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

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

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

THE COURT DECLARES THAT:

1. The Property Syndicate No 3003 Unit Trust constituted by the undated Deed of Trust executed on 14 November 2002, a copy of which is Annexure 1 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 matters set out in order 4 below.
4. On or before 11 July 2005or 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 current and past assets and property of the Scheme and whether they had been properly accounted for; (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; (6) whether the contents of the documents sent by Shail & Associates to members of the Scheme on or about 1 March 2005, 2 March 2005 and/or any subsequent date are in accordance with the matters identified in sub-pars (1) to (5) above.
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, records and other papers relating to the matters identified in pars 4(1) to (6) 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 fourteen days of the date of this Order, each defendant (except in the case of the Primelife companies, in which case one such defendant shall; and except in the case of the fourth and fifth defendants, 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, 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 7 September 2005 to enable any party (other than the first and second defendants) 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 7 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: (1) the defendants, by their counsel, that until further order each of those defendants will not by themselves, or by their directors, officers, servants or agents: (a) promote the Scheme; (b) dispose of or destroy any books (as defined earlier) or records of the Scheme; (c) 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; (d) 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; (e) 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. (2) the fourth defendant, by its counsel, that it will not make any disbursement of the net proceeds of sale of the properties situate at and known as 360 Glen Osmond Road, Myrtle Bank, South Australia and 7A Wheaton Street, South Plympton, South Australia, unless it has given seven clear business days' notice in writing to ASIC stating: (a) the amount of each such disbursement; (b) the proposed recipient of each such disbursement; (c) the proposed date of each such disbursement; (d) the manner in which each such disbursement is to be made, ie by cheque, internet banking transfer or otherwise - and that it will not make any such disbursement otherwise than in accordance with that notice.

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

1. 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 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 18 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 this Order. 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 twenty one days of the date of this Order, 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 21 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 21 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 third defendants by their Counsel and by the fourth defendant by its solicitor, 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 syndicate known as the Puma Syndicate: (1) formed pursuant to the "Puma Syndicate Agreement" between Puma Enterprises Pty Ltd as Manager and the investors listed in the schedule to that agreement, a copy of which is Annexure 1 to these Orders; (2) comprising: (a) the investors numbered 1 to 5, 7 to 11 and 14 in Annexure 2 to these Orders; (b) Hunter Road Holdings Pty Ltd as nominee for the joint venture known as the Hunter Road Holdings Joint Venture and comprising the investors numbered 15 to 31 in Annexure 2 to these Orders; (c) Waltonian Pty Ltd as nominee for the syndicate known as the Waltonian Syndicate and comprising the investors numbered 32 to 40 in Annexure 2 to these Orders; and (d) Paul Walker as nominee for the joint venture known as the Wyndham Joint Venture and comprising the investors numbered 41 to 67 in Annexure 2 to these Orders.

IN THE MATTER OF BRIGHTON JOINT VENTURE PARTNER No 1 SCHEME

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

The Court declares that:

1. 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 this Order. 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 defendants by their Counsel, by the Fourth defendant by its sole director Mr Keith Foote, by the fifth defendant personally, and by the sixth defendant by its solicitor, 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 1001 UNIT TRUST SCHEME

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

THE COURT DECLARES THAT:

1. The Property Syndicate No 1001 Unit Trust constituted by the Deed of Trust dated 13 June 2001, a copy of which is Annexure 1 to this orders, 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 matters set out in order 4 below.
4. On or before 11 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 current and past assets and property of the Scheme and whether they had been properly accounted for; (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; (6) whether the contents of the documents sent by Shail & Associates to members of the Scheme on or about 1 March 2005, 2 March 2005 and/or any subsequent date are in accordance with the matters identified in sub-pars (1) to (5) above.
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 this Order. 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 (6) 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 fourteen days of the date of this Order, each defendant (except in the case of the Primelife companies, in which case one such defendant shall; and except in the case of the fourth and fifth defendants, 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 this Order.
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, 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, 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 7 September 2005 to enable any party (other than the first and second defendants) 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 7 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: (1) the defendants, by their Counsel, that until further order each of those defendants will not by themselves, or by their directors, officers, servants or agents: (a) promote the Scheme; (b) dispose of or destroy any books (as defined earlier) or records of the Scheme; (c) 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; (d) 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; (e) 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. (2) the fourth defendant, by its Counsel, that it will not make any disbursement of the net proceeds of sale of the property situate at and known as 95 Bulla Road, North Essendon, Victoria, unless it has given seven clear business days' notice in writing to ASIC stating: (a) the amount of each such disbursement; (b) the proposed recipient of each such disbursement; (c) the proposed date of each such disbursement; (d) the manner in which each such disbursement is to be made, ie by cheque, internet banking transfer or otherwise - and that it will not make any such disbursement otherwise than in accordance with that notice.

IN THE MATTER OF THE HUNTER ROAD HOLDINGS JOINT VENTURE SCHEME

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

THE COURT DECLARES THAT:

1. 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 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 18 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 this Order. 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 twenty one days of the date of this Order, 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 agentsanswer 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, 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 21 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 21 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 defendants, by their Counsel, 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 syndicate known as the Hunter Road Holdings Joint Venture formed pursuant to an agreement between Hunter Road Holdings Pty Ltd as nominee for the joint venture and the investors in that joint venture.

IN THE MATTER OF BRIGHTON JOINT VENTURE PARTNER No 2 SCHEME

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

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

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

IN THE MATTER OF BRIGHTON JOINT VENTURE PARTNER No 1 SCHEME

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

IN THE MATTER OF THE PROPERTY SYNDICATE No 1001 UNIT TRUST SCHEME

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

IN THE MATTER OF THE HUNTER ROAD HOLDINGS JOINT VENTURE SCHEME

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

REASONS FOR JUDGMENT 1 On 23 and 24 September 2004 the Australian Securities and Investments Commission ("the Commission") filed a number of originating processes in the Court pursuant to ss 601EE and 1324 of the Corporations Act 2001 (Cth) ("the Act") seeking orders for the winding up of what the Commission claimed were unregistered managed investment schemes. In the proceedings the subject of this judgment, the schemes were known as follows: · V1180 of 2004 - "Brighton Joint Venture Partner No 2 scheme" · V1185 of 2004 - "The Property Syndicate No 3003 Unit Trust" · V1186 of 2004 - "The Puma Syndicate" · V1188 of 2004 - "Brighton Joint Venture Partner No 1 scheme " · V1190 of 2004 - "The Property Syndicate No 1001 Unit Trust" · V1194 of 2004 - "The Hunter Road Holdings Joint Venture" (the "unregistered schemes"). 2 In each originating process the Commission sought interlocutory relief in the form of an order that investigating accountants be appointed to prepare and file with the Court a report in relation to the unregistered scheme. The Commission also sought ancillary interlocutory orders to carry into effect that order and holding relief restraining the defendants from further promoting or operating the unregistered schemes. 3 The Commission's claim is that each unregistered scheme was obliged to be registered by virtue of the provisions of s 601ED of the Act. That section provides: "(1) Subject to subsection (2), a managed investment scheme must be registered under section 601EB if: (a) it has more than 20 members; or (b) it was promoted by a person, or an associate of a person, who was, when the scheme was promoted, in the business of promoting managed investment schemes; or (c) a determination under subsection (3) is in force in relation to the scheme and the total number of members of all of the schemes to which the determination relates exceeds 20. (2) A managed investment scheme does not have to be registered if all the issues of interests in the scheme that have been made would not have required the giving of a Product Disclosure Statement under Division 2 of Part 7.9 if the scheme had been registered when the issues were made. (3) ASIC may, in writing, determine that a number of managed investment schemes are closely related and that each of them has to be registered at any time when the total number of members of all the schemes exceeds 20. ASIC must give written notice of the determination to the operator of each of the schemes. (4) For the purpose of this section, when working out how many members a scheme has: (a) joint holders of an interest in the scheme count as a single member; and (b) an interest in the scheme held on trust for a beneficiary is taken to be held by the beneficiary (rather than the trustee) if: (i) the beneficiary is presently entitled to a share of the trust estate or of the income of the trust estate; or (ii) the beneficiary is, individually or together with other beneficiaries, in a position to control the trustee. (5) A person must not operate in this jurisdiction a managed investment scheme that this section requires to be registered under section 601EB unless the scheme is so registered. (6) For the purpose of subsection (5), a person is not operating a scheme merely because: (a) they are acting as an agent or employee of another person; or (b) they are taking steps to wind up the scheme or remedy a defect that led to the scheme being deregistered. (7) A person who would otherwise contravene subsection (5) because an interest in a scheme is held in trust for 2 or more beneficiaries (see paragraph (4)(b)) does not contravene that subsection if they prove that they did not know, and had no reason to suspect, that the interest was held in that way." 4 Section 601EE provides: "(1) If a person operates a managed investment scheme in contravention of subsection 601ED(5), the following may apply to the Court to have the scheme wound up: (a) ASIC; (b) the person operating the scheme; (c) a member of the scheme. (2) The Court may make any orders it considers appropriate for the winding up of the scheme." 5 On 4 October 2004 I refused to appoint investigating accountants to report on the unregistered schemes as I took the view that although it was open to me to make such an order under s 601EE(2) of the Act as part of the winding up procedure, it was only appropriate to do so where an order had actually been made for the winding up of the scheme. 6 Although I was not prepared to make an order on 4 October 2004 appointing investigating accountants to report on the unregistered schemes it seemed to me that it was appropriate that steps be taken as soon as possible to enable the Commission to continue its investigations of the unregistered schemes. Accordingly, I made orders on that date requiring each defendant to make discovery of a considerable number of documents in relation to the unregistered schemes. I also made orders requiring the parties to file and serve statements of facts and contentions and any affidavit material on which they sought to rely. 7 The discovery process commenced and from time to time case management conferences and mediation processes were held supervised by a Registrar of the Court. 8 The parties to the proceedings involve a number of persons and corporations who have been involved in the initiation, promotion and development of the unregistered schemes. The proceedings relate to the development of aged care facilities. The Commission has contended that the unregistered schemes were managed investment schemes operated by the defendants. 9 The parties in these six proceedings have now resolved the issues between them and have sought a number of orders of the Court by consent. In short, the parties in each proceeding have agreed that there should be a declaration that the scheme was required to be registered, but was not registered, and that the unregistered scheme should be wound up. They also seek orders that an independent accountant be appointed to enquire into, and report to, the Court as to the affairs of the scheme and they seek consequential orders to assist the independent accountant in undertaking and completing his inquiry and report. 10 Although the parties have sought a declaration by consent, it is still necessary for the Court to be satisfied that it is appropriate that the declaration be made. Accordingly, I have considered the material placed before the Court and am satisfied that the schemes as described by the parties in the material were managed investment schemes, which were required to be registered under the provisions of the Corporations Law and the Act, but were not in fact registered. 11 The details of the unregistered schemes and their genesis and implementation are somewhat complex and it is not necessary to recite all the details. Nevertheless, suffice it to say that I am satisfied that the schemes had either more than 20 members or that they were promoted by the defendants and their associates who were, when the schemes were promoted, in the business of promoting managed investment schemes. 12 Having regard to the issues which have arisen in relation to the unregistered schemes I am satisfied that it is appropriate to have the unregistered schemes wound up. Having reached that conclusion it is also appropriate, in all the circumstances, a number of which require considerable investigation, that an order be made for the appointment of an independent accountant to enquire into each of the unregistered schemes and to report on it to the Court, particularly in relation to its affairs. 13 Although I propose to make an order today that the unregistered schemes be wound up pursuant to s 601EE(1) of the Act, I propose to stand over for further directions and orders the manner in which the schemes are to be wound up and the identification of the person under whose supervision, and by whom, the unregistered schemes are to be wound up. There are a number of interests which need to be protected and preserved at this point of time and which may have a bearing on the manner in which the schemes are to be wound up. They are, particularly, the persons who are residents of the aged care facilities and the persons who are investors in the unregistered schemes. I therefore propose to make orders, which will have the effect of preserving the rights and opportunities of these groups of persons to come to the Court and make such submissions as they may be advised in relation to any final orders. 14 As drafting issues have arisen in relation to the form of the orders, the orders will be effective from and dated 1 June 2005. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

V1180 of 2004 Counsel for the Plaintiff: Ms M Gordon SC with Mr D Bennett

Solicitor for the Plaintiff: Australian Securities & Investment Commission

Counsel for the First, Second and Fourth Defendants: Mr N Murdoch

Solicitor for the First, Second and Fourth Defendant: Norton Gledhill

The Fifth Defendant: Mr K Foote appeared in person

Solicitor for the Fifth Defendant: JKB Lawyers

V1185 of 2004 Counsel for the Plaintiff: Ms M Gordon SC with Mr D Bennett

Solicitor for the Plaintiff: Australian Securities & Investment Commission

Counsel for the First and Second Defendants: Mr N Murdoch

Solicitor for the First and Second Defendants: Norton Gledhill

Counsel for the Fourth and Fifth Defendants: Mr R Brett QC

Solicitor for the Fourth and Fifth Defendants: KCI Lawyers

V1186 of 2004 Counsel for the Plaintiff: Ms M Gordon SC with Mr D Bennett

Solicitor for the Plaintiff: Australian Securities & Investment Commission

Counsel for the First, Second and Third Defendants: Mr N Murdoch

Solicitor for the First, Second and Third Defendants: Norton Gledhill

Solicitor for the Fourth Defendant: Mr J W Robinson

V1188 of 2004 Counsel for the Plaintiff: Ms M Gordon SC with Mr D Bennett

Solicitor for the Plaintiff: Australian Securities & Investment Commission

Counsel for the First and Second Defendants: Mr N Murdoch

Solicitor for the First and Second Defendants: Norton Gledhill

Counsel for the Fourth Defendant: Mr K Foote appeared on behalf of the Fourth Defendant

Solicitor for the Fourth Defendant: JKB Lawyers

The Fifth Defendant: Mr K Foote appeared in person

Solicitor for the Fifth Defendant: JKB Lawyers

Solicitor for the Sixth Defendant: Mr I Szmerling

V1190 of 2004 Counsel for the Plaintiff: Ms M Gordon SC with Mr D Bennett

Solicitor for the Plaintiff: Australian Securities & Investment Commission

Counsel for the First and Third Defendants: Mr N Murdoch

Solicitor for the First and Third Defendants: Norton Gledhill

Counsel for the Fourth and Fifth Defendants: Mr R Brett QC

Solicitor for the Fourth and Fifth Defendants: KCI Lawyers

V1194 of 2004 Counsel for the Plaintiff: Ms M Gordon SC with Mr D Bennett

Solicitor for the Plaintiff: Australian Securities & Investment Commission

Solicitor for the Defendant: Norton Gledhill Date of hearing 25 May 2005 Date of judgment 25 May 2005