay and john mahony is a lawyer he’s been a lawyer for 40 45 50 years i don’t know long long time john money hasn’t signed this document and john only actually has to the any lawyer whoever acts has to sign this signature of legal representative look i mean it’s right there in front of you signature plaintiff plaintiff’s solicitor i certified that under clause whatever that another there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success

that is why john mahony needs to sign this to say okay we’re not here to waste the court’s time well he was the court’s time i and john mahony putting his signature on a piece of paper to say we’re not wasting the court’s time okay well that that signature didn’t happen on the 2nd of march last year now i think that’s that’s coming up to 10 months is that right 10 months 10 months it hasn’t been signed 10 months have gone by and what’s happened with this case well i’ll tell you nothing nothing has happened so this is some correspondence now this is this is a court document this is a court order this is all public on the 7th of december the court ordered the court ordered order this matter is listed for directions on the 10th of february so so much so much has occurred since since it was listed on the second of march that we need a break i mean we’re just so productive so we’re gonna we’re gonna push it out to 11 months there so 10th of february is more than 11 months since it was filed and what’s happened nothing nothing nothing nothing so and and why has nothing happened now who are the parties let’s just remind ourselves who are the parties so we’ve got ralph and reliance leasing parties ralph ignatius paligaru plaintiff, defendant reliance leasing so they’re the parties and and the disputes between them so you would think that that has to be resolved between them but no i don’t know so these aren’t my words these are the words of john mahony and tim horne was my lawyer okay just let’s just refresh tim horne signed this consent judgement on behalf capacity solicitor defendant consents yeah defender consents ralph and amreeta consent consent judge that’s why it’s called a consent judgment it’s judgment by consent yeah we all agree we’re consenting

yet i’m not even a party so why does tim horne say and and john mahony agree what do they agree this is on the 7th of september december 7th of december requests submitted by tim horne for four for me nope no no four reliance leasing the case paligaru versus reliance leasing the request the request is that the matter be listed for directions in february reasons reasons ah the intended settlement of this matter has got nothing to do with me i’m not even a party has been frustrated by a third party

by a third party who’s going to get nothing out of it absolutely nothing the third party’s frustrated this so remind ourselves this authority was to pay to pay me no no no so my company gets positioned at the loan on the first of september 2017 there’s this elaborate pea and thimble trick whatever you want to call it maybe it’s not a trick maybe it is there’s going to be a dispersal from reliance back into the why do why does reliance have to take money out of this pocket and stick it in that one why do they even have to do that well because we’ve got i mean we’ve got a deed here we’ve got a deed of settlement all the fights they’re now over and we’ve solemnly sat down we’ve resolved their differences yet mark smith is now frustrating things how’s mark smith frustrating this not even a party we’re instructed that there remains a possibility that this that this will be resolved shortly and in light of this so i’m just telling you it’s christmas eve if someone wants to resolve this well you know well they’re probably going to have to do something about this that’s you know if you want to p if you if you owned a piece of property and called this debt and reliance leasing is proposing how about we pay you nothing yet yet tim horne tim horn’s a very intelligent man he can go off to the court and say it’s mark smith’s fault because he’s frustrating things i would say that there is well he’s we are instructed there remains a possibility that this will be resolved shortly yeah pigs might fly unless unless a hundred and five thousand dollars it lands up in my pocket plus the interest or you know whatever then the court’s time has just been completely wasted by these two very intelligent people called tim horne and the other party to this is john money they’re both lawyers and and their clients pigs might fly we’re instructed that there that there is a possibility this will be resolved shortly

so that that’s addressing whether this loan is real now we’ll go back and we’ll look some more into this john mahony great lawyer okay he’s handling this he’s running the show he’s he’s the plaintiff’s solicitor and we’ve got ralph ignatius paligaru suing reliance leasing so let’s have a look at this summons and this is where are they now i’m just saying this is where they are i’m not making any judgments i’m just saying this is where they are relief claimed a declaration that the loan agreement of the 26th of may is valid and enforceable so john mahony is after declarations what is the loan agreement of the 26th of may well i’m glad you asked here’s a copy and this is

this is a document to

effectively recycle money so john mahony is after a declaration that this piece of paper is actually valid i mean when you when you start with the assumption that if we sign this piece of paper it’s valid so why would it be invalid

is it is it a mirage i don’t know so the supreme court of new south wales is its time is being taken up and vast money is being spent to determine if this is some sort of scam or mirage or if it’s a declaration that that it’s valid and enforceable ah so the borrower wants a once a declaration from the supreme court that this loan is enforceable but hang on that’s the borrower saying that the it’s a loan and it’s an enforceable loan against the lender well hang on it’s usually the reverse it’s usually the the the lender saying oh hang on we want a declaration that ralph is the money but no no no no this is and so we’re after a declaration that it ought to be specifically performed an order that the defendants specifically perform a carry into effect the loan ah so give us the money give us the money

so okay this is interesting isn’t it so we’ve got this i won’t go into the details because it’s confidential but there is a deed and all the parties on the 11th of march 11th march yes two and a half months before this date they’ve had a big dispute and they agreed to sell okay fine but so hang on the parties dcp litigation reliance ralph and his wife okay well that’s interesting so let’s have a look at the parties on this the summons who are the parties oh well there’s only ralph and reliance

now this is interesting this is normally something that you normally you file something you normally have to sign it you put it in the supreme court where’s the signature i mean can you see it there anyone so it’s an unsigned document who are the parties okay this is ralph and reliance so on the 11th of march all the parties agreed to settle okay right and then on the 26th of may

there’s this agreement to recycle money but hang on didn’t we just settle i mean it gets it gets you know stranger so eleventh march we have this agreement and it and eleventh of march oh i got john mahony ‘s signature on this document for ralph and everybody so everyone agrees if we don’t do what what’s what was agreed to be settled well you can go and get it you can go and get a judgment so this is a consent judgment we consent that if we’re going to do all these things that we agree in may hey march and if we don’t then you can go and file this and and they give us the consent judgment upfront signed by john mahony and later it’s it’s it’s signed by the same people tim horne reliance leasing now he happened to be my lawyers as well and it’s so we jim signs this he was authorised to do so and he was instructed he was given a written instruction by reliance leasing on the third of july let’s go ahead and get this consent judgment because this deed it hasn’t worked out but hang on ralph is seeking specific performance of a loan that you must lend me money but i’m in great of this but you must lend me a hundred and five and a half thousand dollars and what to do is ralph want to get these hundred five thousand dollars no no no no no no here’s the authority just take that from one pocket and stick it in the other i’m in i’m going to the supreme court to force you to take money out of this pocket and put into that pocket wow i mean are you confused what’s the point of all this yeah like it does seem like a bit like smoke and mirrors so it’s it’s a very i mean this is a loan by the way loan 1899

now let’s let’s go back in time to the first of september 2017. one eight double nine oh there you go 1899 so this is a loan that he doesn’t even that ralph wants a order that reliance specifically for form to take it from this pocket and stick it in that pocket but on the first of september 2017 here off reliance leasing this is first of september dear ralph reliance leasing hereby gives you notice that they no longer own the debt ah so where are they now that’s this is a this is some sort of elaborate pea and thimble … something maybe i don’t know reliance leasing gives you notice that they no longer own the debt and that all of it all absolutely you know all all its rights title and interest under the loan agreement guarantees securities it’s giving to my company absolutely absolutely oh there’s the magic words and it’s the loan agreement of the 18th of july and Ralphs got a copy this because i sent a process server in september 2017 i’ve got an affidavit of service that ralph was served this document it’s only two pages but ralph neglected to acknowledge it but ralph was served and he’s now saying well in in may of 2020 26th of may 2020 a debt that was the subject of this settlement dude that involves the replacement it’s called the assignee ralph is now seeking declarations not against me that the reliance leasing must take their own money out of their own pocket and shove it in the other pocket and not give any of it to the to the actual owner so if you were the if you’ve spent four years from 2017 through to 2021 pursuing a hundred thousand dollars and then you sign these deeds and you don’t actually know about this this is this happens all behind your back and then on the 17th of july your lawyer who happens to be reliance’s lawyer yeah they agree well none of these things that were supposed to happen under this debate happen so let’s go and enforce our judgment it’s it’s it must be it must sound very puzzling must sound extremely strange so that’s that’s where ralph is he’s not suing me he’s suing Garry steinberg he’s suing reliance and he’s saying you must you must lend us this these aren’t my words these are ralph’s words we can have a look ralph is sworn   an affidavit so that’s sworn on the second of march and this is all these are all his words um

long story long story but maybe what ralph is saying is that during the there was a meeting that i wasn’t that i didn’t attend but i didn’t even know about during the meeting i ralph had a conversation with mr steinberg to the effect ralph this this is a loan agreement which will refinance the original loan well hang on the original loan oh this one that you you signed over to me yeah yeah that 1899? yeah 1899. the affidavit and this is ralph sworn i wasn’t there i don’t know this is what ralph squares has occurred ralph this is the origin this is a loan agreement which will refinance your original loan i’m prepared to agree to refinance that loan in full in the sof a hundred and five thousand five hundred dollars that’s all you need to pay off the loan say to me paid to Garry steinberg reliance ralph oh so despite smith having taken over the line yeah yeah that’s right smith took it over when did you take that over let’s just refresh yourself first of september 2017. this is what ralph swears so despite smith taking over the loan he will arrange for smith to take no action under the deed that signed in large such that once i signed this agreement all previous agreements relating to the original loan will have been replaced by this agreement now this is a two-party apparently this is a two-party agreement i’m not one of the parties and i think what he’s i think what ralph’s getting at here is Garry saying well he’s my agent really nice to know that wouldn’t it so you know if i’ve got anger and with someone and you know where’s that anger now well maybe it’s it’d be like if you went into westpac and said hey my line with the commonwealth bank can you just make it go away i wish i could say you’re an idiot get out i’ll call call the nutshops anyway ralph’s having this conversation with Garry steinberg apparently this is what ralph says the conversation went by so all previous arrangements relating to the original loan will be replaced is that what’s going to happen Garry yeah yeah that is that is right yes that is right i mean that’s fairly clear yes that is right leave it to me i will take care of smith

really i will take okay how’s that going to work i will take care of smith i will take care of smith so in the first of on the first of october when i’m lying there in hospital the tubes hanging at me and stents and you know having a heart attack wow i was being taken care of i’m actually getting text messages by this pair by ralph and Garry oh you know taking care of me I got a i get a christmas wish today today’s the 24th of december i wish you you know i wish you well from Garry he’s taking care with words no no we want we want Garry to take care with money you know cash Garry to ralph this is on the 26th of may also you only need to pay me what you can afford hang on you pay me to pay off the loan to smith and i’ll take care of smith but you only need to pay me what you can afford

minimum 000 so even if you can’t afford a thousand you pay it to me and i’ll take care of smith ralph yes one thousand is about as much as i can pay and i agree that that will be the repayment no i wasn’t there but this is what they swear what this is what ralph says also as you have no income other than the mill in fiji you won’t have to commence payment under this loan until you start making money like this in the middle of covid two years go by and gary’s making giving undertakings apparently for me

and then the timber mill suddenly blows over in a cyclone very very tragic a lot of destruction so you know i think what gary’s saying here is you don’t have to worry about making any payments i’ll take care of smith yes Garry i agree i will commence payments as soon as the mill starts making money from me and of course the mill’s destroyed so so ralph is forever led off this agreement apparently and i wasn’t even there i wasn’t there and i agreed somehow through Garry steinberg my agent that’s that’s apparently how it all goes so ralph is seeking declarations that this is valid that Garry must remove money from this pocket and stick it in that pocket and that makes mark smith go away despite that so this is on the 25th of 26th of may but in july of the same year last year Garry tells his and my lawyer tim Horne yep sign now this is what an election looks like when you sign something like this and then you file it in the court you have elected you’re never going back on it so are you getting the gist of what i think of Garry steinberg what i think of

what i think of and how i now view these notices of assignment and it’s and how i feel about being taken care of in this way i i hope that tells you where they R now okay we’re going to deep dive in season 2 deep dive and when i say deep like it may be a series of dives we may i actually think that there’s a lot here so we’re not going to get into this in huge detail today but we’re just going to quickly have a look at westpac we’re going to have a look at a couple of more things to do with Garry reliance mahony that whole mess

we may come back to 131mvr as that progresses depending on what the liquidator does and so on we are interested and we’re a creditor and this is a fair game andrew gartrell

very long story adam tilly now this is a guy that loaned money to craig adams and then subsequently loaned money to ralph paligaru and that’s not a crime but well we’re going to look at him in season two as well adam tilly now pacific 8 kesinda oh justin hatfield now justin hatfield’s fingerprints were on lots and lots of these documents that were given to adam tilly and look we we we may need to come back and have a look at aqua law i’m very very disappointed with with them and so we’ll just have a look at it now moving on to westpac well what’s we’ve touched on westpac and there are a few things on our blog already there’s a westpac who why a where and how but just in the very briefest of terms how what. what what is westpac about um

there is quite a lot to this there really actually is quite a lot to westpac and we’ll start with these submissions and these are submissions that were given to the supreme court of new south wales i am certainly not accusing the barristers of any wrongdoing but i am saying that someone misled the barristers and so that is the scandal it’s mr ollis had this seemingly magic cheque book that he could write out to checks for two hundred thousand fifty thousand for four hundred thousand and they would just magically magically put money in his account every day and well that’s bad enough but the real scandal and mr ollis did not go to jail so he was not convicted of any fraud he wasn’t even charged with any fraud

so no one’s accusing him of anything although he did write cheques if we go now to let’s have a look at this individual this word individual only appears once in this document and it appears in paragraph 38 and it says that it is clear and this is what i’m saying the scandal is it is clear on the evidence so this is what the barristers are writing is clear on the on the evidence or at least the evidence that the barristers have seen so if they haven’t seen it well they’re not misleading anyone but if they were not shown it that’s what i’m saying may well be the scandal it is clear on the evidence that the bank made these payments well they certainly made payments and we’re going to show you the bank’s statements in a moment and that and that no individual so that’s fairly clear no individual within the bank knew so maybe the computer knew but they’re saying these barristers in their submissions to the supreme court say that no individual ah within the bank okay so was that someone outside the bank that knew this is well that’s interesting no individual within the bank so that does not mean that individuals outside the bank didn’t know but this is the evidence they’re saying the evidence is that no individuals within the bank knew until so the first individual in the bank knew on the 12th of january 2006 and i am saying that that is false now i’m not accusing the barristers of anything they may well have been kept in the dark or maybe it was an individual outside the bank that knew very interesting no individual  well sorry i keep saying new things until the 12th of january of the drawings being made by alice on his business account so let’s have a look at this business account and see what were those drawings and you be the judge like this this is only a shallow dive we’re going to say i’m saying people inside the bank actually knew

these bank statements are 72 pages long on every single page is his stuff but um

This word invalid now the submission was until the 12th of january 2006. well i’m saying here’s the bank statement seven months early on the 17th of june and i’m saying that an individual in the bank wrote the word invalid and that is knowledge they knew on that day they knew that this was there was an invalidity now that’s not what the the submissions say they say no one knew of the drawings so we’re kind of splitting hairs here but someone knew that there was this invalid replenishment authority and at this point on the 17th of june he was writing checks for forty thousand dollars and there was replenishments happening at forty thousand and eighteen dollars on that day now let’s go let’s march on to page say sixty and i have absolutely so much the the credits there’s 10.3 million dollars going in and out of the account i mean wow i wonder if that was normal and i wonder if anyone was watching this i’m going to say no so this this bloke would come to work every morning and there’d be zero dollars in the account and then by december this is four and a half million dollars just turns up in his bank account in the morning wow that’s a good day 4.1 million dollars he’d write on the 1st of december he wrote a check for 400 000. now if we go back to the the previous one on the 17th of june he’s only writing checks for 40 000 and in six months he’s gotten bolder and he’s now writing checks for four hundred thousand dollars and they’re still being honoured but the evidence the submissions were that no individual within the bank knew until the 12th of january and i’m calling that BS and if we go into the next page yeah this time instead of writing word invalid someone’s written their pco status these are these are bits of evidence of knowledge so again we’ll get we’ll do a deep dive and we’ll get into this in more detail

now let’s go and have a further look at some of the things that we’re going to look at in season 2 and i mentioned steinberg we’re going to have a look at this seemingly innocuous case a national australia bank v smith now i’m not making any of this up and by the way that’s not me that’s someone else by that name this is a case that was heard in 2013 and you know this is this is a public document and ghs that’s that’s a related company of reliance they were part of it we’re going to we’re going to go into this case so that’s something we’re going to have a good dive at

we’re also going to have a look at mr mahony and mr mahony is a is a borrower of of of reliance so Garry steinberg one of his borrowers is reliance and Garry gets a mention in this as well and reliance leasing so this is again this is real this is something that anyone can go to caselaw.nsw.gov.au and put in the name mahony and and the council of the law society took on mr mahony and what did they take him on for well let’s have a look at this they they took an objection to the complaint the solicitor falsely witnessed the signature of this particular person and and who should be there but mr steinberg mr steinberg’s here as well so mr steinberg gets around and it’s it’s i was unaware of some of these things but mr steinberg goes back further with people and the if we jump to this this account this matter of nab v smith well that’s also involves mr steinberg and there’s problems with the signature on documents there as well so these are not my opinions this is not these are factual findings the supreme court or the civil administrative tribunal in the case of the mahony and mr steinberg seems to find his way into you know these situations all the time

andrew gartrell has a problem with the signature as well and Andrew gartrell, i i he knows Garry steinberg as well and adam tilly well adam tilly i don’t know how well he knows mr steinberg although they do know each other and ben and tim horne though well they know mr steinberg mahony knows mr steinberg mohan kumar he’s met mr steinberg and ralph paligaru well the only people here that don’t know each other steinberg knows 131mvr and he’s a creditor of that as well this is you know very troubling

so these are some of the things that we’re going to look at in season 2 there’s going to be plenty more so stay tuned and i’ll come back and we’ll wrap up now

we’ll look in closing thank you so much for joining us in 2021 and 2020 and hopefully you’re joining us again in 2022 we appreciate your efforts we appreciate the messages of support we appreciate the instant chat tools if you have any questions if you have any questions give us a call 1-300-327-123 or come and visit us in the bottom right hand corner of our website www.dcpartners.solutions/podcast

and you can instant chat with us there in the bottom right hand corner if you’ve got any questions at all you want to talk to us you want to send us an email whatever you can call us again as i said 1300 327123 my name is mark smith i’d love to talk to you i’m i’m very keen i’m very willing to talk to anyone anytime about anything so give us a call happy christmas happy new year i hope it’s a great 2022 and thank you again see you soon

Mark Smith Blog – S1E1

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Blogging from Nashdale, NSW – our Orange DCP Solutions office and site.

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Many R’s Podcast – S1E7.5

Transcript

rogues rascals reviewables rorts rip-offs receivers real estate agents and much much more the many rs podcast season 1 episode 7.5 – 7.5 we can’t get all the way to 8 we have to go to 7.5 and we have absolutely breaking news from the new south wales supreme court about our one of our favorite r’s – ralph so stand by welcome to season 1 episode 7.5 if you’ve got any questions give us a call on 1300 327 123 that’s until late or hook up with us on www.dcpartners.solutions/podcast … use the chat tools in the bottom right hand corner thank you 

well welcome this is an unusual set of circumstances this is episode 7.5 this is a follow-on episode from our last one where we talked extensively at the end there about our very good mate ralph paligaru and we happened to run into ralph recently and here’s some some updated photos on on ralph for you but this particular episode is about well a judgment of the new south wales supreme court has literally just come down and it is still hot it is still warm so we’re going to have a look at ralph paligaru john mahony that’s the lawyer or is it mahony i no one has ever explained that to me we’ve got mohan kumar who is sometimes known as Chhota Rajan and we’re going to have a look at he’s a resident of tihar prison in in delhi in india and we’re going to have a look at the supreme court judgment in the matter of mohan kumar and shs well and the registrar general the torrens assurance fund so we can this is a public document and in fact this this has just come out unbeknownst to us we don’t watch these things day and night but someone brought it to our attention that the judgment had just come down on it had come down before we’d actually put out episode seven so we felt it was only right that we updated the record so let’s get on and we’ll have a look at the judgment okay so this is the judgment of the new south wales supreme court and anyone that wants to google this can go to a site called caselaw.nsw.gov.au and just google that and it’s a set of proceedings 2021 proceedings it was heard by justice darke who i have to say i’ve got i’ll make some comments as i go through i think he’s got it absolutely substantially correct he he wouldn’t know some of the very tiny minor facts but but still it’s it’s well worth having a look but look the whole gist of it is the claim for compensation a claim from mohan kumar for compensation from the torrens assurance fund is refused so that’s the decision so we can go through and have a quick look well we can have a long look but anyway it’s a it’s a very extensive document it’s i’m just gonna highlight some of the relevant bits there’s quite a lot and i’ll publish the entire document up on our website www.dcpartners.solutions/podcast i’ll i’ll include some text so you know what to look for but anyway the registrar general of the torrens assurance fund or the landed property in new south wales titles are kept for land and that those titles are kept in a central register called the torrens title register so and when a person loses an interest in land if it’s either by fraud or by some error made by the torrents of by the land and property by the people that keep the titles then that person that suffers loss is entitled to compensation and every time there’s a dealing every time that there’s a transaction involving land okay the registration of a mortgage the transfer when you pay stamp duty and all of that a very small sis collected and it goes into this fund called the torrens assurance fund just in case anything goes wrong so i can say that the trans assurance fund or the registrar general was represented by someone called patricia lane who happened to be one of my lecturers at sydney uni and you can see here the whoa

says here okay well pardon me the plaintiff was represented by patricia lane wow how very very interesting and mr mr mahony was there as well so i’m sorry i got that around the wrong way very very very interesting patricia lane nothing but absolute respect she was a fabulous teacher and unbelievably knowledgeable i might have got that the wrong way around i anyway i assume that this is correct so these proceedings are bought by mohan kumar there has there was obviously no discussions about who mohan kumar is in fine detail but he certainly was the registered proprietor of land at old northern road at dural number 632 old northern road dural and that was if you like the word sold it was sold in may of 2016 by his power of attorney ralph paligaru to a company called bargo developments proprietary limited and i’m just going to sort of these these are public and we’ll just you know talk about these so mankind has claimed an interest in the land as what’s called an unpaid vendor’s lien and i absolutely i met ralph on about the 27th of march in 2017 and he was introduced to me by mr steinberg from reliance leasing and ralph complained he couldn’t sleep at night because he was worried that about worried sick about whether he was going to get paid so when i say this property was sold it wasn’t paid so it was a property piece of land worth 5.5 million dollars which they received only 1.5 million dollars so craig adams is walking around with the title to a $5.5m piece of land having been out of pocket virtually nothing and we’ll have a look we’ll have a look and the money he received he didn’t pay it all to he mortgaged the property and did not pay at all to mohan kumar so as i said in episode 7 that is apparently the fault of the torren’s assurance fund and justice darke did not agree with mahony lawyers and the claim was refused so it’s it’s

we’ll just touch on some of the highlighted points and if you’re really that interested you can download this and read this in in fine detail but it’s justice darke finds at certain times the interest was protected by caveat so the very first thing that that i did i was asked by mr how do i put it i can’t sleep and i said why don’t you just put a caveat on it? so we went and put a caveat on and that was put on about the 27th of march 2017 and that’s how i know when i met ralph paligaru so there it was protected by this caveat some times however during other periods there was no caveat and at that time mr kumar was under the care of john mahony and ralph paligaru so you know precisely why they took them off we don’t know other than what’s in this judgment so we’re just reporting the facts we’ve absolutely there’s no criticisms whatsoever of justice darke or the decision he made and none of this is a you know is a massive surprise but anyway look there was various different mortgages at various different times craig adams the argument is that what the argument was it which didn’t work was that craig adams made use of a withdrawal of caveat form that had been executed on behalf of mr kumar by his attorney mr paligaru ralph paligaru so

and look ultimately craig didn’t pay his mortgage the property was sold by kesinda this is a fact and then there was a huge argument about who got what and i was there so i know it in the proceedings were resolved by way of consent orders on made in july 2019. now i i did actually put up the consent orders in episode 7 and showing exactly who got what and i’ve put here now this is not a criticism of justice darke but i’m just saying the the plaintiff received a total of $527 000 out of 2 million so he was … and he received 500 and this is saying well he actually received 26% of the available funds but that’s not with no disrespect to justice darke that is probably not exactly correct kumar actually received two lots he received 26% but on top of that he received another 9% and who did he give that to he gave that to one of my companies and why did he do that so in fact when you look at these arguments that justice darke talks about and says well hang on i’ve done my calculations to work out whether you lost money or you didn’t and then he talks about causation and who’s to blame in other words who’s to blame for mohan kumar not getting four million dollars or you know two million of the two million and look kumar actually did receive 35 of the available funds so there was two million in something available but he chose to pay he chose to honor an agreement he had with me that where he he actually assigned ralph paligaru actually assigned all of mohan kumar’s interest the whole lot to me and and i had an arrangement where i was going to pay successfully and it turns out that actually the success is 26 of what was available and my cut was nine so when you look at these arguments as we go further down into the document it this is no disrespect to justice darke but he did in fact received more than 26 percent he just gave away nine percent so it was 35 of the available so again absolutely no disrespect the so the plaintiff and so in these circumstances so in these circumstances where he actually got 35 the plaintiff alleges that he has suffered loss or damage resulting from the operation the act and justice darke didn’t didn’t go for that so you know and then it gets into some very long analysis the the loss yeah anyway they’re saying suffered loss by consequence of the registration of the consent casino mortgage so it is true that and i’ve numbered all of these so let’s maybe have a look at these salient facts and these are facts found by a supreme court judge and nothing nothing nothing but respect so absolute fact the the plaintiff mr kumar resides in india well it doesn’t talk about where but or even who he is and actually later on there’s a very curious remark saying well for some reason the plaintiff didn’t appear he didn’t come and give evidence and there you go well the reason he couldn’t give evidence is because he’s in jail so it doesn’t seem that that fact was shared publicly but look here are the here are the passport photos and photos of the arrested person and you tell me if they’re the same person i’m not an expert and i don’t i’ve never been to india i’ve never been to any jails i’ve never met mr kumar it’s just it’s an open secret that’s who he is and no one bothered to share that with justice darke so look the piece of land was as i said 632 old northern road dural and there’s its title particulars ralph sold it i’ve showed you the front page of the contract in episode seven for 5.5 but in fact they received 1.5 was put down and there was a series of arrangements that craig adams was to pay 500 there and a million here and another two and a half and time is of the essence and again this all fits into the argument that mahony lawyers put forward that this is all the fault the fact that there was money lost that’s the fault of the torrens assurance fund and really the taxpayer should be should be coughing up to compensate mr kumar and as i said that was not accepted so the purchase price there number number one two three so let’s just have a look and these are some of the this is under the heading salient facts again not my not my facts these are facts that justice darke the honourable justice darke found so we know on the 31st of may the contract price was 5.5 million only 1.5 was put down but the property was used as a credit card i suppose and a mortgage secured the sum of 2.275 million dollars so 1.5 the fact is the plaintiff received 1.5 million on settlement and whether the other three quarters of a million dollars go well the director of bargo was craig adams so we’d have to ask craig adams but we know that only 1.5 million was ever paid to mr kumar and that’s that so and this is the fact that was the only money that was ever ever paid out of a 5.5 million sale price only ever 1.5 was ever paid so we know that time was of the essence there it is time was at the essence and 1.5 was on on settlement there was after four weeks another half a million dollars was required time of the essence six months later another million dollars and none of this was this contract wasn’t enforced and not only that the salient facts that in may 2016 there was it was hot to the tune of 2.275 but a further a further that’s the kit that i put on there you go i put that on i went into the counter and paid the money and on on or about the 27th of march and ralph could sleep at night then you know so so we know that six months later he mr adams and bargo hocked the the property again there was the initial mortgage was to ar mortgages and then along came in and him now the very first thing i went and did was wrote to him in a name and said stop lending money and stop lending any more money and making mr kumar’s position any worse so literally from that day in march of 2017 they were on notice and they did not and i’ve got copies of the the correspondence i went around that night and you know before six o’clock the next morning in march of 2017 saying oh i i have a habit of dropping the s-bomb sometimes but uh

number one three-quarters of a million went to craig adams’s pocket or somewhere you know and then another four hundred thousand this is still not going into mr kumar’s pocket despite their being a contract despite mr kumar having ralph paligaru on the ground is his power of attorney and on top of that well there’s there’s even more money being borrowed so another 350 000 was was borrowed in august 17 a very interesting date on the third of and then even more so it just goes on and on and on and on and on more and more hocking of this land and again i put in a name on notice of that anyway long long story but there’s more and more hocking of this property going on and in august of 17 even more money was borrowed and you know here’s a full list and i mean i find this extremely interesting there was seven caveats so craig adams obviously well there’s some very harsh findings here about craig adams but there was mr paligaru deposes this is his evidence there were seven caveats in the end seven so seven lots of hocking of money against mr kumar’s interest and mr mr paligaru for whatever reason he had from the day i put the caveat on for mr kumar mr kumar was protected from that point in an m had noticed do not lend any more money he’s in default to mr kumar he has four million dollars and he’s in default and another six yes i think that’s correct another 6k bits on top of the the kb i put on was ripped off and another six were put on so craig is just borrowed and borrowed and buried and borrowed and borrowed and in the end someone said well this is the torrens assurance fund’s fault

justice i didn’t agree with that so i’m with justice darke by the way so ralph further deposes that he was concerned he was concerned i was concerned that there was six more lots of hocking of money and in 2017 now this is after ralph has lifted the cable that i put on mr manny writes to mr adams oh we’re not very very happy here and so you can read this for yourself but this is something i find very interesting paragraph 19. this demanding writes on the 6th of november 2017 i have i have now been contacted directly by the representatives in india of mohan kumar

i i find that very interesting the representatives in india in india so i i i’m curious whether that’s true that’s what it says that’s what the email says i’m curious if it’s true i don’t know i have no idea i’ve never talked to mr kumar ever but apparently some representatives called well i i he says mahony writes i have now been contacted as you’re aware there’s vendor finance as you’re aware you’re in default and you know it goes on now all all along here no response there was no response craig got the email and just ignored it ralph went to fiji some of these things aren’t really relevant but i i am dubious about some of this not of what yeah i’m dubious about the evidence that was given in cross examination mr paligaru agreed that so how did how did mr feligaru sorry how did mr kumar miss out well a cave it was lifted and mr peligaru gave evidence that in november 2017 he gives evidence adam’s according to this email adams knew that the withdrawal form was located in the bottom drawer so of the parker office it’s a long story and you’d have to read it and we’ll send you to sleep if we if we talked about it but paligara gives evidence that before he departed from australia he handed it withdrawal of caveat form in the bottom draw of the desk i used from time to time so craig sorry ralph and craig sometimes shared an office

now credit to ralph justice darke actually says he accepts ralph’s version okay but still rules against them he accepts that this actually happens justice darke accepted that he was told orally on or about the 15th of november you’re only to use this in certain circumstances craig went ahead and used it anyway but i’ll cut to the end let’s

before i get there this is the evidence of of mr mister i’m putting this this is what he says i am putting this which is the withdrawal of kv i’m putting this in this draw do not use it until i have full details of any proposed finance or equity position to be taken to be taken by any prospective partner by any prospective partner or joint venturer with us joint venturer with us

until i have full details of any proposed finance or equity position to be taken by any proposed joint a partner or joint venturer with us so with us so it’s to be there’s an us these are ralph’s own words there is an us and again somewhere in this lengthy document it’s 27 pages long somewhere in this lengthy document justice darke ponders why it was that ralph gave a withdrawal of caveat when

in fact there wasn’t a cave on on the title at that time it was in december and ralph’s evidence is that on the 15th of november he gave he handed craig the withdrawal of caveat but there actually wasn’t a caveat on the title on the 15th of november it was in december so and craig used so craig used that

to remove the december cave it but there was no cave in november so i’m my handwriting here says dubious i’m dubious uh

oh here you go if mr a lie now that really should say question mark if mr paligaru is evidence concerning the signing of the withdrawal of cavity is accepted if it’s accepted the form was signed at a time when the plaintiff had no caviar now justice darke found i mean he accepted ralph’s evidence that it was the honor of that date he did hand craig the withdrawal the plaintiff lodged another one on the 4th of december so precisely why ralph gave this is dubious or curious or it is very puzzling but it is very puzzling but he gave on about the 15th of december the withdrawal of acadia for occasion that hadn’t actually been lodged until the fourth of december three weeks later very curious more correspondence it’s it’s franklin the easy gets mentioned any refinance is also to result in the discharge of the second mortgage over the peligaro home in favor of franklin using holdings anything that you do must be referred to us there’s ian jordan comes in now wonderful friend from australasian property group who are being sued by the liquidator bargo now who appointed the liberator that’d be me the liquidator bargo so when all of this turned to custard i appointed a liquidator and i swore that there was a debt of very close to six million dollars owed to me it once upon a time was owed to mr kumar but courtesy of ralph alegaro on not one but two occasions ralph assigned that collection to me and the six million dollars and that was in july of 2018 and he went ahead and amended that deed on the 13th of november 2018. so precisely again this is this is why i was absolutely certain that this would fail this this argument that it’s the torrens assurance fund’s fault that mr kumar lost all this money it’s his fault it’s the tourist assurance fund’s fault well no it was never even remotely possible that it was their fault because ralph assigned the collection to me and and here he’s on the debt i went to the supreme court of victoria and said hey my company is owed six million dollars by fargo developments and they’re they’ve failed to pay back in in accordance with the terms now we had a look up above let’s just go up above it says he here’s the payment schedule well so time was of the essence so i gave him 21 days and said at a certain point i wrote and said hey you owe us six million dollars by that point with you know or whatever the figure was it was over five and here’s a copy of the here’s a copy of the demand that was was put on fargo they never paid enough thomas of the essence and so they were deemed to be insolvent and so how was it ever possible that mr kumar lost money because of the fault that was caused by the fault of the torrens assurance fund no no the right they didn’t even have standing to go to court mr mr kumar had no standing his his entire loss was given to me into my company to pursue and then mr caligaro obviously thought better of it at some point later and decided oh well that doesn’t suit me to have mark smith collect the money even though he paid me nine percent of the funds which you can work out nine percent of two million dollars about 180 000 so it’s it’s just very puzzling so it’s a long long story and jordan gets a mention ebm now these are craig’s accountants his accounts were a firm at called dbw in um

in north sydney i’ve been to their office late one night the b in dbw was a man called bardela and max mardella and max maximilia maximilio bardella and he he loaned money to he was one of the six people that advanced money his company ebm as distinct from dbw dbw helped with all sorts of manner of wonderful documents in support and all up look there was there’s a long long list of of people that were doubted but i withdraw that there’s a long long list of people that get a mention so there’s as i said there were six caves there’s a there’s a very huge gap this is this i found extremely interesting paragraph 37 three further caveats were lodged on or about the 29th of january 2018. one of these was lodged on behalf of reliance leasing mr steinberg so that’s that’s that’s a steinbeck there and on about the 22nd of february 2018 mahony appears to have become aware of the refinancing so again this is this is something that i do find very very interesting on about the 22nd of february now this is the this is what was put to justice darke manny appears to become aware and he writes manny writes a letter to craig adams now i will say oh we should go and have a look at paragraph 16. this is really very very interesting paragraph 16 it is there is evidence that later in august 2017 mr money was acting for the plaintiff so that’s mr kumar in relation to the proposed development and was also acting for craig evans

so he’s acting for multiple parties and i have in previous episodes i said he’s mr mahony how he was able to manage these and juggle these conflicts or not so much the conflicts but the conflicting interests surely mr kumar has one interest hey i want to be paid and craig adams hey i like this getting free money stuff and i can just use this as my credit card i can keep three quarters of a million then another 400 for me and do whatever the hell he likes so it’s it’s a it’s a really really really stunning thing so 22nd of february mahony writes to adams i enclose a copy of a letter to rely of a letter to reliance from the solicitors for the new first mortgage the existence is of syria the existence so that was considered the existence of a new first mortgage is a serious concern to my client my client’s worried sick he’s in jail in in india doesn’t say that but as as my client has a beneficial interest in the whole of the dural land four million bucks but you just keep adding what he’s saying what he’s trying to say is you just keep adding and adding currently there are nine caveats on the property now

this is this is kind of stunning

on the 9th of march casinda’s lawyers bransgroves kate cooper and name is the senior partner there one such one such document was a withdrawal of kv form that had been signed by mr palgary so according to mr peligaro and the judge believes him okay so according to mr palgary mr palgary who handed craig adams we had a look a little bit a few minutes ago mr peligaro handed craig adams a withdrawal of caveat at a time in the middle of november at a time when there was no cavity on the on the land in in the name of kumar and in paragraph 41 here it’s saying well the mid november 2017 withdrawal of caveat was handed it was used by it was handed up by craig adams on the 25th of january 2018 to to your firm brands groves and and that that form states yes it’s the december this number here is the december cave it so as the withdrawal was signed on the 15th of november for a caveat that hadn’t been put on and ralph had only gone overseas for one week from about the 17th to the 24th of november so for whatever reason ralph never took that caveat withdrawal of kv back and justice darke is critical of that later on and he’s also critical and says well why didn’t you just leave the withdrawal of kavit you went you’re going to feed you why didn’t you just give it to john marty so one must wonder whether john mahony got the entire story i’m finding myself i’m finding myself going to bat for john manny here i’m just wondering so look it’s it’s it’s really quite remarkable he and jordan casinda casinda as on the 9th of march writes a letter cassinder writes a letter to apg to ian jordan and they say well hang on i don’t think you want to i don’t think you want to be behind mr kumar so this is the whole issue about lifting cavities when when caved is lifted we understand from the receiver mr kumar claims an unpaid vendor’s interest in the vicinity of 6 million bucks no doubt these these are the words of brans grabs no doubt your client would prefer not to be behind that claim for a piece of land that’s only worth five or five and a half and and there’s already there’s close to three million dollars already hopped you don’t want to be behind some of the zones six because there’s no equity look this is this is a stunning stunning document here you go this this is one of the curious findings i note in passing that mr paligara gave evidence to the effect that at no time between his leaving the withdrawal in the desk at bargo’s office and march did he receive any communications

about any refinancing he did not receive any communications from mr pelleck from mr adams at no time between march at no time between he’s leaving the withdrawal of kbit form in the desk and in the bargo office and march 18. did he receive any communications from craig arms about any refinancing of the documents that’s the evidence now i i’m going to say justice darke is smart enough to be able to read a transcript of the evidence and that’s what he’s saying he’s saying i wasn’t there okay i certainly was not there and i don’t know i didn’t listen to the evidence that mr paligaru gave but justice darke i know him passing that mr paligaru who gave evidence to the to the effect to the effect so he didn’t actually give direct evidence that at no time between between leaving the withdrawal of caveat and march 18 did he receive any communication so i’m just going to pause it here and we’re going to see we’re just going to have a look at some things all right so at no time at no time between leaving the withdrawal of caveat did he receive any communications from mr adam about the refinancing the dual property at no time up until march so i’ll just jump down to something else that i’ve seen offline curiously on the same day so on the same day another cave it was lodged by the plaintiff so what are we talking about here this was third of april mr mahony sent an email to mr craig adams and keep in mind this is all in the context that mr mahony is saying well it’s the torrens assurance fund’s fault that mr kumar lost money it’s their fault

third of april on the third of april so this refinancing happened on the 25th of january on the third of april justice darke notes on the same day on the same day the third of april another caveat was lodged on by mr kumar so that went on on the third of april and that was recorded that’s this is all public you can anyone can google this egg look up this purchase a copy of that by this caveat the plaintiff again claimed to be the unpaid vendor under this 26th of may sorry 2016 may contract curiously curiously the caveat was apparently signed by mr peligaro as the plaintiff’s attorney on the 30th of january so it’s this continual delay delay delay from the 30th of january to the 3rd of april it’s months here months there in action letting giving craig all this this road so i think you can see where this is sort of coming unstuck but let’s just go back to this other

noted passing that mr paligaru gave evidence to the to the effect that at no time so let’s let’s test this here’s an email now at no time did he receive any communications well that’s different to sending it but did he receive any communications about any refinancing

well here’s an email and we’ll see who sent me this and how did i get it 10th of january now that’s that’s between december and march 10th january john mary wrote craig kumar is not happy with the delay in warriewood settling have you issued a notice to complete do you need do you need my help if your lawyer can’t do it i’ll i’ll just act for you and i’ll keep acting for mr kumar but i can manage all this this is what he’s saying this is ridiculous delay that needs to be sorted mohan kumar reserves all right but hang on he can but if you need a lawyer no command reserves all rights but if you need a lawyer i’m your man do you need a lawyer john john ah 3 54 a.m something’s keeping craig away john please come to the city tomorrow and i’ll reassign property and loan to you

please tell me what time you’re available and i’ll have adam tilley meet us and workout guarantees so all you’ve got to do is guarantee it and i’ll resign so the evidence was at no time palgary gave her the effect of no time between he’s leaving the withdrawal in march did he receive any communications from craig about any refinancing so what’s this adam tilley who’s adam tilley adam tilley will meet you to work out financing guarantees on financing

later that day craig is not my [ __ ] as you put it mr kumar’s rights you know and you keep mortgaging his property ah nine k bits later before you paid for it you keep ralph has signed the transfer transferring [ __ ] so ralph actually had the right to transfer the shares in bargo and and transfer the ownership of the company to mr kumar

therefore he’s in your interest to work to solve the problem now the problem is for you is that not only will you have lost the development value you’re in default of the loans which are secured we’re giving you until 4 pm today the current payout tell us the current payout if you can’t get those figures kumar will will by next monday become the owner and serve lapsing notices

so i don’t know if this is well eleventh mate mate i tried to call you this is going to go pear shape so this is from ralph to justin hatfield who’s justin hatfield oh that’s he wouldn’t be talking about refinancing because just justice darke found at no time was there any evidence he gave it ralph gave evidence to the effect of no time did he receive any communications from mr adams well i suppose this one to to justin hatfield is probably not from but anyway i’m stuck in the middle an asset line who are they they’re money lenders justin hatfield as soon as craig settles warriewood has has to happen in the next 10 days one lender you know cross-collateralize this and that whatever 13.5 million

the current payout figure is 2.7 million dollars to winchester o’rourke that’s tilley uh

at no point at no time the evidence was at no time was there any discussion about refinancing after ralph has those figures kumar will be in a position to refinance general without putting you in default of your loans secured over your property over 88 perfection avenue cross-collateralization is in breach of the sales contracts so a few choice words here the point is he’s he was going to refinance with tilley adam tilley no news warriewood who knows it’s almost a ponzi scheme

and mr hadfield you have facilitated a lot of it

it’s easily resolved once warriewood settles what’s happening with at no point was there any discussion about refinancing ralph ralph wrote what’s happening with tilley refi refinancing it’s fully approved it’s fully approved so the evidence did he receive any communications about any refinancing of the general property

i i’m just not sure whether justice darke saw these communications but they’re there interesting not good enough john mahony’s still on the 11th not good enough client has been waiting months for the mythical warriewood settlement time is up kumar will now register the share transfer well even in april still hasn’t happened also what is the secret about telling us how much people take to free dural of the various blisters kumar will not accept any more delays well apparently he will justin hatfield lumley finance and loans now if this wasn’t about refinancing if this wasn’t about refinancing then you know so it goes on and on and on and on the solicitor is the vendor’s worst nightmare this all comes to craig not communicating and swearing another so there’s craig will lose his family asset liner ruthless mahoney acted for paid on exchange acted against paid on exchange and wants payments so but ralph is organizing the logistics of his daughter’s engagement so let’s see what else there is here’s another email this is to do with maybe not to do with refinancing but this is certainly from craig we’re trying to we’re trying to get as mentioned i have warriewood projects setting on the 29th yet so on the 30th according to justice darke ralph signs a new caveat which he doesn’t put on until the third of april and again all of this is the fault of the torres assurance fund let’s have a look at this one all of these are sent to me by ralph by the way so let’s ralph from ralph to mark that’s me from ralph to mark from ralph to mark 22nd tomorrow tomorrow so this property settled on the sorry the the use of the caveat occurred on the 25th of january and there was communications between

at no point did he receive any communications from mr adams about any refinancing of the general poverty well i’m going to say i’m sorry that on the 25th of january there’s another communication but tomorrow so tomorrow is the 23rd of january this is before before the cave it is used gents mr lalich this is another one the evidence was there’s no communication about refinancing from craig well mr lalich is one of craig’s lawyers

you know so they’re they’re meeting up on ralph is meeting with justin hatfield and justin hatfield this wouldn’t be anything to do with a refinancing would it lumley finance and loans accredited finance broker well i’m you know i am i’ve said i’m dubious about that evidence that ralph has has given to the effect that there was at no time did he receive any communications yet you know this is not a communication about refinancing from justin hatfield who’s a mortgage broker craig adams you know so this is here see you there see you there so as you can see there’s quite a lot to this particular judgment and we’re only up to page six of 27 and it really does go on but i’m just highlighting a few key bits i’ll just return now to this other thing and i’ve said that i am dubious about i’m not calling saying that people are outright lying but i am highly dubious about some of the aspects of what was put in front of justice darke and i’ll take you back to this one paragraph 19 mr mahony on the 6th of november now this is at a time when there was no yes there was no caveat on the land according to ralph’s evidence on the 15th of november ralph then went and put went and handed craig adams a withdrawal of the cave yet that wasn’t on and then in december one was put on so in the evidence this is mr manny wrote to craig adams on 6th of november when there was no caveat and he says and we’ve talked about this just before i have i this is what manny writes now this is important because he says it’s true and i’ll show you i’ll show you something else so this is on the 6th of november 2017. now i’m going to show you something in 2018 that causes me to be dubious i mr money i have now been in contact directly oh sorry i have now been contacted directly by the representatives in india of mr kumar so someone in india has contacted mr kumar as you’re aware kumar is the vendor there’s a vendor finance you’re in default and in december 17 he’s mahony is writing and why why are we saying this well money’s been paid he owes the duty of care to mr kumar and according to his his correspondence he’s in contact with him so he must if you believe what he’s writing he must accept that he did over duty of care and so as a matter of urgency as a matter of urgency well there’s no caveat so it the kv doesn’t actually go on for another month and is subsequently withdrawn using a withdrawal behavior that ralph did not give to mr manny he left it in a drawer according to ralph he left it in a drawer in bargo’s office as a matter of urgency as the basis of you know the encumbrances a copy of this certificate of title a copy of the five caveats we’ve we have we have been instructed so did someone in india according to i’ve been contacted directly by representatives in india we have now been we have been instructed to determine whether all can be removed through lapsing notice or through litigation so at this point well at this point

at this point the mortgagee is the first monkey is in the name properties and they’re on notice because of my letter there are notice of this interest so we’ve told them i told them absolutely do not lend any more money and subsequent to this more money was lent and but again the argument that money law is using is that this is all the fault of the torrents assurance fund it’s all their fault all of this you know as a matter of urgency we’ve been instructed to you know start laughing things can we lapse them can we can we have media litigation and there’s no response so there’s no response this is the 6th of november and academia does go on in december and is subsequently withdrawn using a withdrawal academia date of the 15th of november of their abouts so we asked to find out the current balance on the n m nine he says he’s been contacted by people in india directly that’s now directly in his email of november 2017. the ralph please provide me the contact details for the indians so he doesn’t even know who his client is he’s only dealing with this is a year later he’s either lost the phone number let’s be generous and say he’s lost the phone number please provide me contact details he doesn’t know he doesn’t know the name he doesn’t know the phone number according to this this is the way i’d read it please provide contact details not just the phone number person phone number emails you know what their relationship as you are unable to do anything to further this matter i need to speak with the indians to have you replaced whoa to have you replaced as their attorney

why did i donate why did it take until october 18 the land’s been sold by that point but yet a year before he’s saying in november the year before he’s saying i was a man of urgency we need to find out and start lapsing things

i’m saying look let’s let’s have a look now there is a i’m just going to throw it up on the screen here we’ve got signed by ralph peligaru in july and november 2018 twice ralph has assigned a claim that mr mahony sorry that mr kumar would have against mr manny for professional negligence now i don’t know if that’s i don’t know if that claim has legs or not but mr mahony is being employed and sending out bills for hundreds of thousands of dollars 90 to 100 000 or thereabouts two mr kumar so he must have owed he he must feel that he owes a duty of care it took him until october to 2018 after the property sold after the property has been had nine caveats go on it’s it’s really interesting but yet the argument is it’s all the fault forget all of this stuff it’s all the torrents assurances fund’s fault they’re to blame the state government has to has to cough up money i still don’t understand why you don’t want to save your house ralph i’m still here to help i’m still here to help well wow that’s fantastic now let’s go back to we’ll go back to this i have now been contacted directly by representatives in india well i’ve been in contact with them myself you know for several years let’s have a look at some of the stuff that’s being said

here’s what i wrote i’m not going to give you the person’s details did mr manny ever speak with any family members of mr kumar in november 2017. paragraph 19 says he did hi mark no he or ralph has never spoken to any family member only you were the first to approach us the first this poor bastard’s sitting over in jail in india now i’m this is not mr kumar this is a representative but this poor bastard is sitting in jail he’s had his four million dollars plundered and i am the first to contact them

first that’s pretty clear okay then i go on in in the court judgment manny gives evidence he has described he has had discussions with someone in india in india not just ralph someone in india

the reply who is that someone there has to be a name i believe him i do believe this man

by sayings just by just saying someone in court it doesn’t make any sense he has to give details and here’s specifically what i did send to the contact i have now been in contact directly i have now been contacted directly by the representatives in india in india

no name paragraph 16. he’s just making it up he’s just making it up

wow now things aren’t i’m just repeating this i’m personally speaking for myself i am dubious like i actually am dubious that this is true i have now been contacted directly but this is what a lawyer with 40 years experience his writing in 6th of november could he have saved that last 400 grand could he have i don’t know

at this point in november 17 none of this none of this claim has been assigned to me so he could have saved maybe four hundred thousand to he could have saved two million dollars maybe and he in his own words he’s saying well we’ve been we have been instructed now if this is correct if he has been contacted directly well he’s in the same email he’s saying we’ve been instructed to determine whether any of the caveats can be removed through lapsing notices or why didn’t he do that he’s been instructed hang on you’re a lawyer you’re instructed why don’t you do it

so again we’re only up to page six it’s it’s it’s a staggering staggering document and full credit to full credit to justice he does i think a very good job with the material he’s been presented now he’s been presented things saying well he’s had contacts with people in india justice darke clearly has absolutely no idea and absolutely no no criticism he doesn’t know he makes the observation we haven’t seen mr we haven’t seen mr kumar record he didn’t he didn’t come and give evidence well okay reason good reason for that he can’t he’s locked up apparently i don’t know so look let’s skip right to the end now and i will say this i will say this this is a very long well it’s not overly long but it’s a lot lengthy and it’s well considered it is well considered third of april manny sent a letter to mr adams mr adams unfortunately unfortunately however our clients our clients have come to no other conclusion than that you have fraudulently also delivered to the solicitor casino the withdrawal of cavity fraud it’s very big if you’re going to say fraud it’s the bar is very very high in all the circumstances in april of 2018 in all the circumstances man is writing in all circumstances we have been instructed again he’s got an instruction to report your actions to the new south wales police for fraud so what did he do with that instruction third of april he’s got the instructions to report you for for fraud and third of april same day they re-lodged the caveat but he’d been sitting on that caveat from since the 30th of january now would it have made any difference i don’t know i don’t know if he’d lodged the cave on the 30th of january it may or may not have made any difference but all i do know is they sat on it they sat on it mr mr mahony or mr paligari where the evidence is the finding the finding of justice darke is that curiously the caveat was apparently signed by the power of attorney mr kunma oh sorry mr palgar on the 30th of january when the plaintiff’s second the second favorite remained on the title so the withdrawal of cave it had been handed over but it still remained so casino actually had the withdrawal um

at the time beligari signed another one on the 30th he must have known that the withdrawal of it had been used yet on the third of april they’re writing letters saying oh we’ve just discovered it and there was a previous finding on the 22nd on the 22nd i said i’ll talk about this gap paragraph 3738 i talk about this gap three further cavetts were lodged on the 29th now this this whole this and one of these i was involved with in some way the reliance leasing one this was lodged on the 29th of january and that stopped putting it on stopped the cinder having theirs properly registered their mortgage i probably registered and the removal of n m and apg’s and there was this obviously this giant clog now ralph apparently signs the the next caveat on the 30th but at this point reliance got theirs on apg got this on slightly behind the one that i was involved in reliance and then lumley that’s that’s the finance broker they got theirs on as well and then on the 30th ralph must have known so he goes and signs another one but claims they don’t know until the 22nd of february 2018 mr mr money appears to have become aware of the refinancing transaction appears so that’s interesting very interesting and right the existence of the new mortgage is of serious concern to my client yet ralph has signed another caveat on the 30th and it’s of such a serious concern he didn’t did nothing with it from the 30th of january until the 3rd of april it’s it’s that it’s there are some questions here so

we then move on the total claim that was made by kumar against the torrens assurance fund is one point called 1.9 million dollars

paragraph 59 is submitted that there are good and now the registrar general says there’s good reasons to doubt the evidence of obviously allegory the registrar general says that there was good reason to doubt the evidence of mr palgary

now we look at the determination what did the court find paragraph 68 i have reservations so just justice star can only deal with the material that’s before him he he he doesn’t do his absolute credit i think he’s done a brilliant job okay but he may not have had all the material put in front of him either by rob calgary or by the torrens assurance fund they may simply not have known as paragraph 68 i have reservations about aspects you find some of it implausible

paragraph 69 despite my reservations i’ve ultimately come to the conclusion mr paligara’s evidence should be accepted so that’s pretty good but it doesn’t change the result the result is how many

paragraph 61 i further find mr adams in making use he was acting making useful withdrawal of cave it was acting contrary to the instructions

on the material that was put before justice darke and i don’t know if that included those emails well i do know that i’ll put it up again peligaro said that at no time was there a correspondence about the refinance but coming back to paragraph 7172 paragraph 71 i accept mr paligara’s evidence to the effect that neither he nor the plaintiff himself had any knowledge of the transaction that’s about the refinancing now again i do not know whether the emails the one tomorrow with lalich and hatfield and there’s a series of them that i put up i do not know whether they’ve been put up to justice darke and considered but on what was can what was put before him he says he accepts mr palgary’s evidence okay i’m prepared to conclude that mr pelic that mr adams acted dishonestly in this really in this respect

paragraph 72 for the above reason i’m prepared to find that mr adam acted this acted fraudulently and making use of the withdrawal of k-bits but okay so that’s to get money on the turns assurance fund there has to be dishonesty or fraud or a mistake by the current assurance fund the registrar general’s department and on top of that you have to prove that it led to loss now that was that’s the whole thing that i’ve always said well hang on i think you’ve postponed yourself ralph by handing this over and look i i’ll just show we’ll go through these other pages there’s lots and lots and lots here okay lots of analysis but the plaintiff submitted that the equity he could have mr kumar could have been four hundred thousand dollars better off and now on top of that there’s interest okay so we’re talking still a lot of money here a lot of money and it was as i said there was a two million dollar kitty apg received out of that fund 725 thousand dollars that’s three quarters of a million dollars and ralph and ian jordan the director of apg have a company together i don’t know precisely i was in the mediation in july 2019 but i didn’t go and shut the door and chat with ian jordan i didn’t and so apg work out with a lot of money now the liquidator is now chasing that and saying well that was a preference and we’ll see where that all goes as i said there’s a whole lot of analysis here and it’s it’s going to be impossible to just go through them all but i’ll put this up on our website let’s have a look at these last two pages in my opinion in my opinion the whole of the loss or damage should be regarded as the consequences of the acts or omissions of the plaintiff the conduct of mr pelago as the plaintiff’s agent in relation to the withdrawal of the caveat the very means by which mr adams was able to perpetrate his fraud that’s to blame so i think as i said earlier justice did find that there was fraudulent conduct but you’ve got to say that okay that that fraud led to the loss and there’s pages and pages of analysis the bottom line is justin darke did not find did not find that it really would have made any difference whether whether there was fraud or not the the post-painting conduct and the arming and all of that it was really the conduct of mr palgary was in in my view plainly negligent he failed to take reasonable care for the interest of the plaintiff that is particularly the case in circumstances from november 17 mr paligara was not only aware of fargo’s breaches so they failed to pay they had to pay 1.5 which they did on this 5.5 million dollar transaction and they had to pay 500 000 within four weeks and another one and a half million or two million or something after that and then another two and a half million so he was aware that they’d missed all of those it was incredible i said third of november 2017 we’ve got the email from mr mahony who says he’s been contacted directly by representatives in india as a matter of urgency and yet justice darke says in particular this is particularly the case in circumstances where from november 2017 mr paligara was not only aware of the breaches under the contract but also had concerns about mr adams’s dealing that he’s hocking the property and he knew he must have known that

he must have known that’s what justice darke thoughts to make the signed withdrawal of caveat form available to mr adams in those circumstances strikes me as contacted contract conduct that is very negligent if not reckless

mr adam utilized the means that were available to him to carry out the fraud applying a common sense approach the conduct of mr palgary should should be regarded as the cause of the claimed loss four million dollars just down the toilet of mr kumar’s money four million dollars down the toilet to my mind it is it is a cause of the loss as much as the conduct of mr adams himself it is a case where there are truly successive causes of the loss it is it is thus it can’t be concluded that the loss or damage was as a consequence of the axial or remission of the sorry that it was a consequence of the acts or omissions of the plaintiff and thus no entitlement it wasn’t the fault of the torrens assurance fund and just to rub it in just a tiny bit more paragraph 22 122 the plaintiff will be dismissed the statement claims dismissed the court will order the court will further order that the plaintiff pay the registrar general’s costs so there you have it a a terrible terrible tale we’ll come back and wrap up in a minute

well how is that for an incredible defeat justice darke as has really nailed that i think and well you would think that that’s the end of it but apparently ralph and john mahony are off thinking thinking about thinking about an appeal can you can you believe it thinking about an appeal on top of that there is another case which i’ve just put up the details about ralph is also personally suing the torrens assurance fund with his wife henrika and a very similar thing around the same time as all of this happened with mr kumar at a very similar time ralph borrowed money at six percent a month and five hundred forty thousand dollars six percent a month from a company called franklin yeezy and for better or worse for better or worse it also the well mr for whatever reason we talked about delays incredibly there was a a delay between about august 2017 and december 2017 very similar periods where ralph failed to put a caveat for neglected to put a caveat on land at warriewood owned by golden arrow international and other craigslist companies and subsequently he missed out on 540 thousand dollars and kept on paying six percent interest a month and in case you can’t work it out that’s like thirty something thousand in the first month and when you don’t pay it just balloons and balloons and like literally i did some sums at one stage it was like fifty four thousand dollars a month interest it was up to so but the trouble is i i think i haven’t seen the judgment and if even when i do get a copy of the judgment or if it’s being dismissed or whatever i’ll make sure if i get the documents we’ll post them and because they’re public documents and um

very similar facts you know i imagine i can’t see how he could possibly win where he he’s going to claim well it’s the torrens assurance fund’s fault that that craig in this instance i think they were just slack and i didn’t put either mahony or paligaru was slack i don’t know who so i’m not portioning blame there but what i do know is there’s a period of four months and there was no caveat on this warriewood land and in the meantime you saw how many caveats craig adams put on bargo he put justice many on maybe justice many he put enough there was lots of occasions put on warriewood as well and ralph missed out and it goes on to pay 30000 a month interest and that’s clearly not sustainable so you would think so where’s this all going time will tell time really will tell but you know to the best of my knowledge ralph’s insolvent we’ve got a we have mike i personally have a consent judgment against ralph $106551 we filed a creditor’s petition and ralph is trying to have it set aside one that he consented to so it’s going to be very interesting he’s managed to get that adjourn until april so in the meantime if there’s any uh

if there’s anyone out there that also has owed money and a lot of money you’re very welcome to come and join the party join the action join the creditors petition for your supporting creditor and it wouldn’t surprise me who you are so again if you’re owed money come and join the action if you’ve got any questions if you know any facts if you’ve got any thoughts we’d love to hear from you www.dcpartners.solutions/podcast or give us a call 1-300-327-123 if you do go to our website check out the link in the bottom right hand corner there’s into the message chat tool we’d love to hear from you and you know thank you very much thanks for tuning in bye

rogues rascals reviewables rorts rip-offs receivers real estate agents and much much more the many rs podcast season 1 episode 7.5 – 7.5 we can’t get all the way to 8 we have to go to 7.5 and we have absolutely breaking news from the new south wales supreme court about our one of our favorite r’s – ralph so stand by welcome to season 1 episode 7.5 if you’ve got any questions give us a call on 1300 327 123 that’s until late or hook up with us on www.dcpartners.solutions/podcast … use the chat tools in the bottom right hand corner thank you 

well welcome this is an unusual set of circumstances this is episode 7.5 this is a follow-on episode from our last one where we talked extensively at the end there about our very good mate ralph paligaru and we happened to run into ralph recently and here’s some some updated photos on on ralph for you but this particular episode is about well a judgment of the new south wales supreme court has literally just come down and it is still hot it is still warm so we’re going to have a look at ralph paligaru john mahony that’s the lawyer or is it mahony i no one has ever explained that to me we’ve got mohan kumar who is sometimes known as Chhota Rajan and we’re going to have a look at he’s a resident of tihar prison in in delhi in india and we’re going to have a look at the supreme court judgment in the matter of mohan kumar and shs well and the registrar general the torrens assurance fund so we can this is a public document and in fact this this has just come out unbeknownst to us we don’t watch these things day and night but someone brought it to our attention that the judgment had just come down on it had come down before we’d actually put out episode seven so we felt it was only right that we updated the record so let’s get on and we’ll have a look at the judgment okay so this is the judgment of the new south wales supreme court and anyone that wants to google this can go to a site called caselaw.nsw.gov.au and just google that and it’s a set of proceedings 2021 proceedings it was heard by justice darke who i have to say i’ve got i’ll make some comments as i go through i think he’s got it absolutely substantially correct he he wouldn’t know some of the very tiny minor facts but but still it’s it’s well worth having a look but look the whole gist of it is the claim for compensation a claim from mohan kumar for compensation from the torrens assurance fund is refused so that’s the decision so we can go through and have a quick look well we can have a long look but anyway it’s a it’s a very extensive document it’s i’m just gonna highlight some of the relevant bits there’s quite a lot and i’ll publish the entire document up on our website www.dcpartners.solutions/podcast i’ll i’ll include some text so you know what to look for but anyway the registrar general of the torrens assurance fund or the landed property in new south wales titles are kept for land and that those titles are kept in a central register called the torrens title register so and when a person loses an interest in land if it’s either by fraud or by some error made by the torrents of by the land and property by the people that keep the titles then that person that suffers loss is entitled to compensation and every time there’s a dealing every time that there’s a transaction involving land okay the registration of a mortgage the transfer when you pay stamp duty and all of that a very small sis collected and it goes into this fund called the torrens assurance fund just in case anything goes wrong so i can say that the trans assurance fund or the registrar general was represented by someone called patricia lane who happened to be one of my lecturers at sydney uni and you can see here the whoa

says here okay well pardon me the plaintiff was represented by patricia lane wow how very very interesting and mr mr mahony was there as well so i’m sorry i got that around the wrong way very very very interesting patricia lane nothing but absolute respect she was a fabulous teacher and unbelievably knowledgeable i might have got that the wrong way around i anyway i assume that this is correct so these proceedings are bought by mohan kumar there has there was obviously no discussions about who mohan kumar is in fine detail but he certainly was the registered proprietor of land at old northern road at dural number 632 old northern road dural and that was if you like the word sold it was sold in may of 2016 by his power of attorney ralph paligaru to a company called bargo developments proprietary limited and i’m just going to sort of these these are public and we’ll just you know talk about these so mankind has claimed an interest in the land as what’s called an unpaid vendor’s lien and i absolutely i met ralph on about the 27th of march in 2017 and he was introduced to me by mr steinberg from reliance leasing and ralph complained he couldn’t sleep at night because he was worried that about worried sick about whether he was going to get paid so when i say this property was sold it wasn’t paid so it was a property piece of land worth 5.5 million dollars which they received only 1.5 million dollars so craig adams is walking around with the title to a $5.5m piece of land having been out of pocket virtually nothing and we’ll have a look we’ll have a look and the money he received he didn’t pay it all to he mortgaged the property and did not pay at all to mohan kumar so as i said in episode 7 that is apparently the fault of the torren’s assurance fund and justice darke did not agree with mahony lawyers and the claim was refused so it’s it’s

we’ll just touch on some of the highlighted points and if you’re really that interested you can download this and read this in in fine detail but it’s justice darke finds at certain times the interest was protected by caveat so the very first thing that that i did i was asked by mr how do i put it i can’t sleep and i said why don’t you just put a caveat on it? so we went and put a caveat on and that was put on about the 27th of march 2017 and that’s how i know when i met ralph paligaru so there it was protected by this caveat some times however during other periods there was no caveat and at that time mr kumar was under the care of john mahony and ralph paligaru so you know precisely why they took them off we don’t know other than what’s in this judgment so we’re just reporting the facts we’ve absolutely there’s no criticisms whatsoever of justice darke or the decision he made and none of this is a you know is a massive surprise but anyway look there was various different mortgages at various different times craig adams the argument is that what the argument was it which didn’t work was that craig adams made use of a withdrawal of caveat form that had been executed on behalf of mr kumar by his attorney mr paligaru ralph paligaru so

and look ultimately craig didn’t pay his mortgage the property was sold by kesinda this is a fact and then there was a huge argument about who got what and i was there so i know it in the proceedings were resolved by way of consent orders on made in july 2019. now i i did actually put up the consent orders in episode 7 and showing exactly who got what and i’ve put here now this is not a criticism of justice darke but i’m just saying the the plaintiff received a total of $527 000 out of 2 million so he was … and he received 500 and this is saying well he actually received 26% of the available funds but that’s not with no disrespect to justice darke that is probably not exactly correct kumar actually received two lots he received 26% but on top of that he received another 9% and who did he give that to he gave that to one of my companies and why did he do that so in fact when you look at these arguments that justice darke talks about and says well hang on i’ve done my calculations to work out whether you lost money or you didn’t and then he talks about causation and who’s to blame in other words who’s to blame for mohan kumar not getting four million dollars or you know two million of the two million and look kumar actually did receive 35 of the available funds so there was two million in something available but he chose to pay he chose to honor an agreement he had with me that where he he actually assigned ralph paligaru actually assigned all of mohan kumar’s interest the whole lot to me and and i had an arrangement where i was going to pay successfully and it turns out that actually the success is 26 of what was available and my cut was nine so when you look at these arguments as we go further down into the document it this is no disrespect to justice darke but he did in fact received more than 26 percent he just gave away nine percent so it was 35 of the available so again absolutely no disrespect the so the plaintiff and so in these circumstances so in these circumstances where he actually got 35 the plaintiff alleges that he has suffered loss or damage resulting from the operation the act and justice darke didn’t didn’t go for that so you know and then it gets into some very long analysis the the loss yeah anyway they’re saying suffered loss by consequence of the registration of the consent casino mortgage so it is true that and i’ve numbered all of these so let’s maybe have a look at these salient facts and these are facts found by a supreme court judge and nothing nothing nothing but respect so absolute fact the the plaintiff mr kumar resides in india well it doesn’t talk about where but or even who he is and actually later on there’s a very curious remark saying well for some reason the plaintiff didn’t appear he didn’t come and give evidence and there you go well the reason he couldn’t give evidence is because he’s in jail so it doesn’t seem that that fact was shared publicly but look here are the here are the passport photos and photos of the arrested person and you tell me if they’re the same person i’m not an expert and i don’t i’ve never been to india i’ve never been to any jails i’ve never met mr kumar it’s just it’s an open secret that’s who he is and no one bothered to share that with justice darke so look the piece of land was as i said 632 old northern road dural and there’s its title particulars ralph sold it i’ve showed you the front page of the contract in episode seven for 5.5 but in fact they received 1.5 was put down and there was a series of arrangements that craig adams was to pay 500 there and a million here and another two and a half and time is of the essence and again this all fits into the argument that mahony lawyers put forward that this is all the fault the fact that there was money lost that’s the fault of the torrens assurance fund and really the taxpayer should be should be coughing up to compensate mr kumar and as i said that was not accepted so the purchase price there number number one two three so let’s just have a look and these are some of the this is under the heading salient facts again not my not my facts these are facts that justice darke the honourable justice darke found so we know on the 31st of may the contract price was 5.5 million only 1.5 was put down but the property was used as a credit card i suppose and a mortgage secured the sum of 2.275 million dollars so 1.5 the fact is the plaintiff received 1.5 million on settlement and whether the other three quarters of a million dollars go well the director of bargo was craig adams so we’d have to ask craig adams but we know that only 1.5 million was ever paid to mr kumar and that’s that so and this is the fact that was the only money that was ever ever paid out of a 5.5 million sale price only ever 1.5 was ever paid so we know that time was of the essence there it is time was at the essence and 1.5 was on on settlement there was after four weeks another half a million dollars was required time of the essence six months later another million dollars and none of this was this contract wasn’t enforced and not only that the salient facts that in may 2016 there was it was hot to the tune of 2.275 but a further a further that’s the kit that i put on there you go i put that on i went into the counter and paid the money and on on or about the 27th of march and ralph could sleep at night then you know so so we know that six months later he mr adams and bargo hocked the the property again there was the initial mortgage was to ar mortgages and then along came in and him now the very first thing i went and did was wrote to him in a name and said stop lending money and stop lending any more money and making mr kumar’s position any worse so literally from that day in march of 2017 they were on notice and they did not and i’ve got copies of the the correspondence i went around that night and you know before six o’clock the next morning in march of 2017 saying oh i i have a habit of dropping the s-bomb sometimes but uh

number one three-quarters of a million went to craig adams’s pocket or somewhere you know and then another four hundred thousand this is still not going into mr kumar’s pocket despite their being a contract despite mr kumar having ralph paligaru on the ground is his power of attorney and on top of that well there’s there’s even more money being borrowed so another 350 000 was was borrowed in august 17 a very interesting date on the third of and then even more so it just goes on and on and on and on and on more and more hocking of this land and again i put in a name on notice of that anyway long long story but there’s more and more hocking of this property going on and in august of 17 even more money was borrowed and you know here’s a full list and i mean i find this extremely interesting there was seven caveats so craig adams obviously well there’s some very harsh findings here about craig adams but there was mr paligaru deposes this is his evidence there were seven caveats in the end seven so seven lots of hocking of money against mr kumar’s interest and mr mr paligaru for whatever reason he had from the day i put the caveat on for mr kumar mr kumar was protected from that point in an m had noticed do not lend any more money he’s in default to mr kumar he has four million dollars and he’s in default and another six yes i think that’s correct another 6k bits on top of the the kb i put on was ripped off and another six were put on so craig is just borrowed and borrowed and buried and borrowed and borrowed and in the end someone said well this is the torrens assurance fund’s fault

justice i didn’t agree with that so i’m with justice darke by the way so ralph further deposes that he was concerned he was concerned i was concerned that there was six more lots of hocking of money and in 2017 now this is after ralph has lifted the cable that i put on mr manny writes to mr adams oh we’re not very very happy here and so you can read this for yourself but this is something i find very interesting paragraph 19. this demanding writes on the 6th of november 2017 i have i have now been contacted directly by the representatives in india of mohan kumar

i i find that very interesting the representatives in india in india so i i i’m curious whether that’s true that’s what it says that’s what the email says i’m curious if it’s true i don’t know i have no idea i’ve never talked to mr kumar ever but apparently some representatives called well i i he says mahony writes i have now been contacted as you’re aware there’s vendor finance as you’re aware you’re in default and you know it goes on now all all along here no response there was no response craig got the email and just ignored it ralph went to fiji some of these things aren’t really relevant but i i am dubious about some of this not of what yeah i’m dubious about the evidence that was given in cross examination mr paligaru agreed that so how did how did mr feligaru sorry how did mr kumar miss out well a cave it was lifted and mr peligaru gave evidence that in november 2017 he gives evidence adam’s according to this email adams knew that the withdrawal form was located in the bottom drawer so of the parker office it’s a long story and you’d have to read it and we’ll send you to sleep if we if we talked about it but paligara gives evidence that before he departed from australia he handed it withdrawal of caveat form in the bottom draw of the desk i used from time to time so craig sorry ralph and craig sometimes shared an office

now credit to ralph justice darke actually says he accepts ralph’s version okay but still rules against them he accepts that this actually happens justice darke accepted that he was told orally on or about the 15th of november you’re only to use this in certain circumstances craig went ahead and used it anyway but i’ll cut to the end let’s

before i get there this is the evidence of of mr mister i’m putting this this is what he says i am putting this which is the withdrawal of kv i’m putting this in this draw do not use it until i have full details of any proposed finance or equity position to be taken to be taken by any prospective partner by any prospective partner or joint venturer with us joint venturer with us

until i have full details of any proposed finance or equity position to be taken by any proposed joint a partner or joint venturer with us so with us so it’s to be there’s an us these are ralph’s own words there is an us and again somewhere in this lengthy document it’s 27 pages long somewhere in this lengthy document justice darke ponders why it was that ralph gave a withdrawal of caveat when

in fact there wasn’t a cave on on the title at that time it was in december and ralph’s evidence is that on the 15th of november he gave he handed craig the withdrawal of caveat but there actually wasn’t a caveat on the title on the 15th of november it was in december so and craig used so craig used that

to remove the december cave it but there was no cave in november so i’m my handwriting here says dubious i’m dubious uh

oh here you go if mr a lie now that really should say question mark if mr paligaru is evidence concerning the signing of the withdrawal of cavity is accepted if it’s accepted the form was signed at a time when the plaintiff had no caviar now justice darke found i mean he accepted ralph’s evidence that it was the honor of that date he did hand craig the withdrawal the plaintiff lodged another one on the 4th of december so precisely why ralph gave this is dubious or curious or it is very puzzling but it is very puzzling but he gave on about the 15th of december the withdrawal of acadia for occasion that hadn’t actually been lodged until the fourth of december three weeks later very curious more correspondence it’s it’s franklin the easy gets mentioned any refinance is also to result in the discharge of the second mortgage over the peligaro home in favor of franklin using holdings anything that you do must be referred to us there’s ian jordan comes in now wonderful friend from australasian property group who are being sued by the liquidator bargo now who appointed the liberator that’d be me the liquidator bargo so when all of this turned to custard i appointed a liquidator and i swore that there was a debt of very close to six million dollars owed to me it once upon a time was owed to mr kumar but courtesy of ralph alegaro on not one but two occasions ralph assigned that collection to me and the six million dollars and that was in july of 2018 and he went ahead and amended that deed on the 13th of november 2018. so precisely again this is this is why i was absolutely certain that this would fail this this argument that it’s the torrens assurance fund’s fault that mr kumar lost all this money it’s his fault it’s the tourist assurance fund’s fault well no it was never even remotely possible that it was their fault because ralph assigned the collection to me and and here he’s on the debt i went to the supreme court of victoria and said hey my company is owed six million dollars by fargo developments and they’re they’ve failed to pay back in in accordance with the terms now we had a look up above let’s just go up above it says he here’s the payment schedule well so time was of the essence so i gave him 21 days and said at a certain point i wrote and said hey you owe us six million dollars by that point with you know or whatever the figure was it was over five and here’s a copy of the here’s a copy of the demand that was was put on fargo they never paid enough thomas of the essence and so they were deemed to be insolvent and so how was it ever possible that mr kumar lost money because of the fault that was caused by the fault of the torrens assurance fund no no the right they didn’t even have standing to go to court mr mr kumar had no standing his his entire loss was given to me into my company to pursue and then mr caligaro obviously thought better of it at some point later and decided oh well that doesn’t suit me to have mark smith collect the money even though he paid me nine percent of the funds which you can work out nine percent of two million dollars about 180 000 so it’s it’s just very puzzling so it’s a long long story and jordan gets a mention ebm now these are craig’s accountants his accounts were a firm at called dbw in um

in north sydney i’ve been to their office late one night the b in dbw was a man called bardela and max mardella and max maximilia maximilio bardella and he he loaned money to he was one of the six people that advanced money his company ebm as distinct from dbw dbw helped with all sorts of manner of wonderful documents in support and all up look there was there’s a long long list of of people that were doubted but i withdraw that there’s a long long list of people that get a mention so there’s as i said there were six caves there’s a there’s a very huge gap this is this i found extremely interesting paragraph 37 three further caveats were lodged on or about the 29th of january 2018. one of these was lodged on behalf of reliance leasing mr steinberg so that’s that’s that’s a steinbeck there and on about the 22nd of february 2018 mahony appears to have become aware of the refinancing so again this is this is something that i do find very very interesting on about the 22nd of february now this is the this is what was put to justice darke manny appears to become aware and he writes manny writes a letter to craig adams now i will say oh we should go and have a look at paragraph 16. this is really very very interesting paragraph 16 it is there is evidence that later in august 2017 mr money was acting for the plaintiff so that’s mr kumar in relation to the proposed development and was also acting for craig evans

so he’s acting for multiple parties and i have in previous episodes i said he’s mr mahony how he was able to manage these and juggle these conflicts or not so much the conflicts but the conflicting interests surely mr kumar has one interest hey i want to be paid and craig adams hey i like this getting free money stuff and i can just use this as my credit card i can keep three quarters of a million then another 400 for me and do whatever the hell he likes so it’s it’s a it’s a really really really stunning thing so 22nd of february mahony writes to adams i enclose a copy of a letter to rely of a letter to reliance from the solicitors for the new first mortgage the existence is of syria the existence so that was considered the existence of a new first mortgage is a serious concern to my client my client’s worried sick he’s in jail in in india doesn’t say that but as as my client has a beneficial interest in the whole of the dural land four million bucks but you just keep adding what he’s saying what he’s trying to say is you just keep adding and adding currently there are nine caveats on the property now

this is this is kind of stunning

on the 9th of march casinda’s lawyers bransgroves kate cooper and name is the senior partner there one such one such document was a withdrawal of kv form that had been signed by mr palgary so according to mr peligaro and the judge believes him okay so according to mr palgary mr palgary who handed craig adams we had a look a little bit a few minutes ago mr peligaro handed craig adams a withdrawal of caveat at a time in the middle of november at a time when there was no cavity on the on the land in in the name of kumar and in paragraph 41 here it’s saying well the mid november 2017 withdrawal of caveat was handed it was used by it was handed up by craig adams on the 25th of january 2018 to to your firm brands groves and and that that form states yes it’s the december this number here is the december cave it so as the withdrawal was signed on the 15th of november for a caveat that hadn’t been put on and ralph had only gone overseas for one week from about the 17th to the 24th of november so for whatever reason ralph never took that caveat withdrawal of kv back and justice darke is critical of that later on and he’s also critical and says well why didn’t you just leave the withdrawal of kavit you went you’re going to feed you why didn’t you just give it to john marty so one must wonder whether john mahony got the entire story i’m finding myself i’m finding myself going to bat for john manny here i’m just wondering so look it’s it’s it’s really quite remarkable he and jordan casinda casinda as on the 9th of march writes a letter cassinder writes a letter to apg to ian jordan and they say well hang on i don’t think you want to i don’t think you want to be behind mr kumar so this is the whole issue about lifting cavities when when caved is lifted we understand from the receiver mr kumar claims an unpaid vendor’s interest in the vicinity of 6 million bucks no doubt these these are the words of brans grabs no doubt your client would prefer not to be behind that claim for a piece of land that’s only worth five or five and a half and and there’s already there’s close to three million dollars already hopped you don’t want to be behind some of the zones six because there’s no equity look this is this is a stunning stunning document here you go this this is one of the curious findings i note in passing that mr paligara gave evidence to the effect that at no time between his leaving the withdrawal in the desk at bargo’s office and march did he receive any communications

about any refinancing he did not receive any communications from mr pelleck from mr adams at no time between march at no time between he’s leaving the withdrawal of kbit form in the desk and in the bargo office and march 18. did he receive any communications from craig arms about any refinancing of the documents that’s the evidence now i i’m going to say justice darke is smart enough to be able to read a transcript of the evidence and that’s what he’s saying he’s saying i wasn’t there okay i certainly was not there and i don’t know i didn’t listen to the evidence that mr paligaru gave but justice darke i know him passing that mr paligaru who gave evidence to the to the effect to the effect so he didn’t actually give direct evidence that at no time between between leaving the withdrawal of caveat and march 18 did he receive any communication so i’m just going to pause it here and we’re going to see we’re just going to have a look at some things all right so at no time at no time between leaving the withdrawal of caveat did he receive any communications from mr adam about the refinancing the dual property at no time up until march so i’ll just jump down to something else that i’ve seen offline curiously on the same day so on the same day another cave it was lodged by the plaintiff so what are we talking about here this was third of april mr mahony sent an email to mr craig adams and keep in mind this is all in the context that mr mahony is saying well it’s the torrens assurance fund’s fault that mr kumar lost money it’s their fault

third of april on the third of april so this refinancing happened on the 25th of january on the third of april justice darke notes on the same day on the same day the third of april another caveat was lodged on by mr kumar so that went on on the third of april and that was recorded that’s this is all public you can anyone can google this egg look up this purchase a copy of that by this caveat the plaintiff again claimed to be the unpaid vendor under this 26th of may sorry 2016 may contract curiously curiously the caveat was apparently signed by mr peligaro as the plaintiff’s attorney on the 30th of january so it’s this continual delay delay delay from the 30th of january to the 3rd of april it’s months here months there in action letting giving craig all this this road so i think you can see where this is sort of coming unstuck but let’s just go back to this other

noted passing that mr paligaru gave evidence to the to the effect that at no time so let’s let’s test this here’s an email now at no time did he receive any communications well that’s different to sending it but did he receive any communications about any refinancing

well here’s an email and we’ll see who sent me this and how did i get it 10th of january now that’s that’s between december and march 10th january john mary wrote craig kumar is not happy with the delay in warriewood settling have you issued a notice to complete do you need do you need my help if your lawyer can’t do it i’ll i’ll just act for you and i’ll keep acting for mr kumar but i can manage all this this is what he’s saying this is ridiculous delay that needs to be sorted mohan kumar reserves all right but hang on he can but if you need a lawyer no command reserves all rights but if you need a lawyer i’m your man do you need a lawyer john john ah 3 54 a.m something’s keeping craig away john please come to the city tomorrow and i’ll reassign property and loan to you

please tell me what time you’re available and i’ll have adam tilley meet us and workout guarantees so all you’ve got to do is guarantee it and i’ll resign so the evidence was at no time palgary gave her the effect of no time between he’s leaving the withdrawal in march did he receive any communications from craig about any refinancing so what’s this adam tilley who’s adam tilley adam tilley will meet you to work out financing guarantees on financing

later that day craig is not my [ __ ] as you put it mr kumar’s rights you know and you keep mortgaging his property ah nine k bits later before you paid for it you keep ralph has signed the transfer transferring [ __ ] so ralph actually had the right to transfer the shares in bargo and and transfer the ownership of the company to mr kumar

therefore he’s in your interest to work to solve the problem now the problem is for you is that not only will you have lost the development value you’re in default of the loans which are secured we’re giving you until 4 pm today the current payout tell us the current payout if you can’t get those figures kumar will will by next monday become the owner and serve lapsing notices

so i don’t know if this is well eleventh mate mate i tried to call you this is going to go pear shape so this is from ralph to justin hatfield who’s justin hatfield oh that’s he wouldn’t be talking about refinancing because just justice darke found at no time was there any evidence he gave it ralph gave evidence to the effect of no time did he receive any communications from mr adams well i suppose this one to to justin hatfield is probably not from but anyway i’m stuck in the middle an asset line who are they they’re money lenders justin hatfield as soon as craig settles warriewood has has to happen in the next 10 days one lender you know cross-collateralize this and that whatever 13.5 million

the current payout figure is 2.7 million dollars to winchester o’rourke that’s tilley uh

at no point at no time the evidence was at no time was there any discussion about refinancing after ralph has those figures kumar will be in a position to refinance general without putting you in default of your loans secured over your property over 88 perfection avenue cross-collateralization is in breach of the sales contracts so a few choice words here the point is he’s he was going to refinance with tilley adam tilley no news warriewood who knows it’s almost a ponzi scheme

and mr hadfield you have facilitated a lot of it

it’s easily resolved once warriewood settles what’s happening with at no point was there any discussion about refinancing ralph ralph wrote what’s happening with tilley refi refinancing it’s fully approved it’s fully approved so the evidence did he receive any communications about any refinancing of the general property

i i’m just not sure whether justice darke saw these communications but they’re there interesting not good enough john mahony’s still on the 11th not good enough client has been waiting months for the mythical warriewood settlement time is up kumar will now register the share transfer well even in april still hasn’t happened also what is the secret about telling us how much people take to free dural of the various blisters kumar will not accept any more delays well apparently he will justin hatfield lumley finance and loans now if this wasn’t about refinancing if this wasn’t about refinancing then you know so it goes on and on and on and on the solicitor is the vendor’s worst nightmare this all comes to craig not communicating and swearing another so there’s craig will lose his family asset liner ruthless mahoney acted for paid on exchange acted against paid on exchange and wants payments so but ralph is organizing the logistics of his daughter’s engagement so let’s see what else there is here’s another email this is to do with maybe not to do with refinancing but this is certainly from craig we’re trying to we’re trying to get as mentioned i have warriewood projects setting on the 29th yet so on the 30th according to justice darke ralph signs a new caveat which he doesn’t put on until the third of april and again all of this is the fault of the torres assurance fund let’s have a look at this one all of these are sent to me by ralph by the way so let’s ralph from ralph to mark that’s me from ralph to mark from ralph to mark 22nd tomorrow tomorrow so this property settled on the sorry the the use of the caveat occurred on the 25th of january and there was communications between

at no point did he receive any communications from mr adams about any refinancing of the general poverty well i’m going to say i’m sorry that on the 25th of january there’s another communication but tomorrow so tomorrow is the 23rd of january this is before before the cave it is used gents mr lalich this is another one the evidence was there’s no communication about refinancing from craig well mr lalich is one of craig’s lawyers

you know so they’re they’re meeting up on ralph is meeting with justin hatfield and justin hatfield this wouldn’t be anything to do with a refinancing would it lumley finance and loans accredited finance broker well i’m you know i am i’ve said i’m dubious about that evidence that ralph has has given to the effect that there was at no time did he receive any communications yet you know this is not a communication about refinancing from justin hatfield who’s a mortgage broker craig adams you know so this is here see you there see you there so as you can see there’s quite a lot to this particular judgment and we’re only up to page six of 27 and it really does go on but i’m just highlighting a few key bits i’ll just return now to this other thing and i’ve said that i am dubious about i’m not calling saying that people are outright lying but i am highly dubious about some of the aspects of what was put in front of justice darke and i’ll take you back to this one paragraph 19 mr mahony on the 6th of november now this is at a time when there was no yes there was no caveat on the land according to ralph’s evidence on the 15th of november ralph then went and put went and handed craig adams a withdrawal of the cave yet that wasn’t on and then in december one was put on so in the evidence this is mr manny wrote to craig adams on 6th of november when there was no caveat and he says and we’ve talked about this just before i have i this is what manny writes now this is important because he says it’s true and i’ll show you i’ll show you something else so this is on the 6th of november 2017. now i’m going to show you something in 2018 that causes me to be dubious i mr money i have now been in contact directly oh sorry i have now been contacted directly by the representatives in india of mr kumar so someone in india has contacted mr kumar as you’re aware kumar is the vendor there’s a vendor finance you’re in default and in december 17 he’s mahony is writing and why why are we saying this well money’s been paid he owes the duty of care to mr kumar and according to his his correspondence he’s in contact with him so he must if you believe what he’s writing he must accept that he did over duty of care and so as a matter of urgency as a matter of urgency well there’s no caveat so it the kv doesn’t actually go on for another month and is subsequently withdrawn using a withdrawal behavior that ralph did not give to mr manny he left it in a drawer according to ralph he left it in a drawer in bargo’s office as a matter of urgency as the basis of you know the encumbrances a copy of this certificate of title a copy of the five caveats we’ve we have we have been instructed so did someone in india according to i’ve been contacted directly by representatives in india we have now been we have been instructed to determine whether all can be removed through lapsing notice or through litigation so at this point well at this point

at this point the mortgagee is the first monkey is in the name properties and they’re on notice because of my letter there are notice of this interest so we’ve told them i told them absolutely do not lend any more money and subsequent to this more money was lent and but again the argument that money law is using is that this is all the fault of the torrents assurance fund it’s all their fault all of this you know as a matter of urgency we’ve been instructed to you know start laughing things can we lapse them can we can we have media litigation and there’s no response so there’s no response this is the 6th of november and academia does go on in december and is subsequently withdrawn using a withdrawal academia date of the 15th of november of their abouts so we asked to find out the current balance on the n m nine he says he’s been contacted by people in india directly that’s now directly in his email of november 2017. the ralph please provide me the contact details for the indians so he doesn’t even know who his client is he’s only dealing with this is a year later he’s either lost the phone number let’s be generous and say he’s lost the phone number please provide me contact details he doesn’t know he doesn’t know the name he doesn’t know the phone number according to this this is the way i’d read it please provide contact details not just the phone number person phone number emails you know what their relationship as you are unable to do anything to further this matter i need to speak with the indians to have you replaced whoa to have you replaced as their attorney

why did i donate why did it take until october 18 the land’s been sold by that point but yet a year before he’s saying in november the year before he’s saying i was a man of urgency we need to find out and start lapsing things

i’m saying look let’s let’s have a look now there is a i’m just going to throw it up on the screen here we’ve got signed by ralph peligaru in july and november 2018 twice ralph has assigned a claim that mr mahony sorry that mr kumar would have against mr manny for professional negligence now i don’t know if that’s i don’t know if that claim has legs or not but mr mahony is being employed and sending out bills for hundreds of thousands of dollars 90 to 100 000 or thereabouts two mr kumar so he must have owed he he must feel that he owes a duty of care it took him until october to 2018 after the property sold after the property has been had nine caveats go on it’s it’s really interesting but yet the argument is it’s all the fault forget all of this stuff it’s all the torrents assurances fund’s fault they’re to blame the state government has to has to cough up money i still don’t understand why you don’t want to save your house ralph i’m still here to help i’m still here to help well wow that’s fantastic now let’s go back to we’ll go back to this i have now been contacted directly by representatives in india well i’ve been in contact with them myself you know for several years let’s have a look at some of the stuff that’s being said

here’s what i wrote i’m not going to give you the person’s details did mr manny ever speak with any family members of mr kumar in november 2017. paragraph 19 says he did hi mark no he or ralph has never spoken to any family member only you were the first to approach us the first this poor bastard’s sitting over in jail in india now i’m this is not mr kumar this is a representative but this poor bastard is sitting in jail he’s had his four million dollars plundered and i am the first to contact them

first that’s pretty clear okay then i go on in in the court judgment manny gives evidence he has described he has had discussions with someone in india in india not just ralph someone in india

the reply who is that someone there has to be a name i believe him i do believe this man

by sayings just by just saying someone in court it doesn’t make any sense he has to give details and here’s specifically what i did send to the contact i have now been in contact directly i have now been contacted directly by the representatives in india in india

no name paragraph 16. he’s just making it up he’s just making it up

wow now things aren’t i’m just repeating this i’m personally speaking for myself i am dubious like i actually am dubious that this is true i have now been contacted directly but this is what a lawyer with 40 years experience his writing in 6th of november could he have saved that last 400 grand could he have i don’t know

at this point in november 17 none of this none of this claim has been assigned to me so he could have saved maybe four hundred thousand to he could have saved two million dollars maybe and he in his own words he’s saying well we’ve been we have been instructed now if this is correct if he has been contacted directly well he’s in the same email he’s saying we’ve been instructed to determine whether any of the caveats can be removed through lapsing notices or why didn’t he do that he’s been instructed hang on you’re a lawyer you’re instructed why don’t you do it

so again we’re only up to page six it’s it’s it’s a staggering staggering document and full credit to full credit to justice he does i think a very good job with the material he’s been presented now he’s been presented things saying well he’s had contacts with people in india justice darke clearly has absolutely no idea and absolutely no no criticism he doesn’t know he makes the observation we haven’t seen mr we haven’t seen mr kumar record he didn’t he didn’t come and give evidence well okay reason good reason for that he can’t he’s locked up apparently i don’t know so look let’s skip right to the end now and i will say this i will say this this is a very long well it’s not overly long but it’s a lot lengthy and it’s well considered it is well considered third of april manny sent a letter to mr adams mr adams unfortunately unfortunately however our clients our clients have come to no other conclusion than that you have fraudulently also delivered to the solicitor casino the withdrawal of cavity fraud it’s very big if you’re going to say fraud it’s the bar is very very high in all the circumstances in april of 2018 in all the circumstances man is writing in all circumstances we have been instructed again he’s got an instruction to report your actions to the new south wales police for fraud so what did he do with that instruction third of april he’s got the instructions to report you for for fraud and third of april same day they re-lodged the caveat but he’d been sitting on that caveat from since the 30th of january now would it have made any difference i don’t know i don’t know if he’d lodged the cave on the 30th of january it may or may not have made any difference but all i do know is they sat on it they sat on it mr mr mahony or mr paligari where the evidence is the finding the finding of justice darke is that curiously the caveat was apparently signed by the power of attorney mr kunma oh sorry mr palgar on the 30th of january when the plaintiff’s second the second favorite remained on the title so the withdrawal of cave it had been handed over but it still remained so casino actually had the withdrawal um

at the time beligari signed another one on the 30th he must have known that the withdrawal of it had been used yet on the third of april they’re writing letters saying oh we’ve just discovered it and there was a previous finding on the 22nd on the 22nd i said i’ll talk about this gap paragraph 3738 i talk about this gap three further cavetts were lodged on the 29th now this this whole this and one of these i was involved with in some way the reliance leasing one this was lodged on the 29th of january and that stopped putting it on stopped the cinder having theirs properly registered their mortgage i probably registered and the removal of n m and apg’s and there was this obviously this giant clog now ralph apparently signs the the next caveat on the 30th but at this point reliance got theirs on apg got this on slightly behind the one that i was involved in reliance and then lumley that’s that’s the finance broker they got theirs on as well and then on the 30th ralph must have known so he goes and signs another one but claims they don’t know until the 22nd of february 2018 mr mr money appears to have become aware of the refinancing transaction appears so that’s interesting very interesting and right the existence of the new mortgage is of serious concern to my client yet ralph has signed another caveat on the 30th and it’s of such a serious concern he didn’t did nothing with it from the 30th of january until the 3rd of april it’s it’s that it’s there are some questions here so

we then move on the total claim that was made by kumar against the torrens assurance fund is one point called 1.9 million dollars

paragraph 59 is submitted that there are good and now the registrar general says there’s good reasons to doubt the evidence of obviously allegory the registrar general says that there was good reason to doubt the evidence of mr palgary

now we look at the determination what did the court find paragraph 68 i have reservations so just justice star can only deal with the material that’s before him he he he doesn’t do his absolute credit i think he’s done a brilliant job okay but he may not have had all the material put in front of him either by rob calgary or by the torrens assurance fund they may simply not have known as paragraph 68 i have reservations about aspects you find some of it implausible

paragraph 69 despite my reservations i’ve ultimately come to the conclusion mr paligara’s evidence should be accepted so that’s pretty good but it doesn’t change the result the result is how many

paragraph 61 i further find mr adams in making use he was acting making useful withdrawal of cave it was acting contrary to the instructions

on the material that was put before justice darke and i don’t know if that included those emails well i do know that i’ll put it up again peligaro said that at no time was there a correspondence about the refinance but coming back to paragraph 7172 paragraph 71 i accept mr paligara’s evidence to the effect that neither he nor the plaintiff himself had any knowledge of the transaction that’s about the refinancing now again i do not know whether the emails the one tomorrow with lalich and hatfield and there’s a series of them that i put up i do not know whether they’ve been put up to justice darke and considered but on what was can what was put before him he says he accepts mr palgary’s evidence okay i’m prepared to conclude that mr pelic that mr adams acted dishonestly in this really in this respect

paragraph 72 for the above reason i’m prepared to find that mr adam acted this acted fraudulently and making use of the withdrawal of k-bits but okay so that’s to get money on the turns assurance fund there has to be dishonesty or fraud or a mistake by the current assurance fund the registrar general’s department and on top of that you have to prove that it led to loss now that was that’s the whole thing that i’ve always said well hang on i think you’ve postponed yourself ralph by handing this over and look i i’ll just show we’ll go through these other pages there’s lots and lots and lots here okay lots of analysis but the plaintiff submitted that the equity he could have mr kumar could have been four hundred thousand dollars better off and now on top of that there’s interest okay so we’re talking still a lot of money here a lot of money and it was as i said there was a two million dollar kitty apg received out of that fund 725 thousand dollars that’s three quarters of a million dollars and ralph and ian jordan the director of apg have a company together i don’t know precisely i was in the mediation in july 2019 but i didn’t go and shut the door and chat with ian jordan i didn’t and so apg work out with a lot of money now the liquidator is now chasing that and saying well that was a preference and we’ll see where that all goes as i said there’s a whole lot of analysis here and it’s it’s going to be impossible to just go through them all but i’ll put this up on our website let’s have a look at these last two pages in my opinion in my opinion the whole of the loss or damage should be regarded as the consequences of the acts or omissions of the plaintiff the conduct of mr pelago as the plaintiff’s agent in relation to the withdrawal of the caveat the very means by which mr adams was able to perpetrate his fraud that’s to blame so i think as i said earlier justice did find that there was fraudulent conduct but you’ve got to say that okay that that fraud led to the loss and there’s pages and pages of analysis the bottom line is justin darke did not find did not find that it really would have made any difference whether whether there was fraud or not the the post-painting conduct and the arming and all of that it was really the conduct of mr palgary was in in my view plainly negligent he failed to take reasonable care for the interest of the plaintiff that is particularly the case in circumstances from november 17 mr paligara was not only aware of fargo’s breaches so they failed to pay they had to pay 1.5 which they did on this 5.5 million dollar transaction and they had to pay 500 000 within four weeks and another one and a half million or two million or something after that and then another two and a half million so he was aware that they’d missed all of those it was incredible i said third of november 2017 we’ve got the email from mr mahony who says he’s been contacted directly by representatives in india as a matter of urgency and yet justice darke says in particular this is particularly the case in circumstances where from november 2017 mr paligara was not only aware of the breaches under the contract but also had concerns about mr adams’s dealing that he’s hocking the property and he knew he must have known that

he must have known that’s what justice darke thoughts to make the signed withdrawal of caveat form available to mr adams in those circumstances strikes me as contacted contract conduct that is very negligent if not reckless

mr adam utilized the means that were available to him to carry out the fraud applying a common sense approach the conduct of mr palgary should should be regarded as the cause of the claimed loss four million dollars just down the toilet of mr kumar’s money four million dollars down the toilet to my mind it is it is a cause of the loss as much as the conduct of mr adams himself it is a case where there are truly successive causes of the loss it is it is thus it can’t be concluded that the loss or damage was as a consequence of the axial or remission of the sorry that it was a consequence of the acts or omissions of the plaintiff and thus no entitlement it wasn’t the fault of the torrens assurance fund and just to rub it in just a tiny bit more paragraph 22 122 the plaintiff will be dismissed the statement claims dismissed the court will order the court will further order that the plaintiff pay the registrar general’s costs so there you have it a a terrible terrible tale we’ll come back and wrap up in a minute

well how is that for an incredible defeat justice darke as has really nailed that i think and well you would think that that’s the end of it but apparently ralph and john mahony are off thinking thinking about thinking about an appeal can you can you believe it thinking about an appeal on top of that there is another case which i’ve just put up the details about ralph is also personally suing the torrens assurance fund with his wife henrika and a very similar thing around the same time as all of this happened with mr kumar at a very similar time ralph borrowed money at six percent a month and five hundred forty thousand dollars six percent a month from a company called franklin yeezy and for better or worse for better or worse it also the well mr for whatever reason we talked about delays incredibly there was a a delay between about august 2017 and december 2017 very similar periods where ralph failed to put a caveat for neglected to put a caveat on land at warriewood owned by golden arrow international and other craigslist companies and subsequently he missed out on 540 thousand dollars and kept on paying six percent interest a month and in case you can’t work it out that’s like thirty something thousand in the first month and when you don’t pay it just balloons and balloons and like literally i did some sums at one stage it was like fifty four thousand dollars a month interest it was up to so but the trouble is i i think i haven’t seen the judgment and if even when i do get a copy of the judgment or if it’s being dismissed or whatever i’ll make sure if i get the documents we’ll post them and because they’re public documents and um

very similar facts you know i imagine i can’t see how he could possibly win where he he’s going to claim well it’s the torrens assurance fund’s fault that that craig in this instance i think they were just slack and i didn’t put either mahony or paligaru was slack i don’t know who so i’m not portioning blame there but what i do know is there’s a period of four months and there was no caveat on this warriewood land and in the meantime you saw how many caveats craig adams put on bargo he put justice many on maybe justice many he put enough there was lots of occasions put on warriewood as well and ralph missed out and it goes on to pay 30000 a month interest and that’s clearly not sustainable so you would think so where’s this all going time will tell time really will tell but you know to the best of my knowledge ralph’s insolvent we’ve got a we have mike i personally have a consent judgment against ralph $106551 we filed a creditor’s petition and ralph is trying to have it set aside one that he consented to so it’s going to be very interesting he’s managed to get that adjourn until april so in the meantime if there’s any uh

if there’s anyone out there that also has owed money and a lot of money you’re very welcome to come and join the party join the action join the creditors petition for your supporting creditor and it wouldn’t surprise me who you are so again if you’re owed money come and join the action if you’ve got any questions if you know any facts if you’ve got any thoughts we’d love to hear from you www.dcpartners.solutions/podcast or give us a call 1-300-327-123 if you do go to our website check out the link in the bottom right hand corner there’s into the message chat tool we’d love to hear from you and you know thank you very much thanks for tuning in bye

Many R’s Podcast – S1E7

The Many R’s Podcast – S1E7

0:01 Introduction

0:33 Recap – what is the Many R’s Podcast about?

1:18 Where are we?

1:30 personal update

1:49 Lockdown, Insolvency, Jobkeeper, Jobsaver, Services NSW

2:41 Bunnings Gift Cards

2:59 Hakan Kutup

3:24 Matthew James Taunton / Abel Agency / Wiseberry Real Estate Box Hill NSW.

4:08 131MVR

4:35 Caernarvon Cherry / Bonny Glen Fruits Pty Ltd (in Liquidation), Bernard & Fiona Hall

4:59 AFSL – Snowgums Hospitality Fund (Orange NSW), Snowgums Heritage Blog

https://www.snowgumsretreat.com/categ…

https://www.dcpartners.solutions/snow…

6:53 Ralph Paligaru update

7:04 Mohan Kumar / Chhota Rajan update

12:55 Dural Alliances Pty Ltd (in liquidation), Ralph Paligaru, Bargo Developments, Australasian Property Group Pte Ltd etc – litigation funding update.

15:05 APG / Ian Jordan / Ralph Paligaru, Dreketi Timber Mill

17:02 Ralph Paligaru – Bankruptcy update

20:14 wrap up – Mohan Kumar / Chhotta Rajan, Dreketi Timber Mill, Ralph Paligaru, Craig Adams – what to expect in S1 Episode 8.

21:20 how to contact us

21:30 credits

Podcast – homepage – click here.

Transcript:

rogues rascals reviewables rorts rip-offs receivers real estate agents and much much more. the many R’s podcasts, it’s about a whole bunch of R’s – season 1 episode 7 i’m your host mark smith from dc partner solutions. come and visit us on our website anytime www.dcpartners.solutions/podcast

otherwise give us a call 1-300-327-123, until late usually, we love talking to people or you can instant message chat with us in our website www.dcpartners.solutions/podcast
bottom right hand corner use the instant message chat tools. thank you and welcome all right so let’s just have a quick recap about what is the many rs podcast is about and it’s certainly about uh all the rat bags and rogues and rip-off artists and sometimes about some receivers some real estate agents some uh some rackets uh and the likes but uh we’re certainly here to have a look at uh some corporate villains uh there hasn’t been so many travel rip-offs lately so uh so that’s good because we can’t travel anywhere um government malfeasance well that nothing’s uh specifically come onto our radar, so there’s nothing there to talk about some iffy lawyers we’re going to get into uh a little bit of that a little bit later on um insurance racketeers uh all sorts of racketeers and awards uh bankers and receivers well uh i don’t think we’ve got anything in this specific episode to talk about racketeers banks and receivers so let’s move on to where are we uh we’re going to have a look at some of the specific things that are on our mind at the moment. so uh as i’ve mentioned in some of the other episodes … i’ve really got a squeaky chair um i love the squeaky chair it gets the oil …. um but it has been a massive year for me personally uh it’s been obviously this covered thing but i’ve just completed my juris doctor to go with my masters of business administration and i’ve now embarked on to practical legal training and uh i’m 1/6 th of the way through that so that’s so that’s quite exciting uh. what isn’t exciting is a lockdown, and one gets the feeling that there’s going to be all sorts of things that will become themes in coming months the lock down this uh undoubtedly there’s reports every night on the news about small business suffering um and uh so i guess what that means is insolvency and that just happens to be a space that um we are really we’ve been very interested for a long time in insolvency and pre-insolvency company structuring, corporations law and so on so um with uh certainly with my MBA – the master of business administration –
i’m sure uh we can offer some valuable insights so if you’ve got a problem uh involving any of these things: the lockdown, insolvency, job keeper, the ato, tax debts – you name it, services NSW, oh my gosh uh getting funds out of them well it’s just obviously it’s it must be a honeypot for all of these things so um and yeah look sure that probably slows the process down for the the honest business people so uh watch for this to be a theme in coming weeks, now um bunnings gift cards.
um it’s probably not the uh uh not the number one rort that comes to mind but uh you know we’ll be doing a very small episode / segment on the bunnings gift card rort (soon) and uh that is uh it is absolutely rubbish it is a rubbish that’s that’s. and we catch with Hakan Kutup, our great mate from season 1 episode 1 um i i had a look uh just to see exactly what jail he’s in and uh no one knows um well you can’t find out off the uh services you know what the correctional services website yeah Hakan’s got privacy anyway um look a bit of an update on our buddy hakan, um there’s been orders for the sale well um for possession of his house so um but uh he’s got the uh covered reprieve so that one’s coming up now we’ve got another budding um um matthew james taunton now whether he’s a budding he can’t cut up or not uh time will tell but um matthew james taunton from abel agency uh was called wiseberry uh at uh box hill uh that box hill is in the northwestern suburbs of uh sydney well this matthew james taunton is one to watch so if you’ve had any dealings with matthew james taunton uh drop us a uh a message on the instant chat tool www.dcpartners.solutions/podcast we’d love to hear your thoughts on matthew james taunton now make sure we put up a matthew james taunton fan club page uh abel agency or wiseberry real estate so he’s our real estate star of the month um our former centerfold if you like gregory john walker nothing to report there actually i think greg’s been a a very good boy uh of late so um uh well the only thing i’ve got to report is that um one of his uh one of his receivers had a huge loss so project up in uh gosford they might actually uh that might actually go ahead so good on you mr walker um Caernarvon Cherry Pty Ltd uh Bonny Glen Fruits Pty Ltd (in liquidation) and uh bernard and fiona hall well just the very quickest of updates there um uh they had a two-day session in front of the chief judge in equity um in the NSW supreme court uh there so uh look i’ve heard various things and uh you know apparently it was a apparently it was sensational so uh watch this space um AFSL we’re going to touch on that now we’re actually uh i’m living out in Orange, NSW. i think i’ve mentioned that a number of times and loving it out here it’s been very cold um and for those that are interested i do have a heritage blog that you can um that you can uh have a look at so i think you i’ll make sure i throw in a link uh down below um on youtube uh it’s called the snowgum’s heritage blog https://www.snowgumsretreat.com/category/snowgums-blog

or something so uh maybe you just type in mark smith snow gums or something and uh and a podcast so it’s a video podcast series and uh what’s been going on anyway um look we we’re under our ifs we’re actually very seriously uh going to put up a uh a hospitality fund uh it’s uh it’s going to be extremely low risk uh real estate based we’ve got some well it won’t just be uh hospitality i suspect but anyway we’ve um expressed a few interest bits of interest in a couple of uh projects uh here in orange and um look there’s no there’s no tourism just at the moment and uh like none uh obviously because of code but there are i’m convinced absolutely wonderful opportunities uh we ran on airbnb here at um uh snow guns and uh for those that are interested uh send me a message uh instant message chat tool uh bottom right hand corner um uh dc partners dot solutions slash snow gums there you go i’ll make sure that there’s a page up and you can uh you know you can park some dollars now you have to be a sophisticated or wholesale investor um to participate so it’s not open to retail mum and dads but um uh and look honestly the returns are probably going to be fairly low this is very low risk but there may well be some good capital returns and uh some capital uh some capital growth oranges for those that well i’ll make sure that we put up a whole bunch of links but uh unsurprisingly uh regional australia is apparently booming uh so um uh the demand to get out of sydney and melbourne and brisbane uh is is gigantic so i’ll make sure i put in every link i can think of if you want to see a copy of our information memorandum www.dcpartners.solutions/snowgums

and uh we’ll make sure that you can see that so all right and moving along uh we now move on to one of our very favorite rs and that’s ralph ralph paligaru but not to be outdone uh john mahony, mohan kumar um and chhota rajan now chhota rajan is uh ralph’s best buddy um ralph will go to uh ralph will get in the trenches for uh his those he loves and uh boy does he love this mohan kumar bloke so ralph paligaru he holds a power of attorney for mohan kumar but who’s mohan kumar you might ask well mohan kumar was a bloke that entrusted ralph with his fortune known as 632 old northern road at dural and uh mohan kumar’s lawyer was none other than uh the illustrious uh and most experienced uh john mahony from mahony lawyer uh or is it mahony lawyers um and anyway uh mr um mr mohan kumar hopped on a plane at um in october 2015 and uh landed in um denpasar in bali and waiting there was interpol upon arrival and uh he was uh subsequently extradited off to india um and apparently uh apparently according to interpol uh mohan kumar is uh is in fact a guy called chhota rajan well um so that’s a bit of excitement for you uh not every day you uh you you get to talk about fugitives and ralph is besties with a fugitive and um well chhota rajan made all sorts of news uh in a few months ago he um after episode 6 i think it was uh he caught covered which is a real problem because um uh you know if you’re uh if you’re dead um ralph paligaru can’t be your power of attorney and uh who knows whether mohan kumar has a has a will i mean who knows so mohan kumar is um allegedly chhota rajan i don’t know i’ve never met i can i’ve met uh john mahony i have met ralph paligaru i’ve never been to india i don’t know i’ve never talked to mohan kumar i have no idea if mohan kumar is chhota rajan but interpol people think so and um well uh chhota rajan was um diagnosed with covid19 when all the india problems were you know the thick of things so i imagine poor old ralph had a few sleepless nights because uh with the assistance of john mahony uh john francis mahony of uh uh mahony law or mahony law ralph paligaru is in um the supreme court of new south wales running a court case saying that um uh mohan kumar has been cheated out of millions and millions of dollars now i don’t know whether the um john mahony is you know as a super experienced uh lawyer and i’m sure he’s completely on top of the felons civil procedure uh civil proceedings act uh and the civil proceedings act says well you know if you’ve been convicted of a crime oh now chhota rajan now this could all be a terrible uh case of mistaken identity but uh mohan kumar is being held under the name of who’s not chhota rajan but we’ll just call him chhota rajan that’s um ralph c mohan’s power of attorney he’s being held in a uh the biggest prison in um uh in india apparently with all the uh the top fugitives and um uh

that that does not stop john mahony and um ralph paligaru seeking justice justice for mohan kumar and they’ve uh they’ve decided uh to sue the torrens assurance fund ralph paligaru gave away the title deeds to 632 old northern road to our great mate craig adams craig matthew adams of golden arrow and bargo developments not to forget that he borrowed personally i was at about 1.6 million dollars from australasian property group but anyway ralph gave away just handed on a platter uh the title deeds to 632 old northern road to his great mate craig matthew adams now it’s unsurprising that he would do this because uh craig matthew adams yeah well craig matthew adams and uh ralph paligaru have a very secret side deal uh where ralph gets a 20 interest in a private hospital not bad not bad so um uh ralph also um i can’t neglect to to mention real estate agents jon brookes from brookes partners um now uh jon brookes from brookes partners is an old buddy of ralph’s and so ralph uh gives the listing he’s a power of attorney he has the entitlement to uh uh enter a listing agreement but he enters a listing agreement ralph does where ralph gets a kickback uh is it um look i i i’ve gone vague on the um on the details but uh it’s uh it’s a property that’s sold uh for allegedly 5.5 million dollars in um in may of 2016. and uh ralph hands over the title deeds to his great mate um and uh 80 confidential joint venture partner um craig matthew adams uh and in return um uh he expects a kickback from uh brooke’s partners um now he doesn’t get one but he expects one and uh ralph even asked me to go and sue um he gave me the the debt and said go off and sue if you wouldn’t mind go off and sue jon brooks from brookes partners and so anyway it’s a long story um ralph’s not a uh not a real estate agent but uh he’s a businessman uh according to his um affidavits ralph is a businessman and ralph’s the type of businessman that uh can turn six million dollars into well five and a half million dollars into uh 1.5 million dollars he’s that type of businessman uh not to forget the dreketi timber mill in fiji.
uh which is uh defunct now and um anyway um all of this apparently uh entitles i’d have to i’m not a lawyer so um or not yet anyway i’m a graduate with a um a juris doctor and i’m studying uh um practical legal training sorry i’ve gone blank there so i’m not john mahony i don’t have his wisdom and uh i don’t know how uh that’s all the fault of the torrens insurance fund handing craig adams the title deeds and handing him um uh withdrawals of caveat and all the rest but anyway apparently that is the um that is the fault of the torrens assurance fund and so uh a fugitive uh apparently uh called mohan

kumar ought to receive millions and millions and millions of dollars from the torrens assurance fund well not to be outdone ralph and amreeta paligaru have also got their hands out and they’re seeking um uh i don’t know hundreds of thousands of millions of dollars i suppose for themselves so uh that’s what ralph’s been up to um now he’s defunct company uh called dural alliances pty ltd (in liquidation). uh you may remember ralph put up his um family home uh and borrowed money $540,000 uh at 6% interest a month uh it’s really exciting uh to do that it’s thrilling and hair raising and all the rest uh and then just to add to the um uh excitement uh well why wouldn’t you give that $540,000 to craig matthew adams because um australasian property group apg that’s uh maya and ian jordan that’s their company from singapore well they’ve given um craig matthew adams at 1.6 million or maybe it’s 1.5 million as a personal loan, unsecured. i mean wow um so anyway that turns into that turns magically now they didn’t have john mahony as a lawyer they had the wonderful uh excellent multinational law firm called baker mckenzie and now i’m certainly not saying that john mahony is in the same class as baker mckenzie but anyway maybe they’re who knows anyway well bargo uh bargo uh got wound up as did golden arrow so unfortunately um ralph’s $540000 he’s gone but the 6% interest a month bill that’s still there and uh so that’s that’s when we come to the bankruptcy update a little bit further down below but anyway um so uh golden arrow and bargo are in liquidation and uh i’ll make sure we publish uh i’ll give you a look at the uh the the documents uh there was a wonderful creditors meeting i went to uh a couple of weeks ago in um my telephone uh that’s what you do in the Covid19 era and um well uh the liquidator of golden arrow & bargo has a giant fat uh pile of money now to go litigation funding and to get back uh ralph’s $540,000  except uh you know that went to apg and apg uh as i said they didn’t have john mahony as a lawyer they had uh baker mckenzie and they were able to turn a private loan into a secured interest for no consideration in a wonderful piece of land in warriewood and they happened to jump the queue uh in front of poor old ralph and only to the tune of $540,000 uh and uh they also got they jumped the queue and i think they walked out with $700,000 for of bargo’s money for no consideration how how wonderful is that so that’s what you get with baker mckenzie i mean they are geniuses um so uh apg uh is that’s australian property group ian jordan and maya i cannot pronounce her surname but uh wonderful lady i’ve met them both i’ve sat in their board room in singapore and uh they are high flyers in fact merrill lynch or kkr or one of those mobs are their investors and these guys are very bright and haven’t they got wonderful lawyers so uh heading off to drake timbermill now um i don’t know how uh ralph’s i can’t give you any updates because of covid it’s just been terrible but um uh dreketi timber mill uh had the unfortunate um adventure event of a cyclone smashing it to bits and i don’t know whether uh there was any sleepless nights for ian jordan because he and jordan uh from australasian property group the same bloke that uh loaned uh craig matthew adams was at 1.5 or 1.6 million dollars unsecured and then turned that into a security interest in mohan kumar’s uh i mean this is the most incestuous … you know in crazy story but anyway it gets even crazier ralph uh and ian jordan head off to fiji and go and start a company um and uh so ian jordan (an aussie)
from singapore decides to go to fiji because he’s always wanted to uh and started going to business with ralph and i’m sure that it had absolutely no nothing to do with the $700,000 that apg walked out for um of bargo’s money that once upon a time once upon a time was uh part of mohan kumar’s fortune well you know it’s a very sad and tragic story well maybe uh now once the lockdown’s over ralph has um it’s today’s friday the 13th friday the 13th of august will ralph has been repatriated back to australia apparently ?

i’m not in sydney i haven’t been able to catch up with my great mate ralph but maybe ralph and ian jordan can um can talk about their joint venture business in fiji uh how things are going and ralph may be able to commiserate with apg about uh having to face the having to hand back the 1.6 million or 1.5 million of uh preference monies uh allegedly that they’ve got uh from craig matthew adams and bargo and golden arrow so uh it’s all very very exciting. uh bankruptcy update now i can’t say too much uh because this is before the courts but uh maybe i can just say as a matter of fact um ralph uh ralph has signed a uh consent judgment so he uh consented to the to the entry of a judgment uh in the event he didn’t pay back money and uh surprise surprise ralph didn’t pay back money so anyway he he borrowed a whole heap of money from uh reliance leasing who have a wonderful director a man called garry steinberg who um garry has been very near to my heart in um in past years and uh what could i say ralph has known garry longer than me so that is a fact and so look maybe in the next episode we’ll we’ll talk about some of the past tricks oh well just what i can say about the bankruptcy it’s been held up so ralph borrowed a whole bunch of money from reliance leasing and gary steinberg in august well now it goes back to like 2012 or 2011 or sometime then it was … is that a decade ago??? i mean anyway um so come august 2016 gets rolled over correction ralph and the amreeta and they come ah i guess their company uh i think so i think the company is called ralph paligaru proprietary limited or something like that and uh and there’s another r and uh ralph ran a photocopying business and uh so ralph was really good at um

imaging. let’s just put it that way ralph was very good at imaging. and um well we might have to wait until episode 8 to find out some of the details. coming back to the bankruptcy update um as i said uh ralph and garry steinberg have known each other for longer than i have. okay so um i met ralph in march of 2017. i met garry uh i guess in probably 2014 and uh well thereabouts maybe 13 14 15. sometime there so let’s say four days i’d say it was 14. and um well for longer than that um uh ralph paligaru proprietary limited owed reliance leasing money so i imagine this is sort of ticking up interest and all the rest and anyway 2016 uh ralph gets a wonderful deal, miraculously.
around the same time ralph gets a wonderful interest-free loan i know all these details because they’ve been part of particulars that have been read in open court ralph can say interest-free loan in excess of $100,000 from 2016 and uh it’s interest-free for one year provided that you pay the money back okay so uh otherwise it becomes an 18 per annum loan well it’s now the 13th of august 2021. how much do you think ralph has paid back ralph hasn’t made?

there’s been some court ordered payments but ralph hasn’t made a single single monthly installment

and of course uh his wonderful lawyer mr mahony make has this incredible vanishing uh caveat trick so again i’m not a lawyer i haven’t been a lawyer for 40 years like john mahony, but john no doubt can explain that? and anyway let’s let’s catch up on this in episode 8 because it’s it’s a wonderful wonderful story but just to wet the appetite look i might pop up the um the judgment? and you can do some reading ahead if you like if you’re that keen so that’s it for uh episode series 1 season 1 episode 7 of the many r’s podcast.
um i hope you’ve had an excellent time if you’ve got any questions or you’ve got any information uh you’ve been to tihar jail you’ve heard of mohan kumar, you’re a fan of oh they’re making a movie they’re making a movie on chhota rajan apparently? so uh it’s some sort of uh underbelly series of you know fugitives in india so that’s all very exciting. if you know craig matthew adams if you know Dreketi timbermill? maybe maybe you’re one of the uh creditors of the dreketi timber mill maybe you shared some time with ralph in uh in iso in um what’s it called quarantine in hotel quarantine? uh does ralph owe you money? um and uh so ralph’s ralph’s milking the system uh brilliantly and uh and so managing to avoid uh bankruptcy for the time being so let’s let’s watch this space and let’s see uh we’ll learn in episode 8 about some of the tricks uh that maybe he got up to uh maybe you know a copy world at uh in um wherever it was seven hills (a suburb of sydney) i think it was uh maybe uh we’ll learn a little bit about that so thanks for tuning in and we’ll talk to you next time on the many r’s podcast. if you’ve got any questions as i said give us a call 1300 32713 or go to our uh bottom right hand corner instant message uh us or instant chat with us on www.dcpartners.solutions/podcast thank you

Many R’s Podcast – S1E6

Podcast Mark Smith

Many R’s Podcast – S01E06 for more information and indepth villain profiles – visit our webpage

https://www.dcpartners.solutions/products-services/blog/podcast/

To share this video: https://youtu.be/t3SAWQaqWks

In this series Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of Season 1 and subsequent seasons.

Season 1, Episode 6 will focus on:

00:00 – Start, opening music 00:14 – Intro from Mark Smith

00:27 – contact details

00:37 – Personal chat with Mark Smith, what Mark Smith’s been up to and what’s been happening with the Many R’s Podcast

01:00 – Reflections on the Covid World and opportunities

01:25 – End of Law Degree studies and personal reflections

03:36 – outline of show contents

03:45 – more on show contents

03:57 – Bunnings Gift Cards

04:08 – Matthew James Taunton – MBO Estates / Abel Agencies Box Hill

04:20 – Hakan Kutup

04:22 – Mahony Law / John Mahony & Law Cover plus Ralph Paligaru and Amreeta Paligaru

04:40 – Mohan Kumar

04:45 – Philip Beazley, Greg Walker, Karen Vee Walker

05:00 – Automotive sector

05:43 – Franchising

05:58 – Receivers

06:06 – Caernarvon Cherry, Bonny Glen Fruits, Fiona & Bernard Hall of Biteriot Operations

06:16 – DCP Capital

06:26 – DCP Capital – tax debt lending

06:36 – Corporations Law and Company insolvency lending

07:36 – Lightspeed Mortgage Management

08:24 – Sydney & Orange offices

08:44 – DCP Capital – Orange Development fund and forthcoming information memorandum

09:04 – Look ahead to S1E7.

10:24 – Credits

To share this video: https://youtu.be/t3SAWQaqWks

In this series Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of the Season and subsequent seasons.

Season 1 will focus on:

Real estate – including agents and developers. Miscellaneous other bad players in society Corporate Villains Travel rip-offs Government / malfeasance Iffy lawyers / shyster Insurance racketeer / Banks Receivers, Liquidators and Administrators

#5r #5rpodcast #marksmith #manyrspodcast #ManyRs

Transcript:

S01E06 podcast – transcript

season 1 episode 6 of the many R’s podcast welcome back it is uh wednesday the 16th of june 2021, my sister’s birthday, and i’m in uh freezing cold orange right at the moment but uh i’m as happy as larry and i look forward to telling you about that right now got any questions give us a call 1-300-327-123 or go to our website uh bottom right-hand corner uh dc partners dot solutions and uh click on the uh instant chat message thank you what a rusty introduction i’m very very sorry um it’s been a long time now i have been i’ve had probably the busiest uh few months in my life and today is wednesday the 16th of june  2021.

uh it is uh the afternoon i’m in orange at our new house actually believe it or not um we uh we’re we’re covid uh uh were covid safe out here and um look this covid thing has been wonderful and in lots of ways um and it’s it’s meant it’s freed up all sorts of reasons why uh you don’t need to be in sydney you don’t need to be in a capital city uh with the online world so here we are um at orange uh in my new studio and um my new home office and in studio and i’m looking out there’s snow out the window uh it’s it’s melted but uh it was snowing here uh several days ago and our property’s actually called snowgums so it’s been absolutely wonderful and why is it being wonderful well two days ago um one of the biggest events in my life uh came one of one of the biggest chapters in my life actually came to an end i’ve been studying a thing called a juris doctor which is a postgraduate law degree uh it’s a masters uh 24 um subjects um i’m a busy boy uh you know i’ve got an mba i’ve got uh businesses and uh been running litigation funding uh for a range of different people um and uh i’m a busy busy boy and i started in i think it was like the 17th of february 2014. i’m extremely privileged, i’m definitely white i’m middle-aged i’m male and i’ve been on a commonwealth supported place since um which is a which is a code for a subsidised law degree at THE best university well arguably the best university in australia and it has been a sensational sensational ride and i’m just so privileged and i know i’m privileged so um and apart from being white male and middle-aged and all that, we’re in a great part of the world and you know i’m just bubbling and enthusing with um happiness i uh i felt a huge relief um at the end of my studies and uh i was writing a 4000 word uh essay on the inviolability of the person uh which is very interesting and i’m happy to you know share with anyone or talk about it 1-300-327-123 i just couldn’t be happier so um i’ve got uh well we’ve got a very interesting program it’s just like a bit of a catch-up program and we’re not going to do our next episode until well we’re still in sydney so we’re partly in sydney and we’re partly in orange and um uh well it’s out of orange there you go but um uh we’re we’re on mount canobolas to be precise so uh have a look biggest mountain between sydney and uh perth it’s about 1 300m, we’re about one thousand meters above the sea level 1,004m there you go 1004m above sea level so that’s like Katoomba and it is just a sensational beautiful place and um we’re coming here on you know at the end of june 2021 we’re moving we’re um we’re keeping a base in sydney and uh we’re gonna spend a lot of time up here and there’s so many uh sort of interesting work options out here and uh look we’ll talk about some of those throughout the program so um this particular episode i hope you enjoyed it’s a bit different uh it’s been a while and i apologize i have i am a bit rusty uh but um let’s see how we go so what are we gonna talk about today well we’ve got some we’ve got some new villains um to talk about we’ve got some old villains who are coming back and uh let’s um well there’s the phone okay well we’ll cut a break there. okay well on the show today uh we’re going to i mentioned we’ve got some old and some new villains sorry there’s the camera we’ve got some old and some new villains so um

well this is going to surprise you, bunnings i’ve uh i’ll just run through the topics and then we’ll we’ll do a more detailed dive into them so bunnings and their gift cards this is uh property in the property area we’re going to catch up on a new villain we’ve got a new mate called matthew james taunton from um his business was called mbo estates um uh it’s now known as Abel Agency uh they’re out at the box hill in in sydney we’re going to catch up on hakan qatar got some news there uh Mahony law and john mahony and lore cover we’re going to talk on about them we’re going to catch up on the latest on ralph paligaru we’re not going to go too much into that because we’ll just give a general update we’re not going to talk about specific cases and we’re certainly not going to prejudice any cases but we’ll just have a quick update on the comings and goings of ralph paligaru um and Amreeta um um. Mohan Kumar. we’ll touch on him. philip beazley now he’s a lawyer john mahony is a lawyer as well but we’ve got phillip beazley who’s a lawyer for ah greg walker, so just very quickly we’re not going to slander anyone here but we’re going to quickly catch up on gregory uh john walker and karen v walker um. we’ve got an automotive um page a very good friend of mine is uh in the automotive business and um the automotive money lending business to be precise and uh some of you may know, i ruffled some feathers uh i um uh i wrote something and uh anyway i’ve got a tiny reaction so but uh look there’s there’s definitely smoke when you when you see smoke well there’s some often fire well there’s a lot of smoke here so uh we’re going to we’ll touch on about our website as well we’re doing some major revamp this is the benefit of finishing my law degree we’ll get heaps of time now so we can um uh sort of spend time getting some of these things right so yes there’s a motor dealers and an automotive page so we’re we’re very interested in shonky’s um in that uh in that line of business um. franchising um this is this is really uh what my uh my letter sort of touched a raw nerve wow. um okay but uh well we’re specifically talking about some changes to the franchise codes um i’ll give you links um in a moment uh we’ll very briefly touch on receivers um well liquidators and receivers are very quickly there we’ve got a little bit of news on our on our on our dear friends from Caernarvon Cherry and Bonny glen bernard and fiona hall um and uh. in the money business well we’re actually uh we’ve been doing some litigation funding for quite some time and so we are very very interested in the money space and uh our website you’ll see that um especially we’re certainly going to do something last year on tax debt lending um but uh watch this space because um we are very interested in in that and uh having just completed my law degree i did a lot of stuff on corporations law and um so the the tax debt uh lending is is more for company lending so um we’ve got a um we’ve got a business called dcp capital which we’ll talk about and there’ll be links in our website but uh uh coming out of covid and i’m sorry if that sounded insensitive i said that covid had been great uh it’s obviously been terrible and dreadful but um it’s um it’s changed the world uh there’s no doubt about that and uh coming out of it for better and worse um but uh coming out of it um uh well some some businesses um need help. so um you might wonder why do we do these blogs and um well we’re interested in people and we’re interested in you know people getting a fair crack and all the rest and um there’s many many businesses that um it’s now the 16th of june 2021.

i have no doubt that there’ll be a lot of activity with um our friends at the tax office and uh you know someone’s going to pay for the um you know the virus and uh generally that’s going to be done through the tax system in some way so we want to help people sort of meet their obligations um and so we’ve got a new product there. but in the money space we’ve got a um a company that has come to our attention called lightspeed lightspeed mortgage management i think they’re called and i’ll put up some links to lightspeed and i stumbled across this particular article i’m going to put a link to it is it’s very interesting i i um a friend of a friend

did some borrowing from well actually didn’t do the borrowing they got offered a loan from light speed but uh there were light speed in sending out the the court papers and uh

i’ll put up we’ll put up some information about these um these documents they’re quite stunning and this is we’ll explain how i speak to business and we’ll put in a link to the particular article that they caught my eye about lightspeed um and as i said we’re doing some work on our website now we are relocating um from sydney (to Orange) but we’re keeping a branch in sydney um and uh and i’ll certainly spend about four days a fortnight in sydney um and so what would that be about seven or eight days uh fortnight in orange and in the regions and getting work done uh so that i can come to sydney and um uh but you know there’s all sorts of opportunities oh sorry and back in orange um uh under our dcp capital arm uh there are some very very very good development opportunities so we’re putting together some funds some of you may know we had a litigation fund uh so we’re putting together some property funds and so there’s some very interesting uh there’s a information memorandum coming out in a few weeks so as i said this bit of a catch-up episode now we’ll get into the bunning situation. well it’s now actually the 2nd of july 2021, and um look for one reason or another we’re going to put all this content into uh episode 7 but uh we’ll just use this episode (episode 6) as a bit of a catch-up and uh i hope you enjoyed it so far um we talked about uh why they’ve been a huge delay for a couple of months between the last episode i think episode 5 we’ve just also published episode 4 um so look uh it’s been a hugely hugely busy time for me uh finishing studies um started in 2014 in february 2014 finishing those studies moving um place and you know in the last couple of days sydney’s gone into the lockdown uh so the timing probably uh really couldn’t be well it’s it’s terrible that the lockdown is very unfortunate but um uh getting out of sydney and at least for uh you know one at least the work part of the time out here in orange is you know a real opportunity so um we thought it was best to just publish the um this particular episode and then we’ll go on to season 1 episode 7 and we’ll talk about the bunning scam the uh catch up on some of our new and um emerging and some of our older villains uh which we’ll talk about in you know in much greater detail so uh tune in very very soon we’re going to start recording uh season 1 episode 7 very soon and uh that should hopefully be up in the next few days thanks very much, bye.

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Andrew Borrodell Gartrell

Andrew Borrodell Gartrell, son of the late Mr. Harold Borrodell Gartrell (Borry) formerly of Borrodell Vineyard, Canobolas (near Orange).

Andrew, a former fruit grower from Nashdale and part time author (see his previous work – Dear Fred) is now a property developer near Angeles, Luzon, Philippines. Andrew loves to hang out at Phillies Sports Bar and cheer on the Brisbane Broncos and Queensland Maroons with fellow fans.

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