Brighton Joint Venture Partner No 2 Scheme; Australian Securities & Investment Commission v Primelife Corporation Limited

Federal Court of Australia|2005-05-25|Before: Goldberg J

THE COURT DECLARES THAT:

The Scheme defined in the Schedule to this Order is a managed investment scheme which was and is required to be registered under the Corporations Law and the Corporations Act 2001 (Cth) but was not registered (the Scheme).

THE COURT ORDERS THAT: 2. The Scheme be wound up pursuant to s 601EE(1) of the Corporations Act 2001 (Cth). 3. Pursuant to s 601EE(2) of the Corporations Act 2001 (Cth), Andrew James McLellan be appointed as independent accountant (the Independent Accountant)to inquire into and report to the Court as to the affairs of the Scheme. 4. On or before 4 July 2005 or such further time as the Court allows, the Independent Accountant prepare and file a report with the Court in relation to the Scheme (the Disclosure Report) and provide a copy of the Disclosure Report to the parties to the proceedings as to the following matters: (1) the nature and identity of the assets and property of the Scheme; (2) the claims (actual, contingent and other) of third parties in relation to the assets and property of the Scheme, including but not limited to whether the assets and property of the Scheme have been given as security for any debt or liability and if so the nature of the security and the debt or liability so secured; (3) in relation to the past and current members of the Scheme: (a) the identities of the members and the nature and extent of their interests; (b) any payments made to or by members in relation to the Scheme; (4) the nature and identity of the liabilities of the Scheme; (5) the solvency of the Scheme. 5. The Independent Accountant have such powers as may be necessary to enable him to carry out and complete the inquiry and report referred to in pars 3 and 4 of these Orders. In particular, he shall be entitled to inspect at any reasonable time any books (as defined in s 9 of the Corporations Act 2001 (Cth)) in relation to the Scheme of any of the defendants (saving all just exceptions). 6. The Independent Accountant have access to the documents held by Australian Securities & Investments Commission ("ASIC") in relation to the Scheme (saving all just exceptions). 7. Each of the defendants immediately: (1) make available to, and allow inspection by the Independent Accountant during business hours of, any books (as defined earlier), records and other papers relating to the Scheme not delivered to ASIC including, but not limited to, all books (as defined earlier), records and other papers relating to the matters identified in pars 4(1) to (5) above (inclusive) in the possession of the defendant (saving all just exceptions); and (2) allow the Independent Accountant to copy any such books, records or other papers. 8. Within seven days of the date of these Orders, each defendant (except in the case of the Primelife companies, in which case one such defendant shall) by one of its directors deliver to the Independent Accountant an affidavit sworn by that director in relation to the Scheme, such affidavit also to be filed with the Court and served upon ASIC, setting out in relation to that defendant (saving all just exceptions): (1) the name and address of any bank, building society or other financial institution in which there is an account or accounts operated by the defendant in any capacity in relation to the Scheme together with the description and number of such account and the balance therein; (2) the names and addresses of any person indebted to the Scheme or the defendant in relation to the Scheme and the amount of the debt owed by such person and particulars of the circumstances in which such debt arose; (3) the names and addresses of any person or persons to whom the Scheme or the defendant in relation to the Scheme are indebted and the amount of the debt owed by them to such person, persons or entities and particulars of the circumstances in which such debt or debts arose; (4) an itemised inventory of each asset or item of property in relation to the Scheme whether real or personal wheresoever situate whether within Australia or outside Australia of the value of $A1,000 or greater in respect of which the defendant: (a) has an interest, and particulars of the nature of such interest; and/or (b) has the possession of or the custody or control over. (5) in respect of any of the assets or items of property referred to in subpar (4) above, whether it has been given as security for any debt or liability and if so the nature of the security and the debt or liability so secured; (6) the name of any trust in which the Scheme or the defendant in relation to the Scheme has an interest whether as trustee, beneficiary, trust object, settlor or otherwise and full particulars thereof of such trust and interest therein; (7) the name and address of any bank, building society or other financial institution wheresoever situate in which monies advanced to the defendant by investors pursuant to the Scheme have been deposited, specifying the amount of such deposit. 9. Each of the defendants by their directors, officers, servants and agents answer such questions as the Independent Accountant may reasonably require them to answer, as to any of the matters under inquiry (saving all just exceptions). 10. Within five working days of the date of these Orders, the Independent Accountant notify the persons named in Annexure 2 to these Orders as to the making and form of these Orders. 11. Within five days of its receipt of the Disclosure Report in accordance with order 4 above, ASIC provide on a "strictly confidential basis: for personal use only" a copy of the Disclosure Report to the members of the Scheme identified pursuant to order 4(3) above (the Members)under cover of a letter the substance of which is attached as Annexure 3 to these Orders. 12. Within thirty days of ASIC providing copies of the Disclosure Report pursuant to order 11 above, any party or any Member file and serve on each party to the proceedings any proposal they wish to make in relation to the future of the Scheme. 13. Upon receipt of any proposal pursuant to order 12 above, ASIC will provide a copy of any such proposal to each of the Members and inform them in writing that the proceedings will be listed for further hearing on 6 September 2005 to enable any party or any Member to make submissions to the Court as to the manner in which the Scheme should be wound up. 14. The Independent Accountant and any party have liberty to apply. 15. The matter otherwise be adjourned to 6 September 2005 for the hearing of submissions as to the manner in which the Scheme should be wound up.

THE COURT NOTES: 16. The undertakings given to the Court by the first and second and fourth defendants by their Counsel and by the fifth defendant personally, that until further order each of those defendants will not by themselves, or by their directors, officers, servants or agents: (1) promote the Scheme; (2) dispose of or destroy any books (as defined earlier) or records of the Scheme; (3) otherwise than in the ordinary course of the business of the Scheme (the Business)amend, alter, part with possession or remove from their present location any books (as defined earlier) or records of the Scheme; (4) otherwise than in a transaction in the ordinary course of the Business, deal with or dispose of the assets of the Scheme without first giving seven working days notice in writing to ASIC; (5) enter into any transaction on behalf of the Scheme the value of which exceeds $20,000.00 without first giving three working days notice in writing to the Independent Accountant.

SCHEDULE "Scheme" means the joint venture known as the Brighton Joint Venture between: (1) WRN Enterprises Pty Ltd as trustee for the investors in the KF Joint Venture; and (2) Montclaire Nominees Pty Ltd as trustee for the investors in the RC Joint Venture. The KF Joint Venture is the joint venture formed pursuant to the "KF Joint Venture Agreement" dated 30 June 1999 between WRN Enterprises Pty Ltd as Trustee and the investors listed in schedule 1 to that agreement, a copy of which is Annexure 1A to these Orders. The RC Joint Venture is the joint venture formed pursuant to the "RC Joint Venture Agreement" dated 30 June 1999 between Montclaire Nominees Pty Ltd as Trustee and the investors listed in schedule 1 to that agreement, a copy of which is Annexure 1B to these Orders.

IN THE MATTER OF THE PROPERTY SYNDICATE No 3003 UNIT TRUST SCHEME